My experiences at CPSC during the 2011 and 2012 "shutdown
showdowns" are hard to forget. We spent a considerable amount
of time preparing for a potential shuttering of the agency because
of the very strict nature of the Anti-Deficiency Act when it comes to which
employees qualify as "excepted" or "essential."
Many of the same issues being discussed by the media today, like what to do with government issued smartphones
to prevent non-excepted employees from reading emails and thereby
unintentionally violating the law, are the same issues we discussed
then. While I cannot answer the question of how CPSC will actually
function during a shutdown because it never actually occurred while
I was there, the CPSC's shutdown procedures provide good insight into
the only types of activities Commission employees are legally
allowed to engage in during a government shutdown.
If the shutdown does occur, the agency's shutdown procedures state that it would go
from having 540 employees to 22 employees and be closed for
business except to protect against imminent threats to human
safety, to protect government property, or to provide necessary
support for those activities. All work at the CPSC unrelated
to these activities would cease, including ongoing investigations,
civil penalty negotiations, and any enforcement proceedings or
recalls that do not meet the "substantial and immediate threat
to the safety of human life" threshold. Travel and attendance
at conferences or meetings is also disallowed during this
timeframe—meaning CPSC staff would not participate in the
upcoming OECD and
ICPHSO conferences, Commissioners would be unable to hold
previously scheduled meetings with agency stakeholder groups, and
the Chairman would be unable to participate in an AAFA product safety conference next week.
The exact list of employees that would remain is not provided
but the threshold is set very high. The only employees that qualify
are those whose "failure to perform their functions would
result in an imminent threat to the safety of human life." The
Chairman and Commissioners are unaffected by the shutdown because
of their status as presidential appointees but their staffs are not
exempt. In fact, just because an employee is considered
essential one day, does not mean that they will be the next. Every
employee must submit a daily summary of the time they worked and a
log of their activities for an ongoing determination of whether
they remain essential. Non-excepted employees remain on call should
an emergency arise.
So how would the CPSC function during a government shutdown?
According to the agency's shutdown procedures, unless it involves a
product that poses a "substantial and immediate threat to
human safety" or the protection of government property, it
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Two years ago, the U.S. Consumer Product Safety Commission (CPSC) took the uncommon step of filing administrative complaints against multiple rare-earth magnet companies who refused to voluntarily recall magnetic adult desk toy products deemed to be defective by CPSC staff