Archive for the 'Comment Request' Category

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.

Data…Data…Data…what’s the real story?

This week the Commission voted to publish for comment a seriously flawed proposal to create a public database of consumer complaints. My colleague, Commissioner Northup, and I tried to make the database a more useful tool for consumers, but ran into partisan 3-2 votes.  This means this proposal seriously falls short of serving the interests of the public–both consumers and product sellers. Too bad for the public that the majority did not agree to inject some practical, common sense requirements into the rule.

  • The proposed database will allow virtually any information from anyone–not necessarily someone who used the product or was hurt, but even people who have only secondhand or thirdhand knowledge of an event.  This includes information from advocacy groups, lawyers and competitors who may have their own reasons to “salt” the database.
  • The requirements for a report to be posted are so minimal that people who read about an incident in the newspaper can submit a report for posting.
  • We tried to require reports to have basic information such as the approximate date and location of the incident.  How can a manufacturer investigate an incident without that? No go with the majority.
  • While every effort will be made to prevent the disclosure of personally identifiable information, the majority rejected giving parents the ability to take down information posted by third parties about incidents involving their family. Where is the sense of privacy?
  • A product report will be sent to the manufacturer, however it is up to the manufacturer to comment on its accuracy.  If the manufacturer comments that the report is materially inaccurate, it is likely staff will post the comments with the report, rather than take the report down.  Staff is not required to investigate the report,–only to validate that the correct boxes were checked.
  • While it is stated that staff will review the data, it will be very brief. Complaints and comments will not necessarily be investigated. Staff investigations will depend on resources. Answer to our request for a resource estimate? Not yet been done.
  • And, in a real stretch, the proposed rule states it will have no impact on small business since those companies probably will not be subject of very many complaints and, besides, it would only take a couple of hours for them to deal with complaints (this is based on unverified, sketchy information).  Never mind that one inaccurate report that goes viral on the internet can cause irreparable injury to a small business.

I truly believe we could and should create a useful, searchable data site for consumers to see what others have said about incidents with products that could cause injury.  But to make the database helpful for consumers, we need to capture the best facts about an incident. Thanks to this proposal, chances will be hit or miss at best.

Help change those chances by commenting on this document. Speak up in this debate, and help us get a unanimous vote for the consumer and give you a database you want to have and that you can really use.

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