Archive for the 'Component Testing' 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.

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.

Regulatory Malpractice

In a decision that surprised few, the CPSC voted today to ignore common sense and regulatory conscience. We witnessed a majority putting its last grasp of political power ahead of doing what was right.

In 2008, Congress required that we put in place a rule telling the regulated community how to test and certify that the products they make meet the relevant standards. The deadline Congress imposed has long since passed, but we all agreed that the details of the rule proved much harder to write than its basic idea did. Staff put much time and effort into a rule with some solid pieces that I could support. Then the majority, all behind closed doors, summarily dismissed these changes and determined they knew better than our experts. I cannot support their changes, and I cannot ignore their tactics.

The way the majority has handled this rule is, in my opinion, regulatory malpractice. They ultimately didn’t listen to staff, they really didn’t listen to Congress, they didn’t sincerely listen to the regulated community, and they certainly didn’t listen to their fellow Commissioners. All parties pointed in the direction of re-proposal so that we could hear and learn from public comment on the significantly changed rule and the new law surrounding it. Instead, the majority seemingly pushed this through because they soon would not be a majority.

Their reckless disregard for the value of public input in writing regulations is stunning. Other agencies have sought extra public comment when proposals or facts changed. Here, we had a new law change the framework supporting a rule, and, still the majority said we will listen to public comment only after we vote out the thing the public will be commenting on.

The majority is quick to suggest that seeking re-proposal is seeking delay. That’s pure fiction. I offered an amendment to re-propose this rule in light of the statutory changes Congress made, to make the rule better and more likely to stand up in court. Under my proposal, the rule still would have taken effect within the same timeframe as the rule passed today. The majority had a chance to get this done better and faster. Instead, they blew it.

My heart aches for any family who has lost a child due to a faulty consumer product. The pain they feel can never be dismissed or diminished. That pain, however, cannot justify irrational decision-making or misuse of power.

There’s an old lawyer adage: When you have the law on your side, pound the law; when you have the facts on your side, pound the facts; when you have neither the law nor the facts on your side, pound the table. The table-pounding by my colleagues today speaks for itself.

This arrogant dismissal of input from both peers and the public on such an important vote betrays the public trust we bear to implement statutes fairly, openly, and responsibly.

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.

Majority’s Plan: Ram it through while we can

The past three days in this blog I have discussed my disagreements with the three-member majority on the Commission about the pending testing and certification rule they plan to ram through in October.

  • The proposed rule applies a one-size-fits-all approach to third-party testing that is guaranteed to be a misfit rather than requiring third-party testing where it is the most necessary (i.e., where the risk is highest);
  • The proposal needlessly sets detailed definitions of a “reasonable testing program” in regulatory stone; and
  • The voluntary component part testing rule—which holds the promise of actually lowering costs and for which work was completed some time ago—has been needlessly held back while we work on the testing rule.

I also question the insistence on rushing this flawed product through. H.R. 2715, passed just weeks ago, expressly instructed us to consider the costs of our testing rules and get public feedback on how to mitigate those costs while still ensuring the safety of children’s products.  It would make sense to get that information before we issue the rule, but the three-member majority doesn’t want to do that. I have to ask: If we don’t have time to get it right the first time, when are we going to have time to fix it?

Congress addressed another problem that I had with our proposed testing rule. The CPSIA required companies to submit “random” samples of their products for testing, but didn’t define the term “random.” It would have been good for the Commission to interpret “random” to mean that manufacturers couldn’t rig the game by choosing “golden samples” they knew would comply.

Our proposal, however, did not take that plain-language approach. It read “random” in a much more technical, complicated sense that might have meant lots of money for statisticians but little or no safety benefits beyond those of a common-sense reading.

In H.R. 2715, Congress resolved this dispute. The new law makes clear that Congress intended to prevent the cherry picking of samples by striking the word “random” and replacing it with “representative.” We could have done this by interpretation, but we chose to let others clean up our mess after the fact. Sound familiar?

 So:

  • Congress has expressly informed us that the majority was mistaken on at least one key aspect of the testing rule.
  • The new law re-shapes the landscape to require us to look at ways to reduce costs. 
  • The proposed testing rule has serious flaws that will make it more burdensome than it has to be and less effective than it could be.

Given all this, prudence indicates the path forward. We should take a few moments to re-examine what we’re trying to accomplish and how we’re trying to accomplish it. If we do that openly and sincerely, we will arrive at a better product.

Instead, because three members of the Commission want to do all they can while they still have their majority, they are poised to foist a misguided, misconceived, and likely expensive regulation on an already fragile economy. All with the promise that sometime in the future it could be fixed.  Man up and fix it now.

Ready…Fire…Aim (3)

My last two blogs have discussed shortcomings in the soon-to-be-voted-on testing and certification rule.  A third aspect of this testing and certification rule that concerns me is how it has mired another rule in an arbitrary process: our voluntary component testing rule.

The component testing rule clarifies that testing done by a component part manufacturer can be relied upon by the manufacturer of the final product.  The rule would allow component part manufacturers (like the company that makes the plastic for the teddy bear’s nose) to test and certify those component parts themselves. The final manufacturers of consumer products (here, the teddy bears) could then pass through the compliance maze more quickly by relying entirely on components that were already tested and certified. The goal of the component testing rule is to mitigate the burden of testing by spreading those costs across the supply chain.  It recognizes that, from a safety standpoint, the whole really is just the sum of its parts. And, it effectively pushes safety up the supply chain.

The component testing rule could have been issued months ago.  Indeed, all year long I have been asking the majority why they were holding back this rule and have yet to receive a satisfactory answer.  Apparently, their thinking is that if this is tied to the testing and certification rule, it will make the whole indigestible package more palatable.  They are wrong in thinking this.  And they are wrong, by holding the component parts rule hostage, to regulate with such disregard for how their actions impact those who have to live with them.


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