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CPSIA – Obama Will Sign HR 2715 CPSIA Amendment Into Law Today

Rick Woldenberg, Chairman, Learning Resources, Inc. — Fri, 12 Aug 2011 18:41:09 +0000

President Obama is expected to sign HR 2715, the CPSIA amendment that picks winners and losers and represents the end of legislative action to repair the misconceived CPSIA. Obama has to clear his desk before his vacation next week. This will be one of his last “to do’s” before R&R begins. Now what? Here is my prediction: a. The push will be on for the end of CPSIA rulemaking. Not only are the Dems on the CPSC Commission tired of this (times ten) but Congress wants this off their plate, too. Our petty concerns have been “addressed” and besides, what could go wrong anyway? Um, well, consider this ” colloquy ” between three powerful Democrats in the Senate. Before you read on, please note: – HR 2715 is a bipartisan bill, sponsored by both parties (obviously). This dialogue is among three like-minded Democrats. Why isn’t it a colloquy between both parties? Is this even relevant? As you will see, that depends on where you sit. – The three Senators involved have always agreed with each other on this law and have been remarkably resistant to any data, reasoning or argument that opposes their preconceived notions about the CPSIA or its groundings. Should their time-warp views be accorded any relevance? – Inez Tenenbaum has already cited this “colloquy” as her Congressional “instructions”. Dem to Dem. Storm clouds gathering? I have no idea if this dialogue actually took place or is just a figment published to justify the Dem agenda. Not even an interesting question to resolve, frankly. Enjoy: ” Mr. ROCKEFELLER. Mr. President, I rise to engage in a colloquy with my colleagues, Senators Durbin and Pryor, over the passage of H.R. 2715, a bill that passed on the House suspension calendar by a vote of 421-2 and the Senate by unanimous consent. Due to the fact that this bill bypassed regular order and failed to receive consideration in the Commerce Committee, I believe it is important to explain our intent in passing this bill.” Mr. DURBIN. I am frustrated that the Consumer Product Safety Commission has taken too long to promulgate rules required by the Consumer Product Safety Improvement Act, CPSIA, including the rules on third-party testing obligations and the component part testing rule. I did not oppose H.R. 2715, because it does not delay or impede the Commission’s ability to implement those rules–although it may place some increased costs on the Commission due to actions required as a result of new CPSC mandates and authorities–and I urge the Commission to complete its work expeditiously. Mr. ROCKEFELLER. I share the Senator’s concerns about the CPSC’s delay in promulgating its regulations in accordance with the mandates of CPSIA. While I sympathize with the CPSC over its resource constraints, the Commission must accelerate its efforts and complete the important regulations required under CPSIA. The provisions in section 2 of H.R. 2715 were not intended to delay or stop the Commission’s current rulemaking under section 102 (d)(2) of the Consumer Product Safety Improvement Act to implement the critical provision related to the third-party testing of children’s products. I fully expect the Commission to go forward with these important rulemakings with no disruption from the passage of this bill. Given the limited resources of the Commission and recognizing the length of time it has taken to implement the provisions of the Consumer Product Safety Improvement Act, it is intended that most of H.R. 2715′s new mandates on the CPSC are not rulemakings. Some of the new authority, such as the functional purpose exemption and the authority to restrict the scope of the used products exemption, are subject to a notice and hearing requirement, but not to a rulemaking. Others, such as the creation of a new public registry for small batch manufacturers, can be implemented without notice and comment or even a hearing. As such, the Commission should act to effectuate the new mandates of this bill in a most expeditious manner. Mr. PRYOR. I also share the Senator’s view that nothing in H.R. 2715 is intended to delay the Commission’s rulemaking with respect to third party testing and believe that Commission should conclude its testing rulemakings in the next 2 months. I supported H.R. 2715 because it made minor modifications to an important consumer product safety law and supported implementation of important aspect of the Consumer Product Safety Improvement Act such as the consumer product database. This bill will require the CPSC to extend the deadline for posting reports on defective products by 5 days if a business asserts that the information in the report is not accurate. However, this change does not alter the fact that the Commission still must post the report in the database after those 5 days even if it is still reviewing the merits of the complaint. ” So now you know what is going to happen. Tenenbaum is practically broadcasting it. She has received her “instructions”. They’ve heard enough. b. With Thomas Moore’s run at the CPSC ending once and for all in October, and with consumer groups already publicly calling for his replacement ASAP, the Dems will be very anxious to complete as much work as possible before he goes. His replacement’s confirmation through the Senate is not a sure thing at all. Even a recess appointment is not as much an option as in the past (the Senate is running a “pro forma” session right now to head off this step by the President). If Moore is not replaced on a timely basis, the Commission will shrink to just four people which means that Tenenbaum and Adler might actually have to listen to their Republican counterparts and seek COMPROMISE to get things done. Don’t hold your breath – they’d prefer to get it done their way. Expect the worst from the next three months. c. 2012 will be the year of enforcement. In 2012, you will get to find out how well I can predict the future. 2012 won’t be fun for some people, maybe lots of people. Nothing good will be achieved from a safety standpoint but the CPSC will get to strut its stuff. [Does it strike you as ironic that Ms. Tenenbaum brags about falling recall rates under her reign? Is or isn't this the exact reason that Congress got so mad at Nancy Nord? I guess when Dems are in charge, falling recall rates are a good sign. When Republicans are in charge, it's so so bad,] Get ready for some tough times.

