CPSC Registry Launch Could Hurt Those It Was Meant To Help

Under administrative authority and without agreement from the Commission, the Consumer Product Safety Commission has implemented procedures under which small batch manufactures can register to utilize an alternative testing requirement or exemption from third party testing and certification. In doing so, the agency has inappropriately made a unilateral policy decision to publish the business name, city and state of any small batch registrant who cannot prove that the publication would disclose confidential business information.

Congress, in an effort to prevent small business closures and the accompanying financial hardship to business owners and their employees who would be affected by CPSC’s third-party testing requirement, directed the CPSC to provide small batch manufactures with either alternative testing requirements or a complete exemption from third party testing and certification.

In order to register as a small batch manufacturer under the law, a business must make no more than $1 million in total gross revenues from the sale of all consumer products, and must make no more than 7,500 units of the registered product. The revenue and production data of businesses identified as having registered would therefore also be made public. Given the nature of these small businesses, it is unrealistic to expect their owners to possess the legal knowledge necessary to provide evidence and argument establishing the confidentiality of their revenue and production data.

The administrative decision by the CPSC to publish the business information of small batch manufactures on www.SaferProducts.gov may end up hurting many of the organizations and manufacturers that Congress intended to help. Such companies could be subject to potential negative advertising from larger competitors claiming that the failure to third-party test makes the products less reliably safe. In addition, the same consumer groups who have long pushed for third-party testing may also wish to more widely disseminate the names of manufacturers whose products are not third-party tested, to their competitive disadvantage. Smaller companies can also have greater difficulty placing their products with retailers; so exposing a business’ low revenue threshold could reduce its sales opportunities.

Finally, a small company with a successful product may not wish potential competitors to know that its size makes it an easy target for lower cost competition or a hostile takeover. Companies’ aware of these issues could well choose not to register in order to avoid the competitive harm that may result. It is impossible to imagine that Congress meant to imperil small batch manufacturers who take advantage of this exemption.

Stay No More

As many of you are aware, on December 31, 2011, the CPSC will lift its stay of enforcement on the requirement that most children’s products be third-party tested and certified for compliance with lead, phthalates and/or ASTM F 963 toy safety standards.

As a result, over three years after passage of the CPSIA, children’s product manufacturers and importers will begin to bear the greatest burden imposed by the Act. As I have argued in the past, it has become increasingly clear to most that third-party testing will impose enormous costs without a proportionate justifying benefit, and that the CPSC’s exercise of new enforcement authority and cooperation with the U.S. Customs and Border Patrol (CBP) is a better and more cost-effective approach to ensuring the safety of children’s products sold in the United States.

I want to share with you a recent article I wrote for the BNA Toxics Law Reporter entitled, “The Best Approach to Ensuring the Safety of Children’s Products Sold in the United States.” I hope you find it both interesting and insightful.

Los Angeles Port Tour

Last week, I had the privilege of visiting our country's largest port in Los Angeles to see first-hand some of the new and exciting technologies that our ports are using to ensure our safety. It is nice to know that the CPSC is benefiting from the port's use of cutting edge technology to protect American consumers from unsafe products.

During my visit to Los Angeles, I was able to take some photos that show much of the work that is being conducting at our ports on a daily basis. I hope you enjoy them.

CPSC Flushes Safety Down The Pool Drain

In a remarkable reversal, a 3-2 majority of the Consumer Product Safety Commission voted today to reinterpret the phrase “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB Act) to no longer permit the use of unblockable drain covers to protect against entrapment in public pools using single drain systems. As a result, cash strapped schools, municipalities, community pool organizations and others will be required to install an expensive and less protective back-up system.

The Commission’s original interpretation was based on the recommendation by its career technical experts that a $40 unblockable drain cover provides better protection against entrapment and drowning than does a $1000 – the least expensive and therefore most popular – back-up device, a safety vacuum release system (SVRS). According to Commission staff, unblockable drain covers prevent an entrapment before it happens, whereas an SVRS kicks in 4 seconds after a drain is blocked. As a result, a child playing in a pool without an unblockable drain cover can be eviscerated, or inextricably trapped by hair or a limb and drown before the SVRS turns off the pump. Even the SVRS manufacturer acknowledges this limitation in its product.

Commission staff has not changed its position that unblockable drain covers are safer than an SVRS, and did not recommend any change to the Commission’s interpretation. Since the Commission’s original interpretation, there have been no entrapment incidents that raise any concerns about the effectiveness of unblockable drain covers. In addition, despite receiving extensive public comment on the question before issuing its original interpretation, the Commission majority refused to hold any public hearing or solicit any public input on its reinterpretation.

The sole reason for the Commission’s decision is that a single Commissioner – Bob Adler – has changed his “legal interpretation” of the VGB Act. He claims to have done so based on two meetings with Debbie Wasserman Schultz, who sponsored the legislation. But the legislation was co-written by Vac-Alert Industries President Paul Pennington, whose company manufacturers an SVRS and will profit richly from the new mandate to use a back-up system.

Vac-Alert hits the jackpot, but what of the losses suffered by the public? For those pools that can afford it, thousands of dollars in unnecessary equipment will be purchased at taxpayer expense. But for those localities that don’t have the resources, pools will be opened late or closed permanently, potentially adding to nationwide drowning statistics by reducing the availability of swimming lessons. Finally, families will again be exposed to the risk of drain entrapment drowning and evisceration, which in the cruelest of ironies, was the cause of death of Virginia Graeme Baker, after whom the VGB Act was named.

Drain on the Economy

On September 28th, the CPSC is scheduled to revoke its previous interpretation of “unblockable drain” under the Virginia Graeme Baker Pool and Spa Safety Act (VGB), resulting in costly new requirements for community pools and spas throughout the country. Earlier this week I shared with you just a few of the letters I have received from businesses and stakeholders who will negatively be affected by this change---all with no safety benefit to consumers. To date, we continue to receive more letters and more information regarding the revocation. I remain hopeful that the Majority will listen to these comments and allow facts and reason to guide their decision.

