CPSIA – The Senate Wants to Save ATVs . . . What about the Rest of Us???

Yesterday Senators Klobuchar and Tester offered an amendment to S. 493, a moving bill to reauthorize the small business administration (“SBIR/STTR Reauthorization Act of 2011″).

CPSIA – New HTS Import Tariff Schedules Due to CPSIA

Please note the following alert from the TIA on new harmonized tariff schedules (HTS) for toys. This change was requested by the CSPC and believe me, it’s because of the CPSIA and their fixation to zap you at the port. You will also note that this goes beyond toys, including jewelry and festive articles. For all I know, it goes well beyond the TIA’s list. You should consult with your import specialist or your lawyer. The age grading sets up the agency to police the ports with ever greater care and scrutiny.

Read more here:
CPSIA – New HTS Import Tariff Schedules Due to CPSIA

CPSIA – The War Over Pompeo’s Amendment to De-Fund CPSC Database

The players are lining on either side of Rep. Mike Pompeo’s brave amendment to de-fund the terrible CPSC public injury/incident database. The problem with the database is that it will likely be filled with garbage and malicious material that no manufacturer can effectively block. As you know, once the material is out on the Internet, it can’t be retracted in any practical way. This prompted Wayne Morris of AHAM to call the database a government-sponsored “blog” at yesterday’s Congressional hearing. Pompeo’s amendment, no. 545 to the Continuing Resolution on the House Floor right now, is likely be to voted on later today, possibly in the wee hours of night. It’s NOT too late to ask your Congressman to support it!

The National Association of Manufacturers sent out the following email and letter in support of Mr. Pompeo’s amendment:

“Colleagues,

The NAM sent the following letter to all members of the U.S. House of Representatives supporting an amendment by Rep. Mike Pompeo (R-KS) to discontinue funding for implementation and operation of the CPSC’s Product Safety Information Database for the remainder of this fiscal year to allow Congress the time necessary to fix the remaining challenges with the implementing rules. We expect a vote on his amendment #545 to H.R. 1 the Continuing Resolution sometime this evening. You are encouraged to share your support for this amendment to Members of the House.”

And on the other side, Rep. Edward Markey (D-MA) sent out a “Dear Colleague” letter in opposition. It contains the usual tired and worn posturing that we have endured for three years now. Interestingly, Mr. Markey did not attend yesterday’s hearing of the House Subcommittee on Commerce, Manufacturing and Trade which concerned the database in large part. I guess there’s no reason to listen to testimony if you know everything already, right?

Markey’s letter:

“OPPOSE THE POMPEO #545 AMENDMENT ON CONSUMER PRODUCT SAFETY

From: The Honorable Edward J. Markey
Sent By:
Bill: H.R. 1
Date: 2/18/2011

February 18, 2011

OPPOSE THE POMPEO #545 AMENDMENT

PROTECT PARENTS’ ABILITY TO GET EARLY WARNINGS ON POTENTIALLY DEFECTIVE TOYS AND OTHER CONSUMER PRODUCTS

Dear Colleague:

I write to urge a NO vote on amendment #545, which would eliminate funding for the Consumer Product Safety Commission’s (CPSC’s) online, searchable database. This database enables members of the public to report and obtain information about potentially defective products that could cause serious injury or even death.

The Consumer Product Safety Improvement Act (CPSIA) passed the House by a vote of 424 to 1 and was signed into law by President Bush in August 2008. It contained language I originally authored to create this online “Early Warning System” for those who wish to report or research potentially harmful or defective toys and other products.

The need for this database is clear: Before its creation, it often took YEARS before the public ever learned of serious threats to health and safety that some products posed. For example, although both industry and the CPSC were first made aware that small magnets that easily fell out of children’s toys were causing serious, life-threatening injuries in 2000, it took FIVE years before the public was given any information, and more than SEVEN YEARS before a full recall of the products occurred.

The CPSC has implemented my database requirement in a responsible and reasonable way – it allows industry ten days in which to challenge the material accuracy associated with all reports and even provides the opportunity for industry to comment on reports it believes are erroneous, so consumers can hear both sides of the story.

Moreover, a recent poll found that eighty-seven percent of those surveyed want the ability to find out if another consumer experienced a safety hazard with a consumer product.

However, industry now wants to turn the clock back and return to a time when news of products that may maim or kill can be kept secret in the interests of maximizing profits and keeping the public in the dark.

VOTE NO on the Pompeo amendment to take this vital safety tool away from mothers and fathers all across this country.

