Wow! Last Tuesday was quite something! Throughout Washington, folks are now trying to figure out what the new Administration will mean for our country. But so far I have not seen anything written about what the CPSC will look like going into 2017, so here is my take.
Unlike the cabinet officers who serve at the pleasure of the President, independent regulatory commissioners serve a term of office and can be replaced only for “cause,” rather than at the will of the President. There are currently no vacancies on the Commission, nor will there be until October, 2017, unless one of the sitting commissioners decides to leave prior to the end of their term. The current chairman may or may not decide to give up that office, but still remain on the Commission and it may be that one of the sitting Republican commissioners could become acting chairman until a permanent chairman is nominated. Those kinds of changes will be decided among the commissioners in the near term, and speculation about such things may be a fun parlor game, but nothing more. It is much more productive to think about what the agency should look like beyond 2017, and for the long term.
During my eight years as a Commissioner, I saw the agency change from one that sought collaboration with stakeholders to solve important safety issues, to one that places priority on punishment; from one that sought open communication with the regulated community to one that often fosters fear and distrust. The agency enforcement philosophy changed from the “punishment should fit the crime” to “upping the ante” as high as it could go. In its proposals to change the voluntary recall process to one that is much more adversarial and to change the §6(b) regulations in a way that probably violates the statute, the agency has sought to impose a political agenda rather than address real safety issues. Over the past several years, both Commissioner Buerkle and Commissioner Mohorovic have written very thoughtful statements about the direction of the agency and these statements could, and should, serve as the outline for a new and more effective CPSC.
This would also be a good time to at least consider whether systemic change to the agency is appropriate. In an article a while back, I questioned whether having five commissioners at the top of a small agency was such top-heavy management that inefficiencies and muddled priorities have to follow. Reconsidering the agency’s place in the federal hierarchy is an appropriate analysis to undertake. Such an analysis needs to be grounded in how to provide the safety protections the public expects in the most efficient manner.
No doubt there will be some who see any change in direction as an effort to gut the agency rather than an effort to make a needed course correction. But for those of us who care deeply about consumer safety, such a course correction will serve the agency, and consumers, well in the long term.
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.