Archive for the 'Congress' Category



1110 Series: If We Wanted Your Opinion…

Over the past couple days, I’ve talked about how the Commission hid the ball on costs and actively avoided clarity for product bans when we proposed to amend our certificates of compliance rule, the 1110 rule. Today, the issue I wanted to highlight is not our failure to make the rule as intelligible as it should be; it’s my colleagues’ refusal to seek intelligibility in our own deliberative process, specifically in how the new rule will deal with products that are exempt from testing to any applicable safety standard.

Our staff originally proposed what I thought was an acceptable approach: If your product is subject to multiple rules and exempt from testing for only some of them, then you have to certify to the ones in force and claim your testing exemption(s) for the rest. But if your product is exempt from testing under any applicable standard—whether your product has one or more testing exceptions—you don’t need a certificate just to say that. To me, this seemed not only a reasonable opportunity to minimize unnecessary burdens but also more consistent with the law, which bases certificates on testing.  Requiring a certificate with no information other than an exemption is wasteful and contrary to the purpose of the testing regime.

My colleagues were uninterested in these benefits. Arguing that having more pieces of paper to shuffle would expedite work at the ports, they amended the proposed rule to require companies to create, provide, and maintain certificates that say nothing more than, “I’m exempt from testing to the standard.” Although I do not think such a certificate is necessary, I thought public input on the question could be helpful, so I proposed returning to the staff’s original language and asking for comment on the safety, efficiency, and cost implications of my colleagues’ approach. My colleagues were not interested in asking a question, and decided to plow ahead. (My colleagues did less-than-helpfully note that the public could still comment on the approach.)

The rule they insisted on might turn out to be the efficient one. We might hear from commenters that consistency in certificates is more useful than skipping hollow ones. What baffles me is my colleagues’ refusal to even solicit public input on the point, particularly when they are claiming benefits that, if real, the regulated community would likely endorse. Dogged refusal to invite any other perspectives is not the hallmark of reasoned decision-making.

Tomorrow, we’ll continue this discussion of the areas where the 1110 rule could use improvement before it’s final.

Confusing the Policy with the Personal

My last blog post discussed my concern that our Fiscal Year 2014 budget request did not commit to activity to reduce testing costs, as Congress told us to do back in 2011. It seems my statement on this issue caused a reaction from my other two commissioner colleagues, who enthusiastically defended their recent decision to omit this activity from the budget request. Because my positions were mischaracterized, I filed a supplemental statement to set the record straight on some of the points that they got wrong.

While I like spirited debate, I firmly believe that this debate should be limited to the issues and not devolve into personal attacks. Yet, in one colleague’s statement, she resorts to just that. I do believe that there must be room on the Commission for differing points of view and regulatory philosophies.  That, of course, is the point of a Commission. So, no matter how loud or petulant the protestations to the contrary, I will continue to fulfill my duty to evaluate our regulatory landscape, form my own opinions, and engage in the debate. After all, that’s what I was hired and sworn to do.

Actions, Not Just Words

Government is known for “taking action” by commissioning studies, and the CPSC apparently strives to live up to that reputation. This is well illustrated by the way the agency is pretending to follow congressional direction to figure out ways to reduce testing costs: we repeatedly are asking the public for ways to reduce costs but without the promise of taking any action. Perhaps we think that if we study the issue long enough, those suffering under the unwarranted costs we have imposed will be long out of business, consumers will just get used to overpaying for regulatory burdens, and the issue will go away.

Our testing and certification rule places enormous burdens on companies with too little benefit to consumers. In 2011, Congress and the President tried to focus the agency on the issue through Public Law 112-28, telling us to ask the public to help us find savings, fix what we could without weakening compliance, and ask for more authority if we needed it. We have been dragging our feet on that work, and the latest chapter—our Fiscal Year 2014 budget request—makes clear that we won’t pick up the pace anytime soon.

In this budget, the extent of our burden reduction effort is to acknowledge that P.L. 112-28 exists. I tried to get agreement on an amendment that would have added a statement that we “may undertake activity to reduce the burdens identified” and that our staff would, as appropriate, prepare briefing packages on specific proposals. Of course, I would have preferred stronger language, but I wanted my colleagues’ agreement to this small commitment to action and so I offered this as a compromise. My colleagues found that too bold, explaining instead that we had already fulfilled our obligations under the law, voluntarily followed up on some of the comments we received, and might do more in the future.

I do not concur with my colleagues’ cramped and nonsensical view that all the law requires is that we seek comments on how to reduce burdens. (Would Congress really have asked us to get public comments and not intend us to review, analyze, and act on them?) Once presented with real options for reducing burdens, we have an obligation to take some action. Since my colleagues were not willing to make even this small commitment I could not in good conscience support a budget that asks for more resources but ignores basic regulatory obligations, especially as other agencies expect cuts to their resources. (My official statement on the budget can be found here.)

