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CPSIA – Freedom of Information Act Document Request

As submitted today:

To: cpsc-foia@cpsc.gov

Re: Fast Track FOIA Request Relating to Draft House Legislation Known as “Consumer Product Safety Enhancement Act of 2010”

I am making this document request pursuant to the Freedom of Information Act and 16 CFR §1015. I would like to receive copies of all documents (written or electronic, including notes and staff briefing packages) relating to (a) interactions between Chairman Inez Tenenbaum and/or Commissioner Robert Adler and/or their staff and the House Committee on Energy and Commerce (and/or staff associated with that committee or its members) relating to the Consumer Product Safety Enhancement Act (CPSEA), and (b) any CPSC legal analyses or legal opinions relating to the CPSEA. Since the CPSEA is presently being circulated in draft form on Capitol Hill and since the committee’s staff is seeking feedback from various stakeholders at this time, time is of the essence for this information request. Please accord this request “fast track” status.

In making this request, I note the following statement in 16 CFR §1015(b): “The Commission’s policy with respect to requests for records is that disclosure is the rule and withholding is the exception. All records not exempt from disclosure will be made available. Moreover, records which may be exempted from disclosure will be made available as a matter of discretion when disclosure is not prohibited by law or is not against the public interest.”

My contact information is found below. Thank you for your cooperation.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.

Read more here:
CPSIA – Freedom of Information Act Document Request

CPSIA – Why Have Five CPSC Commissioners?

Last night I was accused of being politically naive for having written:

“It would appear that the ‘governing principle’ demonstrated by yesterday’s passage of the health care bill applies here. There is little need for Democrats to try to build a consensus [on the Waxman Amendment]. They have control, so bipartisan support will only be achieved when those with opposing views capitulate or are outvoted. Brave New World, I feel so safe now. . . .”

I might be naive, I suppose. Who knows, it’s not for me to judge. I was informed that this is how things work in Washington and the Golden Rule applies – he who has the gold rules.

Nonetheless I think there’s a larger point here. If you scroll back to the Halcyon days of 2008, you may recall the apparently urgent need to return to a “full” Commission of five CPSC Commissioners. It was asserted that somehow a Commission of three Commissioners just would not be adequate to meet the challenges of a modern world. At the time because of a vacancy, there were only two Commissioners (one Democrat and one Republican). Republican Nancy Nord, the then Acting Chairman, was savaged by Democrats for “gridlock” since the only possible explanation for the slow progress implementing the CPSIA must have been “foot dragging”. Ah, how the passage of time gives us all new perspective . . . . Anyhow, with the smaller Commission, it was said that there wasn’t enough dialogue, fresh perspectives, blah blah blah.

The gridlock was all a hoax, as Nord and Moore voted together on all but one CPSIA decision in their tenure together. While the issues may have been fractious and they might have rarely shared the same outlook, they still managed to find a way to vote together. The problems, the “unintended consequences”, were beyond the Commission’s ability to resolve. It was Congress’ fault, not theirs.

Now with a full Commission of five Commissioners, three Democrat and two Republican, we find ourselves in a far more stratified and partisan situation where dialogue is often strained or nonexistent and voting blocks dominate decisions. Sadly, consensus building does not seem to be the modus operandi of this Commission or of this Chairman. With three certain votes, the Dems on the Commission hardly need to broker agreements or compromise to get to “yes”. They control the Commission, and will do as they please. As Tenenbaum’s and Adler’s joint comments on the Waxman Amendment and the Tenenbaum/Adler/Moore joint comments on the Civil Penalty Factors indicate, the Dems are making no pretense about their controlling voting block. Pelosi and Waxman must love it.

It is a shame that this partisan situation has arisen at the Commission. After all, the CPSC is supposed to be about safety, not politics. The division along party lines smacks of closed doors and minds already made up. Reasonable positions are being discounted by the Dems for political reasons, creating many losers but few winners. It is certain to produce lesser decisions. The upside of a full Commission is being squandered without the Chairman’s commitment to seek consensus.