Recently, Pool & Spa News published an article entitled "New Drain Ruling May be Imposed" which provides the industry’s perspective on the issue. Dick Nichols, president of Genie Pool and Spa Service in San Jose, Calif, said in an interview that he doesn't "know what it is they're trying to accomplish, but this whole thing has been the most ludicrous waste of people's money I think i've ever seen in my 35 years in the business." Well Mr. Nichols, I couldn't agree more.

Spreading The Word

Here are two unsolicited letters we received opposing the recovation of our previous interpretive rule on pool and spa drains. These letters make it clear that the CPSC would have received relevant information on this issue if we simply had placed the revocation up for public comment.

In particular, the unblockable drain cover manufacturer and the CPS both talk about new products that ensure the drain cannot be removed through the use of more and stronger fasteners and sturdier materials. To illustrate this point further, the removability of the covers was a principal argument put forth by consumer groups and repeated by one Commissioner in opposition to the original interpretation.

Had we put the issue up for public comment, we would have learned some of the valuable information provided by Ms. Snow, as well as NSPF’s important points, in time to take them into account.

NSPF Recommendation to CPSC - Revocation of Unblockable Pool Drains

Bonnie Snow Letter to CPSC

Troy,

You know that we designed the BeeSafe System to be the best, safest solution for all of the entrapment hazards in swimming pools. We even attempt to eliminate the problem of covers coming off by using lock tite on the stainless steel screws to eliminate vibration loosening the screws of the lid. The CPSC panel only saw our product and while not unanimous their vote favored allowing our product as a stand alone solution. If the issue now is the possibility of the cover coming off then I have a better solution than adding a back-up. This would be to use the Mr. Sticky Industrial Adhesive (the adhesive that makes our product a permanent installation for the body of the product) on the lid as well in the final step of our installation. I can send specifications for the product to justify this making our product free from the hazard of broken or missing covers in that it is designed for repair of submarines, used as a permanent strong bond on pvc, and that it has a long lifetime. We can get the adhesive to every customer who has purchased our product and have them secure the lid permanently before the time required in your new interpretation of unblockable. What we want and what is appropriate is to classify our BeeSafe Systems as equal to or better than the alternative solutions. What would it take and to whom do I need to contact to have our product considered as equal to or better than dual drains? The separation across our product is equal or better than the separation of dual drains. Dual drains could be blocked by two children attempting to race to see who can cover each of the drains, but BeeSafe cannot be blocked even if several children sit on it together. The tubes have the unique feature of emptying when covered and suction is broken faster than the detection of a back-up device. With this feature, our products are equal to or better than the back-up systems as well.

We have had several sales to customers who were very dissatisfied with a breaker system. One that took theirs out and replaced with the BeeSafe System told me that the breaker had to be turned off daily for maintenance, false triggered many times during the night which resulted in no chemical mixing, and then in the fall when the drain was completely clogged with leaves, the system failed to turn off the flow. It seems prudent to consider that entrapment isn't the only issue that CPSC should consider. If dependence on a breaker can and often does false trigger and leave a pool without adequate chemical mixing then other water borne disease will increase. It might be worthwhile to do some monitoring in some of the health districts to collect data on the number of bad samples taken with specific information on the type of VGB compliant product used. When I was working for the Utah County Health Department this was the reasoning for not wanting back up systems on the pools. Once they became popular we saw a dramatic increase in pool samples that had too high a bacterial count and detection of e-coli.

Our main reason for getting into this was to save lives. Our company is barely surviving but we had hopes of possibly breaking even or making a small profit with our second model that is now in testing. It is being molded by Custom Molded Products. They are also willing to help us with sales to the distributors. CMP is now concerned that there is no market for a product that costs more than a few dollars to produce. The customers who have been seeking an unblockable drain are those who have pools that cannot easily be remodeled with dual drains and that recognize the downfall of the secondary back-up systems. BeeSafe is more expensive, but a safer alternative and we lose our niche in the market if a back up is required.

Most of our sales have been to community pools, especially in Illinois, where they have no sump, or have aluminum lined pools, and also large pools that need the high flow rate that none of the smaller products have been able to reach. Many chose our system because they could not afford the expensive remodel that would be required for drain line as well as the additional modification of the drain for a dual system. The community pools are where most children learn to swim and with the problems of increased water borne diseases with the secondary devices we may lose many of these facilities. Some of the districts have based their decision on what unblockable product to use simply on the cost. Requiring them now to add a less than adequate back-up system will result in many of these facilities shutting down their pools. Please help us to get our information out to the right people and let us know the procedure for getting our product classified as "Equal to or Better Than" so we can continue to produce the best solution available in the pool industry. If necessary we would come with our products to demonstrate that our products should be classified this way as they are much more than just unblockable.

Bonnie
Bonnie Snow, Owner/CEOBeeSafe Systems

Red Tape Regulations

Every day I see newspapers and television programs focusing on the horrible impact that regulations are having on our economy and our ability to produce well paying jobs in this country. At the CPSC, I continue to hear from businesses and individuals that are simply too frustrated or too small to comply with many of the burdens that our government is continuing to place on them. As a government and as an agency we are continuing to create red tape regulation that is simply killing our ability to compete with the rest of the world. Furthermore, we are failing to abide by the very rules and laws that we set forth when determining how to regulate.

A recent example of this is the Commission’s decision to change its interpretation of the Virginia Graeme Baker Pool and Spa Safety Act requirement that public pools have either an “unblockable drain” or a costly back-up system, to no longer permit unblockable drain covers to satisfy the requirement. As many of you know, this change, coming just 17 months after the announcement of the original interpretation, will require cash strapped states, municipalities, and community pools associations that, in reliance on the rule, incurred the expense of installing unblockable drain covers, to now start over with the installation of costly back-up systems. But perhaps more troubling than the result, is the fact that the Commission is apparently going forward with the change without seeking any input from the regulated community concerning the wisdom or cost of the reinterpretation. Indeed, the majority expressly rejected a Commissioner’s request that compliance officers in the fifty states at least be informed about the decision ahead of time to obtain their input.

