Submitted September 26, 2017
Re: Docket CPSC-2017-0029 Request for Information on Potentially Reducing Regulatory Burdens Without Harming Consumers
Dear Mr. Stevenson,
The Baby Carrier Industry Alliance (BCIA) is a US-based, registered non-profit trade association which exists to represent manufacturers, retailers and educators in the baby carrier industry. As an alliance of industry leaders, our mission is to promulgate standards across the industry, promote educational outreach, and help small businesses comply with regulations and best practice business guidelines.
The Commission has asked the regulated community for input on potentially reducing regulatory burdens without harming consumers. On behalf of the baby carrier industry, the BCIA respectfully submits the following comments for the Commission’s determination.
Background: Initial Certification Testing & Material Change Testing
The BCIA has consistently been in favor of third-party, initial certification testing for baby carriers to provide manufacturers, consumers, and caregivers with the added assurance that the products being sold in the market meet federal safety requirements for mechanical performance, chemical content, proper use instructions and labeling. This applies for infant carrier slings, 16 CFR Part 1228, a new CPSC regulation that will become effective on January 30, 2018 and is based on the voluntary industry consensus standard ASTM F2907-15. In addition, this applies to the existing standard for soft infant and toddler carriers, 16 CFR Part 1226, which incorporated by reference ASTM F2236-14, as well as the existing standard for frame child carriers, 16 CFR Part 1230 which incorporated by reference ASTM F2549-14a.
In addition to initial certification testing, the BCIA agrees with the Commission, consumer groups, consumers, and its members that material change testing for those material changes likely to affect the compliance of the product is also critical to maintaining ongoing compliance and supporting the assurances and validity of initial certification testing.
The BCIA believes that initial certification and material change testing for compliance with all carrier standards will strengthen the performance, durability, and safety characteristics of all three categories of baby carriers.
Excessive Testing & Excessive Costs: The Case to Reconsider a Low-Volume Periodic Testing Exemption
While the BCIA is aligned with the Commission on initial certification testing, the costs of annual, periodic re-testing (using a destructive test of at least one product) for compliance with 16 CFR Part 1107 are excessive and overly burdensome for many small and micro businesses, many of which are one-person operations, with the majority being women-led and family-run companies.
In 2010, when first promulgating 16 CFR Part 1107, the Commission then considered a low-volume periodic testing exemption requiring re-certification and new periodic testing only when a manufacturer had reached a threshold of 10,000 units of production of the same product.
BCIA is hereby requesting the Commission reconsider this option, albeit perhaps at a lower unit figure, for the reasons explained below.
Small and Micro Businesses Should Not Have to Periodically Retest Low-Volume Production
BCIA is in favor of the Commission reconsidering how frequently, if at all, small and micro businesses who have subjected their product to initial certification testing must periodically retest the product. As some of the other comments in this current docket attest, some of these micro manufacturers produce as few as 10 to 200 products a year. The methods, materials, and craftsmanship during the process of production for those products remains largely unchanged throughout production and is usually completed by a single craftsperson. Once their product has undergone initial certification testing, few, if any, material changes are likely to be made that would affect the core structure of the product.
CPSC staff have already undertaken extraordinary work to demonstrate why small and micro businesses should not have to test with the same frequency as larger manufacturers. In its staff briefing package of April 1, 2010, CPSC staff recommend that “certifiers of low-volume (less than 10,000 units) children’s products should not be required to conduct periodic testing on products until 10,000 units of that product have been produced since the last CPSC-recognized third-party conformity assessment body testing of that product.” The staff continued by recognizing that the reason that “low volume certifiers are singled out for relief is that the cost of third-party testing will generally have a larger adverse impact on low-volume certifiers than on higher volume certifiers. This is because the cost of testing a product is generally the same whether a large or small number of units are produced.” CPSC staff then provide a detailed analysis of how they recommended a threshold of 10,000 units.
In the Commission’s Notice of Proposed Rulemaking in May 2010, the Commission adopted the staff’s proposal. “The proposed rule would not require periodic testing for production volumes of less than 10,000 units because certification and periodic testing costs are largely independent of manufacturing volume. Certification testing and testing after a material change are still required and may be performed on portions of the finished product or representative samples that are the same with respect to compliance as the finished product.” The Commission’s 2010 proposal, which maintained the requirements for initial certification and material change testing but limited the periodic testing based on units, is the same position that BCIA is advocating for at this time.
Unfortunately, however, the Commission removed this very reasonable and common-sense proposal from its Final Rule.
