Archive for the 'Burden Reduction' Category

Steps Forward; Steps Back

Now that August is over and Labor Day is but a memory, it is time to focus on how the twostepsforwardCPSC spent the closing days of summer.  On a positive note, the agency was able to push forward helpful initiatives that ease compliance costs without diluting safety.  Then they had to put a damper on this positive glow with threats of resurrecting the discredited and flawed proposals dealing with voluntary recalls and public information (the §6(b) rule).

Forward Steps

The recently published NPR interpreting the fireworks rule is one of those steps forward.  The fireworks regulation has been on the books for several decades and is sorely in need of updating.  Among many other things, the regulation is designed to address overloaded fireworks but does so in a less-than-straight-forward manner.  It bans fireworks “intended to produce audible effects” if those “audible effects” are produced by using more than 2 grains of pyrotechnic composition.  Rather than measure the pyrotechnic materials in the fireworks device to determine compliance, for years the staff has listened for the intensity of the sound produced by the device to determine if it was intended to produce audible effects or whether the sound produced was merely incidental to the operation of the device.  The staff’s determination as to how loud the device was, based on what a staffer heard, was hardly either objective or measurable and has resulted in compliance actions that have been criticized for lack of objectivity.

The American Pyrotechnic Association has a standard that actually measures the presence of materials that may be used to produce an audible effect.  The APA standard has been adopted by the Department of Transportation regulations that deal with the shipment of fireworks.  The proposal, which has been pushed by Commissioners Robinson and Mohorovic in particular, would adopt the APA standard as the testing measure for the CPSC as well. An objective standard would add clarity both for the staff who must make compliance decisions, and the industry which can stop worrying that compliance is dependent on a staffer’s ear.

Another example of a “step forward” is a proposal determining that four types of plastics used extensively in children’s products do not need to be tested for the presence of phthalates.  This proposal would put into action what product manufacturers have been telling the agency for some time—phthalates are not added to these substances and so testing for them both is unnecessary from the standpoint of safety and is costly and burdensome.  This proposal, which has been a long time in the making, compliments the flexibility found in the 2009 statement of policy on phthalates testing and, hopefully, should provide some relief to a number of manufacturers and importers.

Backward Steps

However, the Commissioners could not end the summer on a positive note.  Instead, on the last day of August, the Commissioners met to talk about their regulatory priorities for the upcoming fiscal year.  Observers of the agency are well aware of the controversy engendered by the agency proposal to significantly change the way voluntary recalls are negotiated and agreed to.  Similarly the proposed changes to §6(b) dealing with how information about individual products is made public would distort the statute and surely subject the agency to needless litigation. I have discussed the problems with these proposals in detail, and the Congress has told the agency to cease and desist.

Chairman Kaye has repeatedly expressed his lack of interest in moving forward with these two troublesome proposals.  However, each time he has been given the opportunity to vote to remove them from the agency’s regulatory priorities list, he has refused to do that.  At the recent priorities hearing he was given yet another chance to do that and he did not step up.  Instead, Commissioner Adler, a staunch foe of §6(b) and a supporter of the voluntary recall rule, announced that he would be trying to draft a “compromise” to offer at some unknown point in the future (and not specifying if that would be before or after the elections).  For those who thought that perhaps these two ill-conceived proposals were behind you, do not be so sure.  Commissioner Adler’s gambit may provide the excuse 3 Commissioners need to defy logic, good public policy and the Congress to promulgate these divisive and poorly thought-through rules.

Writing a Regulatory Punch List

Everyone needs to clean out the attic from time to time.  Through that process, you often come across things that you want to keep, that need to be repaired in order to be useful and that are just out of date and can be tossed. Featured image

With that in mind, this past week the CPSC published a draft plan for retrospective review of its existing rules—that is, a plan to develope a punch list for rules that need review.  The agency is asking for comments on the draft plan and those comments are due by December 28, 2015.  The draft review plan pushes forward the commitment the commissioners made earlier this year to engage in meaningful review of rules that are already on the books to identify regulations that are obsolete, excessively burdensome, counterproductive, ineffective or in need of modernizing.  Unlike the Commission’s earlier effort in 2012, this plan makes clear that all rules are potential candidates for review.  And it provides a mechanism for getting the public’s suggestions for rule review candidates.

