CPSIA – Component Testing Rule Comment Letter

August 3, 2010

Todd A. Stevenson
Director, Office of the Secretary
Room 820
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, Maryland 20814

Agency: Consumer Product Safety Commission (CPSC)

Re: Docket No. CPSC–2010-0037 Conditions and Requirements for Testing Component Parts of Consumer Products.

Dear Mr. Stevenson:

I am hereby submitting comments in response to the Solicitation of Comments on the Conditions and Requirements for Testing Component Parts of Consumer Products (Docket No. CPSC–2010–0037) published in the Federal Register on May 20, 2010 (the “Proposed Rule”).

This request for comments comes after, among other things, a two-day workshop held at the CPSC on December 10-11, 2009. Our company incurred the expense of sending three people (all panelists on multiple panels) to attend this “sold out” event which was purportedly to solicit stakeholder feedback on this rule and the so-called “15 Month Rule” (also up for comment today). There is little evidence from the Federal Register that any of our feedback was taken or possibly even heard. I have lost track of how many comment letters I have filed, panels or hearings I have appeared at and essays or letters I have written about the CPSIA and these issues. So far, my comments have added up to . . . nothing. Nevertheless, I am filing this letter in the vain hope that perhaps this will be my lucky day and you may listen to me, finally.

I would like to make some general comments first.

a. Some Positives in the Proposed Rule. I am in favor of the concept of component testing and applaud the Commission for taking steps to make it a reality, however flawed. In addition, I am also enthusiastic about composite testing. Regrettably, however, the devil is in the details.

b. CPSC Data Demonstrates that Risk is Low, so the Proposed Rule does not Need to be so Strict. I have analyzed the recall data published on the CPSC website and determined that from 1999 – 2010, the CPSC can account for ONE DEATH and THREE ASSERTED INJURIES from lead or lead-in-paint. If the goal of these rulemakings is to reduce deaths and injuries from lead, then these data must be borne in mind. With so few incidents involving lead injury of any kind in children’s products (less than occurs on AN AVERAGE DAY from swimming pools and spas in the U.S.), there is no justification for building such an ornate rule for something simple and logical like component testing or composite testing. Likewise, incidents of fraud in testing are equally infrequent and in any event, already addressed by other statutes. Congress did not require this complicated regulatory scheme, and the data cannot justify it.

c. The Proposed Rule Puts Compliance First, Before Safety. This rule seems to place a very high emphasis on the need to comply, as opposed to the need to make children safer. One is not necessarily the equivalent of the other. My favorite example is our company’s record of compliance. Founded in 1984, our company has recalled a grand total of 130 pieces in its history, all recovered, out of perhaps one billion pieces sold. Not bad. Were we to meet the myriad requirements of this rule, I cannot fathom that our products would be safer. Does all that extra compliance benefit anyone? It certainly will cost a lot (we pay, you don’t). As I read your rule, I wondered why you didn’t list the wire transfer instructions for the top testing companies. You might as well . . . . Still, the casual waste of our resources cannot make anyone safer – they were already completely safe.

Safety is the reason the CPSC exists. This document fails because it confuses the desire to powerfully enforce the CPSIA with actually making people safer. The only thing that may be accomplished is business death for many companies, principally small ones. Swashbuckling enforcement may make great headlines but no one will be any safer. Compliance is not safety.

d. Science Has Apparently Been Rendered Moot at the CPSC. While I accept that Congress has banned certain phthalates in toys, I do not accept that the ban is a SCIENTIFIC CONCLUSION. It is legislation, not science. Notably, the CPSC has twice investigated phthalates and held that phthalates were safe in toys. Yet, on page 28213 in the Federal Register, the Proposed Rule discusses the “risk” presented by a product that might have a violative concentration of phthalates in a component, but with an overall concentration that wouldn’t violate the ban. It goes on to assert that a component-based rule is “more protective of human health”, as though the agency had reached the scientific conclusion that phthalates were dangerous – which is not true. Re-characterizing the legislative ban as an assessment of “risk” may appear to legitimize your rule, but it is certainly not an accurate statement of the historical position of the agency. I object to the rule’s equating of a ban by politicians to a scientific judgment. Science is under enough assault without the stamp of approval of the CPSC announcing its death.

