As the U.S. Senate Fiddles, CPSC's agenda stews.

Where's the outrage? The Democrat-controlled U. S. Senate continues to stall on the confirmation of, among many others, (1) the President's nominee for Chairman of the U.S. Consumer Product Safety Commission (CPSC), Harold D. Stratton.

Nearly one year ago, Aug. 2, 2001, on a straight party-line vote, members of the Senate Commerce Committee defeated the president's nomination of Commissioner Mary Gall as Chairman. Chief among those calling for the Gall defeat were Senators Hillary Clinton (D.-N.Y.), Barbara Boxer (D.-Calif.) Richard Durbin (D.-Ill.) and Ron Wyden (D.-Ore). Their protests were fueled by the fiery rhetoric of groups such as Consumers Union and the U.S. Public Interest Research Group (U.S.PIRG).

The well-orchestrated cry was that somehow, this conscientious and hard-working Commissioner's record was "seriously flawed."

Gall's record on bunk beds, baby walkers, and baby bath seats--issues her opponents focused on--is well known to readers of the CPSC Monitor. Her positions were responsible, based on sound science and in the public interest, in the Monitor's view. The attacks against Gall were based on ideological, not factual grounds.

Nonetheless, these political leaders and advocacy groups raised the specter of a federal agency headed by Gall as having no guts to tackle serious regulatory or enforcement issues in the name of product safety. Following the committee vote, Gall asked the President to withdraw her name.

In October 2001, the President announced his intent to nominate Harold Stratton, former Attorney General of New Mexico, to be CPSC Chair. On the first of November, former Chairman Ann Brown, as she had previously indicated, resigned her post, which meant that the Commission was left with only two Commissioners, which was one less than the quorum of three required. On March 13, 2002, the President officially sent Stratton's name to the Senate. The statute governing CPSC allows the agency to operate without a quorum for up to six months (in order to facilitate the nomination of a new Chairman or Commissioner.) The six-month period would end May 1, 2002.

The Senate was well aware of this statutory requirement, but delayed scheduling a confirmation hearing on Stratton until April 25.

Stratton's name was finally cleared by the Senate Commerce Committee on May 17, and sent to the Senate floor. And there it has been gathering dust, along with the names of dozens of other nominees.

The same Senators who decried Commissioner Gall's alleged pro-business, anti-consumer views are now responsible for three more months of official inactivity by CPSC.

Not that the agency doesn't perform its role as best it can. Commissioner Thomas Moore, who assumed the role of Acting Chairman after Ann Brown's departure, has administered the business of CPSC faithfully. The career staff have been hard at work issuing "voluntary" recalls (which do not require Commission action). But stacks of briefing packages are piling up and the Commissioners cannot act until the third Commissioner arrives.

There are probably few, if any, other nominees whose agencies are so severely affected by the inaction of the Senate.

Yet there is no outrage emanating from the consumer advocacy groups who fought Commissioner Gall, and none from those members of the Senate who could, if they chose, take up the Stratton nomination tomorrow.

Regulatory Issues Languish

While CPSC continues to issue recalls, there are many official actions that it cannot take in the absence of a quorum.

CPSC cannot impose a civil penalty or accept a settlement, issue subpoenas, mandate a recall, issue a complaint, appoint experts to a Chronic Hazard Advisory Panel (CHAP), promulgate a mandatory rule, grant or deny a petition, adopt a budget for 2004, nor enact an Operating Plan.

The Semiannual Regulatory Agenda of CPSC, issued May 13, 2002, sheds more light on what is at stake.

Some pending actions would update regulations. Such is the case with a proposed amendment to the Standard for the Flammability of Clothing Textiles. The standard prescribes a procedure for testing textiles for compliance, but it was issued in 1953. Some of the equipment and the procedures involved are outdated. A staff-briefing package recommends updates to those procedures, but the Commission cannot act.

There are several issues awaiting Commission action that are so far in the staff preparation stage. They include a draft proposal to request comments on a petition dealing with auxiliary hazard lighting systems for snowmobiles, which is still waiting for Commission approval. A proposal to ban lead-core candlewicks and candles with lead-cored wicks has not yet been issued, pending staff analysis of public comments.

