Archive for the 'CPSIA' Category



CPSC Burden Reduction Mantra: “Maybe One of These Years . . .”

An interesting op-ed in last week’s Wall Street Journal pointed to how the regulatory process impedes efforts called for by President Obama, among others, to shore up this country’s infrastructure.  The piece, written by Philip Howard, President of the nonpartisan reform group Common Good, focused on how interminable environmental review can stymy public projects and made several interesting suggestions for change.

As I read Mr. Howard’s article, I could not help but think about how the regulatory process has been used at the CPSC to slow activity, mandated by Congress and required by common sense, to reform the product testing regime dictated by CPSC regulations.  Recall that the testing rules setting the parameters for when products must be tested by independent third party testing labs imposed such impressive costs on the system that Congress told the agency to find ways to reduce those costs.  That was in 2011.  As we head into 2014, the agency has managed to avoid adopting any concrete relief to those who are now required to conduct unnecessary and expensive testing.  The Commission has done this by repeatedly asking for public comment on the same questions over and over again.

Last week the Commissioners met to adopt an operating plan for the rest of FY 2014.  Predictably, the issue of reducing testing burdens came up and, predictably, the Commissioners again punted.  This time, the agency staff was directed to finish their analysis of the public comments on a limited set of suggestions for relief by the end of FY 2014.  A majority of Commissioners rejected the notion of asking Congress for statutory changes suggested by the agency staff to make operation and review of safety processes more efficient.  Clearly, a majority of CPSC Commissioners do not see reducing unnecessary testing burdens as a core duty of the agency.

It is remarkable that for the past three years, product manufacturers have been conducting expensive testing that most (outside of a handful of advocates with a political agenda and several CPSC Commissioners) do not see as necessary to assure the safety that American families rightly expect.  That those families have to shoulder the costs of this added weight to the system seems to be a forgotten fact. I know that I have written about this issue before.  But as a consumer, I am mad.  I am mad that my choices are being limited and that, for example, I cannot buy beloved toys that are safe but are no longer being imported only because of the CPSC testing rules.  I am mad that I have to overpay for safety regulations of questionable value.

Rather than blindly defending regulations that are costing consumers without advancing safety, the CPSC should give them a thanksgiving gift:  how about getting down to work and stopping the procrastination on this.  It is time for big strides, not baby steps.

Singing a Different Tune?

Why put off until tomorrow what you can do today?  With respect to reducing the unjustified costs of its testing rule, the Commission has followed the notion of why correct today the problems you have made when you can put them off until tomorrow . . . or maybe until never.

We all know the history:  in 2011, Congress told the agency to look for ways to reduce testing costs and if it needed new authorities to do that, then ask for those authorities.  Since 2011, the agency has asked the public repeatedly for comments on how to carry out that mandate.  In spite of good suggestions from the public and from the staff, the Commission has taken no real action to implement any of those suggestions for well over two years.  In the meantime, product sellers are having to pay for tests that do not necessarily enhance safety but cost consumers in terms of higher prices and fewer choices.

I have written about this over and over again until I sound like a broken record.  Indeed, perhaps the CPSC theme song should be “Maybe Tomorrow” by the Jackson Five.  How about Amy Winehouse’s “Procrastination”? Or is it better to stick with an old standard such as Sinatra’s “Call Me Irresponsible”?

Given all this, I was surprised and pleased to hear all four Commissioners at yesterday’s briefing on the agency’s FY’14 Operating Plan say how much they each supported moving ahead with efforts to reduce testing burdens.  The two new Commissioners are dealing with this issue for the first time, and so their reaction that this is an issue overdue for attention makes perfect sense.  But it was startling to hear Chairman Tenenbaum and Commissioner Adler join that particular chorus since they have been less than positive about moving this issue forward.

Why this change of tune?  Perhaps the need to respond to inquiries from the Congress about the agency’s inaction has triggered this sudden interest.  And perhaps hard questions from new Commissioners has jolted them out of their somnolence on this issue.  At the briefing, there seemed to be some acknowledgement that products made from manufactured woods were real candidates for relief.  It would be a pity if the agency stopped there.  As Commissioner Buerkle pointed out, there are plenty of other areas where relief seems to be warranted.

