CPSC uses an alternative approach to negotiated rulemaking which
accomplishes the goal of negotiating rather than dictating rules. By
statute CPSC can only issue a mandatory standard when there is no
voluntary standard in place that adequately addresses the risk of
injury, or when industry fails to comply with such voluntary standards.
The Commission has had great success in working cooperatively with
industry to develop voluntary standards. Indeed, the Commission has
found that with the products it regulates, negotiating such standards
can be far more efficient than rulemaking or even negotiated rulemaking.
CPSC always attempts to work cooperatively with industry to address
safety hazards. It is far more effective for CPSC and industry to work
together than for the agency to dictate mandatory standards. Industry
knows its own products best and obviously has considerable technical
expertise. Accordingly, the Commission uses mandatory standards only as
a last resort when negotiated voluntary standards and the marketplace
CPSC relies extensively on the voluntary consensus process for the
development of safety standards for consumer products in the United
States. As much, if not more than any other federal regulatory agency,
the CPSC has used the voluntary process to address safety problems since
its beginning in 1973. Since this time, CPSC has worked with industry
representatives to develop more than 300 voluntary product standards
while promulgating less than 50 mandatory rules during this same period.
This 6 to 1 ratio of voluntary to mandatory standards is impressive and
illustrates that CPSC has long relied on this process to carry out its
mission. The following are examples of the positive results of
voluntary standards activities:
-- Chain saw injuries were reduced 48%, from 69,000 injuries to 36,000
-- Fire deaths were reduced 30%, from 5,450 deaths to 3,800 deaths.
-- Electrocutions were reduced 62%, from 650 deaths to 250 deaths.
Since 1981, CPSC's statutes have required the agency to make two
findings before it can issue a mandatory standard; first, that there is
no voluntary standard in place that adequately addresses the risk of
injury of concern, and second, if there is such a standard, that there
is not significant conformance to that standard. Furthermore, CPSC
follows OMB Circular A-119, which directs agencies to use voluntary
standards whenever possible.
CPSC is extremely active in the development of voluntary safety
standards in the United States. CPSC long ago established a high level
staff position to coordinate voluntary standards policy activities.
CPSC's Voluntary Standards Coordinator is the Chairman of the American
National Standards Institute's (ANSI) Government Member Council, and as
such is a non-voting ANSI Board member. Commission staff sit on several
councils of Underwriters' Laboratories (UL); in fact, a CPSC staffer is
the first woman member of UL's Electrical Council. CPSC is a member of
the ASTM F-15 Executive Committee for Consumer Products. These bodies
establish domestic and international policies for the development of
voluntary consensus standards. Also, CPSC staff is active on many of
the U.S. code bodies (National Electric Code, National Fuel Gas Code,
etc.) that establish national model codes for the safe installation of
consumer products. All of these activities are heavily relied on by
CPSC to ensure that adequate safety standards exist for consumer
products. These non-regulatory activities represent the vast majority
of the Agency's standards development activities today.
On occasion, CPSC concludes that mandatory regulations may be
appropriate because of ineffective self-regulation by the marketplace.
However, in these cases the CPSC staff works as closely as possible with
industry to assure that the rulemaking process is as efficient and
effective as possible. For example, CPSC is currently conducting a
regulatory investigation on upholstered furniture. Technical staff is
conducting the following work in close cooperation with industry: (1) a
fire incident data study to determine the number of fires involving
upholstered furniture and small open flames; (2) testing of existing
furniture to small open flame conditions to evaluate current furniture
performance; and, (3) surveying manufacturers to gather specific
information about the upholstered furniture market. Industry has been
given an opportunity to review our data collection methodology, our
laboratory testing protocols, and provide input on the type of questions
we ask manufacturers about the market.
There are times when industry prefers a mandatory federal standard
because of the preemptive effects of CPSC's regulations over state
regulation and because of the CPSC's enforcement capabilities,
particularly with imported goods. A recent example of this is the
CPSC's mandatory standard for child-resistant cigarette lighters. The
CPSC was initially proceeding on a dual track of working on a mandatory
and voluntary standard. Then industry decided to stop all work on the
voluntary standard, in part because of conflicting legislation in two
states to regulate this product. Just as importantly, the domestic
manufacturers were very concerned that overseas manufacturers would not
comply with a voluntary standard and they would therefore be placed at
an economic disadvantage. Because of these considerations, the industry
specifically requested a mandatory regulation.
from U.S. CONSUMER PRODUCT SAFETY COMMISSION
REGULATORY REFORM INITIATIVE, SUMMARY REPORT - JUNE 1995
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource for Legal Pros & Laypeople Alike.