Next week the CPSC Commissioners will hold a hearing on whether to grant a petition to ban a wide range of consumer products containing organohalogen flame retardants (OFRs). The petition, filed in 2015, is overly board and seeks to treat in the same way a wide class of chemicals that differ one from another. It seeks to ban a broad range of consumer products with OFRs that vary in use and exposure patterns. It seeks a ban in spite of the fact that the scientific data to justify this action is, charitably, sketchy at best. For these and many other reasons, the petition, on its face, presents sufficient reason for denial. (See here.)
Nevertheless, the agency held a hearing on the petition in late 2015, put it out for public comment, and has devoted a considerable amount of staff resource to considering the issues presented by the petition. After a thorough examination of the data in the petition, the hearing record and the public comments, in May the agency staff recommended that the petition be denied for a variety of reasons. In spite of all this, the Commissioners apparently do not believe that they have sufficient information to make up their minds on the matter and so are having yet another hearing.
It is not clear what this hearing is intended to accomplish, other than to give the petitioners another chance to explain why the agency staff was in error in its conclusions. Presumably some Commissioners will offer helpful hints on how to recast the petition to avoid the shortcomings identified. Perhaps there will be some conversation about why the petitioners brought the issue to the CPSC when it is more properly before the EPA. No doubt some on the dais will decry the statutory requirement to balance risks with costs, a requirement the petitioners cannot come close to meeting.
While the hearing will be interesting, one wonders why the agency has devoted such a significant level of resource to this activity. If the Commissioners vote to overrule their staff and grant the petition, then the level of activity required for rulemaking would have the agency busy for years to come. If the Commissioners agree with the staff and vote to deny the petition, then what was the point of the hearing? Among other things, it certainly raises questions about the stewardship of public resources.
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Published June 30, 2017 Burden Reduction , Comment Request , Consumer Product Safety , Nancy Nord , Recalls , regulation , safety Leave a CommentTags: CPSC, Nancy Nord, OFW, Recalls, regulation, safety
One of the very positive hallmarks of the new leadership at the CPSC is a desire to hear from all interested stakeholders on how to more effectively push forward the agency’s safety mission. The agency has offered several opportunities for input and for those of us who share that goal, these opportunities should not be ignored.
First, the agency will be conducting a workshop on ways to improve the recall process, including the effectiveness of recalls. Recall effectiveness is a perennial topic of conversation at the agency so it is gratifying that the agency is again looking at this topic, but hopefully from a new perspective. Both as a Commissioner and now, in private law practice, I often hear complaints about the opaqueness of the process. Participation in the workshop offers an opportunity to give real suggestions on how to make the recall process work better. The workshop will be held on July 26, 2017 at the agency headquarters in Bethesda. Those interested in participating must sign up with the agency no later than July 3. Here is more information about the workshop.
Second, the agency is requesting comments on ways to reduce the regulatory burden imposed by agency rules in ways that do not diminish safety. This effort is especially welcome since many of the regulations issued by the agency over the past eight years did not consider ways to accomplish safety goals in less burdensome ways. When Congress told the agency to try to find ways to reduce the burden of testing, the agency went through a fantasy effort to comply and, not surprisingly, came up with very little. Indeed, about the best it could do was exempt from testing toys made entirely from untreated wood from the trunks of trees (but not the branches—who knows what could be in branches!). (See here.)
Reducing unnecessary regulatory burden is important since this engenders respect and support for the agency. Rules that are outdated, overly complex, or impose requirements without regard to real and measurable safety results should be identified and either changed or repealed. The agency’s effort to collect information on burdens imposed by its regulations is a welcome first step in this process.