Sorry for my short absence. Here's the latest:
a. Tomorrow is the scheduled CPSC Tracking Labels meeting. There will be two panels of speakers, one of which includes me. The meeting runs from about 1 PM - 5:30 PM EST and can be viewed online. Interestingly, the vote on the NAM petition to stay the implementation of Section 103 (tracking labels) has been delayed from last Friday until Wednesday after this meeting, supposedly at the request of Commissioner Thomas Moore. This move is quite sensible as it made NO sense to vote on the NAM petition two days before having an open meeting on the topic. That would have really been thumbing the Commission's nose at industry, a very unnecessary slight. Comments were finally made available online at http://www.cpsc.gov/ and are hundreds of pages long. There were perhaps 150 comment letters filed, impressing the folks at the CPSC. Let's hope they listen hard tomorrow. The big issue is how long is needed for a stay. My comment letter stated that two years are needed.
b. As if May 12th wouldn't be interesting enough, it is also the day docketed for the Commission decision on the bicycle exemption request. The CPSC staff properly recommended voting the request down because, although no sane person would believe that bicycles are dangerous because of lead, the leaden CPSIA says that if any lead can leak into the human body from a bicycle (i.e., one atom of lead), no exception can be made. Thanks, Congress! Apparently, it would be much better to get in our lead paint-encrusted cars and drive to our destinations, kids. Cap and trade that, Mr. Waxman!
The Commission has no easy out on bikes like they did on ATVs. That is, there is no excuse to legislate this time, never mind that legislating is illegal for an agency of the U.S. government. With that door seemingly closed, we are either about to venture off even further into legal netherworld OR the Commission will ding the bike folks as the Staff recommends. I hope they do ding the bikers, not because I have anything against bikes or the bicycle industry, or even because I don't want the CPSC to continue the new tradition of secret laws (I don't like secret laws, in fact). No, I want them to deny the bike request because this law has to be changed. The worse it gets, the better it gets for opponents of this law. And, with bikes finally outlawed, we ought to have more people available for a march on Congress . . . .
c. The interesting week continues on Thursday when, heavens-to-Betsy, an actual House committee holds hearings on the CPSIA! Yes, at least as of today, the House Committee on Small Business Subcommittee on Investigations and Oversight will hold hearings on Thursday at 10 AM EST. See the Committee's website for more details. Despite my pleas, I have not been invited to appear as a witness. That being said, this is progress. Let's hope for good questioning and thoughtful inquiry.
d. As you all know by now, Mr. Obama has appointed two new Commissioners, Inez Moore Tenenbaum as Chairman and Bob Adler as Commissioner. Ms. Tenenbaum appears to be new to the safety gig and is considered to be a bit of an unknown. Let's hope that her background as a South Carolinian leaves her open to the notion that not all industry objections to the dreaded CPSIA are self-interested and "evil". One can always hope . . . . We need open-minded and curious leadership to help mend fences and restore common sense to safety regulation.
I have previously written about Mr. Adler, reporting on his keynote speech at ICPHSO earlier in February. As you will see, he gave very sensible and even-handed remarks and seems to be open to a dialogue with all parties. I hope his optimistic vision is achievable. I would also note that he is a Professor of Strategy and Entrepreneurship at UNC Business School. This would suggest that his mission in life is not put all of us out of business . . . . I am actually looking forward to having Bob Adler on board at the CPSC. Please don't make me sorry I said that!
The appointment of Tenenbaum and Adler has positive implications for the CPSIA saga. Okay, perhaps I am a giddy optimist. For one thing, I think that everyone (EVERYONE) knows that this law is seriously screwed up. The issue now is how to dig our way out of this mess. [Start by turning the bike petition down, Commission!] The Dems in Congress would rather eat dirt than hand a "victory" over to Republican Nancy Nord by admitting that anything is wrong with their precious law. Thus, no movement can be expected on the law itself while she remains the sheriff in town. That being said, desperate Senators have instructed the CPSC to operate with "common sense", meaning that the CPSC is being given free rein to disregard the law and do as it pleases. Thus, the ATV stay. There are limits to this kind of giddy disregard of law (the Constitution, blah blah blah, oh-what-a-killjoy) and in time, the Commission will define how far they are willing to go to fix things for Congress. The next step in this saga on behalf of Congress (barring some surprise on Thursday at the Small Business subcommittee hearings) is to confirm the two new Commissioners and then in due course, hold a showy hearing of the House Committee on Energy and Commerce (Bobby Rush's Subcommittee, actually) where the new Chairman can give her diagnosis of the law's issues, what's working and what's not. This message will shock and amaze the Dems who were previously "unaware" of any problems . . . . They will then set about liberating the agency now that it is in safe Democratic hands again. Will the world be safe for democracy after this? Who knows, but let's hope we can survive long enough to find out.
