Monday, April 20, 2009

CPSIA - The CPSC Broke the Law - Does Anyone Care?

In the new era, the one where the law means what you want it to mean notwithstanding its actual terms, does it matter if a regulatory agency follows the law? Or should the agency just do whatever 28 Senators beg them to do? Are only small-minded people confined to the actual words on the page when reading the law?

Apparently, when it comes to the CPSIA, only small-minded people care what it says. The CPSC is no longer confined by the words of the law - if those words are inconvenient to a Congress that won't take responsibility for its actions. As reported in my last blogpost, the CPSC denied the petition of the ATV industry for an exemption from the CPSIA, but granted an enforcement stay through May 1, 2011 that overrides the retroactive effect of the law on ATV inventory PERMANENTLY. This stay is in flagrant violation of Federal law.

The CPSC had no legal right to grant the ATV stay. The CPSC was under tremendous pressure to act on the ATV petition - the Congressional Democrats behind this law needed the CPSC to save them from their angry constituents and apparently decided that there is no limit to what can be asked of the agency. Twenty-eight Senators wrote the Commission on April 9 to assert that the terms of the CPSIA grant the CPSC the authority to use "common sense" to implement the law, but did not cite the words that grant this power. In fact, no such provision exists, and by telling the Commission to use "common sense", the Senators were in fact telling them to break the law with impunity.

Regardless of what powers you think the CPSC has or doesn't have under the CPSIA, it remains true that the stay issued by the CPSC overrides a LAW, not one of the CPSC's rules. In other words, Congress passed a law which sets out a specific standard for lead that has a specific implementation date, and the Commission decided not only to delay its effectiveness (stay enforcement) for two years on certain products but ALSO to make the stay of enforcement retroactive and permanent through May 1, 2011. While this decision may make a lot of real world sense and fix one of many "unintended consequences" of the law, it is nevertheless illegal, in my view. By permanently enjoining enforcement of the law against existing inventory AND product made between now and May 1, 2011, the CPSC is making up its own law to override the CPSIA. They are even encouraging the production of NEW product in violation of the Act - amazing . . . but unlawful. There is no power granted by Congress to the CPSC under the CPSIA to ignore or explicitly override the really dumb parts of the law. If only it did . . . . The various Democratic leaders who have been waiting for a knight in shining armor to save them got their wish - but the rule of law was sacrificed in the process. I used to think that in this country the law mattered. Now I think the only thing that matters is the mood of certain members of Congress on any given day.

Notably, the Commissioners used to know how to read the law. On February 4, Thomas Moore intoned: "What the Commission cannot do, by rule or otherwise, is change the statutory effective date of a congressionally imposed ban. The Consumer Product Safety Improvement Act is quite specific as to the relief the Commission is authorized to take by way of exemptions or exceptions. The Congress has spoken on this issue and while the Commission will do everything in its power to ameliorate this decision [to reject the NAM petition], it cannot change it." Mr. Moore, what happened in the last 10 weeks?

And Nancy Nord took a similar view on February 5: "The law written by Congress does not give the CPSC the latitude to take the requested action [to grant the NAM petition] to stay the effective date. Congress spoke clearly in setting out a regulatory regime that applies to all children's products in commerce regardless of exposure or actual risk. Congress spoke clearly about the limited nature of the exclusions and exemptions available under the law. Congress spoke clearly about the limited nature of our enforcement discretion after February 10. The agency cannot alter or amend the statute." Ms. Nord, what has changed?

In granting the enforcement stay for the ATV'rs, the two Commissioners directly contradicted their very plain conclusions on the CPSIA, a law which has not been amended since early February I might note. I am at a loss to explain this, and believe this action discredits them as arbiters of the law. What do their opinions matter, if they have no precedential value or bind the authors in any way? This sets a new standard for the irrelevance of dicta, in my view. Why bother reading their statements from now on?

I think what happened here is that Congressional Democrats have taken over the CPSC and rather than own up to their terrible failure as legislators, have taken the awesome step of forcing the agency to break the law. I happen to work for a company making products regulated by this law. In the wake of the breakdown of the rule of law, I am even more confused as to the rules that actually apply to our company and our products. I do not believe I can turn to a document or even a series of documents to make this judgment now. The ATV decision demonstrates that we are in uncharted legal territory. Legislation will either mean nothing from now on (at least at the CPSC) or will be created on the fly based on the latest jibes from Congress. Either way, the path forward is clouded and unlawful.

6 comments:

Michael said...

Rick--

It seems that this is the only course now.

If they won't fix an absurd law, they have to figure out a face-saving way to allow people to violate it.

Now, all we need are exemptions for everyone else.

Yes, the members really are as venal and stupid as they appear to be. As I keep reminding my friends, these miscreants are nothing more than the same idiots who ran for office in high school--now older. That's it.

CPSIA has made that clear to many who previously refused to believe it.

Melanie said...

I would tend to agree...while the stay is good news for the ATV industry, I would have to ask, why do they get a pass, that the rest of us don't?
I am a small crafter, who uses mostly fabrics in my products. All this stay does, is further muddy the waters, and make it virtually impossible to figure out what parts of the law we are supposed to follow, and then worry about what parts of the law will be enforced. And it appears it will not be enforced in a fair and balanced manner.

Pam said...

It's going to take someone suing the CPSC over it. That takes money and time and I'm sure they have discussed this point. Who really is going to take the time and put out the money to do what it really will take to get the CPSIA looked at in a court of law?

Happymom4 aka Hope Anne said...

Is this also why (as far as I know!) absalutely NOTHING has happened to Malcom Smith for violating the law and selling some of his bikes illegally? I don't want any thing to happen to him, believe me, but does that mean the rest of us can start sewing and selling again and nothing will happen to us?! This latest twist to the whole CPSIA debacle surely under-scores the importance of continuing to make our voices heard . . . evidently, if we are annoying enough, common sense may be allowed to prevail!

Anonymous said...

I agree. This is even more of a mess.

What happens if someone decides to sue an ATV manufacturer? Isn't the judge going to rule based on what the law actually says, not what the CPSC decided? Afterall, a judge overturned the phthalate ruling.

What's the ATV industry going to do then?

Anonymous said...

Consistency has been a rare commodity from both the CPSC and Industry groups from the gestation phase of the CPSIA to its current incarnation.

Originally, industry groups were pushing hard for greater regulation, including independent lead testing. http://tinyurl.com/d9hhol http://tinyurl.com/c95ols

Then industry groups resisted the new legislation for fear of lawsuits (and not, by the way, out of concern for small businesses). http://tinyurl.com/coe45a

Then Nancy Nord et al., went to great lengths to say her "hands were tied" in terms of having any discretion with respect to implementing the law. http://tinyurl.com/dcn38j

I really think the situation has become so chaotic, so intellectually inconsistent, that all sides should take a deep breath, a step back, and attempt to gain some fresh perspective. I happen to believe the first step in doing that is getting rid of Nancy Nord. Maybe after Rick's blog, that is something upon which we can all agree.