With June’s arrival, there’s be an expected shift in the organization of the Consumer Product Safety Commission, with Nancy Nord, a Republican appointee, stepping down as acting chairman to be replaced by Thomas Moore, a Democratic nominee. Nord will stay on as a CPSC commissioner; her term runs through 2012.

One shouldn’t anticipate any great policy or regulatory changes from the administrative switch, which was required by the Consumer Product Safety Improvement Act. (Vice chairman becoming acting chairman, etc.) The chairman of multi-member regulatory boards like the CPSC has more personnel authority and can direct staff actions more easily than other members. Still, given the continued 1-1 split and the probable arrival this summer President Obama’s nominee, Inez Moore Tenenbaum, after her confirmation, the commission will just slog on. (AP story.)

There will be differences, to be sure. It’s hard to imagine Moore having asked the professional staff to write such a substantive response to the letter from Rep. John Dingell (D-MI) asking for details on implementation of the CPSIA. As chairman, Nord had the authority to ask for such a letter.

First as a Bush appointee and CPSC chairman, and then as acting chairman in 2009, Nord has suffered attacks by activist groups and others who unceasingly promote the expansion of the regulatory state. The calumnies from Capitol Hill for supposedly blocking effective application of the Consumer Product Safety Improvement Act were especially wrong and cynical; even Congress’ truest of true regulatory believers know the CPSIA is a legislative overreach and has caused terrible damage to businesses while depriving consumers of safe, desirable products.

Moore has served as acting chairman before, taking over the spot in November 2001. He’s been on the CPSC since 1995.

• Sarosota Herald-Tribune, “Consumer panel losing leader“
• The Palm Beach Post, with a scurrilous headline and misleading story, “Consumer safety chief resigns amid Chinese drywall scare.”

The Consumer Product Safety Commission voted 1-1 Wednesday to deny a petition from the National Association of Manufacturers and the CPSC Coalition for an emergency one-year stay in enforcement from the new tracking label mandate included in the immoderate Consumer Product Safety Improvement Act (CPSIA). The labeling requirements are set to quick in August 14, and they will be a nightmare to implement. Or an impossibility. Or an impossible nightmare.

From the petition:

Even if the Commission were to publish guidance on this new provision today, there would still be insufficient time for companies to implement this provision properly. Changes in product processes, including changes in labeling requirements for packaging and products, usually take at least a year in many sectors in order to ensure smooth execution. This process must begin at the design phase of the product, well before production takes place. Implementation of the new tracking label provision will necessitate legal reviews, compliance clearance, and training of supply chain partners. Moreover, many companies are already now ordering, planning, and costing production of goods that will be made in fall 2009 or later, meaning they are already making guesses about how the new labeling provision will be implemented. Should those guesses prove to be wrong when the Commission publishes guidance shortly before the August 14, 2009 implementation date, companies will have to scramble to rework labeling and packaging at significant cost. Electronic databases may need to be developed and tested to facilitate effective tracking, another aspect that will require significant time and resources in many industries.

And in yet another example of the CPSIA being disconnected from reality, the labeling requirements could apply to things like small toys, art materials or children’s jewelry.

This is actually a case where a stay of enforcement (see below) makes sense, because there’s not going to be a lot of legal liability or potential alternate enforcement if the CPSC allows a delay. Acting Chairman Nancy Nord voted yes, but Commissioner Thomas Moore voted no — apparently thinking that guidance could be written by August 14.

This is the first time the commissioners have split on votes about enforcement of the CPSIA. To which we say, FIX THE LAW.

For more on problems posed by the tracking label requirements, see the presentations from the CPSC sponsored forum held Tuesday in Washington.

Hugh Hewitt, law professor, blogger and radio talk show host, invited National Association of Manufacturers John Engler on the his program last night to talk about the Consumer Product Safety Improvement Act. (They continued on for a second segment about EPA regulation of greenhouse gases.)

