CPSC Commissioners Debate Regulatory Reform

Over the past few decades, Presidents and Congress have imposed various procedural requirements on regulatory agencies to try to improve the effectiveness and efficiency of government regulation. For example, the Unfunded Mandates Reform Act calls upon agencies to analyze the benefits and costs of significant regulatory proposals before reaching final decisions. Likewise, Executive Order 13,563 sets forth general principles for making smart regulatory decisions, enhancing public participation, and conducting retrospective analysis of rules. Most of these requirements apply only to agencies like the U.S. Department of Transportation and the U.S. Environmental Protection Agency that are headed by secretaries or administrators who serve at the pleasure of the President. They do not apply to independent agencies, such as the U.S. Securities and Exchange Commission or the U.S. Consumer Product Safety Commission (CPSC), which also make important regulatory decisions but are headed by officials who can only be fired for “good cause.” Executive Order 13,579, for example, states that independent agencies should also comply with good regulatory principles found in other executive orders, even though they are not required to do so. Similarly, although the White House Office of Information and Regulatory Affairs (OIRA) reviews executive agencies’ regulatory proposals and analyses, the OIRA review process does not exist for rules issued by independent agencies. In this series of essays, The Regulatory Review presents a thoughtful debate over possible changes to the regulatory process at independent agencies, most especially at the CPSC. The series begins with a pair of essays written by CPSC Commissioner Joseph P. Mohorovic and published in The Regulatory Review earlier this year. In the first essay, Mohorovic argues that the adoption of several additional rulemaking procedures at the CPSC—including improving the agency’s regulatory agenda and subjecting rules to external review—would better serve the public and reduce the burden of its regulations. In his second essay, Mohorovic argues that independent agencies like the CPSC should subject their regulations to more stringent benefit-cost analysis of the sort required of executive agencies. After The Regulatory Review published Mohorovic’s initial essays, we received a response from CPSC Commissioner Robert S. Adler criticizing his colleague’s proposals. Adler’s response forms the third essay in this series. In it, Adler argues that Mohorovic’s proposals would make “regulators jump through even more hoops than they currently face,” burdening regulators to the point of “paralysis by analysis.” In a rejoinder published as the fourth essay in this series, Mohorovic argues that regulatory costs have “run amok” and praises recent momentum from Congress and the White House in favor of regulatory reform. In a final essay, Adler replies by disputing the magnitude of the regulatory burdens that Mohorovic decries, and he argues instead that the benefits of rules issued by the CPSC “vastly outweigh the costs associated with them.” January 9, 2017 | Joseph P. Mohorovic, U.S. Consumer Product Safety Commission As a Commissioner of the CPSC, I have found that we could greatly improve the agency’s functioning by adopting several rulemaking procedures. Four key procedural steps could greatly improve rulemaking at CPSC and other independent agencies. Codifying the four reforms proposed here would go a long way toward improving the rulemaking process at independent agencies and helping ensure that the public can be better protected and the economy less burdened. January 10, 2017 | Joseph P. Mohorovic, U.S. Consumer Product Safety Commission When conducting the analysis needed to inform sound regulatory decision-making, independent agencies could benefit from following key analytical standards that over the years have been imposed on executive branch agencies by executive orders. Too often I have seen the CPSC depart from these analytical best practices, which then can lead to misinformed and even unnecessary regulations. Regulatory decision-making at independent agencies like CPSC would benefit from adherence to four main analytic requirements contained in executive orders. June 20, 2017 | Robert S. Adler, U.S. Consumer Product Safety Commission I have no disagreement with Commissioner Mohorovic’s proposition that improving agency functioning is a good thing. But my colleague’s approach prescribes an all-too-familiar nostrum for regulatory reform: impose “paralysis by analysis” by regulating the regulators. The hoops are different, but the obstacles are the same. Commissioner Mohorovic offers four suggestions for improving rulemaking at CPSC. I discuss each of them and offer my comments in turn. June 21, 2017 | Joseph P. Mohorovic, U.S. Consumer Product Safety Commission The central thrust of Commissioner Adler’s response is that the analytical tools I endorsed somehow constitute “paralysis by analysis.” That is, these tools inconvenience regulators who would much rather govern by whim and impulse than by facts, science, data, and a recognition that Washington elitists do not, in fact, always know what is best. In the absence of some badly needed regulatory reforms, the administrative state has run amok. Fortunately, a change is coming regardless of whether he chooses to accept it. June 22, 2017 | Robert S. Adler, U.S. Consumer Product Safety Commission I do not share my colleague’s sense that the regulatory state has run amok, particularly at the CPSC. If anything, we have found our rulemaking stymied by burdensome, expensive, time-consuming regulatory procedures imposed in the early 1980s that add little value to our work product, but that drag our efforts out by years. Moreover, I do not find my colleague’s general critique about runaway regulatory costs to be particularly persuasive