This is particularly disturbing given the fact that all of the evidence currently before the Commission, including that there has not been a single drain entrapment death in three years, supports the conclusion that the existing rule effectively ensures public safety. Imposing additional costly burdens notwithstanding this fact would appear to be a definitional case of “unnecessarily” burdensome regulation. Notably, the original approach was adopted following the solicitation and consideration of public comment.

The new approach, according to the Federal Register Notice announcing the vote, was inspired by a large number of virtually identical form letters received from consumer advocates. In short, the Commission is reversing itself based on what amounts to the ex parte views of one interest group without even seeking the input of parties with potentially countervailing interests or views. So much for the President’s directive that independent agencies seek public comment and regulate based on real world evidence and data.

Last week, I wrote a letter to Administrator Cass Sunstein urging him to look into the actions of our agency and provide some much needed guidance on our current rulemaking agenda. I fear that if we do not stop to think about what our rules are doing to businesses, we will soon have far fewer businesses to regulate.

Feeling Relief Yet?

Late last week, the President signed H.R. 2715, a law that is intended to help clarify and enhance the Consumer Product Safety Improvement Act of 2008. I sincerely appreciate the hard work of the House and Senate leadership in prioritizing some necessary reforms, including exemptions from the law’s non-risk-based lead content and/or third-party lead testing requirements for ATVs, bikes, books and most used children’s products. In addition, avoiding the waste of retroactively applying the CPSIA’s .01% lead limit was a priority for all children’s product manufacturers—and I am thankful that HR 2715 strips the CPSIA of this unnecessary requirement.

By exempting children’s ATV’s from all lead limits, allowing bicycles to remain at 300ppm, and exempting from third-party testing the metal components of bicycles and most children’s books, Congress signaled its awareness that these products do not present a health risk to children. I continue to urge my colleagues to regulate based on risk and to exercise flexibility wherever possible and appropriate. As I have argued in my statement on 100ppm the Commission’s approach to lead is clearly one of those cases.

Notwithstanding these improvements, Congress missed a rare opportunity to ensure that all safe, children’s products (not only ATVs, bikes and books) may be legally sold —and that non-risk-based, costly testing and certification requirements be eliminated in favor of more efficient, more meaningful ways to enforce safety measures up the supply chain for domestic and foreign manufacturers.

While some proponents of the law will argue that it reduces the burden of third party testing on small manufacturers, the fact remains that this mechanism applies to only a small niche of the overall regulated business community. By excluding from the third party testing requirement very low production products (7,500 units), provided they are manufactured by a business meeting a very narrow definition of “small” ($1,000,000 annual revenue), the law allows few businesses to obtain relief under this provision, perhaps including only those who fashion by hand unique or very small batches of products.

In addition to the perceived relief, it is important to note that no businesses will be excluded under the provision until the Commission has issued guidelines under which businesses may register their status with the CPSC. I hope that the political leadership of the Commission recognizes the importance of prioritizing the drafting of these guidelines, so that small businesses can register before the crushing costs of third-party testing drive them out of business, when the stays are lifted on January 1, 2011. In this respect, to paraphrase our Chairman, relief delayed is relief denied.

Some continue to suggest that H.R. 2715 will meaningfully improve the public database. Sadly, this is not the case. The law’s grant of up to 5 additional days to investigate material inaccuracy claims before posting reports will do little to reduce the number of inaccurate reports published. Similarly, little is achieved by requiring the Commission to “seek the model, serial number, or a photograph,” when not included within a report. By not requiring the commission to actually obtain the information prior to posting the claim, this provision is little more than a smoke and mirrors technique aimed at silencing criticism of the database. In the end, reports will continue to be posted without this information, manufacturers will still often be left with insufficient information to understand and respond to reports, and consumers will be left guessing about the subject of many of these claims.

While I clearly do not agree with the view that this new law addresses all of the problems in the CPSIA, I do remain hopeful that this will give the agency the opportunity to take a fresh look at the costs and benefits of the rules we issue, especially as they relate to small business. I believe that this new law requires us to re-propose our pending rule addressing periodic third party testing since the underlying rule has changed, as well as provides us with the opportunity to regulate based on fact rather than on opinion.

Finally, it is a mistake to conclude that Congress intended to endorse those provisions of the law that it failed to change. Just as a Congressional majority could not be found for more significant changes to the CPSIA, it is clear from the tenor of debate that there would also not be majority support to pass the original CPSIA today.

Be Quiet!! Be Quiet!!

Chairman Tenebaum’s frustrations are clear in her guest commentary post of 7/28/2011, but it should reassure most Americans that the system is working exactly as intended. Congress established a Commission that includes two members not of the President’s party to ensure that a robust, open and honest policy debate will prevent a majority from engaging in one sided rulemaking. I regret that the Chairman is unable to respect opinions with which she differs. But my positions have always been grounded in fact and based on my sincere and deeply held views.

With respect to specific issues, my individual public statements speak for themselves: Database Statement 1, 2; Effective Date for New Crib Standard; Technological Feasibility of 100ppm Lead; Children's Textiles; Definition of a Child’s Product; and, Third Party Testing for Children’s Carpets and Rugs.

Consumer product safety is always my first priority. But I also believe it is essential to adopt regulations that achieve the Commission’s safety mission in a way that does not unnecessarily burden the economy, disrupt markets, destroy jobs, increase consumer prices, reduce consumer choice, or undermine the quality and durability of consumer products. I am proud to have worked to bring that balance to Commission debate, and will unapologetically continue to do so.

I often receive letters, emails and calls from everyday Americans who are suffering because of this Commission’s costly regulations. They speak of closed businesses, lost jobs, and products that are available everywhere in the world except here in America. I recently compiled a list of businesses and individuals harmed by our actions. But perhaps the most eye opening account I have ever received is one sent to me recently by a CPSC field agent:

I just had an opportunity to read your July 20, statement concerning lead ppm.