Hewitt has taken the lead among radio hosts in highlighting the excesses of the Consumer Product Safety Commission. As radio topics go, it’s a natural: Government excess putting small business owners out of business, outdoor enthusiasts hit by the hammer of government regulation, children’s books being destroyed, and Congressional leadership pretending there’s not a problem.

The segment is available here as an audio file. The CPSIA segment starts at about 14:30 in, and we’ve taken the liberty of transcribing the interview.

HH: Let’s turn to the Consumer Product Safety Improvement Act. For many, many weeks now I’ve covered on the program using my expert, Gary Wolensky, who’s a lawyer with Snell & Wilmer, a series of interviews – and I’ve also had the Chairman, Nancy Nord, on the program – about the idiocy that is the Consumer Product Safety Improvement Act.

Over at the National Association of Manufacturers, you’ve got a great blog that covers this. Where are we with this? Are you making progress in getting the Congress to listen and fix this law?

ENGLER: You know, I think we’re making some progress with rank and file members of Congress. But this is one where the leadership has simply got to acknowledge they made a mistake. They botched the bill, and they’ve got to change it, and they’ve got to back off on some of this tight implementation. We’re not talking about putting people and kids at risk here. We’re saying that this is a regulatory scheme that’s so pervasive, and it’s right down to hitting mom and pop.

We had the big rally. You covered that and did a wonderful job. I mean, we had these companies – three, four people! … This is like going after the lady that bakes the pie for the VFW fish fry or the church social. Some of these products that we’re trying to regulate, it’s just overkill.

For the transcript of the full segment in .pdf, click here. The NAM’s Engler suggests Speaker Pelosi ask Rep. John Dingell (D-MI) to step in and solve the political and legal headache.

And thanks for saying nice things about Shopfloor, Hugh!

Commissioner Nancy Nord of the Consumer Product Safety Commission has voted down a petition from the ATV and motorcycle industry to be granted an exemption from the lead standards of the Consumer Product Safety Improvement Act.

Since the exemptions must be approved with two votes, no matter what the other commissioner, Thomas Moore,  does the petition is therefore rejected.

In a statement, Nord writes:

In considering exclusions, consumer safety must direct the outcome of our deliberations. Therefore, it is with extreme reluctance that I am voting today to deny the petition, filed by companies and associations representing the ATV and motorized bike industries, for an exclusion from the lead content limits found in Section 101 of the Consumer Product Safety Improvements Act (CPSIA). I do this because the clear language of the law requires this result, not because it advances consumer safety. To the contrary, application of the lead content mandates of the CPSIA to the products made by the petitioners may have the perverse effect of actually endangering children by forcing youth-sized vehicles off the market and resulting
in children riding the far more dangerous adult-sized ATV’s. 

However, as acting chairman of the CPSC, she has directed staff to stay enforcement for a year. The intention is laudable, to provide relief from an unreasonable and extremely expensive and disruptive law that could in fact endanger children if enforced.

But if you’re a off-road motorcyle manufacturer or retailer, do you take the risk that non-enforcement means no legal liability? Remember, the Consumer Product Safety Improvement Act allows state attorneys general to enforce the law. Nord’s statement says, “I hope that the state attorneys general will follow the
lead of the agency on this matter.” Not quite an iron-clad assurance. And if you sell a minibike and there happens to be an accident?

On Nord’s conclusion, we heartily agree: “All stakeholders-industry, users, Congress, and the Commission-need to come together to fix the statutory problems that have become so apparent, in a common sense approach that does not unnecessarily burden those regulated, yet provides safety for American families.”

UPDATE: The stay provides no comfort to the ATV and motorcycle industry, which issued a statement in response to Nord:

WASHINGTON–(BUSINESS WIRE)–The Coalition for Safe and Responsible ATV Use, the Motorcycle Industry Council, Inc. and the Specialty Vehicle Institute of America is disappointed that Consumer Product Safety Commission (CPSC) Acting Chairman Nancy Nord announced today that she intended to vote against the petition that our industry submitted for an exclusion for all-terrain vehicles (ATVs) motorcycles and snowmobiles from the lead content limits found in the Consumer Product Safety Improvement Act (CPSIA). We believe that the petition submitted to the agency was based on sound science and showed that there is no measurable risk to children resulting from lead exposure from these products.

