CPSIA – That’s all, Folks!

Sadly, after four years of CPSIA advocacy, it’s finally time to say farewell. The timing of my goodbye comes as we approach the third anniversary of President Bush signing the CPSIA into law (August 14, 2008). I am paroling myself for time served. This is my final blogpost. This exhausting journey came to a crashing end because I concluded that I am not able to engineer further relief from this terrible law. Congress, having finally passed a CPSIA amendment ( HR 2715 ) after three frustrating years of our begging for help, is finished with this issue for good. They put an end to the lingering issues by cutting loose all the politically sensitive groups affected by the CPSIA (ATVs, bikes, books, resale goods). Those of us with working memories will recall the many words spoken over the last three years about the lead “dangers” presented by these goods to justify their inclusion in the law in the first place. I guess Congress decided lead risks wear off for certain kinds of products. Interesting . . . . The remaining affected industries will not receive additional relief from Congress because any significant political pressure which might drive change has been neutralized. This was a Democratic strategy to make this issue go away (divide-and-conquer), and it worked. I believe the CPSIA will not be amended in the next two years in any way and may not be amended in a meaningful way again for many, many years. Read HR 2715 – that’s all you are likely to get from Congress. I have no realistic expectation of further relief from the CPSC, either. The three Democratic votes on the Commission can’t be beaten, and as I have shown in this space, they always vote as a pack with no meaningful exceptions. One “triple vote” will always beat two votes. These Dems have selective hearing or memory or just don’t give a darn about data or testimony that doesn’t validate their conclusions. The outcome of a CPSC hearing, Commission meeting or request for public comment on a CPSIA issue is about as much in doubt as the average Moscow show trial. [It just takes a little longer. . . .] The comparison to Stalin’s show trials is apt. In the 1930′s, the Soviets cynically used legal proceedings to lend the appearance of legitimacy to its “findings of fact” (generally based on coerced confessions) and its rendering of “justice”. Of course, the trials were just a sham, nothing more than an administrative procedure for implementing a political agenda. And at the CPSC? I cannot point to a single CPSIA issue on which the Democrats showed an open mind or were capable of being influenced by data or reason. Draw your own conclusions, notwithstanding Bob Adler’s self-proclaimed “agony” in always casting his votes against businesses. After naively testifying at, contributing to or analyzing and reporting on so many CPSC proceedings that I have lost count, I have totally given up on these people and consider influencing them a lost cause. It’s not worth my time to continue to attempt to work with them. So with no hope of further legislative relief for the foreseeable future and with closed minds and closed doors at the CPSC, this is not a worthwhile venture for me anymore. I cannot justify it and plan to turn my attention to other opportunities with greater promise of my adding value. I am done with the CPSIA and the CPSC. Despite the almost overwhelming urge to “sum it all up”, I don’t intend to offer any concluding wisdom. Already prone to repeat myself endlessly in this space, I have clearly stated my position on the issues and my opinions haven’t changed. You know how I feel with specificity. Given that I believe it’s all over but the tears, I can’t see what good would come from parting words on the “war”. Kind readers, you have become my friends and family. I really value your readership and your support. This blog reflects your pain and your passion, too. We have fed off each other. I want to thank you. You have sustained me. For those of you who read this blog just to see what I would say about you and who will not miss my little missives (or me), I can only say that I have been completely honest and candid in this space, working with facts and real data, consistently documenting my source materials and my analysis. I respect that you may disagree with my conclusions or opinions, but I don’t respect that you refused to take me on. For all your whining and grousing about me, generally behind closed doors, none of you ever stood up in this space to tell me where or how I was wrong. You apparently lacked the courage to engage in a true, open debate where the outcome was not predetermined in your favor. Perhaps you preferred to ignore me, my arguments and my data, hoping I would go away. In the end, you got your wish. Lucky us. So the battle ends for me, here. Perhaps someday we will see the return of common sense and respect for corporate members of our society in our safety laws. Until then, good luck to you and Godspeed. Rick

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CPSIA – That’s all, Folks!

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

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 – 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 – 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 – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

