[Federal Register Volume 81, Number 21 (Tuesday, February 2, 2016)]
[Rules and Regulations]
[Pages 5369-5378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01778]


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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: Final rule.

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SUMMARY: The United States Consumer Product Safety Commission 
(``Commission'' or ``CPSC'') is issuing this final rule to 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. 
This final rule removes these restrictions and allows Commission 
employees to participate as voting members and to accept leadership 
positions in voluntary standard development groups, subject to prior 
approval by CPSC's Office of the Executive Director (``OEX'').

DATES: The final rule will become effective on March 3, 2016.

[[Page 5370]]


FOR FURTHER INFORMATION CONTACT: Patricia K. Adair, Supervisory Program 
Analyst, Office of Hazard Identification and Reduction, Consumer 
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; 
telephone: 301-504-7335; <a href="/cdn-cgi/l/email-protection#3b4b5a5f5a52497b584b4858155c544d"><span class="__cf_email__" data-cfemail="44342520252d3604273437276a232b32">[email protected]</span></a>.

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 locations such as homes, schools, and recreational 
areas. Developing voluntary standards may involve multiple revisions to 
a standard within 1 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 and other 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 2014 Annual Report, CPSC 
staff provided technical support or monitored voluntary standards 
activities for 83 products in FY 2014. 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 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. This final rule 
amends part 1031 to eliminate these prohibitions and allows CPSC staff 
to vote and hold leadership positions on an optional basis, provided 
that such activities have the prior approval of the CPSC's OEX.

A. Statutory and Regulatory Background

    The Consumer Product Safety Act (``CPSA'') gives the Commission 
authority to promulgate mandatory safety standards for consumer 
products. 15 U.S.C. 2056(a)(1)(A). The Commission issued regulations in 
1978, 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 would eliminate or 
adequately reduce an unreasonable risk of injury and there will likely 
be substantial compliance with the voluntary 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 Commission's 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 or toddler 
products. These standards are to be ``substantially the same as'' 
applicable voluntary standards or more stringent than the voluntary 
standard, if the Commission determines 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 Law 104-113, 
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

[[Page 5371]]

recommended that the Commission review its policy for staff 
participation in voluntary standards development activities and 
determine the feasibility of agency staff assuming a more active, 
engaged role in developing voluntary standards. Specifically, the GAO 
Report recommended that CPSC staff be allowed to vote on 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. Notice of Proposed Rulemaking

    In response to the GAO Report recommendations, the Commission 
issued a proposed rule (``NPR'') to remove the prohibitions on CPSC 
staff participating as voting members and accepting leadership 
positions in voluntary standard development groups. 78 FR 57818 (Sept. 
20, 2013). The NPR proposed that CPSC staff participation in such 
activities would receive prior approval by OEX. The preamble to the NPR 
stated that 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) and balance these concerns against Commission priorities, 
available resources, the need for greater staff involvement, and the 
efficiency of the voluntary standards process. 78 FR at 57820. The NPR 
stated that OEX would evaluate each request for staff to participate as 
a voting member or to accept a leadership position on a case-by-case 
basis. Additionally, the preamble to the NPR stated that OEX would 
authorize staff to vote on actions for a specified voluntary standard 
but would not be approving each individual vote. Id.

E. Rationale for the Rule

    The Commission is finalizing the proposed rule without any changes. 
As discussed in the preamble to the NPR, the Commission believes that 
permitting CPSC staff the option to vote on a voluntary standard and/or 
accept a leadership position in a voluntary standard 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 additional access to and familiarity with the latest 
technologies, and will provide an opportunity for staff to help 
establish standards that will 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).
    Additionally, optional staff participation in voluntary standard 
development groups by voting and taking leadership roles is consistent 
with the guidance 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.''
    When participating as a voting member of, or in a leadership 
position on, a voluntary standard development group, the Commission 
directs CPSC staff to 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. 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, as stated in the final rule at Sec.  1031.11(c). 
Similarly, CPSC staff serving in leadership positions on a voluntary 
standard development group will act in their capacity as CPSC staff 
members, and their views will not necessarily represent the views of 
the Commission. In particular, the Commission warns that CPSC staff 
participation in a voluntary standard development group, even in a 
leadership position, does not provide any assurance that the Commission 
will support 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.
    Finally, 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. Response to Comments

    CPSC received 14 comments regarding the NPR that address 29 
separate issues. Comments submitted in response to the NPR are 
available at: www.regulations.gov, by searching under the docket number 
of the rulemaking, CPSC-2013-0034. We summarize the comments received 
on the NPR and CPSC's responses below. To make identification of the 
comments and our responses easier, we numbered the comments and 
responses, and placed the word ``Comment'' before each comment summary, 
and the word ``Response'' before the Commission's response.