Regarding a proposed stay of enforcement, we need to review the actual text of such a stay before we can comment. In addition, it is important to note that CPSC Commissioner Thomas Moore has not yet commented on the petition, nor do we know the position of the state attorneys general on this matter.

The conflict between Nord and Commissioner Nord continues. As AP reports:

In a statement, Moore said it takes the vote of both commissioners to stay enforcement of a congressionally mandated ban.

“I have not, as yet, finalized my decision,” said Moore. “It is premature for the press, or anyone else, to take the unprecedented release by one commissioner of their vote and statement prior to the due date of a vote, to assume that this will be the final agency action.”

Moore also chided Nord for disclosing how she will vote on the ATV issue before the voting period ends next week.

Can we please just fix the law?

Various developments on the front of the Consumer Product Safety Improvement ACT, and by front, we mean storm front of hurricane-force winds toppling small businesses, thrift stores, libraries and kids who like to ride dirt bikes:

Sen. Jim DeMint (R-SC) offered an amendment to the Senate budget resolution (S. Con. Res. 13) yesterday to try to ease the economic impact of the CPSIA. DeMint’s amendment, S. Amdt. 964, would have created “a deficit-neutral reserve fund to protect small and home businesses from the burdensome and impractical requirements of the Consumer Product Safety Improvement Act of 2008.” The amendment quickly failed, 39-58 (Roll Call vote) on an overwhelmingly partyline vote. Six Republicans voted no (Collins, Cornyn, Gregg, Johanns, McCain, Martinez); Democrats Mark Begich of Arizona, Kay Hagan of North Carolina, Amy Kloubuchar of Minnesota, and Ben Nelson of Nebraska voted yes.

Senator Nelson was interviewed this week by nationally syndicated radio host and lawyer Hugh Hewitt, who also spoke with Senator Lamar Alexander of Tennessee and Senator Jon Kyl of Arizona. He concluded all three interviews by asking about the CPSIA. (“CPSIA Update”)

The Senators expressed concern, but we infer that the issue has yet to reach the top 10 list of Congressional priorities. Thanks in any case to Hewitt, who calls the issue one of his hobby horses, “[Because] nobody else covers it, and I’m aware of what it’s done to off road vehicles and snowmobiles and pens and pencils, and children’s books and children’s shoes. It’s just destruction…”

Keep trying! It’s going to take more than an amendment to mitigate the impact or provide specific exemptions for one class of product (ATVs, books, children’s clothes). Hewitt takes the CPSC and Commissioners Nord and Moore to task for not granting exemptions for ATVs for lead content, but the law really is clear: No exemptions if any lead may be absorbed into the human body. ANY means ZERO.

As yesterday’s vote and sponsorships of other CPSIA-related bills show, this issue has unfortunately taken on some partisan overtones. It should not be partisan, at all. The Consumer Product Safety Improvement Acts passed with overwhelming bipartisan support and just a few nay votes last year, so partisan finger pointing gets no one anywhere. The people being hurt are not constituencies of just one party: There are Republicans and Democrats who read pre-1985 children’s books, shop at Goodwill, operate home-based businesses, ride ATVs, sew children’s clothing, and on and on and on.

Senator Jon Tester, a Democrat, introduced a bill (S. 608) to exempt ATVs because his Montana constituents and their children ride ATVs for recreation or work on the ranch. So did his Montana House counterpart, Rep. Denny Rehberg, a Republican. (H.R. 1587, with 25 cosponsors of both parties.)

