Archive for the 'Certification' Category



It’s He-ere . . .

Today, the CPSC’s children’s product periodic testing and certification rule goes into effect. Perhaps the most sweeping rule in the agency’s history, it was spurred by 2008’s Consumer Product Safety Improvement Act. Even before becoming effective, it has substantially affected the agency, the regulated community, and consumers. Starting today, those effects will grow.

After much debate about its details (more on that shortly), the rule is now the law. It sets massive new requirements for the CPSC’s regulated community. To comply with it, companies and labs should have developed systems and procedures to comply with the new requirements and these should all now largely be in place.

Even so, tweaks to those systems will, of course, be necessary. Some of those changes are things that manufacturers and labs can take care of on their own. Others, however, will probably require attention from agency staff and from the Commission. As you encounter problems with this rule, make sure that the agency and I hear about them. Your voice can make a difference. Already, based on pre-implementation concerns, both Congress and the CPSC have made changes to the rule. And as the rule now goes into effect, we can only expect more concerns to be revealed. When they arise, let us know about them.

Of course, as readers of this blog already know, this rule is not my ideal rule. During the many debates leading up to today, I have already filled enough of this space discussing my disagreements with the Commission’s decisions to belabor them here in any detail. To sum it up, I believe we overstated the necessity for third-party testing, ignored opportunities to make the rule more effective, created “gotcha” traps for companies, and paid lip-service to Congress’s demands that we look to make it less expensive. The result is an unwieldy rule that (because of its name) might make consumers feel safer, but holds only speculative hopes of actually making them safer. All the while, they now have the certainty of fewer choices at higher prices.

Yet, though I remain concerned about the unnecessary damage this rule threatens—and as I continue to work to improve it—make no mistake: It is the law. Companies must heed it even where they disagree with it, and violators should expect a visit from our compliance staff. We have lots of resources for helping businesses understand this rule and how to meet its demands, especially for small businesses. If you have not already figured out your plans for complying with the rule, hurry up and fix that. We surely will all learn a lot along the way, but there is no more time for waiting.

Reducing Costs of Third Party Testing While Keeping Safety in Mind

Last August, Congress passed H.R. 2715, a reform that required us to seek public comment and to devise concrete steps towards reducing the costs of third-party testing while continuing our safety efforts. I applaud those that took the time and effort to comment; I myself sent a list of recommendations to staff last December.

We have been in the process of reviewing the public comments and we soon expect to get a staff report addressing those comments. There were over 25 commenters from a wide range of industries and organizations and it has been illuminating to see the different issues experienced by both small and large businesses, domestically and internationally. Among several common themes was the overarching message that the costs of third party testing were severely impacting the global supply chain without a commensurate advancement in safety.

Here is a sample of common themes received.

  • Harmonization: One of the largest complaints from the public is the lack of alignment of international, federal, and state standards. That lack of alignment results in higher costs without additional safety.
  • Small Volume Testing: Many companies still endure high testing costs on their small volume productions simply because they fall into the mid-large manufacturer category.  The result? Companies cease to produce small runs, innovation is thwarted, and the consumer faces fewer useful products.
  • Inter-lab Variability: Commenters from several industries reported inaccuracies among laboratory results, especially with such minute levels as the 100 ppm lead requirement.  How is safety advanced when everyone agrees there are continuing discrepancies?
  • Reducing Testing Redundancies: Many large retailers require testing to be done by specific third party testing laboratories. So if a manufacturer sells to five different retailers, then the manufacturer may be required to perform the same exact test on the same exact product five times.
  • Over-defining  Standards: Unnecessary testing has been required due to overreaching, expansive statutory interpretations, including the over-broad identification of children’s product safety rules.

I look forward to the staff recommendations that should address these issues and others raised by the public. It is vital that we examine our regulations to reduce the costs of third party testing in such a way that safety is not compromised.

Start Your New Year Off Right

As you turn your calendars, there are a few things you should be keeping in mind. The Commission’s stay on the enforcement of the Third-Party Testing and Certification Rule is gone as of January 1st. So you should make doubly sure that your manufacturing program is in compliance if you make a children’s product that is subject to a testing rule.

And, if you’re a small-batch manufacturer, you should hurry up and sign up on the Commission’s Small Batch Manufacturers’ Registry here to give yourself peace of mind that you are exempt from certain testing requirements until the Commission takes further action.