My specific comments on this proposal:

1. Component Testing Looks Better Than It Is. I wish I felt we (or anyone else) would use component testing extensively in the future. There are several reasons why this option will be of little use to anyone, particularly the small companies that it was intended to benefit. [Companies with enough scale may find the Proposed Rule useful – one of the many ironies of the CPSIA is that its principal beneficiaries may be the companies that prompted its passage.]

a. Limited Market Availability for Component Certificates. While some high volume components of children’s products may quickly be tested to meet these requirements, many other kinds of components are not likely to be tested:

i. Low volume components
ii. Components made in small lots
iii. Components made by small suppliers (many fabrics)
iv. Components which derive only a tiny percentage of revenues from regulated products or which principally cater to other industries (e.g., paper clips or aluminum foil in a science kit)

Unfortunately, it appears to me that the logic of this rule is that if we can be certain that some certificates will be widely available (e.g., paint, plastic pellets), therefore all other certificates will be available. That’s plainly ridiculous.

b. Complexity. The subdividing of compliance testing into component parts and the whole, some tests done on parts and some on the whole, with tests of varying dates substituting from time to time, is simply a mindboggling mess. I cannot imagine that this can be successfully managed on any scale (how many products need to take advantage of this rule before test reports develop big and inconsistent holes?). And how will retailers be able to interpret this patchwork quilt of tests? This scheme will be self-defeating on all levels.

Add to this the requirement that components need to be traceable, and you basically rendered the component testing opportunity moot. Of course, I am presuming that industry will take your rules seriously. To me, it’s completely inconceivable that anyone will build your traceability system. [Traceability will not raise revenues, only mindless complexity, and as noted above, cannot conceivably improve safety.] If you take these rules seriously, you will cry, laugh/scream – or walk away. The paperwork required for this exercise is well beyond almost all companies’ capabilities. [Does the CPSC have ANY tangible evidence that its requirements can be met by anyone . . . other than Mattel and Wal-Mart? Presumably, no one at the agency living in the real world thinks that traceability rules can be met by the typical Handmade Toy Alliance member, or other small businesses like ours.]

c. Unrealistic Expectations on Manufacturing Control and Traceability. To take advantage of this rule, a manufacturer must take responsibility at the sub-micro-level for manufacturing quality. Let’s recall for a moment that we are not making drug treatments here, nor are we building the Space Shuttle. We are making simple plastic toys and games, children’s shoes, pens, shirts, books, educational materials and so on. Consider this instruction from your new rule: “The manufacturer must exercise due care that the manufacturing process does not add a prohibited chemical from an untested source, such as the material hopper, regrind equipment, or other equipment used in the assembly of the finished product.” Our company has several hundred vendors producing thousands of SKUs – do you honestly believe we could possibly manage how all these independent companies wash out their molding machines or manage their regrinding operations? Is this some kind of sick joke?

By the way, this verbiage will end the use of recycled materials in children’s products. This is completely unjustified for safety reasons and is certainly very unfriendly to the environment. As noted above, your agency’s responsibility is to manage safety. You have no basis in fact for asserting that these theoretical sources of lead are or could constitute a public safety risk.

d. Liability Risk. The Proposed Rule goes to great length to ram home the message that all the risk is on our shoulders. The monotonously repetitive use of the term “due care” throughout this document makes abundantly clear that the CPSC is perfecting a myriad of claims to be made against any and all manufacturers of children’s products when it suits the purpose of the agency. Many of the claims may be perfected with the agency’s 20-20 hindsight. The Proposed Rule minces few words on this preservation of rights: “The above information is needed so that, if noncomplying products are found, the Commission can use this information to determine whether a finished product certifier, component part certifier, or third party conformity assessment body is not complying with the appropriate requirements.” Under the Proposed Rule, even a missing piece of paper can be the basis of charge of failed due care. A fear of criminal charges seems realistic.

Will aggravating letter writers be the first to suffer under this hammer? The answer is – it’s entirely up to YOU under your rule. Small companies will see how the deck is stacked against them and steer far from the component testing option (if they understand the obtuse wording of the rule).

