In a time of budget crises and calls for leaner, smarter government, I’ve spent some time thinking about how the CPSC works and how to make it better. Based on my experience on the commission—starting with three commissioners, then two, then five, then four, and now three again—I have to question the decision to have multi-member commissions—at least here at the CPSC. I have spoken about the subject numerous times, including last fall when I visited with the students and faculty of the Regulatory Policy Program at Harvard University’s Kennedy School of Government. We talked about whether multi-member commissions provide their supposed benefits, and what we should do about it if they don’t. You can read some more of my thoughts in the latest issue of the Cato Institute’s Regulation magazine.
Archive for the 'CPSIA' Category
One of the biggest challenges the CPSIA presented the CPSC is the requirement, in §104 of the law, to issue four final rules each year regulating durable infant and toddler products. Young children are our most precious “consumers” and it is critical that the products they use for sleeping, feeding, and playing are safe. Having said that, not all these products necessarily present risks or present risks of the same magnitude.
Congress told us to mandate standards for these durable nursery products based on voluntary consensus standards unless we determined that more stringent requirements are needed. As we have worked to push rules out on the timetable mandated by Congress, I am concerned that the quality of the rules we are issuing is being overshadowed by the need to meet this schedule. Sometimes we propose or mandate requirements that have not had a full vetting by the experts outside the agency. If this happens we need to go back and repair the damage, a process that is resource intensive and inefficient for the agency and for stakeholders.
I discuss my concern in a statement I filed on an NPR on hand-held infant carriers. I am interested in any ideas from others who share my concern about how to make the process work better than it currently does. You can read my statement here.
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.
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.
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.
As you turn your calendars, there are a few things you should be keeping in mind. The Commission’s stay on the enforcement of the Third-Party Testing and Certification Rule is gone as of January 1st. So you should make doubly sure that your manufacturing program is in compliance if you make a children’s product that is subject to a testing rule.
And, if you’re a small-batch manufacturer, you should hurry up and sign up on the Commission’s Small Batch Manufacturers’ Registry here to give yourself peace of mind that you are exempt from certain testing requirements until the Commission takes further action.
Finally, and most importantly, in all of the regulations that the Commission has put out over the past two years, we have not given any serious consideration to the cost imposed on the economy. Congress, after hearing some loud complaints, decided to fix that with H.R. 2715, the law passed last summer that requires the Commission to consider ways to reduce the burden of third-party testing, among other things. The Commission published a series of questions on the issue in October, and we asked you for your ideas on the ways the Commission can reduce costs. We need your ideas by January 23rd. So submit your comments here!
I will be pushing internally to make sure that the staff and the Commission give serious, thoughtful consideration to the ways we can reduce costs, and your ideas in particular. But we can only be successful in reducing costs if we get serious—and perhaps out-of-the-box—ideas from you on how we can best achieve those reductions. So, please, help us ensure product safety in the most rational, cost-effective manner possible; send us your comments!
Greetings from Bangalore, one of India’s principal textile and apparel manufacturing centers. This week I have been in both India and Bangladesh, advocating product safety to the region’s garment manufacturers. Here are some quick impressions:
• The textile and apparel industry is very important to the economies of India and Bangladesh. Most of the apparel Americans wear is imported and more and more of of that clothing comes from these two countries. In fact, Bangladesh is America’s fourth largest supplier of apparel, and India follows right after.
• My message of pushing safety up the supply chain has been well received in both countries. The Bangladesh conference where I spoke had more than 350 attendees, with many turned away because it was oversubscribed. The demand for the information we were giving was so great that the industry is already talking about another safety conference within the year. The turnout here in Bangalore was very large as well.
• Garment manufacturers, suppliers, and lab experts repeatedly expressed their appreciation that a senior government official would come this distance to discuss and explain the new and complex U.S. consumer laws. The level of official U.S. government engagement in this dialogue drove home the importance of product safety to this audience. Clearly, both the message and the messenger are important.
I was impressed by the eagerness of attendees to learn the rules and get it right. This translates into greater safety for American consumers.
If you’re a close watcher of the CPSC Commissioner’s Statements page (and, really, who isn’t?) you may have noticed that my good friend and colleague Commissioner Adler and I have had another round on our perpetual motion statement ride. Back when we took the vote on our lead standard, we got a glimpse of this dynamic, as Commissioner Adler waited a couple weeks after the vote and my written statement explaining my vote, then issued a statement of his own, directly attempting to rebut the arguments I made in my statement. He has done the same thing with respect to the recently-issued Testing Rule. We are now on our third round of statements responding to each other.
As I have pointed out, I believe that the purpose of a commissioner’s written statement is to explain why a commissioner voted in a particular way. If we use our statements as vehicles to respond to arguments made in other written statements, then the commissioner who writes last has the last word. By using statements to explain ourselves, rather than directly to rebut others, we can guarantee that we do not find ourselves where we are now, trapped on a spinning merry-go-round.
