CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

In an announcement today calling for comments, the CPSC announced the December 10/11 seminar on the “15 Month Rule” and called for comments by January 11, 2010. Notably, the CPSC announced the following details:

“The workshop will be held from 9:30 a.m. to 4 p.m. on Thursday, December 10, 2009, and Friday, December 11,2009 at the CPSC’s headquarters building at 4330 East West Highway, Bethesda, Maryland 20814, in the 4th Floor Hearing Room.

The workshop will open with a review of CPSC staffs current work on sections 14(a) and 14(d)(2) of the CPSA, including a discussion of the factors involved in sampling and an overview of the economic issues, followed by break-out sessions on the following subjects:

• The Consumer Product Labeling Program;
• Reasonable Testing Programs;
• Sampling Plans;
• Safeguarding Against Undue Influence on Product Testing;
• Additional Third-Party Testing Requirements for Children’s Products; and
• Verification of Children’s Product Testing Results.

The panels at the break-out sessions will consist of Commission staff and invited members from the public. If you would like to make a presentation at the workshop or be considered as a panel member for a specific break-out session, please send, via electronic mail (e-mail), a note indicating your desire to participate and/or indicating which of the break-out sessions you wish to join. We ask that you limit the number of break-out sessions to no more than three. We will select panelists and persons who will make presentations at the workshop, based on considerations such as: the individual’s familiarity or expertise with the topic to be discussed; the practical utility of the information to be presented (such as a discussion of specific standards, methods, or other regulatory approaches), and the individual’s viewpoint or ability to represent certain interests (such as large manufacturers, small manufacturers, consumer organizations, etc.). The e-mail should be sent to Robert Howell at rhowell@cpsc.gov no later than November 20, 2009.”

As noted, comments are due on January 11. As this is expected to be one of the most hotly-debated subjects under the CPSIA, the promulgation of the “15 Month Rule” will take some time thereafter and may be subject to comments again before the rule becomes “final”. The “15 Month Rule” is far off at this point. This suggests some action, hopefully soon, to extend the testing and certification stay. Fingers crossed . . . .

The CPSC document is remarkable for its candor about problems with this troubling rule. Considerable detail is provided in their 25 page announcement. Their acknowledgement is, in and of itself, a shift. [The delay was announced over the weekend by Nancy Nord in her new blog.] The fact that the CPSC evidences deep concern over the challenges in this rule implies that it recognizes the severity of the business community’s issues under this law. [The CPSC and its professional staff are likewise victims of the CPSIA, but at times a forgotten victim.] Their admission in advance of the November 14 deadline can only be interpreted as a courtesy to the business community, a much-appreciated one, too. This has been in the works for some time, apparently – I am personally grateful that they didn’t wait to the very last minute to let us know of the delay.

I think it is becoming clearer that the CPSC is listening. Now the next challenge is to translate listening into action. No one, NO ONE, wants to endanger children. In fact, no one EVER wanted to endanger children. The challenge before us (Congress, the CPSC and the business community together) is to craft rules and mechanisms that reasonably protect children while not snuffing out markets, products or companies. I hope that the CPSC and its leadership also see clearly that important parts of the problem are beyond their power to remedy – and that they must go to Congress to get help. To me, this is a “lesson learned”. And . . . the sooner, the better.

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CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

CPSIA – Nancy Nord Announces a Delay in the "15 Month Rule"

As hinted at in this space on Thursday, the CPSC is apparently going to delay the issuance of the so-called “15 Month Rule”. In Nancy Nord’s new blog, she provides the following important information:

“Periodic Testing – On a related issue, the CPSIA requires that we issue a rule setting out further testing requirements within 15 months of enactment (November, 2009). The agency will not meet that deadline in spite of best efforts to do so. This issue is extremely complex and we need additional input from the affected public before we give answers. The staff will hold workshops on December 10th and 11th to seek public participation. A Federal Register notice will be published with details about the workshop and will also provide details for those who wish to submit written comments. In addition, a draft “Guidance Document on Testing and Certification” will be discussed with the Commission at a public meeting on November 9th. See http://www.cpsc.gov for webcast details.” [Emphasis added]

This is good news for the business community on several levels. First of all, the CPSC is now communicating informally through at least one blog. While it increases the number of places to watch for legal developments, you can’t beat candor and openness. In addition, the CPSC is doing the considerate thing – giving advanced notice of a material event (the delay in this much-anticipated and much-feared rule). They are being nice, which is MUCH appreciated.

Finally, the Commission is being candid and admitting a small failure. [In fact, the admission is being done in a bi-partisan way, as Democrat Tenenbaum presumably consented to Republican Nord announcing this development in her new blog.] It is somewhat more complex than that, in fact. This is probably not best understood as a failure of the CPSC (although they are going to miss a date). They are CHOOSING to miss a date. Why? My guess is that they realize how important this rulemaking is, and are probably troubled by what the rule would look like under the (defective) CPSIA. It’s a public acknowledgement, the strongest in a long while, by the agency that it is genuinely troubled by the unintended consequences compelled by the new law. Withholding the 15 Month Rule is a sign of resistance against doing more damage in the marketplace.

The CPSC has heard from many stakeholders that this rule could be the final straw. I think it’s fair to assume that they do not want to do more damage. It is a bi-partisan worry, too – which is in the character of the CPSC over the years. They have not traditionally been the enemy of the business community, so it is nice to see them act with consideration again. Rumorville has it that the CPSC Staff could not find the magic words to make this rulemaking “work”. Good to admit it. There’s a lot implicit in that statement, most of it very good.

In my comment to the Nancy Nord blog, I ask the Commission to use the plain English meaning of the statute to make their decisions. If they cannot make a sensible decision using the plain English meaning of the words (e.g., does “any” mean “any” or not?), then the Commission should go to Congress and ask for an amendment. A statutory scheme based on twisting words into pretzels does not serve anyone’s interests. To understand our obligations, we go to the statute and read it. How can we run our businesses if there is a super-secret meaning to plain English words? Are we expected to master hundreds of pages of releases spread of months or years to discover the nugget explaining that “any” doesn’t mean “any”? This kind of treasure hunt inevitably fails. [If you like treasure hunts, see my recent blogpost on resale shops.]

Importantly, the CPSC has announced a two-day meeting on the 15 Month Rule on December 10/11. This is a critical meeting for all stakeholders. Please try to make it. I will be there.

Bottom line, this announcement is another gratefully-received sign of a shift in the wind. Let’s see whether more good follows in coming weeks. We now have more dots to connect. It would be wonderful to be able to trust the CPSC and the law again. Guys, please keep plugging away!

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CPSIA – Nancy Nord Announces a Delay in the "15 Month Rule"