Posts Tagged 'Nancy Nord'



The Leap Year Effect at the CPSC

Leap year occurs every four years when an additional day is added to the calendar—February 29.  This is a corrective measure to account for a lack of precision in the earth’s orbit around the sun.   According to old folk traditions, during a leap year, role reversals are common, upsetting the usual norms of behavior.  We saw two examples of the leap year effect in operation last week when the CPSC considered its 2016 operating plan.

During last week’s meeting, Commissioner Mohorovic proposed that the agency adopt an enforcement policy to eliminate a costly and burdensome p impacting the apparel and footwear industry but that could set a useful precedent for other industries as well.  The 2008 Consumer Product Safety Improvement Act requires that manufacturers and importers certify that their products comply with safety regulations.  One of those regulations deals with the flammability characteristics of fabrics used in apparel, sets out testing criteria to determine flammability and exempts from testing those fabrics that, because of their weight and material, inherently do not present the risk that the rule is concerned with.  As the agency rushed to quickly (and somewhat thoughtlessly) implement the requirements of the CPSIA, a majority of commissioners determined that apparel manufacturers needed to certify that exempt fabrics were, indeed, exempt from testing—in other words, they were required to certify that they did not need to test and certify.  Talk about circuitous logic!

But this overreach by the agency is costing the apparel industry—and consumers–$250 million each year in paperwork costs.  These costs have nothing to do with assuring the safety of consumers and are totally related to wasteful paperwork requirements.  Commissioner Mohorovic was able to convince his colleagues to reverse their earlier position and adopt an enforcement policy that abrogates this process of “certifying that you do not need to test and certify.”

In a similar example of good judgment trumping regulatory excessiveness, at last week’s meeting, Commissioner Buerkle convinced her colleagues to agree to direct staff to prepare a briefing package on the attributes of the California revised rule (known as TB-117) addressing the smoldering hazards associated with upholstered furniture.  The flammability hazards associated with upholstered furniture have been flummoxing the agency since it was created.  The agency exacerbated the problem by insisting that any rulemaking address every ignition source for upholstered furniture fires —not only the vast majority of fires that are caused by smoldering cigarettes, but also those caused by open flames such as lighters and candles. This insistence made the process of writing a rule that much more difficult.  And since the majority of fires are caused by smoldering cigarettes, the agency’s approach meant that the risk of upholstered furniture fires went unaddressed while the regulators pursued unrealistic and uneconomical solutions.  Given this dithering on the federal level, California took the practical step of writing a standard that applied to smoldering fires, which account for the vast majority of fires.

Commissioner Buerkle’s proposal asking the staff to analyze the California regulation is a good first step in moving the agency toward a realistic and, hopefully, more timely effort to address this important issue.  After close to 40 years of analysis, it is time that the agency brought this rulemaking to a sensible resolution.  I hope that Commissioner Buerkle’s proposal has given the CPSC staff the latitude to accomplish this objective—one which advances consumer safety in a practice way.

Isn’t it too bad that leap year comes only every four years.

“Means are Inconsequential; Only the Ends Matter”

History is replete with examples of bad things that happen when good people, with good motives, act to achieve an end without regard to the means used.  The CPSC’s letter last week to sellers of self-balancing scooters (most of us call them hover boards) brings squarely to mind that Machiavellian notion about ends justifying means.

The agency’s action came in the form of a letter from the acting director of compliance to sellers of hover boards telling them that their products should comply with the newly-released UL voluntary safety standard addressing the risk of fire associated with some of these products. Those products that do not comply with this voluntary standard will be considered by agency staff “to be defective and . . .may present a substantial product hazard,“  thereby triggering the reporting and recall provisions of §15 of the Consumer Product Safety Act and related penalty provisions.  While this may perhaps be a good safety result, the statute sets out a path for achieving this result and that path involves a bit more by way of due process than just issuing a decree to make it so, as seems to have been done here.  That path forward is set out in §9(b) of the Act and instructs the agency on how to rely on voluntary standards to address an established safety risk.