2. If Few Companies Can or Will Use Component Testing, Has the Agency Provided “Relief”? Of course, the answer is NO. The Proposed Rule may look like good policy, but if the practical impact of the rule is that few people can or will take advantage of it, it is simple window-dressing. The impact on small businesses, exemplified by the well-known and sympathetic Handmade Toy Alliance, will be severe. They are not the only ones in need of help, either. If small companies like HTA members cannot take advantage of these rules in large part or would be too scared to take a chance in the face of the awesome display of governmental power in the rule’s terms, then they will suffer and shrink. I would note that the Notice on the “15 Month Rule” explains how a failure to protect small companies could play out badly (see “Caveats and Possible Market Reactions to Third Party Testing Requirements” on page 28358). Those negative impacts could result from a failure of policy here, too.

3. Maintenance of Records for the Life of a Product Plus Five Years Is Unduly Burdensome (Not to Mention Pointless). Please consider our case: We still produce certain items from our original product line in 1984. Clocks don’t go out of style in education, even if Tickle Me Elmo and Furby last only one year. The requirement that we must retain records for the life of the product plus five years could theoretically be forever in our case. Perhaps the CPSC can provide us free unlimited warehouse space for all these records. In any event, our case also makes clear how pointless this requirement is. We have only had one recall in 26 years, which we successfully administered without the assistance or guidance of the thousands of pages of rules and legislations that befell us under the CPSIA. How, precisely, will decades of records improve the public weal in OUR case? Your rule is very good at spending our money, our resources and our time, but doesn’t make a reasoned connection to safety in any way. We are not Mattel and in any event, they don’t define the market. Had you listened to us in December 2009 at your workshop, you would know this already.

4. Composite Testing Rule for Paint LOWERS the Lead Standard to Sub-trace Levels. In yet another example of overly risk-averse rulemaking, the agency’s new composite testing rule for paints requires that lead content must never exceed that for any individual component paint in the composite. This slices the 90 ppm limit by two-thirds for a three-paint sample and by 75% for a four-paint sample. This super-stringent rule ensures that it is literally a gamble to use composite testing – so why would anyone bother? Even more bothersome, since the new policy of the agency is to impose strict liability for lead-in-paint violations, this new rule demonstrates the ascendency of the debunked notion that there is “no safe level for lead”. If the agency really wants to take this position, it should not permit composite testing for paints. Too risky . . . .

5. The Regulatory Flexibility Analysis is Flawed and Self-Justifying. The analysis justifying this Proposed Rule is a “best case” scenario, and takes none of the foregoing into account. If in fact the rule will hard or impossible to use, or will create too many legal risks or recordkeeping burdens and thus go largely unused, the reasoning in this section will be completely inapplicable.

6. The Burden of Recordkeeping is FAR GREATER than Asserted in the Proposed Rule. At our company, we produce about 1500 “catalog” items and several thousand other SKUs and custom products through a network of hundreds of factories in various countries. We do not control these factories – they are generally family businesses like our company, and are independent of us. Typically, we provide only a small share of annual revenue of any of our factories and thus have limited leverage over their business practices. Like many small businesses, we have a very limited infrastructure in place to supervise factories “on the ground”, although it is worth noting that our safety record indicates that our business methods have worked well for more than two decades.

To implement the recordkeeping set forth in this rule, I estimate that we would have to spend $50,000 – $100,000 in software development expenses to store and manage the desired records. In addition, we would need to expand our staff significantly. To reach out to all of our factories, negotiate and monitor many new business practices, will take a significant increase in staff. I posit that we would need to open an Asian office with as many as 5-10 local employees. A Chinese office would cost us at least $500,000 per annum. In addition, we would have to increase our clerical and management staff in the U.S. to help with data input, software management, project management, audits, vendor relations and general management. This would cost us at least $250,000 per annum. We anticipate that this intrusion on the business practices of our vendors would cost us business relationships and would lead to significant cost increases. The total cost of these disruptions would add another $500,000 or more per annum. It is not inconceivable that we ALONE could incur annual expenses of $1.5 million and certainly at least 10 man-years of labor (more than 20,000 hours) to comply with these rules. There are THOUSANDS of companies affected by this rule. We estimate that the assessment of cost and man-hours in the Paperwork Reduction Act section of the Proposed Rule is LOW by a factor of 100x-5,000x.

