Archive for the 'Comment Request' Category

Hope you have a Subscription to the Federal Register

Things went according to the majority’s predetermined plan this morning when the CPSC voted to reinterpret the definition of “unblockable drain,” reversing an earlier interpretation and costing states and municipalities significant sums to either reengineer perfectly safe swimming pools or lock the gates. In a small nod to process, the majority did agree to accept comments from the public. But they did not want to hear comments on the wisdom of the reinterpretation, but only on when should we start enforcing the change.  As I said during the meeting this morning, it’s like saying “we’re going to guillotine you, now tell us what day would be convenient.” 

I would urge everyone who is impacted by this action to take the commission up on its offer.  I hope you will comment and I hope you do not limit yourselves to discussing the effective date.  Policymakers need to hear from those who are impacted by what they decide. 

And, by the way, if you are looking for a press release that explains what the Commission did this morning, don’t bother.  Rather than announce our action to the public like we regularly do, some selected few will get an email about this from our press office and everyone else will have to read about it in the Federal Register. 

Read my statement on this vote here.

100 PPM: One More Bite at the Apple

The CPSIA requires that children’s products sold after August 14, 2011 contain no more than 100 parts per million of lead and that requirement applies retroactively to all products in inventory and on store shelves.  The retroactive nature of the law accounts in part for the economic devastation and mindless waste that has resulted over the last two years as companies tried to comply.  The 100 ppm requirement goes into effect unless the CPSC finds that for certain products or classes of products this requirement is not technologically feasible. 

Last month, the agency held a hearing on what constituted technological feasibility.  A webcast of that hearing can be found on our website.  In preparation for that hearing, we asked for comments from the public.  Because Commissioners and agency staff were given little time to ask questions of the witnesses at the hearing, the record of the hearing has been held open so that Commissioners can submit additional written questions to the witnesses.  In addition, any member of the public may submit additional information. 

The Commission voted yesterday to keep the record open for 15 days after the notice is published in the Federal Register. (Publication occurs about a week after the notice is submitted, so effectively you have only three weeks left to respond.)  Therefore, anyone with additional thoughts on the issue of how we manage the migration to 100 ppm needs to let us have your comments and suggestions  asap.

How Low Can We Go?

We have another big CPSIA decision looming on the horizon and therefore need your input and participation.

CPSIA provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible.  The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products.

A hearing is scheduled for Wednesday, February 16th.   In order for me to act from an educated perspective, I need the evidence and data the public supplies, along with staff analysis.  I invite you to speak up and tell us how this lower lead limit will effect you. For details about participating, please refer to the Federal Register notice.  The deadline to sign up to present your remarks in person is February 10th.  You may also submit written comments and watch on webcast.

Last July, we solicited comments and information about manufacturers’ ability to meet the 100 ppm standard. Some commenters stated that source materials, including recycled materials for metal alloys, cannot comply consistently due to the variability of the materials and that plastics could comply only if  virgin plastics are used.  We heard about significant variability among test results due to variations in testing methodology and procedures.  Several people stated there were not demonstrable health effects reducing lead limits from 300 ppm to 100 ppm in light of the relative inaccessibility of lead that is bound in plastic or metal.  Others said there are children’s products in the market now that meet the 100 ppm lead limit, so that it is not only possible, but essential for public health to meet the lowest levels feasible.

The Federal Register notice outlines issues where staff is seeking new or additional information. Questions that are of particular interest to me include:

  • how do we evaluate whether a product that complies with the lower limit is ‘commercially available’;
  • what factors should be considered in an analysis of the public health protections associated with substantially reducing lead in children’s products, and
  • does consideration of technological feasibility include economic implications?

Before we vote to regulate, it is critically important that the Commission understand the practical and safety implications of lowering the lead levels in children’s products. We need your input so we can make an informed decision.

A Wrong Way and A Right Way—Which Will We Choose?

On November 17, the agency will vote on the rule finalizing the blueprint for the public database of consumer complaints mandated by the CPSIA.

Everyone seems to agree that the purpose of the database is to assist consumers in understanding risks, and in making well-informed choices about products they buy and use.  Indeed, in a recent article, an advocate for the database argued that folks should stop fighting about it and that “time would be better spent in ensuring it is as accurate and useful as possible.”  At last, something we can all agree on! 

My colleague, Commissioner Northup, and I agree that the database will be a useful tool for consumers only if it is accurate.  We have spent hours debating this point with the other commissioners.  On November 17, we will once again make the point that the database will not serve its purpose if it is a “garbage in/garbage out” grab bag of unsubstantiated complaints from any source. 

