[Federal Register Volume 76, Number 202 (Wednesday, October 19, 2011)]
[Proposed Rules]
[Pages 64865-64868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26820]
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CONSUMER PRODUCT SAFETY COMMISSION
[Docket No. CPSC-2011-0078]
16 CFR Chapter II
Review of Commission's Regulations; Request for Comments and
Information
AGENCY: Consumer Product Safety Commission.
ACTION: Request for comments and information.
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SUMMARY: Consumer Product Safety Commission (``CPSC'' or ``we'') staff
is considering the appropriate process and substance of a plan to
review existing CPSC regulations. CPSC has conducted reviews of rules
in the past and intends to build on that experience to develop a plan
of review that also satisfies recent direction from President Obama,
set forth in Executive Order 13579, ``Regulation and Independent
Regulatory Agencies'' (76 FR 41587 (July 14, 2011)), which states that
independent regulatory agencies should follow certain key principles
when developing new regulations and should review existing significant
regulations. To that end, Executive Order 13579 (``E.O. 13579'')
emphasizes the importance of retrospective analysis of rules and the
need to develop a plan under which the agency will conduct periodic
reviews of existing regulations. We invite comments on the issues
discussed in this document to help us formulate a plan that builds on
our past review efforts while incorporating the principles outlined in
E.O. 13579.
DATES: Comments must be submitted by December 19, 2011.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0078, by any of the following methods:
Electronic Submissions
Submit electronic comments in the following way:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
To ensure timely processing of comments, the Commission is no
longer accepting comments submitted by electronic mail (e-mail), except
through http://www.regulations.gov.
Written Submissions
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions), preferably in five copies, to: Office of the Secretary,
Consumer Product Safety Commission, Room 820, 4330 East West Highway,
Bethesda, MD 20814; telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received may be
posted without change, including any personal identifiers, contact
information, or other personal information provided to: http://www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
electronically. Such information should be submitted in writing and
marked as confidential.
Docket: For access to the docket to read background documents or
comments received, go to: http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Robert J. Howell, Deputy Executive
Director for Safety Operations, U.S. Consumer Product Safety
Commission, 4330 East-West Highway, Bethesda, Maryland 20814; telephone
(301) 504-7621; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
A. Previous Review Programs
1. The Systematic Review Program (2004 to 2007)
In 2004, CPSC began a program to review existing regulations. This
review resulted from an initiative by the Office of Management and
Budget (``OMB''), the Program Assessment Rating Tool (``PART''), which
was intended to provide a consistent approach to rating programs across
the federal government. OMB recommended that the CPSC develop a plan to
systematically review its regulations to ensure consistency among them
in accomplishing program goals. In fiscal year (FY) 2004, we conducted
a pilot review program as the initial step in implementing that
recommendation. The notice announcing the pilot program appeared in the
Federal Register on January 28, 2004 (69 FR 4095), and we continued the
program for several years thereafter (see 70 FR 18338 (April 11, 2005);
71 FR 32882 (June 7, 2006); 72 FR 40265 (July 24, 2007)).
The rule review focused on determining whether the CPSC's
regulations were:
Consistent with CPSC's program goals;
Consistent with other CPSC regulations;
Current with respect to technology, economic, or market
conditions, and other mandatory or voluntary standards; and
[[Page 64866]]
Subject to revision to reduce regulatory burdens,
particularly burdens on small entities.
See 69 FR 4096. When choosing which rules to review, the CPSC decided
to exclude from review any rules that it considered nonsubstantive
(i.e., those with requirements that were: administrative or procedural;
exemptions; labeling; test methods; or definitions).
The CPSC used the following criteria to select rules for the 2004
pilot program: (1) The rule had been in effect at least 10 years; (2)
at least one of the rules selected for review had multiple
requirements; (3) the rules addressed different hazard areas to ensure
the review process was not overly burdensome to any one internal
discipline; and (4) the rules were issued under different statutes.