Few would argue against the need to address the safety issues associated with hover boards that have been highlighted in recent months.  And the CPSC is to be praised for its desire to investigate and fashion an across-the-board solution as opposed to its unfortunate recent tendency to regulate class-wide hazards by recall or retailer intimidation.  But no matter how laudable the motives of the agency may be, short-circuiting the statute is never good practice by a regulator.  Yet, in a striking example of ends justifying means, this is exactly what the agency has done.

9(b) of the Act sets out a process for the agency to use when it wishes to rely on voluntary standards to address safety hazards. That process requires the agency to collect and consider public comments before making a final decision to rely on a standard written by a voluntary standards organization. Once the agency uses this process to rely on a voluntary standard, the reporting and related enforcement provisions of §15(b) apply.  This process has rarely been used by the agency.  Why this is true is inexplicable to me. However, its use would have allowed the agency to quickly put in place a regulatory mechanism to address the risks associated with these products in a way that was consistent with the statute and that respected the due process considerations central to good regulatory practice.  Aside from being the right thing to do, it would also bolster the agency’s enforcement position in the (unlikely) event its actions are ever challenged. Instead, the agency acted by fiat to achieve the result §9(b) contemplates without bothering to follow the statute.

Some may argue that these products are so dangerous that the agency needed to act quickly and just could not be bothered to follow the law.  But again, the statute contemplates this type of imminent hazard situation and instructs the agency on the path to follow in such circumstances, a path that also includes due process protections. The statute was written to balance the public’s legitimate safety concerns with the public’s need for procedural protections to assure a just and fair result.  Hop-scotching over the statute, no matter the reason, is not something the federal government should do.

Saying Goodbye to Another CPSC Star

Several weeks ago, Neal Cohen, the CPSC small business ombudsman, called to tell me that he was leaving the agency.  Neal created the job of ombudsman and it turned out to be one of the most difficult and most under-appreciated but critically important positions at the CPSC.

The office of small business ombudsman was set up in 2010 in an effort to respond to the growing cries, especially from the small business community, that the agency’s regulations implementing the 2008 CPSIA statute were imposing a crushing burden on product sellers, notably small businesses.  When the office was set up, I argued that it should be a true ombudsman, bringing to the agency the concerns of small businesses as well as developing and advocating for solutions to the problems that community faced because of agency action.  Instead, the office was designed to be an outreach and education office—to help the small business community understand and comply with regulations.   While not fully meeting the true definition of an ombudsman, this still was a very important role, especially given the complexity of the rules the agency was in the midst of writing.  And Neal was just the right person to fill the position.

Over the past five years, Neal has worked tirelessly to make sure that businesses, especially small ones, understand their safety obligations as product sellers.  He has designed educational programs, given presentations throughout the country, answered thousands of emails and phone calls, and through that process, has helped the agency put a human and caring face on its work.  The latest achievement of his office, development of the Regulatory Robot, an on-line tool to help businesses understand what regulations they are subject to, will continue to be a testament to his dedication and hard work.

Whoever follows Neal in this role will have big shoes to fill but also a very good role model for how to get done a difficult but important job.  February 19, 2016 will be Neal’s final day at the agency. And as Neal leaves federal service to go into the private sector, no doubt he will come to understand even more the important public service he provided.

All I Want for Christmas Is . . .

A lifetime government job.  And if the commissioners at the CPSC grant tihe pending pettion to ban certain flame retardants, the staffers working on the ban will get that wish.

Earlier this month, the commission held a day-long hearing to consider a petition to ban all organohalogen flame retardants (OFT’s) used in children’s products, the plastic cases for electronics, mattresses and pads, and residential upholstered furniture.  Petitioners assert that the chemicals making up these flame retardants accumulate in the body and could cause cancer and other chronic diseases. Comments on whether to grant the petition will be accepted until mid-January.

