The CPSC seems to be floundering around in the deep end of the pool without a lifeguard to save it. What was intended to be a quick, “under-the-radar” vote to flip-flop on a rule dealing with swimming pool drains now has turned into a big mess.
Common sense and good administrative practice say that when you reverse course, you should find out who will be impacted by your action before you do it. This is even truer when there is no impetus for the reversal and no rallying cry or public discussion prompting you to act.
In this case, many states and local jurisdictions have relied on the guidance we gave them 18 months ago and therefore we should have determined how a rule reversal would impact them. Since the agency refused to ask for that information, I did, and I have been getting a number of troubling letters that detail the adverse safety impacts and the financial and regulatory burdens we will be placing on those jurisdictions by this action. These letters make clear that, had we bothered to ask the public for their thoughts in the first place, they would have had plenty to tell us. Now we have gotten a letter from the Chairmen of the two Congressional Committees who oversee our activities asking why we are taking this action without even asking for public comment.
This is not the only instance where the Commission is rushing to regulate before the effects of potential changes are understood. We will soon be voting on the testing and certification rule. Our own regulatory analysis tells us that this rule will be enormously expensive. Recently, Congress told us to better consider the costs of testing, especially to small businesses. In response, the majority plans to push out a final rule with a vague promise to perhaps amend it before it becomes final final, after we get input from the public on ways to reduce testing costs and burdens. So, without getting the cost information Congress told us to get, we’re going to put the rule out, then maybe change it after people have already started relying on it, thus increasing the cost even further.
Rushing out rules without concern for the consequences is becoming standard operating procedure for this agency. Between our blind rush on the testing rule and our belly-flop of a hush-hush reversal on pools, with the enormous sums of other people’s money we’ll be wasting in both actions, CPSC might soon have to stand for Consistent Producer of Sunk Costs.