Of course, there is far less need to open up or listen when control of the outcome is certain. Debate becomes a kind of charade mainly for public consumption. As has been apparent in the health care debate, frustration builds quickly when absolute power is used coercively. I heard someone on CNBC refer to the process leading to the passage of that bill as “dictating, not governing”. This kind of resentment of the CPSC is also mounting as the “have not’s” in the regulated community find themselves with fewer and fewer options. We did not sign up for a dictatorship.

This is a sad reflection of the increasingly polarized world that followed Mr. Waxman into his Chairmanship of the House Committee on Energy and Commerce. He governs by “take it or leave it” as in his two CPSIA amendments. This is not the only way to get things done, however, as the Dingell era demonstrated.

Naive? That’s the reality that I see, unfortunately.

Read more here:
CPSIA – Why Have Five CPSC Commissioners?

CPSIA – More Data on Devastation of Resale Industry

Can any sensible person continue to deny the pain inflicted on resale and consignment shops by the CPSIA? The issues have been well-documented for almost two years now. Not only were these small businesses needlessly harmed by this law and forced out of the children’s market, but the neediest American families dependent on these outlets were left in the lurch, too. Congressional Democrats left them there with the justification that it was for their own good. Spoken like someone with warm clothing on.

NorthJersey.com published an interesting piece on the plight of these retail outlets yesterday entitled “Some Thrift Shops Hurt by Lead-free Law“. It starts out:

“Janis Nelson, owner of Growing Kids consignment shop in Riverdale, points to a heavy book of lead-paint recalls as explanation for the store’s decision to stop selling second-hand children’s toys . . . . she could not risk a $25,000 fine, which is possible under the law if a single toy with lead were to slip past the heavy book of recalls.”

And the shops aren’t the only losers. The article continues:

“Besides hurting the stores financially, [store owner Lorraine] DeHart said that the law can also hurt consumers, who may be turning to thrift shops because they cannot afford department store prices. ‘People can’t afford to buy it new,’ she said. They might turn to garage sales, she said, where there tends to be less scrutiny over products sold. Yet even garage sales are not exempt from the new law. ‘If you’re going to have a garage sale, be careful what gets sold because if someone gets hurt they can sue you,‘ said Kathleen Reilly, public affairs specialist for the U.S. Consumer Product Safety Commission.” [Emphasis added]

What a calming effect the CPSC has on this market! I can’t wait to see what the CPSC’s Small Business Ombudsman does to earn his wages. Perhaps he will roam the land assuring small businesses that by complying with the thousands of pages of rules under the CPSIA, they can avoid getting sued, fined or jailed.

Crazy? Remember the words of Inez Tenenbaum: “‘CPSC’s new authority to seek higher civil penalties does not mean we will ignore serious violations by small businesses,’ said CPSC Chairman Inez Tenenbaum. ‘We will continue to take enforcement action against any business, large or small, that violates the Commission’s product safety laws and regulations.’”

And the market reality for the resale industry today? Ask the National Association of Resale & Thrift Stores: “NARTS members have reported significant increases in both sales and incoming inventory, according to NARTS, but those that sold children’s products did not fare as well with 44.2 percent experiencing a decrease in sales due to the challenges of complying with the consumer act of 2008.”

It’s time for Congress to stop sucking its thumb and do something for the neediest members of our society. Of course, some modest risk will be required to fix the mess they made in 2008. Resale shops deserve a bright line rule to encourage them back into the business of selling used children’s products. The law’s focus should be on recalled items only. The rest of the used children’s product category should be saleable without risk of liability unless the store has actual knowledge of a hazard. The strictures of the CPSIA will slowly and effectively clear out old inventory over time.

The resale industry has NO HISTORY of selling dangerous products or harming children. The “risk” of restoring the market sanity that prevailed before the lead mania of 2007/8 is trivial but the harm inflicted by the CPSIA fix is real and profound.

It’s time to ‘fess up and fix the law, guys!