A. Support for Greater Staff Participation in a Voting Capacity or in a 
Leadership Role in Voluntary Standards

    Comment 1: A commenter noted that, ``involvement of CPSC personnel 
in voluntary standards activities ensures that the agency and other 
affected

[[Page 5372]]

stakeholders (standards developers, industry, consumers, etc.) can 
address safety needs in an open forum, thereby reducing the likelihood 
that mandatory rulemaking will be necessary. Such rulemaking is often 
time-consuming, can preclude more robust stakeholder input and 
participation, and may not be able to react and adapt to changing 
market dynamics on a rolling basis.'' Other commenters echoed the 
conclusion that staff engagement produces ``better, more protective and 
timelier voluntary standards'' and those members with voting privileges 
are often more engaged in the process.
    Response 1: The Commission agrees that there are benefits to staff 
participation in voluntary standards organizations. Staff participation 
in a voluntary standards body facilitates more open, efficient 
interactions with stakeholders and such communication with stakeholders 
yields effective injury-prevention strategies for consumers. Sometimes, 
staff's participation in the voluntary standards process may be more 
efficient and timely in reducing safety hazards than mandatory 
rulemaking. For example, the ability to update standards quickly is an 
important benefit of voluntary standards. However, the ability to 
create mandatory rules is an important part of product safety. The 
Commission, not CPSC staff, generally determines when to follow a 
voluntary standard and when to initiate rulemaking, often based on 
staff's recommendations. Together, staff's participation in voluntary 
standards development and the Commission's rulemaking ability help 
fulfill the Commission's mission to prevent serious injury and death to 
consumers from unreasonable risks associated with consumer products. 
The Commission previously observed that an effective voluntary 
standards program, along with mandatory standards, can increase product 
safety better than either mandatory or voluntary standards alone (43 FR 
19216 (May 4, 1978)).
    Comment 2: A commenter expressed concern that staff's inability to 
``officially'' represent CPSC in voluntary standards development 
activities might be perceived negatively by other standards development 
group participants who expect that individuals in the group represent 
the views of their organizations.
    Response 2: CPSC staff currently provides input to voluntary 
standards development groups; this input represents the views and 
expertise of Commission staff, not the Commission. The fact that staff 
cannot represent the views of the Commission will not change if staff 
participates in voting. Leadership responsibilities in a voluntary 
standards organization are determined by each organization and 
generally require impartiality. A CPSC staff leader will be subject to 
all the rules and regulations of the voluntary standards, as any other 
member in the same role.
    Comment 3: A commenter noted that staff from the U.S. Environmental 
Protection Agency (``EPA'') participates and votes in voluntary 
standards development groups and has held leadership positions.
    Response 3: As GAO's report noted, CPSC's existing policy on voting 
and holding leadership positions in voluntary standards organizations 
is more restrictive than OMB's guidance on voluntary standard's 
participation 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). Each agency 
independently decides on an appropriate policy for voluntary standards 
activities.

