Now that August is over and Labor Day is but a memory, it is time to focus on how the CPSC 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).
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.
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.