CPSIA – Freedom of Information Act Request – Follow-up

As sent today:

Dear Sir,

It has now been almost two months since I submitted the below request for information under the Freedom of Information Act. Your office acknowledged receipt of this request on April 1 and stated the following:

“Due to certain procedural steps we are required to take under our statute, there may be delays in providing the records. Please be assured that every effort is being made to process each request as equitably as possible, and that the records or information that you have requested will be made available to you at the earliest possible date.”

My request relates to pending legislation currently under consideration in the U.S. House of Representatives. As such, the request is both relevant to the development of this legislation and rather time-sensitive. The public has a right to know about these documents. Disclosure of these documents is in the public’s interest – transparency in how we are governed is a paramount interest of U.S. citizens. The disclosure of these documents are very relevant to the development of the Consumer Product Safety Enhancement Act, the subject of a recent hearing by a subcommittee of the House Committee on Energy and Commerce. I testified at that hearing.

Notwithstanding the assertion in the April 1 letter above, the requested documents have not been disclosed yet. This is especially disappointing as the documents involved in this request are few, easily-located and in the possession of very few, easily-identified people at the CPSC. The effort to gather, review, redact (if necessary, which seems unlikely), duplicate and transmit these documents is almost certainly inconsequential. I find the delay inexplicable and inexcusable under your statute.

I urge you to rapidly comply with this request for disclosure. As I noted in my original request, your agency’s rules demand it – “disclosure is the rule and withholding is the exception.”

Thank you for your prompt consideration of this matter.

Richard Woldenberg
Chairman
Learning Resources, Inc.

——————————————————————————–
From: Rick Woldenberg
Sent: Tue 3/23/2010 3:44 PM
To: ‘cpsc-foia@cpsc.gov’
Subject: Fast Track FOIA Request Relating to Draft House Legislation Know 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 Request – Follow-up

CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

[Emphasis added. Actual Letter can be viewed here.]

May 12, 2010

To:

The Honorable Bobby Rush
Chairman, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Ed Whitfield
Ranking Member, Subcommittee on Commerce, Trade and Consumer Protection

The Honorable Henry Waxman
Chairman, Committee on Energy & Commerce

The Honorable Joe Barton
Ranking Member, Committee on Energy & Commerce

Re: The Consumer Product Safety Enhancement Act (CPSEA)

To the Leadership of the House Commerce Committee:

Thank you again for the opportunity to testify before your committee and for your continued attention to the needs of our small businesses. We would like to reiterate our position on the CPSEA and the relief we are seeking for our members.

We have previously endorsed the CPSEA because it is the only opportunity currently available to save small batch manufacturers from extinction after February 10, 2011, when the CPSC’s stay of enforcement of third party testing requirements expires. Under the CPSIA as it currently stands, many of our members are substantially limiting the products that they offer–some foregoing children’s products altogether–while others are laying off employees or limiting their business growth.

We have stated clearly that the CPSEA can and should be improved to reduce unnecessary regulatory burdens on small businesses without compromising safety. The CPSEA as currently written will likely save some of our member businesses. With improvements, however, you can save almost all of them. For the record, we would like to review the improvements we would like you to consider.

First and foremost, we would like the CPSEA to clearly state that small batch manufacturers are exempt from third party testing requirements. While report language to that affect would be helpful, a more explicit exemption within the language of the bill itself would provide more immediate and substantial relief. You can accomplish this by allowing:

* the use of XRF testing as an alternative testing method for lead in paint and lead in substrate

* alternative testing methods for products intended for use in classrooms or for children ages 7-12

* EN-71 testing as an alternative testing method

* CPSC rulemaking to allow for alternative testing methods based on risk analysis

* exemptions for small batch toymakers from ASTM F-963 testing

This language should be in the bill itself, not just in the report language. In the intervening days since our initial endorsement of the CPSEA, we have heard conflicting answers from several different CPSC commissioners as to the commission’s willingness or ability to provide affordable alternative testing methods for small batch manufacturers. If this bill is truly meant to benefit small batch manufacturers, it must be more clear and explicit in the exemptions it provides.

