Tenenbaum and Adler Respond to Regulatory Review Criticism

Chairman Inez Tenenbaum and Commissioner Robert Adler September 12 said their Republican counterparts seek “relitigation” of recent commission votes. This charge came in the Democrats’ response to criticism last month (PSL, 8/28/12, p. 2) from Commissioners Nancy Nord and Anne Northup following a 2-2 tie that stalled CPSC’s regulatory review plan.

They wrote, “Our colleagues, “while professing support of the President’s Executive Orders, actually wish to modify the plan in a manner that would focus the rule review process almost exclusively on the relitigation of recent Commission votes on statutorily required rules that have barely taken effect (or are still in the process of being implemented.)” Their response covered numerous issues.

First, they disagreed with Northup’s calling the plan a “Democrat plan,” writing (their emphasis) “Her characterization of the document in such overtly political terms is false, misleading, and inappropriate. We urge anyone who has any doubt about the manner to go to the document in question to see that it is a very thoughtful proposal developed by CPSC career staff that carries not a hint of partisanship or a whiff of politics. Viewing the rule review process... through a political prism as our colleague does is counterproductive to the Commission’s mission.”

Then, referring to two 2011 executive orders that spurred the draft plan issued last spring (PSL, 4/30/12, p. 1), the Democratic commissioners disagreed with Northup’s contention that strengthening rules would be inconsistent with the orders. They wrote (their emphasis) “[S]hould our rule review determine that a safety standard has failed to protect consumers from an unreasonable risk, [she suggests] we should do nothing and remain focused exclusively on burden reduction activities…But, the Executive Order…specifically directs agencies to seek out rules that are ‘outmoded, ineffective, insufficient, or excessively burdensome’ in order to ‘modify, streamline, expand, or repeal them.’”

Next, they addressed concerns about cost-benefit analysis, noting that the plan called for use of metrics in analysis of rules up for review, including, “reduction in deaths, injuries, and property loss; record keeping burdens; testing costs; and other costs related to the rule.” They wrote:

“To even the most casual observer, this is a description of a cost-benefit analysis. In short, the issue is not whether we support the type of cost-benefit analysis proposed by staff, but whether we support our colleagues’ notion of what this analysis should be. We don’t. Our colleagues apparently believe that the only appropriate ‘cost-benefit analysis’ is the extensive analysis called for by many of our statutes when we are first promulgating rules. This is the type of analysis that has produced a grand total of nine mandatory safety rules in 31 years and, on occasion, has led Congress to step in and legislatively mandate rules rather than wait for the results of our cumbersome regulatory process. This is the type of analysis that is best described as ‘paralysis by analysis.’ And it is our statutorily required analysis that led Congress in 2008 to allow the CPSC to use ‘notice and comment’ rulemaking for certain children’s product safety rules, as almost every other health and safety agency does, because they considered our lengthy process to be counterproductive and not sufficiently protective of children.”

Finally, on the question of whether minor rule changes – such as those on cap guns and animal testing – should be counted as part of the review project, they wrote:

“[N]otwithstanding their dismissal of the significance of these rules, our colleagues do not argue that these rules should be ignored and not revised—just that this work should not count as part of our rule review. That would be fine if staff did not have to work on the review of these rules. Unfortunately, CPSC staff had to spend real time and effort to review and revise these rules. Even projects of lesser priority consume scarce resources…The staff draft plan clearly maintains the spirit of the Executive Orders, which explicitly acknowledge that any review plan must operate within our resource constraints.”

See their comments at www.cpsc.gov/PR/tenenbaumadler09122012.pdf.