The Consumer Product Safety Commission met today to review the staff proposal for a final rule on the Publicly Available Consumer Product Safety Information Database, one of the many new federal regulations created by the 2008 law, the Consumer Product Safety Improvement Act.
The CPSC’s commissioners had a particularly vigorous discussion about the proposal and the alternative proposal offered by Commissioners Nancy Nord and Anne Northup. The Nord-Northup amendment was defeated 2-3, and a substitute amendment by Commissioner Robert S. Adler was adopted 3-2. The upshot is that the final rule was approved for promulgation without the CPSC fixing the most significant concerns raised by a large number of parties.
Extensive debate took place both in Congress and then within the Commission on the appropriate types of “reporters” to the database, that is, which individuals or groups would be recognized for registering legitimate complaints. The CPSC staff’s final proposal acknowledged that Congress provided an exhaustive list of reporters but strained credulity by expanding the definitions of “consumers” and “public safety entities” beyond their clear public meaning and the intent of the drafters of the legislation. The new definition includes attorneys, investigators, professional engineers, agents of a user of a consumer product, observers of the consumer products being used, consumer advocates, and consumer advocacy organizations, among others. As a result, the database with be filled with bogus reports inspired by political or financial motives rather than safety.
Congress also struck an appropriate balance between the speed of publication of reports and the desire for accuracy as well as the protection of confidential business information. The final rule provides for no such balance and creates a default for immediate publication before any meritorious claims regarding trade secrets or material inaccuracy are resolved. An alternative was offered that provides for the opportunity for staff to make determinations about such claims prior to posting the reports to the database, but it was rejected. Once a trade secret is posted within a report, for example, no remedy is available to undo the damage. These claims as well as claims of inaccuracy, impossibility, or product misidentification should be resolved before the information is made public if the database is to provide helpful information to the public.
Unfortunately, the Commission rejected a common sense approach today. It is now up to Congress to reclaim its authority and correct these errors.
Rosario Palmieri is the National Association of Manufacturers’ vice president for infrastructure, legal and regulatory policy.
UPDATE (1:35 p.m.): Commissioners Tenenbaum, Adler and Moore have issued a statement on their vote to approve the final rule. Commissioners Nord and Northup have posted their statement here. The majority three are Democratic appointees, the minority two are Republicans.