Second, we wish to reiterate our belief that alternative testing methods should be available to all companies. The Small Business Administration defines toy and clothing manufacturers with less than 500 employees as small businesses, which is far in excess of the CPSEA’s $1 million limit. If a revenue limit is used, it should be based only on income generated by the manufacture or importation of children’s products without including other unrelated business income. A manufacturer’s ability to pay for testing any given product is a function of the revenue it generates from that particular product, not the overall size of the company.

Third, we stated publicly during the April 29 hearing that the functional purpose exemption for products exceeding 300ppm/100ppm lead will not benefit our members because of the narrow scope of the exemption and the cost required to obtain it. The CPSC should instead be given authority to make exemptions to specific materials or product categories based on risk analysis. For example, the commission should have the power to exempt brass as a material and children’s saddles or microscopes as a product category. This is the only way in which small businesses would be able to take advantage of the functional purpose exemption.

Fourth, we believe that small batch manufacturers should be entirely exempted from mandatory labeling requirements.

Finally, we hope to settle any confusion regarding our intent in endorsing the CPSEA. We endorsed it as our only available alternative. We truly believe that many of our members will be forced out of business after February 10, 2011 without meaningful, clear reform provided by your committee. We believe that the CPSEA can and should be improved to better target risk and provide more comprehensive relief for our members, who were never the source of unsafe products in the first place.

We remain hopeful that the democratic process can prevail and that a meaningful and bipartisan reform of the CPSIA can be enacted. We urge members of the committee to mark up the CPSEA and allow open discussion within the product safety subcommittee. The CPSIA was a bipartisan bill—its reform should be, too.

You hold the livelihoods of hundreds of small businesses in your hands. Please, make this work.

On behalf of the 435 small business members of the Handmade Toy Alliance, we thank you again for your attention to this important issue.

Respectfully,

The Handmade Toy Alliance

savehandmadetoys@gmail.com
http://www.handmadetoyalliance.org/

Board members:

Cecilia Leibovitz, Craftsbury Kids, VT
Dan Marshall, Peapods Natural Toys, MN
Jill Chuckas, Crafty Baby, CT
Mary Newell, Terrapin Toys, OR
Jolie Fay, Skipping Hippos, OR
Marianne Mullen, Polkadotpatch, VT
Rob Wilson, Challenge & Fun, MA
Randy Hertzler, euroSource, PA
Kate Glynn, A Child’s Garden, MA

Read more here:
CPSIA – HTA Letter Blasts Imperfect Waxman Amendment (CPSEA)

CPSIA – More Written Testimony from CPSIA Hearing

Oddly and embarrassingly, the House Committee on Energy and Commerce’s webpage for last week’s CPSIA hearing does not include all written testimony submitted in association with the hearing, nor does it provide a link on the hearing video. [I will get you the video soon, I promise.] The Dem Majority, which loudly touts its “commitment” to “open government”, should rapidly address this poor performance.

Here are the other document submitted thus far. I have already provided you links to the written testimony of the seven witnesses and my oral testimony.

• Opening Statement of Chairman Waxman
• The Honorable Inez Tenenbaum, Chairman, Consumer Product Safety Commission,
  Statement for the Record
• The Honorable Nancy Nord, Commissioner, Consumer Product Safety Commission,
  Statement for the Record
• The Honorable Anne Northup, Commissioner, Consumer Product Safety Commission, Statement for the Record
• The Honorable Denny Rehberg, Representative, Montana At Large, Statement for the Record
• Ms. Devra Singer, Product Development Assistant, Funtastic, Houston, Texas, Statement for the Record Entitled “Call for Testimony: A Personal Account of the CPSIA’s Crippling Effects on Our Small Business”
• Mr. Sean Hilbert, President, Cobra Moto, LLC, Statement for the Record
• Mr. Ed Moreland, Vice President, Government Relations, American Motorcyclist Association, Statement for the Record
• Mr. Michael Gale, Executive Director, Fashion Jewelry Trade Association, Statement for the Record
• Economic Analysis – Handmade Toy Alliance

This is provocative reading. I hope you aren’t the only ones who read it . . . .

