CPSIA – Waxman’s New Amendment Progress Report

In the last couple weeks, Rep. Henry Waxman’s staff on the House Committee on Energy and Commerce has been approaching Republicans and various stakeholders for feedback for a “bipartisan” approach to fixing the CPSIA. In these discussions, the staff has acknowledged that the law is “flawed” and requires surgery, not just tweaks. An interim (artificial) deadline of this week has been established for comments on their planned amendment. A draft of this amendment has not seen the light of day yet. No one knows what it will say.

While this may sound “good”, the Waxman staffers have also attempted to constrain the development of the amendment. For starters, they insist that the amendment be based on the failed Waxman amendment of last December. [Last year's try was covered in several posts in my blog from December 11-16.] They have also drawn quite a few lines in the sand, such as no change to age limits in Children’s Products. They favor exemptions for individual product categories or even individual products, a Swiss Cheese approach. [I hate this approach, as does just about everyone else other than the Waxmanites.]

The Waxmanites seem interested in helping out the ATV’rs. Apparently, the legislative logic is that if the amendment caters to the ATV’rs, who have been quite noisy and enjoy wide support among members of Congress, no one will be able to vote against the amendment for political reasons. Thus, the makings of a Democrat victory and the appearance of bipartisanship. I can see it now: “The two parties worked together and fixed the parts of the law that caused unintended consequences. All is well!”

Among the “have-nots” in this approach:

• “Common Sense”. This case-by-case or product-by-product approach means that the Waxmanites refuse to even consider trusting the CPSC to do its job and assess risk for itself. The only people the Waxmanites and consumer groups can trust are . . . are . . . themselves. You won’t be able to draw a line between those that are “in” and those that are “out” in any rational way.
• Rhinestones. On the subject of rhinestones, my understanding is that they are so resolute on keeping these innocent stones in the bill that they would be willing to write rhinestones in explicitly. This is the opposite of case-by-case exclusion – it’s a case-by-case INCLUSION.
• Educational Products. While the Waxmanites say they want to exclude educational products, they can’t figure out how to do it since you might use an educational product in your home. Horrors! Again, without a simple notion of what’s safe and what’s not, how do you expect a sensible rule to emerge from this primordial goo?
• Bikes. They really want to figure out how to help bikes but can’t seem to do it. For this reason, they are chatting about an indoor/outdoor exclusion. In other words, and I am not kidding, they have suggested a rule that if you keep something in your garage, it’s “out”, and if you keep it indoors, it’s “in”. So everybody – move all your toys, children’s clothing and shoes, furniture, books, pens, appliances and so on into your garage, quick, so you can qualify for this great new exemption! [Try to resist holding a garage sale, though, because that presents special risks under the law!]

Not one to look a gift horse in the mouth, I am happy they are thinking of an amendment, but I am not happy that we still find ourselves adrift without any sense of what’s safe and what’s not. It is hard to foresee an amendment that does much good with this kind of inflexibility. Bipartisanship promises to be hard to obtain or a sham staged by Democrats for their own benefit.

Remarkably, a hidden issue that may weigh on these proceedings is the growing awareness of paralysis at the CPSC. The agency saw a massive increase in its budget last year, to match its massive new responsibilities, but still finds itself mired in open projects and conflicting priorities. Simple things are taking forever. Agency paralysis cannot be prevented in this environment without a significant paring of CPSIA priorities, something that the Waxmanites have a hard time conceding. And Obama won’t give the agency more money, so they’re stuck. And we’re stuck.

That’s not where you want to be.

Something to think about as we go forward:

1. Principle One: Your silence is deemed to be your approval. Silence = approval. You must swing from the rafters to get their attention, too. No, don’t do that – too dangerous.
2. Principle Two: An unopposed view, particularly a document with footnotes, is considered definitive. After all, if it were wrong, why didn’t anyone point it out, with footnotes? This is really how the Waxmanites think.

You need to keep these principles in mind. Your loud involvement can help a lot.

To Be Continued . . . .

Read more here:
CPSIA – Waxman’s New Amendment Progress Report

CPSIA – Commission Delays Vote on Lead Content Stay for One Day

In this morning’s hearing on extending the testing and certification stay (the “Stay”), the Commission opted to carve-out lead content from the Stay. The decision on how to handle lead content under the Stay is docketed for a ballot vote tomorrow. [Just to clarify, other aspects of the Stay were extended today including situations where the rules and certifications have not been completed, such as ASTM F963 and phthalates.]