"I just wanted to say thank you for saying what some many of us in the field are feeling everyday while having to carry out compliance efforts in face to face scenarios with business owners. We don’t have the sanctuary of a phone, a computer or geography to shield us form [sic] the reality of their world.

Since passage and implementation of CPSIA many of us, [geographic location removed], are facing more and more resistive and hostile receptions as we carry out our day to day activities with businesses. This seems to be specifically for the reasons noted in your statement and not just within the limited scope of lead. For the most part these are people with children of their own trying to make a living for their families that have no desire to put out an unsafe product. We are becoming the face of the reason they believe that opportunity is becoming more difficult and/or failing for them. It is so disheartening to go out on an assignment and spend an hour listening to a business owner berate us about how ridiculous some of our regulations and/or procedures are and not have one argument to present in return because they are right.

It is reassuring to know there is still some hope at the Commission level that some day we can return to a state of reasonable regulation and focus on safety, not philosophy and bureaucracy."

The Chairman has difficulty hearing the truth from me. I hope she can be reached by the words of a career Commission employee.

Regulating for the sake of?

Over the past week, I have commented briefly on the President’s Executive Order as well as the Commission Majority’s unfortunate decision to move forward on the reduction of lead in toys from 99.97% lead free (current level) to 99.99% lead free. As I have mentioned in the past, the Commission Majority often points to the inflexibility of the CPSIA or the need to protect public health to explain its willingness to burden the economy with unnecessary and wasteful regulation. The party-line decision last week that there are no products or product categories for which 100 ppm total lead content (99.99% lead free) is not technologically feasible belies those claims. The Majority has ignored the flexibility Congress granted the Commission to avoid imposing a 100 ppm limit, and cannot point to any gain in public health to offset the substantial economic harm its decision will cause.

There is a reason President Obama issued an Executive Order in January requiring Executive Agencies to reduce unwarranted regulatory burdens on American businesses, and issued another Executive Order last week imploring independent agencies, including the CPSC, to do the same. The President recognizes that overly burdensome regulations are strangling the economy and hindering the job growth essential to a sustained recovery.

Last week’s 100 ppm vote gave this Commission the opportunity to let the President know that it is listening and that it understand and cares. Instead, hiding behind the President’s inability to compel us to act and under the guise that the statute made them do it, the Majority once again chose to impose huge economic costs on American manufacturers with no evidence that there will be any improvement in public health.

I encourage each of you to take the time to read my official statement which provides more clarification and analysis of this issue. As always, I welcome your feedback and comments.

One Agency Answered The Call. Perhaps It's Time We Follow

Today the Wall Street Journal published an article entitled, "Toying With Deregulation: Another agency ignores Mr. Obama's executive order." I bring this to your attention because it focuses on the CPSC’s direct disregard of President Obama’s Executive Order in relation to last week’s vote on the reduction of lead content in children’s toys to 100 parts per million. As the article notes, “while the additional safety gain will be negligible, the change will do damage in other ways, causing companies to avoid recycled metal and plastic, which may contain higher amounts of lead. It will also raise costs for metal parts, potentially driving some businesses to substitute plastic for metal, or stop producing children’s products.”

This article raised three questions in my mind. First, is this really what consumers want for their children or what legislators thought when they drafted this law? Second, how many businesses does the CPSC need to close before somebody gets the message? And finally, and most importantly, how serious are we about following other agencies examples in responding to the President’s Executive Order?

Well, in reference to my last question…apparently not very serious. On July 15th, the EPA (an agency we routinely cite for their stance on lead standards) decided against a proposed rule that would have required contractors to test dust to prove the absence of lead following renovations involving lead paint. It is well known within the health community that lead paint in older homes is one of the most significant causes for higher lead level in children, not toys. If the agency that regulates this recognizes the impact of overregulation on the economy, then why can’t we?

How to Kill Business 101

Earlier today I had the privilege of being a guest speaker at the American Enterprise Institute. My speech, entitled "How to Kill Business 101: An Insider’s Look at How Over-Regulation Is Killing Our Economy” focused on my experiences in Congress as compared to my current position as a Commissioner at the Consumer Product Safety Commission.

Throughout the discussion, I was able to hear from the regulated community as well as provide some of my insights into ways in which we can lower the cost of regulations while also ensuring the safety of our products. In particular, my speech addressed three main points:

First: It is my belief that when Congress enacted the Consumer Product Safety Improvement Act that they never meant for the law to have such a costly affect on the regulated community. During my confirmation hearing, I was asked to find flexibility in this law, and work towards finding a balanced solution in determining what regulations we needed moving forward. My efforts to encourage my fellow commissioners in the majority to find flexibility in the law continue to fall on deaf ears. It is my hope that today’s event will bring the attention that is needed to change the course of regulations here at the CPSC.

Second: As many of you are aware, last week the commission by a 3-2 vote mandated that every component in products intended for children 12 and under will move from being 99.97 percent lead free to 99.99 percent lead free. We are not talking about lead in paint, which actually does pose a risk to children but rather lead in metal substrate. In the briefing package, even our own staff discounted any health benefits to children. Furthermore, going to such levels will be exceedingly costly to those who make children’s products who will now have to re-engineer, buy virgin plastic and virgin steel and absorb higher testing costs to prove to us that they are complying. American families on modest budgets will soon be paying the cost of this excessive regulation. As I have mentioned before, and NIH and EPA studies verify, the traditional dangers with lead stem particularly from old houses where paint contains high lead levels and areas where gas has been left on the ground, potentially causing ingestion in a child. Ironically, the EPA, who is tasked with oversight of this issue, has just withdrawn a Rule that would have focused on reducing children’s exposure to lead in paint while we are going in the opposite direction.