The draft plan shows a commitment on the part of the agency to undertake a serious review of its rules.  But it remains to be seen whether this will be a plan with any teeth behind it or just another empty head-nod to good administrative practice. I do note that the plan does not include dedicated resources for implementation. And, importantly, it does not include a continuing commitment to provide for a review plan and metrics for that review in all new rules the agency issues.  That would be a helpful addition to assure that this plan does not just get stuffed back up into the regulatory attic to languish.

Summer Reading

August is here, Congress is leaving town and it is time to settle in by the pool for a good read.  Let me recommend a few Woman-Reading-By-The-Poolthings.  For those looking for something light and frivolous, I recommend the CPSC’s proposed direct final rule instructing that only those toys made from the trunks of trees (Just the trunks?  Really?) will be exempt from pre-sale testing for heavy metals.

However, for a more thoughtful perspective not only on this rule but also on the overly-constrained approach a majority of Commissioners have adopted to trying to provide relief from its overly burdensome testing rules, I recommend Commissioner Mohorovic’s statement accompanying this rule.  He has rightly pointed out that the Commission has framed its work on burden reduction in such a way that real, meaningful results—that reduce costs without compromising safety—will be almost unachievable.  As the Commissioner states, where testing costs add a safety value then those costs are worthwhile, but where testing is required for the point of testing, as is the case under the CPSC’s current approach, then valuable safety resources are being squandered.

To further round out your CPSC reading list, be sure to check out the CPSC Commissioners’ blogs.  You can find them on the agency web site. I was so pleased to see that the Commissioners now are able to post blogs on the web site. This was not true back in 2009 when I started “Conversations with Consumers.”  To write and post a blog I had to go outside the agency and set it up privately.  Check out the Commissioners’ blogs from time to time to get a sense of what issues are of special interest to the leaders of the agency.

Defining “Wooden-Headedness”

In The March of Folly, historian Barbara Tuchman writes:

Wooden-headedness, the source of self-deception, is a factor that plays a remarkable large role in government.  It consists of assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs.  It is acting according to wish while not allowing oneself to be deflected by the facts.

Late last week the CPSC Commissioners voted to write Ms. Tuchman’s definition of “wooden-headedness”  into the Code Le_avventure_di_Pinocchio-pag046of Federal Regulations by issuing a direct final rule to give long-awaited “relief” from the burden imposed by its third party testing rules as directed by Congress way back in 2011[1].

The Commission has been promising relief from its burdensome testing requirements but has been doing everything it can to avoid doing anything since 2011 when Congress first directed it to take action.  Now after four years of study and promises to Congress (even as recently as last month), the Commission has found [INSERT LOUD DRUM ROLL HERE] that toys made from unfinished and untreated wood from the trunks of trees do not have to be tested for the presence of seven heavy metals regulated by the toy standard.

The Commission’s action last week is justified by a contractor’s study which is itself a study in the precautionary principle run amuck.  The contractor was tasked with doing a literature search looking at the same natural materials (untreated wood, fibers such as wool, linen, cotton or silk, bamboo and beeswax among other things) which the Commission exempted from testing for lead back in 2009.  Yet only for trunk wood was the contractor able to report sufficient data to show no presence of the suspect heavy metals in concentrations that violated the toy standard.  For most of the other materials there was insufficient evidence reported to show the absence of violative concentrations of the heavy metals. The contractor, however, did find that a report that wool from sheep dipped in arsenical pesticides (which are no longer used) had high concentrations of arsenic as did wool from sheep grazing next to a gold smelting mine.  In other words, if the contractor, in doing its literature search, found a study documenting a problem, then the material was disqualified.  If the contractor could not find a study documenting a problem, the material was also disqualified on the basis of insufficient information.

Back in 2009, the agency staff was able to make rather more expansive determinations quite quickly and efficiently, without expensive contractor studies, and to my knowledge, public health and safety has not been threatened by this action.  The current agency action seeks to take the smallest, most ineffectual step possible and then point to a constrained reading of the statute and an inconclusive contractor study to justify inaction.