Once the rules were chosen, CPSC staff reviewed the rule to look for:
Inconsistencies within the rule or with other CPSC rules; references
to, or use of, obsolete standards, technology, procedures, or
requirements that were no longer needed; and the potential to
streamline requirements of the rule. Following that analysis, CPSC
staff prepared a memo for the Commission's consideration, discussing
these issues and noted areas where changes to the rule were needed.
This approach was followed for the review program in 2004 through 2007.
The rules reviewed in the 2004 pilot included the safety standard
for walk-behind mowers; requirements for electrically operated toys;
the standard for the flammability of vinyl plastic film; and the child-
resistant packaging requirements for aspirin and methyl salicylate. 69
FR 4095 (Jan. 28, 2004). In FY 2005, the CPSC reviewed the safety
standard for cigarette lighters and multipurpose lighters; the
requirements for bicycles; the standards for surface flammability of
carpets and rugs; and the regulations requiring child-resistant
packaging for oral subscription drugs subject to the Comprehensive Drug
Abuse Prevention and Control Act. 70 FR 18338 (April 11, 2005). In FY
2006, the CPSC reviewed the safety standard for matchbooks; the
requirements for toy rattles; and the requirements for baby bouncers,
walker-jumpers, or baby walkers. 71 FR 32882 (June 7, 2006). In FY
2007, the CPSC reviewed the ban of unstable refuse bins and the
requirements for pacifiers. 72 FR 40265 (July 24, 2007).
In 2008, the enactment of the Consumer Product Safety Improvement
Act of 2008 (Pub. L. 110-314) required us to assign resources to
implement the new law. Consequently, we have not pursued additional
systematic rule reviews since 2007.
2. Periodic Review Under the Regulatory Flexibility Act
In addition to the Systematic Review Program discussed in the
previous section, the CPSC conducts reviews of rules in accordance with
the Regulatory Flexibility Act (``RFA''). The RFA directs agencies to
publish in the Federal Register, a ``plan for the periodic review of
the rules issued by the agency which have or will have a significant
economic impact on a substantial number of small entities.'' 5 U.S.C.
610(c). The plan must ``provide for the review of all such agency rules
existing on the effective date of [the RFA] within ten years'' of that
date and for the review of such rules adopted after the RFA's effective
date within 10 years of the publication of such rules. (The RFA took
effect on January 1, 1981.)
The review is to ``determine whether such rules should be continued
without change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes, to minimize any significant
economic impact of the rules upon a substantial number of such small
entities.'' The review must consider:
The continued need for the rule;
The nature of complaints or comments concerning the rule
received from the public;
The complexity of the rule;
The extent to which the rule overlaps, duplicates or
conflicts with other Federal rules, and, to the extent feasible, with
state and local governmental rules; and
The length of time since the rule has been evaluated or
the degree to which technology, economic conditions, or other factors
have changed in the area affected by the rule.
Furthermore, each year, an agency must publish in the Federal
Register a list of the rules that have a significant economic impact on
a substantial number of small entities. The list must include a brief
description of each rule and the need for and legal basis of such rule,
and public comment upon the rule must be invited.
We published both our plan for review under the RFA and the list of
rules in the Federal Register on August 14, 1981 (46 FR 45621). The
plan contemplated a two-part review process: (a) a review of CPSC
regulations that were in existence on the effective date of the RFA
(January 1, 1981), and (b) a second review process for regulations
issued after January 1, 1981. The plan provided that the first part of
the review process (for rules issued before January 1, 1981) would run
from 1981 to 1987, and the second part of the process (for regulations
issued after that date) would run from 1986 through 1991. In general,
the plan stated that we would invite comments from all interested
parties on our regulations, review the comments, and consider staff
recommendations for appropriate administrative action for those
regulations that have a significant economic impact on a substantial
number of small entities. The plan further indicated that Commission
action based on the recommendations would be consistent with the
objectives of the statute(s) under which the regulations were issued.
