Archive for the 'third party testing' Category

Steps Forward; Steps Back

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

Forward Steps

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.

Backward Steps

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.

Defining “Wooden-Headedness”

In The March of Folly, historian Barbara Tuchman writes:

Wooden-headedness, the source of self-deception, is a factor that plays a remarkable large role in government.  It consists of assessing a situation in terms of preconceived fixed notions while ignoring or rejecting any contrary signs.  It is acting according to wish while not allowing oneself to be deflected by the facts.

Late last week the CPSC Commissioners voted to write Ms. Tuchman’s definition of “wooden-headedness”  into the Code Le_avventure_di_Pinocchio-pag046of Federal Regulations by issuing a direct final rule to give long-awaited “relief” from the burden imposed by its third party testing rules as directed by Congress way back in 2011[1].

The Commission has been promising relief from its burdensome testing requirements but has been doing everything it can to avoid doing anything since 2011 when Congress first directed it to take action.  Now after four years of study and promises to Congress (even as recently as last month), the Commission has found [INSERT LOUD DRUM ROLL HERE] that toys made from unfinished and untreated wood from the trunks of trees do not have to be tested for the presence of seven heavy metals regulated by the toy standard.

The Commission’s action last week is justified by a contractor’s study which is itself a study in the precautionary principle run amuck.  The contractor was tasked with doing a literature search looking at the same natural materials (untreated wood, fibers such as wool, linen, cotton or silk, bamboo and beeswax among other things) which the Commission exempted from testing for lead back in 2009.  Yet only for trunk wood was the contractor able to report sufficient data to show no presence of the suspect heavy metals in concentrations that violated the toy standard.  For most of the other materials there was insufficient evidence reported to show the absence of violative concentrations of the heavy metals. The contractor, however, did find that a report that wool from sheep dipped in arsenical pesticides (which are no longer used) had high concentrations of arsenic as did wool from sheep grazing next to a gold smelting mine.  In other words, if the contractor, in doing its literature search, found a study documenting a problem, then the material was disqualified.  If the contractor could not find a study documenting a problem, the material was also disqualified on the basis of insufficient information.

Back in 2009, the agency staff was able to make rather more expansive determinations quite quickly and efficiently, without expensive contractor studies, and to my knowledge, public health and safety has not been threatened by this action.  The current agency action seeks to take the smallest, most ineffectual step possible and then point to a constrained reading of the statute and an inconclusive contractor study to justify inaction.

Congress told the agency to take action to reduce testing burdens or report back if statutory impediments required Congressional action.  The agency has done neither.  Instead, the Commission, on several recent occasions, has promised Congress that action on test burden reduction will be forthcoming.  One hopes that limiting testing exemptions to toys made from tree trunks is not what the Commissioners had in mind when those statements were made.  It is hard to believe that Congress will find this a satisfactory response either.

So if you use bamboo or perhaps linen or beeswax in crafting your toy, you are out of luck because there is no evidence these materials are unsafe.  For those small businesses out there who might make a toy from a tree limb or decorate the toy with bark or twigs, you are also out of luck!  And if you are looking for clarity, too bad.  As one of my friends in the small business community said when she heard about this, “Is a branch 12 inches in diameter a trunk? Do I need to ask the lumber yard if the wood came from a trunk? Will they even know? Will I need to have proof the wood came from a trunk?  It just comes across as comical.  Is there value in this determination?  I suppose, but for many it is just too little, way too late. Four years late to be exact.”

The fact is that public health is not impacted by toys that include components of natural materials—the agency’s experience with lead has shown that.  Indeed, the natural materials exemption is a very narrow one and hardly opens the flood gates to testing avoidance. One must ask why the agency is so adverse to finding a workable solution to reducing testing burdens.  Wooden-headedness brings about wooden thinking.

[1] Direct final rules are reserved for those rules that are noncontroversial, and usually deal with routine, narrow or non-substantive matters. They go into effect unless someone objects.  In this case the rule, and the testing relief it proffers, could not be more narrow.


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