I would suggest that this rule be greatly simplified by making the following changes:

a. Eliminating the Requirement for Traceability Recordkeeping. As noted above, this ornate rule architecture is completely inappropriate for the minimal, almost non-existent threat, demonstrated by the CPSC’s own injury data. Recordkeeping requirements should minimized or dropped altogether.

b. Encourage the Exercise of Business Judgment. The presumption that only the CPSC (or Congress) can make sound judgments when considering safety issues is simply not supported by the data. Again, our company is a good example of that – we scrupulously maintained our safety record without the CPSC’s oversight, coercion or even encouragement since 1984. The concept of “business judgment” is well-defined in U.S. common law and has real meaning under the law. I think the concept of using components supported by GCCs is simple enough. Given that the restrictions on lead are clear under the CPSIA, why not let businesses exercise their judgment on how to meet those requirements and then measure them on their success in doing so? What is to be gained by inserting the CPSC into all aspects of how we conduct business? We were doing just fine before you arrived on the scene.

Given the few lead injuries noted in the CPSC’s historical data, the agency could save its scarce resources and remain effective as a safety administrator by focusing on known safety issues and incidents and leave the vast majority of law-abiding and safety-conscious companies ALONE. The data suggests that higher and higher mountains of regulations will never reduce injuries from the historically miniscule levels documented on the CPSC website.

c. Allow Composite Testing Using the Overall Concentration as the Pass/Fail Measure. Again, this is justifiable based on the historically minimal risk posed by the regulated substances. The already low lead levels specified in the CPSIA have not reduced injuries or deaths from the negligible levels that predated it. Since the number of recalls is so dramatically affected by agency policy (e.g., strict liability or not, how recalls are accounted for, etc.), the only reliable measure of the effectiveness of policy is injuries. Composite testing holds the promise of real savings to the many law-abiding companies affected by the CPSIA. Loosen the noose and they may actually save some money.

Component testing can be a simple and effective way to lower costs, but a different approach is necessary to get to that result. A sharp reconsideration of the Proposed Rule will be required to achieve this goal.

Thank you for considering my views on this important subject.

Sincerely,

Richard Woldenberg
Chairman
Learning Resources, Inc.
380 North Fairway Drive
Vernon Hills, IL 60061

Read more here:
CPSIA – Component Testing Rule Comment Letter

GUEST BLOG – American Apparel and Footwear Association (AAFA) Urges You To Participate in Survey on Impact of CPSIA-Mandated Testing

The American Apparel and Footwear Association (AAFA) Wants You!

Many have pointed out to the CPSC that the additional testing costs mandated by the CPSIA have been extremely burdensome on companies and have even caused many to either shut down or abandon the children’s product market.

This blog has provided concrete examples with its Casualties of the Week (for example see here, here and here).

Some are still not convinced. CPSC Commissioner Adler made the point at a recent CPSC briefing that “anecdotes are not evidence.”

The AAFA has been collecting information (“evidence”) from companies to see exactly how the testing rules have impacted their businesses. This information is important to help document to CPSC and Congress the economic impact of CPSIA.

To continue gathering data, AAFA recently published two surveys online to gauge the impact of consumer product testing. One survey is for manufacturers, wholesalers and suppliers and the other is for retailers and licensors.

If you are (or were) in the children’s product business, we strongly urge you to fill out this survey online. It only takes a few minutes.

The surveys are especially geared towards assessing the impact on businesses, and business awareness of, two proposed rulemakings that are due August 3, “Conditions and Requirements for Testing Component Parts of Consumer Products” and “Testing and Labeling Pertaining to Product Certification,” as well as how the stay of testing and certification requirements impact companies’ testing protocols and costs.

To access the survey for manufacturers, wholesalers and suppliers please visit http://www.surveymonkey.com/s/D6S3D7N

To access the survey for retailers and licensors please visit http://www.surveymonkey.com/s/D668GJT

Thank you for your participation.

