Those who follow the CPSC closely expect that the President’s new commission nominees will be confirmed soon. The question is: will new leadership change either the tone or the direction of the agency? Two exchanges during the confirmation hearings made my ears perk up since they went to that question. Both exchanges addressed the regulatory approach of the nominees.
The first exchange dealt with testing burden reduction. Remember that PL 112-28 directed the Commission to undertake actions to reduce the costs of third party testing or report back to Congress if it needed additional authorities. Senator John Thune noted that the agency has done nothing to implement measures to reduce costs in any meaningful way. Senator Thune asked each nominee, upon confirmation, to provide the Senate Committee with their plans for implementing efforts to reduce testing costs. Senator Thune has given the nominees a real opportunity to show leadership and provide actual relief from the agency’s overly-expansive and costly testing approach—which does not provide consumers with additional safety but does add additional costs to the products they buy.
So as the two nominees craft their plans in response to Senator Thune’s request, will those plans reflect business as usual, with the agency doing only enough to make it appear that it is doing its legal duty but still managing to avoid any real change? Or will those plans show a thoughtful and creative approach to fixing a problem that Congress and members of the public have identified but which the leadership of the agency, up to this point, has sought to minimize?
Another interesting exchange during the hearing dealt with procedures for issuing regulations. While addressing the five-year delay in issuing rules for recreational off-road vehicles, the nominee for Chairman, Mr. Kaye, bemoaned the lack of “express” rulemaking authority in the Consumer Product Safety Act. He attributed regulatory delays to the findings the agency has to make before issuing a final rule and the cost-benefit analysis that he said was “unique” to the CPSC (implying that such analysis was overly burdensome). But Mr. Kaye did not identify which findings and what aspects of cost-benefit analysis are overly burdensome to the agency. Having that information would provide the basis for a good discussion on regulatory policy at the agency.
Section 9 of the CPSA (15 U.S.C. 2058) spells out how the agency must go about issuing product safety rules or bans. The law states that before the agency initiates rulemaking it must make some preliminary effort to assure itself that the rule is indeed needed. Those efforts include:
- a first-cut at describing the potential costs and benefits of the proposed rule;
- a discussion of why any existing voluntary standard is not adequate; and
- a description of reasonable alternatives to the rule and why those alternatives should not be considered.
But which of these points of analysis do those advocating for express rulemaking want to eliminate? Do we really want federal agencies beginning the rulemaking process without doing initial homework in the form of some upfront analysis to assure the public that the proposed direction is correct? To my ears, the complaint that doing your homework is too hard rings hollow.
But perhaps it is the cost benefit analysis that must been done during the rulemaking process that is the problem for those complaining about burdens and advocating express rulemaking. The law states that the analysis must include a description of the potential benefits and potential costs of the rule and a description of the alternatives to the rule that the commission considered, the costs and benefits of those alternatives and a description of why they were not chosen. But the law merely states explicitly what necessarily should be included in any competent regulatory analysis. Unless we are willing to agree that the feds are always right in their regulatory approach, would we not want any agency to gather, write down and then actually consider that information before regulating?
I suspect that the real problem for those advocating for express rulemaking is the law’s expectation that the data will be used to inform results–that the agency actually will use the data to tailor or perhaps even change its preferred regulatory approach. The law tells the agency that it may not issue a rule unless it finds, among other things, that
- the benefits of the rule bear a reasonable relationship to its costs; and
- the rule imposes the least burdensome requirement to adequately address the risk.
In other words, if the agency’s preferred regulatory approach is not the most efficient way to address a risk, then Congress expects the agency to change its approach.
Here are a couple of follow-up questions to the nominees. Do we want the agency to be able to regulate without regard to costs and benefits? Should not the agency have to change its preferred approach if the costs and benefits are not reasonably related? Do we want the agency to impose requirements that are more burdensome than they need to be and do so out of ignorance because it did not bother to consider alternatives? I submit that we do not. And I believe that experience over the past four years illustrates the importance of these requirements. Several extremely costly and burdensome rules were put into effect without the analysis described above since the CPSIA did not require that analysis. Indeed, PL 112-28 was passed because the testing rule, not subjected to that analysis, resulted in costs that are excessive.
Regulation is not and should not be easy. If data shows the need for a rule, then the agency should roll up its sleeves and get to work, not complain about how hard it is and look for shortcuts. It will be interesting to see if the new leadership is up for doing the hard work.