B. Concerns With Greater Staff Participation in a Voting Capacity or in 
a Leadership Role in Voluntary Standards

    Comment 4: Some commenters stated that allowing staff to vote in 
voluntary standards development activities would ``compromise the 
CPSC's objectivity and have a `chilling effect' on candid discussions 
needed to develop the most effective standards.'' The commenters do not 
see the benefit of allowing staff to vote when an ``abstention with 
comment'' serves to provide substantive staff input.
    Response 4: Staff currently expresses its opinions of ballot items 
in voluntary standards development activities through an abstention 
with comment, participation in meetings, email communications, 
conference calls, and formal letters submitted to the standards 
development groups. At this time, the Commission is not aware of any 
instances in which expressions of opinion adversely affected 
discussions. Allowing staff to express staff's views through a vote may 
increase the speed and efficiency of staff communicating during 
standards development meetings. In addition to ballot votes, dozens of 
proposals can be made and voted on during any given standards 
development meeting. Allowing staff to cast a vote like other members 
can provide instant feedback about staff opinions.
    Comment 5: A commenter expressed concern that CPSC staff's negative 
vote could effectively negate the legitimacy and effectiveness of an 
entire standard, even when a standard has the full support of an entire 
committee. The commenter expressed concern that allowing CPSC staff to 
vote could cause manufacturers to decline altogether from participating 
in voluntary standards development.
    Response 5: The Commission disagrees. Staff regularly expresses its 
approval or disapproval of proposals in presentations and letters 
during standards development activities, usually verbally, but often in 
the form of a written ``abstention with comment.'' Even when staff 
provides negative feedback, voluntary standards development groups 
continue their work.
    Comment 6: Several commenters suggested that any CPSC staff 
position on a subject could be seen as an official Commission position, 
implying that staff's usual disclaimer cannot be effective. One 
commenter stated that the Commission should vote on every position 
taken by a staffer and expressed concern that a CPSC staff member 
stating a view that was ``materially different from one or more 
Commissioners, could create a conflict with an ultimate Commission 
determination.''
    Response 6: The Commission is comprised of five individual 
Commissioners. Accordingly, every Commissioner may not always agree 
with the recommendations or opinions of staff. The Commission's 
official position is determined by a majority vote of the five 
Commissioners. CPSC staff routinely expresses its opinions about 
proposals in voluntary standards activities with the disclaimer that 
staff cannot represent the Commission's opinions. The disclaimer that 
staff cannot ``represent the views of the Commission'' is generally 
understood within voluntary standards organizations and will be 
included as part of the comments attached to a staff vote if there is 
any indication that staff opinion could be misinterpreted as 
representing the views of the Commission.
    Comment 7: A commenter noted that CPSC's current policy preventing 
staff from voting in and leading voluntary standards activities ensures 
that the CPSC ``maintain[s] its independence as an impartial 
participant . . .''
    Response 7: The Commission's decision to permit the option for 
staff representatives to vote or hold leadership positions should not 
prevent the Commission from maintaining its independence. CPSC's 
regulation at 16 CFR 1031.13(e) states: ``Involvement by

[[Page 5373]]

Commission officials and employees in voluntary standards bodies or 
standards-development groups does not, of itself, connote Commission 
agreement with, or endorsement of, decisions reached, approved or 
published by such bodies or groups.'' The final rule requires OEX to 
approve staff participation, and to consider whether ``loss of 
impartiality'' would be an issue in each case.
    Comment 8: A commenter asserted that having staff in leadership 
positions of voluntary standards development groups would have ``a 
chilling effect'' on participation because, ``it is difficult to 
believe that any manufacturer representative would ever risk the ire of 
CPSC (a potential enforcement action?) against its company by voicing 
disagreement with a CPSC committee or subcommittee chair or voting 
against a CPSC position.''
    Response 8: According to CPSC staff, staff's experience 
participating in voluntary standards development groups does not 
support the commenter's claim. CPSC staff regularly engages in full and 
vigorous debates about staff's views in standards development meetings 
where a subcommittee disregards or votes against CPSC staff's position. 
Organizations, such as ASTM, have stated that leaders are subject to 
rules that maintain the development of consensus standards in 
accordance with rigorous democratic procedures that ensure open and 
balanced participation, due process, and consensus. Members may 
monitor, critique, and correct any actions of a subcommittee or task 
group chairman according to the rules and by-laws of the standards 
development organization. Additionally, although each organization may 
differ, leaders are nominated and appointed according to the standards 
development organization's rules and procedures. For example, UL 
employs UL staff to lead UL's standards technical panels. ASTM members 
elect a chairman who appoints subcommittee chairmen from the general 
membership, subject to the approval of ASTM's Executive Subcommittee 
(Section 6.3.1, ASTM, 2013).\1\ Task group leaders are appointed during 
subcommittee meetings.
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    \1\ http://www.astm.org/COMMIT/Regs.pdf--ASTM International, 
Regulations Governing ASTM Technical Committees, 100 Barr Harbor 
Drive, West Conshohocken, PA, October, 2013.
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    Under the final rule, CPSC staff could be nominated and appointed 
to leadership roles only after the approval of the standards 
development organization that makes the invitation. OEX will 
subsequently need to approve staff participation. The final rule gives 
standards development organizations the option to offer a leadership 
role to CPSC staff and for OEX to review and approve each offer on a 
case-by-case basis. Furthermore, execution of a leadership role is 
subject to the bylaws of the pertinent standards development 
organization, many of which require impartiality of people in 
leadership positions.
    Comment 9: Commenters argued that having CPSC staff in a leadership 
role in a voluntary standards development group could create the 
practice or appearance of undue influence if staff is allowed, for 
example, to schedule meetings, set agendas, and decide the direction of 
the conversation on the voluntary standard.
    Response 9: Standards development organizations have rules and 
bylaws that govern and protect the validity of their respective 
consensus-building procedures. Although the leader of a committee can 
have influence over the scheduling of meetings and discussions, the 
agenda and direction of the conversation are governed and selected by 
the committee members. Every proposal made by a member of the group 
must be voted on and approved by the members, and any irregularities in 
procedures are open to challenge by any member, as specified in the 
standards organization's rules of conduct or bylaws. Chairmen or other 
leaders cannot dictate the content or wording of a voluntary standard, 
nor can they move proposals forward without group consensus. Removing 
the prohibition will not alter or affect these rules and principles.
    Comment 10: A commenter asserted that the Commission has not shown 
``a reason why prohibiting staff from accepting leadership positions is 
no longer necessary.'' Another commenter termed the reasons for the 
proposed rule, ``a mystery.''
    Response 10: As noted above, a GAO report recommended that the 
Commission review its policy for participating in voluntary standards 
development activities and determine the feasibility of agency staff 
assuming a more active, engaged role in developing voluntary standards. 
The GAO concluded that CPSC had interpreted its level of participation 
more strictly than OMB guidance specified for activities such as voting 
on standards and taking leadership positions. Other participants in 
voluntary standards development activities familiar with CPSC 
contributions agreed with OMB that ``earlier and more active 
participation could increase CPSC's efficiency and effectiveness in 
developing standards'' (p. 10, GAO-12-582). After reviewing the GAO 
report, the Commission agreed with CPSC staff, that in certain limited 
circumstances, if CPSC staff is allowed to vote or serve in leadership 
positions, CPSC staff's participation may advance efficient development 
of safety standards. Importantly, removing the prohibition against 
these activities from part 1031 does not require CPSC staff to vote or 
to serve as leaders; however, removing the prohibition does provide a 
framework for CPSC to consider, on a case-by-case basis, whether staff 
should undertake such activities.

