Wednesday, December 16, 2009

CPSIA - The Eyes Glaze Over . . . .

Sometimes I wonder if they have completely lost it at the CPSC. This evening we received the CPSC Federal Register notice on the Stay decision (actually entitled "Consumer Product Safety Act: Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements"). I seriously wonder if anyone read it over in Bethesda. I have NEVER seen anything this dense and unintelligible come out of that office.

As the Commission tucks itself into bed before an exciting day tomorrow in which it can either decently provide enough time for an orderly implementation of this mess of a law or send small businesses down the river, I hope somebody is thinking about the complexity of what they have wrought. Of course, rules always seem more complex when they apply to you than when they apply to someone else. Still, perhaps a quick scan of this document might enlighten the Democrat Commissioners who seem particularly dense on the subject of why businesses want more clarity before the rules go "hard".

I uncovered this while on a mission from a reader of this space. I had been alerted to the possibility that this document said that the lead content stay was LIFTED. This could not be true, since a ballot vote is definitely docketed for tomorrow on this subject. Even at a Waxman-dominated CPSC, it would be rather ballsy to issue a notice announcing a decision before the vote was tallied. With three Democrats "highly sympathetic" and "seriously considering" the opposing views but by all appearances having irretrievably made up their minds, it is not hard to imagine that skipping a step might have a certain appeal. Why bother waiting for the Republicans to lose (again)???

Well, incredibly, my reader was RIGHT - the document states that the date for the lead content rules to become effective is August 10, 2010, a "date certain":

"With regard to lead content, the Commission has determined that testing of children's products for lead content by a third party conformity assessment body and certification based upon that testing should begin on products manufactured after August 10, 2010 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term 'children's product.' An interpretative rule on the meaning of the term 'children's product' would provide firms with additional guidance on when testing for lead content will be required by the Commission."

Apparently, no one updated this FR notice for this morning's motion to docket this decision for ballot vote tomorrow. Oops!

Remember the part in the hearing today where they discussed market disruptions and the need for businesses to have time to absorb and adjust to the new rules? Does anyone wonder why we have confusion in the market after you read this document? Please be honest. Myself, I experience shortness of breath when I read dense prose like this. I think the works of David Hume seem more accessible than this kind of thing - so why does the Commission delude itself that anyone undersands the mountains of rules and rulings it spews out? Market confusion is all but certain when implementation is handled this insensitively.

One reason is that some Commissioners hear what they want to hear, and ignore the rest. This is called "selective hearing"; I know all about this topic, as there is at least one person who lives in my house who has been regularly accused of this malady. [No names, please.] For instance, yours truly pointed out serious errors in the presentations by CPSC professional staff during last week's workshop as well as in the preceding December 2 hearing to a Commission staffer. I don't blame the CPSC staff nor do I consider these errors to mean much . . . other than the fact that the CPSC staff is supposed to know these rules better than anyone else, and if they make errors (understandable), what do they honestly expect of the regulated community??? If we make these errors, we get whacked with high fines or possibly, if the CPSC is riled up enough, go to the pokey. Isn't the occurrence of serious errors by CPSC staff an indication of over-complexity? This was all known to the Commission before today's hearing. Get this - the Emperor has no clothes.

Still not convinced? Try this passage on for size, and then TRY to imagine running a normal business catering to children and in your spare time attempting to comply with this law. Imagine trying to master this law as implemented by the CPSC, given that you are not a lawyer, can't afford a lawyer or a legal department, and don't have a few unoccupied months to study the mountains of paper the CPSC emits. It's something you have to do in between everything else you do in your job. And the CPSC says:

"In the months after the Commission issued the stay of enforcement, the regulatory environment has changed significantly [No problemo!], and both the CPSC and interested parties have increased their understanding of the CPSIA and its requirements. [Yes, bring it, baby!] For example, between February 9, 2009 and the date of publication of this notice, the Commission issued more than 20 FEDERAL REGISTER notices, statements of policy, guidance documents, proposed rules, interim final rules, and final rules pertaining to the CPSIA, and most of these documents pertained to testing and certification issues. [This is not a joke. I didn't write this part, either.] These FEDERAL REGISTER documents include:
  • "Third Party Testing for Certain Children's Products; Notice of Requirements for the Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with the Limits on Total Lead in Children's Products," 74 FR 55820 (October 29, 2009);
  • "Notice of Availability of a Statement of Policy: Testing and Certification of Lead Content in Children's Products," 74 FR 55820 (October 29, 2009);
  • Proposed Rule on "Safety Standard for Infant Walkers," 74 FR 45704 (September 3, 2009);
  • Proposed Rule on "Safety Standard for Bath Seats," 74 FR 45719 (September 3, 2009);
  • "Third Party Testing for Certain Children's Products; Notice of Requirements for Accreditation of Third Party Conformity Assessment Bodies to Assess Conformity with Parts 1203,1510,1512, and/or 1513 and Section 1500.86(a)(7) and/or (a)(8) of Title 16, Code of Federal Regulations," 74 FR 45428 (September 2,2009);
  • Final Rule on "Children's Products Containing Lead; Determinations Regarding Lead Content Limits on Certain Materials or Products," 74 FR 43031 (Aug. 26, 2009);
  • "Notice of Availability of a Statement of Policy: Testing of Component Parts With Respect to Section 108 of the Consumer Product Safety Improvement Act," 74 FR 41400 (August 17,2009);
  • Final Rule on "Children's Products Containing Lead; Interpretative Rule on Inaccessible Component Parts," 74 FR 39535 (August 7, 2009);
  • Proposed Rule on Requirements for Consumer Registration of Durable Infant or Toddler Products, 74 FR 30983 (June 29, 2009);
  • Final Rule on "Children's Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination of Exclusion," 74 FR 10475 (Mar. 11,2009);
  • Notice of Availability of Draft Guidance Regarding Which Children's Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information, 74 FR 8058 (Feb. 23, 2009); and
  • Interim Final Rule on "Children's Products Containing Lead; Exemptions for Certain Electronic Devices; Interim Final Rule," 74 FR 6990 (Feb. 12, 2009).