Small and Micro Businesses Did Not Have a Seat at the Table in 2010
At the time of its proposal in 2010, small businesses and their representatives were not aware of the Commission’s periodic testing rule proposal and the Commission had not engaged in any significant outreach to the small business community. A high percentage of these businesses were in fact not yet established to the level that they would have the resources to participate in regulatory affairs.
The date of the proposed rule predates the establishment of our own organization, the BCIA, which was formed in response to actions by the CPSC Office of Compliance, that, at the time, was using back-door rulemaking and enforcement actions to try to create a de facto ban on infant slings. Even after the Office of Compliance eventually backed down, it had driven BCIA members out of business through its aggressive tactics. Our member-driven organization, which was still nascent, was focused on preserving our industry from the actions set forth by the Office of Compliance and were unaware that this proposal had been put forward nor how it would affect our industry. As such, we were not able to comment on how these regulations would affect our industry and others like it. Our working relationship with today’s Commission and Office of Compliance is dramatically different than in 2010. The Commission now appears to recognize the utility of baby carriers. The Commission has accepted and normalized the use of baby carriers, including infant slings, with the adoption of federal standards, a welcome development for the industry and a 180 degree turn from the systematic enforcement actions of the CPSC Office of Compliance in 2010. This industry, and others like it, have since matured and better understand today’s CPSIA. With years of testing, certification experience and results, it is now time to provide small and micro businesses an opportunity for their voices to be heard. We believe that if this issue were thoughtfully reexamined today, this Commission would be much more mindful to the full scope of impact these burdensome regulations have on small and micro businesses and would be invested in finding suitable middle ground solutions.
While it is true that the BCIA has been involved in the promulgation of the substantive standards for soft-structured infant carriers and infant slings, until now the BCIA has not had the opportunity to revisit the lack of procedural due process in 2010. At the time of the proposal in 2010, the Commission had not engaged in any coordinated outreach to reach out to the small business community and, recognizing the shortcomings of its outreach, the Commission voted (in September 2010, after the comment period on proposed 16 CFR 1107 has closed) to create the then-named Office of Education, Global Outreach, and Small Business Ombudsman to rectify this omission in September 2010. The Small Business Ombudsman position has since played a critical role in educating the baby carrier industry and other industries comprised of small businesses. (The SBO just recently provided a well-received webinar on infant sling carriers to our industry in July 2017.) Both past and current SBO are well respected and knowledgeable resources available to our industry and provide a valuable liaison service between industry and the CPSC.
The lack of prior outreach efforts by the Commission is reflected in the names of those submitting comments to the CPSC-2010-0038-0001 docket, which are substantially devoid of small and micro business representation. Again, our own organization, the BCIA, was only formed in the summer of 2010, after the low-volume proposal was placed for public comment. As you will see from other comments in this current docket, the industry now contains a group of hand-weavers who manufacture custom baby wraps and ring slings; these small businesses did not have the opportunity to comment in 2010. A substantial number of our industry members would benefit greatly from a low-volume production exemption.
A Low-Volume Periodic Testing Exemption for Small and Micro Business Should Be Reconsidered by the Commission.
The Commission should now add the study of a new approach to a low-volume periodic testing exemption to its regulatory burden reduction activities.
The BCIA believes that this low-volume exemption – even at a “micro” level of units, well-below the previously-proposed 10,000 units – would offer meaningful burden reduction while at the same time not harming consumers.
CPSC has always styled itself as a data-driven, risk-based organization. Risk is, of course, the chance or probability that a person will be harmed or experience an adverse effect if exposed to a hazard. Empirically, the fewer products in the marketplace must mean that the risk of a particular hazard coming to fruition is lower, all other variables being equal. The Commission may have been guided principally by its analysis of possible hazards in the marketplace in 2010 without considering the lower risk for products manufactured in lower volume. While any injury is one too many, the CPSC must take a measured approach to risk, balancing not only the potential costs but also the potential benefits of certain types of products. This is especially so where a product has already been tested for compliance via initial certification testing and, if applicable, material change testing.
In addition, the likelihood of unknown, unreported material changes in a product’s manufacturing process that annual periodic testing is intended to capture is much lower in low-volume production than in typical mass production. Where a small or micro home-based artisan is creating a product, that business typically closely manages its supply chain in a manner that obviates the need to “catch” otherwise unreported material changes that might need to be “caught” with periodic testing for product manufactured in mass production factories.
With the effective burden of annual periodic testing so high for America’s small and micro businesses, this Commission should thoughtfully reexamine the approach of its original staff recommendation and reconsider a low-volume testing exemption for small and micro businesses.
Thank you very much for your consideration. Please contact me at any time should you have any questions about this request and/or require further information to further its implementation.
Executive Director, Baby Carrier Industry Alliance