C. Potential Legal Issues With Greater Staff Participation Identified 
by Commenters

    Comment 11: Several commenters argued that allowing staff members 
to vote would ``usurp the regulatory process, effectively allowing the 
CPSC to develop a de facto `mandatory standard' outside of the notice 
and comment rulemaking process in violation of the Administrative 
Procedures Act, as such vote would likely be given significant 
weight.'' The commenters further asserted that, if staff assumes a 
leadership role in a voluntary standards development group, such a role 
would equate to an ``end run'' around the normal rulemaking safeguards 
that are needed to give small businesses a voice in the creation of a 
mandatory rule.
    Response 11: The Commission disagrees. Voluntary standards are not 
mandatory standards. Allowing staff to serve in leadership positions in 
a voluntary standards development group will not alter or circumvent 
any procedures for mandatory rulemaking. If the Commission engages in 
mandatory rulemaking, the Commission will continue to follow the 
appropriate notice and comment rulemaking procedures.
    Comment 12: A commenter noted that the CPSIA requires the 
Commission to make some voluntary standards into mandatory rules and 
expresses concern that a ``blurring'' is occurring between the needed 
distinction between voluntary standards versus CPSC-mandated 
regulations. The commenter is concerned that this perceived 
``blurring'' of the distinction between voluntary and mandatory 
standards is a ``slippery slope that could undermine the legitimacy, 
independence, and effectiveness of the entire voluntary standards 
framework.''
    Response 12: Several provisions of the CPSIA mandated or provided 
for the Commission to adopt as mandatory

[[Page 5374]]