Frankly, the demise of the Waxman CPSIA amendment throws a HUGE curve ball at the Commission. Now that Waxman’s fractious process derailed his attempt to “fix” the CPSIA, however ham-handed that attempt may have been, it seems that change is in the air. Will the Commission plunge on ahead with its big decision as though nothing has changed? Your guess is as good as mine. Unfortunately, things are happening so fast that events are literally overlapping – the news about the dead amendment came as the CPSC was completing its morning hearing. It seems to me that the Commission must now take even more time to carefully consider its next steps – this historic opportunity to force common sense change should not be squandered.

It seems equally important that the Commission reject partisanship and pull together, even if it takes more time and more debating (off-line and in the public eye). The poisoned partisan atmosphere of Waxman’s House Energy and Commerce Committee sadly seems to have migrated to the CPSC Commission. In today’s hearing, Commissioner Northup called for more effort by the Commission to reach 5-0 votes. What a timely call THAT was! The failure of the Waxman amendment can be interpreted as Congressional rejection of partisan control of safety by the Democrats alone. Over the course of the past year, partisan hubris led to extremism, culminating in a small number of Democrats co-opting the law as self-appointed defenders of the “will of Congress”. Safety belongs to everyone – it’s not political. The call to action now is for the Commission to act as one. Whatever damage the Waxman fiasco caused to working relationships needs to be rapidly repaired through the individual leadership of the Chairman and the other Commissioners.

The Commission has balloted Anne Northup’s motion to delay lifting the Stay on lead content until six months after the issuance of the so-called “15 Month Rule”. This proposal, acknowledged by Inez Tenenbaum to be based on “common sense”, is not likely to be adopted without a gentle shove. Ms. Tenenbaum herself stated that manufacturers had asked for a “date certain” when the Stay would be lifted. [One can only hope that she was confusing a reasonable request for certainty, as in knowing what the rules are and when they will be imposed, with a request for a deadline. I cannot imagine who would demand a compliance deadline from the CPSC without knowing what the rules actually are, and if such a (neurotic) person exists, I would like to speak to him/her to better understand WHY they think this would be helpful.]

Even more worrisome, Commissioner Bob Adler contended that “Congress” wanted to be sure that everyone is in compliance with the law. [This personification of Congress is very troubling, especially since the Waxman fiasco makes clear that the original CPSIA votes no longer reflect the will of Congress today - or else how was an amendment by the powerful Henry Waxman stopped? This kind of thinking needs to be revisited.] Mr. Adler further asserted that based on feedback from small manufacturers, the most serious concern today is component testing which will be addressed by the CPSC’s new interim enforcement policy. Adler was rather dismissive of the market impact of the 15 Month Rule beyond component testing and he even asserted that the VAST MAJORITY of manufacturers would be “just fine” with lifting the Stay today if they got effective protection for component testing. I question Mr. Adler’s research on this point.

The lines are drawn for tomorrow’s fight. Mr. Adler has stated a preference for a date certain of August 14, 2010 for full implementation of the testing and certification rules. Ms. Tenenbaum says she would vote to extend the Stay again if the 15 Month Rule is not completed by August 14, thereby signalling her approval of Mr. Adler’s formulation. [Market chaos be damned?] Mr. Moore generally follows the party line so you can count him in, too. If the Dems don’t move off these positions by tomorrow, we are looking at a date certain of August 14 for lifting the Stay on lead content. This would sadly be more of the same. [Makes you wonder why we all took two days out of our lives to go to the CPSC to give comments at last week's 15 Month Rule workshop, or even more bizarre, why the CPSC called for comment letters on the 15 Month Rule by January 11 - if the Commission is seriously thinking of voting tomorrow to lift the Stay without considering ANY of this input. So - which process is a sham, the workshops and the comment letters, tomorrow's vote, neither . . . or both?]

