U.S. Consumer Product Safety Commission What’s a Consumer Product, Anyway? ICPHSO 2013 ANNUAL MEETING & SYMPOSIUM FEBRUARY 28, 2013 PATRICIA 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.
“Consumer Product” § 3(a)(5) of CPSA“any article, or component part thereof, produced ordistributed (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….”
Exceptions from definition of “consumer product”“Any article which is not customarilyproduced or distributed for sale to, or use orconsumption by, or enjoyment of, aconsumer”
Exceptions from definition of “consumer product”Tobacco and tobacco products;Motor vehicles and motor vehicle equipment(National Traffic and Motor Vehicle Safety Act of1966);Pesticides (Federal Insecticide, Fungicide, andRodenticide Act);Firearms and ammunition (subject to tax undersection 4181 of Internal Revenue Code);Aircraft (Federal Aviation Act);
Exceptions from definition of “consumer product”Boats, vessels, and associated equipment (FederalBoat Safety Act);Drugs, devices, or cosmetics (Federal Food, Drug, andCosmetic Act);Food (Federal Food, Drug, and Cosmetic Act; PoultryProducts Inspection Act; Federal Meat Inspection Act;Egg Products Inspection Act);Amusement rides permanently fixed to a site.
Exclusions under § 31 of CPSARisks of injury associated with a consumer product ifthe risk could be eliminated or reduced by actionsunder the Occupational Health and Safety Act, AtomicEnergy Act, or Clean Air Act.Risks of injury associated with electronic productradiation emitted from an electronic product (PublicHealth Service Act).
ConclusionAvailable information about the product Where product is sold Price Promotional information and labeling Intended use and location of intended useRelevant statutory definitions Statutes and regulations Other agency’s interpretations
U.S. Consumer Product Safety Commission Information Disclosure andthe Consumer Product Safety Act ICPHSO 2013 ANNUAL MEETING & SYMPOSIUM FEBRUARY 28, 2013 MELISSA 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.
Information Disclosure Provisions § 6 of CPSA 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))
§ 6(b)(1) and (2) Timing of Notice and Opportunity to CommentTime for advance notice and opportunity to comment priorto public disclosure of information is generally 10 calendardays. (15 U.S.C. § 2055(b)(1); 16 CFR § 1101.22 ) Commissioncannot disclose in less than 15 days unless:Commission publishes a finding that the public health andsafety requires a lesser period of notice: Allows for shortening of time for submitting comments to CPSC Allows for shortening of time for CPSC notification of intent to disclose over objection
Exceptions to Advance Notice and Opportunity to Comment Described in § 6(b)(4)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
§ 6(b)(5) of CPSAIn addition to the requirements of section6(b)(1), section 6(b)(5) bars the public disclosure ofinformation 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 CPSASection 6(b)(5) restrictions on disclosure do not applyto the public disclosure of information about a consumerproduct 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
Section 6A Database ExclusionsDo not apply to information submitted Under section 15(b) of the CPSA; or Mandatory/voluntary reporting program established between retailer, manufacturer or private labeler and the Commission
Information Sharing § 29(e) and (f) of the CPSASharing of informationSection 29 (e) allows Commission to provide toanother Federal agency or a State or local agency accident or investigation reportsSection 29(f) sharing of information obtained bythe Commission to federal, state, local or foreigngovernment agency Specific requirements necessary to use this provision
U.S. Consumer Product Safety Commission Commission Operations ICPHSO 2013 ANNUAL MEETING & SYMPOSIUM FEBRUARY 28, 2013MATTHEW 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.
Typical Subjects of Commission ActionFiscal Year Commission Agenda & Priorities Priorities Hearing Budget Operating PlanCommission Voting Agenda Once items are ripe for Commission decision, the Commission, led by the Chairman’s office, sets a schedule for Commission consideration.Rulemaking Proceedings Requests for Information, Advance Notices of Proposed Rulemakings, Notices of Proposed Rulemaking, Final RulesEnforcement Actions Administrative lawsuits, issuance of subpoenasStatements of Commission Policy & Commission Guidance Documents
Typical Subjects of Commission ActionProvisional Civil Penalty AgreementsReferrals to the Department of Justice for Civil and/orCriminal PenaltiesDocketing and Disposition of PetitionsMost Notices Published in the Federal RegisterAnything a Majority of the Commission Chooses to Makethe Subject of Commission Action
How do Issues become the Subject of Commission ActionPrimarily driven through staff’s creation of proposed budget and operatingplan and the Commission’s modifications and approval of the final agencybudget and operating plan.Stakeholder Input & Requests Priorities hearing Other public hearings and proceedings Correspondence and meetings with agency staff Correspondence and meetings with Commissioners and Commission staff Petition processLegislative MandatesUnplanned Activities
Commission Procedures for Decision MakingAgenda Planning—The Chairman’s office regularly leads ameeting with senior staff and the other Commissioners’offices to discuss and finalize the Commission’s agenda for theupcoming week.Submission of Briefing Packages—Once a staff briefingpackage is completed and cleared, it is submitted to theCommission and then made available on CPSC.gov (if clearedfor public release).
Commission Procedures for Decision MakingTwo 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.
Deviations from Normal Decision Making ScheduleGenerally—Deviations from the normal schedule for ballot votes and decisionalmatters occur regularly for a wide range of reasons—everything from purescheduling issues through allowing more time to reach Commission consensus.Ballot Votes—Potential for a one-time 3 day extension of the voting due dateand/or the transformation of a ballot vote into a decisional matter.Decisional Matters—Potential for a deferral of Commission decision for up toone week.Shortened Timeframes—The timeline for the Commission’s consideration of anissue can be shortened by staff in certain cases where time is of the essence.Alternative Schedules—As adopted by a majority of the Commission
How often does the Commission Vote?Since July 1, 2009, the Commission has voted 364times. An average of ~140 votes per yearVoting Breakdown: 85% -- Unanimous votes 8% -- One dissent votes 7% -- Two dissent votes