[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]



[Docket No. CPSC-2011-0078]

16 CFR Chapter II

Review of Commission's Regulations; Request for Comments and 

AGENCY: Consumer Product Safety Commission.

ACTION: Request for comments and information.


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 rhowell@cpsc.gov.


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.

    \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 

    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 
     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 
     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 
     Are there other categories of rules that should be 

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]