So why does granting this petition guarantee lifetime employment for the staff working on it?  First, the breadth of the petition makes for an almost unmanageable task for those trying to write a regulation that would be upheld by a court.  The petition is not just asking for a ban of a single substance; instead it includes at least 83 different flame retardants, each somewhat different from the other, and would apply to substances for which risks are undemonstrated and entirely speculative. The product categories are also very broad and would include thousands and thousands of products where exposure to the OFR’s differ one from another.  Contrary to the assertions of the petitioners, the statute does not allow for regulation based on speculative harm. And like it or not, the statute does require that any regulation be based on risk and exposure.

In this regard, petitioners draw an analogy to the commission’s regulation of lead, a comparison that is entirely inapposite.  Prior to passage of the CPSIA, the agency regulated lead based how exposure contributed to risk of injury.  Congress changed that science-based approach and decreed that mere presence, not exposure, was the trigger for regulation of lead.  However, for other substances, the agency must still find the existence of a hazard and the mere presence of a substance does not necessarily indicate there is a risk of harm.

Establishing the extent of the risk for a wide class of chemicals as they are used in broad product categories is not the only statutory hurdle that must be addressed.  It is entirely unlikely that the ban requested by petitioners would satisfy the cost benefit analysis required both by the statute and by good administrative policy. For example, while barriers, rather than OFR’s, may be an option for upholstered furniture, the costs of implementing that option are extraordinary.  And the agency would need to consider the value of the lives saved from fires that were prevented by the OFR’s.

The statute also calls for the creation of a Chronic Hazard Advisory Panel (CHAP) when the agency seeks to regulate chronic hazards like those now under discussion.  As experience has shown, managing the work of a CHAP will keep a number of staffers working hard for the foreseeable future.

This is not to say that the health effects of OFR’s should not be examined.  On the contrary, the Environmental Protection Agency has the authority (soon-to-be enhanced under proposed amendments to the Toxic Substances Control Act), and has underway activities looking at these substances.  TSCA clearly gives the EPA the authority to regulate both these chemicals and their uses and the EPA is doing that.  If the pace or outcome of this activity does not satisfy the petitioners, then they should take action at EPA to change that, not go forum-shopping around the government.

This petition illustrates the quicksand the CPSC wanders into when it acts to regulate broad classes of chemicals that may present chronic hazards.  The agency is well equipped to address acute hazards but chronic hazards through chemical exposure present very different challenges.  Should the agency grant the petition and venture into the regulation of whole classes of chemicals, that action could sink the agency into a quagmire that will keep staff busy for years trying to claw out.

Killer Coffee Mugs?! Really?!

Did anyone else notice CPSC’s recall last week of ceramic mugs?  The agency is concerned about 4400 mugs with hairline cracks.  The hazard is not that they break and cut the user, or that there may be sanitary issues with germs being trapped in those cracks, but that hot liquids might seep through the cracks and cause a burn—not that any burns have been cracked holiday cupreported.

I am a potter.  I have a pottery studio and on most weekends you can find me at my pottery wheel.  But I am not a very good potter and I have made my share of ceramic mugs with hairline cracks.  The problem comes about when a pot that is not fully dried is put into the kiln or when the kiln temperature is either too low or too high for the type of clay and glaze being used.  And although, in those circumstances, it is possible to get small cracks in the surface, it is not possible for liquid to quickly flow out through those cracks. As the agency says in its press release, liquids can seep through, and by the time they get to the outer wall, it is just not possible for those liquids to be so hot as to cause a burn.  An annoying moisture ring on your table, yes, but a burn, no.

This is another example of the agency conflating product quality issues with product safety issues.  In this case, presumably the manufacturer reported the issue in an abundance of caution, probably under the agency’s Fast Track program. It used to be that not every report resulted in a recall and that the agency compliance staff was encouraged to exercise judgment and common sense in determining whether a recall was warranted.  But the position of Director of Compliance has gone unfilled for over three years so it is not surprising that leadership direction to the staff is lacking and staff may not feel empowered to make the sensible judgment calls without risking criticism.

As I have written before, when the agency turns a quality issue into a safety issue, it is wandering way outside its mandate.  Unfortunately, the agency has generated such confusion—and fear–in the regulated community with its enforcement policies that companies feel compelled to report things like mugs with hairline cracks.  That the agency compounds the problem by agreeing to a recall in such a case means that the definition of a safety hazard is totally unpredictable.  Apparently a hazard is whatever the agency says it is. Objective indicators, such as the existence of injuries, have no place in that calculation, replaced instead by speculative conjecture.