And hard questions need to be asked about why this is taking so long.  Comments were submitted months (years) ago and there has been plenty of time to read, analyze, come to some conclusions, and initiate some real actions by the agency—if only the Commission gave the signal to do so.  Unfortunately, for example when I, as a Commissioner, tried to include some action to bring this to conclusion in the FY’14 budget, my effort was summarily rejected by both Chairman Tenenbaum and Commissioner Adler.  So it was especially gratifying that both now appear to have joined their colleagues in singing about the need for some relief.

To continue the musical theme, the agency now has some New Kids on the Block.  I hope we will hear their hit song, “No More Games” start being played at the CPSC.

Listening to Constructive Criticism

Yesterday, I met with representatives of the National Association of Manufacturers Product Safety Coalition. Participants at the meeting represented a broad spectrum of businesses that make and sell consumer products, and so are under the jurisdiction of the CPSC, and they shared their concerns over the direction the agency is headed. Here is a summary of some concerns expressed at the meeting:

  • A perceived breakdown in communications between the agency and business stakeholders is causing great frustration among those trying to comply with CPSC requirements.
  • The proposed rule setting out voluntary recall procedures was labeled as “a solution in search of a problem.” Great concern was expressed that this rule could make the process more time-consuming and resource intensive, both for the companies and the agency.
  • The move to mandate corporate compliance programs as a part of a penalty settlement or as part of a voluntary recall is viewed as excessively intrusive. If the agency insists on these programs as part of recall corrective action plans (as allowed by the proposed voluntary recall rule), this insistence will slow down the recall process greatly.
  • There seems to be no logic or systematic rationale about how penalties are being assessed so that past penalties are not predictive of future penalty demands. The process for referring cases to the Department of Justice is opaque.
  • While agency participation in the voluntary standards process is welcome and helpful, there is concern that technical discussions need to be held in an environment that fosters and encourages full participation from corporate technical experts. There is also concern that voluntary standards are becoming de facto mandatory standards.
  • Questions were raised about why the agency is moving forward with a wholesale change to the certification requirements (as proposed in the rule changes to 16 CFR 1110).  Companies have already set up systems to implement existing certification requirements and changing those systems will be resource intensive and is not justified.
  • There is ongoing concern that the agency is not moving forward with addressing the burdens that are associated with its testing and certification regime. There is a great deal of unnecessary testing being done, especially with respect to phthalates. A plea was made for aligning our standards with other international standards.

While a number of other issues were raised, the participants also reaffirmed their underlying support for the agency and its important safety mission. The message I took away is that we need to interact with our business stakeholders in a more collaborative and cooperative manner. Obviously, the range of issues we deal with is so broad that without this collaboration, we will not succeed in carrying out our mission to protect consumers.

The Use and Abuse of Voluntary Consensus Standards

The CPSC has issued several recent rules about nursery products, each of which was based on a voluntary consensus standard. Congress directed us to do so in § 104 of the Consumer Product Safety Improvement Act, and also wrote special procedures for the voluntary consensus standards under that section. Unlike most voluntary standards—which the agency relies on frequently, without enacting mandatory federal rules—Congress gave the agency the power to modify those voluntary consensus standards as necessary to reduce a risk of injury. The Commission just last week approved a new rule on bassinets and cradles under the § 104 rubric. Although I agreed with my colleagues about most of the rule, one key change made by the staff to the voluntary standard did not appear necessary—in light of all the real-world evidence presented to the Commission. Therefore, I proposed an amendment that would have adopted the standard without that change.

The agency’s staff proposed to adopt a test criterion that differed only slightly from the version in the voluntary consensus standard. (You can read more about the change in my official statement here.) If the change were necessary to advance safety, I could have supported it. If the change made a real and substantial improvement to safety, I could have supported it. But in the end, I didn’t see evidence that supported the change. And as I read § 104, that means that the agency cannot and should not adopt a rule that changes the voluntary consensus standard.

Why not? All federal agencies are supposed to use voluntary consensus standards where possible, because they are likely to increase standardization, encourage long-term economic grown, and save taxpayer funds.  So a general policy in favor of using voluntary consensus standards makes sense. And the CPSC has special reason to hew close to voluntary consensus standards.