Sincerely,

Edward J. Markey”

Read more here:
CPSIA – The War Over Pompeo’s Amendment to De-Fund CPSC Database

CPSIA – Double-Speak Patrol

760 days have passed since ANY Democrat in Congress did ANYTHING to help us on the CPSIA. There are only 51 days left until Election Day.

Consider the following two events:

a. August 2, 2010: The CPSC Commission voted to authorize yet more Mattel firewalled labs (2) and a lab operated by Hanesbrands, a $2.3 billion market cap maker of underwear. [Oooo, lead in underwear! Is this a sick joke or does the CPSC really think kids are chewing on their dirty underwear? Ew!] I believe, without checking, that Mattel now has nine approved firewalled labs, enabling it to save lots of money which is well beyond the practical reach of any small business. The only parties who have thusfar achieved this relief are mass market companies.

b. August 15, 2010: CPSC Chairman Inez Tenenbaum gave an interview with the Baltimore Sun featuring the following exchange:

“Q: How do you respond to some critics of the Consumer Product Safety Improvement Act who say the law puts heavy testing burdens on manufacturers, especially smaller producers?

A: We have to have high standards to protect the consumer. So regardless if you’re a large business or a small business, we can’t let you put lead in children’s products, or cadmium. Or overlook flammability laws or use other toxic chemicals. We look at what the danger is. We think if we had a small-business ombudsman who was out there regularly educating small businesses, we could help them prevent problems in terms of compliance. Large corporations have a whole office full of lawyers and engineers and chemists and toxicologists. Small businesses do not. And we don’t want to put anyone out of business. We want to help them learn how to comply and sell safe products.” [Emphasis added]

Put side-by-side, these two events separated by only a few days, make clear the utter insensitivity of our government to our plight. The dismissive condescension of Tenenbaum in daring to suggest that an ombudsman would make the problems disappear for small businesses is infuriating. The necessary implication is that we small businesses are just too stupid to understand their complicated rules – I guess she thinks only Mattel can read the English language. Of course, the pending testing frequency rule (which I believe will be implemented in the coming weeks, get ready for it) will cause our company to spend $15 million per annum on testing. This sum far exceeds our profits. Perhaps the ombudsman will help us terminate our people to pay for testing, or provide a shoulder to cry on. And we’ll be crying alright.

At the same time, Tenenbaum is actively feathering the nest of the VERY Big Business that caused the CPSIA, Mattel. How ironic, isn’t it? The fact that she is tilting the children’s market fatally in favor of Big Business doesn’t seem to be a source of guilt for Ms. Tenenbaum. Empty words are the solution.

Please keep this in mind the next time you suffer through the dark intonations of our Fearless Leader laying the blame for the economic problems of the small business community at the feet of the Republicans. The problems in our market won’t be solved with yet another handout – the Dems should try loosening the garrote they are busily tightening around our air passages. Tax relief won’t provide much help when the new regulations makes profit impossible.

Let’s stipulate that the Dems in Congress and at the CPSC are fully aware of the inequities and other problems embedded in the CPSIA. In the face of a continuous and vigorous public debate for two years+, this seems beyond dispute. I am also aware that this blog is widely and loyally read by these people. Ignorance is not a possible explanation. Stubbornness, self-preservation, zealotry, a lack of political will, exhaustion – any of those make more sense to me as an explanation.

I have no outlet for my anger over this. I just hope you are not a sucker for the Dems’ baloney and spinning. Our ONLY hope is a Republican-led Congress that will act to make these people accountable for the damage they are inflicting. The Dems have proven their stripes – to hope they will come to their senses is simply wishful thinking without any basis in reality or fact.

Can you take two more years of this? I cannot and I will not. I need your help, however – you need to vote the scoundrels out of office on November 2. Here is a list of Democrats on the House Energy and Commerce Committee:

Henry A. Waxman, CA
John D. Dingell, MI
Edward J. Markey, MA
Rick Boucher, VA
Frank Pallone, Jr., NJ
Bart Gordon, TN
Bobby L. Rush, IL
Anna G. Eshoo, CA
Bart Stupak, MI
Eliot L. Engel, NY
Gene Green, TX
Diana DeGette, CO
Lois Capps, CA
Mike Doyle, PA
Jane Harman, CA
Jan Schakowsky, IL
Charles A. Gonzalez, TX
Jay Inslee, WA
Tammy Baldwin, WI
Mike Ross, AR
Anthony D. Weiner, NY
Jim Matheson, UT
G. K. Butterfield, NC
Charlie Melancon, LA
John Barrow, GA
Baron P. Hill, IN
Doris O. Matsui, CA
Donna M. Christensen, VI
Kathy Castor, FL
John P. Sarbanes, MD
Christopher S. Murphy, CT
Zachary T. Space, OH
Jerry McNerney CA
Betty Sutton, OH
Bruce L. Braley, IA
Peter Welch, VT

Please help their opponents with cash and labor, and votes. My guy is Joel Pollak, running against Jan Schakowsky. Can you imagine Congress without her? Oh, to dream. . . . His website is www.pollakforcongress.com – please consider supporting his candidacy generously.

