CPSC Commissioner Nord Unleashes Barrage of Criticism at Part 1110 Certificate Proposal

The commission voted unanimously May 1 to publish the proposed rule in the Federal Register. According to minutes of the CPSC vote, Nord had originally voted to adopt the proposal along with various amendments, but changed her vote to oppose May 6 (here). That 2-1 vote was separate from the unanimous vote to publish the proposed rule. The proposed rule was published in the Federal Register May 13 (see 13051018).

Cost analysis. In her series of posts on the now-published proposed rule, Nord first took issue with the cost analysis in the proposed rule (here). “One of my biggest frustrations was that my colleagues were unwilling not just to do more to reduce the annual costs of this rule but even to be upfront I the way we presented its costs to the public,” she said. Nord wanted to include a chart that would purportedly show the costs of the proposed provisions when acting in concert other CPSC standards, including testing and certification rules for children’s products and component parts. According to Nord, her approach was rejected in favor of including only the costs of the proposed changes to part 1110. The two calculations result in extremely different outcomes; the proposed rule estimates a total annual cost of about $118 million, while Nord’s approach yields an annual cost of $424.2 million.

Certification of banned products. The following day, May 7, Nord criticized the proposed rule for its lack of any “general guidelines to help a company determine if a ban relevant to its products requires certifying, ‘this is not banned’” (here). The certification of conformity to bans is required by the Consumer Product Safety Improvement Act, Nord said, and is a difficult provision to implement. “Read too broadly, requiring something to certify that it is not banned could lead to absurd results,” like requiring baby blankets to certify that they are not lawn darts, said Nord.

While she noted the proposed rule provided some explanation in the proposed rule’s preamble, Nord wanted the following language inserted in the proposed regulations: “certificates are required for products which are subject to a ban when the banned characteristics defined by the language of the ban do not define the whole product category within which the banned products fall and the products are not specifically excluded from the ban.”

Treatment of exempt products. Nord also expressed unease with the proposed rule’s treatment of products exempt from testing, and wondered why the other commissioners purportedly refused to ask for comment on the issue (here). According to Nord, the proposed rule originally said that products exempt from testing would not require a certificate to that effect. But as issued, the proposed rule would require a certificate that says the product is exempt, Nord said. “Requiring a certificate with no information other than an exemption is wasteful and contrary to the purpose of the testing regime,” she said. But not only did the other commissioners refuse to adopt her proposal to return to the original proposal, they also refused to ask for comments specifically on the issue, Nord said.

Recordkeeping. Finally, Nord questioned the proposed requirement that records for certificates be maintained for five years (here). That uniform timeframe conflicts with product-specific recordkeeping requirements that have varying record retention periods, Nord said, which would create unnecessary confusion. For example, mattress flammability standards require retention of records for as long as a product is on the market, and for three years after.

The proposed rule matches the General Certificate for Conformity record retention period to the five-year period for Children’s Products Certificates. Instead, CPSC should have matched the GCC record retention periods to the standard governing the underlying product, Nord said.

Nord also expressed concern about the proposed requirement that electronic certificates “be in an accessible location without password protection and identified on the product, its packaging, or its invoice” (here). Doing so makes the certificate available to everyone, “even people who might use them for illegitimate purposes,” she said.