Archive for February, 2014

“Insanity: doing the same thing over and over again and expecting different results.” Albert Einstein

 For the third (or is it the fourth?) time in as many years, the CPSC is again “addressing” the issue of reducing third-party testing burdens.  For those who have already albert-einstein1commented repeatedly on this issue, Einstein’s definition of insanity may seem especially apt.  In spite of direction from the Congress to either address testing burdens on its own or report on appropriate statutory authority needed to do so, the agency has repeatedly asked for comment but done nothing to actually reduce the testing burdens that have been so well documented.

This time the agency has announced that it will be holding a workshop, on April 3, focusing on reducing testing burdens associated with the regulations dealing with phthalates and lead content and the eight substances listed in the ASTM F-963 Toy Standard.  The purpose is consider whether it is possible to determine that certain materials, irrespective of manufacturing origin or process, will always comply with agency regulations and therefore do not need testing.  The agency is interested in worldwide production processes—past, current and, interestingly, future—but only with respect to the three areas noted above.  In other words, tell them how past and current materials and manufacturing processes, and looking into a crystal ball, those that might be used in the future throughout the world show that the existing regulations in the three areas always will be complied with.  Anything else is outside the scope of this inquiry.

Because the agency’s scope of inquiry is so narrow, it follows that any relief coming out of it will also be very narrow.  So while I encourage either comments (due by April 17) or participation in the workshop (sign up by March 13), I do not have high hopes that meaningful burden reduction will be the end product.   At best, there might be a slight adjustment to the list of materials the agency has determined do not and cannot contain lead and, hence, do not need testing.  The further development of a list of materials determined not to have phthalates and the other substances listed in the toy standard may also be of help.  At worst, the information collected will go into the maw of the agency and be digested with the other information the agency has already collected, but with no further useful output any time soon, other than for the agency to look like it is busy doing something.

There have been many practical suggestions made over the past three years that, if implemented, would reduce the needless waste of resources that the testing requirements have added to the supply chain and which consumers have to pay for.  But the agency has been operating in a world that values endless process over meaningful results.

Einstein also said “We can’t solve problems by using the same kind of thinking we used when we created them.”  Unfortunately, it does not look like any new thinking will be happening soon.

Good Bye to a Dedicated Public Servant

 

Part of the satisfaction of working in government is the quality and dedication of your colleagues.  And, for a commissioner, that satisfaction is multiplied by having exceptional personal staff who can provide the necessary interface with the agency career experts.  I served as a CPSC commissioner for over eight years.  For five of those years, Joe Martyak served as my legal counsel, as chief of staff when I was acting chairman and also, for a time, as acting director of public affairs.  He did all these jobs with extraordinary competence and good grace.  After I left the commission, he continued to serve as an advisor to Commissioner Ann Marie Buerkle.  Joe has now announced that he will be leaving the CPSC, heading off to new adventures in Hawaii.  On his desk he had a sign that read:  “Just your average Joe.”  I beg to differ; Joe is anything but average.

While Joe will be greatly missed, Commissioner Buerkle has really scored a coup by enticing CPSC veteran Gib Mullan back to the agency.  Gib served as general counsel, director of compliance and was detailed to Customs when the agency was setting up its Import Surveillance Division—in other words, he has seen it all.  When he was at the agency, he was known for his deep intellect, his creativity in solving problems and his honesty—he understood the need to speak the truth even when those in power did not necessarily want to hear it. While no one can “replace” Joe, kudos to Commissioner Buerkle for bringing on such an asset as Gib Mullan.

Wanted: Corporate Psychic

§This past week the CPSC voted to publish for public comment a notice of proposed rulemaking to amend long-standing regulations (16 CFR 1101) dealing with psychic-readerinformation disclosure under §6(b) of the Consumer Product Safety Act. The stated rationale for the NPR is to “modernize” regulations written in 1983, and which, by most accounts, have been working well.  Given the opaque nature of the discussion around this NPR, a Ouija board may be a helpful tool as you read through this NPR.

The §6(b) proposed rule is a continuation of the apparent on-going effort of the Commission altering the collaborative partnership that, over many years,  resulted in successful results for consumers—altering it to one that is both more formalistic, rigid and in my view, less protective of consumers.  This effort includes mandating intrusive compliance programs in inappropriate settings, changing the voluntary recall process to add delay and rigidity among other things, and now, proposing to erode important information disclosure protections mandated by Congress and that form the basis for much of the success of the fast track recall program among other things.

Whether the agency has statutory authority to proceed as proposed is questionable but from the stand point of good public policy, there is no question that the agency seems set on a course that could change the balance that has been the hallmark of its success.

To quickly summarize, §6(b) of the statute, with accompanying regulations, states that before the agency can release information it obtains about a product that identifies a manufacturer or private labeler, it must take certain steps to assure that the disclosure is fair and accurate.  The regulations, written in 1983, seem to be working well except that they do not contemplate electronic communications (something that can be easily rectified).  Further, in its briefing to the Commissioners, the staff did not identify in specific terms how the changes would improve efficiencies.  Instead viewers of the briefing were treated to general statements, speculative scenarios and threats to go into executive session so the public could not benefit from the agency reasoning that provided the basis for the proposed rule.

The proposed rule makes a number of changes to the 1983 regulations that go well beyond “modernizing” those rules.  Taken as a whole, the proposal changes the emphasis from the agency having the proactive obligation to act in a careful and deliberate manner.  Instead information–perhaps in response to that pulled from the internet or from the latest (and generally flawed) toxic product hit list or perhaps stale information where context has changed–can go out the door and, only if the company has a psychic on staff, will it know the release is coming or be able to object. But even more important, this seems like an effort to minimize work for the agency without thought to whether consumers get better information or companies must correct inaccurate innuendos.   

The NPR will soon be available in the Federal Register for comment.  Stakeholders who care about this latest attempt to dilute the deliberate balance Congress struck in the Consumer Product Safety Act should read this proposal carefully and give the agency your views.


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