Read more here:
CPSIA – Double-Speak Patrol

CPSIA – More Analysis of Damaging Foreign Mfr Accountability Legislation

One additional point about the design of the extremely ill-conceived Foreign Manufacturers Legal Accountability Act of 2010: the “minimum amount” hurdle that triggers the requirement to register for service of process is NOT set by the law. The different agencies have to set it for the products they regulate.

The draft legislation provides the following mechanism for establishing this limit:

“(4) APPLICABILITY — (A) IN GENERAL.—Paragraph (1) applies only with respect to a foreign manufacturer or producer that exceeds minimum requirements established by the head of the applicable agency under this section. (B) FACTORS.—In determining the minimum requirements for application of paragraph (1) to a foreign manufacturer or producer, the head of the applicable agency shall, at a minimum, consider the following: (i) The value of all covered products imported from the manufacturer or producer in a calendar year. (ii) The quantity of all covered products imported from the manufacturer or producer in a calendar year. (iii) The frequency of importation from the manufacturer or producer in a calendar year.”

So for those of us suffering under the CPSIA, this legislation tenders some discretion to the CPSC on how penal this provision will be. Interesting, isn’t it, that Congress will allow the CPSC to set this threshold without oversight but won’t let them assess the risk of pens, rhinestones, science kits or ATVs? Anyhow, given the current practice of the CPSC to apply strict liability standards to so many things, leading to recalls of (for instance) 40 inflatable toy baseball bats for violative phthalate levels (the one-and-only recall for phthalates in U.S. history) and the pending “15 Month Rule” which creates an unbearably expensive and risk-averse scheme of safety compliance, I presume that the CPSC will set these thresholds very low. After all, how else can American consumers sleep well at night???

And consider how this rule might be applied. To determine whether you are above or below the threshold, you must disclose your revenues and volumes to the government for their scrutiny and approval. This is remarkably invasive and is reason enough for many factories to concentrate on sales to South America, Europe, Asia and the Middle East. Who needs this nonsense?

[And if registration is unavoidable, the registration process itself is also tedious and requires the disgorgement of lots of detailed information - which not only will discourage participation but also sets up the foreign manufacturers for liability to the government for "false" statements if they make errors. We have 1500 catalog items, so I can identify with the problems that this kind of requirement might create. It's nothing more than a bureaucratic set-up for regulators to accumulate causes of action to use as they see fit.]

If you think I am delusional or just tend to see the world darkly, please ask yourself – would YOU disclose ANY of this information to the government of Germany? China? Slovakia? Venezuela? Do you trust foreign governments? The confidentiality of their records? The likelihood that this information will not come back to bite you? Do you expect to get a fair shake in a foreign jurisdiction, particularly in a dispute with a local company? Do you think your suppliers will serve you better if you ask them to do this? Are you important enough to influence your suppliers or would they simply throw you overboard? What will this mean to your business – even if foreign governments refrain from retaliation (unlikely)?

This is yet more evidence of the shamefully low quality work of this Congress and its absolute ignorance of the real world. Think of the pending Waxman Amendment which posits that alternative testing methods can be used by small (micro) businesses to avoid certain testing requirements under the CPSIA. Of course, no such testing methods exist but that’s just a trivial detail, right? Or the fact that in order to qualify for this “relief” under that legislation, each of these tiny businesses must disclose their financial records to Mother Government to confirm their eligibility for relief. Sounds REALLY workable, right? It does, if you have never worked for a company and have been closeted in the federal government for long enough.

Another sad, sorry low point for the worst Congress in history. Well, it’s nice to be distinguished in SOME way, right???

Read more here:
CPSIA – More Analysis of Damaging Foreign Mfr Accountability Legislation

CPSIA – Booz Allen Baloney

Hey, how many of you have been contacted by Booz Allen Hamilton to participate in the CPSC Strategic Planning Initiative? On February 17, BAH consultants addressed ICPHSO and told us the following (quoted from my blogpost of February 17):

• Agency is committing to protecting consumers (that’s the angle).
• The agency is committed to inclusiveness and transparency, so they will be asking for input from stakeholders throughout the process.
• Will have focus groups and seminars in the near future. Looking for input and to validate their thinking.
• Will keep you posted on progress and their ideas along the way. Can send in questions for clarification.
• They NEED our input. Transformation efforts need engagement of all stakeholders.