Congress told the agency to take action to reduce testing burdens or report back if statutory impediments required Congressional action.  The agency has done neither.  Instead, the Commission, on several recent occasions, has promised Congress that action on test burden reduction will be forthcoming.  One hopes that limiting testing exemptions to toys made from tree trunks is not what the Commissioners had in mind when those statements were made.  It is hard to believe that Congress will find this a satisfactory response either.

So if you use bamboo or perhaps linen or beeswax in crafting your toy, you are out of luck because there is no evidence these materials are unsafe.  For those small businesses out there who might make a toy from a tree limb or decorate the toy with bark or twigs, you are also out of luck!  And if you are looking for clarity, too bad.  As one of my friends in the small business community said when she heard about this, “Is a branch 12 inches in diameter a trunk? Do I need to ask the lumber yard if the wood came from a trunk? Will they even know? Will I need to have proof the wood came from a trunk?  It just comes across as comical.  Is there value in this determination?  I suppose, but for many it is just too little, way too late. Four years late to be exact.”

The fact is that public health is not impacted by toys that include components of natural materials—the agency’s experience with lead has shown that.  Indeed, the natural materials exemption is a very narrow one and hardly opens the flood gates to testing avoidance. One must ask why the agency is so adverse to finding a workable solution to reducing testing burdens.  Wooden-headedness brings about wooden thinking.

[1] Direct final rules are reserved for those rules that are noncontroversial, and usually deal with routine, narrow or non-substantive matters. They go into effect unless someone objects.  In this case the rule, and the testing relief it proffers, could not be more narrow.

The Real World Speaks; The Government Does Not Hear

Last week I traveled to St. Louis University to speak to students attending the school’s Product Safety Managementst-louis-cityscape Course.  This executive education course is presented by the Center for Supply Chain Management Studies at the Cook School of Business at the University and is unique in presenting a concentrated focus on product safety-related issues.  I was asked to discuss how the CPSC is organized and how agency policy and decisions get made and I discussed my perspectives, as a former commissioner, on the agency’s seemingly more contentious and less collaborative approach to product safety.

The class was made up of professionals from small, medium and global businesses with backgrounds that included law, engineering, business and science. The joy of opportunities like this is not only having several hours with engaged and very smart professionals in the classroom, but also having time outside of class to interact informally.  While I hope I imparted knowledge, I know that I learned a great deal.

Boiling it down to a sentence, here was my message to the class:  The CPSC is moving to more aggressive and expansive regulations and more aggressive and punitive enforcement.  For companies that want to stay out of the agency’s sights, they should consider, among other things,

  • implementing strategies to update and fine-tune their compliance programs;
  • making sure that they have appropriate written procedures for addressing safety complaints and can demonstrate those procedures are followed;
  • having and being able to show good control over their supply chain;
  • keeping good records to show a testing program, test results and compliance with applicable regulations; and
  • registering for the Business Portal of the Public Database as one device to know what some consumers are saying about their products.

Of course, safety must always be a core value of the company, and at all levels, including senior management.  Unless that is true, none of these efforts will be truly effective in minimizing a company’s exposure.

I also learned a great deal from the students.  One message especially resonated since it came from several different class members from different types of companies.  These students described the importance their companies placed on regulatory compliance in the face of very constrained resources.  They described the challenges of complying with different regulatory approaches to addressing the same risks, on local, state, national and international levels.  They described different testing methods to measuring compliance—tests mandated by regulatory bodies in the U.S and abroad and by cautious retail customers who want to assure that the CPSC does not appear on their doorstep and have the market power to make those tests happen—with all these tests differing one from the other.  The complaint I heard was that there is an expectation of compliance with no realistic understanding of the level of resource needed for full compliance, given the complexity of the myriad rules that have now been issued.  Nor is there any effort, or feeling of responsibility, on the part of the government to simplify those rules to make them less burdensome so that compliance can be more realistically achieved.

Bottom line from my Midwest journey:  The real world speaks but the government does not hear.