And Finally: I focused on the importance of following the President’s Executive Order at the CPSC. The President has asked even the Independent Agencies to consider cost/benefits analysis and look for less costly alternatives but that did not stop the Majority here at the CPSC. Our staff actually acknowledged that moving to the 99.99% lead free might be impossible for businesses and that they might close, that it would make products less durable and that they would not work as well.

I would like to thank AEI for having me come to speak today and always welcome the opportunity to be a guest at any organization. Together I believe we can truly make a difference here at the CPSC, and look forward to your continued input and support.

Can't meet 100ppm? "Just petition us!"

At yesterday’s hearing on the technological feasibility of dropping the lead content limit to 100ppm, it was stated that if there’s any manufacturer out there that’s having trouble reaching this lead content limit (even though the Commission’s Majority already made the decision that it’s technologically feasible for all products to meet 100ppm)----just file a petition with the Commission, and we’ll consider it.

Really…..it’s that simple?

Aside from the fact that there is a clear split among the Commissioners regarding how they view the flexibility allowed by Section 101 of the statute, the petitioning process for any company, under just about any of our statutes, is immensely complicated. Here are some key considerations for a company filing a petition as well as some facts and figures to keep in mind:

- First, does the company’s request for relief count as a “petition”? In the past 2 years, the Commission has docketed approximately 6 petitions in the Federal Register. All this illustrates is that these documents were prepared to the required specifications to be deemed a "petition" by the Commission. This does not, however, count the many requests for relief that we rule out simply because they do not meet the guidelines to be considered a “petition” outlined in our regulations.

- Can the manufacturer make the scientific, engineering, legal and other showing necessary to support their petition for relief? While the largest of businesses may be able to achieve this feat, most small businesses do not have metallurgists or a legal team on hand to put together such a petition.

- Who can afford the cost? We know from one former petitioner to our agency that the cost to file a petition, including legal fees, was approximately $50,000—-and can run much more. Mind you, that is without the odds favoring any guarantee that the Commission will even grant their request.

- Is there a chance of winning? Granting petitions by the Commission is always subjective. As seen in today’s hearing, there are a wide variety of opinions regarding the statute’s flexibility on 100ppm – and even regarding the lack of a health benefit. Just for perspective, it is helpful to remember that every product-specific petition for exclusion filed previously under Section 101 (e.g., petitions for bicycles, ATVs, ball point pens, crystals, and toy cars with brass axles…) has been denied.

- Do you have the time to wait? As a number of manufacturers already know, the petitioning process takes time – including a notice and comment period for the public, and taking into account the many other priorities of the Commission. There is no guarantee that a company will receive the decision they need, and in time to make a difference.

- And realistically…if your business is failing due to the Commission’s decision that it was technologically feasible for you to drop to 100ppm (and/or due to the CPSIA’s myriad mandates)…do you really have a spare $50,000 and the time necessary to petition a federal agency?

As of yesterday’s vote, the Commission may have unnecessarily consigned an unknown number of products and businesses to oblivion. Let's at least have the spine to admit it, rather than pretend we are awaiting the opportunity to provide relief, through petitions, to all comers.

Stay tuned in the upcoming days for my statement and further commentary on the 100ppm decision….

Now it’s crystal clear – independent agencies must be responsive to the President’s call to roll back burdensome regulations

Today, President Obama issued a new Executive Order, requesting that the CPSC and other independent agencies comply with the President’s earlier Executive Order 13563, calling for the reevaluation and potential repeal of overly burdensome regulations and the promulgation of new regulations “only after consideration of their costs and benefits (both quantitative and qualitative).”

No longer can the statement, “this Order doesn’t apply to us,” hold true for Commissioners at the CPSC.

Last week, I had the opportunity to testify before the Energy and Commerce Subcommittee on Oversight and Investigations concerning President Obama’s earlier Executive Order (E.O.) 13563 and the lack of responsiveness to the E.O. of agencies such as ours. While this original Executive Order did not apply to independent agencies, Administrator Cass Sunstein had urged that they voluntarily comply.

In my testimony, I continued to argue for ways in which the Consumer Product Safety Improvement Act’s regulations can be implemented with less burdensome regulations. I also suggested specific reforms to the law that would ensure that the CPSIA and its regulations would not hurt our ability to create jobs in this economy.

Following the hearing, my former colleague, Representative Marsha Blackburn (R-TN) guest blogged on the Heritage Foundation’s The Foundry website with her reactions to the hearing. I concur with Rep. Blackburn’s statement: “It’s important to understand the reason why regulators are resisting voluntary compliance with Obama’s order: they can’t justify their costly rules and mandates.” The reality is…we need action. We need to better quantify the costs that our regulations are having on businesses throughout the country. We need to engage those most affected by our regulations and we need to provide them with the opportunity to comment on those issues. Further, we need to admit our mistakes, learn from them, and look back at ways we can lessen the unnecessary burden of CPSIA-mandated regulations when there is no known risk.

Several months ago, I applauded the President for his Executive Order and urged my colleagues at the CPSC to help to shred the excess in terms of how we regulate. I have testified before Congress several times requesting more flexibility in the statute and urged my fellow Commissioners to do the same. Last week’s hearing and the latest, dire unemployment statistics have created a new awareness of the issues regulated by independent agencies. I remain strong in my belief that the White House, Congress and the public can play an important role in shaping the CPSC’s decisions.

I once again urge my colleagues to follow the new Executive Order and to stop any further regulations without a plan in place that addresses the concerns of the President, mainly that we “produce a regulatory system that protects public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation."

My Op-Ed in the Washington Times

Crib crash kills cash, doesn't save kids

Today, the Washington Times printed my op-ed on the implementation of the recent crib rule. I could not have written this without your stories and experiences regarding this rule. I hope you will keep sending me more in the upcoming weeks and months!

Crib Response

Following the implementation of the crib rule, I received several e-mails and letters from those most affected by the Commission Majority’s decision. While I will continue to urge my Democratic colleagues toward a reasonable interpretation of the CPSIA and the avoidance of unnecessarily burdensome regulation, I and my fellow Republican Commissioner have an uphill battle. I am hopeful that by sharing some portions of these letters with you that my colleagues on the Commission will understand the harm their rulemaking is causing not only to American businesses, but more importantly, to the hardworking American family.

