As the year ends, we often scramble to finish those tasks that have been put off during the year. At the CPSC, several unfinished tasks still need some regulatory housekeeping before the new year with new priorities takes over everyone’s attention. Finishing outstanding regulatory work that is ripe for completion is just good practice and it furthers the President’s call to make the regulatory process more user-friendly and less burdensome.
The very best example is the outstanding proposed interpretive rule to dramatically change the voluntary recall process. This rule, which was proposed back in 2013 and has never been finally voted on, would require all voluntary corrective action plans submitted to the Commission by the private party executing the recall be legally binding agreements. It would also prohibit the recalling firm from stating that the submission of a voluntary corrective action plan does not constitute an admission that a product hazard exists without explicit approval by the CPSC staff. It would allow the agency staff to require the firm to implement a compliance program as a part of the voluntary recall.
The bottom line is that the proposal takes the “voluntary” out of the voluntary recall process and turns existing practice on its head. While much has been written about why this would proposal would discourage firms from conducting voluntary recalls, with a resulting harmful safety impact on consumers, the proposal remains on the agency books as an unfinished piece of business. Stakeholders—both product sellers and consumer advocates—have objected to the proposal and Congress has several times refused funding for implementation of the proposed rule. It is time the Commissioners scheduled a vote on this proposal and then voted it down.
The Commissioners need to take the same action on a 2014 proposal that would change the long-standing regulations assuring the fairness and accuracy of any public statements made by the agency identifying specific products. The requirement for fairness and accuracy is a statutory requirement added to the statute to assure that the agency did not violate due process tenants by regulating by press release. This was unfortunately happening in the early days of the agency and the Congress stepped in to stop it by passing Section 6(b) of the Consumer Product Safety Act (15 U.S.C. § 2055(b)). The proposed rule would weaken the current protections that have been in place since 1983 and is contrary to the intent of Congress. It should be finally voted down.
Also spinning in limbo is the agency’s Retailer Reporting Program, under which major retailers report safety complaints to the agency. Since the beginning of the program, it has been understood that these reports, which are both voluntary and confidential, would satisfy the legal reporting requirements a retailer otherwise had. The data collected has the potential to provide insight into developing hazards and could have been a useful supplement to the other data collection activities of the agency. However, the CPSC changed the reporting underpinnings of the program, creating confusion and making it a questionable undertaking for retailers. The agency has been “studying” the program for several years and it is time to bring that study to closure. The CPSC’s regulatory actions must be based on data and the agency’s data sources are recognized by many to be outdated and inadequate. A redesigned retailer reporting program could potentially augment the agency’s hazard data and be another useful tool to identify hazards in the marketplace.
Finally, it is inexplicable why the Commissioners have not moved to complete work on a proposed rule to modernize regulations addressing the hazards associated with fireworks. Each year, overloaded fireworks kill or maim consumers. The test to determine if a firework is “overly energetic” is quite subjective: that is, CPSC staff listen to how loud it is and make an assessment. For years, the agency has been trying to come up with a test that is not subjective and that can be implemented by the industry in the field. Working closely with the impacted industry and other stakeholders, the agency staff has now developed a test that can work and has buy-in from the majority of manufacturers. Votes on this rule modernization have been scheduled and then cancelled without good explanation. This proposed rule is a prime example of how regulatory reform can help product sellers and consumers alike. It is time for the agency to move ahead on this proposed rule.
So, my year-end message to the CPSC is: while housekeeping may not be that much fun, it needs to be done so that new tasks can be tackled in the new year.
Tell CPSC What You Think
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.