With respect to the database, there is a right way to do it and a wrong way to do it.  Unfortunately, so far a majority of my colleagues have not chosen the right way.  This is unfortunate because the approach insisted upon by the majority will not allow the database to achieve its objective.  While there are a number of objectionable provisions in the draft final rule, here are two issues that are especially problematic:

  • Who can submit complaints—Congress provided us with a list of those whose complaints should go up on the public database.  We have contorted the plain language Congress used into definitions that have no meaning.  For example, Congress told us to accept complaints from “consumers.”  The majority has determined that since everyone consumes something, we need to accept complaints from everyone—no need for any relationship to the product, harm or incident.  Think plaintiff lawyers trolling for clients or unscrupulous competitors wishing to harm a product’s reputation. 
  • Treatment of inaccurate information—Consumers are not served, and could be harmed, by a database with inaccurate information.  While Congress seemed to suggest a process for correcting inaccuracies, the rule has been written so that the agency is under no obligation to address such misinformation.  There is a real chance this could be a “post it and forget it” exercise.    

Since Congress has been clear in its direction to establish a public database, let’s try to do it right.  Commissioner Northup and I have redrafted the proposed rule to try to address the many issues that were raised in the comments the agency received.  If you click here, you will be directed to that redrafted rule.  Time is of the essence since the vote is in a little more than a week.  Please quickly send back your reaction to this draft. Help us get it right.  We intend to offer it as a substitute when the commission takes up this matter on November 17.  Please send me your reaction to the proposal either post it here on the blog or email it to me at

300 to 100: Is It Really Feasible?

While the attention of product sellers has been on the steady stream of regulations coming out of the CPSC because of the CPSIA, it is important not to lose sight of new statutory requirements coming down the road.  For example, as you struggle to adjust to the 300 ppm lead requirements, remember that those requirements will be adjusted downward to 100 ppm a year from now.  This will happen unless we find that, for a particular product or class of products, such a downward adjustment is not technologically feasible.  Further, since Congress has not acted to address the terrible unfairness imposed by the retroactive nature of the law, the new standard will impact existing inventory.

We recently issued a request for comment asking about the technological feasibility of moving from 300 ppm to 100 ppm of lead in children’s products.  Here is a link to the FR notice. Please take this opportunity to let us know the impact this requirement will have on you, your suppliers, and your customers.  While we are especially concerned about whether this downward adjustment is technologically feasible (as defined in the law), be sure to give us any other comments and observations to create a record that will allow me to argue for a rational and sensible application of the law.

Regulations Run

Like the Energizer Bunny, when it comes to regulations, the CPSC keeps going and going. The important question, however, is: “Where?” We are throwing out into the marketplace regulation after regulation without stopping to ask: are we effectively addressing real harms and what costs are we imposing on those who must live with what we mandate? What is missing from all this activity is an effort to look at how to address safety in a cost-effective, practical way. While our first obligation is to advance safety, we should look to carry out that responsibility in a way that minimizes damage to the thousands of hardworking business people who provide jobs and keep our economy moving forward. In that, we are falling down on the job.

While the CPSIA often stands, ironically, as an impediment to sensible regulation, in some instances the agency has chosen not to use what little flexibility we have to show appropriate regulatory restraint. When we were aware that we had the flexibility to forego required third party testing of “youth” rugs, carpets and vinyl film, some commissioners chose not to exercise that option. Instead earlier this month a majority of commissioners voted to disrupt a testing regime that has been working for many years. The result is to add confusion and cost without showing any safety benefit.

We will soon be asked to consider a similar regulation for “youth” mattresses. Currently we have in place a comprehensive flammability testing regime unanimously approved by the Commission in 2006. This very rigorous testing regime would be disrupted by new third party testing requirements. Similar issues will come up with respect to children’s wearing apparel and sleepwear. Will the Commission again choose to ignore the flexibility we have and give in to regulating merely for the sake of regulation? Let’s hope it doesn’t happen again.

Deadlines Looming

Over the past few months the agency has been busy issuing for public comment proposed rules required by CPSIA. Consumer safety is unquestionably our goal at the CPSC, however, some of these proposals are questionable in how consumer safety might be achieved, and unclear at what expense. Some of these proposals are aimed at specific products, some are administrative in nature and some are very significant and will have a profound impact, for better or worse, on the cost and availability of consumer products.  It is so important that those who will be affected by these proposed rules let us know how they will impact you.  Your comments can indeed shape the final product.  In past blogs, I have discussed the importance of getting comments from those affected by our actions.  Because the public comment period for many of these proposals is closing over the upcoming summer months, I thought it would be useful to list some of them and the end date for comments.  So here goes:

Interpretation of Children’s Product — June 21, 2010

Publicly Available Consumer Complaint Database — July 23, 2010

Testing Rules for Component Parts — August 3, 2010

Testing and Labeling Pertaining to Product Certification (15 Month Rule) — August 3, 2010

We also have out for comment several proposed rules dealing with specific products such as toddler bed, bassinets, and drawstrings on children’s outwear, among others. 

