Yesterday, I discussed how the Commission fell short in considering and presenting the costs of our 1110 rule (on certificates of compliance). Today, I examine how we (mis)handled the tricky question of how the certificate rule fits with banned products.
The Consumer Product Safety Improvement Act of 2008 handed us a seemingly strange mandate. We were to require any manufacturer or importer of a consumer product to issue a certificate specifying any “rule, ban, standard, or regulation applicable to the product” and certifying conformity thereto. For rules, standards, and regulations, that makes plain enough sense, but certifying that your product is not banned might seem a little odd. Read too broadly, requiring something to certify that it is not banned could lead to absurd results. Think of requiring baby blankets to certify that they are not lawn darts. Or a hammer needing to certify that it is not general apparel containing asbestos.
Congress left it to us to implement this requirement reasonably. Our proposal almost does so, but, as with the costs, we have buried the lede. Portions of the rule discuss how individual bans interact with the certificate rule, but the rule does not provide any general guidelines to help a company determine if a ban relevant to its products requires certifying, “this is not banned.”
Our staff strived mightily to give some reasonable content to the requirement. They looked through the CPSC’s bans and saw that some appear to ban whole categories of products, while others ban only part of a product category. In particular, if a product was subject to a specific test, it appears easier to identify the products to be tested, and those that could pass the test would have to certify to the ban. (Those that failed would, obviously, be banned.) Some of staff’s helpful language appears in the rule’s preamble, but preambles do not appear in the Code of Federal Regulations, where companies and their counsel will look in years to come. Following staff’s efforts, I proposed amending the draft NPR to include this principle in the rule.
Certificates are required for products which are subject to a ban when the banned characteristics defined by the language of the ban do not define the whole product category within which the banned products fall and the products are not specifically excluded from the ban.
I also wanted to ask, in our request for comment, if our ban certificate language was clear. My colleagues rejected both these ideas, though they did at least agree to ask the public about staff’s assessment as expressed in the preamble. Where failing to include a required certificate could trigger civil or even criminal penalties, I think we owe a cogent explanation of the rule, and I hope you will tell us what you think of the principle, its application as staff indicated, and whether the principle belongs in the actual rule.
More of my thoughts on the weaknesses of our 1110 proposal tomorrow.