Regulatory Malpractice

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.

1 Response to “Regulatory Malpractice”

  1. 1 November 1, 2011 at 11:56 am

    Dear Nancy, thank you very much for pointing out some flaws embeded in the new rules. I am not an expert in the regulation world. When I first read the details, I felt confused since rules were not clearly defined. Exactly how often and how many pieces we need to send to the lab? Is this the most effective way to protect the consumers. As far as I know, the tight enforcement of the law is as important as the law itself. If we have a not well-defined law while the enforcement is weak, I can’t see how we can be protected.

    Also, is the lab testing the best method? I am afraid not, the cost is high and also time-consuming. If we only test a few pieces out of thousands of products, how can we so sure they are all safe for the consumers? If the sample sizes are too high, it will be a very big burden on the industry. I deem the lab testing is the place to verify if the manufacturers have question about the products.

    There are other more time/cost-efficient method out there. Such as XRF, it can conduct thousands of tests per day and it is much cheaper compare to the lab test. The key is it can test much more products within a short period of time and it is non-destructive, so it can be largely protect the consumers, which at the same time, it is cost effective to the manufacturers.

    Part of the money saved from the lab cost can contribute to the enforcement of the law, which further protect us as consumers. I realize that currently there are only handful CPSC people who are in charge of enforcement. If we can increase the team, I am sure the result is way much better.

    I don’t know why the commission is so hestitated to adopt new technology like this. I truly believe there are other methods which are also convinient and cost-effective for the manufacturers, as well as prectect the consumers. I hope the commission can consider those as well. Thank you again.

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