Lovers of due process should tune into the CPSC webcast next Wednesday, September 28, to see arbitrary agency action at its finest. We will have several matters before us where the majority of commissioners plan to blow away any pretense of fair and open process. In the first instance, the agency will be making an about-face on a rule dealing with swimming pool drains without even bothering to put the question out for public comment. (For the specifics of this issue see my blog post) In the second instance, we will be briefed on finalizing one of the biggest and most expensive rules in the history of this agency, effectively ignoring congressional direction to seek comment and tailor the rule to better reduce costs. This is really a lousy way to regulate.
With respect to the swimming pool drain matter, 18 months ago we put in place, by a 3 to 2 vote, a rule interpreting the new pool safety law. Since that time all fifty states have been working hard to implement our rule. However, next week we will reverse our rule because one commissioner who voted in the majority has changed his mind on what the law requires. The result may be to make irrelevant much of the hard work those states have been doing. When I asked if the agency had new data or a new legal interpretation to justify reconsideration of this matter I was told, “No.” When I asked for a staff briefing of the commission on this matter, I was told, “No.” When I asked that we contact the states asking for input on whether the proposed new course of action made sense, I was told, “No.”
Despite the agency’s refusal to get data, I reached out to several state health officials. I was shocked by what I was told. First, there is strong dismay that a reversal is being considered. Second, this reversal will have serious financial implications for the states that relied on our current interpretation. Third—and most importantly—this reversal will have serious adverse safety implications. Here is some of what I was told:
- Illinois: Our current interpretation is “reasonable, practicable[,] and meet[s] the intent of the law . . . we were put through the wringer to meet the requirements of the new law and now you want to upset the apple cart.” The reversal “absolutely has safety implications” and “this will make the situation less safe.”
- Minnesota: Approximately 1,000 pools in the state will be impacted. The secondary back-up system does not have the proven reliability and does not prevent evisceration incidents that have been cited as justifying the change.
- Nebraska: The state relied on our current interpretation; a reversal would impact several hundred pools and would have financial impacts especially for rural communities. Reversing our policy does not advance safety.
Other states have given me similar comments. As I receive the emails and letters from the states I am sharing them with my colleagues. The fact that I, as an individual commissioner, had to do this outreach rather than the agency asking for comment from the public is inexcusable.
But apart from the process, what is worse is that we are actively ignoring the experts in the states who have direct responsibility for assuring pool safety. I would sooner rely on their arguments than those of colleagues who have no expertise and who, as we have seen, can always change their minds.