Finally, and most importantly, in all of the regulations that the Commission has put out over the past two years, we have not given any serious consideration to the cost imposed on the economy. Congress, after hearing some loud complaints, decided to fix that with H.R. 2715, the law passed last summer that requires the Commission to consider ways to reduce the burden of third-party testing, among other things. The Commission published a series of questions on the issue in October, and we asked you for your ideas on the ways the Commission can reduce costs. We need your ideas by January 23rd. So submit your comments here!

I will be pushing internally to make sure that the staff and the Commission give serious, thoughtful consideration to the ways we can reduce costs, and your ideas in particular. But we can only be successful in reducing costs if we get serious—and perhaps out-of-the-box—ideas from you on how we can best achieve those reductions. So, please, help us ensure product safety in the most rational, cost-effective manner possible; send us your comments!

The Song That Never Ends

If you’re a close watcher of the CPSC Commissioner’s Statements page (and, really, who isn’t?) you may have noticed that my good friend and colleague Commissioner Adler and I have had another round on our perpetual motion statement ride. Back when we took the vote on our lead standard, we got a glimpse of this dynamic, as Commissioner Adler waited a couple weeks after the vote and my written statement explaining my vote, then issued a statement of his own, directly attempting to rebut the arguments I made in my statement.  He has done the same thing with respect to the recently-issued Testing Rule.  We are now on our third round of statements responding to each other.

As I have pointed out, I believe that the purpose of a commissioner’s written statement is to explain why a commissioner voted in a particular way.  If we use our statements as vehicles to respond to arguments made in other written statements, then the commissioner who writes last has the last word.  By using statements to explain ourselves, rather than directly to rebut others, we can guarantee that we do not find ourselves where we are now, trapped on a spinning merry-go-round.

Commissioner Adler does not share this view. In his most recent addition to the dialogue, he explained his rationale. He views these statements as an opportunity for “robust discussion and debate on the critical policy issues that come up before the Commission.” Discussion and debate are wonderful things, but, with all due respect, the time for them is before a vote. That way, the discussion actually has a chance to shape the policy issues. Statement after statement after the fact provides no such opportunity.  It risks becoming repetitive very quickly with the potential for descending into the petty.

The astute reader will no doubt be asking why I have responded to Commissioner Adler’s statements—both the Supplemental and the Further Supplemental—if I believe the entire exercise is such a misuse of the forum. The answer is simple: Unilateral disarmament may be noble, but it looks the same as surrender. If I don’t respond to Commissioner Adler’s arguments, no matter how fallacious they are, it will appear that I have conceded them. That is not so, and it would be inconsistent with my public policy role to allow such a misconception to exist.

That reality—that a Commissioner cannot let the conversation be one-sided, even if she feels it is hopelessly misplaced—is precisely why the CPSC statement format works best when it is kept to an explanation of the author’s perspective and decision. If we all stick to that approach, we give the public a clear, concise view of the arguments surrounding each CPSC action (or inaction) and an opportunity to provide informed comment on future debates on similar issues. If just one of us abandons this approach, we will all be inevitably sucked into a potentially endless exchange that leaves the reader confused, annoyed, or both.

I love Lambchop, but The Song That Never Ends is best sung on children’s television, not by the leadership of a Federal agency.

Help Wanted: Fixing the Testing Rule

Yesterday, with little fanfare, the agency posted in the Federal Register an announcement that we invite comments from the public on ways to reduce the costs of third-party testing of children’s products required under the Consumer Product Safety Improvement Act.  This inquiry is mandated by a new law (H.R. 2715) passed by Congress this past summer.  After reviewing the comments we receive, we may either implement cost-saving changes to our regulations and/or report to Congress on additional authority we need to reduce costs.  This new law explicitly acknowledges what our staff economists have told us—third-party testing by outside labs is very expensive and will result in increased costs and reduced choices for consumers. 

I remain hopeful (call me naïve!) that, with this push from Congress, my colleagues will finally get serious about addressing the costs of the CPSIA in an honest and forthright manner.  However, the recent vote on the Testing Rule, which imposes expansive and expensive third-party testing requirements beyond what is required by statute, may show this hope is misplaced.  Today I filed a supplemental statement describing why I believe that the CPSIA does not require that all periodic continuing testing of children’s products needs to be done by a third-party lab.  Had my colleagues adopted this interpretation, testing costs would have been lowered without sacrificing safety and without the months of staff time the majority’s piecemeal approach will require.