A Notice of Proposed Rulemaking to exempt hormone replacement therapy products from special packaging requirements is also pending staff analysis of public comments. A petition requesting adoption of the current ASTM standard for cigarette lighters as a federal regulation is awaiting action.

The petition requesting a ban of the use of phthalates in soft vinyl toys has still not been officially addressed, although a CHAP Report issued last year remains the Commission's policy. Once a third commissioner arrives, no doubt that issue will arise again, in light of new activity by anti-phthalate extremists.

Even the CPSC Fiscal Year 2002 Operating and Performance Plan has not been approved.

A Notice of Proposed Rulemaking to address risks of injury associated with portable bed rails is still being prepared by the staff.

A petition requesting a ban of the use of certain pesticides on wooden playground equipment is still in the hands of the staff but will require Commission action.

Of course, the biggest issue awaiting Commission action is the question of federal regulation of upholstered furniture. CPSC staff issued its 900-page briefing package last October, but the Commission cannot vote on the package or even hold a Commission meeting to discuss options until the third Commissioner is on board. (2)

Another major issue waiting to be addressed is Product Safety Owner Cards. The Consumer Federation of America (CFA) filed a petition last year requesting development of a rule to mandate product registration cards. At about the same time, CPSC staff developed a briefing package, at the direction of former Chairman Ann Brown, to do almost the same thing. Legislation introduced by Rep. James Moran (D.-Va.) would compel CPSC to adopt the staff plan. The effort addresses CPSC's long-term struggle to increase recall effectiveness. (3)

The longer the Senate waits to correct the lack of a quorum, the more these issues will collect. Once the new Chairman finally arrives, it will take a marathon of Commission meetings to resolve them.

Lack of Quorum Affects Approval of Exemption Petition

Many of the examples given above relate to proposed federal regulations. In some of those cases, the American consumer has been spared unnecessary regulatory burdens. But in at least one case, consumers may be deprived of a specific product that awaits exemption from a CPSC rule.

That is the case with a petition filed with CPSC by Centuri Corporation, a company that proposes to market two types of model rocket surface vehicles.

Centuri's plans were stymied because under the Federal Hazardous Substances Act (FHSA) toys containing hazardous substances accessible to a child are banned. But the FHSA provides that the Commission may exempt certain products when by reason of their function they require the inclusion of the hazardous substance.

Centuri had developed two model rocket cars, which travel on a tether along the ground, using model rocket propellant devices. Of the two prototype cars, one, the smaller car, named "Blurzz," was preliminarily approved for the exemption. The larger prototype, named "Screamin Eagle," was not approved for the exemption. The Notice of Proposed Rulemaking (NPRM) exempts from banning under the FHSA the model rocket propellant devices for model rocket ground vehicles if they meet requirements similar to those presently required for flyable model rockets.

The Commission voted 2-1 to grant the petition with regard to the smaller vehicle and deny it regarding the larger one. Commissioners Moore and Gall voted to exempt the smaller car, while then Chairman Ann Brown voted to deny the entire petition.

The Notice of Proposed Rulemaking was issued January 30, 2002, and the public comment period ended on April 15. Centuri cannot market its rocket cars until the Commission can issue a final rule.

Brown's Group Continues Efforts, But Lacks Targets

Perhaps no one misses having the CPSC to kick around more than former CPSC Chairman Ann Brown. She has had few safety issues to raise in order to attract media attention. Since CPSC cannot act officially, she cannot attack CPSC for "doing nothing" about a given problem.

Meanwhile, the group she founded continues to plug along, making fewer and fewer waves.

Its "Safe Circle" meeting in Chicago in June attracted representatives of 21 companies, but failed to stir any national media notice. It plans to meet again in Atlanta in October.

Brown did appear on CNN's "Crossfire" July 3 to discuss Rep. Edward Markey's bill to regulate fixed site amusement park rides. Brown has long supported the Markey bill.

But "Crossfire" host Bob Novak and Bill Powers of the International Association of Amusement Parks and Attractions (IAAPA) were more than a match for her. (4)

Paul Begala, one of the two "Crossfire" hosts, cited data used by Markey to claim that there have been 58 brain injuries and eight fatalities on roller coasters.