I really like the common sense in the Nord and Northup letters. In particular, I want to draw your attention to one statement by Commissioner Northup: “Forcing a component-by-component petition for exceptions does nothing to enhance safety, and it converts the Commission from a safety oversight agency (like the FAA) into a product approval agency (like the FDA). Rather than spend most of its time and resources removing unsafe products from the market, the agency would devote its efforts to approving perfectly safe products before they go on the market. That switch would also slow the pace of consumer product innovation by increasing the cost and lead time for companies to bring new products to market—which effect itself carries negative safety ramifications.” [Emphasis added]

Ms. Northup’s got it totally right and you should be worried that this style of regulation makes sense to ANYONE. This is at the heart of the precautionary principle, that the government becomes your partner in making your business decisions. Frankly, I trust companies more than I trust the government, especially these days. I will take Toyota over NHTSA and David Strickland any day. The House Energy and Commerce Committee is not done with this “great” idea, either. Next up is their “reform” of the Toxic Substance Control Act. This is the new scheme of regulation of chemicals that takes all the really great and highly successful notions from our beloved CPSIA (which applies to only TWO substances, lead and phthalates) and rolls it out to more than 30,000 chemicals and all mixtures containing those chemicals. I will need to sharply increase my blood pressure medicine to even read that draft legislation. You will read more about this toxic legislation in coming weeks.

Another interesting nugget is from the HTA economic analysis:

“Total number of manufacturers potentially affected by the CPSIA in the United States 52,544***
Total number of wholesalers potentially affected by the CPSIA in the United States 125,624***
Total number of retailers potentially affected by the CPSIA in the United States 511,240***
Total number of businesses potentially affected by the CPSIA according to the NAICS 689,408***”

The analysis goes on to surmise than 5 million individual products are affected by the CPSIA. I believe that this estimate is low by a factor of ten, but that’s just one man’s opinion. The author then concludes that the (presumably annual) cost of traditional testing is $5.6 billion. That’s a nice way to honor the memory of the child who died in Minnesota after swallowing a lead jewelry bangle, isn’t it? I can’t think of a better way to spend $5.6 billion annually. . . .

Can any rational person doubt the severity and breadth of the economic damage in light of these data?

Keep your eyes on this space for more testimony. More will filter in over the next couple weeks.

Read more here:
CPSIA – More Written Testimony from CPSIA Hearing

CPSIA – Witness List for Thursday’s Hearing in Washington

The House Committee on Energy and Commerce has posted its witness list and briefing memo on the web page for the upcoming hearing on the Waxman Amendment (CPSEA). Thursday’s hearing is scheduled for 10 AM EST and will be webcast. I do not have a link to the webcast at this point and may not have it before the hearing. You should be able to find the link at the foregoing webpage. If you miss the hearing, it should also be available for later viewing on the Committee site. I will post that link when available.

The witnesses will be:

• Rosario Palmieri, Vice President for Infrastructure, Legal, and Regulatory Policy, National Association of Manufacturers [N.b., the briefing memo says it will be John Engler.]
• Paul Vitrano, General Counsel, Motorcycle Industry Council
• Jim Gibbons, President and Chief Executive Officer, Goodwill Industries International
• Dan Marshall, Handmade Toy Alliance
• Steve Levy, American Apparel and Footwear Association
• Rick Woldenberg, Chairman, Learning Resources, Inc.

The briefing memo states: “The following organizations support the text of this legislation and urge its enactment: the National Association of Manufacturers, the Retail Industry Leaders Association [Ed. Note: this is Wal-Mart and Target], the Motorcycle Industry Council, the Handmade Toy Alliance, and Goodwill Industries, Inc.” So, four of the witnesses are already on record as supporting the amendment.

I haven’t changed my view that the Waxman Amendment should be OPPOSED.

As if to amplify my point, the briefing memo hawks the amendment’s beneficence to small business: “To this end, the legislation provides three major forms of relief . . . Relief for small batch manufacturers and other businesses by allowing the commission to approve alternative testing requirements for certain small batch manufacturers, by requiring CPSC outreach and assistance to small businesses, and by providing that the law’s phthalates limits shall not apply to inaccessible component parts.”

