Tuesday, July 12, 2011

CPSIA - Letter to CPSC re Executive Order on Regulatory Review

President Obama issued an Executive Order yesterday instructing the CPSC to institute "retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned."   Notably, the order specifies "allowing interested members of the public to have a meaningful opportunity to participate in rulemaking".

In the White House blog announcing the Executive Order, Inez Tenenbaum is quoted as follows:  

"Earlier this year, I directed agency staff to reinvigorate CPSC’s voluntary review process, which is intended to look at ways to maximize openness and public participation, and effectively review substantive regulations that may require revision, repeal, or strengthening . . . . I believe this approach is consistent with President Obama’s call for a sensible and streamlined regulatory system that is protective of public health and safety, and I look forward to working with the President and Congress, as appropriate, as our review process moves forward."

As you know, I have participated in CPSC public forums numerous times in the last three years, in addition to testifying before a House subcommittee twice on the CPSIA.  I have testified at the CPSC at least five times by my count, several times at the invitation/request of the agency.  I have done so at my expense.  In each case, I believe my testimony was disregarded.  My positions on the CPSIA have been publicly documented, principally in my blog which I know you read.  My positions have been consistent and backed up by data open to anyone's review.  

Now that the CPSC is subject to an Executive Order demanding real public input, I call on the agency to break with its past of disregarding inconvenient opinions or those that may subvert a political agenda, and allow the public to participate MEANINGFULLY in this critical process.  Those of us who have attempted to stop the CPSIA train wreck have been thoroughly marginalized by a process that uses us to create an impression of public dialogue without actually taking any meaningful feedback or adjusting any preexisting plans.  The President did not order the agency to provide a public forum for VENTING.  He has ordered the CPSC to afford the public a "meaningful opportunity to participate in rulemaking".  

To me, the Executive Order means that when we present reasoned arguments with actual data, the agency has NO OPTION other than to listen and take into account our views.  There is nothing in the Executive Order that indicates that consumer groups speak for the public or should be accorded extra weight in your deliberations, nor that manufacturers are somehow excluded from the group considered to be "the public". It is time to recognize the legitimacy of the views of those of us who create much-needed jobs.   

With that in mind, I call your attention to a blogpost I wrote on cost/benefit analysis of CPSC decisions and policies under the CPSIA.  Please see my post "Do Accidents Happen?" dated June 29th.  In this post, I explain that, as a matter of accepted economic theory and legal theory, the policies and decisions of the CPSC in the wake of the CPSIA have crossed the line into inefficiency and bad public policy.  This is PRECISELY the issue that the President has charged  the agency with investigating and resolving.  Speaking as a business owner in the field of children's products, I can assure you that time is of the essence.  Every day counts at this point  as the cumulative impact of three years of CPSIA duress has taken a terrible economic toll with virtually no identifiable public health benefit.

Writing a law with noble intentions does not ensure that it will be good law or one that benefits society.  In the case of the CPSIA, the issue has never been "What price safety?"  A failure to effectively enforce the law prior to the CPSIA never constituted a need for new safety rules anymore that a failure to enforce traffic laws means that we need lower speed limits.  New approaches to enforcement, perhaps, but new standards, no.  The question today is "What price survival"? Businesses and markets have been punished mercilessly in service of the CPSIA but to what end? President Obama's order comes after years of public outrage over regulatory excesses and significantly, was issued shortly after a House Oversight hearing featuring two CPSC Commissioners examining the question of economy inefficiency in rulemaking.  I fully believe that the agency can never fix this mess without taking a strong stance on real CPSIA reform.

The CPSIA took away the agency's right to assess risk, not its ABILITY to assess risk.  This is a truly counterintuitive approach to safety, as safety is all about risk management.  There is no logic to this approach which sadly renders the expert opinions of the CPSCs legions of Ph.D.s meaningless at critical junctures for my market.  I am frustrated, to put it mildly, that ALL CPSC Commissioners do not regularly protest this subversion of process and responsibility.  This problem is at the core of the issue with the CPSIA and should be offensive to Democrats and Republicans alike.  The failure of any Commissioner to demand the right to exercise his/her honest judgment is akin to acknowledging that they do not trust themselves to act prudently and in the interest of the public.  Do the Commissioners really believe that taking away their authority is necessary to ensure sound decision-making?  That reasoning never worked with my teenagers.  

Resolving the issues that the President has ordered the CPSC to examine will certainly require the exercise of judgment.  It is inescapable that the Commission must be prepared to deliver this unpleasant news to Congress for better or worse.  

I look forward to a meaningful public process investigating these issues, and pledge my support and engagement in this process. I want to be helpful but ask in return that the agency turn over a new leaf and let rational arguments supported with data influence outcomes in CPSIA rulemakings and policies.

Please do not hesitate to contact me with your comments and questions.  Thank you for considering my views on this important subject.


Richard Woldenberg
Learning Resources, Inc.
Vernon Hills, Illinois

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