A bigger legislative fix is needed. The problem is not the CPSC staff or commissioners, or the fact that three-member commission is one short and so lacks a majority. The commissioners and the staff’s hands are tied by the law, which includes onerous provisions like retroactive applicability, forcing the removal of billions of dollars of inventories that were perfectly safe a year ago. Commissioners are following the law.

So let’s take a step back from the 2008 legislative process that was heavily influenced by the Chinese lead toy outbreak and legitimate public fears that cast too wide of net. The result was legislative overreach, and the answer now is to  Amend the CPSIA.

UPDATE: Walter Olson at Overlawyered has more, “Senate rejects CPSIA reform on budget vote, 39-58.” He also did a better job reading the roll call than we did, so our list of yeas and nays has been corrected above.

The Wall Street Journal editorializes, “Toys R Congress“:

Last year’s Consumer Product Safety Improvement Act was supposed to make children safer by reducing the risk of lead poisoning in toys. Instead, the new law has become a case study in how hastily written regulation can club the economy and reduce consumer safety.

This bill was passed by wide margins in Congress and signed into law by President Bush in the aftermath of the controversy over lead paint in imported toys from China. The new law, which took effect in February, establishes strict limits on lead levels in products for children. Never mind that in 2008 only one American child was injured from lead poisoning from toys.

The Wall Street Journal today covers the letter from Nancy Nord, acting chairman of the Consumer Product Safety Commission, to President Obama asking him to appoint a new chairman of the commission. (See earlier post.) The three-member commission has a vacancy, and is now split between Nord — a Republican Bush appointee — and Thomas Moore, a Democrat appointed by Clinton and reappointed by Bush.

The WSJ elicited a White House comment in reaction to Nord’s letter, although it’s not a substantive response. From “Obama Urged to Fill Product-Safety Post as Complaints Mount“:

A White House spokesman said: “We are moving ahead in an aggressive fashion on a whole array of issues. When it comes to staffing, we are remarkably ahead of where previous administrations were at this point.” He declined to comment on the specifics of Ms. Nord’s letter.

Criminy and cripes. What a narrow political remark.

Who cares about previous administrations? There are people who are losing their livelihoods, billions of dollars of products being kept off the market, destroyed or sequestered, and consumers denied access to toys, children’s clothing, used books and many other desired and necessary prodcuts. The Consumer Product Safety Improvement Act is a jobs-destroying disaster. Let’s get moving ahead in an aggressive fashion on THAT issue, and let the rest of the whole array sort itself out.

For more on the law, see these “CPSIA Update” posts.

Nancy Nord, the acting chairman of the U.S. Consumer Products Safety Commission, today wrote President Obama asking him to name a nominee to chair the CPSC.  (.pdf copy of letter)

It’s unusual for any chairman, acting or otherwise, to request being replaced, and the move may look a little like political jujitsu. Still,  the difficulties in implementing the Consumer Product Safety Improvement Act lend Nord’s request legitimacy.

Considering Democrats and committee chairmen like Rep. Henry Waxman (D-CA) and Sen. Mark Pryor (D-AR) have called on the President to replace Nord, it seems we have a political consensus. (See February 4th Congressional letter.)

And, with grassroots protest and media focus increasing on the economic disaster that is the CPSIA, the President will surely feel pressure to act and act soon.

Letter follows:

Dear Mr. President:

I join a number of others in respectfully requesting you to name a nominee to chair the Consumer Product Safety Commission (CPSC).

For nearly three years, there has been a vacancy at the commission, leaving just two commissioners to vote on policy decisions. The addition of a third vote, hopefully, will streamline the process of lengthy staff discussions and negotiations currently required to reach the unanimity needed to advance the agency’s safety mission.

A new chairman will face a number of daunting challenges, the most pressing of which will be the implementation of the Consumer Product Safety Improvement Act (CPSIA). I welcome many of the new tools that the CPSIA provides the agency, as well as the needed modernizations to the statutes administered by the CPSC (some of which were first laid out in my PRISM proposal presented to the Senate Commerce Committee in July, 2007). Although well-intentioned, the CPSIA retroactively imposes expensive testing and burdensome content requirements – even on products that everyone agrees pose little or no safety risk. (continue reading…)

Senator Dick Durbin (D-IL) sent a letter on March 27 to Nancy Nord, acting chairman of the Consumer Product Safety Commission, blasting her for being critical of the Consumer Product Safety Improvement Act.