As I have explained in the past, there are NO alternative testing methods available two years after passage of the CPSIA. Too bad for small business, huh? Thus, there is no possibility of relief under this provision. Still, the committee apparently thinks that “outreach and assistance” will do the trick. What is that, psychiatry for small businesses? There are days when I think I need it, too . . . .

It’s also worth noting that the exception to the phthalates ban for inaccessible parts – portrayed here as some sort of small business bonus – was included in this amendment at the urgent request of two famous small businesses who consider it essential for the smooth operation of their businesses. You know them well, they have stores in your neighborhood – Wal-Mart and Target. Now that’s some straight shooting by the Majority, isn’t it?

Anyone still wondering why I feel small business is getting the short end of the stick?

I fail to understand why Wal-Mart and Target get the ears of this committee but small business interests are completely ignored or brushed over. This is a really sad turn of events for our federal government.

Remember, if the committee doesn’t do the hard work of fixing this bill, REALLY fixing it, those of us who survive will be back. This issue isn’t going away.

Tune in on Thursday. I’ll do my best for you.

Read more here:
CPSIA – Witness List for Thursday’s Hearing in Washington

CPSIA – I Will Appear as a Witness in Thursday’s House Hearing on CPSIA

I have been invited to appear as a witness at Thursday’s hearing before the House Committee on Energy and Commerce’s Subcommittee on Commerce, Trade and Consumer Protection. The hearing on the “Consumer Product Safety Enhancement Act of 2010″ (the Waxman Amendment 2.0 in its latest form) will take place at 10 AM EST on Thursday, April 29 at 2322 Rayburn House Office Building.

The hearing will be streamed live, but I don’t have the link to give you yet. You may be able to find it at this link on Thursday or on the home page of the committee. I will try to get the link posted in my blog before showtime.

I intend to tell my story and your story to the committee and look forward to exploring the bedeviling issues of the CPSIA in the open air. If you have any ideas or suggestions for my testimony, please feel free to share them here, or send me an email. Thanks.

Read more here:
CPSIA – I Will Appear as a Witness in Thursday’s House Hearing on CPSIA

Time to Make Your Voices Heard!

I have perhaps the most important request of you readers since I started blogging on the CPSIA 18 months ago.

Tomorrow at 2pm Eastern time, the House Energy and Commerce Committee Committee will be marking up Henry Waxman’s “fix” to the CPSIA. In my opinion, this is no fix at all. I sent the e-mail below out earlier today that details why I think this “deal” should be rejected.

Now is the time for your voices to be heard. I encourage you to e-mail members of the Committee before 2pm tomorrow to voice your concerns about the proposed “fix” and demand that the Committee begin drafting a legislative solution that truly addresses the problems with the CPSIA.

You can find e-mail addresses for the Committee at here. Click the name of the Member of Congress, then click “contact” and that will take you to a form where you can submit an e-mail. You can choose one Committee member or all of them – it’s your choice but I ask you to send at least one e-mail by 2pm tomorrow. If you happen to live in the Congressional District of a Committee Member, even better.

If we don’t speak up now, we have only ourselves to blame.

My letter from earlier today:

Dear Friend,

We are at a critical juncture right now as the House Committee on Energy and Commerce is in the late stages of considering an amendment to the CPSIA. The proposed legislation has been analyzed in my blog over the past few weeks, but is now about to move to the subcommittee “mark-up” phase. Assuming it proceeds past mark-up, the bill will be put to a vote at the committee and then by the House, and submitted to the Senate for its consideration. This could happen rather quickly given its sponsorship by Henry Waxman. Notwithstanding his desires, the Republicans are not yet on board with this “bipartisan” bill and Senate cooperation is another unknown.

