Captured Product Safety Commission

nord.jpgAbout a year ago I heard a radio story about a new technology called SawStop, which is designed to prevent table saw injuries. Every year table saws cause “over 60,000 injuries, over 3,000 amputations, and $2 billion in injury-related costs.” SawStop petitioned the Consumer Products Safety Commission to issue new rules to encourage manufacturers to increase the safety of their saws. After years of lobbying, SawStop appeared to get the CPSC to agree…but then its chairman resigned:

[T]he CPSC staff recommended the petition be granted. On July 11, the commission voted, 2 to 1, to start the process of making a new rule, a job that can take years. [Sawstop’s founder and attorney] said they felt vindicated, although the rejoicing ended four days later when Stratton resigned from the agency. One of the remaining commissioners, Nancy A. Nord[pictured at right], wanted to defer action on the petition and instead look at voluntary efforts being made by the industry. . . . Julie Vallese , CPSC spokeswoman, said the saw-safety standard idea isn’t dead but that the agency’s “decision-making procedures” don’t allow the rulemaking to advance with what amounts to a deadlocked commission.

I was surprised by that story, but apparently gridlock and apathy are par for the course at the agency. For example, it has protected ATV manufacturers from regulation, despite the fact that in 2004 “44,000 children riding all terrain vehicles were injured . . . nearly 150 of them fatally.” Here’s one insider’s account of that decision:

[At a hearing on the matter,] John Gibson Mullan, the agency’s director of compliance and a former lawyer for the A.T.V. industry . . . [said that the] current system of warning labels and other voluntary safety standards was working, he said. “We would need to be very careful about making any changes.” Robin L. Ingle, then the agency’s hazard statistician and A.T.V. injury expert, was dumbfounded. Her months of research did not support Mr. Mullan’s analysis. Yet she would not get to offer a rebuttal. “He had hijacked the presentation,” [she said].

A bit more commentary below the fold. . . .

At a time when imports from China and other Asian countries surged, creating an ever greater oversight challenge, the Bush-appointed commissioners voiced few objections as the already tiny agency — now just 420 workers — was pared almost to the bone.

At the nation’s ports, the handful of agency inspectors are hard pressed to find dangerous cargo before it enters the country; instead, they rely on other federal agents, who mostly act as trademark enforcers, looking for counterfeit Nike sneakers or Duracell batteries.

At the agency’s cramped laboratory, a lone employee is charged with testing suspected defective toys from across the nation. At the nearby headquarters, safety initiatives have been stalled or dropped after dozens of jobs were eliminated in budget cutbacks.

The NYT is to be commended for covering this somewhat obscure corner of the regulatory landscape. What will the CPSC’s next move be?

I don’t know, but I’m not encouraged by the 2001 case Geier v. American Honda Motor Co., 529 US 861 (2000), which “held that a Dept of Transportation passive restraint standard preempted a state law tort claim that an automobile that complied with the standard was nonetheless defective because it lacked an airbag.” (from Koch, Murphy & Jordan, Admin Law, 123). SawStop’s owner believes that eventually the industry will have to adopt technology like his because “The legal standard says you have to make a product as safe as you reasonably can, and if you fail to do that, you’re going to be responsible.” But perhaps CPSC could set a very low standard for table saw standard and effectively preempt any higher legal standards states set. Nord’s term lasts till 2012–I wonder if such goals are on her agenda?

PS: Here are other articles in the NYT Series “Mission Refocused” on OSHA and MCSA. After reading the latter, I’m glad I take the train most of the time.

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