Btw, for those of you keeping score at home, the two new Commissioners cannot BOTH serve prior to August 14, when authorization of the reduction of the size of the Commission from five to three Commissioners legally expires. Thus, if no one resigns before August, presumably Mr. Adler will have to sit out the fun for a few months while he works on getting his handicap down. The Republicans have another vacancy to fill as well, also to serve after August 14. Each Commissioner gets their own staff, and soaks up perhaps $1 million per annum in funding. Your tax dollars at work!
Monday, May 11, 2009
Wednesday, May 6, 2009
CPSIA - NAM Stay Tracking Labels Petition Up for a Vote on Friday
Remarkably, the CPSC has docketed a vote on the NAM Tracking Labels Emergency Stay petition for this Friday. The requested 12 month delay, which would be the fourth stay issued under the CPSIA, facilitates a rational exploration of the many tracking label issues and at least arguably allows manufacturers time to transition appropriately to the new rules. The Commission should vote to implement this stay request. Not only is it unacceptable to impose this kind of burden on such short notice without implementing rules (a practical impossibility for many industries with long leadtimes, like apparel), but frankly, the provision is overly-burdensome and could be fatal to many businesses (without compensating benefit to consumers). Myself, I have always felt the tracking labels provision was the worst part of this bad law. These issues need further exploration with industry input.
With President Obama's appointment this week of two new Commissioners at the CPSC (subject to Senate confirmation), hearings are likely to occur (eventually) under the auspices of the House Committee on Energy and Commerce. It will be interesting to see if any semblance of open dialogue is permitted at that time. In any event, the testimony of the new Chairman (and perhaps others) will be an indicator of whether further relief will be allowed. The speculation from Rumorville is that the message of a Democratic Chairman will be much better received by Congress, even if the message is exactly the same as less-palatable previous witnesses have delivered. The current situation where the CPSC must keep issuing stays to resolve safety dilemmas, leadtime issues or basic fairness and equity is completely intolerable and even the consumer groups and legislators are admitting it (privately). One hopes, perhaps naively, that at the time of a hearing, Congress will find the resolve to address these issues openly and with an open mind.
Ironically, the greatest outcast in this "safety war" has the greatest ability to contribute to a solution. Corporate America doesn't deserves its title of Public Enemy Number One and wears the crown with unease. If the new Commissioners can foster a renewed environment of trust on Capitol Hill, perhaps industry input can finally be considered constructively. Since far less than 1% of companies affected by the CPSIA have ever had a run-in with the CPSC or are known to have caused torts because of lead or phthalates, it seems likely that their expertise in their businesses and their products can be useful in crafting rules that facilitate better safety while not choking off commerce. I continue to believe this is possible.
Step one: vote for the tracking labels stay!
With President Obama's appointment this week of two new Commissioners at the CPSC (subject to Senate confirmation), hearings are likely to occur (eventually) under the auspices of the House Committee on Energy and Commerce. It will be interesting to see if any semblance of open dialogue is permitted at that time. In any event, the testimony of the new Chairman (and perhaps others) will be an indicator of whether further relief will be allowed. The speculation from Rumorville is that the message of a Democratic Chairman will be much better received by Congress, even if the message is exactly the same as less-palatable previous witnesses have delivered. The current situation where the CPSC must keep issuing stays to resolve safety dilemmas, leadtime issues or basic fairness and equity is completely intolerable and even the consumer groups and legislators are admitting it (privately). One hopes, perhaps naively, that at the time of a hearing, Congress will find the resolve to address these issues openly and with an open mind.
Ironically, the greatest outcast in this "safety war" has the greatest ability to contribute to a solution. Corporate America doesn't deserves its title of Public Enemy Number One and wears the crown with unease. If the new Commissioners can foster a renewed environment of trust on Capitol Hill, perhaps industry input can finally be considered constructively. Since far less than 1% of companies affected by the CPSIA have ever had a run-in with the CPSC or are known to have caused torts because of lead or phthalates, it seems likely that their expertise in their businesses and their products can be useful in crafting rules that facilitate better safety while not choking off commerce. I continue to believe this is possible.
Step one: vote for the tracking labels stay!
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.
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.
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