Yet I am now told that the BAH report is due anytime now. Although I requested to be included in this program and although the agency promsied publicly to allow stakeholders to participate in shaping the strategy . . . nothing. It appears to me that NONE of these promises were kept. Rumor has it, however, that the consumer groups were consulted. What-a-surprise!

I think this matters a LOT. After all, credibility and trust are destroyed by broken promises, even if by going quiet the agency is able to induce a sleepy state among stakeholders. That’s not too hard, given the rotten state of the economy that keeps most business people focused on survival, rather than keeping a close eye on the latest twists and turns from the CPSC.

In her keynote speech to the Consumer Federation of America on March 11, 2010, Ms. Tenenbaum bragged about holding RC2, Fisher-Price, Mattel [Fisher-Price and Mattel are the same company, notably] and Target “accountable” for lead-in-paint violations that preceded her term in office. So, if it’s right to hold them “accountable” for their failure to do as expected, who should be held accountable for the utter failure of the CPSC to keep its promises on Booz Allen? Or should we just get ready to applaud appreciatively for the strategic report when issued, as though everything’s fine?

I am tired of getting the shaft in the new CPSIA world.

Read more here:
CPSIA – Booz Allen Baloney

CPSIA – FOIA Request Relating to Schylling Penalty Assessment

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 the provisional agreement between Schylling Associates, Inc. and the CPSC [CPSC Docket No. 10-C0004, published 75 FR 30785 (2010-6-2) (“May Agreement”) and any prior agreement between Schylling Associates, Inc. and the CPSC on the same matter. In particular, I am interested in any document which relates to objections to the original agreement between the parties dated January 19, 2010 (http://bit.ly/aEfWcQ) (“January Agreement”) or which relates to the reasons for the increase in the penalty assessed in this case from the $200,000 amount in the January Agreement to the $400,000 in the May Agreement. 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 – FOIA Request Relating to Schylling Penalty Assessment

CPSIA – Imagine the Fun, the Commission to Discuss the "15 Month Rule" Tomorrow

The CPSC Commission will be discussing the following matters tomorrow at 9 AM EST:

1. Testing and Labeling to Product Certification – Notice of Proposed Rulemaking (NPR) and Testing Component Parts – Notice of Proposed Rulemaking (NPR)
2. CPSA 15(j) Rule for Drawstrings – Notice of Proposed Rulemaking (NPR)
3. CPSA 15(j) Rule for Hairdryers – Notice of Proposed Rulemaking (NPR)
4. Infant Bath Seats – Final Rule – and Laboratory Accreditation

Please NOTE that the Testing and Labeling rules (the “15 Month Rule” announced on April 1) has been converted into a Notice of Proposed Rulemaking to expedite its completion. Other than their desire to move on to something more interesting to do, why do you suppose the Commission is so hot-to-trot to get this rulemaking behind them?

Could it be that they REALLY want to lift the testing stay on February 10, 2011, as PROMISED? Hmmm.

You can view the hearing tomorrow at this link.

Read more here:
CPSIA – Imagine the Fun, the Commission to Discuss the "15 Month Rule" Tomorrow

CPSIA – Imagine the Fun, the Commission to Discuss the "15 Month Rule" Tomorrow

The CPSC Commission will be discussing the following matters tomorrow at 9 AM EST:

1. Testing and Labeling to Product Certification – Notice of Proposed Rulemaking (NPR) and Testing Component Parts – Notice of Proposed Rulemaking (NPR)
2. CPSA 15(j) Rule for Drawstrings – Notice of Proposed Rulemaking (NPR)
3. CPSA 15(j) Rule for Hairdryers – Notice of Proposed Rulemaking (NPR)
4. Infant Bath Seats – Final Rule – and Laboratory Accreditation

Please NOTE that the Testing and Labeling rules (the “15 Month Rule” announced on April 1) has been converted into a Notice of Proposed Rulemaking to expedite its completion. Other than their desire to move on to something more interesting to do, why do you suppose the Commission is so hot-to-trot to get this rulemaking behind them?

Could it be that they REALLY want to lift the testing stay on February 10, 2011, as PROMISED? Hmmm.

You can view the hearing tomorrow at this link.

Read more here:
CPSIA – Imagine the Fun, the Commission to Discuss the "15 Month Rule" Tomorrow

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

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