Wednesday, July 15, 2009

CPSIA - More Reasons to be Cynical

A couple news items to consider:

a. The Tenenbaum hearings scheduled tentatively for next week in front of the House Energy and Commerce Committee have been postponed indefinitely, supposedly until sometime in September. I do not recommend holding your breath waiting for Mr. Waxman to act. Expect Senate hearings first. Mr. Waxman wants us all to rot before he allows anyone to discuss the CPSIA publicly in front of him. A consistent man, this is one in a series of hearing cancellations on the CPSIA for him. He has not held a hearing on the CPSIA since it was passed last year. I guess he must feel there's nothing to discuss. We seem to be talking to ourselves here.

b. The tracking labels guidance is DONE - yippee, how exciting! Of course, we are not permitted to read it . . . . As disclosed in this space yesterday, the guidance is up for a Commission vote before you get to read it. Apparently, they know what's best for all concerned, so seemingly there is no need to solicit your comments on this long-awaited document (it took more than 11 months to craft). [N.b., as previously noted, despite great effort in constructing the first set of rules on advertising rules last Fall, the CPSC felt a need to solicit comments on the new rules and later significantly changed them. There were many comments submitted, and serious issues were fleshed out in these comments. In other words, the later round of public comments on the rules had some VALUE. Public comments on new rules has much precedence at the CPSC over the last 30 years. Those days are gone, apparently.] No vote on the NAM tracking labels stay petition has been docketed.

We are now 30 days away from implementation of the tracking labels requirement. Zero questions have been publicly answered on tracking labels thusfar. IMHO, many important and reasonable questions have been asked on this topic by many different affected industries. The point has been well- and clearly-made that it takes TIME to implement something as sweeping (and pointless and ultra-expensive) as tracking labels. Any person of even modest sophistication can figure out that three weeks advance notice ain't gonna do it. The Commission vote is docketed for July 20. That leaves 24 whole days to absorb and implement tracking labels according to their new FINAL rules. Golly, that doesn't sound like much time (especially for the inevitable curveballs or impossible requirements), but if you consider that 24 days are comprised of 2,073,600 seconds, it sounds like a lot more time. Insiders admit the guidance, when we get to read it, won't answer all the questions. Hope those aren't your questions, that would be a shame.

Hey, did anyone consider that knowingly NOT applying tracking labels to your products after August 13 in violation of the statute is a possibly felony (Section 217(c))? That a failure to place tracking labels on your products in accordance with the new law and new guidance is IMMEDIATELY reportable under Section 15(b) of the CPSIA (24 hours, guys)? And that knowingly failing to report is ALSO a possible felony? [It's another "intentional" violation of the statute.] Of course, a felony charge would get your attention. Hey, business owners or business managers reading this blog, don't forget about the asset forfeiture provision in the CPSIA (Section 217(d)) - that comes into play for all the felonies you are probably racking up! Better get a lawyer lickety-split. [Good news - there may be room in Mr. Madoff's cell if you hurry. He probably won't make much trouble and may be interesting company, but keep your hand on your wallet to protect the $.40 an hour you will be earning making license plates!]

The cold detachment of the CPSC's guidance approval procedure, REGARDLESS of the wonders of the new guidance, leaves me speechless. Well, that's a lie, I am never speechless. Consider the betrayal in this initial handiwork of the Tenenbaum Commission. Here is a quote from her job application (her written testimony before the Senate Committee on Commerce, Science and Transportation on June 16): "I will ensure that the Commission is operated in an open, transparent, and collaborative way and in a manner worthy of the American people. . . . While emphasizing the life-saving mission of the Commission, I will also ensure that industry knows that their views will be heard and considered." Aha, so this is the new model of an "open, transparent and collaborative" process? Is this new procedure the way Ms. Tenenbaum plans to convince industry that "their views will be heard and considered"? Ms. Tenenbaum, we heard you in front of the Senate Committee - how can you justify this kind of leadership as Chairman of the CPSC?

It bears repeating that the tracking labels provision does NOT fix or even address a public health disaster - it is a made-up "crisis". There is no possible risk to life or limb from delaying the implementation of this provision - so why the apparent refusal of the Commission to do the right thing and admit that the CPSC has failed to give timely guidance? Needless to say, this is not OUR fault. With the recent invention of "enforcement discretion", the CPSC has a demonstrated ability to rewrite safety legislation. [It's unconstitutional, but who cares nowadays?] The CPSC has also been told by leaders in both Houses of Congress in no uncertain terms to use "common sense" in implementing the CPSIA, a tacit invitation to make all the problems go away. I do not see how the right response to these Congressional entreaties is to close the door on dialogue and shove this provision down the throats of struggling domestic industries. Why not push it off for a reasonable period of time and reinforce Ms. Tenenbaum's promise to be open to the ideas of industry?

The CPSC can do better. It knows how to protect the public without putting an end to commerce in this country. I hope they will exercise better and more caring judgment in the (near) future. There won't be any products to supervise if they manage to kill off all the companies.


Esther said...

So looking forward to 2010 followed by 2012...

Steve said...

As for Madoff, I've toured the prison factory in Butner. At least back then, they made shirts for the navy (that is a whole other issue -- don't get me started) and eyeglasses. I don't think they do license plates there.

kaboogie said...

I spoke to Mr Cook at the CPSC twice now, he's working with the label issue there. He was expectedly vague, couldn't answer my particular questions. Left me with sick realization that those CPSC people have absolutely no idea what to tell people, I felt badly for him. Nice guy, too. His bottom line advice was to make sure there was SOME way your customer could identify you and find you if they had a question or problem, and that each piece be identifiable as to date, materials and such. Since I use recycled leather garments, this would mean once I cut a garment up, I'd have to keep relabelling the pieces as they got smaller and smaller. Ack! I have chunks of suede from dozens of garments. This is impossible for me, he basically said to do the best I can. great, I'll tell the state atty. general that.