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CPSIA – Obama Will Sign HR 2715 CPSIA Amendment Into Law Today

CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

Rick Woldenberg, Chairman, Learning Resources, Inc. — Wed, 03 Aug 2011 10:29:38 +0000

Here is the final form of the CPSIA Amendment (HR 2715) that should become law sometime this week. I want to quote from another blog (thank you, Steven Hansen ) on this amendment’s path to the President’s desk: ” This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These ‘legislative’ fixes have been getting passed around in backrooms for months and when they finally did come to a ‘vote’ the ‘fix’ was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that’s too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill. ” Mr. Hansen is completely correct. We know that even Republican members found out about this amendment when it was docketed for a House floor vote. Mark-up, schmark-up. The Senate also made the decision (if that is even possible, since the Senate is an inanimate organization without a mind) to shift to HR 2715 without debate, and passed it with a voice vote. These decisions were literally made in minutes behind closed doors and Members of Congress had no time to read (and perhaps no interest to read) the “noncontroversial” bill. After three years of intense bickering, a small group of individuals made the decision for all of us that this bill is good enough to “fix” the CPSIA. There won’t be another “fix” to this law again, perhaps EVER. You know the bill sucks if Henry Waxman is clucking about it . In fact, most of the text of the bill was his handiwork almost entirely (functional purpose, testing “relief” (Eshoo), database (Markey), small batch “relief”). And what did we get for all our good government dollars? I have previously given my quick assessment of this law and have no interest in repeating the exercise at this point. I would like, however, to highlight low lights of the bill: Winners : ATVs, Bicycles, Resale Goods, Books, Libraries Losers : See above list, and if you’re not on it . . . you. Technical Fixes of Past Congressional Screw-ups : 100 ppm lead standard is prospective now. And WHY wasn’t Congress able to do this for 300 ppm or 600 ppm? Good question. The five CPSC Commissioners called for this particular change back in January 2010. What’s the hurry now??? Changes to testing requirement to “representative” rather than “random” samples. And we just hired our third statistician, too! Restricts the phthalates ban to accessible plasticized components. i guess Congress isn’t worried about kids with serpent tongues any longer. Makes FUTURE crib standards prospective. And who said the $32 million in recently discarded good fixed-sided crib inventory died in vain?! Shame, Shame, Shame : Small batch manufacturers, the most micro of businesses (under $1 million in total turnover) must register prior to utilizing any of the nifty cost-saving testing innovations now being cooked up by the very open-minded CPSC. This is the CPSC’s version of the sex offender registry. Is there ANY basis for singling these people out for special attention? Why doesn’t Mattel have to register, too? Oh, come on, you know we must have different rules for Mattel! They need their own firewalled labs and so on for their efficiency. [Here's a good example of their efficiency.] It’s only fair, the real safety worry is the crafters . . . . The only good news is that none of the small batch manufacturers will ever have to suffer this indignity. The clever gnomes of Congress have figured out how to appear to give something to those heart-rending little nobodies without doing squat. How do they do that? The only “relief” that the CPSC may implement must meet this standard: “Any such alternative requirements shall provide for reasonable methods to assure compliance with any applicable consumer product safety rule, ban, standard, or regulation.” [Emphasis added] This CPSIA term has already been interpreted by this Commission multiple times. The word “assure” ensures that no relief will ever be given since nothing can “assure” compliance other than prophylaxis. Notably, the Commission has purportedly looked for this “out” for three years and came up with nada . And Bob Adler has been “agonizing” over it for that entire time. [I feel AWFUL for him, he suffers for each of us.] How will another year or two of agonizing produce a different result? Suckers are welcome to wait longingly for this promised “relief” but they will be disappointed again and again. Protest is futile. Disgusting, Repellent Hypocrisy : Consider the amazing gimme provided to bicycle manufacturers: ” (B) METAL COMPONENT PARTS OF BICYCLES.