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Writing a Regulatory Punch List

By former CPSC Commissioner Nancy Nord

Everyone needs to clean out the attic from time to time.  Through that process, you often come across things that you want to keep, that need to be repaired in order to be useful and that are just out of date and can be tossed.

With that in mind, this past week the U.S. Consumer Product Safety Commission (CPSC) published a draft plan for retrospective review of its existing rules—that is, a plan to develop a punch list for rules that need review.  The agency is asking for comments on the draft plan and those comments are due by December 28, 2015.  The draft review plan pushes forward the commitment the commissioners made earlier this year to engage in meaningful review of rules that are already on the books to identify regulations that are obsolete, excessively burdensome, counterproductive, ineffective or in need of modernizing.  Unlike the Commission’s earlier effort in 2012, this plan makes clear that all rules are potential candidates for review.  And it provides a mechanism for getting the public’s suggestions for rule review candidates.

Perhaps this is what it will take for the agency to finally update the woefully out-of-date rule on fireworks, or to take another look at its testing rule (which its own economists promised would put some small businesses out of business).  I could go on with my own punch list.

The draft plan shows a commitment on the part of the agency to undertake a serious review of its rules.  But it remains to be seen whether this will be a plan with any teeth behind it or just another empty head-nod to good administrative practice. I do note that the plan does not include dedicated resources for implementation. And, importantly, it does not include a continuing commitment to provide for a review plan and metrics for that review in all new rules the agency issues.  That would be a helpful addition to assure that this plan does not just get stuffed back up into the regulatory attic to languish.

Nancy Nord joined OFW Law after completing an eight-year term as a Commissioner on the U.S. Consumer Product Safety Commission, serving from 2005 through 2013.  Ms. Nord was Acting Chairman of the CPSC from July 2006 until June 2009.

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