I challenge readers of this blog to respond to the Federal Register request with comments on how to lower testing costs.  Be creative and constructive in your comments!  All suggestions will be read and considered, and I will be pushing my colleagues and our staff to actually think about ways to drive down costs and adopt the best ideas we get.

Solid Floor or Trap Door

Government shouldn’t be in the trap door business. The idea is to let people know what the law is, so that we have the moral ground to penalize violations. I’m worried the CPSC’s looming testing and certification rule has at least one giant trap door built in, and it creates opportunities for abuse. 

Along with initial and material change testing by an independent third party testing lab, this rule tells manufacturers to third-party test each product periodically for as long as it’s sold. What worries me is how we’ve structured the periodic testing.

Our rule tells manufacturers to third-party test at least once a year, or once every two years if they have production testing, or once every three years if they have their own lab certified by ISO. That sounds simple enough, but we’ve left a trap door.

Those intervals are ceilings, but the rule doesn’t have a floor. Manufacturers may have to test much more often than what is outlined above, but we’re going to put all the risk on them for making the right judgment call. What the rule actually says is that products need to be tested often enough to give a “high degree of assurance” of compliance, and then it gives ten factors – all of them judgment calls – we think manufacturers should consider.

This creates a situation where a well-intentioned manufacturer could set an interval it thinks is appropriate based on our factors. Then, when we step in to investigate an issue, we get to decide on our own with the benefit of 20/20 hindsight if that was good enough, with no limits on our discretion.

The obvious uncertainty that means for manufacturers is bad enough, but, worse, it’s an avenue for abuse. When a manufacturer – again, trying to do things the right way – is negotiating with us the remedies for a problem, including monetary penalties, we could stack on extra “violations” for its failure to read our minds accurately on the testing interval.

My colleagues have told me my fears aren’t real, and there’s no way we would use our rule like this. If that’s the case, why write it this way at all? Why not just make it clear: If you don’t do production testing and don’t have an ISO-certified lab and you third-party test at least once a year, you’re fine; if not, you’re in violation of this aspect of the rule. Period. No mind reading. No guessing games. No trap doors. Just a clear rule and clear enforcement, the way it’s supposed to be.

What Does CPSC Stand for These Days?

The CPSC seems to be floundering around in the deep end of the pool without a lifeguard to save it.  What was intended to be a quick, “under-the-radar” vote to flip-flop on a rule dealing with swimming pool drains now has turned into a big mess. 

Common sense and good administrative practice say that when you reverse course, you should find out who will be impacted by your action before you do it.  This is even truer when there is no impetus for the reversal and no rallying cry or public discussion prompting you to act.

In this case, many states and local jurisdictions have relied on the guidance we gave them 18 months ago and therefore we should have determined how a rule reversal would impact them.  Since the agency refused to ask for that information, I did, and I have been getting a number of troubling letters that detail the adverse safety impacts and the financial and regulatory burdens we will be placing on those jurisdictions by this action.  These letters make clear that, had we bothered to ask the public for their thoughts in the first place, they would have had plenty to tell us. Now we have gotten a letter from the Chairmen of the two Congressional Committees who oversee our activities asking why we are taking this action without even asking for public comment. 

This is not the only instance where the Commission is rushing to regulate before the effects of potential changes are understood.  We will soon be voting on the testing and certification rule.  Our own regulatory analysis tells us that this rule will be enormously expensive.  Recently, Congress told us to better consider the costs of testing, especially to small businesses.  In response, the majority plans to push out a final rule with a vague promise to perhaps amend it before it becomes final final, after we get input from the public on ways to reduce testing costs and burdens.  So, without getting the cost information Congress told us to get, we’re going to put the rule out, then maybe change it after people have already started relying on it, thus increasing the cost even further.

Rushing out rules without concern for the consequences is becoming standard operating procedure for this agency. Between our blind rush on the testing rule and our belly-flop of a hush-hush reversal on pools, with the enormous sums of other people’s money we’ll be wasting in both actions, CPSC might soon have to stand for Consistent Producer of Sunk Costs.


Enter your email address to subscribe to my blog and receive notifications of new posts by email.

Join 930 other followers

Let’s keep the conversation going on Twitter. You can find me at @NancyNord.

Nancy's Photos

More Photos

  • 62,466 visits

Follow

Get every new post delivered to your Inbox.

Join 930 other followers