From Sarah in Utah:

When I had my first baby, we were so poor that I had to make all my maternity clothes from leftover fabric, and even then I wasn't able to make enough to last me a week without washing. My aunt lent us a crib that had been hers since my cousins were babies. It was a drop-side crib and it in no way met the current safety standards of that time (13 years ago), let alone today's safety standards. But my daughter survived it too, just like my cousins did, and if it hadn't been for that crib my daughter would have slept in the proverbial dresser drawer.

When I had my oldest son, we were a bit more prosperous and we could afford a used (fixed-side) crib which we bought for $80. That was all we could afford and still get the other things we needed. And by "needed" I mean like clothes and car seats, not diaper wipe warmers and fancy toys. Even so we could only afford used clothes. We used that crib for three boys total, the second of which, a budding engineer, removed two of the slats and forced us to jerry-rig it back together with a metal rod (totally untested by a third party lab) so that it could be used for the third boy, who was born just a couple months later. And when we were done with it, we gave it to another family in need of a crib.

This is how it works in the REAL world, far from the rarefied heights of Washington D.C. Most people starting their families are not prosperous, and not everybody's got a relative who can afford to buy them a brand spanking new crib when they can't pony up the cash. You can make it illegal to sell cribs and put the proverbial Fear of God into retailers and resellers, but you can't stop the distribution of these cribs, because they will continue to be passed down through families and around neighborhoods. If we had done this today, we must have committed several felonies in the provision of sleeping quarters for our four children! And yet, if we had not done so, we would have been guilty of child neglect.

From Rafael de Castro, NINFRA:

I hope that even though we were unsuccessful in our petition, the commission now sees the unintended side effect of instituting the same compliance date for two different segments of our retail supply chain. I can attest to the damage the implementation of this standard has done to many small retailers throughout this country and I am sure this was never intended when the commission decided to adopt 16CFR-1219. In both sides of the argument presented to the commission on June 16th, retailers had suffered unnecessary harm cause by this implementation plan, all of which could have been avoided if retailers would have been given an opportunity to sell through their inventor.

In a statement [by one of the Commissioners] following the vote, he says the following:

“Any Type of extension of the effective date for this rule would be patently unfair to the many retailers, both small and large, that have planned ahead, worked hard, played by the rules and prepared themselves to sell only compliant cribs on June 28th.”

I can tell you that we planned ahead and we worked hard to sell only compliant cribs by June 28th. The problem was never planning or how hard we were working, the problem was the fairness of the rules. As we move forward, I can only hope this commission does whatever studies it has to do to understand the full impact of this implementation plan. Maybe then, opinions such as those stated above by [the] Commissioner will change.

Personally there is a point I must make. While watching the webcast I could not help but notice how the four retailers fighting this extension were portraying us. We were being painted as profit hungry retailers with little regard for the safety of children. Nothing can be farther from the truth. The retailers I am proud to represent are family oriented good people. They understand the importance of safe cribs and welcome any standards, which make cribs safer. We support 16CFR-1219 and think it has set a safety standard this industry has needed for quite some time.

From Jim Vieira, President, Baby Boudoir:

Political ideology aside, anyone leading a government agency should be able to recognize an error in judgment, and take the necessary steps to correct that error when new substantiated information challenges a previously held position. It's clearly illustrated by Commissioner Northup's statement that this error was not even considered, let alone corrected. Meanwhile, were still waiting for certificates of conformity, retrofit hardware and a miracle to save a number of stores on the brink of bankruptcy.

I appreciate all the feedback I have received on this matter and will continue to provide as much information to the Commission as possible. Your input continues to help me in my efforts of being a responsible advocate during the CPSIA rule making process.

Setting The Record Straight

The Consumer Product Safety Commission’s official pronouncements on the new mandatory safety standards for cribs have caused confusion among the press. This post is intended to correct the record.

The new standards ban drop-side cribs. But the standards also prohibit the sale, new or used, of all cribs – both drop-side and fixed-side – that are not tested to the new standards by a private laboratory. Because very few cribs that were not originally manufactured to the new standards will ever be tested, the new standards essentially ban all such cribs – drop-side and fixed side. As reported in today’s press, millions of drop-side cribs have been recalled. On the other hand, tens of millions of fixed side cribs manufactured to previous standards have never been recalled, never been found to be unsafe, and now also cannot be sold new or resold used.

Drop side cribs have been banned since 2009 by the voluntary standard followed by the vast majority of crib manufacturers offering cribs in the domestic United States market today. Therefore, although it is true that the new standards are the first “mandatory” federal crib standards in 30 years, very few new drop-side cribs have been available in the United States market for two years. That problem was largely solved already through recalls and a change to the industry voluntary standard.

Tomorrow You May See Tens of Thousands of These

Last week, the Consumer Product Safety Commission had an opportunity to act in a sensible manner and provide important and immediate relief to retailers in the crib industry who requested an extension of the effective date of the new mandatory crib standards. The retailers of these cribs, which the Commission deemed were safe enough to continue to be used for another two years in day care facilities, stand to lose at least $32 million dollars when they are required to throw out noncompliant cribs on June 28. We all agree that the economy is growing painfully slowly, with high unemployment, minimal job creation, and a crushing national debt due in part to the reduced tax revenues associated with a weak economy. Among the central factors economists attribute to the reluctance of private sector employers to hire employees and invest capital are the costs and uncertainty of complying with new regulations. By failing to provide relief to crib retailers, the Commission continues to create over burdensome regulations without a safety justification.

I urge you to read my most recent statement on this issue and comment with your thoughts. If we at the Commission continue to ignore the voices of small businesses, sooner or later there won’t be any small businesses to ignore.