IAAPA's Powers called it a "political smear campaign." According to Powers, a panel of the American Association of Neurological Surgeons "... recently took a look at those cases.... And the best they could say about Congressman Markey's data and conclusions was that it was implausible," Powers said.

When Brown's turn came she again cited the questionable CPSC data generated during her tenure:

"Since 1996 to 2000, the injury rate has gone up 95% (at amusement parks) even though the attendance rate is under 7 percent [sic.] And the death rate is higher for amusement parks than it is for airplanes and trains. Can you imagine a train wreck or an airplane crash and somebody ..." (5)

At this point Powers interjected, "That's not true."

But Brown continued. "... If we had federal reporting we'd know exactly how much data there was. One state would tell the other what it was doing."

Powers continued: "Actually, there's not much truth in any of what I've just heard. Ann, unfortunately, since 1981 the CPSC has indeed had federal oversight and regulation of mobile traveling parks. The incident that you just cited as an example of the problem [earlier in the transcript] occurred at a mobile park. Frankly under your watch as Commissioner of the CPSC."

Again, Powers pressed Brown: "The increase you just spoke to, of incidents have occurred since 1981. The incident rate has increased by 33 percent at those mobile traveling parks, while under federal oversight. Obviously federal oversight is not the answer here. I'm again surprised to hear the comparison to other forms of transportation, when you consider that 42,000 people die every year in America in automobile accidents, 155 airline tragedies on average every year, 85 train tragedies ..."

Brown, unable to get recognized, finally says, "Don't forget me!"

Addressing the debate over statistics, she again insisted that the injury rate increased by 95%. But just as she was decrying the lack of federal intervention and berated the industry for blaming riders for many accidents, her time was up.

CPSC Seeks Fines in Weed Wizard Case

CPSC General Counsel Alan Shakin reports that the agency's options regarding compliance actions are not so constrained as are its regulatory options.

For example, on July 10, CPSC announced it had referred a case to the Department of Justice involving allegedly hazardous weed trimmer heads with metal chain links.

The Department of Justice, on behalf of CPSC, is suing three companies for failing to report the hazard. CPSC says that the metal links on the trimmer heads can unexpectedly detach during use and can injure a user or a bystander. At least one death has been associated with the product, that of a 3-year-old Alabama girl.

The companies being sued are U.S. Home and Garden, Inc., of San Francisco, Calif., Easy Gardener, Inc., of Waco, Texas, and Weed Wizard Acquisition Corp., of San Francisco, Calif. CPSC says that between May 1987 and February 1998, 2.7 million Weed Wizard trimmer heads and about 857,000 replacement chain sets were sold. The companies had declined to accept a civil penalty settlement with CPSC.

The companies conducted a recall of the trimmers two years ago.

Court Imposes Civil Penalty for Failure to Report

CPSC also announced in July that a court imposed a $300,000 civil penalty on a firm for not reporting a product hazard--the first time such a penalty has been awarded by a court for failure to report. The Department of Justice, on behalf of CPSC, filed suit against Mirama Enterprises, Inc., which does business as Aroma Housewives Co. in San Diego, Calif.

The ruling was issued by U.S. District Court Judge Judith N. Keep of the Southern District of California.

The alleged hazard involved juice extractors that broke apart in use, injuring consumers.

CPSC said this is the first time ever that a federal court found that a company had violated the reporting statute and ordered a civil penalty. Most other civil penalties are the result of voluntary settlements.

(1) An article in The Washington Post, "For Bush Choices, Wait Grows" (July 25, 2002, p. A19), cited a Brookings Institution report that said the Senate's delays on confirmations are the longest since 1960.

(2) For more information on the upholstered furniture issue, see CPSC Monitor, June 2002, Vol., 7, Issue 6, "CPSC Conducts Meeting on Upholstered Furniture: Industry Appears to Seek Federal Action."

(3) For more information on the product registration card issue, see CPSC Monitor, January 2002, Vol. 7, Issue 1, "Former CPSC Chair Brown's SAFE Group Promotes Bill to Mandate Consumer Product Registration Cards."

(4) Transcript of the July 3, 2002 "Crossfire" Show.

(5) For further information on the Amusement Park injury data issue, see CPSC Monitor, September 2000, Vol. 5, Issue 9, "Amusement Park Industry Issues Analysis Faulting CPSC Injury Report."