As hinted at in this space on Thursday, the CPSC is apparently going to delay the issuance of the so-called "15 Month Rule". In Nancy Nord's new blog, she provides the following important information:
"Periodic Testing – On a related issue, the CPSIA requires that we issue a rule setting out further testing requirements within 15 months of enactment (November, 2009). The agency will not meet that deadline in spite of best efforts to do so. This issue is extremely complex and we need additional input from the affected public before we give answers. The staff will hold workshops on December 10th and 11th to seek public participation. A Federal Register notice will be published with details about the workshop and will also provide details for those who wish to submit written comments. In addition, a draft “Guidance Document on Testing and Certification” will be discussed with the Commission at a public meeting on November 9th. See http://www.cpsc.gov for webcast details." [Emphasis added]
This is good news for the business community on several levels. First of all, the CPSC is now communicating informally through at least one blog. While it increases the number of places to watch for legal developments, you can't beat candor and openness. In addition, the CPSC is doing the considerate thing - giving advanced notice of a material event (the delay in this much-anticipated and much-feared rule). They are being nice, which is MUCH appreciated.
Finally, the Commission is being candid and admitting a small failure. [In fact, the admission is being done in a bi-partisan way, as Democrat Tenenbaum presumably consented to Republican Nord announcing this development in her new blog.] It is somewhat more complex than that, in fact. This is probably not best understood as a failure of the CPSC (although they are going to miss a date). They are CHOOSING to miss a date. Why? My guess is that they realize how important this rulemaking is, and are probably troubled by what the rule would look like under the (defective) CPSIA. It's a public acknowledgement, the strongest in a long while, by the agency that it is genuinely troubled by the unintended consequences compelled by the new law. Withholding the 15 Month Rule is a sign of resistance against doing more damage in the marketplace.
The CPSC has heard from many stakeholders that this rule could be the final straw. I think it's fair to assume that they do not want to do more damage. It is a bi-partisan worry, too - which is in the character of the CPSC over the years. They have not traditionally been the enemy of the business community, so it is nice to see them act with consideration again. Rumorville has it that the CPSC Staff could not find the magic words to make this rulemaking "work". Good to admit it. There's a lot implicit in that statement, most of it very good.
In my comment to the Nancy Nord blog, I ask the Commission to use the plain English meaning of the statute to make their decisions. If they cannot make a sensible decision using the plain English meaning of the words (e.g., does "any" mean "any" or not?), then the Commission should go to Congress and ask for an amendment. A statutory scheme based on twisting words into pretzels does not serve anyone's interests. To understand our obligations, we go to the statute and read it. How can we run our businesses if there is a super-secret meaning to plain English words? Are we expected to master hundreds of pages of releases spread of months or years to discover the nugget explaining that "any" doesn't mean "any"? This kind of treasure hunt inevitably fails. [If you like treasure hunts, see my recent blogpost on resale shops.]
Importantly, the CPSC has announced a two-day meeting on the 15 Month Rule on December 10/11. This is a critical meeting for all stakeholders. Please try to make it. I will be there.
Bottom line, this announcement is another gratefully-received sign of a shift in the wind. Let's see whether more good follows in coming weeks. We now have more dots to connect. It would be wonderful to be able to trust the CPSC and the law again. Guys, please keep plugging away!
Saturday, October 31, 2009
Friday, October 30, 2009
CPSIA - NAM Coalition Asks for Senate Hearing on CPSIA
The National Association of Manufacturers led a coalition of 41 trade associations and alliances in requesting a promised Senate hearing on the CPSIA this week. In a letter to Senator Mark Pryor, the coalition asked Senator Pryor to honor his commitment to hold hearings 60 days after confirmation of Ms. Tenenbaum as the new Chairman. The letter states: "The various stays of enforcement issued by CPSC to temporarily resolve CPSIA implementation problems will soon expire, and a permanent resolution is needed. We believe that the Senate's oversight role is extremely important in helping the agency implement common sense solutions to resolve these issues, and we strongly urge you to set a date for a CPSIA oversight hearing."
These hearings, if they come soon, will be the first opportunity for Congress to hear from business owners affected by this law since the law's passage. [I am disregarding last May's staged hearing at the House Small Business Committee that was nothing more than an opportunity for the Democratic leadership to launch yet another missile at the CPSC for not using "common sense".] It is shocking that Congress has dodged this necessary "sunshine" activity. I have always felt it is part of their message control where all problems are blamed on the CPSC, Congress naturally being faultless like any good omnipotent organization. The persistence of this Congressional attitude is exposing the CPSC to embarrassment as it attempts the impossible, sensible implementation of a defective law. The harder it tries, the more it twists itself into a tighter pretzel. Notwithstanding the unfortunate position it is in, the CPSC seems quite reluctant to challenge Congress (or even notify Congress of its own educated view of the matter). Care to guess who is stuck in the middle?
