Monday, May 4, 2009

CPSIA - ATV Stay: Reasons to be Aggravated

The ATV Stay of Enforcement was published today by the CPSC. I have written extensively about this topic. Now that the final words of wisdom are available for scrutiny, I find myself tied up in knots about various aspects of this decision:

a. The ATV Stay is LEGISLATION - AND IS AN ILLEGAL ACT BY THE CPSC. The Statement of Nancy Nord says it all: "We have heard from Members of Congress that they did not mean for the law to impact youth ATV's in this way, that we should use stays of enforcement to address "anomalies" in the law, and that, with respect to ATV's, we should regulate prospectively." WHOA! Hold on, Jack! I must be imagining things. I have a rather vivid recollection of the CPSC General Counsel intoning publicly on November 6 that Congress MEANT the CPSIA to apply retroactively and that Members of Congress had told the CPSC privately (and adamantly) that they had carefully considered this provision and wrote it to be retroactive. In fact, I remember a particularly colorful turn of phrase used to describe the manner in which this message was delivered to said General Counsel by these Members of Congress when they asserted that her September 12 opinion letter on retroactivity was not "tough" enough. . . . The phrase used left no doubt as to the urgent and emphatic nature of the message from Congress that retroactivity was intended. And NOW, Members of Congress seem to be having a rather different recollection. With all these memory issues, you'd think that someone would think to defer to the written law. . . .

The decision of the CPSC to rewrite the law on ATVs is called LEGISLATION even if 28 Senators really really wanted them to do it. It is also called baloney. Of course, it is politically expedient for Congress to require the CPSC to be its clean-up crew. Problem - what about the REST OF US? Hmmm, I guess Congress' careful consideration of retroactivity will produce yet more "unintended consequences". What's the difference, anyhow? Once the ruckus over ATVs dies down, Congress can go back to whatever it is doing and safely ignore the devastation in the rest of the children's market.

b. The ATV Problem Comes With A Built-In Excuse to Act - So How Will The CPSC Find Loopholes for Bikes, Books and Pens? The CPSC pointed to the dilemma of holding kid-sized ATVs off the market for admitted lead standard violations, given that parents would simply let their kids ride adult-sized ATVs which are known to be unsafe for kids. Skewered on the horns of a dilemma, the CPSC resolved the ATV problem with common sense (illegally, but sensibly). But now there's the not insignificant issue that no such excuse allows the CPSC to manhandle the law for the benefit of other CPSIA poster children, such as library books or ballpoint pens. Consider, for example, the Request for Exemption by the Writing Instrument Manufacturing Association. Guess how much lead you would absorb from one minute's sweat contact exposure to a ballpoint pen . . . . Try four one-hundred-TRILLIONTHS of a gram (0.00000000000004 grams). Yes, that's right. Put another way, how long would you have to exposure yourself to a pen in your sweaty palm to absorb a microgram of lead (one-millionth of a gram) through sweat? Between 475 and 476 years. Personally, I wouldn't make it that long writing on my hand.

If the ATV decision means that administration of the CPSIA going forward will depend on constantly taking the temperature of Congress, expressed not as laws crafted in the light of day subject to established legislative process but instead as backroom conversations or advice from shadowy staffers who seek to make the CPSIA spin like a top, then perhaps the agency will be able to cut these product classes and industries free. Anything's possible, I guess, especially if there is no real legal process, just a sham to give the appearance of accountable governance. Nifty - the only cost we will incur is the loss of the integrity of our legal system. To me, this is an incredible abuse of power.

c. The CPSC Confirms that Lead Intake Which Has No Measurable Impact on Blood Lead Levels Cannot be Tolerated under the CPSIA. I cannot say this is a revelation but at least we have it now in unambiguous terms, written down: "[The ATV Applicants] presented information that the lead exposure from their components would [not] result in any measurable increase in blood lead level (a conclusion . . . not dispositive of the absorption analysis in section 101(b)(1)), although certainly important to scientists considering the risk of lead exposure . . . ." You know, like the professional staff at the CPSC used to be allowed to do.

