Keen review by CPSIA-reform advocate Rick Woldenberg of yesterday’s Senate Commerce confirmation hearing for CPSC-nominee Inez Tenenbaum. He notes her general engagement and the positive tone of the hearing, some of her bobbles which one can attribute to still getting up to speed, and the frequent invoking by the nominee and committee members of the term “common sense.” Rick hopes it’s “code for an acknowledgement that the legislative scheme needs to be fixed.” We hope it’s code for “common sense.”
Rick also notes Tenenbaum’s references to the power of “guidance.” To wit:
Another worry: Ms. Tenenbaum’s apparent conviction that many problems under the CPSIA will be resolved with more guidance and the issuance of final regulations. Perhaps some issues can be resolved that way but most won’t, like tracking labels, resale shops’ legal liability under the new law, the cost of safety testing, the need to self-report for every conceivable violation of the law and the confusing state of competing regulatory agencies (CPSC versus 50 SAGs). Interestingly, Ms. Tenenbaum stated that the stays were “working” and that fewer stays will be necessary as new guidance is issued. I hope the subject of how well stays are working is on her investigative agenda when she starts her new job.
I would further note my longstanding concern that the new regulatory scheme is so complex (and therefore inherently difficult to administer) that it cannot be effectively taught. Under these circumstances, it is predictable that most if not all companies will be routinely violating the law. In other words, regulators will have their choice of enforcement actions with almost every company making children’s products. This might result in a rather coercive situation if the CPSC shows up on your doorstep. If the agency defaults to handing out big penalties for all those violations, many people will vote with their feet by leaving the industry before it happens to them (this is already happening). If the CPSC chooses to not enforce the law or to selectively enforce it, respect for the law will be damaged and an uneven and unfair administration of the law will result, a very unstable situation. Given these problems, it is absolutely necessary that the law be changed to something that can be enforced – comfortably for all concerned.
Which brings us back to common sense. Tennessee home schooler, businesswoman and thoughtful observer of the CPSIA issue, Catherine Jaime, makes this point in a comment to our post about Sen. Hutchison’s views:
I was concerned by her “need for ‘common sense’ when it comes to enforcement”! That sounds way too subjective to me. The law needs to be clear what we can and cannot do. “Common sense” enforcement leaves too much discretion in the hands of state Attorney Generals and lawyers (not a good idea!)
If we have a LAW that is written with common sense, the common sense part of enforcement will be taken care of.
Clarity, predictability, consistency of application — sounds like the rule of law.
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