From his news release highlighting the letter, “Durbin Blasts CPSC Chair for Recent Comments on Criticizing New Consumer Safety Laws.”

“Recent comments you have made in the press and in letters to Congress regarding the Consumer Product Safety Improvement Act (CPSIA) show your continued resistance to modernizing your agency and addressing the genuine public concern over unsafe products,” Durbin wrote. You accused a law that significantly strengthens the Commission’s hand as having “taken away our responsibility to look at the risks and make judgments about what is or isn’t safe for American consumers.” You have also agreed with the appalling implication that the law is responsible for the deaths and serious injuries of children who ride adult ATVs and motorbikes. Noticeably absent from the majority of your public remarks is an emphasis on protecting consumer safety, which happens to be the mission of the agency you lead. Your recent comments make clear that your misguided personal views have not changed, even if they contradict the mission of the agency that you lead and the President that you now serve.”

Nord is a Bush appointee and has been a target for several Congressional Democrats and “consumer activists” who pushed for more restrictive, intrusive and expansive regulations in passing the CPSIA last year. We’re not naive about the partisan politics here, and if need be, blast away.

But it’s not Nord, it’s the professional staff of the Consumer Product Safety Commission that outlined the practical impossibility of the agency meeting the demands of the CPSIA. It’s the career, professional, nonpartisan staff that wrote the 21-page letter to Rep. John Dingell (D-MI), asserting the law’s demands have “severely overstretched the agency staff and has begun resulting in delays in implementation that will continue until we are able to fully hire and otherwise maximize the resources that have just been provided to the agency for the second half of fiscal year 2009.” It’s the professional staff that detailed the serious difficulties and major costs that the law has caused manufacturers, retailers, thrift stores and booksellers.

And it’s not political appointees who offer views like these, reacting to the law’s ban of children’s mini-bikes and off-road motorcycles. From the Temecula Valley News, California:

I thought that [the ban] wouldn’t be good,” said Hunter Rastavan, 11, of Lake Elsinore. There’s a lot of people in this sport, all the kids out there on minibikes, and it wouldn’t be fair ’cause everybody wants to ride.”

Marcus Gaffner, 10, of Temecula, said sadly, “When I heard about the ban it made me feel really bad that I couldn’t get a new 85cc bike. I’m outgrowing my 65cc bike. Isn’t this about Chinese products and not American or European products anyway?”

Austin Madigan, 8, of Temecula, stated, “I don’t think that it’s fair that as my parts wear out I won’t be able to get any more. Then I can’t ride. It ruins the sport.

“We’d have to skip up to a 250cc bike for me to ride and that’s not safe. I’m not big enough yet for that size bike, but our family has discussed it anyway.”

That’s the little picture, literally. Here’s the big picture, from the Motorcycle Industry Council, “CPSIA Ban On Youth Powersports Vehicles Could Cost Industry $1 Billion Annually“:

The projected loss is based on 2008-estimated value of the retail marketplace* for ATVs and off-highway motorcycles and factors out vehicles and related economic value not included as part of the ban. MIC projects that the estimated value of the retail marketplace related to all youth ATVs and off-highway motorcycles exceeds $1.5 billion, but the ban applies only to products that are intended primarily for youth aged 12 and under. Powersports companies have stopped selling affected youth products with lead content in excess of the limits identified in the Consumer Product Safety Improvement Act that went into force February 10.

“The potential losses for the powersports industry are massive at a time when this country cannot afford additional economic losses,” said Paul Vitrano, general counsel for MIC and SVIA. “With these vehicles sitting in warehouses instead of on showroom floors, the related sales of most protective gear, accessories, and parts and services are virtually non-existent. Thousands of small businesses across America are impacted by this ban.”

