HTA Letter to CPSC on Registration of Small Batch Manufacturers in the CPSIA Reform Law

August 19, 2011

Office of the Secretary
Consumer Product Safety Commission
Room 502
4330 East-West Highway,
Bethesda, Maryland, 20814

Dear Mr. Stevenson:

On behalf of the Handmade Toy Alliance, an alliance now numbering 670 toy stores, toymakers and children's product manufacturers from across the country who want to preserve unique handmade toys, clothes, and children's goods in the USA, we respectfully request your clarification and action in regards to the registration requirements for small batch manufacturers in the newly signed CPSIA reform law, H.R. 2715.

Congress has now expressed its clear intent to provide regulatory relief to the small businesses we represent. As you know, H.R. 2715 allows small batch manufacturers to assure compliance with applicable product safety laws through less expensive alternative testing methods and exempts them from testing altogether when no affordable alternative testing methods are identified by the Commission.

The Handmade Toy Alliance would like to be fully engaged with the CPSC as it interprets H.R. 2715. Our goal, as always, is to create a regulatory environment which protects both public health and the welfare of the small businesses we represent.

It has come to our attention that members of the Commission are interpreting H.R. 2715's requirement for small batch manufacturers to register with the CPSC as a technicality which requires the completion of an official registration process by the Commission before relief willbe provided. This interpretation is contrary to our understanding of the law and contrary to congressional intent as we understand it through dozens of conversations with bothRepublicans and Democrats in the House and Senate.

The text of the law reads:

Any small batch manufacturer that utilizes alternative requirements or an exemption...shall register with the Commission prior to using such alternative requirements or exemptions pursuant to any guidelines issued by the Commission to carry out this requirement.

The word any in this sentence makes it clear that a manufacturer's ability to register with the Commission is not predicated upon whether or not the Commission has issued guidelines for registration. If the word any were not present in the sentence, the meaning would be different. However, the inclusion of the word any makes it clear that small batch manufacturers may still register with the Commission even in the absence any official guidelines. It is our interpretation that, in the absence of any guidelines from the CPSC, a small batch manufacturer may register with the CPSC in any manner which the manufacturer deems appropriate.

Our interpretation is supported by the previous section of the law, which reads:

The Commission may not require third party testing of a covered product by a third party conformity assessment body until the Commission has provided either an alternative testing requirement or an exemption...

This sentence clearly states Congress's intent that, in the absence of any action by the CPSC, third party testing will not be required for covered products made by small batch manufacturers. Relief is not contingent upon the CPSC's ability to identify alternative testing methods. Nor should relief be made contingent upon the establishment of registration guidelines.

We therefore formally request the Commission to make an immediate finding of fact that relief for small batch manufacturers under H.R. 2715 is not contingent upon the promulgation of registration guidelines by the Commission.

Notwithstanding our position on this interpretation, we would like express our interest to help create a sensible registration process as soon as possible. Registration should be simple and straightforward for both the Commission and small batch manufactures. We agree with Senator Rockefeller, who spoke on the Senate floor:

The creation of a new public [sic] registry for small batch manufacturers...can be implemented without notice and comment or even a hearing. As such, the Commission should act to effectuate the new mandates of this bill in a most expeditious manner.

Senator Pryor then seconded this view:

I also share the Senator’s view that nothing in H.R. 2715 is intended to delay the Commission’s rulemaking with respect to third party testing and believe that the Commission should conclude its testing rulemakings in the next 2 months.

We agree with Senators Rockefeller and Pryor that 2 months is an appropriate timeline to complete registration guidelines. This will allow enough time for small batch manufacturers to register prior to the expiration of the ASTM F963 and lead in substrate testing stays of enforcement on December 31. If the registration process is not completed by October 31, 2011, there will not be enough time to notify small businesses before the expiration of these stays. As we have stated previously, the last two months of the year are the busiest season for our members. So, the earlier they can begin to register, the better.

Small batch manufacturer registration can and should be as simple as filling out a registration form or sending an email to a specified address at the CPSC. The Commission may also want to allow outsourcing of this task to trade associations or businesses who could collect and compile a database for the Commission. We would like to discuss alternatives with the Commission as soon as possible, as well as ways in which our organization can help publicize the registration process to our members.

Thank you again for taking the time to read and consider our comments.

Respectfully Submitted,

The Handmade Toy Alliance