While these proposed rules are important, I don’t have to remind you they impose a real impact on those who make consumer products.  Since the agency has abandoned cost/ benefit analysis of these rules, we will not have information on the real world impact of our rules – unless you tell us.

Two Sides of the Same Coin

In a recent podcast for the Federalist Society, I discussed with my fellow commissioner Bob Adler our differing views on the CPSIA, as well as how we reached those conclusions.  I welcome these kinds of opportunities to openly discuss the consequences of the CPSIA and possible solutions for the future.  Everyone agrees that the CPSIA needs some fixing.  Let’s hope that Congress steps up to the plate.  Anyway, have a listen, and give me some feedback on what you think. 

Share your thoughts, post a comment, and engage in this important debate.

Will you get what you expect from your ATM?

Of the many problems with the CPSIA, the crippling cost burden of the third party testing requirements is perhaps the most overwhelming.  The Commission put a stay of enforcement of these requirements until February 2011, to buy some time to work with Congress to figure out a solution to the problem. 

Chairman Waxman’s draft bill tries to address this by giving the CPSC authority to impose alternative testing methods (ATM).  The questions we are now struggling with are:  (1) what does this really mean, and (2) does it really help anyone.  The answers are: (1) not clear, and (2) probably not much.  

  • Most of the tests required to demonstrate regulatory compliance probably cannot be done by a small batch manufacturer outside a third party testing lab.
  • Do you really want someone to be burning products in their garage to show compliance with our flammability regulations?
  • The one test small businesses could probably do is the small parts test but, strangely, that is specifically excluded by the draft bill. 
  • Folks point to XRF testing as an inexpensive alternative to costly wet chemistry lead testing.  While we are working hard to refine that test methodology and this may be available at some point in the future, it is not here now—so when will relief happen? 
  • What’s the capability of a small business ‘tester’ to assess the product requirements? To apply appropriate level of precision in testing? To know if the product is compliant? To calibrate testing tools properly?
  • Does this apply to foreign as well as domestic small batch manufacturers?
  • How many tests can one small business person do for fellow low-volume manufacturers before becoming a ‘lab’, requiring agency recognition? ‘Firewall provisions’ to avoid undue influence?

These are just some of the questions already being asked within the agency about how this ATM might work, or not.

The point is that the Waxman language kicks the can down the road and the problem back to the agency without giving us the tools we need to solve it—and certainly not before the stay lifts in early 2011.  Some think third party testing won’t be required of small businesses until alternative testing methods are identified. Who said that?  That change can’t happen until Congress writes it into a bill.

When Congress was working on the CPSIA, the agency asked for the authority to require third party testing in appropriate cases.  What we got was a blanket third party testing requirement.  I hope that, as Congress addresses the problems that have become so apparent with the CPSIA, they will consider what the agency actually needs to strike the proper balance between safety and unneeded, burdensome regulation.

Don’t just give us an ATM that may malfunction big time.

Is Anyone Listening? Yes!

One of the main reasons I started blogging was to talk directly with folks who are impacted by CPSC actions.  With the challenges of implementing the CPSIA, many businesses who did not even know about the CPSC are now finding out first-hand how extensive our powers and authorities are. 

Blogging lets me flag important issues so that you do not have to become a regular reader of the Federal Register to know what we are up to.  However, I have heard the comment made, both in response to my blog and in meetings I have with the public, that it does not appear that the agency is listening to or interested in the opinions of real people impacted by the law.  Over and over, I hear things like “Why should I bother to comment when my comments won’t make any difference?” 

My answer is simple:  your comments can and do make a difference.  I often circulate the comments I get on my blog to my colleagues and the senior staff of the agency.  Thoughtful comments are discussed and considered inside the agency.  And if you respond to formal requests for comments—such as the proposed rule about the database voted on last week and which will appear in the Federal Register soon—the agency has a legal obligation to consider and address your comments. 

I realize that submitting comments takes a lot of time and resources but if you don’t let us know what you think, we don’t have your valuable information.  Sure, we hear regularly from groups who say they represent important points of view but who have never actually created a job or met a payroll, much less tried to make sense out of the many regulations we issue.  Your real world view fills a real agency need.

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