It is not clear how consumer safety is furthered by this result.  Perhaps it is time to change the agency’s name from the Product Safety Commission to the Product Quality Assurance Commission. It seems as if that is what the agency is trying to do.

Writing a Regulatory Punch List

Everyone needs to clean out the attic from time to time.  Through that process, you often come across things that you want to keep, that need to be repaired in order to be useful and that are just out of date and can be tossed. Featured image

With that in mind, this past week the CPSC published a draft plan for retrospective review of its existing rules—that is, a plan to develope a punch list for rules that need review.  The agency is asking for comments on the draft plan and those comments are due by December 28, 2015.  The draft review plan pushes forward the commitment the commissioners made earlier this year to engage in meaningful review of rules that are already on the books to identify regulations that are obsolete, excessively burdensome, counterproductive, ineffective or in need of modernizing.  Unlike the Commission’s earlier effort in 2012, this plan makes clear that all rules are potential candidates for review.  And it provides a mechanism for getting the public’s suggestions for rule review candidates.

The draft plan shows a commitment on the part of the agency to undertake a serious review of its rules.  But it remains to be seen whether this will be a plan with any teeth behind it or just another empty head-nod to good administrative practice. I do note that the plan does not include dedicated resources for implementation. And, importantly, it does not include a continuing commitment to provide for a review plan and metrics for that review in all new rules the agency issues.  That would be a helpful addition to assure that this plan does not just get stuffed back up into the regulatory attic to languish.

Regulating through the Front Door

Last week, the Hill newspaper published my article supporting a regulatory reform bill, S. 2006, recently introduced by arrows clip art Senator Portman and a bipartisan group of Senators.  Among other things, the bill sets out Congressional expectations for balancing the costs and benefits of rulemaking and directs agencies to adopt the least burdensome rule that addresses the issue in the proceeding.  As I stated in my article, “Regulating is not, and should not be, easy.  Requiring agencies to do the needed up-front hard work before issuing rules, as these reform bills direct, will result in better rules.”

Critics have pointed to these kinds of requirements as regulatory roadblocks—mere ploys designed to slow down the process.  I see them not as roadblocks but as speed bumps–useful tools to assure that the agency gets it right when it regulates. And unless the agency is actually required both to do the work, and then to regulate based on the results of that work, the temptation is to look at these requirements as “check-the-box” exercises that must be done on the way to a rule, often with a predetermined result.

I do have one concern about potential unintended consequences from reform of the rulemaking process.  To the extent that agencies perceive it to be harder to issue rules going forward, they may look for other ways to achieve desired results, thereby circumventing the protections and procedures of the reform bills.  I saw this operating first hand at the CPSC where “backdoor rulemaking” is not only accepted but embraced. Backdoor rulemaking involves taking enforcement or other action on a category- wide or product- class basis to achieve results that one would normally expect to achieve through rulemaking.  So if a product with a particular attribute is deemed to be substantial product hazard and recalled, then that action may, de facto, set the bar for all other products with similar attributes.  Transparency and due process are out the door.

Regulators regulate—that is what they do.  But category-wide enforcement should not be used as a subterfuge to avoid the regulatory process.  As these reform bills advance, Congress will need to be alert to this concern.

CPSC Veteran Closes One Chapter, Opens Another

Last week veteran staffer Marc Schoem announced he is leaving the agency to become the Executive Director of the International Consumer Product Health and Safety Organization (ICPHSO).  Marc has been at the CPSC almost from the beginning and served in many capacities, but really made his mark in the Office of Compliance.  While we all know that no one is irreplaceable, it is hard to imagine the CPSC without Marc Schoem.