The problem with the August 14 “date certain” proposal is that the following matters have not been resolved:

• Testing frequency
• Component testing
• Re-testing requirements
• Sampling requirements
• ASTM F963
• Lab certifications

It was noted in today’s hearing that only EIGHT certified laboratories have been approved for lead content in children’s non-metal products, three on the West Coast and the rest overseas. Here’s the list:

1. Bureau Veritas (three China lab locations)
2. CTC Group
3. Intertek (two China lab locations)
4. Istituto Italiano Sicurezza Dei Giocattoli S.r.l.
5. MSR Laboratories, LLC
6. SGS (one China lab, one U.S. lab, one India lab location)
7. Specialized Technology Resources Ltd. (one China lab location)
8. Union Technology Research & Service Center

For perspective, consider these long lists of locations for three leading labs: SGS (worldwide), Intertek (China list only) and Bureau Veritas (China list only). That’s just the tip of the iceberg of the testing market (admittedly not all of these labs focus on or serve the children’s product industry). One lab we use, not on the above list, reportedly can’t seem to get someone from the CPSC to visit them to certify them for lead content testing. It’s understandable – the effort to process all these (pointless) certifications is taking a lot of the agency’s resources and time. The CPSC is just not ready to manage this enormous bureaucracy even 16 months after passage of the law. Eight labs to serve the worldwide children’s product industry for access to the U.S. market by August 14 – that’s a BAAAD joke.

With the Waxman amendment behind us, the Commission has a great chance here to focus its efforts in the right direction. The recent Omnibus Appropriations Bill (H.R. 3288) contains these instructions: “The CPSC is directed to assess enforcement efforts of [CPSIA] section 101(a), including difficulties encountered, as well as recommendations for improvement to the statute, and to report to the House and Senate Appropriations Committees, as well as the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee, no later than January 15, 2010.” This report should be the focus for the Commission at this time. The Stay is secondary to this historic opportunity, and as such the Commission should not get caught up in the moment. MANY legitimate concerns have been raised by manufacturers relating to the lead content aspects of the Stay. We are not all guilty until proven innocent – why can’t these valid doubts justify taking the time to “do this right” (as Ms. Tenenbaum called for in a November hearing)?

With change in the air, the Commission needs to seize the moment and lead us out of the wilderness by calling for a technical amendment to the law. The January 15 information request is the golden opportunity. The agency should not simply respond with something designed to please Henry Waxman – that would fumble the ball. Instead, the agency must offer up suggestions designed to meet the will of Congress expressed this week – namely, a proposal to fix the flaws in the CPSIA while providing reasonable protection to children.

It’s time to do the hard work. I am ready to help – are you?

Read more here:
CPSIA – Commission Delays Vote on Lead Content Stay for One Day

CPSIA – Still Steaming Over Mr. Waxman and His Unilateral CPSIA Amendment

I am still trying to unpack what happened late Friday when the Waxman amendment to the CPSIA leaked out. Since the news is so fresh and so few of the actors have come forward to account for themselves, let’s be conservative and analyze only the most positive possible scenario:

• Mr. Waxman now accepts that some aspects of the CPSIA need to be fixed.
• Mr. Waxman now accepts that the CPSC cannot fix the law through rulemaking alone.
• Mr. Waxman is being a “good guy” and showing his “good faith” by allowing a change to the law.
• Ms. Tenenbaum believed that something is better than nothing and made a practical judgment to support the Waxman amendment as a step in the right direction.
• Ms. Tenenbaum concluded that fighting with Ms. Waxman might worsen the situation for the agency and for the victims of the law.
• Ms. Tenenbaum thought that getting an amendment now might open the door to more amendments later.
• Ms. Tenenbaum thought the Commission could use this “loophole” to ease pressure on at least some victims of the law.
• None of this affects the good vibrations that emerged in recent weeks with the CPSC who has noticeably softened its rhetoric and reached out to the regulated community to find amicable solutions to the perplexing issues caused by the CPSIA.

I think that’s about as sympathetic a portrayal as I can paint of the Waxman amendment and the way it was generated. With that sunny scenario in mind, how would I now interpret the events?

