Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standard for Infant Bath Seats


In NCLA’s view, the Proposed Rule continues an odious trend of incorporating private standards into the law only by reference, thereby hiding the binding law behind a paywall. The Proposed Rule is therefore unconstitutional and must not be enacted as written. This comment is intended to serve as a significant adverse commentary, which should require CPSC to withdraw the Proposed Rule. 

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DOCKET ID: CPSC-2009-0064


SUBMISSION DATE: October 21, 2019


October 21, 2019 | Comments in Response to the Direct Final Rule Proposed by the Consumer Product Safety Commission: Revisions to Safety Standard for Infant Bath Seats
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October 21, 2019 | NCLA Calls Out CPSC for Hiding Infant Bath Seat Safety Behind a Paywall

Washington, D.C. – The New Civil Liberties Alliance has submitted a public comment opposing the U.S. Consumer Product Safety Commission’s proposed regulationRevisions to Safety Standard for Infant Bath Seatson the basic premise that the law must be freely accessible to everyone.  

NCLA believes the proposed rule violates due process and continues an odious trend of federal agencies incorporating private standards into the law only by referencewhich makes it difficult for folks who have to comply to obtain access to the law’s requirements. Instead of informing members of the public of their precise legal obligations, CPSC proposes that anyone seeking access to the contents of the law must either purchase a copy of the law from a private organization at a cost of $56.00 or make the trip to Bethesda, MD, for the right to simply see (but not copy) the law in the agency’s reading room 

But a fundamental principle in our legal system is that laws that bind persons or entities must give fair notice of conduct that is forbidden or required so that regulated parties may conform their conduct to the law in advance and thereby avoid its sanctions. This proposed rule provides neither fair notice nor due process. 

Making the law inaccessible is a notorious trick of tyrants. Due process requires that everyone have notice of their legal obligations. But CPSC, like many federal agencies, continues to hide the law behind a paywall simply because it is easier for the agency. It’s time for this lawless practice to end. 
Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance 

As a former CPSC staffer, I learned firsthand about nonpublic laws and have objected to them from day one. Notice is a fundamental aspect of the rule of law. CPSC may point to a statute it implements as the culprit here, but NCLA does not believe the practice of secret law will survive court challenge.
Mark ChenowethExecutive Director and General Counsel, New Civil Liberties Alliance 


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.