In 2012, our staff suggested 16 (non-exclusive) ways to reduce testing burdens and in the FY13 operating plan, the Commission whittled its to-do list down to sending out further requests for more information on just four ideas. We’ve asked for comments upon comments. Information is good (and people should again respond to our request), but Congress wanted us to do something about costs, not just consider doing something at some future time.

In response to my objections, I’ve heard the “door is not closed” on reducing burdens. The tone underlying that statement is that we’ve already done what we need to do, but we might do more. As discussed, I don’t think we have done much at all, but let’s take the statement at face value. Is there any reason to believe the door isn’t closed? Agencies only do the work they budget for, and not designating any resources for testing burden reduction is a sign that we won’t be doing that work.

I’m also told the budget is not really the appropriate place for burden reduction, that our operating plan would be the better vehicle. If it’s like the FY13 operating plan, the next version won’t even be written until halfway through FY14, when most of our resources are already committed. That’s the regulatory equivalent of “when we get around to it.” It’s not consistent with either the law or our obligation as public servants to regulate with no heavier a hand than necessary to reduce unreasonable risks to consumers.

Taking a Look Under the Hood

Today the House Subcommittee on Commerce, Manufacturing and Trade held a hearing to look at how the CPSC is carrying out its mandate.  What we didn’t say was more interesting than what we did say. You see, the Subcommittee is especially interested in our efforts to implement last year’s CPSIA reform bill, H.R. 2715. Since we have not done much in that regard, we did not have much to tell them.

Here’s a copy of the statement I filed with the Subcommittee, and you can watch the hearing here.

When There’s No Bang for the Buck

Sometimes what seems like a good idea just doesn’t work out. When that happens, we should admit it and correct course.

As the CPSC and Congress have struggled to try to reduce the number of children drowning, one idea that has not worked is a grant program to spur states to pass particular water safety and swimming pool construction laws. For the past few years, Congress has set aside several million dollars for grants to states and localities that pass certain pool safety laws. Because the CPSC does not administer federal grants like this, we pay the Centers for Disease Control (CDC) to administer this program. As we try for the third year to make this grant program work, we should look at where we stand:

  • Since the beginning of the program, not one state has applied for a grant and not one dollar has been disbursed, despite changes made to improve the program.
  • We will soon have paid CDC almost half a million dollars to administer a grant program with no takers.

Drowning is a safety problem that must be dealt with as effectively as possible. The public resources that have been allocated to an unused grant program could have been, and should be, used to actually address the issue. Trying to encourage states to pass laws by offering them a small, one-time shot of cash does not seem to be the best way to achieve our safety objective.

I suggest that Congress can—and should—find better ways to spend scarce public resources. That means either allowing the Commission greater discretion in using the funds to further pool safety or directing the funds elsewhere.

Why Cost Benefit Analysis Makes Sense

I’m not the only person talking about making federal regulations smarter. As I noted in my Politico piece last week, the Regulatory Accountability Act would make agencies take the costs and benefits of their regulations more seriously before they finalize them. This is something that the CPSC has not done with rules issued under the Consumer Product Safety Improvements Act, because the Act specifically gave the agency the opportunity to opt out of doing cost-benefit analysis.  Happily, one of the chief architects of the CPSIA, Sen. Mark Pryor (D-Ark) has joined with Sen. Rob Portman (R-Ohio) and others to make sure that the CPSC and other agencies do a better job of considering the impact of rules before they issue them. These two senators take to the pages of Politico to discuss the need for a better regulatory process. As they explain:

Employers…say they would like to expand and add jobs, but the regulatory environment has become too uncertain and costly.  Over-regulation now tops the list of ‘most important problems’ faced by small businesses…now is the time to build a more job-friendly regulatory system. This bipartisan blueprint would do just that.

It is unfortunate that the CPSC did not think about minimizing regulatory cost as we busily churned out regulations over the past several years.  Maybe that will now change. 

Read their piece here.

End Government by Guesswork

Regulators need good data to make good policy. As President Obama made clear yesterday in his speech to Congress, it’s important to reform regulations that are “unnecessary[] or too costly.” He demanded that federal agencies “eliminate rules that don’t make sense.”

But over the last two and a half years, the Commission hasn’t taken the time to make sensible rules. Instead, we crystal-balled benefits and ignored costs that we refuse to measure. And since our rules came into effect, costs for consumers have gone up needlessly as companies pass their costs on or leave markets entirely. These results are unnecessary and do not benefit consumers. We could have minimized them by performing cost-benefit analyses. Today, Politico posted my op-ed explaining in more detail why cost-benefit analysis makes for smart regulation and why the CPSC needs to get back to competent, sensible regulating. You can read it here.


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