Concerning the Stay of Enforcement on lead content third party testing, there is both good news and bad news.
First the good news: We have a recommendation from the CPSC staff to extend the stay of enforcement – now slated to expire on February 10, 2011 – until September 14, 2011. This gives product makers a seven month reprieve from one of the most expensive, job-killing provisions of the CPSIA. Since the agency is required to identify a level lower than 300 ppm that is technologically feasible to become effective August 14, 2011, it is unfair to require products to be tested to the 300 ppm standard and then again potentially to some other standard shortly thereafter. This delay will also give the agency more time to finalize both the testing and certification proposed rule (the 15 month rule) and the component testing proposed rule. Both these rules are linked with the lifting of the stay.
Now the bad news: The recommendation before the Commission is for a delay only until September 14, 2011. While this extension is certainly better than nothing, I question whether this extension is long enough to accomplish all we and the marketplace need to do before the stay lifts. It is unclear when we will issue the final 15 month rule and the component testing rule. While, right now, I anticipate that we will issue both sometime this spring or summer, in particular the 15 month rule is proving to be more expensive and more complex than we initially thought.
Ideally, both these rules should be in place before we lift the stay of enforcement. As I stated in an earlier blog post, the component testing concept cannot work without its underlying rules being in place. Component manufacturers reasonably may not take on the responsibility without knowing what their continuing testing obligations would be. And without component testing, the final product makers will be burdened with the entire testing regime required by the CPSIA.
It is my understanding that while large manufacturers gear up for holiday manufacturing in late winter and spring to complete this work by summer, that is not true for medium and small product makers. The September date falls right when small manufacturers are finishing up their work for the holiday season. We are imposing a requirement in a way that unduly penalizes small businesses. Why would we do this?
As we debate the appropriate date for extending the stay, it should be kept in mind that an extension is just that – only an extension. The CPSIA requires third party testing and the Commission cannot change that requirement. Our responsibility is to impose it in a way that does the least amount of damage to those who must live with this law. Our responsibility is to try to smooth out the speed bumps and also let Congress know of the issues we are seeing with respect to this law. However, at the end of the day, third party testing was mandated by Congress and Congress needs to decide whether or not to change that mandate.
The Commission will soon be voting on the staff recommendation. Let me know how the September date impacts you.