—The third party testing requirements established under subsection (a) shall not apply to metal component parts of bicycles with respect to compliance with the lead content limits in place pursuant to section 101(b)(6) of the [CPSIA]. ” They don’t have to test their metal components at all. AT ALL, EVER. Bicycle manufacturers are different than you and me. Let me be clear – I think testing metal components on bikes is a stupid and pointless waste of time and money. The bike industry testified in the CPSC 100 ppm hearing that when they tested a single part in ten places, they got ten different results. Whoa! They proved they had an unsolvable problem and apparently Congress listened. How heartwarming! I gave similar testimony and submitted similar data about our products at the same hearing in the same panel sitting at the same table. Congress must have gone deaf by that time. Oddly, the CPSC staff included this data and my testimony in their 100 ppm report. So perhaps Congress isn’t just deaf, they may be blind, too. Or perhaps they just don’t bother with the details. Inquiring minds want to know about this particular term benefiting bicycle manufacturers: 1. The AAP testified that there is a real risk that kids might lick their bicycles . Problem? Apparently not, but the testimony was taken morbidly seriously at the time. I wonder why Congress wants to protect bike lickers now. 2. Perhaps you recall that the CPSC rejected the request of Learning Curve to exempt its brass bushings on toy car wheels. This decision was a “major victory” for safety because, get ready for it, there was lead in the brass bushings although Bob Adler noted there was no danger even to a child at the “tipping point” in lead exposure. [Adler voted to reject LC's petition nevertheless. He "had" to, the law left him no choice.] Later the Consumers Union warned against playing brass instruments in a band because of the dreaded lead in brass. [ Degchi (Curry cookware) is one of many traditional Indian cooking utensils and pots made of brass. Where are all the Indian victims from generations of eating off brass?] The CPSC also held the line against bikes, pens and ATVs over the purported lead content of their metal components because the Dems asserted that there is no safe level of lead. Is Congress signalling that metal components are uniquely safe in bicycles? How did Congress figure this out? Is there something in the Congressional record on this point? The term about testing metal bicycle components first appeared in this bill when it went to the House floor on suspension. Bills on suspension cannot be amended. Hmmm. 3. I recall Rachel Weintraub intoning during testimony at the CPSC and in Congress that consumers expect their products to be tested before sale. [Former Commissioner David Pittle told the same tale at a CPSC hearing.] Bicycles won’t be tested before sale now. How will consumers be able to sleep peacefully? How will they know which items are not tested (ATVs, books, bikes, resale goods of all types) and which are tested? Won’t they have the same uncertainty again? I can feel the fabric of our society tearing a little bit . . . . 4. Bicycle manufacturers have indicated that tests of metal components vary depending on where you test the component. There is unpredictable variability in their test results because . . . metal components are not precisely homogeneous. Metals are used in components in many children’s products, not just bikes. It follows that all metal components pose the same issue. It also follows that metals pose an equal risk of lead poisoning regardless of the product they are used in. So why must we test our grommets and staples when bikes can tool around untested? 5. Is there a reason why OTHER components on a bicycle (presumably made of plastic and vinyl) must be tested? Is there a known health hazard there that bike companies must protect against? Will those tests achieve anything for anyone? And why must every other product category still subject to the CPSIA test every component, whether metal or plastic? 6. The CPSC has held that it is “technologically feasible” to make every component of every children’s product compliant to the 100 ppm standard. There were no exceptions to their conclusion. Why did Congress in its infinite wisdom decide that bicycles alone could be forgiven the need to meet this standard and alone to not have to test its metal components? [The other problem child under this provision, ATVs and motocross, was written out ENTIRELY.] Why weren’t bikes made to comply with the astute judgment of the CPSC and shift over to new materials to meet the “toughest lead standard in the world”? After all, that only costs money, and Bob Adler assured us that the cost would be minor and worth it. Can’t be too safe and, of course, we all know that safety delayed is safety denied. Isn’t this action of our all-knowing Congress denying safety? As I have noted, this law picks winners and losers. Applying reason and rationality to this arbitrary allocation of spoils is a pathetic waste of time at this point. Congress has decided what’s best for all of us, and with the Tenenbaum gang in charge at the CPSC, you shouldn’t spend much time hoping things are going to change in the future. Henry Waxman and Rachel Weintraub won.

