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Acting Chairman Ann Marie Buerkle Withdraws Nomination, Announces Intent to Resign From CPSC, Effective October 27, 2019

Acting Chairman Ann Marie Buerkle

In a press release this afternoon, Acting Chairman Ann Marie Buerkle announced that she would be withdrawing her nomination to be the permanent Chairman of the CPSC, as well as her nomination for an additional 7 year term, which would have expired in October 2025. Buerkle will step down as Acting Chairman on September 30th, and will be leaving the agency at the end of her term on October 27, 2019 (her first term ended in October 2018, but the law allows for a sitting Commissioner to stay on for one additional year if their vacancy has not been filled). In the press release, Acting Chairman Buerkle cited to her desire to pursue new public service opportunities and spend more time with her six children and eighteen grandchildren. Buerkle’s statement noted:

“Serving as a Commissioner at the CPSC for the past six years and as the agency’s Acting Chairman for the past two and a half years has been one of the most rewarding periods of my professional career. Nonetheless, the time has come to pursue new opportunities that will allow me to continue my life’s work of advocacy and public service as well as spend more time with my six children and eighteen grandchildren.”

Acting Chairman Buerkle has spent the past 2 years in confirmation limbo. In July 2017, she was nominated by President Trump to serve as the permanent Chairman of the CPSC, along with an additional 7-year term on the Commission. Following a Senate confirmation hearing in September 2017, her nomination was approved by the Senate Committee on Commerce, Science, and Transportation, but the full Senate never took action to vote on her confirmation.  President Trump therefore re-nominated Buerkle in January 2018.  Again, in 2018, the Senate took no action to confirm Acting Chairman Buerkle and she was nominated for a third time in January 2019. During this time, we saw Commissioners Baiocco and Feldman receive confirmation, ushering in a 3-member Republican majority for the first time since 2006.

Once her resignation is official, the CPSC will have two Republican and two Democratic Commissioners. Without the quick nomination and confirmation of a new Republican Commissioner over the summer, this could end the current Republican majority less than a year after it began and leave the Commission split at 2-2. This type of split is not unheard of at the agency. The Commission was split between October 2011 and June 2013 with a Democratic Chairman This time, however, there will presumably be a Republican Acting Chairman.

Unless a new Chairman is confirmed before Buerkle’s departure, it will be up to the remaining four Commissioners to elect a new Vice-Chairman by majority vote. The Vice-Chairman will then become the Acting Chairman of the agency until a permanent Chairman is confirmed.

The Trump administration will need to select a nominee to fill Buerkle’s spot on the Commission with a term ending in October 2025. The nominee could also be nominated to become the permanent Chairman of the agency or the Trump administration could consider Commissioners Feldman or Baiocco for the position. It is also possible that, heading into an election year, the administration does not put any nominee forward and allows the Commission to remain 2-2 with a Republican Acting Chairman. We will keep our readers updated as we learn more over the next few months.

 

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Authors

Shawn N. Skolky

Associate

Shawn N. Skolky is a Mintz Associate who advises clients on antitrust and competition law, including antitrust counseling, merger review, and private antitrust litigation. Shawn's consumer product safety practice assists companies with product safety reporting, recalls, and regulatory compliance.

Matthew R. Howsare

Member / Chair, Consumer Product Safety

Matthew R. Howsare is a prominent consumer product safety lawyer at Mintz. He advises manufacturers, retailers, importers, distributors, trade associations, and test laboratories on compliance, regulatory enforcement, recalls, and other product safety issues.

Charles A. Samuels

Member / Co-chair, Retail and Consumer Products

Charles A. Samuels is an antitrust and regulatory lawyer at Mintz. He assists clients with consumer product safety and environmental regulations and serves as general counsel to many trade associations. Chuck represents clients before federal agencies like the Consumer Product Safety Commission.