Regulatory reform or paralysis by analysis?

As in years past, some members of Congress have recently proposed legislation to “reform” the regulatory process.  Among the bills currently pending is one called the Regulatory Accountability Act (S. 2006), which my friend and former CPSC colleague Nancy Nord, recently praised in the Congress blog.

My former colleague argues that “these bills show Congress’s concern that voices which should be part of policy development are not being heard or, at least, adequately considered.”  Her reference can be only to the well-funded and deeply involved voices of industry – not to consumers.  Consumers vigorously oppose these bills because the delays they create expose the public to unnecessary health and safety hazards.

{mosads}I strongly disagree with former Commissioner Nord.  The bill she refers to – as with many similar bills – is not designed to improve the regulatory process or produce better rules.   It is designed to induce “paralysis by analysis” to slow agency rulemaking, and not much more.  Bills like S. 2006 simply weigh agencies down with a host of unnecessary findings that will not benefit the public in any significant way.  These bills may stem from good intentions, but they end up giving good intentions a bad name.

As a commissioner at one of the agencies likely to be covered by a regulatory reform bill, I sit in a unique position because my agency already operates under the sorts of onerous restrictions contemplated in these bills.  That is, we must navigate a multitude of unnecessary and costly regulatory findings (dozens by my count) and procedural steps before we can promulgate a safety rule.  And, once we do, we face the possibility of legal challenges that can be overcome only if we make the case that our regulatory findings are supported by “substantial evidence on the record taken as a whole.” 

Former Commissioner Nord pins much of her support for this bill on the experience of the Consumer Product Safety Commission when, in 1981, Congress added a host of procedural requirements to the agency’s rulemaking.  These procedures were imposed on us in the midst of the deregulatory movement at that time.  She neglects to mention that these procedures were not necessarily added to enhance the agency’s rulemaking efforts.  Rather, they were part of a compromise between Congress and OMB Director David Stockman – who tried unsuccessfully to abolish CPSC.   

Here are a few statistics that illustrate the effects of these added rulemaking obstacles:  Between 1973 (the year CPSC became operational) and 1981, the agency promulgated 24 safety rules— or roughly 3 safety standards per year.  In the 34 years since, the agency has managed to eke out only 10 rules – or roughly 1 safety standard every 3 ½ years! 

In fact, in the 8 years that my colleague served as a CPSC commissioner, the agency issued a grand total of one safety standard using these procedures – not a stellar record by any measure.

It would be a good thing if this reduced output reflected greater care in drafting standards and resulted in more safety for consumers, but that is not the case.  I challenge any objective observer to demonstrate that the rules issued after 1981 present any higher quality or more useful analysis than those issued before the restrictions went into effect.  The only difference is that the later rules have moved at the pace of a stampede of turtles through a vat of peanut butter.

To be blunt, the only real effect of these delays is lost lives and serious injuries.  Moreover, the dilatory pace of the Commission’s rulemaking has frustrated Congress so much over the years that they have lost patience at times and simply mandated safety rules through legislation. Congress has also increasingly chipped away at these procedural hurdles to streamline CPSC rulemaking, especially when it comes to safety rules designed to protect children – our most vulnerable consumers.

No one opposes thoughtful and careful assessments of rules and regulation.  Moreover, no commissioner at CPSC objects to thoughtful cost-benefit analyses.   We do these analyses and should continue to do them.  But, when carried to an extreme – as with these so-called “reform” bills – added regulatory hurdles simply delay safety. 

And, safety delayed is safety denied.

Adler is a commissioner with the U.S. Consumer Product Safety Commission.