Commissioner Adler does not share this view. In his most recent addition to the dialogue, he explained his rationale. He views these statements as an opportunity for “robust discussion and debate on the critical policy issues that come up before the Commission.” Discussion and debate are wonderful things, but, with all due respect, the time for them is before a vote. That way, the discussion actually has a chance to shape the policy issues. Statement after statement after the fact provides no such opportunity. It risks becoming repetitive very quickly with the potential for descending into the petty.
The astute reader will no doubt be asking why I have responded to Commissioner Adler’s statements—both the Supplemental and the Further Supplemental—if I believe the entire exercise is such a misuse of the forum. The answer is simple: Unilateral disarmament may be noble, but it looks the same as surrender. If I don’t respond to Commissioner Adler’s arguments, no matter how fallacious they are, it will appear that I have conceded them. That is not so, and it would be inconsistent with my public policy role to allow such a misconception to exist.
That reality—that a Commissioner cannot let the conversation be one-sided, even if she feels it is hopelessly misplaced—is precisely why the CPSC statement format works best when it is kept to an explanation of the author’s perspective and decision. If we all stick to that approach, we give the public a clear, concise view of the arguments surrounding each CPSC action (or inaction) and an opportunity to provide informed comment on future debates on similar issues. If just one of us abandons this approach, we will all be inevitably sucked into a potentially endless exchange that leaves the reader confused, annoyed, or both.
I love Lambchop, but The Song That Never Ends is best sung on children’s television, not by the leadership of a Federal agency.
Yesterday, with little fanfare, the agency posted in the Federal Register an announcement that we invite comments from the public on ways to reduce the costs of third-party testing of children’s products required under the Consumer Product Safety Improvement Act. This inquiry is mandated by a new law (H.R. 2715) passed by Congress this past summer. After reviewing the comments we receive, we may either implement cost-saving changes to our regulations and/or report to Congress on additional authority we need to reduce costs. This new law explicitly acknowledges what our staff economists have told us—third-party testing by outside labs is very expensive and will result in increased costs and reduced choices for consumers.
I remain hopeful (call me naïve!) that, with this push from Congress, my colleagues will finally get serious about addressing the costs of the CPSIA in an honest and forthright manner. However, the recent vote on the Testing Rule, which imposes expansive and expensive third-party testing requirements beyond what is required by statute, may show this hope is misplaced. Today I filed a supplemental statement describing why I believe that the CPSIA does not require that all periodic continuing testing of children’s products needs to be done by a third-party lab. Had my colleagues adopted this interpretation, testing costs would have been lowered without sacrificing safety and without the months of staff time the majority’s piecemeal approach will require.
I challenge readers of this blog to respond to the Federal Register request with comments on how to lower testing costs. Be creative and constructive in your comments! All suggestions will be read and considered, and I will be pushing my colleagues and our staff to actually think about ways to drive down costs and adopt the best ideas we get.
In a decision that surprised few, the CPSC voted today to ignore common sense and regulatory conscience. We witnessed a majority putting its last grasp of political power ahead of doing what was right.
In 2008, Congress required that we put in place a rule telling the regulated community how to test and certify that the products they make meet the relevant standards. The deadline Congress imposed has long since passed, but we all agreed that the details of the rule proved much harder to write than its basic idea did. Staff put much time and effort into a rule with some solid pieces that I could support. Then the majority, all behind closed doors, summarily dismissed these changes and determined they knew better than our experts. I cannot support their changes, and I cannot ignore their tactics.
The way the majority has handled this rule is, in my opinion, regulatory malpractice. They ultimately didn’t listen to staff, they really didn’t listen to Congress, they didn’t sincerely listen to the regulated community, and they certainly didn’t listen to their fellow Commissioners. All parties pointed in the direction of re-proposal so that we could hear and learn from public comment on the significantly changed rule and the new law surrounding it. Instead, the majority seemingly pushed this through because they soon would not be a majority.
Their reckless disregard for the value of public input in writing regulations is stunning. Other agencies have sought extra public comment when proposals or facts changed. Here, we had a new law change the framework supporting a rule, and, still the majority said we will listen to public comment only after we vote out the thing the public will be commenting on.
The majority is quick to suggest that seeking re-proposal is seeking delay. That’s pure fiction. I offered an amendment to re-propose this rule in light of the statutory changes Congress made, to make the rule better and more likely to stand up in court. Under my proposal, the rule still would have taken effect within the same timeframe as the rule passed today. The majority had a chance to get this done better and faster. Instead, they blew it.
My heart aches for any family who has lost a child due to a faulty consumer product. The pain they feel can never be dismissed or diminished. That pain, however, cannot justify irrational decision-making or misuse of power.
There’s an old lawyer adage: When you have the law on your side, pound the law; when you have the facts on your side, pound the facts; when you have neither the law nor the facts on your side, pound the table. The table-pounding by my colleagues today speaks for itself.
This arrogant dismissal of input from both peers and the public on such an important vote betrays the public trust we bear to implement statutes fairly, openly, and responsibly.