CPSIA – Power Imbalance

When the respected Chairman of the CPSC uses a prominent keynote speech to tell us:

“But now that our team of experts has gone back to the process of building the database, I want those in industry to stop fighting old battles and get prepared.”

and

“Well, to all of you here today, I say don’t believe everything you read on the Internet, except what you read on Web sites that end in dot gov.” [Emphasis added]

I believe it is an abuse of power by a public official.

Let’s think about how the cards are stacked in favor of the Chairman:

• She is appointed by the President to a fixed term of office and is not subject to removal but for malfeasance,
• She gets the microphone and media attention at her pleasure and is a regular on popular TV news shows,
• She has a PR machine working for her full-time,
• She supervises the writing of the rules and policy setting (including implementation of the CPSIA), the issuance of penalties, the prosecution of recalls and other cases (up to and including criminal charges), oversees appointment of senior staff, interacts with Congress and the Executive Branch on behalf of the agency, and oversees open forums with stakeholders as well as the solicitation of comments and other feedback loops with stakeholders, and
• She speaks for the Federal Government on consumer product safety.

That’s a lot of firepower. Most people don’t want to cross someone with so much power or influence as well as the almost unrestrained ability to prosecute. Let’s not forget another quote from her speech: “A new Commission that has new powers – and we are not afraid to use them. If you resist our efforts to recall children’s products, be forewarned, this Commission stands ready to be creative in the use of our enforcement authorities.” [Emphasis added] She has a lot of power and wants you to know she’s ready to squish you.

The Chairman is essentially judge and jury in cases and policies that matter a lot to safety stakeholders. Her warnings to “to stop fighting old battles” can be taken as a warning to people like me. It is hard to not believe that she is trying to be intimidating. Likewise, with her federal imprimatur, her remark that you should not “believe everything you read on the Internet, except what you read on Web sites that end in dot gov” feels like an effort choke off debate. Be forewarned, indeed.

This power dynamic is not my imagination. Others facing the overwhelming power of the federal government routinely have had to cave, right or wrong. For example, the latest issue of Fortune magazine features an interview with Stasia Kelly, former General Counsel of AIG. She tried, in vain, to negotiate with Kenneth Feinberg, the federal “Pay Czar” on behalf of her company. Eventually she quit her job, rather than face the consequences of Mr. Feinberg’s unilateral plan. Here is an excerpt from the interview:

“The next huge event for you was the June 2009 entry of Kenneth Feinberg, the special master of compensation for seven companies, AIG very much included, that had received TARP funds and not paid them back. You were AIG’s point person in dealing with Feinberg. I’ve read you emerged from that experience disliking it heartily. Was it bad from the beginning?

Yes, because, first of all, it’s very hard to negotiate when you have no power. Feinberg had the power — unfettered power. Our new CEO, Bob Benmosche, and I tried very hard to let him know what compensation we thought we required to attract and retain the kind of people we needed to pay off our debt to the taxpayers and deal with the risk in FP. We had the New York Fed and Treasury behind us on that. But Feinberg had political and populist considerations to worry about and a need to set amounts that would satisfy those. As we negotiated over the months, it became increasingly obvious to me that we were not going to end up in a good place.” [Emphasis added]

High officials at the CPSC have enough administrative and political power to be tremendously coercive. This goes double for small companies who lack the financial or political firepower to blunt a government attack. You can’t overlook the fact that the powerful Henry Waxman is essentially the CPSIA’s “sponsor” and hence, the principal off-stage player behind this leadership group. When they use their bully pulpit to stifle debate, they are essentially borrowing and wielding his power. This is a caustic environment, and it is not lost on anyone listening to their speeches. While the “have’s” may like it, the “have-not’s” (like me) chafe. This is a bad approach to building a community.

The folks running the CPSC are just trying to do their jobs. So am I. There’s room for both of us. Safety doesn’t have to be all about politics (see the Kelly quote above) and if leadership at the agency can guide us to a place where it isn’t all about politics and populism, the stakeholder fractiousness might die down. Until then, I would appreciate it if leadership would stop trying to stifle debate or discredit independent sources of commentary. It’s not our fault we don’t have a “dot gov” URL.

