What happened on July 20th at the CPSC Commission hearing? I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online. Apparently Inez Tenenbaum made some blanket statements rejecting the President's Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA.
Of course, how would I know what she said? The video at the Sunshine State of the CPSC is not available to me. Two days later . . . . Hmmm. Do you think they are waiting for me to forget about it???
While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things. First, BNA in an article entitled "CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity" dated July 20 quoted Ms. T as follows:
"And in a July 20 public meeting on the agency's priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. 'To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed.' She said CPSC has committed to conducting a retrospective review of its regulations, per Obama's Executive Order, and 'we will begin our retrospective review and we will solicit comment.'" [Emphasis added]
Fiction, eh? Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard:
"Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors." [Emphasis added]
Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a "regulation" but is instead a "statutory mandate". There is no such thing as a "mandate" in this context from a legal point of view. See the definition of "mandate". Essentially, what the regulators are referring to as a "mandate" is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.
[It's okay, let it out. I just doubled over in laughter myself.]
What DID Congress tell the CPSC to do about 100 ppm in the CPSIA? The law instructs the CPSC as follows:
Section 101(a)(2)(C): "100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products."
Section 101(a)(2)(D): "ALTERNATE REDUCTION OF LIMIT.—If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act."
Section 101(e): "PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section."
[Emphasis added] Section 101(e) refers to the process that just concluded as a "rulemaking proceeding". I don't know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me. This is not a direction to reach a particular conclusion - if it is a "mandate" at all, it is a "mandate" to go through a classic regulatory process. Read the instructions yourself, it's right there.
President Obama's Executive Order reads as follows (in relevant part):
"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows: Executive Order 13563 of January 18, 2011, 'Improving Regulation and Regulatory Review,' directed to executive agencies, was meant to produce a regulatory system that protects 'public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.' Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well." [Emphasis added]
Ms. T interpreted the words "to the extent permitted by law" as "to remain true to their statutory mandates". Ms. T, a lawyer, is blatantly wrong, laughably so. Unfortunately, it's not funny.
Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA. Of course, you know I think that's a bunch of bunk. The President's Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her. I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.
Does the CPSIA mention "cost-benefit" anywhere? I am glad you asked . . . . The CPSIA uses the term "cost-benefit" only once (outside of the Table of Contents):
"SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970. Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.'"
If Congress was so concerned that cost-benefit should never apply to these provisions, why didn't they say it? They weren't silent on cost-benefit - Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970. But as it relates to lead and phthalates, Congress was silent on cost-benefit. Why might they have been silent? Perhaps the authors of the law believed it was an illegal provision as applied to these rules. Perhaps the Dems behind the law felt the CPSIA wouldn't pass if such an obnoxious term were included in this critical part of the law. Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn't write themselves.
As this week's WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore. They can run rampant over our laws, our companies, our markets, our jobs, our lives. They are the law, they are the judges, they are the jury. They know what's best for us, and no public hearings are going to change their minds.
Oops, make that no Presidential Executive Order will change their minds . . . .