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CPSIA – Final CPSIA Amendment (HR 2715) Moves to President’s Desk for Signature

CPSIA – A Comment Not to be Missed

Rick Woldenberg, Chairman, Learning Resources, Inc. — Wed, 03 Aug 2011 06:56:18 +0000

From Anonymous : “I have to say, as a lifelong Democrat, this whole CPSIA thing makes me feel incredibly powerful! You have to admit that to be able to, during a deep recession, force the American people to pay the immense administration costs of the CPSC due to the CPSIA, while burying business in mountains of red tape and testing expense, and to do so while EXPLICITLY STATING that they have no obligation to show efficacy and in the face of a huge body of evidence that the CPSIA will accomplish little in terms of real safety is…Powerful! As a registered Democrat I practically feel I am becoming one with the force. You Republicans can join the force too. All you have to do is close your mind, admit that evidence (when it contradicts your cherished gut feelings) is overrated, and join the Democratic Party. Then you too can blatantly screw the American people.”

CPSIA – The House Answers with its Own (Bipartisan) Suspension Bill

Rick Woldenberg, Chairman, Learning Resources, Inc. — Mon, 01 Aug 2011 09:44:40 +0000

The Republicans and Democrats on the House Energy and Commerce Committee have apparently suddenly agreed on a new 29-page draft CPSIA Amendment . This is a modification of ECADA and is probably the best that the House Republicans could extract from the Dems. It is also part of a game of chicken between the House and Senate on how to amend the CPSIA. The bill is sponsored by Mary Bono-Mack and G.K. Butterfield, meaning that it is a bipartisan bill. It will proceed to the House floor for a vote tomorrow, cannot be amended and will only pass by 2/3 majority vote. It could be a voice “consensus” vote and will likely pass without opposition given its bipartisan character. A quick review of this amendment: a. 100 ppm lead standard is made prospective. b. Functional Purpose exception process remains part of the amendment. [I have written extensively on how this provision is a sham . I haven't changed my mind.] c. ATV exception is included. This is death knell for any hope of later CPSIA amendments. This signals the end of the road. d. The terms of the bike stay are made into law. They also get a really sweet deal – as far as I can tell, they don’t have to test metal components anymore. That provision is buried on page 19 in the book exception section. All the better to sneak it through. Nice for them . . . but no word as to why we must test metal components. Too bad for us, I guess. . . . e. Resale goods exception is included. f. Testing rules are now based on “representative” samples, not “random” samples. The rest of the provision is based on the Eshoo amendment requiring further “inquiry” on reducing costs of third party testing. The Eshoo model still requires “assuring compliance” with the lead standards. This is the big dollar issue, as everyone knows, and is the one issue that touches everyone, all the ordinary businesses. This provision is a punt and offers little prospect for future relief. This provision is a huge time-waster and will never result in anything useful because the standard for relief is in the context of “assuring compliance”. It also calls for more business “instruction” like that found in the current draft of the “15 Month Rule”. [The status of the 15 Month Rule is not apparently addressed and may still emerge from the agency to bite us later this year.] The authors of the 15 Month Rule draft rule know exactly zippo about the real world and if we are ever supposed to follow their sage dictates, the losses will mount . . . fast. In any event, this Commission will never feel comfortable with anything less than prophylactic assurance, injury statistics be damned. I hate this provision because I don’t trust the CPSC Commission under current leadership. Notably, this provision does not stay compliance with the testing rules due to go off stay at the end of the year pending resolution of the Eshoo inquiry. Congress has not dictated that the stay be extended, and believe me, it won’t be. The reasoning behind this provision escapes me. g. Small batch manufacturers receive minimal relief (” reasonable methods to assure compliance “). The real sham part of this is the tantalizing prospect that the CPSC will actually deliver on this demand for testing relief. Call me a cynic, but they have received testimony out the wazoo for three years on this topic, and have yet to find a way to “help” the remaining micro-businesses in the market. And the reason we should believe they will make a afety testing discovery in the future? Your guess is as good as mine. They won’t. Small batch manufacturers have to register before benefiting from this wonderful “relief”. The registration requirement is deeply offensive to me and really shames Congress and the agency. What did these little companies do to deserve this treatment? What makes the House (Dems) think this is a good idea? It smacks of 1984 and is utterly detached from any rational assessment of risk. Do small batch manufacturers have an exceptionally bad safety track record meriting this kind of surveillance? Of course not. That they would accept or even support this treatment is shocking to me. In any event, no relief is offered to any company with gross revenues in excess of $1,000,000, so it’s really just for the benefit of the really micro micro-businesses. It won’t benefit me even for small unit volume items we currently sell – our top line makes us ineligible for any possible relief. Happy registering, little guys! h. Ordinary books and printed materials get a pass. i. Durable Nursery Products standards provision (not reviewed). j. Phthalates standard applied only to “plasticized” components and not to inaccessible components. Guess that means no more testing of paper, wood and metal. k. Authority to exclude items from tracking labels provision is given to the CPSC based on practicability. This is promising although the Dem hanging judges on the Commission have yet to make a single decision that saved a business a dollar for any reason. Don’t hold your breath. l. Database rules are tweaked in a meaningless way consistent with the Markey proposal on database. NO relief offered. THERE IS NO RELIEF GIVEN TO EDUCATIONAL MATERIALS. Thanks, Congress. I am glad my kids are out of elementary school by now. That’s it, more or less. Hope you like it, that’s all you’re going to get.

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CPSIA – The House Answers with its Own (Bipartisan) Suspension Bill

CPSIA – Rumorville on Pryor Bill

Rick Woldenberg, Chairman, Learning Resources, Inc. — Sat, 30 Jul 2011 01:59:42 +0000

A little bird tells me that some people have verified that the the Pryor bill to amend the CPSIA has been “hotlined” in the Senate as a step to immediate passage. Other people have gone silent or have been unable to verify, so it’s not an entirely clear situation. “Hotlined” bills are on track for a unanimous consent vote. I gathered this explanation from Republican Committee on Rules site on hotlining: ” The Senate has largely institutionalized its unanimous consent process. On major pieces of legislation, the Majority or Minority leader may force a Senator from the other party to object to a bill’s consideration in the absence of a unanimous consent agreement. Similarly, the Senate will hotline a bill when it is ready to be considered under a unanimous consent agreement. Under the hotline process, the Senate cloakrooms notify Senators of upcoming bills that may be considered under unanimous consent to provide them with a final opportunity to object .” It’s all rumor at this time, but this suggests that someone wants to get something done now. While the Pryor bill is imperfect as drafted, it’s better than nothing, and if there is a chance of a conference bill later, the possibility of a better bill is not yet dead . . . before we all die.

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CPSIA – Rumorville on Pryor Bill

CPSIA – Northup Lashes Out at Majority for Disregarding Executive Order

Rick Woldenberg, Chairman, Learning Resources, Inc. — Wed, 27 Jul 2011 09:06:41 +0000

Letters to the Editor Wall Street Journal July 26, 2011 CPSC Should Follow Obama’s Policy As one of the minority (Republican) commissioners on the Consumer Product Safety Commission who voted against finding that it was technologically feasible to lower the lead content in all children’s products from 99.97% lead free to 99.99% lead free, I appreciate your July 20 editorial ” Toying with Deregulation .” You accurately paint a grim picture of the commission’s disregard for President Obama’s appeal that regulatory agencies promote “economic growth, innovation, competitiveness and job creation.” But you omit the even more disturbing evidence that the commission majority twisted the language of the Consumer Product Safety Improvement Act and ignored the evidence before it in order to reach a predetermined outcome. As the majority proved with its 100 ppm vote, it will take much more than an executive order to stop an agency bent on imposing its radical agenda without regard for the economic consequences. See www.cpsc.gov/pr/northup07202011.pdf . Anne M. Northup Commissioner CPSC Washington