I wanted you to see my latest blogpost on this amendment and hope you will contact your representatives in Washington to express your concern. The new Waxman Amendment does nothing to fix the fundamental issues in the CPSIA and continues to stack the deck against small business in favor of big business and certain favored industries. If this legislation proceeds in its present form, Congress is likely to assert that they have “listened” to our complaints and addressed them, washing their hands of the matter. With almost 2500 pages of rules already promulgated by the CPSC to implement the CPSIA, and more spewing out on a daily basis, this law is not only incomprehensible to most businesses but completely unmanageable as well. Based on testimony by Chairman Inez Tenenbaum at last week’s Senate Appropriations Committee meeting, it seems clear that the CPSC is transitioning to an enforcement posture (from its implementation phase). Therefore, you can safely assume that you will held responsible in a matter of months by a CPSC that has little sympathy for your problems complying with their blizzard of rules. [If you doubt this, read my blogposts about penalties.]

The time to act is NOW. We must block this amendment.

Richard Woldenberg
Chairman
Alliance for Children’s Product Safety

Read more here:
Time to Make Your Voices Heard!

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 – The New Waxman Amendment Analyzed

On Friday, House Democrats began to circulate a discussion draft of a new amendment to the CPSIA. This draft follows the abortive effort by Chairman Henry Waxman of the House Committee on Energy and Commerce to slip a CPSIA amendment to his own liking into omnibus legislation last December. [That effort was disclosed and discussed in this space from December 11-16, 2009.] The crash-and-burn of the first Waxman amendment created a new dynamic in CPSIA negotiations as it was the first (tacit) public acknowledgement by Waxman that the law was flawed AND that the CPSC could not fix it by itself. The failure of the secret amendment effort also showed that Mr. Waxman isn’t invincible. So, a step in the right direction.

Recently, in the wake of the January 15th recommendations of the CPSC Commission, the Dems reignited the simmering discussion of CPSIA changes by engaging various stakeholders on how the first Waxman amendment could be improved. This process was constrained by the Dems’ insistence that comments be in the form of changes to the first Waxman amendment, thereby eliminating anything too “blue sky”. Consistent with the recent (and short-lived) post-Massachusetts Dem preference for bipartisan “cooperation”, the Dems actually asked House Republicans what they thought. Let’s just say the Republicans see some basic flaws in the law. . . . Anyhow, the Republicans having provided their feedback, largely rebuffed, this draft emerged.

The procedural process forward is unclear. The standard (and appropriate) process would be a hearing followed by a “mark-up”. The Senate also has something to say on this legislation (their position is not clear although Senate Dems more readily acknowledge the need to fix the law). It remains to be seen whether Waxman will allow a real hearing on the CPSIA to take place. Dissenting views are not well-tolerated in this era of Congress. Anyhow, the Dems are asking stakeholders to send comments by this Friday.

I intend to discuss this proposed legislation in several essays. In this essay, I would like to discuss global issues. I will return to discuss the specifics of the law, notably the treatment of Section 101(b), in later posts.

A few thoughts, generally:

a. The amendment dodges most of the serious issues in the law. My list of changes is comprehensive, and the draft legislation avoids most of it. This amendment makes no effort to respond broadly to the well-documented flaws in the law. No one can argue anymore that the CPSC can fix these problems. The legislation reads (to me) like the position of someone almost completely in denial.

Let’s face FACTS – the CPSIA was passed on August 14, 2008. It is now March 14, 2010. That’s a long time. The CPSC has blown countless deadlines, and has failed to resolve MANY critical issues so far, like the phthalates test standard, the 15 month rule and so on. They are working around the clock. This thing is not going to fix itself, and the agency’s future is literally at stake.

The Dems refusal to face up to these issues is a betrayal of you, your customers and your marketplace.

b. You might ask – WHY are the Dems avoiding all of these serious issues? Are they deaf?

I think the answer is that they are hardly deaf but have little interest in opposing viewpoints. The CPSIA is their legacy and as such, no amendment will be blessed by them if it admits a defect in their original thinking or their asserted Perfect Legislative Process. An “acceptable” amendment must therefore pay homage to the original law and its structure. By working within the law’s original structure, the Dems ensure that the basic defects will survive amendment – and the consequences to your business, your market and to the regulators themselves will remain devastating.