Ribbon Cutting

Yesterday I had the pleasure of joining my fellow Commissioners in opening CPSC’s brand new state of the art testing facility in Rockville, Maryland. The Ribbon Cutting Ceremony gave us an opportunity to discuss many of the benefits of the new facility as well as get a glimpse into the work that is conducted there.

During the tour, I was able to witness first-hand the important technological steps that CPSC staff are taking to ensure the safety of the products that we use on a daily basis. Unlike the prior facility, this new center allows agency scientists and engineers to work together in a central location with the resources they need to do their jobs effectively. In particular, I was impressed by the center’s ability to conduct carbon monoxide alarm testing as well as their new mattress flammability testing chambers.

I want to congratulate all those who put in the time to make yesterday such a success. I am confident that this new facility will help us in our continuing efforts to ensure safety.

Advancing Change

As many of you are aware, the House of Representatives Subcommittee on Commerce, Manufacturing, and Trade recently reported favorably the Enhancing CPSC Authority and Discretion Act of 2011 (ECADA) to the full House Energy and Commerce Committee. The ECADA would correct many of the unintended consequences of the Consumer Product Safety Improvement Act of 2008 (CPSIA) and help to refocus the Consumer Product Safety Commission (CPSC) on its core mission of identifying and eliminating hazardous children’s products.

To help illustrate my position on this legislation, I recently sent a letter to each Member of the Committee identifying not only the strengths of this legislation, but also some suggestions as to ways in which we can make a good bill even better.

On balance, I strongly appreciate the Subcommittee’s efforts to resolve the unforeseen problems caused by the CPSIA, and I look forward to continued progress before the Full Committee. The bill makes great strides toward addressing many of the problems with the CPSIA, including its overregulation of lead, imposition of huge third-party testing costs, and a mandate to create a public database using language this Commission subsequently construed to allow the placement of inaccurate and unverifiable information in a government sanctioned database. I therefore support passage of the ECADA and look forward to the day when all of the CPSC’s resources can once again be directed to protecting the public from unsafe consumer products.

Hearing Recap

Earlier this week, I mentioned that the House of Representatives Subcommittee on Commerce, Manufacturing, and Trade would be holding a hearing on a draft version of fixes to the current CPSIA. I appreciated listening to the testimony of all the witnesses and feel confident that the Committee can work in a bipartisan manner to continue this discussion moving forward.

To illustrate some of the important changes this bill would make, I want to draw your attention to a recent article from Bloomberg news entitled “Toymakers Would Get Regulatory Relief Under Republican Plan.” This article helps outline many of the current problems with CPSIA as well as the important fixes that this legislation will address.

Drafting A Change

As some of you may know, the House of Representatives Energy and Commerce Committee recently released a draft version of a bill designed to fix many of the unintended consequences of the CPSIA. This important piece of legislation will be the focal point of tomorrow’s Subcommittee on Commerce, Manufacturing, and Trade hearing.

From my perspective, this legislation will go a long way to reduce some of the unnecessary and over burdensome mandates of the CPSIA. For instance, the bill establishes limits for children’s products that are too large to be swallowed, alternative lead limits for metals and a de minimis exception for other materials. It also limits third party testing to specific categories of products with known risks. These changes would free the Commission to focus its efforts on hazardous products, rather than on the enforcement of non-risk based standards and procedural compliance.

Further, I want to note a key provision regarding the Public Database. The bill narrows the definitions of “consumer” and “public safety entity” to persons who either used a product or are closely associated with someone who did. In addition, the bill requires that the name and contact information of the affected individual be included in the report. I believe these simple changes would address many of my concerns regarding the veracity and verifiability of information submitted to the public database.

Finally, I want to commend Chairwoman Mary Bono Mack and members of her staff for their hard work on drafting this piece of legislation. While I know bills can change significantly during the legislative process, this draft reflects the Committee’s commitment to correct the problems with the CPSIA about which there is strong bipartisan agreement. I look forward to sharing my impressions of tomorrow’s hearing and welcome your comments about this legislation.

Funding Debate

Last week, I had the honor of representing the CPSC as a witness before the House Appropriations Subcommittee on Financial Services and General Government. The hearing, which focused on the CPSC'S 2012 Performance Budget Request, afforded me the opportunity to testify about ways in which I believe we can reduce our budget while actually improving our ability to fulfill our core safety mission.

In my prepared testimony, I illustrated several points where I believe the CPSC is inefficiently using its resources, focusing on the requirements of the CPSIA. For example, I discussed the Commission Majority’s decision to broaden the scope of what falls under the definition of “children’s product.” That decision unnecessarily increased the number of products that must undergo third-party lab testing for compliance with the statutory lead content limits applicable to children’s products. Moreover, the majority failed to meaningfully define “absorption” for purposes of excepting from the third-party testing requirements products that contain no risk. As a result, the rule makes no distinction between products containing lead that is likely to be consumed and products where the lead content cannot cause harm. These regulatory decisions by the Majority have actually increased the economic damage caused by the CPSIA, in areas where the Commission had the discretion to limit that damage.

In addition to my prepared testimony I was able to highlight two points that I believe would be instrumental in reducing both the size of the Commission’s budget and its regulatory burden, especially on small businesses:

First, I urged the Committee to prohibit funding for the new public database until the Commission’s regulations ensure that the information contained in a report of harm is verifiable, and the Commission has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is put on the Database.

Second, I urged the Committee to prohibit funding for the Commission to implement any new third-party testing and certification requirements of the CPSIA. Of course, the Commission would still have its authority to impose such requirements where necessary to address a risk. This will ensure that our focus is on ensuring safety rather than on enforcing standards and paperwork requirements entirely unrelated to risk.

Finally, I was pleased with the discussion by Chairwoman Jo Ann Emerson of the need for a cost-benefit analysis of regulations promulgated under the CPSIA. I believe such an analysis would reveal that much of our CPSIA mandated regulation cannot be justified. This will not only help to save businesses throughout the county that are struggling, but it will also ensure that we are using the resources provided to us by the taxpayer in a logical and substantive manner.

Click here to view last week's broadcast.

