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

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 – Hey, Republicans, THANKS SO MUCH for that Pledge for America

Did anyone notice how the CPSIA Amendment (HR 2715) went to the House floor in the middle of the night on a Sunday after closed door horse trading out of the public eye, and was voted on early the next day designated as a “noncontroversial bill” (Monday, August 1).  The amendment didn’t go through a mark-up hearing and was only published a few hours before the vote.  The law includes some surprises, too, as one might expect on a bill emerging from a smoke-filled room.  Naturally, the Senate considered it and put it up for a voice vote in even less time.  How many Members of Congress bothered to read the bill before voting on it?  How many Members of the responsible House and Senate committees read it before voting on it?  Your guess is as good as mine. You may recall that the Republican Party published “A Pledge to America” in 2010 ahead of the Medterm elections, with the nifty subtitle “A new governing agenda built on the Priorities of Our Nation, the Principles We Stand for & America’s Founding Values”.  Impressive. The Pledge includes a section starting on page 33 called “A Plan to Reform Congress and Restore Trust”.  Restore trust – I am all for that!! On page 35 of this document , the Republicans make the following ”promise”: ” Read the Bill    We will ensure that bills are debated and discussed in the public square by publishing the text online for at least three days before coming up for a vote in the House of Representatives. No more hiding legislative language from the minority party, opponents, and the public. Legislation should be understood by all interested parties before it is voted on. ”   [Emphasis added] Correction:  They’ll do all that stuff unless they don’t.  And in the case of the CPSIA Amendment, well, come on, don’t be such a rule follower . . . .

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CPSIA – Hey, Republicans, THANKS SO MUCH for that Pledge for America

CPSIA – The Senate Moves In the Direction of the House Bill

Confidential discussions are underway for Senate Democrats to accept the House bill amending the CPSIA which passed today 421-2.  The pressure being applied relates to the consequences on U.S. retailers from the retroactive application of the 100 ppm lead standard. If the House bill is accepted by the Senate Dems, it will no doubt be hotlined for quick passage by voice vote, and then this ugly process will be over. With the pending exclusion under the bill of ATV’s, bikes and books (the chosen winners, including the remarkable free pass on metal component testing by bicycle manufacturers), the rest of us (the chosen losers) will remain under the thumb of both the CPSIA and the Dem-controlled CPSC.  I would note that we, the chosen losers, are no doubt the people Inez Tenenbaum refers to as “certain cynical special interests”.  If you disagree with her agenda, you must be a “cynical special interest”, it seems to me.  Thanks to Jan Schakowsky for this nifty idea! I was asked earlier today if I supported the House bill (which subsequently passed 421-2).  I replied that the bill is good for us, but not good enough.  It does not address the big issues imperiling companies like ours, and furthermore, incorporates ineffective provisions on several fronts which are only there to bolster Dem chances for reelection.  That said, I advised supporting the bill because frankly what choice did we have anyway?  The impact of this bill, I noted, is like being offered a better cell in jail.  You gotta take it, if only for the view. But you’re still in jail all the same.

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CPSIA – The Senate Moves In the Direction of the House Bill

CPSIA – I am Appearing on Fox Business Today

I am going to be interviewed by Fox Business today from our offices several times.  The anticipated times (CST) are 11:50 AM, 12:15 PM (viewable on live.foxnews.com), 12:47 PM (teaser), 12:53 PM and 3:55 PM-ish.  As noted, times are subject to change.  The 12:15 PM interview can be seen online.

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CPSIA – I am Appearing on Fox Business Today

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

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 – CPSC Enforcement Officer Speaks

In a July 29th blogpost , CPSC Commissioner Anne Northup reproduced a letter she received from a CPSC Field Agent.  Like so much data rejected by the Validation Bias Democrats on the Commission, I am sure this letter will be ignored.  Why not decide for yourself if it’s relevant? “I just had an opportunity to read your July 20 statement concerning lead ppm . I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world. Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right . It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy.”  [Emphasis added] I wish I shared the Field Agent’s optimism.  Hey, buddy, those days are looooooong gone.

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CPSIA – CPSC Enforcement Officer Speaks

CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

According to my information, the Pryor Amendment , as amended to address the needs of resale goods stores , will be hotlined in the Senate this evening (passed by unanimous consent).  The bill then proceeds back to the House which remains a “house-divided”.  Not unlike other showdowns in this disgusting spectacle over the past three years, it will come down to a nerve-wracking poker game where you are the pot.  Who will win the day?  If the Pryor Amendment becomes law, you can assume the chances of passage of a common sense amendment of the CPSIA just went from 0.03% to 0.01% (not my joke, unfortunately – I am not as clever as some of the other cynical observers of this mess).  If the ATV’rs, bikes and resale goods victims are cut out of this mess, the rest of us will be the chosen losers.  There are no winners. It will be up to the House Republicans to not hand a historic, economy-wrecking victory to Henry Waxman. They know what’s at stake.  We are all depending on a sensible outcome of a quick Conference Committee.  The National Debt crisis victory should increase confidence. I only wish we were the subject of such public scrutiny. The next few days will seal our fates, once and for all. More to say later this evening.

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CPSIA – Pryor Amendment (as amended) to be Hotlined in Senate Tonight

CPSIA – Rumorville on Pryor Bill

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

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

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!

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