CPSC's Northup Claims Flaws in Database Rule Puts It in Legal Jeopardy
Commissioner Northup of the Consumer Product Safety Commission has posted an additional statement on CPSC’s December 2010 final rule establishing a public database of consumer product safety incidents.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
(The final rule, which is required by the Consumer Product Safety Improvement Act, was narrowly approved by the Commission in a 3-2 vote along party lines.)
Says Rule Deviates from CPSIA Statute and APA, Expects Court Challenges
Substantively, Commissioner Northup believes that the final rule deviates to an unacceptable degree from the underlying statute and would - if upheld - create a public database incapable of achieving the statutory purposes assigned to it. Procedurally, she states that the final rule dispensed with requisite administrative processes, including the Administrative Procedures Act.
Given the extent to which the final rule misconstrues the statute, and the manner in which the agency disregarded administrative procedure, Northup believes the rule is unlikely to survive the “now inevitable (and perhaps numerous) legal challenges.”
Lists Alleged Violations of the APA, CPSC Protocols
She alleges that the Commission has violated the Administrative Procedure Act and internal CPSC procedures by:
Changing major aspect of final rule without seeking comments. She states that the Commission’s majority refused to re-propose the rule despite reversing its position without warning on a major aspect of the rule between the proposed and final rule stages. Her claim involves the 10-day timeframe for CPSC to publish a consumer product incident report after notifying the manufacturer involved about the report. She states that in the proposed rule CPSC would have allowed for discretion in cases where a claim of materially inaccurate or confidential information was under review. However, in the final rule, the agency dictates that reports of harm must go “live” in the database after ten days even when claims of material inaccuracy are pending.
Failing to consider alternative rule. Northup states that the Commission failed to give adequate consideration to a reasonable alternative proposal, specifically the one presented by herself and Commissioner Nord in November 2010 which she says the other Commissioners largely ignored. (See ITT’s Online Archives or 11/17/10 and 11/10/10 news, 10111760 and 10111015, for BP summaries.)
Not holding a “fishbowl” session to consider rule. The Commissioner states that in contrast to every other major rule considered by CPSC during her tenure, no internal “fishbowl” session was held on the database final rule during which all of the Commissioners’ staff gather to review each line of a rulemaking and technical staff are involved to work out all the details.
Not analyzing economic effect of rule. According to Northup, the Commission also neglected to carry out its duty to examine the economic effects that this rule will have, particularly on small businesses, as required by the Regulatory Flexibility Act. She believes that these costs could be considerate due to the risk of reputational harm from materially inaccurate reports in the database. However, very little staff consideration was given to the matter.
(See ITT’s Online Archives or 01/07/11 news, 11010711, for BP summary of CPSC holding web conferences in January 2011 to demonstrate the public database.
See ITT’s Online Archives or 12/09/10 news, 10120917, for BP summary of the public database final rule.
See ITT’s Online Archives or 12/06/10 news, 10120644, for BP summary of Representative Barton stating that the final rule overstepped Congressional intent.
See ITT’s Online Archives or 11/29/10 news, 10111933, for BP summary of CPSC voting 3-2 to publish the final rule after contentious debate.)