The Notice goes on: "To the extent that [ATV component alloys] are required for safety reasons relating to functionality, greater durability or corrosion resistance, removing the lead from these alloys could result in a vehicle more prone to structural breakage, premature brake failure, or other defects that could present a risk of death or serious injury." To me, this seems like a small price to pay for a day's ATV ride to avoid taking in the same lead you would breathe in less than five minutes. It continues: "In contrast, Congress has eliminated the risk analysis associated with the absorption of lead." Brave New World - learn to love it, guys!

Bottom line: The ATV decision is make-it-up-as-you-go-along law. That is TERRIBLE news for everyone, even those who seem to benefit in the short run from this particular decision. Beware this kind of gift. Law crafted in shadows has a tendency to bite hard.

7 comments:

Lucky Pebble said...

Still shaking our head in disbelief.

Anonymous said...

I am actually pretty optimistic about the new leadership at the CPSC. And really, with all due respect, it doesn't seem like a good idea strategically to be talking about illegalities in the wake of the CPSC's enforcement stay on ATVs. I mean, is it better to be "right," or risk allowing a victory (even if it is short term) get away? You have to admit, this blog sort of has a point...http://tinyurl.com/d65yvn

Geoff Jones said...

It is sad that Anonymous apparently thinks that this legislation is "Change we can believe in." It is more political posturing than an attempt to provide this country with thoughtful legislation that actually protects children from REAL dangers. I am not heartened that a 5-person commission will be any more effective at administering this poorly written law, nor do I believe that the proposed funding they receive will do anything to alleviate the chaos that has been brought by the implementation of this law. Any legislation that needs to have exemptions and exceptions provided for "select" segments of the children's product industry is one that is unjust and unfair. I am ashamed that this legislation appears on the books, it is "snake-oil" legislation that tries to sell the public on the evil’s of businessmen for the sake of "saving" the children. It is inexcusable for Congress to turn a blind eye to this legislation in spite of the overwhelming evidence that this law is unmanageable. I seem to recall that Commissioner Moore, who isn't referred to as a "chum" of the business community, found the courage to admit the law as written is flawed, yet for some reason groups like USPIRG and Consumers Union don't fault him for this. These "consumers" groups rely on the fact that “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

Mars Feeney said...
This comment has been removed by the author.
Mars Feeney said...

Anonymous (above) is almost certainly the guy who usually calls himself Joe Consumer. He's now posting anonymously since he has been exposed as a fraud here and elsewhere. As has his website, thePopTort.com (his tiny url link above), run by the so called Center for Justice and Democracy, which has a documented history of publishing faulty statistics: Faulty Studies from Center for Justice & Democracy Are Stunting the Medical-Malpractice Debate.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Geoff, you have cited the right quote. It's sad, but that is EXACTLY the strategy of the consumer groups in this dispute. I remain shellshocked at the gutter behavior and irresponsibility of the consumer groups, but perhaps I am just naive. Here's an interesting tidbit for you - did you know EACH new Commissioner gets his/her own staff? The cost of an additional Commissioner has been pegged at $1 million. That soaks up a lot of CPSC funding. Like you, I fail to understand how five is better than three. This is especially so since deadlocked votes on the CPSIA have NO PRECEDENCE.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Hey, Joe Consumer (Anonymous), thanks for joining the debate. You are regrettably WAY off base in suggesting that we would all be better off ignoring illegalities and un-Constitutional acts in the ATV stay. Perhaps you are advocating for the emergence of a totalitarian government, one that need not bother with written laws. I am a lawyer by background, and the sanctity of our legal system is of paramount importance to me. NOTHING supercedes it - that's a basic principle. Please remember that we will have nothing to leave our children in this country if we cannot preserve our Rule of Law. Transparency and openness is central to our system, not secret meetings and quiet instructions behind closed doors. I am not quite sure what you are suggesting - that corruption of our basic American values and the enduring vision of the Founding Fathers is a worthy price to pay for expediency in this case? Not in my book, frankly. This is rather ironic coming from a "consumer advocate" - I do not believe law-on-the-fly would be considered pro-consumer. In my opinion, the RIGHT decision is to have it all - the Rule of Law without convenient corner cutting AND a safety law that does not restrict ATVs or other children's products for nonsense and imaginary offenses. My solution is possible - that is, if we had a Congress that had the strength of character to admit its errors. Nothing is worth the sacrifice of integrity, unfortunately. I am sorry you seem willing to take this risk.