Petitions and Confusion Follow the CPSC Rule

The CPSC was determined to go ahead with the standard even though AGA Labs had all but required the ODS device. Some staff members

earnestly argued that a federal standard was desirable because the CPSC had a better warning label than AGA. But the differences were, by any measure, trivial.^[45] Others felt that without a federal rule, the ODS would never be commercially adopted. One of the commissioners was determined to get back at an industry that had dared to start producing its product immediately after the CPSC lifted its proposed ban. This distrust was shared by many CPSC staff members. The commission eventually approved the rule but extended the effective date in a gesture of accommodation.

The gesture was lost on industry. Less than two weeks after the CPSC published a Federal Register notice adopting the space heater rule, GAMA petitioned the agency to revoke it. This was only the first of a plethora of petitions and other postadoption posturing that confused the commission and, years later, resulted in revocation of the ODS rule. The GAMA petition was a foregone conclusion, dependent more on the CPSC's presence than on its program. This was the federal government's first foray into regulating gas appliances. Although the rule was one that GAMA now agrees that "industry could live with," some segments of the industry could not live with the idea of government regulation. An association spokesman says that it was inconceivable that the commission could have written a rule that GAMA would not have petitioned to revoke.

Petitioning so soon after the rule was adopted was probably a tactical error on GAMA's part. To grant the petition, the CPSC would have to admit that it had made a mistake—not enough time had elapsed to argue that circumstances had changed. Positions had also hardened as a result of the just-completed rulemaking process. It was doubtful whether the CPSC would take a hard look at the petition. In fact, the staff responded to the petition with a brief memo prepared in a matter of weeks, instead of with the conventional briefing package prepared over a course of months.

The petition brought forth unexpected disagreements within the commission and within industry. The CPSC Office of Program Management could not reach a consensus. Representatives from the Engineering Directorate favored granting the petition, those in Epidemiology and Compliance opposed it, and the economists said that it would make little difference either way. Industry was similarly divided. GAMA did not want the federal government to regulate gas appliances, but some major retailers saw an advantage in federal regulation. The "carrot of preemption," as CPSC staff members often refer to it, holds

out the promise of preempting state and local regulations. For the space heater this means preempting bans in many jurisdictions, opening up a possible national market. (That is, unless the states and localities petition for an exemption from preemption—something that GAMA predicted, and that soon came to pass.)

Unwilling to revoke what it had just enacted, the commission rejected the GAMA petition. Petitions for exemption from preemption soon followed. Officials at AGA Labs who questioned the desirability of the unvented space heater persuaded the president of AGA, without the approval or knowledge of those departments concerned with marketing, to provide information to jurisdictions interested in reinstituting their bans by obtaining an exemption from preemption. Petitions poured in from cities such as Victorville, California, which argued that a ban "provides a significantly higher degree of protection from the risk of carbon monoxide than does the Commission's standard."^[46]

The legal issues concerning exemption were cloudy.^[47] And the practical implications of these petitions were formidable—the CPSC apparently had to rule on each petition individually. By mid 1983 there were more than two dozen petitions. On October 5, 1983, the commission proposed what looked like an easy way out: revoke the rule. Sufficient time had passed since enactment of the rule to argue that circumstances had changed. The private sector had achieved important gains; by now, the ODS was standard equipment on all space heaters. To GAMA, it was a wish come true. To some of GAMA's members, however, it meant losing the carrot. Both Atlanta Stove Works and Birmingham Stove and Range Company opposed revocation as an unfair impediment to market expansion plans undertaken after the rule was first adopted.^[48]

The issue was emotionally charged within the commission, but the reasons seemed symbolic, not substantive. Since the AGA/ANSI standard required the ODS, the only practical effect of revocation was that many states and localities would reinstitute bans that might have been granted anyway through the exemption process. There were no arguable detrimental effects on safety. Still, two of the five commissioners voted against revocation. One wrote a twenty-nine-page dissent that castigated the commission for taking "such an extreme and unparalleled action."^[49] The same commissioner objected so strongly to wording in the proposed revocation notice that intimated CPSC endorsement of the voluntary standard that the notice was eventually reworded. The

CPSC had (finally) deferred to the private sector, but it was unwilling to say so directly.