Read more here:
CPSIA – More Data on Devastation of Resale Industry

CPSIA – Take the Product Safety Letter Survey on the Waxman Amendment

The Product Safety Letter is gathering your opinions of the noxious Waxman Amendment in a survey closing on March 31. This is a great way to add your voice to the din over this dangerous piece of legislation.

Remember, your entry is due by next Wednesday. Thanks!

Read more here:
CPSIA – Take the Product Safety Letter Survey on the Waxman Amendment

CPSIA – Tenenbaum/Adler Comments Revealed

A little birdie dropped off what are purportedly the comments of Chairman Inez Tenenbaum and Commissioner Bob Adler on the Waxman Amendment. This is one interesting document. First of all, it’s quite secret (but not anymore). You can’t find it on the CPSC website. Other members of the CPSC community haven’t seen it and have been refused a copy. It also doesn’t have Tenenbaum’s or Adler’s name on it so it has appropriate deniability. Oddly, it speaks in sentence fragments. Hmmm. In an era of greater “transparency”, this secrecy is something of a shock. Perhaps the Prince of Darkness is at work here.

Among the “highlights”:

  • The comments recommend incorporation in the legislative report of the consumer group belief system assertion that there is no safe level of lead. If enacted, this change would enable, if not instruct, the Commission to reason from this “principle” and presumably ban many safe products. The hypocrisy of this position (or its obliviousness) in light of the permitted lead in our air, water and food is part and parcel of the CPSIA.
  • The suggested report language clarifying the “no measurable adverse effect on public health and safety” will perpetuate the exemption morass confronting the Commission and regulated community. The comments state explicitly that anything that can be empirically measured will be impermissible, the exemption process will remain a hollow shell, a phantom provision. Why not just delete the exemption process and save everyone a lot of time, money and aggravation?
  • Tenenbaum and Adler seem to miss the point that requiring a warning label for a product deemed safe is fatally inconsistent. Why warn for something determined to be safe in an exemption process? They ask for more discretion – to do what? What exactly is the risk here?
  • The Commissioners note an openness to using a different term than “low volume manufacturer”, such as “small batch manufacturer”. This is apparently important to the HTA but seems to connote nothing of substance as both phrases are just terms or labels. I am stumped.
  • The Commissioners basically go along with the definition of “low volume manufacturer”. As if to dispel any notion that they favor relief for small business, they note simply that the $200,000 revenue limit should be restricted to manufacturing or importing revenue. The fact that this revenue level is both absurdly low and that the provision itself is designed to be useless to almost everyone did not garner comment from Tenenbaum and Adler.
  • Their comment about the need to “assure” compliance by LVMs confirms my reading of the Waxman Amendment that it is NOT designed to change testing requirements on small companies – they must ALL “assure” compliance through a reasonable testing program. The “assurance” will require third party testing. Here is the comment offered by Tenenbaum and Adler: “At this time, CPSC staff believe that reasonable testing methodologies meeting this criterion could be developed for only a few of the CPSIA testing requirements and that third party testing will still be required in many instances. However, this provision could provide greater relief in the future as new technologies develop that the agency may be able to recognize as capable of ensuring compliance through reasonable testing methodologies.” I guess LVMs can lump it . . . .
  • The comments clarify that “imminently hazardous consumer products” incorporate the definition in Section 12 of the CPSA. Here is the definition from the CPSA: “[The] term ‘‘imminently hazardous consumer product’’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.” The comments simply remove any reference to “being made aware of” – perhaps to avoid the implication that the CPSC has to act before it has “identified” the risk, whatever that may mean. Remember, current law requires going to court – the new language merely requires that the agency “identify” the risk. That’s quite a change – especially if you are on the receiving end. Think baby slings.

