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New Faces at the CPSC?
White House Nominates Ann Marie Buerkle as Commissioner and CPSC Adds Ray Aragon as Director of Compliance and Field Operations

May 29, 2013 | Kelley Drye Client Advisory

With a looming departure date for Consumer Product Safety Commission ("CPSC" or "Commission") Commissioner Nancy Nord that would leave the CPSC without a quorum, the Obama Administration announced on Thursday the nomination of former Rep. Ann Marie Buerkle to serve as a Republican Commissioner.1 During her single term, Congresswoman Buerkle criticized what she described as an unchecked growth of government that stifled the free enterprise of small businesses.2 Her nomination will likely be paired with Marietta Robinson's nomination, President Barack Obama's pick in 2012 to fill the seat left vacant by Democratic Commissioner Thomas Moore.3

In the wake of the White House's nomination, Ray Aragon quietly became the Commission's Director of Compliance and Field Operation. Although the CPSC has not issued a press release announcing the new Director or modified its online organization chart, Mr. Aragon is listed in the CPSC's phone directory and presumably has begun handling matters. Mr. Aragon was most recently a partner at McKenna Long & Aldridge LLP, with a commercial litigation practice that included product liability claims.

Congresswoman Ann Marie Buerkle

Congresswoman Buerkle is a one-term New York congresswoman and former member of the House Tea Party Caucus and the Republican Study Committee. In 2010, Buerkle beat out Democratic Rep. Dan Maffei (D) in New York's 25th District to become the first woman to represent the Syracuse area in Congress. Her campaign website champions the small business enterprise and admonishes big government. As a legislator, she vowed to reduce taxes, eliminate spending, and reform entitlements, often citing to President Ronald Reagan's inaugural address that "[i]n this present crisis, government is not the solution to our problem; government is the problem."4 While in office, Congresswoman Buerkle voted to repeal the 2010 health care reform bill, which she called a victory for big government and "an affront to our Constitution,"5 and signed the Taxpayer Protection Pledge to oppose federal tax increases. Buerkle lost reelection to Rep. Maffei in 2012.

Buerkle began her career as a registered nurse at Columbia Presbyterian Hospital in New York City. She received a B.S. from Le Moyne College and a J.D. from Syracuse University College of Law. She served as an Assistant New York State Attorney General from 1977 -2009 and served one term on the Syracuse, New York Common Council. If confirmed, Buerkle would fill the commissioner's seat left vacant in 2012 by former Republican congresswoman from Kentucky, Anne M. Northup. Buerkle would join Democratic Commissioners Bob Adler and Chairman Inez Tenenbaum and Republican Commissioner Nancy Nord.

Buerkle's nomination is critical for the CPSC to maintain a quorum because lone Republican Commissioner Nord is serving her final year and will step down this October, leaving her two Democratic counterparts. The CPSC allows only for a temporary quorum not to exceed six months of two commissioners from different parties. Two additional seats remain vacant after the 2011 and 2012 departures of former Commissioners Thomas Moore and Anne Northup, respectively. President Barack Obama's pick in 2012 to fill Democratic Commissioner Moore's seat, Marietta Robinson, appeared before a confirmation hearing on May 10, 2012, by the Senate Committee on Commerce, Science, and Transportation,6 and is still awaiting a confirmation vote. Given the risk of losing quorum at the CPSC, both nominations will likely go forward simultaneously in the coming months.

Congresswoman Buerkle's critical eye toward federal spending comes at a time when the CPSC has been forced to manage a $7.9 million reduction in budget caused by sequestration.7 However, Buerkle vows not to impose a personal agenda if confirmed. She explained the extent of her responsibilities as a CPSC commissioner in an interview with Auburn.com: "So really it's about consumer product safety and us upholding the law. The commission upholds the law and makes determinations about standards for products produced by manufacturers."8

Ray Aragon

Ray Aragon is the Commission's new Director of Compliance and Field Operation. In that capacity, Mr. Aragon will oversee product safety recalls and will play a significant role in rulemaking and enforcement of consumer product safety laws.

Mr. Aragon left his position as partner at national law firm McKenna Long & Aldridge LLP, where his commercial litigation practice included product liability claims, commercial contract, intellectual property disputes, negligence claims and government contract issues. According to his now-disabled law firm profile, Mr. Aragon served as lead defense counsel in several national class actions against pharmaceutical manufacturers and was national coordinating counsel for several pharmaceutical manufacturers in the "fen-phen" diet drug litigation. His experience included representing a Fortune 100 corporation seeking to recover more than $100 million in environmental liabilities, advancing the claims of an aerospace subcontractor in litigation following the termination of a major defense contract, and representing business distributors against allegations of misconduct and business interference. In addition, Mr. Aragon wrote and co-authored a number of articles on product liability, indemnity, and other commercial litigation issues for such publications as Litigation, The Government Contractor and The National Law Journal.

He is a 1986 Yale Law School graduate with a B.A. from the University of Maryland.

Kelley Drye & Warren LLP

Kelley Drye & Warren's Consumer Product Safety practice group is experienced in providing advice on the difficult issues of how and when potentially hazardous consumer products must be reported to the CPSC. If product recalls are necessary, we work with our clients and CPSC staff to quickly develop and implement cost-effective communications programs that satisfy product liability concerns and minimize potential penalties. When the CPSC threatens or brings enforcement actions, we advise our clients on appropriate strategies.

For more information about this client advisory, please contact:

Christie Grymes Thompson
(202) 342-8633
cgthompson@kelleydrye.com

Sharon Kim Schiavetti
(202) 342-8592
sschiavetti@kelleydrye.com


[1] Whitehouse.gov, “Presidential Nominations Sent to the Senate,” May 23, 2013,  available at http://www.whitehouse.gov/the-press-office/2013/05/23/presidential-nominations-sent-senate-0.

[2] Ann Marie Buerkle for U.S. Congress, available at http://www.buerkleforcongress.com/know-the-facts/issues/energy-and-the-environment/.

[3] Ad Law Access, “Round Two: President Obama Renominates Marietta Robinson as CPSC Commissioner,” January 29, 2013, available at http://www.adlawaccess.com/2013/01/articles/consumer-product-safety/round-two-president-obama-renominates-marietta-robinson-as-cpsc-commissioner/.

[4] Ann Marie Buerkle for U.S. Congress, available at http://www.buerkleforcongress.com/know-the-facts/issues/energy-and-the-environment/.

[5] Ann Marie Buerkle for U.S. Congress, available at http://www.buerkleforcongress.com/know-the-facts/issues/education/.

[6] Nominations to the Executive Office of the President, the Consumer Product Safety Commission, and the Federal Maritime Commission: Hearing Before the Senate Committee on Commerce, Science, and Transportation, 112th Cong 2 (2012), available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg76909/html/CHRG-112shrg76909.htm.

[7] Consumer Product Safety Commission,   Ballot Vote Sheet to the Commission from Kenneth R. Hinson, Executive Director, re: Fiscal Year 2013 Midyear Review and Operating Plan Adjustments, April 24, 2013, available at http://www.cpsc.gov/Global/Newsroom/FOIA/CommissionBriefingPackages/2013/FY2013MidyearOperatingPlanAdjustments.pdf.

[8] AuburnPub.com, “Former Rep. Ann Marie Buerkle nominated to Consumer Product Safety Commission, hosts new radio show,” May 25, 2013, available at http://auburnpub.com/blogs/eye_on_ny/former-rep-ann-marie-buerkle-nominated-to-consumer-product-safety/article_9876db72-c4d6-11e2-9746-0019bb2963f4.html?comment_form=true.

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