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The Song That Never Ends

Published November 21, 2011 Certification , Children's Products , Component Testing , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing Leave a Comment

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

Published November 9, 2011 Certification , Children's Products , Comment Request , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing Leave a Comment

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.

Playing Games with Safety Information

Published November 3, 2011 Consumer Product Safety , CPSC 4 Comments

One of the key roles for the CPSC is to educate consumers about safety in their daily lives, ranging from Halloween costumes and holiday lights to carbon monoxide from generators and cribs with faulty parts.  I am alarmed, then, that the agency’s leadership apparently decided to put process before safety when it comes to window blinds.

For many years, the CPSC co-sponsored National Window Covering Safety Month with the Window Covering Safety Council (WCSC). (This is one of the many cooperative safety efforts the agency co-sponsors with outside groups on a regular basis.) With more than two billion window coverings in American homes, it is imperative to educate consumers about reducing accidents related to this widely-used consumer product.  The risk is that small children may become entangled in window-covering cords and strangle. The CPSC did not collaborate with the WCSC on this important message this year.

I disagree with this decision for two key reasons. First, some speculate that the agency’s leadership did not want to associate the agency with the WCSC because the ANSI standard-writing process was supposedly not moving in the right direction. But the WCSC is an independent group of manufacturers, retailers, and importers and is not involved in developing the standards at ANSI. So not collaborating with the WCSC on general safety messages appears counter-productive and unjustifiably punitive.

Second, the new standards will not deal with any risk that may exist with the vast majority of already-installed window coverings. In light of this, shouldn’t we use every major communication tool to inform consumers how to safely use window coverings currently in place?

People should be outraged if government information that might prevent an injury or death is not fully disseminated because of concerns about who has what position on writing a future product safety standard. Consumer safety should not be held hostage.

Regulatory Malpractice

Published October 19, 2011 Children's Products , Component Testing , Congress , Consumer Product Safety , CPSC , CPSIA , Jobs , Lead , Risk Analysis , Small Business , Testing 1 Comment

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.

Major Rule, Major Costs

Published October 18, 2011 Children's Products , Congress , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing 1 Comment

For those of you who aren’t experts in the field of administrative law, when an agency issues a significant new rule, it has to do what’s called a Regulatory Flexibility Act analysis, also known as “Reg Flex”. That’s not Calisthenics for Commissioners (though that’s not a bad idea). It’s a report that examines the impact a new rule will have on the economy, and specifically on small businesses.

The Reg Flex analysis for the testing rule we will vote on tomorrow looked at the costs of this rule, especially on small businesses.  Here is some of what our staff is telling us:

  •  This rule “will have a significant impact on all firms” making children’s products.  For example, the staff estimates that for large firms, increased testing costs will be approximately 1.2% of revenues.  For small firms, testing costs as a percent of revenues could be expected to increase to a staggering 11.7%. 
  •  The rule will have this financial impact on all manufacturers and importers of children’s products.  While we do not have a good handle on precisely how many firms this may be, it will be in the hundreds of thousands of firms.
  •  The testing rule “could be a barrier that inhibits new firms from entering . . . the market.”
  •  Impacted companies may “forgo or delay implementing improvement to products’ design or manufacturing processes in order to avoid the costs of third party testing.”
  •  Firms may be able to mitigate “the adverse impacts if they are able to raise their prices to cover their costs.”
  •  “The impact is expected to be disproportionate on small and low-volume manufacturers.”

At a recent briefing on this rule, one of my colleagues suggested that we already have done everything we can to reduce the costs of this rule.  What I believe he was saying is that we have done everything three Commissioners are willing to do to reduce the rule’s cost.  There are a number of things we could actually do to bring down the testing costs imposed by this rule.  Some of those things are even suggested in the Reg Flex analysis.  And we could still have a robust testing rule to address safety concerns. 

We know that this rule will burden our economy.  Our staff says so.  Because Congress was concerned about the high costs of testing, it recently told us to seek out ways to reduce the testing costs in this rule.  Therefore, before issuing this rule, we should do as Congress asked and look at ways to reduce the costs of testing consistent with assuring compliance with our safety standards. 

Unfortunately, politics often trumps good policy here at the CPSC, so tomorrow we will issue a final testing rule and then look for ways to reduce costs of the rule we are issuing.  Talk about putting the cart before the horse!  And this approach certainly raises the question of how sincere the effort to reduce costs will be. 

While we all agree on the goal of child product safety, I am convinced we can achieve that without incurring the staggering costs identified by our staff.

Solid Floor or Trap Door

Published October 17, 2011 Certification , Children's Products , Component Testing , Consumer Product Safety , CPSC , CPSIA , Lead , Small Business , Testing Leave a Comment

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.

Hope you have a Subscription to the Federal Register

Published September 28, 2011 Comment Request , Consumer Product Safety , CPSC 1 Comment

Things went according to the majority’s predetermined plan this morning when the CPSC voted to reinterpret the definition of “unblockable drain,” reversing an earlier interpretation and costing states and municipalities significant sums to either reengineer perfectly safe swimming pools or lock the gates. In a small nod to process, the majority did agree to accept comments from the public. But they did not want to hear comments on the wisdom of the reinterpretation, but only on when should we start enforcing the change.  As I said during the meeting this morning, it’s like saying “we’re going to guillotine you, now tell us what day would be convenient.” 

I would urge everyone who is impacted by this action to take the commission up on its offer.  I hope you will comment and I hope you do not limit yourselves to discussing the effective date.  Policymakers need to hear from those who are impacted by what they decide. 

