CPSIA - Dingell v. Tenenbaum (9-10-09 Hearing)

I would be remiss if I closed the book on last week’s hearings without reviewing the fascinating interchange between Rep. John Dingell and Chairman Inez Tenenbaum. Mr. Dingell has played an important role in the CPSC’s history as co-author of the legislation (Consumer Product Safety Act) that created the CPSC in 1972 and co-author of last year’s CPSIA. In addition, Mr. Dingell famously asked for information from the CPSC about the CPSIA implementation difficulties last spring, which many of you responded to. [See various posts in this space from March 6-13.]

Mr. Dingell’s opening remarks contain a harsh rebuke of the Senate for modifying the House bill in ways deleterious to the conduct of safety administration and business, and scorned the “abundant outside assistance which confused the issues further, from consumer representatives and enthusiasts who did not know how government works or how government should work.” He reiterated his concern over the implementation of the CPSIA “as improved by the United States Senate” and highlighted Former Chairman Nancy Nord’s warning on January 30 of unrealistic deadlines under the law and the risks involved in giving “short shrift to the analytical discipline contemplated by the statute.” Notably, Dingell reported that meetings between House and Senate members were triggered by the CPSIA implementation difficulties “in which it was discussed that perhaps maybe the House and the Senate should pressure CPSC to come to conclusions which may or may not be supported by the law.” Perhaps you remember the letter by the 28 Senators earlier this year. This paints quite a lovely picture of our Congressional saviors, doesn’t it?

Mr. Dingell framed his questioning of Ms. Tenenbaum around the reply of CPSC staff to his March 4 letter. In their reply, the staff “indicated support for amendment of the statute ‘to set risk-based priorities given the finite resources available to [the CPSC].’” Restricting Ms. Tenenbaum to yes/no answers (to accommodate his limited time), he asked for candid replies to assess her support of the staff’s recommended course of action or how she would otherwise address the problems in implementation of the CPSIA. [I have annotated the Q&A with my interpretation of Ms. Tenenbaum’s answers where relevant.]

Q1: Do you believe that the retroactivity provisions of the statute should be restricted products manufactured after the date of the statute (except where the product presents a health and safety issue for children)?

A: NO. A Federal Court in the phthalates case determined that we could not exempt product manufactured before the statute was passed.

[RW: Because the CPSC lost the phthalates case, the phthalates provision operates retroactively. The CPSC has always applied the lead standard retroactively. In this answer, Ms. Tenenbaum states that she believes these limits SHOULD work this way. In other words, she does not see a problem with the retroactive application of the new standards. Perhaps she would like to talk to my accountant.]

Q2: The broad age limit used in the definition of “children’s products” unnecessarily subjects products like bikes and books to more rigorous standards than otherwise necessary. Should the age limit be lowered “to better reflect exposure”?

A: NO, because you often have children of multiple ages in one household using the same products.

[RW: Apparently, all children use all children’s products. This answer reflects the consumer groups’ fantastic notion that children are fascinated by other children’s possessions (a two-year-old wants to use the 12-year-old’s Gameboy). Ms. Tenenbaum’s focus on this “risk” ignores the logically troubling “risk” that the same kids may also be interested in their parents’ possessions or the family dog’s toys, both entirely unregulated and presumably laden with toxins. Her answer is also consistent with the view that only the government can control risk – individual responsibility is an outmoded concept (so is parental supervision).]

Q3: Should the CPSC be given the discretion to set higher ages for certain materials or classes of products?

A: NO.

[RW: It is incredible that the Chairman of the CPSC apparently thinks that Congress is better than her own agency at setting age limits on children’s products. There are Ph.D. scientists and human factors experts in the employ of the CPSC. I don’t think Congressional committees have similar scientific resources.]

Q4: Concerned that tracking labels and certifications will be unduly cumbersome to both the CPSC and consumer product manufacturers. Should the CPSC be allowed to address these and other issues “on a product class or other logical basis using risk assessment methodologies to establish needs, priorities and a phase-in schedule”?

A: It depends on the individual product. Have to look at it product-by-product.

[RW: She seems to say that she would like to use risk assessment on a product-by-product basis, but that is inconsistent with her (many) other statements. Her answer is hard to reconcile with the actions of the agency, especially since the tracking labels guidance issued during her term did not differentiate among product classes on critical issues. She may not have understood this question in the rapid-fire environment of the hearing.]

Q5-7: [Questions about funding]

Q8: Do you believe the problems encountered in implementing CPSIA could be “remedied solely by administrative action by CPSC”?

A: “I would say most of them can by administrative action.”

[RW: I wish I was as confident as Ms. Tenenbaum on this point. Anyone reading my blog knows I am darkly pessimistic about the workability of the testing rules and tracking labels, among other things.]

JD: “’Most’ - that means some cannot.”

A: “There will be some areas where we still have not come up with a solution.”

Q9: Do you support targeted amendments to the CPSIA to address the concerns which have arisen during the act’s implementation?

A: It’s premature to answer this question. We are working all the affected industries, “trying to untangle the knots that they have with their products”. Making great progress resolving many of these issues administratively. Will know which problems can’t be resolved in a “short time”.