The comments by Tenenbaum and Adler did not comment on the perils of the “technical” provisions in the Waxman Amendment previously documented in this space. As I have noted, Rumorville has it that some or all of these changes appeared on a mysterious and secret document sent by Tenenbaum to the Hill with her 20 requests for changes to the CPSA and CPSIA. This secret document has not been revealed yet. It is therefore no surprise that her comments would endorse the approach of the Waxman Amendment (as in the foregoing tweaks). Perhaps Rumorville is right that these changes were made at her request or with her consent.

Consider the noxious changes to Section 6(b) of the CPSA – Tenenbaum and Adler apparently see nothing to comment on. Did you realize that the Waxman changes permit release of information based on a phone call? Say you make a Section 15 report, the CPSC does some interviews, creates internal documents, sends letters and emails back and forth to you – and a plaintiff’s attorney calls for disclosure of these confidential exchanges and papers. The CPSC may simply ask how quickly the lawyer needs them. Did you also know that this release can be done without notice or even the knowledge of the parties affected by the information release? Did you know that the new language even permits the CPSC to release information it knows to be FALSE? Due process doesn’t matter when you are protecting kids!

Can you believe that Tenenbaum and Adler had no comments on this terrible provision?

Or, how about the problems associated with damage to physical evidence subpoenaed by the CPSC which are also the subject of a civil suit? There is apparently substantial risk that this would be held against the defendant (you) under a principal called “spoliation of evidence“. What might happen? If the evidence is damaged, “[the] finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.” Ouch – that means you lose, big.

To judge by their comments, it appears that Tenenbaum and Adler don’t believe we deserve any procedural protections here.

It would appear that the “governing principle” demonstrated by yesterday’s passage of the health care bill applies here. There is little need for Democrats to try to build a consensus. They have control, so bipartisan support will only be achieved when those with opposing views capitulate or are outvoted. Brave New World, I feel so safe now. . . .

Very disappointing.

Read more here:
CPSIA – Tenenbaum/Adler Comments Revealed

CPSIA – Tenenbaum/Adler Comments Revealed

A little birdie dropped off what are purportedly the comments of Chairman Inez Tenenbaum and Commissioner Bob Adler on the Waxman Amendment. This is one interesting document. First of all, it’s quite secret (but not anymore). You can’t find it on the CPSC website. Other members of the CPSC community haven’t seen it and have been refused a copy. It also doesn’t have Tenenbaum’s or Adler’s name on it so it has appropriate deniability. Oddly, it speaks in sentence fragments. Hmmm. In an era of greater “transparency”, this secrecy is something of a shock. Perhaps the Prince of Darkness is at work here.

Among the “highlights”:

  • The comments recommend incorporation in the legislative report of the consumer group belief system assertion that there is no safe level of lead. If enacted, this change would enable, if not instruct, the Commission to reason from this “principle” and presumably ban many safe products. The hypocrisy of this position (or its obliviousness) in light of the permitted lead in our air, water and food is part and parcel of the CPSIA.
  • The suggested report language clarifying the “no measurable adverse effect on public health and safety” will perpetuate the exemption morass confronting the Commission and regulated community. The comments state explicitly that anything that can be empirically measured will be impermissible, the exemption process will remain a hollow shell, a phantom provision. Why not just delete the exemption process and save everyone a lot of time, money and aggravation?
  • Tenenbaum and Adler seem to miss the point that requiring a warning label for a product deemed safe is fatally inconsistent. Why warn for something determined to be safe in an exemption process? They ask for more discretion – to do what? What exactly is the risk here?
  • The Commissioners note an openness to using a different term than “low volume manufacturer”, such as “small batch manufacturer”. This is apparently important to the HTA but seems to connote nothing of substance as both phrases are just terms or labels. I am stumped.
  • The Commissioners basically go along with the definition of “low volume manufacturer”. As if to dispel any notion that they favor relief for small business, they note simply that the $200,000 revenue limit should be restricted to manufacturing or importing revenue. The fact that this revenue level is both absurdly low and that the provision itself is designed to be useless to almost everyone did not garner comment from Tenenbaum and Adler.
  • Their comment about the need to “assure” compliance by LVMs confirms my reading of the Waxman Amendment that it is NOT designed to change testing requirements on small companies – they must ALL “assure” compliance through a reasonable testing program. The “assurance” will require third party testing. Here is the comment offered by Tenenbaum and Adler: “At this time, CPSC staff believe that reasonable testing methodologies meeting this criterion could be developed for only a few of the CPSIA testing requirements and that third party testing will still be required in many instances. However, this provision could provide greater relief in the future as new technologies develop that the agency may be able to recognize as capable of ensuring compliance through reasonable testing methodologies.” I guess LVMs can lump it . . . .
  • The comments clarify that “imminently hazardous consumer products” incorporate the definition in Section 12 of the CPSA. Here is the definition from the CPSA: “[The] term ‘‘imminently hazardous consumer product’’ means a consumer product which presents imminent and unreasonable risk of death, serious illness, or severe personal injury.” The comments simply remove any reference to “being made aware of” – perhaps to avoid the implication that the CPSC has to act before it has “identified” the risk, whatever that may mean. Remember, current law requires going to court – the new language merely requires that the agency “identify” the risk. That’s quite a change – especially if you are on the receiving end. Think baby slings.