We can only hope that Congress will develop a renewed interest in fact finding, or the CPSC will finally stand up and deliver the unsolicited message that the CPSIA needs to be fixed. While that's hardly kneecapping Congress, I recognize that some members of Congress won't want to hear anything of the kind. Whether you call these changes "fixes", "amendments" or "tweaks", the fact remains that an incoherent, overreaching law governs the land, and its byzantine requirementes are making administration of safety almost as complicated as the tax code. The CPSC needs to educate and guide Congress on the changes necessary to create a robust but workable, effective but sensible regulatory system.
Oh, to dream . . . .
These hearings, if they come soon, will be the first opportunity for Congress to hear from business owners affected by this law since the law's passage. [I am disregarding last May's staged hearing at the House Small Business Committee that was nothing more than an opportunity for the Democratic leadership to launch yet another missile at the CPSC for not using "common sense".] It is shocking that Congress has dodged this necessary "sunshine" activity. I have always felt it is part of their message control where all problems are blamed on the CPSC, Congress naturally being faultless like any good omnipotent organization. The persistence of this Congressional attitude is exposing the CPSC to embarrassment as it attempts the impossible, sensible implementation of a defective law. The harder it tries, the more it twists itself into a tighter pretzel. Notwithstanding the unfortunate position it is in, the CPSC seems quite reluctant to challenge Congress (or even notify Congress of its own educated view of the matter). Care to guess who is stuck in the middle?
We can only hope that Congress will develop a renewed interest in fact finding, or the CPSC will finally stand up and deliver the unsolicited message that the CPSIA needs to be fixed. While that's hardly kneecapping Congress, I recognize that some members of Congress won't want to hear anything of the kind. Whether you call these changes "fixes", "amendments" or "tweaks", the fact remains that an incoherent, overreaching law governs the land, and its byzantine requirementes are making administration of safety almost as complicated as the tax code. The CPSC needs to educate and guide Congress on the changes necessary to create a robust but workable, effective but sensible regulatory system.
Oh, to dream . . . .
CPSIA - CPSIA Casualty of the Week for October 27
The Alliance for Children's Product Safety is distributing the "CPSIA Casualty of the Week," to highlight how the Consumer Product Safety Improvement Act (CPSIA) is disrupting the U.S. marketplace. These updates are meant to draw attention to the problems faced by small businesses, public institutions, consumers and others trying to comply with senseless and often contradictory provisions that are doing little or nothing to improve product safety.
CPSIA Casualty of the Week for October 27:
As this CPSIA Casualty of the Week illustrates, the CPSIA continues to wreak havoc in our marketplace. Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.
Wisconsin media reported on October 12, 2009 that because of CPSIA, the Middleton, WI police department will no longer use stuffed animals to comfort children who have gone through traumatic events. Middleton Police Sgt Don Mueller said that the police for years could hand out stuffed animals or other toys to “help children feel a little better.” Now because of CPSIA, the police department is switching to books from stuffed animals “because of the chemicals they might contain….to make sure they're in compliance with new federal regulations.” As Sgt. Mueller puts it “[we] get older toys that come in and they're perfectly fine to give out, but we don't know if they were made under the new requirements." A much-needed comfort program has been converted into a misplaced literacy effort. (Editors note: Those books better be made after 1985. CPSC announced that “it cannot determine” if children’s books made before 1985 do not exceed the lead limit because of the ink and will issue guidance on this issue “soon”).
CPSIA Casualty of the Week for October 27:
As this CPSIA Casualty of the Week illustrates, the CPSIA continues to wreak havoc in our marketplace. Congress and the CPSC need to address the problems with CPSIA implementation to help small businesses by restoring "common sense" to our nation's product safety laws.
Middleton, Wisconsin Police Department
Thanks to CPSIA, scared kids can no longer be given stuffed animals by police to comfort them
Police Switch To Handing Out Books To Children
Wisconsin media reported on October 12, 2009 that because of CPSIA, the Middleton, WI police department will no longer use stuffed animals to comfort children who have gone through traumatic events. Middleton Police Sgt Don Mueller said that the police for years could hand out stuffed animals or other toys to “help children feel a little better.” Now because of CPSIA, the police department is switching to books from stuffed animals “because of the chemicals they might contain….to make sure they're in compliance with new federal regulations.” As Sgt. Mueller puts it “[we] get older toys that come in and they're perfectly fine to give out, but we don't know if they were made under the new requirements." A much-needed comfort program has been converted into a misplaced literacy effort. (Editors note: Those books better be made after 1985. CPSC announced that “it cannot determine” if children’s books made before 1985 do not exceed the lead limit because of the ink and will issue guidance on this issue “soon”).
Do not accept the status quo! Tell Congress and the
CPSC to restore "common sense" to our nation's product safety laws.
Call CPSC and Congress.
Office of Chairman Inez Tenenbaum
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814
(301) 504-7900
Office of the Small Business Ombudsman
Office of the Small Business Ombudsman
U.S. CPSC
Washington, D.C. 20207
CPSIA Information (301) 504-7429
Tel. (888) 531-9070
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