CPSC Rule Process, Penalties May Change Under Buerkle

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By Martina Barash

Rulemaking at the Consumer Product Safety Commission will likely slow down and the agency’s approach to penalties may shift under Acting Chairman Ann Marie Buerkle.

Buerkle, a Republican, signaled she’s inclined to “comply with the spirit” of President Trump’s 60-day regulatory freeze and an executive order that would require federal agencies to cut two rules for every new one introduced. She voiced her position in a call with reporters Feb. 16.

That’s a shift from the view expressed by then-Chairman Elliot Kaye (D) Feb. 2. He said the “one-in-two-out” rule conflicts with the agency’s mission.

But it remains to be seen how much rulemaking would change. Some consumer advocates don’t expect big changes or are taking a wait-and-see approach.

Some enforcement matters currently underway won't be affected, Buerkle said. Others may be reassessed, however.

And the agency’s approach to future civil penalties could change given some of the new chairman’s Feb. 16 comments and her past opposition to a number of recent multimillion dollar fines for safety reporting violations against companies.

In some ways, the transition is expected to be relatively smooth, according to attorneys, advocates, Buerkle herself and others.

Change brings uncertainty and anxiety, Buerkle said in the call with reporters. “It’s my role to lower the temperature and reduce those anxieties,” she said.

She won’t change the staff, including the agency’s executive director and other senior staff, she said. “That means there will be no abrupt changes and it will ease this agency into a new administration,” she said.

It’s important for employees to remain focused on the CPSC’s safety mission, she said.

Buerkle takes over from former Kaye, who remains a commissioner.

President Trump removed Kaye from the helm on Feb. 8, according to a person at the CPSC who is familiar with the situation.

Democrats will maintain a 3–2 majority on the commission until the next vacancy, expected in October 2017.

Buerkle has sometimes joined the other four commissioners in voting for a proposal, but has also dissented regularly—sometimes alone in a 4–1 vote.

She was alone in opposing the largest penalty settlement to date, in which Gree Electrical Appliances Inc. agreed to pay $15.5 million over alleged reporting violations and misrepresentation. She also was on record voting against several other multimillion-dollar fines in 2016.

Regulatory Approach

Trump’s 60-day regulatory freeze represents “an opportunity for all of us to pause” and “figure out where we’re going from here,” Buerkle said.

That freeze, and an executive order that would require federal agencies to cut two rules for every new one introduced, “technically don’t apply to our agency,” which is an independent agency, Buerkle said. “But historically, the agency has tried to comply with the spirit of what the administration is saying.”

Rules mandated by Congress would be an exception to the one-in-two-out order, former CPSC Chairman Inez Tenenbaum (D) told Bloomberg BNA. Tenenbaum is now an attorney with Wyche P.A. in Columbia, S.C.

“Obviously she’s less regulatory-oriented and more oriented to try to work with stakeholders to come up with mutual solutions,” attorney Charles A. Samuels told Bloomberg BNA. Samuels, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. in Washington, represents companies regulated by the CPSC.

But most agency activities “will not be substantially affected by the change in management,” he said.

Nancy Cowles, executive director of Kids in Danger, a safety-advocacy group in Chicago, said Buerkle “has a good background in terms of being a nurse and interested in product safety issues.”

Buerkle is “interested in education and outreach to parents and caregivers,” which is part of what Kids in Danger does, Cowles said.

“We might differ a little on the importance of that versus—or in combination with—regulation,” she said. “But I don’t see any signs that she wouldn’t uphold the regulations that the CPSC currently has on the books.”

Ed Mierzwinski, the consumer program director at U.S. PIRG, said his organization will be watching closely. The group will be counting on Commissioner Robert Adler (D) if Buerkle puts ideas forward that it disagrees with, he said.

Penalties

Buerkle “wants to see fines calculated in a different way,” Tenenbaum said. “For example, she has said that a company that reports before any serious injury has occurred should be subject to a lower penalty than a company that waits until an injury has occurred.”

That would be a significant change because Kaye and other Democrats rejected calls by business to reexamine penalty calculations.

Buerkle, in her Feb. 16 call with reporters, specifically referred to making civil penalty determinations “more objective,” clarifying reporting requirements and making regulated businesses comfortable calling the agency to ask whether they should report incidents involving their products.

She envisions workshops and forums to communicate with businesses and also to discuss issues with consumer advocates, who “have lots of information,” she said.

Some enforcement matters currently underway would remain on track, while others may be looked at again.

Among those not affected are actions now being prosecuted in court such as a case involving burns and lacerations related to Black & Decker SpaceMaker coffeepots.

"It would not be appropriate for me to insert myself" in a case like that, she said. "Those are legal processes that have begun and I don't think you'll see any interference from my office or me," she said.

Collegiality

Across the board, stakeholders say Buerkle is collegial. “She is someone who listens, takes input and wants to solve product safety problems,” Cowles said.

Tenenbaum, who served on the commission with Buerkle for several years, said, “I always found her very easy to work with and a good friend.”

“We’re all focused on safety, all interested in data,” and have “a lot of common ground,” Buerkle said of the current commissioners.

She said she aimed to foster the good working relationship the commissioners had under Kaye. “We’re all going to have to move to the middle a little bit” to accomplish things, she said.

Is Buerkle poised to be nominated as chairman when the Republicans attain the majority?

“At first blush you would say she would be an excellent candidate” because of her experience in the area and her “solid grounding in the Republican party,” Samuels said. But sometimes the White House or a member of Congress uses a CPSC slot to give someone a government position, he said.

The regulated community “would love to have the certainty of knowing there’s going to be the continuity of her leadership,” he said. Even advocates might wish for it “because they know her and know they can work with her.”

“But it’s far from a certainty,” he said.

To contact the reporter on this story: Martina Barash in Washington at MBarash@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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