Read more here:
CPSIA – Power Imbalance

CPSIA – Here’s a "Dot Gov" Website I Trust!

Check out this April 2009 GAO report entitled: “FINANCIAL AUDIT Material Weaknesses in Internal Control Continue to Impact Preparation of the Consolidated Financial Statements of the U.S. Government”.

I must say, this one has the ring of truth:

“Why GAO Did This Study

Since GAO’s first audit of the fiscal year 1997 consolidated financial statements of the U.S. government (CFS), material weaknesses in internal control and other limitations on the scope of our work have prevented GAO from expressing an opinion on the accrual basis CFS. Certain of those material weaknesses relate to inadequate systems, controls, and procedures to properly prepare the CFS.”

Certainly a government source we can trust – the GAO has been unable to sort out the validity of the consolidated financial statements of our government since, oh, 1997, the year of its first audit. That’s only 13 years of qualified opinions. Garbage in, garbage out?

I must say, very believable.

Read more here:
CPSIA – Here’s a "Dot Gov" Website I Trust!

CPSIA – Decorum

I have received some comments in the last 24 hours that I consider abusive and personal in nature. This blog space is intended to be a forum for discussion of a limited topic, the issues surrounding the CPSIA, its implementation and its administration. I do not attack people personally for their views, although I certainly reserve the right to disagree with the positions, tactics or methods of the various actors in this drama. This is not personal and will not become personal while I am on the watch.

Let’s keep it clean, guys. I do not filter comments to this blog and do not want to. To date, the only comments I have deleted are comments that promote other people’s businesses (generally, these comments promote “adult” businesses) and one comment that I felt was insulting to a Commissioner (a Democrat, as it turns out). Some things are just across the line. I do not want to restrain your ability to comment here BUT if you won’t obey the rules, I will turn on the filter and will shut you down.

Please don’t ruin this for everyone. I will not tolerate personal attacks or other violations of ordinary decorum in this space.

Read more here:
CPSIA – Decorum

CPSIA – The Text of Inez Tenenbaum’s Keynote Speech at ICPHSO

The CPSC has posted Ms. Tenenbaum’s fiery speech on their website. Here is the link. If you want to share the experience we had at ICPHSO, here is the video of the speech itself. Enjoy!

Read more here:
CPSIA – The Text of Inez Tenenbaum’s Keynote Speech at ICPHSO

CPSIA – Am I a Libertarian?

I was asked today if I am a Libertarian. I assume that’s because I complain regularly about the growing size, budget and invasiveness of the CPSC coupled with the agency’s diminishing impact. Does that make me anything other than opinionated? Is a label in any way informative or even appropriate? I find the urge to place me and my comments in some sort of category rather disturbing – are my comments so hard to interpret that I can only be understood with the orienting effect of a label? Let me assure you, my views are not guided by a political philosophy. I am simply reacting to the mess made by Congress when it passed a terrible, poorly-conceived law.

Opposing this law has certainly changed me and given me a completely new way of understanding the way our government works . . . or as Senator Byah might say it, doesn’t work. Am I wrong to accuse the planners behind the awful CPSIA of increasing the size and intrusiveness of government to negative effect? I know I must seem like a grumbler – but is that fair?

Often, when I think of my increasing stridency on this topic, my mind drifts back to this Seinfeld clip. The absurdity of the CPSIA situation seems somehow captured by the episode where entrepreneur Kramer starts up a new transportation business in New York City. This is the scene where he is evaluating his new drivers.

Read more here:
CPSIA – Am I a Libertarian?

CPSIA – Waxman’s New Amendment Progress Report

In the last couple weeks, Rep. Henry Waxman’s staff on the House Committee on Energy and Commerce has been approaching Republicans and various stakeholders for feedback for a “bipartisan” approach to fixing the CPSIA. In these discussions, the staff has acknowledged that the law is “flawed” and requires surgery, not just tweaks. An interim (artificial) deadline of this week has been established for comments on their planned amendment. A draft of this amendment has not seen the light of day yet. No one knows what it will say.

