This week, I’ve examined the Commission’s shortcomings in proposed changes to Part 1110, our rule on certificates of compliance: we hid costs, we failed to clarify how certificates intersect bans and testing exemptions, and we created discordant “harmonization” in recordkeeping. Today, I’ll wrap up my thoughts on the proposal with three questions, one question my colleagues were willing to ask and two where they found the notion of hearing from you bafflingly uninteresting.
Electronic Records Access
The proposal requires electronic certificates to be in an accessible location without password protection and identified on the product, its packaging, or its invoice, so our staff, our partners at CBP, distributors, and retailers can have ready access. In principle, that requirement seems reasonable. My concern, however, is that this makes them available to everyone (something the statute does not require), even people who might use them for illegitimate purposes. We have included a request for comment on how to ensure easy access only for the people who need the certificates.
Direct-to-consumer International Sales
I recently purchased from a British company whose shoes are unavailable in the US. Who should certify them? The company, with no U.S. expertise (and, arguably, no legal title to them after they accepted my payment)? The shipper, with no direct knowledge? Me? And what value would that certificate have?
I wanted to consider exceptions for single transactions between entirely foreign companies and US consumers. I did not expect agreement on the idea, but I also did not expect vehement opposition to even thinking about it.
First, my colleagues worried reasonably that we lack the authority to make an exception. But this was merely a question, and we plainly have statutory authority for that. A lack of authority might be a hurdle to a solution, but it should not prevent us from exploring a problem. Second, they raised policy disagreements. Those are fine reason to vote against the policy but insufficient justification for squelching debate.
I wanted to request comments about potential redundancy. For example, we have a rule governing small parts in toys for children 3 or under and a broader toy standard that incorporates that rule. As it stands, a certificate will have to show compliance with the overarching standard—which incorporates small-part compliance—and compliance with the small part rule. This redundancy adds to the proposal’s nearly half-billion dollar annual price-tag, so it we should at least inquire into its value.
My colleagues rejected the notion, calling my question “murky” and expressing preference for the status quo. With respect, dissatisfaction with language calls for improving it, not dismissing it wholesale, and defaulting to the status quo is the hallmark of unresponsive government. An idea that has outlived or exceeded its usefulness should not survive by inertia.
One colleague added that he was initially inclined to include my question, but reversed after our staff suggested redundancy eases enforcement. This is the kind of discussion we could and should have had with the public, and it demonstrates we lack information public comment could provide. Perhaps consensus would have formed that the enforcement benefits outweigh any waste, but we should solicit public input, not presume it.
Even though my colleagues were unwilling to ask these questions, nothing prevents you from answering them anyway. The comment period will run 75 days after the proposal hits the Federal Register, and we will all be better off the more we hear from the all corners of the public about what we got right and what we could do better.
While I have focused on issues raised in the public discussion of this proposed rule, there are other equally (if not more) important issues that need to be addressed. For example, requiring electronic certificates is an important change that merits public input, as is the proposed mandate for common carriers, as “importers of record,” to be liable for certificates. The new content requirements are also important changes.
I do hope that the agency will take the time and make the effort to craft a certification rule that improves safety without imposing undue burdens. But if any hope of doing that demands public input. So, you need to provide that input, and we need to listen to it.