Seeking the Promise in Compromise

In an especially insightful column this past week, political analyst Michael Gerson noted that often policy-making is as much about methods as it isimages about outcomes. The manner in which things get resolved can often leave them unresolved or at least leave them festering.   He, of course, was talking about the dynamics between the President and the Congress and the brewing ideological storm looming on the horizon about to be seeded to the saturation point by aggressive use of executive orders. Yet, as I read his column, I could not help but wonder what would happen if, in one small corner of government, public servants actually worked hard and honestly to seek compromise rather than steamroll through an ideological result because they can.  Of course I was thinking about the CPSC.  Oh, how naïve of me.

After four years when little effort was made to accommodate differing views in order to reach consensus, new leadership and a roster of four out of five commissioners new to the agency offered the potential for real change. And an early effort by Chairman Kaye and Commissioner Mohorovic gave hope to the notion that perhaps that new territory—the elusive middle ground—could be profitably explored.  Kaye and Mohorovic were both asked by Senator Thune during their confirmation hearing for concrete plans to reduce testing costs and burdens currently being imposed by the agency, and the two put their heads together and came up with a joint response to the Senator.  Up to this point, the Commission has done nothing except talk about how hard it is to do anything—neatly forgetting that when it put the testing rules in place that are now driving those costs, its own economists told it that the costs of those rules would be unsustainable for many businesses.  Even when asked by Congress to address these costs, the Commission’s activities have consisted of foot-dragging tactics cloaked in enough bureaucratic jargon to make even the most cynical panjandrum shake his head in wonder.

Chairman Kaye and Commissioner Mohorovic, however, did come up with three specific additional recommendations that, if implemented, actually might reduce the testing burdens now being imposed by the Commission.  Admittedly, what the two proposed is still quite modest—thin gruel but still some nutrition.  Yet I cannot help but think that if each had written an individual letter, those letters would have been quite different—one more expansive and one less so.  The point is that, presumably, the two were able to accommodate their differing views to get to a consensus.   (But since nothing substantive has been done to drive forward the ideas articulated in the letter, it remains to be seen whether they are merely words on paper, like the rest of the agency’s burden reduction efforts, or whether there is anything real behind them.)

My hope in thinking that perhaps a new effort at consensus building was alive and well at the CPSC was dashed a couple of weeks ago when the agency voted to propose a rule to regulate recreational off-road vehicles (ROV’s). The agency and the industry have been working on safety issues associated with ROV’s for many years. These issues are perhaps the most complex that the agency has ever been presented with and, hence, are not easily resolved.  The industry has developed and recently revised a voluntary standard even as the agency staff worked to write a proposed mandatory standard.  When the proposed standard was made public shortly before the Commission was scheduled to vote on whether to issue it for public comment, the industry engineers met with the staff to discuss various technical issues presented by the draft, an effort which staff agreed was productive. Rather than make further attempts to work through these technical issues, three Commissioners chose to vote to issue the notice of proposed rulemaking. The result was a 3 to 2 vote, along party lines, to issue a proposed rule that is probably not the best work product the agency could have put out.  An amendment to delay the vote by 90 days to give the technical experts the opportunity to work through the issues raised was defeated, again along party lines.

If the leadership of the agency was serious about trying to compromise, then agreeing to this amendment would have been a no-brainer.  If issues could have been resolved, or at least clarified, in that 90 day period, then efficiencies would have been gained. If not, then the industry’s hand would have been called.  Either way, no one can make a credible argument that a rulemaking this complex and potentially lengthy would be so delayed as to jeopardize safety.  A controversial issue would have been diffused, the dissenting commissioners would perhaps have a harder time voting against the NPR; complex technical issues may have been clarified with a resulting better proposed rule—all around a win-win.

Finding consensus and reaching a compromise is very hard work.  If you are in the minority, sometimes achieving small wins may not feel as satisfying as keeping to your principles.  Yet small wins can still be wins.  But when you are in the majority, compromise means that you have to be willing to try to reach common ground even your vote count says you do not need to and when the temptation to jump on the steamroller is strong.  As we are seeing, finding the promise in compromise is not an easy thing to do.

Happy (?) Birthday

Perhaps someone, somewhere celebrated the 6th birthday of the CPSIA 10 days ago, but it sure blew right by me.  It took the Product Safety Daily publication to remind me that it had occurred. ?????????????????????????????????????????????????????????????????????????????????

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.


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