[The Dems' "legacy" also survives if they can delay change long enough to make it impractical or impossible to unwind all rules and regulations implementing the misguided CPSIA. After all, we business people have no choice but to upend our businesses to follow these rules, and would incur more damaging expense to change our processes a second time. There seems little doubt that the forces behind the CPSIA want the law's infrastructure to be impossible to untangle by future Congresses or CPSC Commissions.]

The Dems’ homage to the original law is evident in several places. For instance, the concept of a “low volume manufacturer” is designed to provide a very (VERY) limited opportunity to craft an exception to the original testing requirements. Even so, the language clearly states that exceptions benefiting the LVMs must still “assure certification based on compliance with the relevant consumer product safety standards.” [Emphasis added.] In other words, no exception will be given to the little guys from the law’s basic premise that manufacturers must prove compliance before sale. [More on LVMs later.]

The proposed rules on the so-called “functional purpose” exception also kowtows to the law’s concept that everyone must ask for permission to be excused from lead requirements. In other words, the Dems reject the notion that the law can be narrowed rationally and appropriately without a burdensome bureaucratic process. Even action by the agency on its own initiative will be a major ordeal. The Dems know (because they have been told) that the exception process is effectively a closed door for all but the most well-capitalized companies. You may interpret the legislative language as the Dems’ response to this small business issue.

Another good example of the Dems’ sticking with the original law’s structure is the use of the word “practicable” in the Section 101(b) changes. This change is the doorway for the ATV’rs and book publishers to argue for exceptions to the lead-in-substrate standards. I am told that this word was chosen because of a Supreme Court decision (that I have not read) holding that “practicable” incorporates concepts of economics. Ah, I see. In other words, this language is a way to make the law look just like the original one, but still provide a faint hope for business people that they can somehow wriggle out of ridiculous lead-in-substrate restrictions. It’s obscure, to say the least, but leaves the original legislative structure in place – the Dems’ principal goal.

c. The new amendment ADDS more complexity to an already blindingly complex law. I have written about complexity numerous times, and recently posted a video explaining the frustrating challenge of trying to understand this law fully. Complexity in this case does not reflect the difficulty in creating a safe market for children’s products. Actually, that issue is long-resolved. The complexity stems entirely from a defective legal structure and its consequences. If the Dems insist on keeping the original CPSIA structure in place, you must get used to complexity spawning more complexity in your business life. It will only get worse.

This is what Big Government looks like. Hope you like it.

d. CRITICAL ISSUES are absent and unaddressed in this legislation. Examples:

• Risk Assessment by the CPSC and/or the Commission.
• Changes in age limits for the lead standards and phthalates ban.
• Narrowing of the scope of “Children’s Product” to eliminate many categories of products unthinkingly pulled into this law by its overly broad language.
• True reform to protect small businesses.
• Tracking labels relief.

And so on. As noted above, to take these steps would mean acknowledging that the original law was grossly defective. The Dems would rather eat lead-free glass than admit their career achievement was fundamentally defective. Ironically, the Republicans have no such reluctance, despite voting for the original law. The sad prospect is that unless the Dems have a change of outlook (soon), real reform may need to wait for a change in gavel (bye, bye, Mr. Waxman).

Hence my excitement over the prospect of voting in November.

More to follow.

Read more here:
CPSIA – The New Waxman Amendment Analyzed

CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

Read more here:
CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

In a remarkably-timed event, an amendment to the CPSIA was unveiled right on the heels of the two-day CPSC workshop on the “15 Month Rule”. The amendment, expected to be attached shortly to the Defense Appropriations Bill (believed to be S. 1390 National Defense Authorization Act for Fiscal Year 2010), was developed by the House Committee on Energy and Commerce Democratic majority (Waxman and his staff) WITHOUT consulting with the Republicans on the Committee. Attaching the amendment to a moving bill in another committee is a procedural way for the Democrats to amend the law without hearings or discussion by the committee that drafted the CPSIA – and thus never lose control of the process. This maneuver is particularly outrageous given that Rep. Joe Barton, the Ranking Republican on the Committee, has a bill pending to amend the CPSIA (H.R. 1815, co-sponsored by 29 Representatives) and also has requested hearings on the CPSIA (which requests were ignored).

