WASHINGTON – A short-lived Republican majority at the helm of the national product safety regulator – a result of Senate delays in approving Democratic candidates – recently pushed through dozens of last-minute changes to the agency’s annual plan, slowing down some safety regulations and abandoning at least one forced attempt …
The changes mean that the Consumer Product Safety Commission is no longer planning new binding rules in the coming year to prevent suffocation with infant feeding pillows or carbon monoxide poisoning from gas appliances. The revised plan also canceled a pilot project aimed at growing concerns about the safety of products that can be found online rather than in brick-and-mortar stores.
“This is incredibly confusing,” said Rachel Weintraub, general counsel for the Consumer Federation of America advocacy group.
Proponents of the change defended the moves as “nonessential” and widely supported, pointing to one amendment that added 27 new product safety inspectors at US ports.
Attempts by Republicans to amend the CPSC’s operational plan have sparked controversy over the future direction of the federal agency, which has the power to oust dangerous products from the market and is responsible for the safety of 15,000 everyday items.
The changes came during a short period in late September, when Republicans had a 2: 1 lead over Democrats on the CPSC’s five-member board, with two seats remaining vacant. At the same time, three Democratic commissioner candidates were awaiting Senate approval – in part due to delays created by Republican senators, according to four government officials, who spoke on condition of anonymity because they were not authorized to speak to the media.
The new operating plan was eventually approved by a party vote, with the result that one agency commissioner from the Democratic Party then threw it out, only to be resurrected by two Republican commissioners who rejected it and again accepted the same plan. Agency representatives said they had never seen anything like it.
The clash also highlights a broader challenge facing President Joe Biden’s administration: the slow pace of Senate approval. Biden’s candidates for government councils and agencies had to wait longer than previous administrations, according to the non-partisan group Partnership for Public Service.
Some of the delays can be attributed to the sheer number of candidates requiring confirmation. But another factor is that one senator can delay the confirmation vote for any reason without publicly announcing it. For example, Senator Ted Cruz, Texas, said he is blocking several of Biden’s nominations to the State Department.
“It got absolutely worse. There are gaps all over the place, ”said Max Steer, CEO of the partnership. “And nobody really pays attention.”
And rarely does the slow pace of Senate approvals have such obvious consequences as at the CPSC.
Three CPSC commissioners who voted in favor of the operational plan – Acting Democratic Chairman Robert Adler and Republican Commissioners Peter Feldman and Dana Bajokko – declined to comment on the post. But the public letters they sent out about the controversy shed some light. And five senior CPSC officials spoke out on the condition of anonymity on what happened so that they could discuss in private.
“It was a pretty brutal process,” said one senior official.
The CPSC’s operating plan is a blueprint for what regulators expect to work on in the next fiscal year, which began this month. It outlines work on new safety instructions and details enforcement priorities. It is drawn up by the agency staff. Commissioners vote on it. And this is usually a common thing.
Republican commissioners made more than 40 last minute amendments to the original plan, all of which were adopted. Some of these were found to be of secondary importance, such as changing from “classes” to “subclasses” in the study of flame retardant chemicals. This is in line with the wording from the previous year’s plan.
But other amendments appear to have called for substantial changes in the agency’s focus.
“This is why it is important to discuss these issues with staff in advance,” said a senior CPSC official familiar with Adler’s mindset.
Republican amendments to the plan removed gas appliances from a project exploring ways to reduce the risk of carbon monoxide poisoning, but left it for portable generators. They also canceled plans for gas appliances, which will be subject to a new mandatory carbon monoxide safety regulation. Instead, the agency will conduct a “data analysis and technical review”.
A senior CPSC official familiar with Feldman and Bayokko’s views said they believed more work was needed.
“We need data to ensure we are doing a good job,” the official said.
But a senior official close to the Democratic ombudsman said the change is an attempt to slow down the development of a new security standard.
The new plan also removed the phrase “for targeted enforcement” from the description of the high-risk foods list for the holiday season. Officials said Republicans considered the phrase unnecessary, while Democrats believed that its elimination was an attempt to obfuscate the purpose of the list.
The revised plan also halted work on a new mandatory infant feeding pillow safety rule. Instead, the agency is tasked with working with industry on a voluntary safety standard. The pillows are a popular product and are similar to baby loungers that were reported in September in connection with the CPSC after eight babies accidentally suffocated in them in five years.
The new plan also mothballed law enforcement measures aimed at “at least two products commonly purchased online,” which was seen as a step towards tackling problematic online stores.
“It’s very clear that they are ending rule-making and abolishing law enforcement,” said Weintraub of the Consumer Federation of America.
Three commissioners voted on September 24 on the CPSC’s initial proposal for fiscal 2022.
Adler, a Democrat, voted for this. But two Republicans have proposed more than 40 amendments to the proposal and instead voted in favor of that version, passing 2 to 1.
According to two agency employees, Adler felt dumbfounded.
“Five minutes before the voting time, they submitted (dozens of) amendments and voted for them without giving him a chance to look at them,” said one senior official.
Republican commissioners Feldman and Bayokko have done nothing wrong, according to two senior officials.
“I think there was nothing unusual about this process,” said another senior official. “Voices are what they are.”
But two days later, Adler announced in a letter that the CPSC’s acting general counsel had ruled that the vote was “invalid.”
Opinion of the acting General Counsel Jennifer Sultan was not disclosed. But a copy reviewed by The Washington Post showed that the Sultan’s agency rules require that any “significant change” be reported in advance to senior agency officials.
Adler, in a statement the next day, accused the two Republican commissioners of “ambushing the government” and “seizing power.”
Feldman and Bayokko responded with a statement noting their changes.
Unfortunately, Adler wrote, saying something categorically and enthusiastically just doesn’t make it true.
Not to be outdone, Feldman and Bayokko then voted in favor of the measure, stating that the general counsel could not overturn the commission’s vote, and again adopted their amended plan. Adler voted against, but there was less of him.
Alder is on the losing end because Biden’s three nominees for CPSC commissioner have not yet been confirmed by the Senate, despite being formally nominated in July.
Each candidate faced different obstacles, according to three government officials. One of them, CPSC executive director Mary Boyle, was waiting for the Senate committee to take action. The other, Rich Trumpka Jr., appears to have been blocked by an unknown Republican senator.
Alex Hon-Saric was the only one who had an open chance of confirmation. He was named chairman of the CPSC as Adler planned to retire.
But then he ran into Senator Roger Wicker, Republican Mission, who sits on the CPSC’s oversight committee.
Shortly after the controversial first vote on the CPSC’s operating plan, Wicker wrote a letter praising the changes made by the two Republican Commissioners and condemning the Democratic Commissioner’s failed attempt to reverse them.
“It is impossible to interpret this action other than as a blatant act of sabotage on the part of the acting chairman, who ended up on the losing side in the vote,” the senator wrote.
At the same time, Wicker quietly blocked Hohen-Sarik’s candidacy, according to Senate aides who wished to remain anonymous because they were not authorized to communicate with the media.
Hon-Sarik’s nomination remained on hold until the CPSC wrote Wicker a letter to reassure him that the agency would follow the plan changed by the Republicans. Wicker allowed the nomination to move forward. He passed through the Senate earlier this month. Hoehn-Saric declined to comment.
Today, with Hohen Saric on the board, the CPSC has a 2: 2 rating.
The CPSC’s work plan is unlikely to change. This will require a majority of votes.