regulations, certain voluntary standards, such as those for toys, 
durable infant and toddler products, and all-terrain vehicles. In these 
circumstances, there is a closer link between voluntary standards and 
mandatory CPSC standards than in other situations. However, the 
Commission follows appropriate rulemaking procedures when issuing a 
mandatory rule and clearly distinguishes between the staff's activities 
with a voluntary standards development group and the Commission's 
promulgation of a mandatory rule. Allowing staff to hold leadership 
positions or vote will not conflict with the rulemaking process.
    Most of CPSC staff's work with voluntary standards groups is 
outside of the unique circumstances of these provisions of the CPSIA 
and does not involve any rulemaking activity. Staff is engaged in the 
voluntary standards process for a range of other consumer products. 
Rather than ``undermining the legitimacy'' of the voluntary standards 
framework, CPSC staff, in addition to stakeholder engagement in the 
voluntary standards process, has added to the legitimacy and 
credibility of the voluntary standards process. Participation by all 
concerned stakeholders collectively to develop safety standards is the 
most effective way to mitigate the risk of injury through the sharing 
of information, such as testing and data.
    Comment 13: A commenter suggested that the language of the NPR 
sounds like the Commission believes that voluntary standards 
development is ``some kind of precursor to mandatory rulemaking or a 
substitute for an Advanced Notice of Proposed Rulemaking (``ANPR'').''
    Response 13: In the case of section 104 of the CPSIA, voluntary 
standards are the basis for the Commission's rulemaking for a durable 
infant or toddler product. Congress required the Commission to issue 
mandatory rules for certain durable infant and toddler products that 
are substantially the same as, or more stringent than, the voluntary 
standard for such products. Congress directed the Commission to issue 
such rules under section 553 of the Administrative Procedure Act 
(``APA''), rather than the Commission's rulemaking authority under 
sections 7 and 9 of the CPSA. In effect, Congress directed certain 
juvenile product voluntary standards to become precursors of mandatory 
rules, but still required the Commission to use notice and comment 
rulemaking to make such standards mandatory rules. Congress also made 
voluntary standards for both toys and ATVs mandatory CPSC rules.
    Voluntary standards are important to CPSC, as demonstrated by the 
large number of voluntary standards committees staff participates in 
annually. However, staff involvement in a voluntary standard committee 
is not a precursor to a mandatory rule. When the Commission engages in 
rulemaking under the CPSA, the Commission must consider the efficacy of 
any existing voluntary standards to address the risk of injury or death 
identified, and whether products substantially comply with the 
voluntary standard.
    Comment 14: A commenter stated that the proposed rule would have a 
``chilling effect'' on participating in the development of standards 
because ``. . . . the plaintiffs' bar will likely attempt to argue in 
product liability cases that a negative CPSC vote suggests that a 
voluntary standard (that was properly adopted through, for example, the 
ANSI or ASTM process) is still `unsafe.' ''
    Response 14: If lawyers wanted to make an argument based on an 
individual CPSC staffer's opinion, lawyers could do that today, based 
on staff's communications with a voluntary standards development group. 
Staff regularly and openly expresses opinions about voluntary standards 
in documents easily obtained and during open meetings. Expressing the 
same opinion in a vote will not change this dynamic.
    Comment 15: A commenter stated that one of the provisions of the 
Regulations Governing ASTM Technical Committees (Section 19.2.5) is 
that ``. . . no subcommittee or task group shall make any effort to 
bring about the standardization of any product or service for the 
purpose or with the effect of (a) preventing the manufacture or sale of 
any product or service not conforming to a specified standard. . . .'' 
The commenter argued that agency staff would violate this ASTM 
requirement if the proposed rule were approved.
    Response 15: The Commission disagrees with the commenter. CPSC 
staff's voting or holding leadership positions will have no effect on 
ASTM's requirements or procedures used for standards development. All 
members, including CPSC staff participating in the ASTM subcommittees 
are required to follow the rules of standard development set out by 
ASTM.
    Under the CPSA, the Commission must rely on a voluntary consumer 
product safety standard rather than promulgate a mandatory standard 
when compliance with the voluntary standard would eliminate or 
adequately reduce the risk of injury and it is likely there will be 
substantial compliance with the voluntary standard. Under section 104 
of the CPSIA, the Commission is required to issue a mandatory 
regulation for certain durable infant or toddler products that is the 
same as, or more stringent than, the voluntary standard if the 
Commission determines that more stringent standards would further 
reduce the risk of injury associated with such products. Contrary to 
the commenter's assertion, voluntary standards do not ``immediately 
become a mandatory standard.'' The Commission can only issue a final 
mandatory rule if the Commission follows the notice and comment 
rulemaking procedures under the APA or is otherwise instructed by 
Congress. Rulemaking can occur in parallel to the voluntary standards 
development process, but cannot be replaced by the voluntary standards 
development process.
    Comment 16: One commenter recommended that, if staff is given the 
opportunity to vote on a ballot item, and staff casts a negative vote 
that is later deemed nonpersuasive by the subcommittee, then staff's 
recommendation or suggestion should not be included in any final 
mandatory standard that incorporates the standard by reference.
    Response 16: This comment refers to the ASTM practice of allowing a 
subcommittee to find a negative vote nonpersuasive, thereby overriding 
the negative vote and allowing a ballot to pass, even though the ballot 
does not have the consensus of all voters. The commenter is confusing 
the roles of CPSC staff and the Commission. CPSC staff's opinions and 
suggestions are just that, they are the staff's opinions and 
suggestions, not the opinions and suggestions of the Commission. The 
creation of a mandatory standard, even one with origins in a voluntary 
standard, is separate from voluntary standards development and requires 
action by the Commission. Neither opinions of CPSC staff, nor the 
opinions of the standards organization members, can bind the Commission 
to any decision about a mandatory standard. CPSC rulemaking must be 
conducted following the appropriate statutory rulemaking procedure. 
Furthermore, the commenter's suggestion goes against separation of the 
voluntary and mandatory standards processes discussed previously.
    Comment 17: Commenters suggested that staff leadership and voting 
in voluntary standards development activities might activate certain 
requirements of the APA. These requirements ``could hinder or cripple 
the process'' of developing a standard.