And, by the way, if you are looking for a press release that explains what the Commission did this morning, don’t bother.  Rather than announce our action to the public like we regularly do, some selected few will get an email about this from our press office and everyone else will have to read about it in the Federal Register. 

Read my statement on this vote here.

What Does CPSC Stand for These Days?

Published September 27, 2011 Certification , Congress , Consumer Product Safety , CPSC , CPSIA , Small Business , Testing 3 Comments

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.

Willful Disregard for Public Experts

Published September 23, 2011 Consumer Product Safety , CPSC 1 Comment

Lovers of due process should tune into the CPSC webcast next Wednesday, September 28, to see arbitrary agency action at its finest.  We will have several matters before us where the majority of commissioners plan to blow away any pretense of fair and open process.  In the first instance, the agency will be making an about-face on a rule dealing with swimming pool drains without even bothering to put the question out for public comment.  (For the specifics of this issue see my blog post) In the second instance, we will be briefed on finalizing one of the biggest and most expensive rules in the history of this agency, effectively ignoring congressional direction to seek comment and tailor the rule to better reduce costs. This is really a lousy way to regulate. 

With respect to the swimming pool drain matter, 18 months ago we put in place, by a 3 to 2 vote, a rule interpreting the new pool safety law.  Since that time all fifty states have been working hard to implement our rule.  However, next week we will reverse our rule because one commissioner who voted in the majority has changed his mind on what the law requires. The result may be to make irrelevant much of the hard work those states have been doing.  When I asked if the agency had new data or a new legal interpretation to justify reconsideration of this matter I was told, “No.”  When I asked for a staff briefing of the commission on this matter, I was told, “No.”  When I asked that we contact the states asking for input on whether the proposed new course of action made sense, I was told, “No.” 

Despite the agency’s refusal to get data, I reached out to several state health officials.  I was shocked by what I was told.  First, there is strong dismay that a reversal is being considered.  Second, this reversal will have serious financial implications for the states that relied on our current interpretation.  Third—and most importantly—this reversal will have serious adverse safety implications.  Here is some of what I was told:

  • Illinois:  Our current interpretation is “reasonable, practicable[,] and meet[s] the intent of the law . . . we were put through the wringer to meet the requirements of the new law and now you want to upset the apple cart.”  The reversal “absolutely has safety implications” and “this will make the situation less safe.” 
  • Minnesota:  Approximately 1,000 pools in the state will be impacted.  The secondary back-up system does not have the proven reliability and does not prevent evisceration incidents that have been cited as justifying the change. 
  • Nebraska:  The state relied on our current interpretation; a reversal would impact several hundred pools and would have financial impacts especially for rural communities.  Reversing our policy does not advance safety. 

Other states have given me similar comments. As I receive the emails and letters from the states I am sharing them with my colleagues.  The fact that I, as an individual commissioner, had to do this outreach rather than the agency asking for comment from the public is inexcusable. 

But apart from the process, what is worse is that we are actively ignoring the experts in the states who have direct responsibility for assuring pool safety.  I would sooner rely on their arguments than those of colleagues who have no expertise and who, as we have seen, can always change their minds.

Jumping off the High Dive, Blindfolded

Published September 19, 2011 Consumer Product Safety , CPSC , Risk Analysis 2 Comments

Would you jump into a swimming pool without looking just because a colleague told you to do it? Wouldn’t you want a little more information?

Well, that’s exactly what the Commission is about to do as it votes again on the question of what constitutes an unblockable pool drain. This vote will really be a pre-determined decision to flip-flop CPSC policy based on nothing more than a single Commissioner’s change of mind.

The Virginia Graeme Baker Pool & Spa Safety Act requires that pools either have unblockable drains or have back-up systems that will shut down the suction in the pool when those systems sense that a drain is blocked. Approximately 18 months ago, after public input, we interpreted the law to mean that a drain with a properly installed unblockable drain cover constituted an unblockable drain, so that a back-up system was not required. This interpretation was based on advice from our lawyers and technical staff. It also had the effect of preventing drowning from happening rather than addressing the problem after a person ran into trouble. The vote was 3 to 2, with Commissioner Adler joining Commissioner Northup and me in approving the interpretive rule. Since then, he has changed his mind.

Though Commissioner Adler has the right to apply his own opinion to our statutes as he votes (even changing his mind 18 months after a vote), prudence says practical realities should always inform our policy decisions. Among other things, we should consider how many people relied on what we told them 18 months ago and the impact of that reliance. I myself am open to opting for a new course if the record and arguments before us make the case. A majority of the Commissioners apparently believe we don’t need to consider any record, arguments, or practical realities, just vote.

Commissioner Adler says he is “a big fan of information,” but we will have none. He has said he is “dead set against” including that information in the conversation. He tells us it isn’t necessary, and the Chairman agrees. Sadly, they’re right since the outcome of this vote is predetermined and now we are only going through the motions. Having actual data and information would be necessary for a genuine exchange of ideas followed by a vote that relied on that exchange.

Three Commissioners are again stonewalling, saying I will have to agree or disagree with Commissioner Adler’s change of mind in a vacuum. Would a Request for Public Comment be such a bad approach here when the agency is reversing a policy developed after public input and relied upon by the public? Our staff is instructed not to ask the public now to comment on this issue. In fact, at a recent meeting, I was told it was “out of turn” for me even to ask why we wouldn’t have any of that vital information.

We’re told that’s because we already “know what we’re going to know,” and the majority has ensured that statement is true by making sure we don’t accidentally learn anything else. All we will have is Commissioner Adler’s changed mind. Sounds like regulating in willful ignorance. Shame on the Commission.

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