Guest Blog Posted by the AAFA

Read more here:
GUEST BLOG – American Apparel and Footwear Association (AAFA) Urges You To Participate in Survey on Impact of CPSIA-Mandated Testing

GUEST BLOG – BOSTON GLOBE WRITER TAKES NOTICE OF ALL THOSE CPSC RECALLS

Rick has blogged in this space about how the onslaught of recalls by the CPSC is numbing to consumers. Boston Globe writer Sylvia Pagán Westphal has taken notice in a column over the weekend:

Boston Globe

The safety scare
Separate dangerous products from those that pose little risk
By Sylvia Pagán Westphal | July 7, 2010

IF YOU’RE the parent of a young child and want to be very scared, don’t waste time looking for horror movies on TV. Just go to the US Consumer Product Safety Commission’s website for child product recalls. You won’t be able to sleep for days.

The site features an interminable selection of common children’s products that have been recalled. Some of the depictions are downright gruesome: in cases of defective cribs, for example, there are pictures of baby dolls with necks pinned down between rails, or of their little faces pressed against a mattress, as if suffocating. The intent is, to be sure — for I see no other reason to scare the wits out of an unsuspecting, Internet-roaming mother — to jolt parents into action if they own one of the products.

One recent afternoon, I was clicking through the recalls page when I realized, to my dismay, that during my 9-year stint as a parent I have owned several of the featured items. My colorful rainforest-themed baby swing was there, and so was one of my cribs. The baby sling I used with my son was recalled after three babies suffocated in 2009. The kinds of bath seats I used (and loved) with my daughter aren’t sold anymore, following various recalls.

I never found out about these announcements. Had I taken the time to register each product I might have heard from the manufacturers, but I didn’t do it, and neither do most of the parents I know. Some pediatricians’ offices and stores post selected recall sheets, and there is an e-mail list from Consumer Product Safety Commission one can opt into, but with over 100 of these announcements per year it’s hard to keep track of the information.

Part of the problem is that recall announcements don’t explicitly distinguish between problems with products that are truly dangerous and defective versus products with sub-optimal design that, when used properly, pose little risk. For example, the commission recently recalled a bed because one child got his head stuck in its storage compartment. Not to take away from that kid’s pain, but I have numerous compartments in my home where my children’s heads would fit if they tried hard enough.

In a way, some of the announcements appear to be directed at shielding us from our own parental incompetence. Millions of baby bath seats and walkers are no longer sold due to drownings and falls suffered by babies who were basically left unsupervised. The recent high-profile recalls of drop-side cribs were prompted by deaths that, in some cases, were caused by cribs that were incorrectly put together or were subjected to shoddy home repairs.

Don’t get me wrong: to the extent that these recalls remove poorly designed products from the market the efforts should be praised. If motels and hotels are forced to carry safer cribs, that’s a good thing. But the Consumer Product Safety Commission and other safety advocacy groups should be mindful of putting each recall into perspective, so as not to unnecessarily scare the public. For example, the multiple recalls (and likely national ban) on drop-side cribs comes after 32 documented deaths over the last 10 years and millions of cribs sold. That’s surely 32 deaths too many, but more children die each year choking on food.

There is a real downside to a system that feeds into our nation’s growing safety paranoia, which isn’t healthy either. Many of my overseas friends have a hard time understanding our obsession with safety — we put locks on our toilet seats, cover the corners of tables with rubber guards, and use hand sanitizer with ever-intensifying zeal. Taking that baby walker away, just like covering the table corners, is a bit like avoiding air travel for fear of crashing, while still driving a car every day. The world is a very dangerous place to raise a child. Leave the house and there are hard edges, pointy rocks, and steep inclines everywhere. As much as we’d like to, we just can’t childproof those too.

Sylvia Pagán Westphal is a regular contributor to the Globe opinion pages.

Posted to Rick’s Blog by Alliance for Children’s Product Safety Staff

Read more here:
GUEST BLOG – BOSTON GLOBE WRITER TAKES NOTICE OF ALL THOSE CPSC RECALLS

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 – 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 – 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 – Tenenbaum/Adler Comments Revealed

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

Among the “highlights”:

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

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

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

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

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

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

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

Very disappointing.