CPSIA – Amazon to Kids’ Hat Companies: Prove You’re Lead-free by August 7th

Rick Woldenberg, Chairman, Learning Resources, Inc. — Tue, 26 Jul 2011 21:43:49 +0000

Hope your kids don’t need hats. Perhaps you are aware that absent Congressional action, the new 100 ppm lead standard will be imposed retroactively by August 14th. The five Commissioners have requested that this provision be applied prospectively (they made this request in January 2010) yet Congress has done nothing about it. As a matter of fact, now that you mention it, they haven’t done anything about any of the problems under the CPSIA. I guess as Rachel Weintraub suggests, more “discussion” is needed. Anyhow, I received the below letter (excerpts are reproduced only) from a maker of children’s hats. Anyone out there ever heard of lead poisoning from a hat? Me, either. Nevertheless this company is subject to the stupid rules of the CPSIA for reasons best explained by Henry Waxman, and are now being required to prove up the “safety” of their hats. So how do you expect hat companies to respond to this kind of request? Do you think they can afford the tests? To employ the people to administer the tests, apply the tracking labels, maintain the records, deal with all the paper-pushing by their customers, pay for the lawyers, fill out the forms and so on? I can think of several likely replies. First, cut the product line. Don’t waste money on testing so many hats. Second, simplify the product line. Remember cute hats with lots of colors? Thing of the past. Better snap ‘em up while you can. Monochrome is the new rainbow. Third, make hats for kids over 12 or for adults. Then you can sprinkle your little hats with lead to your heart’s content. No one will care. Oh, I know, natural fibers and certain fabrics don’t need to be tested. Yes, but my customers don’t care much for these niceties. They want a piece of paper for the files. If you think we test only when we have to, you are wrong. That’s the bare minimum. Most tests are repeated or substantially exceeded, even beyond the absurd levels required by law. This hat company was pretty depressed by the news delivered by Amazon. Get used to it. Or go pick up some hats right now. If you have little kids, buy them in several sizes while you’re at it. No time like the present. . . . Amazon Letter (excerpts): Dear Amazon Vendor: The Federal Government enacted the Consumer Product Safety Improvement Act of 2008 (the “Act”) that, in addition to other requirements, prescribes strict limits on the content of lead and phthalates in products intended for children. New stricter limits on lead in children’s products will go into effect on August 14, 2011. This message outlines the steps Amazon will require vendors to take to confirm that their products comply with the new stricter lead limits affecting children’s products. Vendors are responsible for thoroughly familiarizing themselves with all the requirements of the Act and for tracking and complying with any regulations issued by Consumer Product Safety Commission (CPSC). Additional information on the Act is available on the CPSC website at www.cpsc.gov. Specific provisions of the Act discussed in this letter are for ease of reference only. Actions Required: What you need to do By July 31, 2011, each vendor must confirm and report to Amazon.com that all of your children’s products (i) in Amazon.com’s inventory, as reported to you in Vendor Central, and (ii) in transit or shipped to Amazon.com, will comply with applicable limits set forth in Column I. Limit: Lead 100 ppm Effective Date of Limit per the Act: August 14, 2011 Products shipped to Amazon must comply by: July 31, 2011 Noncompliant products are subject to return to Vendor: August 7, 2011 Step 1: Verify that your products are compliant with the lead content requirements going into effect on August 14, 2011. Vendors are responsible for determining whether the products they sell on Amazon.com are compliant with the new lead requirements.

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CPSIA – Amazon to Kids’ Hat Companies: Prove You’re Lead-free by August 7th

CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

Rick Woldenberg, Chairman, Learning Resources, Inc. — Tue, 26 Jul 2011 11:13:45 +0000

