Last week during its meeting, the CPSC amended its operating plan to direct agency staff to prepare a plan for retrospective review of its regulations to assure that rules that need to be updated, streamlined, changed or repealed receive such action. The Commission’s action deserves both notice and praise.
Four years ago, President Obama, in Executive Order 13610, asked independent agencies like the CPSC to undertake such a review of its rules. In response, in 2012, the agency came up with a plan that fell far short of the President’s objective of building a regulatory culture that included, as a central tenant, a meaningful regulatory look back. At the time, I expressed my concern that this 2012 plan was a fig leaf pretending to count for something larger. So why is what the Commission adopted last week different from that adopted in 2012?
First, in the 2015 plan, the Commission recognizes the need to formalize and institutionalize retrospective review and imbue the process with appropriate staff resources to assure a meaningful and independent process. Second, the Commission also recognizes important factors that qualify rules for review, including not only the rule’s utility in saving lives and reducing injuries but also how it contributes to cumulative burdens, imposes unnecessary international differences and imposes economic and paperwork burdens on those regulated that could be alleviated. Finally, the plan asks staff to consider ways to appropriately plan for retrospective review when regulations are being initially drafted. If such a review is anticipated when the rule is first adopted, then it is likely that the rule will actually be reviewed and the needed data will be available to facilitate such a process.
The Administrative Conference of the United States, which looks at issues inherent in the regulatory process, has recognized the value of a robust retrospective review process and has made valuable recommendations for best practices for such reviews. As ACUS points out:
Without a high-level commitment, any regulatory lookback initiative runs the risk of devolving into an exercise of pro forma compliance. This might not be an inevitable outcome, however. If the relevant agency officials, including both those conducting retrospective reviews and those drafting new rules, come to view regulation as an ongoing process whereby agency officials recognize the uncertainty inherent in the policymaking exercise and continually reexamine their regulations in light of new information and evolving circumstances, a durable commitment can emerge. Regulatory review should not only be a backward-looking exercise; rather, it should be present from the beginning as part of an on-going culture of evaluation and iterative improvement. Planning for reevaluation and regulatory improvement (including defining how success will be measured and how the data necessary for this measurement will be collected) should be considered an integral part of the development process for appropriate rules.
When the agency developed its 2012 plan, it was like a less-than-enthusiastic effort to clean the attic in an old house. Lots of dust was raised but little substance was accomplished. That is why I objected to it. The current Commissioners have given the green light to a different outcome. The CPSC staff drafting the review plan should consider using the ACUS recommendations as the foundation for a review effort that will mark the CPSC as a leader in drafting safety regulations that are well-founded, practical and have long-term vibrancy and relevance.