Bush announces `intent to nominate' former New Mexico Attorney General Harold Stratton as CPSC chairman.

The White House Press Office announced late Tuesday, Oct. 30 that President Bush intends to nominate former Attorney General of New Mexico, Harold D. Stratton, to be a member of the U.S. Consumer Product Safety Commission (CPSC) and to serve as Chairman. [1]

Bush's action comes on the heels of the planned departure of current CPSC Chairman Ann Brown. Stratton would fill the remainder of Brown's term, which expires in October 2006.

Meanwhile, the controversial and publicity-hungry Brown pursued her aggressive regulatory agenda down to the wire by announcing, Oct. 30 that CPSC would file an administrative complaint against the Daisy Manufacturing Co. of Rogers, Ark., alleging that two models of its Powerline Airguns are defective. [2] Brown had dropped a large hint in her Aug. 8 resignation statement that there would be a major recall (or lawsuit) involving "a product that kills and maims children." [3]

The Commission's vote was 2-1 to proceed with the complaint (see story below).

CPSC nominee Harold Stratton served as Attorney General of New Mexico from 1987 to 1990. He is a former member of the New Mexico House of Representatives (1979-1986) and is currently a partner in the law firm of Stratton and Cavin in Albuquerque.

Stratton is a graduate of the University of Oklahoma and the University of Oklahoma Law School. [4]

Stratton is listed as a member of the Board of Advisors of the Washington based non-profit organization, Defenders of Property Rights. The group is a national public interest legal foundation that works with individuals whose property has been taken through regulation, legislation or other government action.

Defenders of Property Rights recently filed a petition for appeal with the Supreme Court of Virginia on behalf of the Fairfax County businessman, John Thoburn, who was jailed when he defied county authorities over actions he took in landscaping his own property.

The organization also supports a bill introduced by U.S. Sen. Chuck Hagel (R.-Neb.) to protect property rights by requiring the government to conduct an economic analysis before taking private property and to lodge review of Fifth Amendment takings claims in either a local Federal District Court or the Washington DC--based U.S. Court of Federal Claims. [5]

Gall Blasts Brown and Staff for Irregularities in Daisy Lawsuit

In a stinging rebuke both to CPSC Compliance staff and to Chairman Brown, Commissioner Mary Sheila Gall blasted the Commission's decision to pursue litigation against Daisy Manufacturing Co. for alleged defects in its Model 856 and Model 880 Powerline Airguns.

Outgoing CPSC Chairman Ann Brown announced at a news conference Tuesday. Oct. 30 that the agency filed an administrative complaint against Daisy, seeking a recall of 7.5 million of the airguns. The company would not agree to recall any of the guns, which it has marketed since 1972.

The Commissioners voted 2-1 to issue the complaint, with Gall dissenting.

Gall said in a statement accompanying the agency's news release that among other irregularities, the draft complaint had been leaked to reporters on Oct. 29, before the Commission vote took place. She cited a second departure from regular procedure saying that the legal papers had been filed immediately after the vote, rather than giving the company a customary brief time to settle.

She said it was obvious that the timetable was driven by the 2:00 p.m. Tuesday press conference.

Gall also criticized the staff for failing to provide experts' reports or detailed financial information about the company prior to the Commissioners' vote.

Gall said in a statement that the complaint "is highly politicized," and that "it is not well founded in law or the evidence and it should not have been brought."

Gall noted that shortly after the Commission vote, the complaint was rushed to the Office of the Secretary so it could be filed prior to the scheduled 2:00 p.m. news conference. Gall also charged that although CPSC had hired both a gunsmith expert and a materials science expert, there was no written report from the experts, and their work was not reviewed by CPSC's own laboratory staff.

Normally CPSC staff provides Commissioners with detailed financial information about the ability of a defendant company to handle such a huge recall. Gall also noted "glaring errors of fact," in the staff briefing memo, i.e., "a description of a BB being `chambered' into a rifle's `muzzle' and the assertion that Daisy BB guns are more `powerful' than .38 caliber revolvers." [6]

Gall concluded that the rationale for the procedural irregularities was that Chairman Brown had already announced in her Aug. 8 resignation statement that the product was "very dangerous" and that the recall or lawsuit would occur before she leaves. Gall said such announcements were premature since the Commission did not receive its briefing package until Oct. 4, and the Commissioners did not vote until Oct. 30.

