CPSC: NOT a Representative Sample of Good Regulating

The Consumer Product Safety Commission has completed another regulation dealing with the process of testing children’s products: the manner in which companies select the samplesPaperwork-mountain they test. Thanks to Congress, the result is better than it could have been. Thanks to my colleagues, it is not as good as it should have been.

Originally, the Consumer Product Safety Improvement Act (CPSIA), required manufacturers and importers to test “random samples” of their products. We were poised to read the word random with its most pedantic statistical meaning, creating an employment boom for mathematicians.

Many commenters deplored this uber-technical reading of the term, urging that we read it more plainly. Congress agreed, amending the statute to require “representative”—instead of “random”—samples.  So we started our work again, coming up with a rule to tell companies what representative means. The definition we came up with – a selection process that “provide[s] a basis for inferring compliance” even among untested products – seems reasonable enough on its face. What is unreasonable about this rule is that, when read in the context of the periodic testing rule it is amending, at best it is redundant, adding dead weight to the already-unwieldy testing rule. But more likely, it adds new requirements to what is already in the testing rule, although to extent of those requirements will only be fleshed out when we start to bring compliance actions.

What the new rule does add is another peak among the mountains of documentation the testing rule requires. We’re demanding separate recordkeeping for the representative sampling procedure on top of the documentation mandate that already exists for testing. Just two years of this recordkeeping could cost nearly $46 million, in addition to the costs for the rest of the testing rule’s paperwork. And remember, this price tag isn’t for either setting up the testing plan or doing the testing; it’s just for showing the math on the selection process for testing. Did we pause for one second to consider how to reduce the recordkeeping burden? Of course not. Did we give even a passing head nod to the direction the White House gave us this past summer to find ways to reduce recordkeeping burdens? Again, of course not.

At this rate, I expect our rule to require the documentation of the process used to document the selection processes for the documented testing plan will hit the Federal Register shortly. And a tip to traders who follow our regulatory hit parade: It’s a good time to be in the hard drive and paper businesses.

You can read my statement giving further detail to the problems of this rule here.

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2 Responses to “CPSC: NOT a Representative Sample of Good Regulating”


  1. 1 Polly Law December 14, 2012 at 1:21 am

    Hi Nancy,
    My name is Polly Law, one of the commenter of the docket CPCS-2011-0081 reduce testing burden. My comment proposed to apply Quality Management concept on CPSIA testing plan. Actually the concept is also applicable in defining representative sample. Minor modification on my previous comment should workable with the latest CPSIA rule. The previous comment had been made based on the viewpoint of a testing laboratory. I left CTL earlier this year, this enable my new comment is neutrality. I would like to send you a supplementary file for your reference. The comment is too long to post in this blog, please contact me with my personal email address.


  1. 1 December 26 roundup - Overlawyered Trackback on December 26, 2012 at 11:30 am

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