[[Page 5375]]

    Response 17: CPSC staff voting and/or accepting a leadership 
position in a standards development organization does not implicate the 
APA. Procedural requirements of the APA do not apply to voluntary 
standard proceedings but only to rulemaking undertaken by the 
Commission through its statutory procedures.
    Comment 18: A commenter suggested that staff leadership in 
standards development activities might trigger the need to follow the 
Federal Advisory Committee Act (``FACA'').
    Response 18: FACA is not implicated by CPSC staff serving in a 
leadership position in a voluntary standards development group. FACA 
defines an ``advisory committee,'' in relevant part, as one that is 
``established or utilized by one or more agencies, in the interest of 
obtaining advice or recommendations for the President or one or more 
agencies or officers of the Federal Government . . .'' 5 U.S.C. 3 App. 
2. Voluntary standards organizations, committees, and subcommittees are 
not ``established or utilized'' by the Commission or CPSC staff. 
Voluntary standards committees exist to create and revise voluntary 
standards, irrespective of whether CPSC staff serves in a leadership 
function. Additionally, neither the Commission, nor staff, is 
establishing or utilizing a voluntary standards development group to 
advise the agency on any matter.
    Comment 19: A commenter suggested that staff leadership roles might 
trigger certain requirements of the Sunshine Act (``SA''), such as 
calendar notices and the accommodation of additional public 
participation beyond members who regularly contribute to standards 
development activities. The commenter was concerned that SA obligations 
would suppress participation and raise the costs of holding meetings 
for standards development organizations.
    Response 19: The SA, 5 U.S.C. 552b, does not apply to staff serving 
in leadership positions in a voluntary standards development group. As 
provided in the Commission's regulations implementing the SA, 16 CFR 
1013.1, SA requirements only apply to Commissioners, not to staff. The 
CPSC does have a meetings policy for the agency that applies to CPSC 
staff, as well as Commissioners. 16 CFR part 1012. The meetings policy 
fosters transparency and openness. Under the meetings policy, certain 
meetings involving CPSC staff (such as meetings concerning the 
development of voluntary standards) must be open to the public and must 
be noticed in CPSC's public calendar. The Commission's voluntary 
standards regulations at 16 CFR part 1031 explicitly reference and 
incorporate the meetings policy requiring CPSC employees to comply with 
applicable provisions. 16 CFR 1031.11(f) and 1031.13(c). CPSC staff has 
followed this meetings policy since its 1981 implementation when 
participating in the voluntary standards development process, including 
routinely posting voluntary standards organization meeting notices on 
the CPSC's public calendar and creating meeting logs to record 
participation.
    Comment 20: A commenter wrote that staff participation on technical 
committees ``could impede the ability of these committees to function 
effectively by precluding industry participants from discussing or 
disclosing privileged information.'' The commenter recommended allowing 
technical committee meetings to be closed to the public to facilitate 
``the open, honest dialogue and self-critical analysis that are the 
cornerstones of voluntary standard development.''
    Response 20: The final rule allows CPSC staff to vote on ballot 
items and to hold leadership positions. These revisions do not alter 
standards organizations' procedural rules or the CPSC's meetings policy 
(discussed in the previous response).