"As the Queen of Hearts said in Lewis Carroll's Alice in Wonderland: `Sentence first, verdict afterwards.'" [7]

Central to the complaint filed by CPSC against Daisy is the allegation that the two Daisy models in question are defective because BBs can become lodged in the magazine of the airguns, and that though the gun appears empty, it can be fired "in an unsafe manner" if the BB then becomes dislodged.

The CPSC investigation into Daisy airguns was triggered by the case of John "Tucker" Mahoney of New Hope, PA., who was seriously injured when a friend pointed the Model 856 Powerline at Mahoney and fired at close range, mistakenly believing the gun was unloaded. The manufacturer reportedly settled a product liability lawsuit with the Mahoney family for approximately $18 million. [8]

CPSC compliance staff also contended that the guns' failure to have an automatic safety system makes the BB guns defective. The guns currently have a manual safety system.

Gall stated that the Daisy's design was very common in all airguns and has been used for around 100 years.

"While a gravity feed mechanism may, on occasion, result in a failure to feed a projectile into the loading port, that is also true of controlled feed mechanisms," Gall wrote.

"If the gravity feed mechanism is now to be labeled as defective the Commission should seek changes that apply to the entire industry through either the voluntary standards setting process, or through the regulatory procedures available to the Commission."

Lawrence Keane, vice president and general counsel for the National Shooting Sports Foundation, told the Washington Post recently that "The [safety defect] allegations the CPSC is looking at are not unique to the Daisy product or to high-velocity rifles. The alleged defect pertains to virtually every single air rifle ever made." [9]

Keane's association represents manufacturers and ammunition suppliers.

Commenting further on the alleged defect, Gall noted that the Commission's own staff has not been able to replicate the so-called defect.

The staff conducted six separate investigations of Daisy BB guns between 1981 and 1999. Commissioner Gall added that at that time the staff never identified a "lodging problem" as a defect or a substantial product hazard. [10]

Gall concluded by saying that her dissenting vote and her statement were based on the record available, and that a new record will be developed by the staff and by Daisy before an administrative law judge. Any future votes will be based on the record as it stands at that time, she said. [11]

A story in the Washington Post marking Chairman Brown's departure noted that the agency's action against airguns is bound to be "contentious," since "the industry fears it could lead to a recall of all its BB guns, numbering more than 100 million." [12]

Brown Will Head New Non-Profit; Is Working Toward a Contract With "Today Show"

Ann Brown wants to continue her role as a consumer spokesman on NBC's "Today Show," a role she played numerous times as CPSC Chairman. She told Washington Post reporter Caroline Mayer that she is currently negotiating with NBC. [13]

She has already set up a new nonprofit foundation, to be called SAFE (a Safer America for Everyone) to provide a platform for her views on safety regulation. The funds came from a private foundation funded by she and her husband, Donald Brown.

Brown's record at the Commission has produced divisiveness and anxieties among some at the agency. Some staff members felt compelled to push for the policies she wanted, even though it was difficult to make a statutory case, whether it be mandatory regulations, recalls or civil penalties. There was no doubt that Brown was a boss who usually got what she wanted.

As the head of SAFE, and possibly as a regular consumer spokesman on NBC, Brown has pledged that she will continue to keep a close watch on CPSC matters.

CPSC Votes to Proceed with NPR on Portable Bed Rails

One of the pieces of "unfinished business" listed by outgoing CPSC chairman Ann Brown is the adoption of a federal regulation on portable bed rails. On Oct. 30, all three Commissioners supported a Notice of Proposed Rulemaking (NPR) to issue a federal standard for portable bed rails, devices used with adult-sized beds to prevent young children from rolling out of beds onto the floor.

The Commission staff said that 14 deaths associated with the bed rails had occurred to children since 1990. Twelve deaths were caused by entrapment between the rail and part of the bed, and 11 of those 14 fatalities were to children under two years.

Manufacturers already label the rails to warn parents against using the rails for children under two, but all three Commissioners agreed that since many caregivers do use them for such young children, the design needs improvement.

The Commissioners voted to begin rulemaking a year ago, when efforts to prod the industry into adopting a new standard were unsuccessful. This month, the ASTM Subcommittee for Portable Bed Rails sent out a draft standard for balloting.