The comments by Tenenbaum and Adler did not comment on the perils of the “technical” provisions in the Waxman Amendment previously documented in this space. As I have noted, Rumorville has it that some or all of these changes appeared on a mysterious and secret document sent by Tenenbaum to the Hill with her 20 requests for changes to the CPSA and CPSIA. This secret document has not been revealed yet. It is therefore no surprise that her comments would endorse the approach of the Waxman Amendment (as in the foregoing tweaks). Perhaps Rumorville is right that these changes were made at her request or with her consent.

Consider the noxious changes to Section 6(b) of the CPSA – Tenenbaum and Adler apparently see nothing to comment on. Did you realize that the Waxman changes permit release of information based on a phone call? Say you make a Section 15 report, the CPSC does some interviews, creates internal documents, sends letters and emails back and forth to you – and a plaintiff’s attorney calls for disclosure of these confidential exchanges and papers. The CPSC may simply ask how quickly the lawyer needs them. Did you also know that this release can be done without notice or even the knowledge of the parties affected by the information release? Did you know that the new language even permits the CPSC to release information it knows to be FALSE? Due process doesn’t matter when you are protecting kids!

Can you believe that Tenenbaum and Adler had no comments on this terrible provision?

Or, how about the problems associated with damage to physical evidence subpoenaed by the CPSC which are also the subject of a civil suit? There is apparently substantial risk that this would be held against the defendant (you) under a principal called “spoliation of evidence“. What might happen? If the evidence is damaged, “[the] finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.” Ouch – that means you lose, big.

To judge by their comments, it appears that Tenenbaum and Adler don’t believe we deserve any procedural protections here.

It would appear that the “governing principle” demonstrated by yesterday’s passage of the health care bill applies here. There is little need for Democrats to try to build a consensus. They have control, so bipartisan support will only be achieved when those with opposing views capitulate or are outvoted. Brave New World, I feel so safe now. . . .

Very disappointing.

Read more here:
CPSIA – Tenenbaum/Adler Comments Revealed

CPSIA – Anne Northup’s Comments on the Waxman Amendment

Anne Northup posted her letter to Henry Waxman re the pending amendment of the CPSIA. It is known that Inez Tenenbaum and Bob Adler presented their comments jointly but that letter has not been released and is not available yet.

Read more here:
CPSIA – Anne Northup’s Comments on the Waxman Amendment

CPSIA – Nancy Nord’s Comments on the Waxman Amendment

Commissioner Nancy Nord posted her letter to Henry Waxman providing comments on the Waxman Amendment in her blog. Her blogpost is entitled “One Step Forward and Two Steps Back.

One forward, two back. I am quite concerned. Are you?

Read more here:
CPSIA – Nancy Nord’s Comments on the Waxman Amendment

CPSIA – A 52-Page Morsel for You to Nibble On!