D. Other Procedural and Burden Considerations

    Comment 21: A commenter recommended that CPSC staff engagement be 
consistent with the Office of Science and Technology Policy (``OSTP'') 
guidance,\2\ namely:
---------------------------------------------------------------------------

    \2\ Principles for Federal Engagement in Standards Activities to 
Address National Priorities (Jan. 17, 2012), available at http://www.whitehouse.gov/sites/default/files/omb/memoranda/2012/m-12-08.pdf (last accessed March 25, 2014).
---------------------------------------------------------------------------

    1. Produce timely, effective standards and efficient conformity 
assessment schemes that are essential to addressing an identified need;
    2. Achieve cost-efficient, timely, and effective solutions to 
legitimate regulatory procurement and policy objectives;
    3. Promote standards and standardization schemes that promote and 
sustain innovation and foster competition;
    4. Enhance U.S. growth and competitiveness and ensure non-
discrimination, consistent with international obligations; and
    5. Facilitate international trade and avoid the creation of 
unnecessary obstacles to trade.
    The commenter also recommended that CPSC staff only accept 
leadership positions when the standard is a national priority and 
consistent with CPSC's current operating plan. Even then, the commenter 
recommended that leadership roles should be the exception, not the 
rule.
    Response 21: The Commission believes that the final rule will 
contribute to the objectives outlined in the OSTP guidance. OEX will 
approve staff participation on a case-by-case basis, based on the 
considerations outlined in the rule. The Commission expects that 
standards organizations will only extend an invitation for staff to 
take leadership positions during exceptional circumstances because many 
willing standard organization members are often available for taking 
leadership roles in standards organizations.
    Comment 22: Another commenter suggested that the Commission should 
be involved in the decision to approve staff participation because it 
is a policy decision, not just a budgetary concern.
    Response 22: The Chairman, not the Commission, is responsible for 
allocating staff resources. 15 U.S.C. 2053(f)(1). The Executive 
Director, as chief operating officer, manages staff's work. 16 CFR 
1000.18. Staff's work includes participation in voluntary standards 
activities, whether on a voting or non-voting basis and whether in a 
leadership or non-leadership capacity.
    Comment 23: A commenter questioned the criteria OEX would apply to 
determine when it was advisable for staff to participate actively in a 
standards initiative. What rules for gaining approval would be set and 
what criteria would OEX apply in the decision?
    Response 23: OEX will approve staff participation on a case-by-case 
basis, based on the considerations outlined in the rule, namely the 
policy concerns set forth in 16 CFR 1031.9:
    <bullet> An appearance of preferential treatment,
    <bullet> loss of impartiality,
    <bullet> compromise of the agency's independence, and
    <bullet> a real or apparent conflict of interest.
    Policy concerns in 16 CFR 1031.9 should be balanced against 
Commission priorities, available resources, and the need for greater 
staff involvement, among other things. Nominations for leadership roles 
will be subject to the rules set by the standards development 
organization, and an OEX decision will be rendered in a timely manner.
    Comment 24: Commenters strongly encouraged the Commission to ensure 
that the personnel assigned to participate in voluntary standards 
development groups have the technical

[[Page 5376]]

