Archive for the 'Public Database' Category



Our FY 2012 Budget: How Much and How to Spend

The President’s budget, submitted to Congress today, contains a request for $122 million to fund the CPSC.  I voted to support this funding request, but with reservations. In a statement posted today I outline some of my concerns over how the agency proposes to spend these requested funds. 

Congress gave the CPSC a huge task when it enacted the CPSIA.  Although the law gave the agency important needed enforcement tools, it also changed a regulatory system that was, for the most part, working well to assure that regulations, once issued, were based on science and with an eye to minimizing the economic impact on those being regulated while achieving a true safety goal.  The CPSIA changed that equation and we are now pushing out regulations with little knowledge of their economic or safety impact.  To the extent that the agency has any flexibility to change that result, we should.  Therefore, I am disappointed that the majority again this year rejected my request that the budget allocate resources to do cost benefit analysis when we are regulating under the CPSIA. 

The public database also requires a large allocation of funds under the 2012 budget.  As I have argued before, there is a real question as to the safety payback of this very expensive undertaking as it is currently structured.  In a time of scarce resources, we have an obligation to use public resources to assure that our safety mission is carried out in the most cost-effective manner possible.  I question whether using tax dollars to set up a competitor to “Yelp.com” with a government imprimatur is the best use of scarce resources.

I have other concerns with our budget.  However, my bottom line is that if Congress wishes us to undertake the activities they have given us, then they must provide appropriate resources.  Our obligation is to use these resources in the best possible way to carry out our mandate.

“…common sense rules of the road…” – President Barack Obama, Wall Street Journal, January 18, 2011

Today the President issued an Executive Order emphasizing that, as federal agencies carry out their responsibilities to protect the public interest, they also consider how those rules impact economic growth, innovation and job creation.  In a Wall Street Journal editorial published today, the President acknowledges that some regulations “have stifled innovation and have had a chilling effect on growth and jobs.”  He calls on all agencies to “root out regulations that…are not worth the cost, or that are just plain dumb.”  The CPSC could provide a number of candidates for rules that meet this description.  For example, aspects of the recently-issued children’s product definition which impose expensive and burdensome third party testing on products that were not traditionally thought of as children’s products – such as carpets and rugs – fall into both categories, that is, not worth the cost and just plain dumb.  Aspects of the recently issued database rule would also qualify, e.g. allowing inaccurate information to mislead consumers. 

While it is true that independent regulatory agencies such as the CPSC are not formally bound by executive orders, it has been the past practice of this agency to follow executive orders if they are not in conflict with our statutes.  This past practice has fallen by the wayside recently.  We will soon be considering a final rule on testing and certification.  While we have some initial indications from a summary regulatory flexibility analysis that this rule will impose very significant costs on small business, we have not done the analysis called for by the executive order.  Without this analysis, the Commission will be acting without full information. 

We know that regulations issued by this agency in response to the CPSIA have forced safe products off the market and have driven small companies out of business.  Doing the analysis the President calls for could help quantify the impact of our rules on the public – both from a cost and from a benefit standpoint. We need to maintain our focus on safety and health by focusing our regulatory efforts on products that present serious hazards.  I hope that we will follow his call.

What Were They Thinking?

Throughout the debate on the public database, the majority referred to Congressional intent to support a number of their dubious policy decisions. Indeed. What kinds of things indicate Congressional intent?

How about a letter received last week by the agency from Representative Joe Barton, one of the principal Members of Congress involved in drafting the CPSIA.   While during the debate the majority disavowed knowledge of his letter, Representative Barton stated emphatically that the majority’s interpretation of Congressional intent was wrong on a number of fronts.  In other words, the majority’s take on what Congress intended is not quite in sync with what some actual Members of Congress have to say.

 Here is Congressman Barton’s letter in full (Representative Barton Letter on Congressional Intent of Database). You read and you decide what was intended.

“Due Process is a flexible concept. . .” Huh?!

When our agency is considering rules, we are required by the Administrative Procedure Act to give the public notice and opportunity to comment. If we change fundamentally the ideas we put out for comment, due process requires us to re-propose the rule so the public can comment on these major changes.

With respect to the public database vote last week, the majority did not take this approach. Instead the majority simply dismissed due process with the hollow statement, in the preamble to the rule, that “due process is a flexible concept.” Brushed aside were facts: the definitions of who can submit complaints disregarded the public comments we had received and fundamentally changed a core definition; the posting of materially inaccurate information was fundamentally changed from what had been proposed. No comment was sought on these major changes.

When it comes to due process, that’s not flexibility. That’s inexcusability. It’s regulation by surprise.