How many pages do you think are necessary to define “Children’s Product”?

Okay, I bet you said 52 pages. That’s cheating! Here is the CPSC’s stab at the definition. No, I haven’t read it yet. It’s 1 AM and I have decided to take a little nap before the sun comes up.

I will be back to you on this important document.

Read more here:
CPSIA – A 52-Page Morsel for You to Nibble On!

CPSIA – Latest Developments in Waxman Amendment

In a meeting between various business representatives and the Waxmanis yesterday, the Dems set the parameters for moving forward on the Waxman Amendment.

The Dems have established three “goals” for this amendment. The current draft reflects this “vision”.

  1. “Targeted” fixes to the CPSIA
  2. A “bipartisan” bill supported by consumer groups, business and Democrats and Republicans alike.
  3. Do NOT open up the CPSIA for reconsideration.

As I have previously noted, the Dems constrain the discussion by limiting what may and may not be discussed and then ask their “bipartisan partners” to make the best of it. This makes bipartisan support quite difficult to achieve because when the Dems present their draft, they indicate that all “compromises” have already been incorporated. This also allows the Dems to portray anyone who disagrees as an obstacle. Bring to mind anything . . . like health care?

In this case, the Waxmanis are saying that the bill basically is where they want it to be, and offer that clarifications can be made in the report language to accompany the bill. [Something new to read, more traps for the unwary.] This strategy will lead inevitably to continuing arguements long into the future about things that used to be simple. This legislative strategy also means that many problems will need to be resolved by litigation – which is a VERY anti-small business approach to legislation. Can you afford to take a case clarifying safety law to the Supreme Court? We are all toast if this how our “community leaders” choose to govern.

Let’s think about the situation we find ourselves in. The first circulated draft, according to Waxman staffers, is basically FINAL but clarifications may be made in the report language behind the legislation. Hmmm. That sounds like “take it or leave it”. Why would they take that approach? I doubt this is anything more than a political calculation. They put TWO terms in the bill that many companies really, really want and need, namely the modification of the phthalates ban and prospective application of the terrible 100 ppm lead standard. The message is clear – the rest of the bill, riddled with serious problems and provisions that gut existing CPSC practice and protections, would have to be tolerated to get that relief. It’s pure Machiavellian politics.

The “take it or leave it” approach is backed up with the implied threat that the bill will be rammed through the House Committee on Energy and Commerce on the back of the Dem majority. There is no commitment to a hearing, and besides, Mr. Waxman has a practice of staging hearings in order to control the message.

How “bipartisan”!

The gutting of Section 6(b) and the rejiggering of voluntary recall disclosures is apparently not a reopening of the CPSIA in the view of the Dems. Why? Because they want to make those changes, spurred on by the Consumer Federation of America (Rachel Weintraub) and other consumer groups. Rumorville has it that senior Dem CPSC leaders are also pushing to completely revise these decades-old protections. Push back by the regulated community is being rebuffed, including requests for definitions of terms like “practicable” – why? Because it’s not “appropriate” to put “numbers” into the law – they might change in the future. The other numbers already in the CPSIA apparently do not undercut this argument, according to the Dems. Business risk that stems from that kind of uncertainty is of no apparent interest to the Waxmanis.

Makes you wonder how much they really want to help, doesn’t it? Is this possibly a sham process to enable them to get a second bite at the apple?

The terrible choice being forced on the business community is to accept some really bad provisions and terrible omissions in order to get two needed changes. The dominance of Waxman in this process has turned the children’s product industry into beggars. What a great way to govern . . . .

Under the imperious rule of Henry Waxman, you will get what he wants you to get. I hope you will remember this feeling for years to come. The treatment of the business community here is par for the course for this generation of Democrats. Remember, we are about to get the $1 trillion dollar health care bill WITHOUT A VOTE. They apparently interpret the 2008 national election results as a coronation and are acting accordingly.

I think your views matter. Express them!

Read more here:
CPSIA – Latest Developments in Waxman Amendment

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