There’s nothing partisan or political in the views of the children or the industry association, and they deserve a serious response.

Last Friday’s schedule of the House activities for the week ahead, part of the Congressional Record’s Daily Digest, included this subcommittee hearing for Wednesday:

Committee on Appropriations, March 25, Subcommittee on Financial Services, and General Government, on U.S. Consumer Product Safety Commission, 10 a.m., 2220 Rayburn.

But today the hearing’s not listed on the committee website. A phone call to the committee confirms the hearing is no longer taking place Wednesday and no substitute date has been picked.

Which allows to again refer to the outstanding report from the professional staff of the CPSC, responding to questions from Rep. John Dingell about the implementation of the Consumer Product Safety Improvement Act. Posted on the CPSC’s website Friday as part of a communication from Acting Chairman Nancy Nord, the document contains an extensive discussion of the many additional duties placed on the agency staff. It would be a worthy item of committee review. From page 1-2 of the March 20th memo:

[Issues] related to the accreditations of laboratories and the increasing number of requests for exclusions from the Act’s provisions have caused unanticipated additional demands on staff resources, at the same time that the staff has been implementing the Virginia Graeme Baker Pool and Spa Safety Act (which became effective in December 2008), and the Children’s Gasoline Burn Prevention Act (which became effective in January 2009). This has severely overstretched the agency staff and has begun resulting in delays in implementation that will continue until we are able to fully hire and otherwise maximize the resources that have just been provided to the agency for the second half of fiscal year 2009.

(continue reading…)

Commissioner Thomas Moore of the Consumer Product Safety Commission on Friday submitted his own, separate letter in response to Rep. John Dingell’s request for information on the Consumer Product Safety Improvement Act’s implementation. Moore, a Democratic appointee, did not join in signing the letter sent by Acting Commission Chairman Nancy Nord, a Republican.

Obviously, politics is at play. The CPSC is now split 1-1, with a vacancy for the third, Democratic appointee. Now that we see Moore’s letter, we’d guess Nord asked him to sign a joint letter and he declined. (See earlier post on Nord and the staff’s response.)

Unfortunately, Moore’s letter lacks the value of Nord’s communication, or rather, her submission of a 20-page, detailed assessment by the professional staff of the CPSIA’s critical flaws. His letter reads as if it were designed primarily for political self-preservation and to serve the purposes of Moore’s patrons on Capitol Hill. Bureaucratic CYA, in other words. For example:

[I] think that when the agency gets the third Commissioner we will be better able to address some of the concerns voiced by staff and by industry. Until then any legislative “fixes” are premature. Only the Commission should recommend what, if any, changes should be made to the CPSIA and no assumptions should be made that there are no other solutions than legislative ones until all three Commissioners have a voice in the matter.

Moore letter does not acknowledge the main issue: The CPSIA is a dismal failure, causing tremendous economic harm, destroying businesses and harming consumers. He’s telling small business owners, retailers, manufacturers, consumers, people forced to discard inventories, etc., that the CPSC will address their concerns soon enough, maybe, if the agency ever gets a chairman.

Billions of dollars being wasted but there’s no need for a legislative fix? That’s just not a serious response.

The text of the letter follows:

Dear Chairman Dingell:

Thank you for your letter of March4, 2009, regarding the Commission’s implementation of the Consumer Product Safety Improvement Act of 2008 (CPSIA).

Nearly two years ago I stated that the CPSC was at a crossroads. We would either get more funding and more staff or we would continue a decline that would eventually result in the agency ceasing to be an effective force in consumer safety. At that same time, wave after wave of press stories about hazardous products that the agency hard purportedly not acted on in a timely manner were appearing and recall after recall involving lead were being announced. In response, Congress, and the citizens it represented, decided that not only should the agency survive but it should regain its lost stature. (continue reading…)