The outrages of this new bill extend beyond discourtesies in Congress. Equally remarkable is Waxman’s apparent consultation of the General Counsel of the CPSC on the text of the amendment without informing certain of the Commissioners. This shocker to the Commissioners is quite extraordinary and possibly poisons the well for Inez Tenenbaum’s CPSC Commission. There seems to be big issues of trust here. It is not known how many Commissioners knew of the existence or terms of this amendment, but it is strongly believed that this language was drafted in consultation with and perhaps under the supervision of Ms. Tenenbaum and her staff. It is also known that the Republican Commissioners were entirely in the dark as recently as 3 PM EST today. The apparently schism in the Commission has now broken into the open with the exclusion of Commissioners from this critical collaborative process along strictly party lines. Apparently safety IS a partisan issue.

The amendment tracks the little-publicized admission by Chairman Tenenbaum in response to the written questions of Rep. George Radanovich (R-CA) that a “functional” exception to the CPSIA lead restrictions is needed. [See paragraph 16(b) of the attached document.] This amendment is primarily focused on her request. The subject of a “functional” exception to the law has been discussed behind closed doors by many stakeholders but no common vision of such language emerged. As recently as a few days ago, Congressional staffers were denying that language would be attached to the new appropriations bill. Ah, truth in politics!

The draft language, said to be “final”, can be summarized as follows:

• Redesigns Section 101(b)(1) by adding a VERY limited “functional” exclusion.
• The new language now permits a component to be excluded.
• Gives the Commission the power to exclude WITHOUT a hearing. Evidence no longer needs to be “peer-reviewed”.
• Preserves the loathed “result in the absorption of any lead into the human body” language in the exclusion provision.
• Allows exclusion for product, component part or material “by reason of its functional purpose because it is highly impracticable or not technologically feasible to remove or make inaccessible the lead in such product, component part, or material” if “contact by a child with the lead . . . may reasonably be expected to be infrequent” and it is not expected to be mouthed.
• Each product, component part or material excluded must be labeled to indicate the presence of “accessible lead”.
• The Commission may by regulation require the reduction of lead in the excluded item or material and/or establish a schedule for full compliance.
• The new amendment restricts the ability of the Commission to exclude “an entire product” if ANY part of the product does not meet the foregoing requirements. This provision is entitled “NARROWEST POSSIBLE SCOPE OF EXCLUSION”.
• “Ordinary books” and “ordinary paper-based printed materials” are excluded from the lead restrictions under the CPSIA. This exception seems to include “quick copy” print materials, too. Materials not meeting the strict definitions of these terms are NOT excluded.

This language is not likely to make anyone particularly happy other than publishers and the library people:

The Pro’s:

1. Waxman acknowledges, finally, that the law produced by a “perfect legislative process” needs some tweaks.
2. There is no denying now that the CPSC can’t fix all the problems, and Waxman apparently concedes this point.
3. The Commission can now grant exclusions without a hearing.
4. Books were inadvertent inclusions in the CPSIA, and libraries were unfair victims. That has been corrected.
5. An awkward path for fixing ATVs, bikes and perhaps pens now exists. It is also possible that even rhinestones can be addressed, at least in part, under this language.

The Con’s:

1. The amendment leaves in place the terrible “any lead” language, making exemption requests a (bad) joke.
2. Exclusions will be hard to get and require a great deal of expense to obtain.
3. ALL exclusions come with a Proposition 65-like “consumer right to know” label, making the sales of the product highly unlikely. Few products can carry an accessible lead label and still be sold in volume.
4. The narrowness of the exclusion inherently limits the freedom of the Commission to act according to common sense.
5. The Commission and the CPSC are still not empowered to assess risk.
6. Small business issues were completely ignored, as were testing cost, liability and labeling issues.