While this may sound “good”, the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children’s Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]

The Waxmanites seem interested in helping out the ATV’rs. Apparently, the legislative logic is that if the amendment caters to the ATV’rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: “The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!”

Among the “have-nots” in this approach:

• “Common Sense”. This case-by-case or product-by-product approach means that the Waxmanites refuse to even consider trusting the CPSC to do its job and assess risk for itself. The only people the Waxmanites and consumer groups can trust are . . . are . . . themselves. You won’t be able to draw a line between those that are “in” and those that are “out” in any rational way.
• Rhinestones. On the subject of rhinestones, my understanding is that they are so resolute on keeping these innocent stones in the bill that they would be willing to write rhinestones in explicitly. This is the opposite of case-by-case exclusion – it’s a case-by-case INCLUSION.
• Educational Products. While the Waxmanites say they want to exclude educational products, they can’t figure out how to do it since you might use an educational product in your home. Horrors! Again, without a simple notion of what’s safe and what’s not, how do you expect a sensible rule to emerge from this primordial goo?
• Bikes. They really want to figure out how to help bikes but can’t seem to do it. For this reason, they are chatting about an indoor/outdoor exclusion. In other words, and I am not kidding, they have suggested a rule that if you keep something in your garage, it’s “out”, and if you keep it indoors, it’s “in”. So everybody – move all your toys, children’s clothing and shoes, furniture, books, pens, appliances and so on into your garage, quick, so you can qualify for this great new exemption! [Try to resist holding a garage sale, though, because that presents special risks under the law!]

Not one to look a gift horse in the mouth, I am happy they are thinking of an amendment, but I am not happy that we still find ourselves adrift without any sense of what’s safe and what’s not. It is hard to foresee an amendment that does much good with this kind of inflexibility. Bipartisanship promises to be hard to obtain or a sham staged by Democrats for their own benefit.

Remarkably, a hidden issue that may weigh on these proceedings is the growing awareness of paralysis at the CPSC. The agency saw a massive increase in its budget last year, to match its massive new responsibilities, but still finds itself mired in open projects and conflicting priorities. Simple things are taking forever. Agency paralysis cannot be prevented in this environment without a significant paring of CPSIA priorities, something that the Waxmanites have a hard time conceding. And Obama won’t give the agency more money, so they’re stuck. And we’re stuck.

That’s not where you want to be.

Something to think about as we go forward:

1. Principle One: Your silence is deemed to be your approval. Silence = approval. You must swing from the rafters to get their attention, too. No, don’t do that – too dangerous.
2. Principle Two: An unopposed view, particularly a document with footnotes, is considered definitive. After all, if it were wrong, why didn’t anyone point it out, with footnotes? This is really how the Waxmanites think.

You need to keep these principles in mind. Your loud involvement can help a lot.

To Be Continued . . . .

Read more here:
CPSIA – Waxman’s New Amendment Progress Report

CPSIA – Some ICPHSO Humor

After a day at ICPHSO when

• The General Counsel quizzed the audience perhaps ten times about who was tweeting (my spies indicate that three people tweeted from that session, including me), ribbing us (me?) for letting you know what she was saying. [I blogged live from last year's event, which was noted with shock by some participants.]
• The Chairman instructed us not to believe “Internet rumors” and to only believe websites ending in “dot gov”. You know, you can always believe your government!
• The Chairman told us to stop fighting old battles – in other words, give up, guys!
• The Chairman heralded the work of the Center for Environmental Health, one of the most noxious of the consumer group terrorists active in today’s market. Their tactic of extracting coercive settlements under CA Proposition 65 to set precedent and to fund their activities has been well-documented in this space.
• The looming reality of the public database was shoved in our faces (Tenenbaum: It’s time to get prepared). We confronted the realization that we will be forced to treat every consumer report as an emergency simply because of the database, and
• The Chairman pointed to the Toyota feeding frenzy as the model for future regulatory action on “slow” recalls in this era of populist corporation bashing,

where do you think the ICPHSO planners sent everyone on last night’s social event?

