Archive for the 'Testing' Category



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.

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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.

CPSC to Congress: Still Kicking the Can

Kick_The_Can

The government shutdown eclipsed an important letter that the agency received on October 1 from our congressional overseers asking us explain our failure to move forward on addressing the costs of CPSIA-mandated third-party testing. You will recall that Public Law 112-28 required us to address those costs and let the Congress know if we needed new authorities to do so. Congress asked for a response by October 21—today. No answer has yet gone back to the Hill, although the shutdown explains some brief delay.

But every day that we delay in reducing the costs of often-unnecessary testing we fail to perform our job to regulate rationally, opening the agency up to deserved criticism. And it is no wonder that Congress asks why we haven’t addressed this issue. To review: In November 2011, we asked the public for ideas on reducing testing costs and, based on some of those comments, our staff came up with a list of 16 recommendations. A year later, the Commissioners pared the list down to nine items, and then further shrunk it down to four ideas, none of which have been acted upon.

It has been said that there is a six-word formula for success: think things through, then follow through. Our regulations on third-party testing were not thought through, so Congress stepped in, asking  us to try again and this time follow through by either addressing the problem or asking for authorities to do so. Our response? We kicked the can down the road.  Maybe it’s wishful thinking, but I do hope this letter draws enough attention here to trigger real follow-through.

Like others, I will be most interested to read our response to the Congress, whenever it comes. One suspects we will point to the fact that we have gathered public comments on at three separate occasions. One further  suspects we will plead poverty, saying we have no resources for doing this important work. But asking stakeholders to comment over and over again on the same issues does not advance the ball. And claiming lack of resources as preventing solutions to problems of our own making rings pretty hollow.

Ben Franklin said, “Never confuse motion with action.”  We have had lots of motion.  We need some action before those who would benefit just give up.

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?

More Than Just Listening

CPSC recently held a public hearing to get input from stakeholders about its agenda and priorities for FY 2014 and FY 2015. We heard from two panels of consumer advocates and manufacturers’ associations. Many thought-provoking subjects were discussed. I found the topic of child safety in low-income households, raised by the Consumer Federation of America, to be an important challenge to address, not just at CPSC, but across the federal government. (As I have written before in this blog, some of our current policies risk pricing low-income consumers out of safety.)

Two other topics were particularly noteworthy. The Handmade Toy Alliance (HTA) said that signing up for the “small batch manufacturer” registry—exempting them from certain third-party testing requirements—did not substantially ease their burden. Even though they were technically exempt from third-party testing, HTA’s members still must meet various statutory limits and, crucially, are often unable to do adequate testing without engaging third-party testing labs. Further, HTA pointed out the requirement added by the Commission to post on its website the name of every company that received this exemption was a deterrent to companies to participate and thereby have their business data posted. It is no surprise, then, that although we expected upwards of 30,000 companies to sign up, only about 500 are have so far.

Another issue raised by HTA, as well as the Toy Industry Association (TIA) and the American Apparel & Footwear Association (AAFA), was the need for CPSC to dedicate resources, pursuant to Congress’s direction in Public Law 112-28, to implement measures that reduce testing burdens while still ensuring compliance with safety standards. To date, the Commission has no specific commitment to action in FY 2014 and FY2015 to reduce testing costs. The Commission previously defeated my amendment which would have allowed for more action.

I hope that we will listen to our stakeholders’ pleas—and Congress’s direction—and do the hard work to improve safety for more Americans while minimizing the burden we place on the American economy.

It’s He-ere . . .

Today, the CPSC’s children’s product periodic testing and certification rule goes into effect. Perhaps the most sweeping rule in the agency’s history, it was spurred by 2008’s Consumer Product Safety Improvement Act. Even before becoming effective, it has substantially affected the agency, the regulated community, and consumers. Starting today, those effects will grow.

After much debate about its details (more on that shortly), the rule is now the law. It sets massive new requirements for the CPSC’s regulated community. To comply with it, companies and labs should have developed systems and procedures to comply with the new requirements and these should all now largely be in place.

Even so, tweaks to those systems will, of course, be necessary. Some of those changes are things that manufacturers and labs can take care of on their own. Others, however, will probably require attention from agency staff and from the Commission. As you encounter problems with this rule, make sure that the agency and I hear about them. Your voice can make a difference. Already, based on pre-implementation concerns, both Congress and the CPSC have made changes to the rule. And as the rule now goes into effect, we can only expect more concerns to be revealed. When they arise, let us know about them.

Of course, as readers of this blog already know, this rule is not my ideal rule. During the many debates leading up to today, I have already filled enough of this space discussing my disagreements with the Commission’s decisions to belabor them here in any detail. To sum it up, I believe we overstated the necessity for third-party testing, ignored opportunities to make the rule more effective, created “gotcha” traps for companies, and paid lip-service to Congress’s demands that we look to make it less expensive. The result is an unwieldy rule that (because of its name) might make consumers feel safer, but holds only speculative hopes of actually making them safer. All the while, they now have the certainty of fewer choices at higher prices.

Yet, though I remain concerned about the unnecessary damage this rule threatens—and as I continue to work to improve it—make no mistake: It is the law. Companies must heed it even where they disagree with it, and violators should expect a visit from our compliance staff. We have lots of resources for helping businesses understand this rule and how to meet its demands, especially for small businesses. If you have not already figured out your plans for complying with the rule, hurry up and fix that. We surely will all learn a lot along the way, but there is no more time for waiting.

CPSC: NOT a Representative Sample of Good Regulating

The Consumer Product Safety Commission has completed another regulation dealing with the process of testing children’s products: the manner in which companies select the samplesPaperwork-mountain they test. Thanks to Congress, the result is better than it could have been. Thanks to my colleagues, it is not as good as it should have been.

Originally, the Consumer Product Safety Improvement Act (CPSIA), required manufacturers and importers to test “random samples” of their products. We were poised to read the word random with its most pedantic statistical meaning, creating an employment boom for mathematicians.

Many commenters deplored this uber-technical reading of the term, urging that we read it more plainly. Congress agreed, amending the statute to require “representative”—instead of “random”—samples.  So we started our work again, coming up with a rule to tell companies what representative means. The definition we came up with – a selection process that “provide[s] a basis for inferring compliance” even among untested products – seems reasonable enough on its face. What is unreasonable about this rule is that, when read in the context of the periodic testing rule it is amending, at best it is redundant, adding dead weight to the already-unwieldy testing rule. But more likely, it adds new requirements to what is already in the testing rule, although to extent of those requirements will only be fleshed out when we start to bring compliance actions.

What the new rule does add is another peak among the mountains of documentation the testing rule requires. We’re demanding separate recordkeeping for the representative sampling procedure on top of the documentation mandate that already exists for testing. Just two years of this recordkeeping could cost nearly $46 million, in addition to the costs for the rest of the testing rule’s paperwork. And remember, this price tag isn’t for either setting up the testing plan or doing the testing; it’s just for showing the math on the selection process for testing. Did we pause for one second to consider how to reduce the recordkeeping burden? Of course not. Did we give even a passing head nod to the direction the White House gave us this past summer to find ways to reduce recordkeeping burdens? Again, of course not.

At this rate, I expect our rule to require the documentation of the process used to document the selection processes for the documented testing plan will hit the Federal Register shortly. And a tip to traders who follow our regulatory hit parade: It’s a good time to be in the hard drive and paper businesses.

You can read my statement giving further detail to the problems of this rule here.


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