Of the many problems with the CPSIA, the crippling cost burden of the third party testing requirements is perhaps the most overwhelming. The Commission put a stay of enforcement of these requirements until February 2011, to buy some time to work with Congress to figure out a solution to the problem.
Chairman Waxman’s draft bill tries to address this by giving the CPSC authority to impose alternative testing methods (ATM). The questions we are now struggling with are: (1) what does this really mean, and (2) does it really help anyone. The answers are: (1) not clear, and (2) probably not much.
- Most of the tests required to demonstrate regulatory compliance probably cannot be done by a small batch manufacturer outside a third party testing lab.
- Do you really want someone to be burning products in their garage to show compliance with our flammability regulations?
- The one test small businesses could probably do is the small parts test but, strangely, that is specifically excluded by the draft bill.
- Folks point to XRF testing as an inexpensive alternative to costly wet chemistry lead testing. While we are working hard to refine that test methodology and this may be available at some point in the future, it is not here now—so when will relief happen?
- What’s the capability of a small business ‘tester’ to assess the product requirements? To apply appropriate level of precision in testing? To know if the product is compliant? To calibrate testing tools properly?
- Does this apply to foreign as well as domestic small batch manufacturers?
- How many tests can one small business person do for fellow low-volume manufacturers before becoming a ‘lab’, requiring agency recognition? ‘Firewall provisions’ to avoid undue influence?
These are just some of the questions already being asked within the agency about how this ATM might work, or not.
The point is that the Waxman language kicks the can down the road and the problem back to the agency without giving us the tools we need to solve it—and certainly not before the stay lifts in early 2011. Some think third party testing won’t be required of small businesses until alternative testing methods are identified. Who said that? That change can’t happen until Congress writes it into a bill.
When Congress was working on the CPSIA, the agency asked for the authority to require third party testing in appropriate cases. What we got was a blanket third party testing requirement. I hope that, as Congress addresses the problems that have become so apparent with the CPSIA, they will consider what the agency actually needs to strike the proper balance between safety and unneeded, burdensome regulation.
Don’t just give us an ATM that may malfunction big time.