In § 104, Congress was not legislating in a vacuum. CPSC is already required to use voluntary consensus standards instead of making up its own rules, so long as the voluntary consensus standard does the job. Section 104 is only meant to change the process so that durable nursery products are covered by enforceable federal standards, because of the special population that uses nursery products—infants. Unfortunately, the way that the CPSC has implemented § 104 has tangled up the voluntary standards process, cutting short debate and perhaps reducing the quality of the draft rules that the Commission gets for its consideration. My amendment would have been a step in the right direction, signaling to standards development organizations that their work product will not be rushed along, nor their debate stymied or stilted, by the CPSC. We should be moving down that path.

Unfinished Business

In Washington, sometimes repeating something often enough seems to make it true. We see this phenomenon working in the press stories and speeches marking the CPSIA’s fifth anniversary last month.

Although the law has its strengths and weaknesses, the real story is the unrealistic tack that the CPSC has taken in implementing the CPSIA, changing difficult circumstances into nearly impossible ones. Operating from the assumption that if some regulation is good, then more must be better, the agency embarked on a course that seeks to cover all risks—real, speculative, or imagined—rather than crafting regulations to address known unreasonable risks of injury. That our regulations go well beyond what the new law requires is not a fact that seems to concern us. 

One problem with this approach is how divorced it is from the real world. Our regulations are overly-broad and so ultra-complex that only companies with swarms of lawyers can hope to fully understand and comply with them. Thus questions necessarily arise as to how to truly comply with our regulations. And, of course, those questions have been pouring into the agency.

This issue is brought home by a new report from the Handmade Toy Alliance documenting the experiences of small toy manufacturers and importers under the CPSIA and CPSC’s implementation of it over the past five years. HTA members are those who bring excitement, creativity, and imagination to the world of play. None of the products they make presented the safety issues that prompted the CPSIA. Yet this group has felt the brunt of the law more severely than others. Here are some of their observations about the impact of the CPSC’s implementation of the law:

  • “The [testing] rule overwhelmingly favors large manufacturers at the expense of smaller ones. . . . A small business owner could develop what they believe is a reasonable testing program, but it is unlikely to meet the CPSC’s strict interpretation.” HTA points out that we have designed a rule that tilts to the benefit of the large company and which small companies cannot meet.
  • Due to the onerous nature of the requirements, many small businesses will choose “the path of least resistance—to continue doing what they have done for years to assure they produce a safe product [and] use their experience and wisdom to guide design and manufacture, and [to] form relationships with their customers. . . . [S]ome portions of the requirements are adhered to and others are ignored because of costs and complexity.” In other words, small producers will focus on safety and only selectively comply with those portions of our rules they can meet or understand. Creating rules that do not improve safety but contribute to an approach of selective noncompliance is dereliction of our duty as regulators and stands rational regulatory policy on its head.
  • Further, some “handmade toy makers have simply gone out of business or chosen to make products that are not designed for children because the CPSIA and subsequent relief efforts preserve a hurdle too high for small business to clear.” I wonder why those who are praising the passage of the CPSIA find this to be a good result.

Are these not serious flaws attributable to the CPSIA and the agency’s implementation of it? I believe so and they are compounded by this agency’s unwillingness—through over two years of procrastination—to address the unnecessary burdens of our rules as we were directed to do by the Congress. The public has identified ways to ease the burdens, our staff has identified ways to ease the burdens, and I have even added to the list—yet we have not taken any action to implement concrete suggestions, all the while ignoring congressional directions to take action. The HTA report contains a list of actions the agency could take that would ease the burdens of small producers while maintaining safety.

HTA concludes, “The missteps of a few very large toy companies precipitated regulations which damaged thousands of small and micro U.S. businesses and continues to encumber those that survive. . . . Congress and the CPSC must move forward with meaningful solutions that are funded and given priority.”

I have raised these issues with my colleagues repeatedly (and as recently as this month when we voted on our upcoming regulatory agenda). I have been repeatedly outvoted and told that reducing the burdens of our regulations is not a priority of the agency. Again, I ask, when will we turn our attention to correcting the problems we made?

CPSC In Brief

The feature article in this month’s ABA Journal examines the CPSC from the agency’s inception to the present as we implement the CPSIA. It gives an interesting overview of the history of the agency, discusses recent controversial actions the Commission has taken, and provides readers with a good sense of the regulatory philosophy of the Commissioners. The article closes by noting the Commission will soon see an influx of new Commissioners, inviting speculation about the future direction of the agency.

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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