The sparks were certainly flying at the July 20th Commission meeting last week. With access finally granted by the CPSC today to the video footage, I was able to see for myself all the excitement at that storied meeting. I was amply rewarded with a display of regulatory arrogance you rarely see on tape – Inez Tenenbaum and Bob Adler standing tall and thumbing their noses at a binding Executive Order. I guess the CPSC is now above ALL law, other than laws endorsed by Henry Waxman. The tension in the room at this meeting was palpable, and the usual shenanigans took place, like Ami Gadhia’s claims that CPSC Staff found that manufacturers intentionally add lead to children’s products (47:31). While I would normally take the scummy consumer group reps to task for their misstatements (lies?) and innuendo, in fact at this hearing, a much more important issue was “debated”. [Bickered over is more like it.] Namely, whether the CPSC has to follow President Obama’s Executive Order to preform cost-benefit analyses on regulations under the CPSIA. I have previously addressed this issue in blogposts on July 12 , July 14 , July 20 and July 21 . After the usual pointless sparring over the ability of the CPSC to do the right thing (don’t worry, Bob Adler “agonized” over these difficult decisions . . . and then voted to screw industry), the meeting devolved into a series of often incoherent and inconsistent defensive rebuffs by Dems supporting of their political conclusion that they can blow off the Executive Order to the extent that it threatens in any way their work implementing the CPSIA. Of course, the idea of the Executive Order was to ensure that those rules are economically justified. Blah blah blah. The view of the Dem Commissioners is that evidence of the extreme economic impact of these rules is not relevant to the CPSIA rulemaking process, notwithstanding Mr. Obama’s little note. Chairman Tenenbaum laid down the law at 1:15 in the tape: “I’d like to comment on the Executive Order [which says] ‘Nothing in this order shall be construed to impair or otherwise affect authority granted by law to a department or agency, or the head thereof . . . . This order shall be implemented consistent with applicable law and subject to the availability of appropriations.’ Congress was very clear. They wanted the lead limits at 600 then 300 then 100. We have looked at this from all angles. And I can tell you, consistent with the law, we have implemented the CPSIA. . . . Congress was very aware that we could not write regulations unless we did a Section 9 cost-benefit analysis in some of the statutes we implement. And they on purpose did not require us to do cost-benefit analysis because they realized the urgency of getting lead out of children’s products. . . . And that my legal understanding. . . . And so to have this fiction be a part of this public hearing, that we are required to do cost-benefit analysis under the CPSIA under the Executive Order cannot go unanswered .” [Emphasis added] Take that, Obama! Your EO is fictional! Tenenbaum seems to be saying that because Congress permitted expedited rulemaking under the CPSIA, all regulations under CPSIA are shielded from any cost-benefit analysis mandated by the President. She pins this on the standards established under the CPSIA. Interestingly, she seems to overlook that the 100 ppm standard was subject to a rulemaking process, and the Obama order specifically addresses rulemakings. She also glosses over so many other rulemakings which are remote from the standards. Details, details. . . . The Obama order instructs the CPSC to follow Executive Order 13563 to the extent “permitted” by law. The CPSIA does not preclude cost-benefit analysis, it only allowed the agency to skip it. The only direct reference to cost-benefit in the CPSIA is in Section 233 where cost-benefit analysis is specifically written out of the Poison Prevention Packaging Act of 1970. Cost-benefit analysis is NOT specifically written out of the CPSA in the CPSIA anywhere. The Dem Commissioners didn’t address this point during the July 20th meeting. EO 13563 in relevant part says: “. . . to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages, distributive impacts; and equity). . . . “ The President’s new EO applies this verbiage to the CPSC. Tenenbaum just blows it off entirely. The President must be below Henry Waxman. Ms. T gets pretty snippy at points. ” There are people on this Commission that want to contort and use this Executive Order. I have spoken to attorneys at the White House; I know I stand on firm legal ground. And so please don’t leave this meeting thinking that we expected to do cost-benefit analysis or this Executive Order mandates that we do that. It does not !” Tenenbaum’s argument – I am judge, I am jury, don’t question me. Anne Northup notes that the stalemate in Congress is no indication that the law requires such harsh and inflexible positions by the agency: ” It’s also clear that Members of Congress . . . are universally talking about, even the authors of the bill, changes that ought to be made [to the CPSIA]. The reason that Congress has not acted is that [there is disagreement over how broadly to amend the law.] They have not told us that they think we should proceed in the most aggressive fashion and in the most punishing rulemakings and to take advantage of every opportunity we have to regulate more toys rather than less, more tests rather than less, and so forth. . . . All an Executive Order does is ask us to . . . take seriously whether or not we can find alternative ways of achieving the meaning of the law without the disruption in the economy .” Continuing the debate (argument), Bob Adler had much to say as usual. As we know, Bob Adler is already on record volunteering to block cost-benefit analysis with his dead body. [See " Is that a promise, Bob? "] At the July 20th meeting, he proffered the reason why cost-benefit analysis is inapplicable here: ” My colleague asked whether there is anything in the statute that specifically exempts us from having to, from being able to do cost-benefit, and I think in terms