Senator Pryor today introduced the so-called ” Consumer Product Safety Flexibility Act of 2011 ” to amend the CPSIA.  This four-pager is targeted at three problems: First , it makes the 100 ppm lead-in-substrate standard prospective. Second , it exempts ATVs and motocross (off-highway vehicles) from the lead standards of the CPSIA.  It also gives a year extension on the standards for all-terrain vehicles. Third , it codifies the holdings of the CPSC stay as it applies to bicycles (‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’, published June 30, 2009 (74 Fed. Reg. 31254)), thus exempting bicycles from the 100 ppm standard. The bill to my knowledge is not up on any of the Congressional monitoring sites yet and does not have a bill number. This is a useful effort by Senator Pryor.  For one thing, the 100 ppm lead standard issue MUST be addressed before Congress goes on its August recess.  Hats off to Mr. Pryor for at least providing a means to address this issue.  Rumorville has it that the Senator wants to do more than is expressed by this bill.  Other Dem Senators are on the list as purportedly wanting to do more for us.  All I can say is . . . get in touch with your feelings, Senators.  We need help NOW and we would appreciate your help and leadership in particular. As for saving the ATV’rs and bikers, well, they never belonged under this law in the first place.  The devastation wrought by this law should have been addressed long ago.  That said, there is nothing more or less sympathetic about ATVs or bikes under this law than the rest of us losers under the act.  None of us were poisoning children or even injuring children with lead-in-substrate, much less phthalates.  The neuroses of the consumer groups is no more applicable to bikes and ATVs than to us.  [Please note my prior disclosures, dating back to January, that the AAP has long supported application of CPSIA lead provisions against the ATV industry to effect a tacit ban of youth model ATVs.  The AAP admits they want youth model ATVs off the road.  This duplicity exposes the sham nature of the CPSIA, how it has been misused for political reasons by the white-cloaked and self-righteous proponents of children's product safety.] Having spent literally countless hours on advocacy on this issue since 2007, I cannot say what more needs to be said or can be said to explain how misconceived the law is.  The ATVrs and bike industry should be let off the hook . . . but so should all the other innocents.  If ATVs deserve a pass, so do rhinestones, so do t-shirts and shoes, so do books, so do science kits.  Come on , guys, science kits?!  Do you REALLY want to send America’s science education back to the Stone Ages?  It’s time to loosen the noose on American industry. One can only hope that this bill moves quickly through the Senate, and that the House quickly regains its Mojo on ECADA, leading to a useful and hopefully productive Conference negotiation to produce the long-awaited CPSIA Amendment that we have long craved and which is so long overdue.

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CPSIA – Don’t Faint . . . Senator Pryor Put Up CPSIA Amendment Today

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

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 – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

News Flash :  Personal Injury Law Firm Beasley Allen P.A. announced the revelation that the CPSIA Database is a success but is still under attack.  Hmmm. For those of you unfamiliar with this authoritative news source, Beasley Allen is a Montgomery, Alabama tort law firm that boasts on its website of a “$150,000,000 verdict in a personal injury case”.  No doubt they are impartial in their views on the database.  Their web address is http://www.southerninjurylawyer.com/ .  To bolster their case in favor of the database, they trot out the informative results of Henry Waxman’s “analysis” of the database released on July 7th .  [Mr. Waxman did not make his data available so his analysis has gone unchallenged.  The only way to review it is to recreate it.  Take it for what it's worth.]  Beasley Allen also cites the musings of Don Mays at Consumer Reports (he is the one who cautioned against his fourth grade daughter playing a brass instrument – don’t worry, she plays the violin!), completing the rogues gallery. Among the asserted benefits of the database, aside from website visits by other personal injury lawyers trolling for tort cases to file, Beasley Allen contends that “[s]ome manufacturers had even found the database helpful to them in identifying potential hazards in their products and addressing them as needed.”  Aha. There is an evil side to this controversy, naturally:  “Still, a powerful anti-consumer lobby wants the database shut down , and it is using politics to achieve that. While the database costs the CPSC $3 million to maintain – a bargain price considering its usefulness and its power to help make consumer products safer – it is on the chopping block again in current budget and debt-ceiling negotiations.” [Emphasis added] Oh, yes, the well-known and powerful “ANTI-CONSUMER LOBBY”!  Have you ever met someone who was not a consumer?  Are the people who never consume anything or don’t have relatives or family members?  Or are they people who don’t want consumers to buy their products?  Oh them!  Or perhaps they are people on who oppose personal injury lawyers.  Just a thought. . . . The Southern Injury Lawyers conclude:  “Opponents of the new database said that the database could be easily abused and filled with false information. However, analyses have found no signs of malicious activity on the database and Consumer Reports says it has not seen any evidence that the database has been harmful to businesses.” So says the lawyers with the $150 million dollar tort lawsuit.  Seems definitive to me. What could the problem possibly be???

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CPSIA – Personal Injury Lawyers Say CPSIA Database is a "Success" – Any Questions?

CPSIA – The CPSC Finds a New Way to Scr*w You

The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous.  Is it, really? Commissioner Nancy Nord points out that this decision was a compromise of a Hobson’s Choice nature: “I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change.” What was that last bit? Ummm, well, the ASTM is actually updating the F963 standard right now.  It will be done by year end. and as a result of the CPSC’s wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 – and probably necessary to test to the new standard, too!  Doesn’t that sound great?!  Now you can deliver TWO test reports when one might have sufficed.  But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one.  Just think of it . . . . Ms. Nord explains:  “When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating.” I no longer have a sense of humor, so you can rest assured that I am NOT making this up. Why the heck was the Commission in such a big, hot hurry to get this done?  Again, Ms. Nord explains: “We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays.” Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn’t want to vote for any more stays?  So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery.   The Dems on the Commission almost always vote as a pack.  Can you connect the dots? Not surprisingly, Nancy Nord can connect dots: “However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button.” Another Commission decision, another shellacking of the poor fools left serving children’s markets.  After three years of this torture, I am just not surprised.  When will our country wake up and notice this travesty?

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CPSIA – The CPSC Finds a New Way to Scr*w You

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