The CPSC reviewed the rules it had issued before the RFA took
effect in 1981 and found that none of them had a significant economic
impact on a substantial number of small entities. After the RFA took
effect, the CPSC reviewed the potential impact on small entities
whenever it issued a proposed and final rule. Few of the CPSC's rules
had a significant economic impact on a substantial number of small
entities when they were issued. Therefore, few of CPSC's rules warrant
section 610 reviews.
3. Retrospective Analysis of Existing Regulations Under Executive
Orders 13563 and 13579
On January 18, 2011, President Barack Obama issued Executive Order
(``E.O.'') 13563, ``Improving Regulation and Regulatory Review'' (76 FR
3821 (January 21, 2011)), which articulated certain principles of
regulation and directed agencies to take certain actions to promote
those principles, including a retrospective analysis of existing
significant regulations. ``Agency,'' as defined in E.O 13563, does not
include independent agencies.
On July 11, 2011, the President issued E.O. 13579, which applies to
independent agencies such as the CPSC. Section 2 of E.O. 13579 states:
``To facilitate the periodic review of existing significant
regulations, independent regulatory agencies should consider how best
to promote retrospective analysis of rules.'' Further, E.O. 13579
directs that within 120 days, each independent regulatory agency should
(consistent with law and reflecting the agency's resources and
regulatory priorities and processes) develop and provide to the public
a plan for periodic review of existing significant rules. The
retrospective analysis is to identify significant rules that ``may be
outmoded, ineffective, insufficient, or excessively burdensome.'' The
agency is to ``modify, streamline, expand, or
[[Page 64867]]
repeal'' identified rules in accordance with what it learns through the
review process.
Both Executive Orders call for review of ``significant
regulations.'' Neither order defines that term. However, E.O. 13563
supplements E.O. 12866, ``Regulatory Planning and Review.'' Although
E.O. 12866 does not define ``significant regulation,'' it does define
``significant regulatory action'' as, among other things, ``any
regulatory action that is likely to result in a rule that may: Have an
annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.'' \1\ 58
FR 51375, 51378 (October 4, 1993). The CPSC has issued few rules that
would be considered ``significant'' under this criterion.
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\1\ The additional criteria under E.O. 12866 that could make a
regulatory action ``significant'' are: ``create a serious
inconsistency or otherwise interfere with an action taken or planned
by another agency; materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or raise novel or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this Executive Order.'' 58 FR 51378. These
are not likely to come into play in the CPSC's review of existing
rules.
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On July 22, 2011, OMB issued a memorandum providing guidance
concerning E.O. 13579. This OMB memorandum states that the aim behind
the retrospective review plans called for in E.O. 13579 is ``to create
a defined method and schedule for identifying certain significant rules
that are obsolete, unnecessary, redundant, unjustified, excessively
burdensome, or counterproductive,'' but that ``such review should also
consider strengthening, complementing, or modernizing rules where
necessary or appropriate--including, if relevant, undertaking new
rulemaking.'' The OMB memorandum identifies certain types of rules that
would be good candidates for review, such as rules that ``new
technologies or unanticipated circumstances have overtaken'' or that
impose significant reporting or paperwork burdens.''
The OMB memorandum recognizes that each agency should set its own
priorities for review in its plan, ``tailored to its specific mission,
resources, organizational structure, and rulemaking history and
volume.'' The memorandum notes some topics that all plans might
address, including:
Public participation: Solicit the public's views,
preferably before the agency develops its plan;
Prioritization: Specify factors that will be considered in
choosing rules for review and include an initial list of candidate
rules for review over the next two years;
Analysis of costs and benefits and potential savings: Such
analysis could be useful to identify rules where reforms could have the
greatest potential for significant impact;
Structure and staff: Responsibility for review should be
vested with a high-level agency official and the plan should consider
how to maintain sufficient independence from the offices that write and
implement rules; and
Coordination with other forms of review: Coordinate with
other programs in place to review existing rules (e.g., review under
the RFA).