While voting to approve the NPR, Commissioner Mary Gall noted that since January 1990, 224 children aged less than two years died as a result of entrapments between the wall and the mattress while sleeping in adult beds--without bed rails! She notes that this is an average of about 20 per year. Gall moved, and the Commissioners agreed, that the Commission implement an information and education campaign to inform parents and caregivers about the hazards of placing such young children in adult beds. Gall said that such a campaign is "even more important" than the Commission's action to develop a performance standard for portable bed rails. [14]

Markey Introduces Bill to Expand CPSC Authority

Representative Ed Markey (D-Mass) introduced the "Consumer Product Risk Reporting Act of 2001" in the House of Representatives on Oct. 2.

Markey, best known in CPSC circles for his sponsorship of legislation to give CPSC jurisdiction over fixed-site amusement park rides, modeled the latest bill on a May 2000 White House effort to increase CPSC compliance authority. [15]

At that time, CPSC Chairman Ann Brown, accompanied by then-First Lady Hillary Rodham Clinton, announced that new legislation would be introduced to "crack down" on companies who fail to report hazardous products to CPSC under its Section 15 recall authority.

The Markey bill re-introduces the risk reporting amendments.

The proposal would amend both the Consumer Product Safety Act, (CPSA) and the Federal Hazardous Substances Act (FHSA) to give the Commission final authority over the decision (now made by the manufacturer, distributor or retailer of a consumer product) to elect "repair, replacement or refund" options as remedies to the consumer.

At present, if a product is determined to present a "substantial hazard," a company may select one of the three options as a remedy for consumers.

But under the Markey legislation, Commissioners would be able to determine that a company's choice "is not in the public interest," and order the company to take some other action.

The impetus for this part of the legislation appears to be the controversy that occurred when General Electric (GE) elected to offer a rebate on the purchase of new dishwashers when it announced a recall of some older models that were alleged to have a fire hazard involving a heat/dry switch. CPSC Compliance officials were reported to be adamant that the rebate option was not adequate, but under the law, could do nothing to prevent GE from selecting that option. Markey's legislation, if enacted, would give CPSC additional authority to dictate that choice.

Markey's bill also would increase the amount of civil penalty that may be imposed for non-reporting from the present $5,000 per violation to $7,000 per violation, and eliminates language setting a cap on civil penalties at $1,250,000 for any related series of violations. This provision would apply to both the CPSA and the FHSA civil penalties.

Finally, the bill would amend the CPSA and the FHSA to provide for criminal penalties for noncompliance with Section 15 reporting requirements.

UL and CPSC Collaborate on New Standard for Automatic Security Gates

CPSC announced Oct. 23 that it had worked with Underwriters' Laboratories (UL) to develop a new safety standard for automatic security gates used in entrances to apartment buildings, condos, parking lots and garages.

The standard, a voluntary consensus standard, adopted by UL in March 2000, is similar to standards in effect for automatic garage doors. The security gate standard requires a sensing device that reverses the gate if it encounters an obstruction when opening or closing, and a secondary sensing mechanism that will reverse the gate if an obstruction is detected.

The standard also requires several other safety measures, including elimination of gaps over 2.25 inches, elimination of pinch points, and posting of warning signs.

CPSC reported that it has learned of 32 deaths related to these automatic gates since 1985.

Equestrian Group Mandates ASTM/SEI Helmets for Junior Riders

Under a rule that takes effect Dec. 1, junior riders (those under 18) showing in hunter and jumper classes sanctioned by the American Horse Shows Association, must wear riding caps certified by the ASTM (American Society of Testing Materials) and SEI (Safety Equipment Institute.) But some disagree with the rule. The controversy was covered in the Oct. 12 issue of The Chronicle of the Horse, a weekly devoted to racing and showing sports.

The rule has some exhibitors and their parents upset. Some are complaining that the riding caps are uncomfortable, don't fit precisely, and are unattractive.

But in an editorial in The Chronicle, riders were urged to comply with the new rule. Joe Dotoli, a hunter-jumper show judge wrote that there are about 20 caps now on the market that are certified by ASTM/SEI and are designed to look like the traditional hunt cap. Overall, there are 65 different helmet models from which to choose.

