The American Apparel and Footwear Association sent out the following request to the thousands of affected companies and individuals concerned about Congress' inaction on the CPSIA. Please show your support by sending in an email in support of ECADA (the pending CPSIA Amendment in the House Energy and Commerce Committee).
Thank you!
"Hi. At some point over the past few years, you have contacted Congress to urge relief from the crushing burdens of the Consumer Product Safety Improvement Act (CPSIA) using the legislative action center that we host on the AAFA website. Your advocacy has proved critical in raising Congressional awareness of the many problems that have characterized the CPSIA so far.
But we still need your help. Urgently!
A key House committee is currently considering amendments to the CPSIA that would provide relief in a number of areas, including testing, inaccessibility for phthalates, very small business, used products, ATVs and bikes, and retroactive application of the lead rules.
This amendment (H.R. 1939) will make our product safety system operate smarter while making sure that small businesses and other product safety stakeholders don’t get smothered in stifling regulations, extraordinary testing costs, and burdensome paperwork. We can’t let serious product safety risks be ignored while we endlessly test safe products and drive companies out of the children’s product business.
This amendment will not be considered unless Members of Congress hear from their constituents – you and your neighbors – demanding immediate action.
Help us bring commonsense back to our product safety rules.
Time for action is now. Your voice matters.
Please take a moment and send an email to your elected House and Senate members urging them to swiftly pass an amendment to the CPSIA. Please urge your family and friends to contact Congress.
Click here to make your voice heard and help get action on this important issue.
Thanks.
Steve Lamar
Executive Vice President
American Apparel and Footwear Association
Please see below some important resources:
- Copy of NAM ad that appeared in the Hill Newspaper urging action
- Op-Ed by Product Safety Expert Eric Stone describing the CPSIA Amendment
- Editorial from The Wall Street Journal
- Read ECADA"
Sunday, July 24, 2011
Thursday, July 21, 2011
CPSIA - The CPSC Finds a New Way to Scr*w You
The banal and almost unnoticed adoption of ASTM F963 as a mandatory standard at the July 20th Commission meeting seems so innocuous. Is it, really?
Commissioner Nancy Nord points out that this decision was a compromise of a Hobson's Choice nature:
"I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change."
What was that last bit?
Ummm, well, the ASTM is actually updating the F963 standard right now. It will be done by year end. and as a result of the CPSC's wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 - and probably necessary to test to the new standard, too! Doesn't that sound great?! Now you can deliver TWO test reports when one might have sufficed. But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one. Just think of it . . . .
Ms. Nord explains:
"When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating."
I no longer have a sense of humor, so you can rest assured that I am NOT making this up.
Why the heck was the Commission in such a big, hot hurry to get this done? Again, Ms. Nord explains:
"We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays."
Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn't want to vote for any more stays? So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery. The Dems on the Commission almost always vote as a pack. Can you connect the dots?
Not surprisingly, Nancy Nord can connect dots:
"However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button."
Another Commission decision, another shellacking of the poor fools left serving children's markets. After three years of this torture, I am just not surprised. When will our country wake up and notice this travesty?
Commissioner Nancy Nord points out that this decision was a compromise of a Hobson's Choice nature:
"I joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011. Had we not reached this compromise, the testing requirement would have landed in the market’s lap in mid-October, just as stores are making their final preparations for the holiday season and small toy manufacturers are at the peak of filling orders. While I am relieved that companies will now have some time to find their way through the maze we have created, I have major concerns about why we are rushing to impose testing requirements to a standard we know is about to change."
What was that last bit?
Ummm, well, the ASTM is actually updating the F963 standard right now. It will be done by year end. and as a result of the CPSC's wondrous action this week, it will be a mandatory rule to test to an obsolete standard on January 1, 2012 - and probably necessary to test to the new standard, too! Doesn't that sound great?! Now you can deliver TWO test reports when one might have sufficed. But think of how much safer kids will be if you produce two almost identical passing test reports rather than just one. Just think of it . . . .
Ms. Nord explains:
"When the stay of enforcement is lifted on January 1, 2012, most likely we will be requiring testing to an outdated standard. This puts manufacturers and retailers potentially in the situation of having to do redundant or perhaps irrelevant testing – testing mandated by the CPSC to the old standard and testing mandated by the marketplace to the new standard. Because we are taking the position that these testing requirements are rules and can only be changed (after August, 2011) by notice and comment rulemaking, there is virtually no way to get the new notice of requirements in place and labs accredited before the standard becomes effective. This puts toy manufacturers in an untenable position. Our response is that we will address these problems as they come up but, of course, in the real world, this is no response at all to the potential for confusion we are creating."
I no longer have a sense of humor, so you can rest assured that I am NOT making this up.
Why the heck was the Commission in such a big, hot hurry to get this done? Again, Ms. Nord explains:
"We are able to issue this NOR [notice of requirements] without following the Administrative Procedures Act (APA), with its notice and comment requirement, because the CPSIA allows avoiding the APA until August 14, 2011. After that, we must ask for and consider public input. Therefore, by putting out the NOR today, (1) we did not need to ask for and consider public comment, but (2) we did need to stay enforcement to prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays."