qualifications to address the entire subject of the standard, as 
opposed to a political appointee without relevant background training. 
Another commenter echoed this concern and also recommended that staff 
participation should involve regular attendance at meetings so that any 
votes cast by staff would be fully informed.
    Response 24: Staff members approved by OEX to hold leadership 
positions will be qualified to fulfill the responsibilities of their 
positions. CPSC's regulation at 16 CFR 1031.12 prohibits certain 
Commission personnel who have final decision-making responsibilities, 
such as political appointees, from becoming members of a voluntary 
standards development group.
    Comment 25: A commenter suggested that the procedures governing the 
chairman of a voluntary standards committee only allow that person to 
vote when there is a tie on a proposal. The commenter claimed that this 
would undermine one of the objectives of the rule.
    Response 25: The chairman's role in a voluntary standard committee 
is defined by each organization's by-laws, policies, and procedures. 
Anyone from CPSC staff taking a leadership role in a standards 
organization is required to adhere to those bylaws and policies. If 
this role is defined in standards organization bylaws and policies as 
one of a facilitator, then, staff will work to facilitate open 
discussion and debate, in accordance with the defined role of a 
chairman, and will avoid casting a vote when in that role.
    Comment 26: Some commenters expressed concern that the proposed 
rule could affect the ability of staff to monitor and informally 
participate in the greatest number of voluntary standards. Leadership 
roles demand significant resources and administrative responsibilities 
that may not be of significant interest to the Commission.
    Response 26: The Commission understands and agrees that leadership 
roles can be demanding and that the Commission's resources are limited. 
Some leadership roles, such as leading a small task group, may take 
less time and fewer resources and be an appropriate use of staff's 
time. For a staff member already committed to participating in a task 
group, serving as chairman may not involve a significant amount of 
extra time and preparation. However, as noted previously, resource 
demands and availability will be factors considered by the OEX when 
deciding on a request for staff to hold a leadership position.
    Comment 27: A commenter noted that the policy of limited staff 
participation in voluntary standards development activities was, in 
part, to reduce the financial burden on the government. The commenter 
did not see how lifting the prohibitions on staff participation in 
voluntary standards development activities would reduce the financial 
burdens on the government.
    Response 27: The final rule allows staff participation in a 
leadership role on a voluntary standards development group with OEX 
approval after taking into consideration a variety of factors, which 
may include resource availability. The level of participation in the 
voluntary standards process and the necessary commitment of time and 
resources can vary from situation to situation, and will be taken into 
account by OEX in considering approval. Implementing or revising 
mandatory standards can be costly in terms of the time and resources 
required to achieve a product safety objective. Participation in the 
voluntary standards development process is often a cost-efficient means 
to achieve the Commission's product safety objectives when the result 
is an effective standard with industry compliance. Implementing or 
revising an effective voluntary standard is in the interest of the 
Commission, consumers, and the industry.
    Comment 28: A commenter expressed concern that using staff in 
leadership roles could slow down the development of voluntary standards 
because those staffers would need to maintain their daily duties at the 
Commission.
    Response 28: Before approving staff to serve in a leadership 
position, the OEX will consider many factors, including the employee's 
then current duties and activities. Leaders in voluntary standards 
development groups typically have other duties at their place of 
employment, and if a leader is unable to fulfill his/her duties, the 
standards organization has procedures for replacing the leader to get 
the work completed on a timely basis. These procedures will apply to 
staff in leadership roles as well. For standards organizations that use 
volunteers in leadership roles (rather than voluntary standards 
development groups led by paid employees like UL), having another 
committee member who is allowed to volunteer for leadership duties will 
be beneficial during times of increased activity.
    Comment 29: Several commenters noted that if staff took leadership 
positions in voluntary standards activities and the government was shut 
down, then the standards development process would be slowed down.
    Response 29: Government shut downs are not common; however, the 
inability of staff to participate in voluntary standards activities 
based on this situation are similar to other circumstances, such as 
health-related issues, which can prohibit any person from fulfilling 
their duties on a committee. In the event of a leadership lapse, 
voluntary standards organizations have standing procedures for 
replacing leaders who cannot complete their duties.

III. Description of the Final Rule

    Following is a section-by-section description of the changes to 
part 1031. These changes are the same as those set out in the proposed 
rule.
    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. Section 
1031.10(b) of the final rule 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 final 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 final 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 final 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.

[[Page 5377]]

    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 final 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 final 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. Section 1031.12(b) of the final rule revises 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. Section 1031.12(b) of the final rule removes 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 final 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. Section 1031.12(c) of the final rule 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.

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). This final rule solely involves 
Commission procedure, and therefore, is not expected to have an adverse 
impact on the environment. The final 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 agencies conduct 
regulatory impact analyses to assess the potential economic impact on 
small entities, including small businesses, unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. The Commission provided such a 
certification in the NPR because the rule would not impose any new 
requirements on businesses, including small businesses nor require any 
greater governmental participation in voluntary standards. The 
Commission did not receive any comments related to the certification, 
and the final rule does not differ from the proposed rule. Accordingly, 
the Commission finds that the final rule will not have a significant 
impact on a substantial number of small entities.

VI. Paperwork Reduction Act

    The final 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 rulemaking.

VII. Effective Date

    The 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). 
Because the final rule solely affects Commission procedure and does not 
require stakeholders to take any action, the final rule is effective 30 
days after publication in the Federal Register.

List of Subjects in 16 CFR Part 1031

    Business and industry, Consumer protection, Voluntary standards.

    For the reasons stated in the preamble, the Commission amends 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 as 
follows:


Sec.  1031.10  Definitions.

* * * * *
    (b) * * * 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:
0
a. Revise paragraph (b).

[[Page 5378]]

0
b. In paragraph (c), remove the phrase: ``Executive Director,'' and add 
in its place ``Office of the Executive Director''.
    The revision reads 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.
* * * * *

    Dated: January 27, 2016.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2016-01778 Filed 2-1-16; 8:45 am]
 BILLING CODE 6355-01-P


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