Archive for August, 2013

Crunch Time at the CPSC

We all know about crunch time—when it becomes apparent that projects are getting backed up and everyone is going to have to work like dogs to try to get the work done. Well, as summer fades and autumn beckons from around the corner, it’s crunch time at the CPSC. While no one can be certain (because deadlines can get pushed in any bureaucracy), based on our FY13 Operating Plan and the Mid-year Update, here are some of the issues I anticipate will soon be hitting our desks for decisions:

  • Final Rule on rare earth magnets;
  • Notice of Proposed Rulemaking on the CPSC staff’s role in voluntary standards committees;
  • Notice of Proposed Rulemaking on voluntary recalls;
  • Notice of Proposed Rulemaking for § 1101 with changes related to §6(b) of the Consumer Product Safety Act (CPSA) about public disclosure of information obtained under CPSA;
  • Final Rule for § 1110 Certificates of Conformity; and
  • Operating Plan for Fiscal Year 2014 (which begins October 1st).

We will have busy times ahead with important regulatory issues. Get ready to comment, participate, and track where appropriate.

CPSIA’s Fifth Anniversary

On August 14, 2008, Congress passed and the President signed the Consumer Product Safety Improvement Act (CPSIA). It contained new regulatory authorities and enforcement tools (many of which I suggested to Congress when I served as acting chairman) to make it easier for CPSC to find and recall unsafe products made around the world. Five years ago today, the agency began to follow through on my pledge to implement the law fully and fairly. Unfortunately, as time progressed and the Commission expanded, that has not always been the path the agency has taken.

While CPSIA contained important provisions such as making it illegal to sell recalled products and emphasizing import surveillance, it also contained provisions with little foundation in science. For example, lead limits were arbitrarily drawn and made retroactive so that products safe on store shelves, or even children’s books on library shelves, were safe one day and suddenly unsafe the next day, confusing the consumer and the marketplace. Incongruously, the lead content of a screw on the back of a children’s night table that will never be touched by a child was treated the same as the lead content of a toy frequently handled and mouthed by that child. While CPSIA did give the agency some authority to determine the lowest lead content level in children’s products, here, as in other instances, the Commission chose to over read the statute, even when staff indicated any safety benefit of further lowering the limit was minimal.

While some tout the fact that CPSC passed rules requiring third-party testing and continuous testing of children’s products, omitted is any mention of the unnecessary burden from testing that goes beyond what is required for safety (and required by the statute). Even Congress realized the economic burden of testing was having serious unintended consequences and therefore directed the agency to review opportunities to reduce the cost of such testing consistent with assuring compliance with safety rules. Again, the Commission effectively ignored the consequences and, in a shocking disregard for Congressional direction, indicated it would address such burdens when it could get around to it.

Consumer safety has been and will always be the core of our agency’s mission. As stewards of taxpayers’ resources, we are also obligated to achieve consumer safety in ways that impose the least burden necessary on taxpayers and the economy. It’s not consistent with either the law or our obligation as public servants to regulate excessively or without regard to appropriate limits.

We all agree something like CPSIA was needed to improve the agency’s effectiveness. Nonetheless, we should regulate with no heavier a hand than necessary to reduce unreasonable risks to consumers. Over the past four years, the CPSC has not done that. CPSIA implementation could have been equally effective, but at a lesser cost. That is one lesson that is being conveniently forgotten as we reflect on the law’s impact.

Meet Me in St. Louis

This past week I had the honor and pleasure of addressing the graduating class of the product safety management course at the Cook School of Business at St. Louis University. The program is one of only a few executive education programs focused exclusively on training corporate product safety compliance managers. The graduates were engaged and knowledgeable, but also realistic in understanding the challenges they face in managing the increasingly complex job of successfully integrating safety into a global supply chain in a way that assures compliance with our regulations.

As an exercise, we undertook a mock hearing paralleling the priorities hearing the Commission held several weeks ago. The “student witnesses” testified before me (representing the  Commission) about issues to which they believe the agency should be giving increased attention. Their “testimony” was informed by the studies they have been doing over the past several months.

Interestingly to me, what I heard paralleled in many ways the messages we heard from the Commission’s July priorities hearing. While the students had suggestions for specific products that they believe present risks and warrant additional attention, several themes also came through loud and clear. For example, we spent much time talking about the alignment of international standards and the preemption of state standards. In their work back at their companies, they have seen the problems caused by  diverse standards all addressing particular risks but in different ways. Additionally, we discussed the sometimes overwhelming challenges that smaller- to medium-sized companies face in trying to understand and comply with rules that they see as unnecessarily confusing. The message was that while safety is a core value, contending with hard-to-understand rules that seem to have requirements that do not necessarily advance safety—while still consuming scarce resources—is hard to justify.

In the end, I found the experience heartening. It is great to see the marketplace—and the education sector—responding to new safety challenges with training to help companies further develop the management processes to assure safety in their companies and products and compliance with the law. Although it may be frustrating to hear more about the difficulties created by poorly crafted, poorly understood rules coming out of the CPSC, one sees dimly the hope of a reinvigorated community of the regulated and the regulators, working together to craft sensible rules that improve safety effectively and reasonably.

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