The American Apparel and Footwear Association posted a short, thoughtful blog about the significance of the CPSIA’s anniversary, noting that the law did achieve some important safety benefits but not without some very significant and unnecessary costs. And it is my position, as a commissioner who lived through the internal debates at the agency, that the CPSC was complicit in exacerbating those unnecessary costs and complexities. The good things in the law could have been achieved without the heavy toll extracted. That the agency has not moved to reduce testing burdens as instructed by Congress is either regulatory incompetence or arrogance run amuck. But I repeat myself.
Archive for August, 2014
Tags: burden reduction, CPSIA
Tags: 1110, certificates of compliance, CPSC, Part 1110, regulation
In an apparent fit of good sense, the CPSC staff has announced a workshop to explore with stakeholders issues presented by its proposal to require that importers of products under its jurisdiction file electronic certificates of compliance with CPB prior to importation. This electronic filing requirement was only one of many controversial proposals found in the agency’s notice of proposed rulemaking to amend 16 CFR 1110 dealing with certifications of compliance. The agency received many comments to the NPR, almost all of them very critical of the proposed amendments.
Here are the specifics as announced by the agency. The workshop will be held on September 18 at the agency headquarters in Bethesda, MD. Those who wish to present needed to notify the agency by August 8, so the dogs and the ponies have already been chosen. If you wish to attend in person, as opposed to viewing the webcast, you must notify the agency before September 5. However, if you wish to file written comments, you may do so before October 31.
It is pretty clear, both from the number and tenor of the comments received and from the announcement of the workshop itself, that the agency is really struggling with the details of implementing an electronic filing system. No doubt part of the struggle comes from the fact that the agency is trying to do way too much in the proposal.
For example, the current pilot-scale RAM (risk assessment methodology) program allows the CPSC to analyze CBP import data to identify high risk cargo for inspection. The agency seeks to expand this pilot program and apply the RAM analysis to all imports under its jurisdiction and sees electronic filing as essential to this expansion. Perhaps a more gradual roll-out would be a more rational approach. As another example, the NPR seeks to support the President’s Executive Order 13659 calling for the modernization and simplification of the trade processing infrastructure, but again, the details of the NPR add complexity rather than simplicity. Many comments made the point that CPB processes do not align with the NPR requirements and will not for some time, if at all. And there is still no explanation why common carriers are being required to take on the legal burden of filing certificates when they have no way of policing their accuracy.
The staff recognizes that the proposal presents both practical and logistical problems and asks for suggestions and solutions for solving those problems. My advice to those participating is to honor this request. While the agency staff is very good at many things, here they are operating in waters where they are not expert. Unfortunately, the staff also listed a number of issues that are off the table for discussion during the workshop. Many of those items touch on the topic of electronic filing so, by walling off the topic in this narrow way, the staff may not get the value they need from this exercise. (Of course this is the same approach that was taken in the recent workshop on phthalates determinations.)
It is pretty apparent that it is going to take more than just a workshop for the agency to come up with a sensible proposal that works efficiently within the bigger trade processing picture. It is unfortunate that the collaboration that use to exist between stakeholders and the agency has been so weakened over the past several years, because honest dialog between trusted partners is what is needed to solve the many problems in the NPR. An ongoing effort, organized by a trusted third party with trade expertise, could perhaps work through the many issues raised by the comments so that what comes out of the process is–to paraphrase Mick Jagger—not necessarily what the agency wants but what the agency needs.