To see “Sheer Madness”, of course!

You have to admit, it was a perfect choice.

Read more here:
CPSIA – Some ICPHSO Humor

CPSIA – ICPHSO Update – Q&A with CPSC

Q&A’s from this afternoon’s session. Gib Mullan responding unless otherwise noted.

A taste of things to come:

1. The biggest impact of the Public Database is how quickly you will have to reply. Hmmm, where have we heard this before??? Hope you are never on vacation. . . .
2. On confidentiality in the Public Database, it is going to be “hard to deal with”. Info from consumers won’t be confidential. Info from businesses will either be confidential or not, perhaps at the company’s pleasure, but it will be hard to act on info businesses provide WITHOUT making it public. RW: Don’t forget to make comments,guys. Your silence will be taken as your approval, trust me.
3. The plan for the DB is to let companies have “every bit of the time” specified in the statute “AND NOTHING MORE”. There will be “minimal CPSC review”. Aha, just like Tenenbaum said, time to get prepared. . . for the first Tuesday in November.
4. One questioner noted that the recalls on cribs has so rattled consumers that it has stimulated the return of co-sleeping arrangements, known to be one of the most dangerous baby scenarios. Hmmm. The CPSC will be doing education to counteract this development. RW: It is inconceivable that their publicity will match the media frenzy over crib recalls. It’s probably safest just to stop having kids.
5. Will there be a mandatory standard for window coverings – because there is (said to be) one death a month. The CPSC says that they are working on it. For you at home, it’s probably safer to just take down all window coverings and let Mrs. Kravitz have a big day.
6. Somebody called for new regulations on the “end of life”, just like in Japan. OMG . . . . Hey, they mean the end of your product’s life! What were you thinking? The CPSC is watching how this system works but has no present plans to expand its current regulatory scheme.
7. When will a promotional product become a “Children’s Product”? Does it become a Children’s Product if screened with the wrong thing? Cheri Falvey responded that you can’t read the WIMA letter (the pen decision) to address this question. It was a “result-oriented” opinion from a two-person Commission. The new rule on Children’s Products, to be voted on by five Commissioners, will sort this out. Might incorporate the pen decision and broaden it, or it might not. So there you go, might be okay, might not, you should wait and see. [RW: I hate the pen decision because it attempts to solve a compliance issue on a technicality with absolutely no regard for safety. Is a pen safe? The decision cannot be reconciled against that question because it only matters what was intended by the manufacturer. Safety is irrelevant when considering compliance . . . ?]
8. Eric Stone noted that changes in the definition of “Children’s Products” may have consequences for manufacturers and asked if the agency has the legal authority to operate prospectively. Falvey declined to give a legal opinion, but noted her personal opinion that the definition could broaden in the new rule. She noted that she has warned about that in the past. Oh, I see, we are to write down her every word, savoring them like pearls, because her oral warnings in any setting are going to be taken as precedent. We were warned. Too bad for those of you who weren’t here to hear her words. Ha Ha Ha Ha! And you can’t use this blog as a citation, either. Remember, my URL doesn’t end in “dot gov”. I am a liar.
9. When the law goes into effect on cribs, Falvey told us this AM that the standards will be RETROACTIVE. A member of the juvenile products industry referred to this news as a “bomb”. He said there could be 20 or 30 million cribs that don’t comply and would be instantly illegal. Gib says the new rule would be retroactive only for cribs in “public settings” like hotels, motels, day care centers. He says that the Commission has the authority to go even further. Oooh, could be a great chance for the government to come into your home – nice! I really like the concept of this rule – it’s really simple, see, it will be retroactive for some people and prospective for others. Apparently, the CPSC and Congress still haven’t figured out that the U.S. economy is rather complex. I see years of fun ahead for the regulators.
10. Learning Curve asked if all document attachments on the Public Database would be made public. Gib said yes. LCI then asked about consumer-obtained test reports and whether they would also be made public without scrutiny. Gib said he hadn’t thought of that one. I can think of a few plaintiff’s lawyers who would be happy to run a real life seminar about this in the future . . . . This Q illustrates the incredible disarray that awaits us all because of this insanely self-destructive provision fobbed off on us by the consumer groups.
11. Gib: not everything in the database will be public. Some area will be explicitly confidential. Some 15(b) disclosures will not appear in the DB.
12. No decision on whether media reports will be included in the DB. I find this hard to be envision – I trust eventually the consumer groups will force all the trash into the DB to help with all their searches. Oh how I look forward to the new era of Sudden Business Death.
13. Will the agency will reconcile multiple reports of the same incident? One of Cheri Falvey’s associates said they would address it in the rule. The rule is now over 25 pages long. Trust me, it won’t be that short when released.