Read more here:
CPSIA – Tenenbaum/Adler Comments Revealed

CPSIA – Tenenbaum/Adler Comments Revealed

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

Among the “highlights”:

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

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

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

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

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

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

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

Very disappointing.

Read more here:
CPSIA – Tenenbaum/Adler Comments Revealed

CPSIA – Workshop on the Public Database Jan. 11/12

The CPSC has scheduled another two day workshop in January, this time for the dreaded and much-feared public database. This workshop comes on the heels of a lightly-attended hearing on the same subject held November 10 at CPSC headquarters. [You can watch the hearing at this link.] I testified at this hearing, one of two companies to participate (there were also a few trade associations presenters and the usual assortment of highly-motivated consumer “advocates”). There has been no response by the agency to this information-gathering exercise other than to schedule the workshop.

No never mind, they really want to hear from us. According to a blanket email I received from Scott Wolfson, “Education and advocacy are at the center of our priorities, which means strengthening partnerships with community leaders like you . . . . We hope for significant participation and we greatly value your input.” Wow, I am touched.

Of course, it is nice that the agency is attempting to show an interest in dialogue and exchange of views with stakeholders. I certainly appreciate being afforded the opportunity to speak at these events. However, I find this particular workshop opportunity somewhat grating. Here are a few reasons why I am so easily annoyed:

a. I testified at the November 10th hearing at the request of the Commission. I was not planning to attend the hearing, as I have made many trips to Washington in the last year – all at company expense and at the sacrifice of my “regular” job. The CPSC staff made it clear that they not only wanted me to attend, but that I should present. This may have been particularly important because as of the beginning of the week of the hearing, there were only two people committed to speaking (including me). Okay, so I go to Washington, study up on the issue, write a little speech, and try to keep it short. They have a strict time limit, you see. This wasn’t always a problem. At my first hearing (lead panel, Nov. 5, 2008), my speech was impromptu and they let me speak for 23 minutes (other speeches were longer). That flexibility is a mere memory now, as I learned at the tracking labels hearing (May 12) when I was cut off at the ten minute mark. And, drat, at the public database hearing, I again ran a bit over. Even with hardly anyone in the room, the time limit police stopped me at ten minutes, mid-sentence.

So I find it irritating that they asked to fly in to tell them my thoughts in November, but limited me to ten minutes, and now they want me to pony up for more flight and travel expenses, so they can . . . what, cut me off again?

b. I would take this process a bit more seriously if they gave ANY sign of listening at the last workshop. Why so cynical, Rick? Well, wasn’t it this Commission who moved to act on the testing stay only three business days after we attended the LAST workshop (December 10/11, on the so-called “15 Month Rule”)? There was no time to process the testimony at the 15 Month Rule workshop before the stay decision was made (those three days were devoted to complete chaos, courtesy of Henry Waxman and his unilateral amendment of the CPSIA). The fact that the agency spent two days intensively gathering information from 250 stakeholders on the impact of the 15 Month Rule and then the Commission almost immediately disregarded it in one of their most important decisions of the year made me feel the workshop was a SHAM. And if that one was a sham, this one promises to be an even greater sham. Since the last hearing has apparently generated no work product or further dialogue and since it was so lightly attended, the January workshop appears to be entirely for show.

I can talk to myself at home for free.

c. Finally, does the CPSC think drafting implementing rules for the CPSIA is some sort of hobby for the business community – or is it a plot to make the conduct of regulated business impossible? Do they really think any ordinary business can sacrifice its leadership to monthly trips to Washington to blather on to regulators who are only slightly interested in what they have to say? [Let's not forget about the CPSC's pet organization, ICPHSO, which bookended meetings in late October 2009 and mid-February 2010. ICPHSO meetings are essentially unofficial CPSC workshops/hearings.] Who can afford this financially, as a matter of priorities or allocation of scarce corporate resources? It seems obvious to me that the more frequently the CPSC holds these meetings, the fewer participants they will garner. The scheduling of meetings and hearings every month by the CSPC seems naive and sinister at the same time.

I won’t be there.

