Nord Gives Rebuttal on Regulatory Review Plan

Commissioner Nancy Nord September 19 responded to recent written remarks by Chairman Inez Tenenbaum and Commissioner Robert Adler on CPSC’s stalled regulatory review plan. The Democratic commissioners had responded (PSL, 9/17/12, p. 1) to criticism written by Nord and fellow Republican Anne Northup (PSL, 8/28/ 12, p. 1) following a 2-2 tie in August on party lines, with each side voting for alternate versions of the plan.

In her new remarks, Nord rejected the idea that the plan favored by the Democrats was “the career staff’s plan.” She wrote (her emphasis), “Our staff does excellent work…But our staff relies on us to provide them with leadership and policy direction…Adopting a plan that essentially does nothing was [Tenenbaum and Adler’s] choice – they cannot lay the responsibility for that choice on staff’s shoulders.”

Nord also rejected the suggestion that she and Northup seek to “re-litigate” recent commission votes, saying that, rather, their plan “enunciates general principles to streamline the Commission’s regulations. Those principles are appropriate and do not demonstrate any prejudice toward revising recent rules, nor do they foreclose such revision.”

On the charge that the level of reviews she and Northup sought would amount to “paralysis by analysis,” Nord noted that although the CPSIA reduced the commission’s burden to review new rules in certain cases, it did not prohibit such action elsewhere. In any event, she noted, “[W]e did not insist on these procedures’ use in rule review. We only asked the Commission to follow the spirit of the Executive Order and sincerely examine the costs we are imposing on the economy, the benefits the people in that economy see as a result, and whether the latter justifies the former.” The activity stemmed from two such orders from the White House in early 2011 seeking regulatory streamlining.

Nord’s reaction to the suggestion that she and Northup downplayed the value of Regulatory Flexibility Act (RFA) analysis in seeking greater analysis was that “RFA analysis is a useful tool, but there is no reason to think it is all we need to do. Allowing unnecessary or even destructive regulatory burdens to exist is inconsistent with our obligations no matter the size of the entities those burdens befall. We have a task under the RFA and a task under the Executive Order. We should keep those tasks separate.”

She also rejected Tenenbaum and Adler’s assertion about exceeding a congressional mandate to look at the costs of the CPSIA testing and certification rule (see related story in this issue). She wrote, “This seems a reach, as the language in the statute ordered us to ‘include’ Congress’s list in our efforts, not limit ourselves to that series of questions.”

Nord summed up her responses with:

“Each of these errors in my colleagues’ arguments demonstrates the fundamental difference in our approaches to this task. It seems they sought merely to complete the checklist before them by cherry?picking a few minor but obvious problems in our rules and making examples of them. By contrast, Commissioner Northup and I offered a plan that would have created a free? standing process to identify unproductive burdens anywhere in our work, starting with our costliest rules. Our colleagues have spent many months extolling the virtues of ongoing testing of products, yet they passed up the opportunity for ongoing testing of our rules in favor of a few golden samples.”

Her remarks, which also include a description of her and Northup’s version, can be downloaded from www.cpsc.gov/PR/nord09192012.pdf.