of the precise parsing of the statute, that’s correct. But let’s be clear: it effectively in all major respects precludes us from doing that. When they’ve given us 42 deadlines to achieve in just a very short period of time, when they’ve specifically exempted us from having to do these incredibly time-consuming and costly Section 9 procedures, i think there’s a very clear message from Congress there. Congress in effect was saying ‘We’ve done the cost-benefit analysis. Now we want you to implement the law .” So, the reason not to obey the President – Congress couldn’t have meant us to do a cost-benefit analysis because otherwise they wouldn’t have given us so much darned work to do. In addition, by reducing our burden with looser Section 9 procedures to expedite the implementation process, Adler says Congress meant to say that they had already “completed” a cost-benefit analysis. Mr. Adler does not attempt to prove his point, his assertion being enough apparently. I am always impressed by the self-justifications of regulators who claim to be able to read the “mind” of an inanimate body like Congress. In law school, they taught us to follow rules of legislative interpretation. That’s so Old School! Nowadays you only have to attribute a “thought” to Congress to “prove” legislative intent. Of course, just a few days ago , Bob asserted something rather different: ” It says “to the extent permitted by law” we should do cost-benefit analysis. And I just wanted to say over my dead body would I agree to do the kind of cost-benefit analysis that is contained in Section 9 of the [CPSA]. That is paralysis by analysis .” [Emphasis added] At that time, Adler seemed to believe that the words “to the extent permitted by law” require the agency to do a cost-benefit analysis only when it is convenient to perform such complex analyses. Hmmm. Does anyone think that legal analysis is just a bit “loose”? Ah, but Bob wasn’t done by any means. He carried on (and on and on) at the July 20th meeting to add yet another argument, namely that cost-benefit assessments are impossible as a practical matter. No explanation as to why this was relevant, as Adler already said Congress instructed the agency to not to do such analyses and the Executive Order is inapplicable. Details, details. . . . ” One of the things that I this is intriguing . . . is where they say ’Now when you’re doing a cost-benefit analysis, let’s address all the deficiencies we have identified with cost-benefit analyses in the past, namely you can always calculate the costs, especially the short term high costs but measuring benefits is just extraordinarily difficult.’ How do you measure the life of a little baby? Because usually what they [conclude is that] there is no benefit . . . that you can quantify from saving a baby’s life.” So, apparently, it might be okay to do cost-benefit analysis (?) but it wouldn’t work. Congress must not have meant us to waste our time . . . . He later challenged anyone in the room to tell him what the “quantifiable benefits” of two lost IQ points are. Too bad the EPA wasn’t there. They do that regularly. Here is a quote from AOL Energy referring to this kind of economic analysis: “The economic value of the IQ points and the benefits of reducing particulate pollution was estimated using ‘long-standing, peer-reviewed’ practices on the effect of regulations, [EPA] officials said.” Again, details, details . . . . Adler noted that this IQ point information would be crucial to an argument on how many angels could sit on the head of a pin. Thus, Mr. Adler sneers at the value and legitimacy of a cost-benefit analysis involving children. As our apparent judge, jury and overseer, one must surmise that he thinks it’s his right to make this judgment, notwithstanding an Executive Order. Oddly, Big Bob does concede that the picture is not quite so clear. Hmmm. ” I’m not arguing that because we’ve got a lot of work that Congress therefore said don’t do cost-benefit analysis. [ Editor's Note : Bob, in fact, that IS what you argued.] That isn’t all they said. They said ‘You know what we want you to do, we want you to do a Regulatory Flexibility Act analysis which is looking at the cost side of the ledger which is easier to calculate. In particular, to look at the cost side of the ledger insofar as affects small businesses because those are the folks who are the canaries in the mine that we look to .” Adler goes on to retract this assertion, and return to his claim that Congress DIDN’T want the CPSC to do a RFA analysis and instead just wanted the agency to implement the law. His argument here seems to be that Congress was interested in some sort of economic analysis but only a limited one. Adler then launches into his final jab at blowing off the Order: ” I guess we do have a dispute about whether we have imposed this in an ultra-aggressive way or in an extremely thoughtful way. I think we have taken the approach in an extremely thoughtful way. But sometimes you have to do a cost-benefit of whether to do a cost-benefit and I don’t think that analysis gets us very far .” So Adler wraps up with his “over my dead body” argument – he just doesn’t want to do it. Take that, Obama! Nancy Nord grimly assessed the sad spectacle we witnessed: ” This is an important issue. And cost-benefit analysis could have been done with respect to our regulations under CPSIA but wasn’t. Whether that’s a good idea or a bad idea, we can continue to debate. But Congress did not say not to do it – Majority did. And I think that’s unfortunate and I think our rules have suffered because of that. ” I will spare you the late sniping between Tenenbaum and Nord, but if you like catty repartee, it’s at 1:24. With three Dem Commissioners in charge at the CPSC, you can forget about relief from the EO. Nice try, Mr. President, but you’ve met your match. Tenenbaum, Adler and Moore are above the law and are on a Waxman mission that transcends our laws and the Constitution. There’s not much left to hope for with this crew in charge. Maybe the CPSC will be on the national debt chopping block. Don’t hold your breath. . . .