All Roads Lead to Rome, as the old saying goes. Why the nuttiness here? I have the usual explanation:

• an irrational, over-reaching law is impossible to implement sensibly;
• the regulatory agency is left with no discretion under the new law and has no power alter the ridiculous, irresponsible or impossible language of the statute;
• Congress won’t listen and would prefer that the CPSC make the problem go away, perhaps even at the expense of breaking the law Congress passed;
• The agency gamely tries its best to carry on, with increasing chaos and market damage inflicted; and
• Businesses (particularly small businesses) are the big losers, with the agency itself a close second.

So we have another two-day session to help the CPSIA create an over-arching database that will likely harm American businesses, create liability storms, eliminate jobs (except at plaintiff law firms and at consumer groups) and generally fail at whatever starry-eyed objective underlay its conception. A good time for all, no doubt.

Let me know how it goes.

Read more here:
CPSIA – Workshop on the Public Database Jan. 11/12

CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

In an announcement today calling for comments, the CPSC announced the December 10/11 seminar on the “15 Month Rule” and called for comments by January 11, 2010. Notably, the CPSC announced the following details:

“The workshop will be held from 9:30 a.m. to 4 p.m. on Thursday, December 10, 2009, and Friday, December 11,2009 at the CPSC’s headquarters building at 4330 East West Highway, Bethesda, Maryland 20814, in the 4th Floor Hearing Room.

The workshop will open with a review of CPSC staffs current work on sections 14(a) and 14(d)(2) of the CPSA, including a discussion of the factors involved in sampling and an overview of the economic issues, followed by break-out sessions on the following subjects:

• The Consumer Product Labeling Program;
• Reasonable Testing Programs;
• Sampling Plans;
• Safeguarding Against Undue Influence on Product Testing;
• Additional Third-Party Testing Requirements for Children’s Products; and
• Verification of Children’s Product Testing Results.

The panels at the break-out sessions will consist of Commission staff and invited members from the public. If you would like to make a presentation at the workshop or be considered as a panel member for a specific break-out session, please send, via electronic mail (e-mail), a note indicating your desire to participate and/or indicating which of the break-out sessions you wish to join. We ask that you limit the number of break-out sessions to no more than three. We will select panelists and persons who will make presentations at the workshop, based on considerations such as: the individual’s familiarity or expertise with the topic to be discussed; the practical utility of the information to be presented (such as a discussion of specific standards, methods, or other regulatory approaches), and the individual’s viewpoint or ability to represent certain interests (such as large manufacturers, small manufacturers, consumer organizations, etc.). The e-mail should be sent to Robert Howell at rhowell@cpsc.gov no later than November 20, 2009.”

As noted, comments are due on January 11. As this is expected to be one of the most hotly-debated subjects under the CPSIA, the promulgation of the “15 Month Rule” will take some time thereafter and may be subject to comments again before the rule becomes “final”. The “15 Month Rule” is far off at this point. This suggests some action, hopefully soon, to extend the testing and certification stay. Fingers crossed . . . .

The CPSC document is remarkable for its candor about problems with this troubling rule. Considerable detail is provided in their 25 page announcement. Their acknowledgement is, in and of itself, a shift. [The delay was announced over the weekend by Nancy Nord in her new blog.] The fact that the CPSC evidences deep concern over the challenges in this rule implies that it recognizes the severity of the business community’s issues under this law. [The CPSC and its professional staff are likewise victims of the CPSIA, but at times a forgotten victim.] Their admission in advance of the November 14 deadline can only be interpreted as a courtesy to the business community, a much-appreciated one, too. This has been in the works for some time, apparently – I am personally grateful that they didn’t wait to the very last minute to let us know of the delay.

I think it is becoming clearer that the CPSC is listening. Now the next challenge is to translate listening into action. No one, NO ONE, wants to endanger children. In fact, no one EVER wanted to endanger children. The challenge before us (Congress, the CPSC and the business community together) is to craft rules and mechanisms that reasonably protect children while not snuffing out markets, products or companies. I hope that the CPSC and its leadership also see clearly that important parts of the problem are beyond their power to remedy – and that they must go to Congress to get help. To me, this is a “lesson learned”. And . . . the sooner, the better.

Read more here:
CPSIA – It’s "Official" – The "15 Month Rule" is Delayed.

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