Read more here:
CPSIA – ICPHSO Update – Q&A with CPSC

CPSIA – ICPHSO Update on Public Database

Remarks of Ming Zhu and Chad Tompkins, Office of Info Technology, on the Public Database. This presentation will apparently be posted online at www.saferproducts.gov.

• They are very excited about the database. They acknowledge that they are IT guys, not lawyers. Gotcha.
• Will give access to “far more” product info than previously available. Will provide much faster access to the info.
• Corporate participants can also get incident reports much more quickly and act much more quickly. [This is an obvious set up for an opportunity to judge the speed of your surveillance and response. I think it's best understood as the basis for compelling a certain helter skelter speed to respond. The populace demands it . . . .]
• Chairman Tenenbaum noted that www.saferproducts.gov has gone live, although the database is not yet functional. She says you can track the progress of the database on the website and kick the tires of its new design before its March 2011 rollout.
• They are looking forward to enhanced early detection of hazards.
• Consumers will have access to all consumer reports and manufacturer replies when making consumer product choices. Oooh, this is a good one. I am so glad I gave comments on this database. Why not just let us put our comment letters through the shredder ourselves?
• Will capture info on the submitters and the incident on the site.
• Phase I is to “turn on the fire hose” and phase II is where the agency improves its infrastructure to handle it. They recounted the overall IT improvement plan.
• Will use Social Media to drive traffic. Earlier in the day, Cheri Falvey noted the popularity of the video showing a carrot being severed by a stroller. Cute!
• They want us to talk about our website at our Tupperware parties. Something to think about.

Read more here:
CPSIA – ICPHSO Update on Public Database

CPSIA – ICPHSO Update on Public Database

Remarks of Ming Zhu and Chad Tompkins, Office of Info Technology, on the Public Database. This presentation will apparently be posted online at www.saferproducts.gov.

• They are very excited about the database. They acknowledge that they are IT guys, not lawyers. Gotcha.
• Will give access to “far more” product info than previously available. Will provide much faster access to the info.
• Corporate participants can also get incident reports much more quickly and act much more quickly. [This is an obvious set up for an opportunity to judge the speed of your surveillance and response. I think it's best understood as the basis for compelling a certain helter skelter speed to respond. The populace demands it . . . .]
• Chairman Tenenbaum noted that www.saferproducts.gov has gone live, although the database is not yet functional. She says you can track the progress of the database on the website and kick the tires of its new design before its March 2011 rollout.
• They are looking forward to enhanced early detection of hazards.
• Consumers will have access to all consumer reports and manufacturer replies when making consumer product choices. Oooh, this is a good one. I am so glad I gave comments on this database. Why not just let us put our comment letters through the shredder ourselves?
• Will capture info on the submitters and the incident on the site.
• Phase I is to “turn on the fire hose” and phase II is where the agency improves its infrastructure to handle it. They recounted the overall IT improvement plan.
• Will use Social Media to drive traffic. Earlier in the day, Cheri Falvey noted the popularity of the video showing a carrot being severed by a stroller. Cute!
• They want us to talk about our website at our Tupperware parties. Something to think about.

Read more here:
CPSIA – ICPHSO Update on Public Database

« Previous Page — Next Page »