Some additional observations:

• The approach of Waxman to fixing this law demonstrates that the CPSIA is now a House Democrats’ law. I will spit every time someone mentions the original 424-1 vote – the illusion of bipartisanship has been snuffed out once and for all. The exclusion of Republican Congressmen and Republican CPSC Commissioners from this process speaks volumes about how Washington intends to administer this law.
• Ms. Tenenbaum’s technique in obtaining this “relief” makes her look like Mr. Waxman’s bag man. The close alignment of Bob Adler and Ms. Tenenbaum on the Commission puts Mr. Adler into this camp, too. [When this subject comes up, Mr. Adler's prior job on Waxman's staff always has heads nodding.] The quiet development of this language breaks the illusion that talking to the Democrats on the Commission will somehow bring changes independent of Mr. Waxman. This bill makes it look like he maintains staffers on the Commission.
• The exclusion of books is nice, but smells a bit funny to me. The American Association of Publishers appointed Tom Allen as its CEO in April. Mr. Allen, a Democrat, served under Henry Waxman on the Energy and Commerce Committee and often followed his lead as a Congressman. Small wonder he got this job, right? It wasn’t a real shock then that books were excluded in this amendment. Despite the holier-than-thou rhetoric, it’s “business as usual” in Washington under Obama and Pelosi. A friend in need is a friend indeed.
• The narrowness of the exclusion process and the requirement of labeling despite the apparent admission that such exclusions pose few health risks strongly suggests that the legislative process is being controlled by zealots who will not yield to reason. The “true believers” who now dominate Washington have a world view that you need to take on board – Californiziation. There is no compromise on these issues, regardless of common sense or hard reality. Given the exposure of the axis between these Congressional leaders and the control block on the Commission, there seems little reason to be especially optimistic of serious advances in implementation of the CPSIA by the agency.
• The Chairman and Democratic majority on the Commission lack the political will to take on Waxman in an effort to fix the CPSIA. This potentially sacrifices the long term effectiveness of the agency in its stated purpose to protect consumer safety and possibly also the vigor and competitiveness of the American children’s product industry, all to avoid the unpleasantness of a contentious job. Complaints at the CPSC that it should be renamed the “Children’s Product Safety Commission” or the “Consumer Product Compliance Commission” will likely gain traction. The lack of political will to fight the good fight and to stand up for common sense create the conditions for a terrible legacy. Will these Commissioners be able to say they left the agency better off than they found it? An interesting question. Guys, there are no free moves in this game . . . .

I continue to shake my head over the timing of this development. Were I Chairman Tenenbaum, I might have told Mr. Waxman that I didn’t need this kind of help. Consider what may have been lost: (a) the bonhomie and trust built in the last couple days at the workshop as CPSC Staff and all sorts of stakeholders mingled in good faith and with open dialogue, (b) the goodwill generated by the CPSC efforts to protect Cepia LLC and their Zhu Zhu Pets from unfair consumer group attacks, goodwill that now must be reevaluated, and (c) the general appearance of a new cooperative, open-minded wind blowing through the CPSC in the last six weeks. I now have my doubts about the candor of discussions and the legitimacy of stated intentions to “fix” the system. The good intentions and well-meaning of the CPSC Staff is not really in question here – but the leadership must be held accountable. You can’t ask for trust and then expect this kind of thing to be ignored. You are either a partner . . . or you aren’t.

The Stay is now on the table. The CPSC Commission has been meeting behind closed doors with a sense of purpose and urgency to figure out what to do with it. Your letters and emails are being read . . . but the open question is whether enough Commissioners care. The Republicans on the Commission have been open in their support for extending the Stay, but the three Dems are unaccounted for. One is said to feel strongly that the Stay needs to go away, on the grounds that Congress wants it gone. Let’s not make any bones over this – it’s not Congress, it’s Henry Waxman. If it were Congress (in other words, a bipartisan movement supporting the existing CPSIA), then perhaps Mr. Waxman wouldn’t have to sneak around to get a CPSIA amendment through Congress without hearings or discussion. So when you hear that “Congress” wants something with this law, connect the dots.

A very disappointing way to wrap up a promising week.

Read more here:
CPSIA – Waxman To Amend the CPSIA . . . Who Can We Trust?

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