Does anyone remember that Bob Adler has said publicly at several Commission meetings and hearings that he hates stays and doesn't want to vote for any more stays? So this vote avoids a public hearing and public comment (takes time, increases scrutiny, can limited flexibility) and it also avoids another stay process to extend this misery. The Dems on the Commission almost always vote as a pack. Can you connect the dots?
Not surprisingly, Nancy Nord can connect dots:
"However, if we waited, as sound regulatory policy would direct, we would have had to seek comments from the public. Apparently this public input process is too much of a burden for the agency, so if we have the opportunity to skirt the requirement we are more than happy to do that. Like a teenager with dad’s car keys, we want to squeeze in as much joy-riding as we can before the curfew hits. Our hasty decision does not achieve a net safety benefit, but it unfortunately does make things much more difficult than they need to be for the companies that are trying to understand and follow the law. . . . With its vote today, the CPSC has once again opted for rash action over rational action, to the quick and easy over the thoughtful and transparent. We know how to do better rulemaking; unfortunately, the majority today decided to push the ‘quick’ button instead of the ‘pause and think’ button."
Another Commission decision, another shellacking of the poor fools left serving children's markets. After three years of this torture, I am just not surprised. When will our country wake up and notice this travesty?
CPSIA - What Exactly Happened at the July 20th CPSC Commission Meeting?
What happened on July 20th at the CPSC Commission hearing? I wish I knew. We must rely on a BNA article and gossip from those who were present or happened to be wasting their morning watching the spectacle live online. Apparently Inez Tenenbaum made some blanket statements rejecting the President's Executive Order of July 11 relating to cost-benefit analysis of provisions of the CPSIA.
Of course, how would I know what she said? The video at the Sunshine State of the CPSC is not available to me. Two days later . . . . Hmmm. Do you think they are waiting for me to forget about it???
While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things. First, BNA in an article entitled "CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity" dated July 20 quoted Ms. T as follows:
"And in a July 20 public meeting on the agency's priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. 'To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed.' She said CPSC has committed to conducting a retrospective review of its regulations, per Obama's Executive Order, and 'we will begin our retrospective review and we will solicit comment.'" [Emphasis added]
Fiction, eh? Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard:
"Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors." [Emphasis added]
Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a "regulation" but is instead a "statutory mandate". There is no such thing as a "mandate" in this context from a legal point of view. See the definition of "mandate". Essentially, what the regulators are referring to as a "mandate" is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.
[It's okay, let it out. I just doubled over in laughter myself.]
What DID Congress tell the CPSC to do about 100 ppm in the CPSIA? The law instructs the CPSC as follows:
Section 101(a)(2)(C): "100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products."
Section 101(a)(2)(D): "ALTERNATE REDUCTION OF LIMIT.—If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act."
Section 101(e): "PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section."
[Emphasis added] Section 101(e) refers to the process that just concluded as a "rulemaking proceeding". I don't know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me. This is not a direction to reach a particular conclusion - if it is a "mandate" at all, it is a "mandate" to go through a classic regulatory process. Read the instructions yourself, it's right there.
President Obama's Executive Order reads as follows (in relevant part):
"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows: Executive Order 13563 of January 18, 2011, 'Improving Regulation and Regulatory Review,' directed to executive agencies, was meant to produce a regulatory system that protects 'public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.' Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well." [Emphasis added]
Ms. T interpreted the words "to the extent permitted by law" as "to remain true to their statutory mandates". Ms. T, a lawyer, is blatantly wrong, laughably so. Unfortunately, it's not funny.
Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA. Of course, you know I think that's a bunch of bunk. The President's Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her. I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.
Does the CPSIA mention "cost-benefit" anywhere? I am glad you asked . . . . The CPSIA uses the term "cost-benefit" only once (outside of the Table of Contents):
"SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970. Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.'"
If Congress was so concerned that cost-benefit should never apply to these provisions, why didn't they say it? They weren't silent on cost-benefit - Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970. But as it relates to lead and phthalates, Congress was silent on cost-benefit. Why might they have been silent? Perhaps the authors of the law believed it was an illegal provision as applied to these rules. Perhaps the Dems behind the law felt the CPSIA wouldn't pass if such an obnoxious term were included in this critical part of the law. Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn't write themselves.
As this week's WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore. They can run rampant over our laws, our companies, our markets, our jobs, our lives. They are the law, they are the judges, they are the jury. They know what's best for us, and no public hearings are going to change their minds.
Oops, make that no Presidential Executive Order will change their minds . . . .
Of course, how would I know what she said? The video at the Sunshine State of the CPSC is not available to me. Two days later . . . . Hmmm. Do you think they are waiting for me to forget about it???
