Earlier this week the Senate Commerce Committee had a marathon confirmation hearing with several subcabinet nominees from various federal agencies. The hearing included in this disparate group Commissioner Robert Adler who has been nominated for a second seven year term on the CPSC. Because of the number of nominees before the Committee and votes on the Senate floor, the hearing was rather truncated without much probing of Commissioner Adler’s views on issues before the CPSC.
Nevertheless, Senator Thune, the senior Republican on the Committee, did ask Commissioner Adler to explain the agency’s delay in implementing PL 112-28, which directed the agency to work to reduce the costs of third party testing. Senator Thune made similar inquiries with the two earlier nominees, demonstrating that he has concerns with the manner that the agency is implementing the law.
Commissioner Adler’s response to Senator Thune was both interesting and disturbing for at least two reasons. First, Commissioner Adler said that because of the way the law is written, it is “not easy to come up with” constructive ways to reduce burdens. Huh?! The public has presented many suggestions over the years as has the agency staff. What is not easy is to get the Commission to devote the staff resources to get the job done. This is a problem of the Commission’s own making and clearly the Commission does not want to clean up after itself—to do so would implicate several of the rules the agency put in place without regard to the burdens them impose. The Congress told the CPSC that if it needed additional authorities to get the job done, then it was to come back to Congress with a request for tool to do the job. No such report has been sent. In other words, it is too hard to do the job, but the agency will not ask for what it needs to do the job. In the meantime, scare resources are being spent on testing that does not advance safety.
Second, to demonstrate his commitment to carrying out Congressional direction, Commission Adler pointed to the one proceeding the agency has ongoing to address burden reduction. This proceeding is to come up with “determinations” that certain products do not and cannot contain phthalates and various heavy metals. This determinations proceeding, first suggested in 2011, finds precedent in similar action the agency took in 2009 to determine certain materials did not contain lead and so did not require testing. However, the lead determinations took the agency a matter of months to put in place not the years that the current proceeding is eating up.
Commission Adler also stated that the determinations will solve the problem saying that the “small businesses I have talked to want expanded determinations” as if this is all they want. Of course, if you are a small business making toys out of natural wood, you do not want to have to test for phthalates and heavy metals when you know they are not present. That is pretty obvious. However, there are many other small businesses who look to the federal government not to put in place regulations that impose costs without added safety benefits; who want the federal government to consider laws in other jurisdictions and minimize repetitive testing; and who want to be able to have manufacturing processes that are flexible enough to meet market demands without having to stop to do third party testing when this does not add to safety but does impact their bottom line and their ability to expand and create jobs.
If confirmed, Commissioner Adler will be in office until 2021. I was thinking about starting a pool on whether the agency will actually complete meaningful action to reduce testing burdens before his new term expires. But given the agency’s pace and progress so far, betting on the agency to act is not a sure bet.