But some trainers and parents argue that the ASTM certification does not take into account the specific needs of the equestrian sport. Margie Hough-Sabbatini, in an article in The Chronicle, suggested that equestrian enthusiasts use the ASTM/SEI standards "as a springboard from which to design our own equestrian specific safety headwear criteria." [16]

The controversy has been around for some years, but the AHSA hunter-jumper role for juniors follows on the example of several other riding groups. 4-H, U.S. Pony Clubs and horse-racing associations now require the use of safety helmets.

Head injuries are the most common fatal injury to riders. Wearing safety helmets has been shown to minimize or prevent such injuries.

An improvement in the style, fit, and safety level of riding helmets has been evident in the past ten years. Today most adult riders in horse sports now usually wear the newer ASTM/SEI certified models. CPSC has not gotten involved in the helmet controversy. But it has established a federal standard for bicycle helmets. Some observers worry that the imposition of rigid federal standards stifles the motivation to continue to improve helmet safety.

Brown Cites Two More for Safety Awards

It will be interesting to see if the new CPSC chairman will continue outgoing Chairman Ann Brown's invention, the Chairman's Commendation.

This month, just prior to her departure, Brown bestowed the title on two more recipients, Gerber Baby Products Company and Williams-Sonoma Inc.

Brown cited Gerber for its support of CPSC's Baby Safety Shower Program and other safety initiatives on Oct. 29. Additionally, Gerber funded a public service TV announcement targeting African-American parents warning them of the risk of sudden infant death syndrome (SIDS). This effort was in collaboration with the Department of Health and Human Services and Black Entertainment Television.

On Oct. 17, Brown awarded her commendation to Williams-Sonoma Inc. of San Francisco for its efforts in recall effectiveness.

Williams-Sonoma was 99 percent effective in the recall of a portable gas grill. The company used credit card records to identify consumers who purchased the grills and notified them individually. In addition, Williams-Sonoma provided a $50 gift certificate to each consumer with the full refund for the grill.

While the actions of Gerber and Williams-Sonoma may be worthy of praise, many believe that it is not appropriate for the Chairman of a federal regulatory agency to offer endorsements of private companies. While there has been no challenge to Brown's initiative, some expect that the Chairman's Commendation program will expire once Brown is gone.

Footnotes:

[1] `President Bush Announces Four Individuals to Serve in His Administration,' Office of the Press Secretary, The White House, Oct. 30, 2001.

[2] `CPSC Files Lawsuit Against Daisy Manufacturing Co. To Recall Two Models of Daisy's Powerline Airguns Due to Defects.' U.S. Consumer Product Safety Commission, Office of Information and Public Affairs, Washington, DC. Oct. 30., 2001.

[3] See "Brown's `Major Recall or Lawsuit' Might Target Air Guns" CPSC Monitor, September-October 2001, Vol. 6, Issue 9.

[4] The White House Press Office, Op Cit.

[5] Information from website of Defenders of Property Rights, www.yourproperty.rights.org.

[6] "Statement of The Honorable Mary Sheila Gall in Opposition to Issuance of Administrative Complaint Against Daisy Manufacturing Company", Oct. 30, 2001, U.S. CPSC, Washington DC.

[7] Ibid.

[8] "CPSC Files Lawsuit Against Daisy Manufacturing Co. To Recall Two Models of Daisy's Powerline Airguns Due to Defects."

[9] "Air Rifles in Line of Fire From Safety Chief,: Outgoing Chairman Seeking a Recall," by Caroline Mayer, The Washington Post, Oct. 20, 2001.

[10] Statement of the Honorable Mary Sheila Gall in Opposition to Issuance of Administrative Complaint Against Daisy manufacturing Company, Oct. 30, 2001.

[11] Ibid.

[12] "Safety Agency Chief Going Out With Gusto," by Caroline Mayer, The Washington Post, Oct. 30, 2001.

[13] Ibid.

[14] News from CPSC, Commissioners' Statements: Bed Rail Decision, U.S. Consumer Product Safety Commission, Washington DC Oct. 30, 2001.

[15] "White House Pushes Bills to Increase Penalties, Expand CPSC Authority." CPSC Monitor, May 2000, Vol. 5, Issue 3.

[16] Hough-Sabbatini, Margie, "We Need Helmets That Are Designed for Riding," The Chronicle of the Horse, Oct. 12, 2001.