Laying the groundwork for reform...

Yesterday, I had the honor of representing the CPSC as a witness before the House of Representatives Subcommittee on Commerce, Manufacturing and Trade. The hearing, entitled “Review of CPSIA and CPSC Resources,” afforded me the opportunity to testify about the unintended consequences of the CPSIA. We can all agree that the original intent of the CPSIA was an admirable one, however, given the massive impact of the law’s testing and certification requirements and the overreach of the Commission’s database regulation, it is now in the hands of Congress to prevent further disastrous, economic consequences. This hearing provided Congress with the opportunity to discuss these key issues.

In my prepared testimony, I argued for two actions that Congress could take immediately to ameliorate the consequences of the CPSIA and two long-term reforms to ensure that harmless products are not caught up in the law’s purview. Immediate recommendations include:

- Prohibiting the launch of the new database until the Commission’s regulations ensure that the information contained in a report of harm is verifiable, and the Commission has established an effective procedure for resolving a claim of material inaccuracy before a report of harm is put on the Database.

- Prohibiting the Commission from undertaking any further regulatory action without first performing a full cost-benefit analysis and making a finding that the cost of the action is justified by its expected benefits. (This would impact accrediting labs to test to the phthalate or toy standards, the 15-month rule, etc.)


Two long-term proposals for reform include

- Amending the law’s absorbability exclusion § 101(b)(1) so that it has meaning. Such a change would result in excluding products or materials with a level of absorbable lead that the Commission determines not to be harmful to a child’s health.

- Eliminating third-party testing, certification and tracking labels of all children’s products, allowing the Commission to retain its authority to impose such requirements only where necessary to address a risk.

These changes will provide much needed relief to small businesses throughout our country. Further, I believe that by doing this, we can ensure that the CPSC will continue to use the tax dollars afforded to us by hard working Americans in a meaningful way, rather than on enforcing standards and paperwork requirements entirely unrelated to risk.

In the hearing's second panel, Members of Congress were able to receive testimony from several of the small businesses that I hear from on a regular basis. These individuals provided firsthand accounts about the effects that our rulemaking is having on their futures.

I am hopeful that moving forward, Congress will take my testimony and the testimony of the witnesses into account in crafting a reform bill.

Click here to view yesterday’s webcast: http://energycommerce.edgeboss.net/wmedia/energycommerce/SCCMT021711.wvx

Staying Power

Last night, the Commission voted 4-1 to extend the stay of enforcement on testing and certification to the lead content standard until December 31, 2011. I am pleased that the Commissioners were willing to compromise on this extension.

While I welcome this decision, I continue to believe that the stay of enforcement should remain in place until one year after the finalization of the Commission’s rulemaking on both Testing and Labeling Pertaining to Product Certification and Conditions and Requirements for Testing Component Parts of Consumer Products. After all, the Commission has broadcast to the regulated community since 2009 its commitment to allow component parts testing and certification to become a viable compliance alternative for manufacturers before third party testing and certification for lead content in most children’s products becomes mandatory.

Over the past several weeks, large and small businesses throughout the country who would have been affected by this decision, have been in contact with my office urging a stay of this testing requirement, particularly since the Commission’s testing regulations have not been finalized. In the absence of those final rules, component suppliers are refusing to test altogether or are refusing to supply certifications. In addition, certifications are unavailable from the retail outlets where many small manufacturers obtain component parts.

I believe that third party testing imposes a financial burden that many manufacturers, and particularly small ones, may never be able to bear. But if there is any hope for their survival, it is essential that the stay not be lifted before there is at least an opportunity for certified component parts to form the basis for the final product certifications of small manufacturers.

If you are interested in learning more about the effects of this decision, please read my official statement for more information.

Please know how much I appreciate all the feedback and information that has been provided to my office over the past few weeks on this topic. This decision was an important victory for businesses both large and small throughout the country. I recognize that this could not have been achieved without your input. As always, if you have any questions or comments, please do not hesitate to contact me at commissioner_northup@cpsc.gov.

Shredding the excess

On January 18, 2011 President Obama issued an Executive Order that expressed his desire to eliminate rules that “stifle job creation and make our economy less competitive.” It should come as no surprise that companies and businesses are continuing to face the burden of government regulation and the challenge of providing opportunities and work for individuals throughout the country. In his recent op-ed, President Obama notes that government agencies need to “make sure we avoid excessive, inconsistent, and redundant regulation.”

As a Commissioner of an independent regulatory agency, I want to know how the CPSC can make this initiative a reality. I invite you to tell me which regulations have been costly to your organization or caused greater inefficiency, where there is very little safety enhancement to be derived. I want to know which rules or regulations your company is worried about, so that together we can move forward in creating jobs while also ensuring safety.

Over the next few weeks, and in the spirit of President Obama’s recent Order, I look forward to sharing with you some of the simple changes that I believe would go a long way in making a significant impact in achieving this goal. In addition, I look forward to receiving your examples and input about ways in which we can move the CPSC in the right direction.

In case you missed it...

This week, the Washington Post had a front-page article on the looming public database, including a balanced look at industry’s concerns. I did contact the reporter to clarify one key issue:

The article reads, “If a company says a complaint is false or would disclose confidential business information, the CPSC will decide whether to withhold or publish the complaint.” Well…not exactly. Unfortunately, the reporter was led to believe that the agency would be able to resolve all reports of material inaccuracy within the 10 period time period. This is completely unlikely.

On the contrary, the Commission has decided not to exercise any discretion and to go ahead and put up claims even where there is a material inaccuracy claim pending past 10 days. For example, if a manufacturer knows that the product in question is not theirs and files such a claim on the 9th day , it is highly unlikely that the Commission will even be able to resolve the claim by the end of the 10th day (let alone any other pending claims that week)—resulting in the inaccurate report still going up on the database.

And you guessed it—inaccurate information about a manufacturer or their product on a “.gov” database is not only detrimental to the manufacturer, but it is useless to consumers using the database.…