1. Waxman is in control, and will not relent. Both minority members of Congress and minority Commissioners have been largely disenfranchised for the future of this law. His need for control made impossible redress of the many other issues documented by the likes of resale shops, education companies and apparel-makers.
2. Waxman will dictate precisely the speed and dimension of fixes to the CPSIA. The pain and disruption in the market does not influence him. As the terms of the original law indicate, he does not regard economics as a factor in setting safety policy. [An economist would characterize this outlook as irrational.] Political pressure does influence him, hence the meager effort to appease the ATV and publishing industries. This amendment is consistent with the longstanding position of his staff – so there is little to indicate further flexibility. If you believe the “one bite at the apple” crowd, this is grim news and contradicts the concept above that one amendment might lead to other amendments.
3. Waxman has no intention to publicly debate the issues under the law. Likewise, he has no intention of possibly losing control of the discussion or the message. Given his stated interest in reforming the Toxic Substances Control Act, it remains critical to portray the CPSIA as a success and as an advance in regulatory “theory”. The Waxman amendment makes clear that the legitimate concerns of the regulated community are taking a permanent back seat to a political agenda set by consumer groups and the California contingent. Again, not good for us. . . .
4. The CPSIA is now clearly the Democrats’ law. Republicans have been exiled from the safety debate. It is shocking that party lines now define the children’s product safety debate since injuring children is not a political issue. Yet, any notion of bipartisanship has been crushed.
5. Whether for political gain, sympathy with the original design of the legislation or for practical reasons, the Democrats on the Commission have fallen in line with the Waxmanites. The teamwork on this amendment makes them appear to be allies. If this means that the Waxman views on implementation will also hold sway, it forecasts grim developments ahead for regulated companies.
6. The appearance of appeasement or even complicity by Ms. Tenenbaum is inescapable. Even in the friendliest interpretation of events, Tenenbaum comes out as a weak defender of the legitimate interests and concerns of the regulated community. And “common sense” seems forgotten. What kind of partner does that make her? Do her statements on consulting with stakeholders and open dialogue seem somehow self-serving now? Right now, it is very hard to know when or whether she will toss regulated companies overboard. This makes partnership with her difficult because you must give to get . . . now that the “get” is in doubt, how can the regulated community become comfortable with the “give”? I also think it’s reasonable to ask why Ms. Tenenbaum allowed this provision to be negotiated in the dead of night. That’s not how a partner behaves.
7. There is a BIG issue of trust within the Commission here. The very public way in which the Republican Commissioners received notice of their irrelevance will cause lasting injury to relationships. It is hard to see collegiality restored quickly on the Commission after this betrayal. Of course, I can’t help but recall the mantra repeated by many pro-CPSIA advocates – that the CPSC needs a five-person Commission. Doesn’t the amendment “process” expose this as a joke? If Tenenbaum and Waxman are going to ignore the Republicans, was Congress really saying that the CPSC desperately needed three Democrats in a majority position? Gosh, I think the Republicans that voted for the law might take issue with this . . . .
8. The inclusion of lead labeling for excluded items confirms the zealotry of the Waxmanites, the impotence of the resistance movement and the persistent disregard for the needs of innocent victims of this law. Of course, difficult-to-obtain exclusions are quite anti-small business, as are the lead labels. The labeling is even more incredible if you take into account that exclusions will only be granted in circumstances where the inclusion of lead will have virtually no conceivable health impact. So if the Chairman would sell us down the river with a useless and extraordinarily-limited amendment without addressing ANY of the other pressing issues or demanding the right of the Commission to assess risk, then what else can we reasonably expect from here on out?

That’s the $64,000 question, isn’t it? Frankly, this amendment and the behind-closed-doors process which excluded all corporate stakeholders and many political stakeholders, sharply erodes trust in all directions. Doing this behind everyone’s backs – during a two-day workshop purportedly designed to solicit stakeholder feedback and get everyone on the same page – seems remarkably disingenuous. You can safely assume many recent conversations in retrospect seem less than candid or straightforward.

To work out the difficulties with this law, leadership on the Commission (Democrats) and in Congress (Democrats) need to come to grips with the fact that the law is incredibly misconceived and destructive. The dream that the Precautionary Principle actually works to anyone’s benefit has been debunked. To cram down this noxious law despite the legitimate concerns of the regulated community will NOT snuff out opposition – but instead will inflame it. The problems won’t go away, and cannot be buried. The issues will fester and rot until addressed.

If the issues marbling the law are allowed to linger long enough, the Democrats can ensure lasting damage to the agency and market catastrophe. I will repeat myself: there is a legacy issue for Tenenbaum and the Dems – and having jettisoned the Republicans, it’s all theirs now. The CPSC can be rendered ineffective and wholly bureaucratic, with all the attendant damage that entails, or it can be restored to glory. The choice is theirs and the stakes are high. Interestingly, the regulated community will support an effort to restore effectiveness at the agency, but that will necessarily involved restoration of risk assessment and political independence at the agency. Hard to see Waxman going along with that.

Do we have the leaders for this effort on the Commission? Time will tell. Like everyone else, they will be judged by their results. You and I are along for the ride, whether we like it or not.

Read more here:
CPSIA – Still Steaming Over Mr. Waxman and His Unilateral CPSIA Amendment

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