Here’s Your Turkey, Early

Unfortunately, today the Commission voted to approve a highly flawed final rule to establish a public database of consumer complaints. While, on its face, this seems like a worthy project, once you get into the details of what will and will not be posted, the problems with the majority’s proposal are like ingredients in a bad holiday recipe. In addition, the lack of any effort by the majority to reach out and come to a consensus on the issues Commissioner Northup and I raised in our substitute proposal is glaring.

Instead of limiting the people who can post a complaint to those with first-hand information about the incident, anyone can post a complaint–trial lawyers trolling for clients, unscrupulous competitors looking to damage a business or its reputation, or the gossiping neighbor down the street who heard the story “through the grapevine.”

Instead of requiring submitters to at least put the location of the incident or the model number of the product, complaints could be filled with only sketchy information that is of little use to anyone.

Instead of verifying that the information posted to the database is correct, CPSC is under no obligation to confirm the accuracy of information submitted, even when the accuracy is challenged. And while it is clear the CPSC will not investigate most of these claims, when we do, we are not planning on telling consumers the results. It appears once the complaint’s there—accurate or not, it’s there indefinitely.

We had the chance to make the database a helpful tool for consumers, but instead it will potentially become just another sink hole for complaints, but with the apparent ‘seal of approval’ that comes from being on a federal government website. We had the opportunity to get it right but instead have chosen to spend taxpayers dollars (approximately $29 million of them) to construct something that could well mislead consumers and undermine our safety mission. Consumer safety is not advanced by such a result.

This expensive bird is burnt, dried out and not fit for serving the consumer.

Here’s my official statement  on the issue.

A Wrong Way and A Right Way—Which Will We Choose?

On November 17, the agency will vote on the rule finalizing the blueprint for the public database of consumer complaints mandated by the CPSIA.

Everyone seems to agree that the purpose of the database is to assist consumers in understanding risks, and in making well-informed choices about products they buy and use.  Indeed, in a recent article, an advocate for the database argued that folks should stop fighting about it and that “time would be better spent in ensuring it is as accurate and useful as possible.”  At last, something we can all agree on! 

My colleague, Commissioner Northup, and I agree that the database will be a useful tool for consumers only if it is accurate.  We have spent hours debating this point with the other commissioners.  On November 17, we will once again make the point that the database will not serve its purpose if it is a “garbage in/garbage out” grab bag of unsubstantiated complaints from any source. 

With respect to the database, there is a right way to do it and a wrong way to do it.  Unfortunately, so far a majority of my colleagues have not chosen the right way.  This is unfortunate because the approach insisted upon by the majority will not allow the database to achieve its objective.  While there are a number of objectionable provisions in the draft final rule, here are two issues that are especially problematic:

  • Who can submit complaints—Congress provided us with a list of those whose complaints should go up on the public database.  We have contorted the plain language Congress used into definitions that have no meaning.  For example, Congress told us to accept complaints from “consumers.”  The majority has determined that since everyone consumes something, we need to accept complaints from everyone—no need for any relationship to the product, harm or incident.  Think plaintiff lawyers trolling for clients or unscrupulous competitors wishing to harm a product’s reputation. 
  • Treatment of inaccurate information—Consumers are not served, and could be harmed, by a database with inaccurate information.  While Congress seemed to suggest a process for correcting inaccuracies, the rule has been written so that the agency is under no obligation to address such misinformation.  There is a real chance this could be a “post it and forget it” exercise.    

Since Congress has been clear in its direction to establish a public database, let’s try to do it right.  Commissioner Northup and I have redrafted the proposed rule to try to address the many issues that were raised in the comments the agency received.  If you click here, you will be directed to that redrafted rule.  Time is of the essence since the vote is in a little more than a week.  Please quickly send back your reaction to this draft. Help us get it right.  We intend to offer it as a substitute when the commission takes up this matter on November 17.  Please send me your reaction to the proposal either post it here on the blog or email it to me at Commissioner_Nord@cpsc.gov

Gaveling Down Public Discussion of Small Business

Today the CPSC was briefed by staff about the complex public database required by the CPSIA.  This was the opportunity for Commissioners to ask staff questions in preparation for voting on the database final rule.  A number of very substantive questions were raised by Commissioners, both from the standpoint of what the proposed rule means and how the project will work. A number of other issues could have been raised.  Unfortunately for the public, the majority gaveled the meeting to a close before Commissioners had the opportunity to complete their questions. 

For example, I had several questions about the regulatory flexibility analysis that states the database will have no significant impact on small business. I strongly disagree with this analysis and wanted all of us to learn more about why the staff came out where they did. The majority did not allow me to ask those questions.  Apparently, we will be voting on this proposal without the benefit of a public discussion with staff of major issues. What a strange way to encourage transparency!  You should watch the tape, from start to finish, since we touched upon many issues that fundamentally affect how this database will operate, how good the information will be that is made available to the consumer, how dramatic the effect may be on manufacturers, large and small, and finally, how the majority can close off public discussion.


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