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CPSIA – Tenenbaum and Co. Thumb Their Noses at Obama’s Executive Order

CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

Rick Woldenberg, Chairman, Learning Resources, Inc. — Sun, 24 Jul 2011 22:08:54 +0000

The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress’ inaction on the CPSIA. Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee). Thank you! “Hi. At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far. But we still need your help. Urgently! A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules. This amendment ( H.R. 1939 ) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business. This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action. Help us bring commonsense back to our product safety rules. Time for action is now. Your voice matters. Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress. Click here to make your voice heard and help get action on this important issue. Thanks. Steve Lamar Executive Vice President American Apparel and Footwear Association Please see below some important resources: – Copy of NAM ad that appeared in the Hill Newspaper urging action – Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment – Editorial from The Wall Street Journal – Read ECADA ”

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CPSIA – Participate in the AAFA Email Campaign to AMEND THE CPSIA!

CPSIA – Trip Down Memory Lane (WSJ Editorials on CPSIA)

Rick Woldenberg, Chairman, Learning Resources, Inc. — Thu, 21 Jul 2011 00:33:50 +0000

There have been nine editorials by The Wall Street Journal against the CPSIA. I thought you might enjoy seeing them all in one place. Below you will find links to all nine editorials, with a short highlight from each one. The more things change, the more they stay the same . . . . First Editorial (January 14, 2009): Pelosi’s Toy Story “The damage comes from new rules governing lead in children’s products. After last year’s scare over contaminated toys made in China, Congress leapt in to require all products aimed at children under 12 years old to be certified as safe and virtually lead-free by independent testing. The burden may be manageable for big manufacturers and retailers that can absorb the costs of discarded inventory and afford to hire more lawyers. Less likely to survive are hundreds of small businesses and craftspeople getting hit with new costs in a down economy.” Second Editorial (February 6, 2009) Toys for Congress New lead rules hit next Tuesday. Whammo. “CPSC Chairman Nancy Nord has noted that the law has created ‘chaos and confusion,’ and as if to prove her point, yesterday New York federal Judge Paul G. Gardephe ruled that the law’s limits on a plasticizer known as “phthalates” should apply to existing inventory just as lead standards do — overturning a CPSC ruling to the contrary. That makes it even clearer that Congress needs to fix its own mess. Trouble is, House Speaker Nancy Pelosi is heavily invested in the fiasco. On passing the misguided law in August, she proclaimed that ‘with this legislation . . . we will be removing these products from the shelves.’ Taking store owners and toy entrepreneurs with her.” Third Editorial (March 30, 2009) Pelosi’s Library Quarantine The CPSC is left cleaning up the House Speaker’s messy child-safety law. “Democrats in Congress have leapt to criticize acting CPSC Chairman Nancy Nord, in hopes President Obama will replace her. But the real culprit here isn’t the CPSC, which is overwhelmed with requests from manufacturers trying to make sense of the chaos that Congress created. House Energy and Commerce Chairman Henry Waxman has dismissed efforts to improve the law, claiming the real problem is that “misinformation has spread” about the impact on businesses.” Fourth Editorial (April 3, 2009) Toys R Congress Ruining the kids motorcycle business “The multibillion-dollar children’s motorcycle and all-terrain vehicle industry has been clobbered. Kids motorcross racing has boomed in recent years in rural and Western states. And the regulators at the Consumer Product Safety Commission (CPSC) have decided that virtually all of these youth vehicles violate the new standards because of lead in the brakes, tire valves and gears. They’ve ordered motorcycle dealers to stop selling them, putting hundreds of dealers and the entire motorcross industry in a depression. With one stroke of the regulatory pen, an estimated $100 million of inventory can’t be sold, and the industry loss may reach $1 billion.” Fifth Editorial (August 11, 2009) Consumer Product Destruction Congress’s lead in toys panic is set to ruin more businesses. “Jewelry makers now join the legions of other businesses on the hook for millions of dollars in lost sales, inventory or testing costs despite products that pose little to no risk of lead poisoning to children. In the spring, thrift-store operators like Goodwill and the Salvation Army predicted that without regulatory relief they would have to destroy more than $100 million of inventory. Toy stores expected some $600 million in playthings that would have to be trashed and another $2 billion in losses across the industry. Motorcycle and ATV makers predicted total losses and business disruptions around $1 billion. Children’s clothing stores have suffered huge losses, with Gymboree losing 40% of its market value overnight after reporting losses related to the House’s lead-paint panic.” Sixth Editorial (November 7, 2009) Congress’s Brass Knuckles Another casualty of the lead toy ‘safety’ law. “CPSC Commissioner Anne Northrop noted that the decision not to grant a brass exemption shows that ‘the Commission does not believe there is any [flexibility] written into the law.’ Without action from Congress to address the chaos it created, Ms. Northrop said, ‘More small businesses will be forced to shut down.’ CPSC Chairman Inez Tenenbaum has insisted that changing the law would be ‘premature.’ Yet it has already been more than a year of bedlam for manufacturers and retailers negotiating these rules.” Seventh Editorial (April 6, 2010) Waxman’s Lead Poison A fix of a bad law that is no fix at all. “Mr. Waxman is insisting that any product applying for an exemption would still be subject to a three-pronged test to determine whether stripping lead from the product is ‘practicable or technologically feasible,’ whether a product might end up in a child’s mouth and whether its exemption would affect public safety. In a response, CPSC Commissioner Nancy Nord explained that since all three tests have to be met for a product to qualify, ‘the exception is as empty as the exception for no absorption of any lead. Such a provision does not really help anyone.’ . . . If Mr. Waxman wants to enhance Congress’s original creation, he should start by letting product safety regulators consider whether products are safe.” Eighth Editorial (March 11, 2011) Get the Lead Out, Sir Nutty test standards give Obama a real chance to help business. “The law also requires the CPSC to propose the parameters of a third-party lead testing regime, but the issue is so mired in complexity that the commission has yet to set those standards. Under the proposed version of this so-called ’15 Month Rule,’ Learning Resources Chairman Rick Woldenberg has estimated that supplying multiple testing samples on each of his company’s toys and products will cost his company some $15 million per year. . . . At a hearing in the House Energy and Commerce Committee in February, California Democrat Henry Waxman defended the law as ‘necessary to protect kids and families across the country.’ We wonder how he figures that, since the incidence of lead poisoning from toys made by domestic manufacturers is nil.” Ninth Editorial (July 20, 2011) Toying With Deregulation Another agency ignores Mr. Obama’s executive order. “Here’s a question for White House regulatory czar Cass Sunstein: Do Presidential executive orders mean anything? Only last week President Obama asked independent agencies to examine existing rules and get rid of the duds, but nobody is listening. . . . Mr. Obama’s recent executive order is voluntary, but the President told agency heads that getting rid of red tape was an opportunity to ‘forge a 21st-century regulatory system that makes our economy stronger and more competitive.’ Perhaps Mr. Sunstein will tell toy makers it’s the thought that counts.”

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CPSIA – Trip Down Memory Lane (WSJ Editorials on CPSIA)