Timing is Everything

Too often important regulatory policy gets buried in the fine print.  An example of this occurred last week when the CPSC voted on its regulatory agenda for the next 12 months.  (Federal agencies are required semiannually to publish an agenda of regulatory actions they expect to take during the upcoming 12 months.)  Unfortunately I was not able to join my other commissioners in fully supporting the agenda put before us. (Read my statement on the vote.) Here is why.

About half way through this 83 page document, it is noted that, in July 2011, we plan to publish notice of requirements for lab accreditations for testing children’s products to the toy standard (ASTM F 963) and to the phthalates ban.  The significance of this announcement is that children’s products manufactured 90 days thereafter must be tested.  Therefore, if the date in the regulatory agenda holds, testing to the toy standard and the phthalates ban begins in October 2011. 

Testing to these standards may be as potentially problematic as testing to the lead standard.  The toy standard, comprised of many parts, is very complex, and is undergoing change even now.  With respect to the phthalates ban, there is no screening test in existence as yet, so destructive testing is the only option.  We have heard informally from a number of manufacturers that, when testing for phthalates, varying and unpredictable test results are the norm. 

I do not believe that we should be imposing burdensome testing requirements on small manufacturers just before the holiday season.  I have learned that, while the large companies have completed their holiday manufacturing by this fall, this is the busiest time for the small companies.  Like many of the provisions of the CPSIA, this action is tilted to advantage the big companies to the disadvantage of the small.  Because the underlying safety requirements are in place, safety would not be impacted by delaying these requirements until after the holiday season and allowing them to go into effect at the same time as the lead testing requirement. 

So what is the problem with scheduling these lab accreditation requirements a little later this year?  The CPSIA states that we can unilaterally impose testing requirements without seeking and considering public comment if we do it before August 2011.  After that time, the rulemaking requirements of the Administrative Procedures Act apply and we need to consider what impacted parties have to say.  Putting these lab requirements out later, getting public input through rulemaking, and avoiding imposing onerous testing requirements on small businesses as they finish their busiest production cycle, what’s so wrong with that?  We took the same issue of impact on small business cycle into consideration when we chose the date for staying the enforcement on lead content.  We can and should keep in mind, not just what timing is good for us, but what timing is also good for our stakeholders.

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