I have often disagreed with the direction the political leadership has steered the agency.  Yet I have also seen how the dedicated career staff works hard every day to keep the agency on course in spite of the changing political forces that buffet it. Marc exemplifies the best in federal service.  He served as a mentor to young compliance officers and provided important leadership to the office.  His common sense and practical approach to problem solving was very helpful to me when I served as a CPSC commissioner.  And his vision and hard work as a board member helped ICPHSO become the important organization it is today.  While Marc will be missed at CPSC, he will continue to play an important role in advancing consumer safety.

If the Public Doesn’t Buy it, Keep Selling it Anyway

Today, the CPSC is reannouncing a recall because the original announcement garnered such a low response rate—under one percent.  Today’s action and the original recall – done in May, 2014—illustrate how the agency overuses and misuses the recall system.

Here’s the background.  In May, 2014, the agency announced a recall of portable adult bed handles used to assist getting in and out of bed.  According to the agency release, the bed handles could shift and create a gap with the mattress; three individuals in adult care facilities became entrapped and died in the gap between the mattress and the handle.  The agency is concerned about 113,000 bed handles manufactured between 1994 and 2007.  The remedy that the agency proposed is for those who have the bed handles to contact the company to get a set of straps (and 3 pages of instructions) to use to hold the handles in place.  And, yes, did I mention that they also get a sticker to put on the handle to remind them to use the straps?

The agency has taken a business-as-usual, cookie-cutter approach to a problem that needs more creative thinking to solve.  The home health care and adult care industries have traditionally not been ones that have had to deal with the CPSC. And while greater availability of products in the general marketplace makes for greater responsibility on the part of providers, safety regulators also have a role to play in reaching out to those it newly seeks to regulate.  Efforts to craft a safety standard for this product have now been over two years in the making, so writing a standard apparently is not necessarily an easy undertaking.  In the meantime efforts to encourage an industry safety campaign to educate caregivers—perhaps even giving out safety straps where needed–could go a long way to addressing the risks the agency has identified. But up to now the agency has been absent on that front. [Commission Adler and I will be on a program before the home health care industry next month addressing some of these issues.]  My point is that such an educational program would reach more caregivers in a more effective way than the 2014 press release and today’s reannouncement.  Yet, the CPSC is wedded to the notion that only a recall and press release will suffice, in spite of evidence to the contrary.

The recall is trying to reach products that are quite old.  The newest bed handles subject to the recall have been in the market for at least eight years and who knows how many are still being used.  The remedy that is proposed also appears to be somewhat hard to accomplish and that may also explain why so few people have responded. The statute states that a recall remedy shall be a “repair”, a “replacement”, or a “refund”; it does not say a “re-jiggering.”  Yet, that is what this feels like.

The CPSC has overused the recall device to the point that even when the agency yells, often people don’t listen.  It has underused its ability to take on safety campaigns, either solely or in cooperation with other allies who could help it leverage its resources and broaden its reach.  That is too bad.

Summer Reading

August is here, Congress is leaving town and it is time to settle in by the pool for a good read.  Let me recommend a few Woman-Reading-By-The-Poolthings.  For those looking for something light and frivolous, I recommend the CPSC’s proposed direct final rule instructing that only those toys made from the trunks of trees (Just the trunks?  Really?) will be exempt from pre-sale testing for heavy metals.

However, for a more thoughtful perspective not only on this rule but also on the overly-constrained approach a majority of Commissioners have adopted to trying to provide relief from its overly burdensome testing rules, I recommend Commissioner Mohorovic’s statement accompanying this rule.  He has rightly pointed out that the Commission has framed its work on burden reduction in such a way that real, meaningful results—that reduce costs without compromising safety—will be almost unachievable.  As the Commissioner states, where testing costs add a safety value then those costs are worthwhile, but where testing is required for the point of testing, as is the case under the CPSC’s current approach, then valuable safety resources are being squandered.

To further round out your CPSC reading list, be sure to check out the CPSC Commissioners’ blogs.  You can find them on the agency web site. I was so pleased to see that the Commissioners now are able to post blogs on the web site. This was not true back in 2009 when I started “Conversations with Consumers.”  To write and post a blog I had to go outside the agency and set it up privately.  Check out the Commissioners’ blogs from time to time to get a sense of what issues are of special interest to the leaders of the agency.


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