Archive for the 'Comment Request' Category

Tell CPSC What You Think

One of the very positive hallmarks of the new leadership at the CPSC is a desire to hear from all interested stakeholders on how to more effectively push forward the agency’s safety mission. The agency has offered several opportunities for input and for those of us who share that goal, these opportunities should not be ignored.

First, the agency will be conducting a workshop on ways to improve the recall process, including the effectiveness of recalls.  Recall effectiveness is a perennial topic of conversation at the agency so it is gratifying that the agency is again looking at this topic, but hopefully from a new perspective.  Both as a Commissioner and now, in private law practice, I often hear complaints about the opaqueness of the process. Participation in the workshop offers an opportunity to give real suggestions on how to make the recall process work better.  The workshop will be held on July 26, 2017 at the agency headquarters in Bethesda.  Those interested in participating must sign up with the agency no later than July 3.  Here is more information about the workshop.

Second, the agency is requesting comments on ways to reduce the regulatory burden imposed by agency rules in ways that do not diminish safety.  This effort is especially welcome since many of the regulations issued by the agency over the past eight years did not consider ways to accomplish safety goals in less burdensome ways.  When Congress told the agency to try to find ways to reduce the burden of testing, the agency went through a fantasy effort to comply and, not surprisingly, came up with very little.  Indeed, about the best it could do was exempt from testing toys made entirely from untreated wood from the trunks of trees (but not the branches—who knows what could be in branches!).  (See here.)

Reducing unnecessary regulatory burden is important since this engenders respect and support for the agency. Rules that are outdated, overly complex, or impose requirements without regard to real and measurable safety results should be identified and either changed or repealed.  The agency’s effort to collect information on burdens imposed by its regulations is a welcome first step in this process.

 

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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.

“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.

The Side Effects of Tweaking

Much has been written here and in other publications about the substantive impacts of the CPSC’s proposed changes to the rules dealing with voluntary recalls.  The substantive nature of the proposed amendments cannot be discounted even though certain commissioners persist in describing them as only “tweaks.”

As commenters analyze the impacts of the proposed changes, it is important to look at how these changes impact other rules that stakeholders and the commission operate under, specifically those dealing with submission of information under §15(b) and disclosure of information under §6(b) of the Consumer Product Safety Act.  Former CPSC general counsel Cheryl Falvey has written an interesting piece that discusses that interrelationship.  It is worth reading and thinking about.

Information submitted to the agency under §15(b) is exempt from disclosure except under limited circumstances as described in §6(b)(5).  This protection is to provide incentive for companies to fully report information the agency needs to analyze a risk without having to worry that sensitive product information is made public unfairly or prematurely.  One of the exemptions to this protection is when the Commission has accepted in writing a “remedial settlement agreement” (see §6(b)(5)(B)).

Here is the question:  is the voluntary recall (or specifically the recall’s corrective action plan) a remedial settlement agreement?  The regulations currently say that the recall agreement is not enforceable.  The agency now proposes to make the recall agreement enforceable.  Is the effect of that to make any information submitted under §15(b) subject to disclosure where it otherwise would not have been?

What is the Commission’s current position on this issue?  Reading the NPR or listening to the debate does not provide any answers.  But one thing is clear:  with all this tweaking, some transparency is called for.

Magnets Hearing: Let Us Hear From You

The CPSC has scheduled a hearing on October 22, 2013, to hear from the public about the pending proposed rule to ban small, powerful magnets. The hearing will take place at the CPSC headquarters in Bethesda, MD. To present oral comments at the meeting, send your request, along with the text of your comments, to cpsc-os@cpsc.gov.  You can find more information through the draft Federal Register notice here. Folks who wish to be heard should contact the agency by October 15th.

This hearing is required by Section 9 of the Consumer Product Safety Act which sets the procedures for the agency to issue many of its safety standards and bans (many of the CPSIA-mandated rules do not require this kind of public input.)

This issue presents troubling and conflicting concerns for the agency.  Obviously, the injuries that occur when toddlers swallow these small powerful magnets are of great concern to us. We have heard from many doctors about the serious nature of these injuries. On the other hand, this product is made and sold for adults, is extremely popular, and is being safety used by those it was intended for. Banning a product because unintended users are being injured through misuse is a serious and fairly novel undertaking for this agency.

This rulemaking also presents some troublesome process issues—issues of the agency’s own making. Separately, the Commission brought an administrative action against manufacturers that refused our request to recall a product that would be covered under the proposed rule. One cannot help but wonder how the rulemaking will impact the administrative litigation—both as a matter of law and as a matter of fact.

These are all important and interesting questions for the Commission to grapple with. I am looking forward to hearing what the public thinks on Oct. 22.

1110: Now It’s Your Turn

Last week, we talked about the shortcomings of the Commission’s proposed amendment to its Part 1110 rule on product certifications—hidden costs, confusion on bans and testing exemptions, recordkeeping disharmony, and questions not asked. Today, I issued my formal statement on the vote, which delves more deeply into the history of our first attempt at this rule and what we should have done this go-round.

That being said, I supported the broad outlines of this package. One key reason I voted to move ahead? I believe it’s high time we asked the public what to do about certificates. So now it’s your turn to let us know how we could improve this rule. Talk to me here, but more importantly, talk to the all of us at the Commission by submitting comments here.

1110 Series: If We Wanted Your Opinion…

Over the past couple days, I’ve talked about how the Commission hid the ball on costs and actively avoided clarity for product bans when we proposed to amend our certificates of compliance rule, the 1110 rule. Today, the issue I wanted to highlight is not our failure to make the rule as intelligible as it should be; it’s my colleagues’ refusal to seek intelligibility in our own deliberative process, specifically in how the new rule will deal with products that are exempt from testing to any applicable safety standard.

Our staff originally proposed what I thought was an acceptable approach: If your product is subject to multiple rules and exempt from testing for only some of them, then you have to certify to the ones in force and claim your testing exemption(s) for the rest. But if your product is exempt from testing under any applicable standard—whether your product has one or more testing exceptions—you don’t need a certificate just to say that. To me, this seemed not only a reasonable opportunity to minimize unnecessary burdens but also more consistent with the law, which bases certificates on testing.  Requiring a certificate with no information other than an exemption is wasteful and contrary to the purpose of the testing regime.

My colleagues were uninterested in these benefits. Arguing that having more pieces of paper to shuffle would expedite work at the ports, they amended the proposed rule to require companies to create, provide, and maintain certificates that say nothing more than, “I’m exempt from testing to the standard.” Although I do not think such a certificate is necessary, I thought public input on the question could be helpful, so I proposed returning to the staff’s original language and asking for comment on the safety, efficiency, and cost implications of my colleagues’ approach. My colleagues were not interested in asking a question, and decided to plow ahead. (My colleagues did less-than-helpfully note that the public could still comment on the approach.)

The rule they insisted on might turn out to be the efficient one. We might hear from commenters that consistency in certificates is more useful than skipping hollow ones. What baffles me is my colleagues’ refusal to even solicit public input on the point, particularly when they are claiming benefits that, if real, the regulated community would likely endorse. Dogged refusal to invite any other perspectives is not the hallmark of reasoned decision-making.

Tomorrow, we’ll continue this discussion of the areas where the 1110 rule could use improvement before it’s final.


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