While I cannot tell you exactly what Ms. Tenenbaum said during the meeting (yet), I do know a couple things. First, BNA in an article entitled "CPSIA: Discord Between CPSC Commissioners Comes to Head but Fails to Halt Productivity" dated July 20 quoted Ms. T as follows:
"And in a July 20 public meeting on the agency's priorities for 2013, Tenenbaum felt the need to say to Northup and other critics of the commission that the rules under the CPSIA are exempt from cost/benefit analyses, and therefore the agency is not required do them. 'To have this fiction that we are required to do cost/benefit analysis under CPSIA cannot go unaddressed.' She said CPSC has committed to conducting a retrospective review of its regulations, per Obama's Executive Order, and 'we will begin our retrospective review and we will solicit comment.'" [Emphasis added]
Fiction, eh? Ms. T also made the same point in her statement on the newly adopted 100 ppm lead standard:
"Despite our clear and strict statutory instructions on this issue, some of my colleagues have raised a concern that the Commission’s actions run contrary to an Executive Order issued by President Barack Obama on July 11, 2011. Their position is not correct. In that Order, the President has asked independent agencies, to the extent permitted by law, to make decisions only after taking into account several considerations, but also to remain true to their statutory mandates. I am confident that the Commission has met and exceeded its mandate under the CPSIA. As such, the decision reached by the Commission today is consistent with the President’s Executive Order, because we have followed the law as mandated in the CPSIA, and as clearly intended by its Congressional authors." [Emphasis added]
Ms. T seems to be saying that the agency was not permitted to follow the Executive Order because this setting of standards is not a "regulation" but is instead a "statutory mandate". There is no such thing as a "mandate" in this context from a legal point of view. See the definition of "mandate". Essentially, what the regulators are referring to as a "mandate" is the directive by Congress to take certain steps and exercise judgment coupled with a public inquiry process, meaning that it must be a well-informed process taking into account the feedback of interested stakeholders.
[It's okay, let it out. I just doubled over in laughter myself.]
What DID Congress tell the CPSC to do about 100 ppm in the CPSIA? The law instructs the CPSC as follows:
Section 101(a)(2)(C): "100 PARTS PER MILLION.—Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after the date of enactment of this Act, subparagraph (B) shall be applied by substituting ‘100 parts per million’ for ‘300 parts per million’ unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products."
Section 101(a)(2)(D): "ALTERNATE REDUCTION OF LIMIT.—If the Commission determines under subparagraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commission shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Commission determines to be technologically feasible to achieve for that product or product category. The amount of lead established by the Commission under the preceding sentence shall be substituted for the 300 parts per million limit under subparagraph (B) beginning on the date that is 3 years after the date of enactment of this Act."
Section 101(e): "PENDING RULEMAKING PROCEEDINGS TO HAVE NO EFFECT— The pendency of a rulemaking proceeding to consider— (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility . . . shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section."
[Emphasis added] Section 101(e) refers to the process that just concluded as a "rulemaking proceeding". I don't know how you feel about this, but this section of the CPSIA sure sounds like an instruction to administer a rulemaking proceeding to me. This is not a direction to reach a particular conclusion - if it is a "mandate" at all, it is a "mandate" to go through a classic regulatory process. Read the instructions yourself, it's right there.
President Obama's Executive Order reads as follows (in relevant part):
"By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows: Executive Order 13563 of January 18, 2011, 'Improving Regulation and Regulatory Review,' directed to executive agencies, was meant to produce a regulatory system that protects 'public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.' Independent regulatory agencies, no less than executive agencies, should promote that goal. . . . Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well." [Emphasis added]
Ms. T interpreted the words "to the extent permitted by law" as "to remain true to their statutory mandates". Ms. T, a lawyer, is blatantly wrong, laughably so. Unfortunately, it's not funny.
Ms. Tenenbaum has taken the position that cost-benefit analysis is not relevant to the CPSIA. Of course, you know I think that's a bunch of bunk. The President's Executive Order is plainly applicable to this rulemaking process and Tenenbaum may be daring you or me to sue her. I would like to point out, however, that when rules of legislative interpretation are applied to the CPSIA, her shoddy legal conclusions look even worse.
Does the CPSIA mention "cost-benefit" anywhere? I am glad you asked . . . . The CPSIA uses the term "cost-benefit" only once (outside of the Table of Contents):
"SEC. 233. COST-BENEFIT ANALYSIS UNDER THE POISON PREVENTION PACKAGING ACT OF 1970. Section 3 of the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1472) is amended by adding at the end thereof the following: ‘(e) Nothing in this Act shall be construed to require the Consumer Product Safety Commission, in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such standard.'"
If Congress was so concerned that cost-benefit should never apply to these provisions, why didn't they say it? They weren't silent on cost-benefit - Congress thought enough of the issue to mention it in context of the Poison Prevention Packaging Act of 1970. But as it relates to lead and phthalates, Congress was silent on cost-benefit. Why might they have been silent? Perhaps the authors of the law believed it was an illegal provision as applied to these rules. Perhaps the Dems behind the law felt the CPSIA wouldn't pass if such an obnoxious term were included in this critical part of the law. Perhaps those people figured no one would call their bluff, and that later, politically-aligned appointees would simply make up the law the authors couldn't write themselves.
As this week's WSJ Editorial implies, we are powerless to stop Tenenbaum, Adler and Moore. They can run rampant over our laws, our companies, our markets, our jobs, our lives. They are the law, they are the judges, they are the jury. They know what's best for us, and no public hearings are going to change their minds.
Oops, make that no Presidential Executive Order will change their minds . . . .
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