B. Proceeding With Retrospective Review of Existing CPSC Rules
In accordance with E.O. 13579, the CPSC is proceeding with review
of existing CPSC rules. Chairman Inez Tenenbaum directed agency staff
to reinvigorate the CPSC's voluntary review process for existing rules.
(See the Chairman's statement posted on the CPSC's Web site on July 11,
2011 (http://www.cpsc.gov/pr/regreform07112011.html).)
With this notice, we are seeking public comments and information to
help us develop a plan for review of existing rules that will be
appropriate to the agency, be consistent with (and not duplicate)
previous and ongoing reviews, and fulfill the spirit of E.O. 13579. We
intend for the CPSC's review to be broader than the reviews
contemplated by the RFA and the Executive Orders because we are not
limiting our evaluation to only regulations that have a significant
economic impact on a substantial number of small entities, nor are we
limiting it to significant regulations, as defined in E.O. 12866.
We invite comments on any aspects of the review discussed in this
document and particularly concerning the following issues:
1. Selection of Rules for Review
a. Criteria
What criteria should we use to select candidate rules for
review?
Should we use any of the criteria that were used to select
rules for the 2004 pilot project for CPSC's Systematic Rule Review
Program (these were: The rule has been in effect at least 10 years; at
least one of the rules selected for review has multiple requirements;
the rules address different hazard areas; and the rules were issued
under different statutes)?
How should we identify rules that may be obsolete,
unnecessary, redundant, unjustified, excessively burdensome, or
counterproductive? Are there specific rules that commenters can
identify?
How should we identify rules that may be in need of
strengthening, complementing, modernizing, or, if relevant, undertaking
new rulemaking?
How should we identify rules that may have been overtaken
by new technologies or unanticipated circumstances, or that impose
significant reporting or paperwork burdens? Are there specific rules
that commenters can identify?
b. Possible Exclusions
Should the review exclude rules that were excluded under
the CPSC's Systematic Rule Review Program (rules that are
administrative or procedural; exemptions; labeling; test methods; or
definitions)?
Are there other categories of rules that should be
excluded?
2. Process of Review
a. Timing
How should we determine the number of rules to be
reviewed, and possibly revised, each year and at what intervals?
How should the number of rules reviewed, and possibly
revised, each year be prioritized against other agency work?
Should different rules be reviewed at different intervals?
Please explain.
Should the schedule for review be similar to that under
section 610 of the RFA (i.e., a rule should be reviewed after it has
been in effect for 10 years?)
b. Public Participation
How should we involve the public in the review?
Should comments be requested for each rule reviewed?
Should we hold public meetings concerning the selection of
rules for review?
Should there be public meetings related to each rule as it
is reviewed?
c. Coordination
How can we coordinate our review with reviews required by
section 610 of the RFA and with reviews envisioned by E.O. 13579?
How can we coordinate better with other agencies and with
other jurisdictions (such as states, other countries, and international
bodies) to harmonize regulatory requirements and eliminate redundant or
inconsistent regulations?
[[Page 64868]]
How can we modify, streamline, or expand our regulatory
review process?
d. Prioritization
How should we prioritize rules that are to be reviewed
(e.g., chronologically; based on rules where the greatest impact could
be made from potential changes; rules with potential to have greatest
savings in costs or paperwork/reporting burdens; rules with most
potential for changes to enhance safety)?
3. Substance of Review
Should the review include any or all of the considerations
in RFA reviews (i.e., continued need for the rule; nature of complaints
or comments concerning the rule; complexity of the rule; extent of
overlap or conflicts with other federal (and possibly state and local)
rules; and length of time since the rule has been evaluated; or extent
of change in technology, economic conditions, or other factors)?
Should we conduct cost-benefit analyses with every rule we
review or only for significant rules as anticipated by the Executive
Orders? Please explain your reasoning. Do commenters have suggestions
for how we might develop our analysis of costs and benefits for rules
under consideration for retrospective review?
Dated: October 12, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-26820 Filed 10-18-11; 8:45 am]
BILLING CODE 6355-01-P