[RW: As you will see below, none of these industry interactions involve the CPSC concluding that certain products are being unnecessarily regulated (as in safe products being newly regulated). Under Ms. Tenenbaum, the measuring stick seems to be whether by-hook-or-by-crook the new statute can be implemented as written, NOT whether it makes any sense to do so (and damn the consequences,. too). The new CPSC is apparently not willing to comment (negatively) on the quality of the work done by Congress.]

Q10-11: You are telling me that some amendments of the CPSIA may be required? Will you tell the committee if such amendments are required and work with us on these amendments?

A: Yes, they may be required. Yes, I will absolutely work with the committee.

Q12: When will you know if carefully-targeted amendments are required?

A: We are working on the component part testing rules. This will help the handcrafters and will relieve them of testing responsibilities.

Q13: You have had trouble crafting a rule for bikes and ATVs, right?

A: We are working on these issues administratively with both industries during the two-year stays. Working on how to make the lead inaccessible in the parts that a rider might come in contact with it, like the handlebars.

Q14: You have a problem you can’t solve very quickly, can you?

A: “Yes we can, once we determine that they can make those parts inaccessible.”

[RW: Again, Ms. Tenenbaum made no comment on risk here. Based on her answers, she appears unconcerned about differentiating between low risk and high risk situations. Her focus is on changing products to comply with the law - period. The wastefulness of the effort is seemingly lost on her. Based on other remarks at this hearing, one can surmise that her working premise is that “there is no safe level of lead” and therefore, allowing handlebars with lead in the alloy is plainly unacceptable. While this may have been the driving concept behind Congress’ action in passing this legislation, it makes no scientific or real world sense, and if the law is implemented guided by this principle, the damage will be severe and senseless. This is the Nanny State at work.]

Q15: You got a problem with motorcycles.

A: Motorcycles have the issue of lead in the handlebars and possibly in their vinyl seats but they might not be a children’s product.

[RW: That a motorcycle for kids might not be a “children’s product” under the CPSIA is news to me. I wonder why there were multiple representatives speaking at our April 1 Rally from the motorsports industry if they were off the hook. Perhaps this is a recent “discovery”. Or perhaps this is what Mr. Dingell was talking about, namely making interpretations of the law that are not supported by the law itself.]

Q16: Similar problem with ATVs and snowmobiles.

A: “There are issues there with implementation and we are working with the industry and met with them last week.”

[RW: Ms. Tenenbaum does not mention that she has been told personally that four of the eight “legacy” ATV manufacturers (members of the SVIA) have stopped making youth ATVs as a result of the CPSIA, notwithstanding the two-year stay of enforcement. Does that give you some perspective on this answer?]

Q17: And you have a problem with lead in publications.

A: No we don’t.

Q18: Why are book publishers always telling me so?

A: I am offering to meet publicly with affected industries and we are holding public hearings. We are resolving many of these issues. Ordinary books produced today comply with the law.

Q19: There are books out there that don’t comply.

A: “The only books that don’t comply are books that are published prior to 1985, which we don’t consider a ‘children’s book’. These are vintage books that will be considered adult vintage books, even if they are for children.” The only ones of concern are those books with illustrations in color.

[RW: Can you see my jaw dropping? To my knowledge, this is the first time that the CPSC has stated that books made on or after 1985 are okay and books made before that date are ALSO okay because they are all “collectibles”. This presumably includes all the “collectible” books sold at thrift stores, flea markets and lent out by libraries all over the country. I wonder if the General Counsel of the CPSC knows about this yet.]

JD: “What I want you to understand is that this Committee wants to see to it that you have a statute that you can properly administer without a lot of ‘toe-dancing’ and improper pressure being placed upon you to resolve questions in a way which are inconsistent with statute.”

Mr. Dingell indicated that he will be submitting additional questions to Ms. Tenenbaum to get to the bottom of these issues.

A picture of Ms. Tenenbaum emerges from this interchange. She is committed to a full implementation of the law as her primary objective as Chairman of the CPSC. She seems to feel that implementation of this law is tantamount to safety administration, which means she will not make judgments on safety in those places where Congress has already spoken. It’s not her place; she won’t even express a personal opinion. Given this point of view, her enthusiasm for regulating bicycle handlebars, library books, t-shirts and socks, potato clocks and so on, makes all the sense in the world – since Congress decided these items might be unsafe.

Because it appears that Ms. Tenenbaum believes it is not her job to tell Congress how to administer safety but instead only what she cannot implement under their “good statute”, we manufacturers are now left to our own devices. This hearing was a loud advertisement for the new CPSC. You better learn to live with the CPSIA and reconcile yourself to its really obnoxious terms. Ms. Tenenbaum has no intention of sticking up for you, even if you make an overwhelming case for the safety of your product. Listen politely, perhaps, but take no action – for the reasons outlined above. You must take your case to Congress directly. It’s a bureaucratic system in the truest sense of the word.

This kind of safety administration will turn out to be very expensive to our society. It is highly penal to Small Business and also to anyone in a specialty market. For suppliers or customers of the mass market, perhaps it will be welcome news. The big will get bigger, and the small will die. With the severe weakening of the Small Business children’s product community, we will all lose some standard of living. Wait until a Congressman wants to buy something for a dyslexic grandchild and can’t find anything good. Hmmm, how did that happen???