Additionally, the Commission has met with numerous parties to discuss various aspects of the CPSIA or educate interested parties about the CPSIA's requirements, and, on December 10, and 11, 2009, it held a two-day workshop to discuss issues relating to the testing, certification, and labeling of certain consumer products pursuant to section 14 of the CPSA (see 74 FR 58611 (November 13, 2009). [You know, the one last Thursday and Friday with simultaneous panels going on all day on both days. There has been no time to review or consider the data gathered at the workshop, or the written comments which will continue to come in for the next 25 days.] Given the issuance of many rules and other FEDERAL REGISTER documents, statements of policy, and guidance documents [OMG, there were other documents besides these?!], as well as increased understanding of the CPSIA's requirements, the Commission believes it is appropriate to phase in the testing and certification requirements as described in more detail below." [This passage is followed by pages of details of stays lifted, extended, partially extended, whathaveyou. It also includes the errant language on the lead content stay.]

I find myself scratching my head in wonder. What is going on here? Is this being staged for effect, or are they SERIOUSLY trying to regulate this way? Is ANYONE accountable over at the CPSC? Can they get away with anything and everything?

It is sickening that a discussion is even necessary for the extension of the stay on lead content. The Commission should hang its head in shame for foisting this mess off on an innocent manufacturing community. What on earth did we do to deserve this treatment? I am tired of this Commission bowing down to Henry Waxman and a howling pack of fear mongering consumer groups. Those people have never worked for actual operating companies and know nothing about the realities of the marketplace or manufacturing itself. It's time to stop sticking it to the manufacturing community.

The WSJ noted tonight that Congress and Mr. Obama have hit new lows in popularity. I particularly found interesting that 81% of the participants in the new poll considered this "a period of division where the parties held fast to their positions and showed little willingness to compromise" in Congress. Do we really want this export at the CPSC? As a member of the regulated community, I vote no!

Tomorrow's vote is going to tell us all a lot about this Commission and its leadership. Watch this space for news.


Anonymous said...

It's not a Federal Register notice. It's a Vote Sheet with a DRAFT Federal Register notice attached. The Vote Sheet is dated December 15 (bottom right of page 1), meaning this is the document that was finished late Tuesday night and which Nord and Northup were complaining about getting late.

Notice that on page 2 of the Vote Sheet, there is a place to indicate changes such as Northup's amendment.

They simply appear to be working off the original document and presumably Northup's amendment, and any other changes, will be dealt with in the place provided.

Anonymous said...

The draft notice has been removed from the website. Seems it may have been posted prematurely.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

The removal of this document from the CPSC website is appropriate. Whether it is a draft document or a draft notice, it is misleading and does not correctly reflect yesterday's activities. Many people receive notices from the CPSC about new content and go to read those documents - and those docs need to be clear and correct. This process is hard enough for all concerned without having to deal with misleading or confusing releases from the agency.

The CPSC is under a magnifier right now because of its actions in implementing a defective law. A LOT of people have a lot riding on the decisions made by the Commission. While these folks may not all show up at hearings or even send in comment letters, that is less a reflection of a lack of commitment or interest on their part as it is of their sense of isolation and powerlessness. They are just being overwhelmed by government gone amuck.

The CPSC has the opportunity to lead us out of the wilderness but not until it comes to grips with the reality of its situation. I am always hopeful that this is happening but will feel better when I see concrete steps in the right direction. Today's vote is an opportunity to show that the Commission has its head screwed on right. They need to vote in favor of Ms. Northup motion to extend the lead content testing stay until six months after the 15 Month Rule is finalized. Anything less will be taken as a rejection of common sense.

Anonymous said...

The revised (December 16th date) draft notice has been published.

Michael said...

Michael said... needs .pdf at the end, it does not seem to want to embed through a copy and paste

Anonymous said...

I will amend my last comment. The ballot sheet was published, but without the original or amended draft FR notice.

Anonymous said...

Is there a similar "date certain" error in the component testing draft FR document (as currently published)Paragraph 9:

Children's products other than those described in paragraphs 7 or 8 must be certified as in compliance with the 300 ppm lead content limit only if they are manufactured after August 10, 2010 and only as to accessible parts that are not subject to the Commission determination described in paragraph 8 above. Pursuant to section 14(a)(2) of the Consumer Product Safety Act (CPSA), the certification must be based on testing by a third-party test lab listed on CPSC's website as qualified to test for lead in children's products. The Commission has issued a notice of requirements for recognizing laboratories as qualified to test for lead content in children's products (see 74 FR 55820 (October 29,2009».

Seems to me there's enough language in this FR without the vote on the stay (if, in its present form, approved by the commission) for my man Gib (the document's author) to start going after folks on 8/11/10?

Rick Woldenberg, Chairman - Learning Resources Inc. said...

The latest comment from Anonymous is correct, of course. This is yet another error in these overly-complex documents. Good thing there are sleuths working on scrutinizing these releases so closely - it's pretty much a full time job.

Will the agency ever figure out WHAT the problem is? I wonder . . . .