Consumer subcommittee to examine standards for gun locks.

Ann Brown to Testify on Gun Locks

Any effort to expand CPSC's jurisdiction and enforcement authority will find CPSC Chairman Ann Brown in the forefront. Brown has called for CPSC jurisdiction over gun locks, a proposition made uncertain because of express exclusion of firearms in CPSC's governing statute.

But currently there is an effort in the Congress to establish federal standards for gun locks. The Senate Commerce Subcommittee on Consumer Affairs, Foreign Commerce and Tourism is said to be planning a hearing soon to explore the question: "Should there be a mandatory or a voluntary standard for gun locks?" The Senate Subcommittee on Consumer Affairs had originally set Tuesday, March 6 for the hearing, but as of March 1, had not formally announced that the hearing was scheduled. Chairman Brown will be among those testifying. In the last Congress, a bi-partisan bill sponsored by Senator John F. Kerry (D--MA.) and Rep. Mike DeWine (R-Ohio) sought to direct the CPSC to begin rulemaking to set federal standards for gun locks. Sen. Kerry and Rep. Elliott Engel (D-NY) have submitted similar bills in this session of Congress. (1) Rep. Engel was invited to testify before the subcommittee about his bill.

The Kerry and Engel bills are supported by the National Safe Kids Campaign (NSKC). Its staff members have visited members of Congress recently to demonstrate how gun locks work or don't work, and how many different types of designs are on the market. NKSC staff support directing CPSC to develop a federal standard.

The move toward a mandatory standard follows on the heels of a glitch in last year's "Project HomeSafe," a national educational effort sponsored by the National Shooting Sports Foundation (NSSF). (2) Along with its educational programs, the trade group distributed 400,000 cable gun locks through more than 600 law enforcement agencies. (3)

Cable gun locks are distinct from the more complex "trigger locks." Cable locks resemble bicycle cable locks, and are designed to be pulled through gun handles or barrels to prevent the weapon from firing. When the lock is in place, the gun cannot be loaded or fired. Trigger locks keep the trigger from being pulled on guns that can (but should not be) loaded.

Last fall, police in Knoxville and Chattanooga, Tennessee discovered that the devices could pop open under minimal force without the use of a key. The NSSFimmediately suspended distribution of the locks and, in cooperation with CPSC, issued a voluntary recall for their replacement. There are no known incidents related to the defective gun locks.

The NSSF says it is replacing the old locks with an improved lock with a better locking mechanism and a thicker braided-steel cable. Consumers can call Project HomeSafe at [phone] to obtain the new lock.

The NSSF is receiving a federal grant in the amount of $5 million to continue and expand its educational work on gun locks.

The subcommittee, chaired by Sen. Peter G. Fitzgerald (R.-Ill.) says it planned to look into the possibility of establishing either federal or voluntary standards for the locks.

One CPSC staff member called the effort to regulate gun locks "a solution in search of a problem." CPSC's National Electronic Surveillance System (NEISS) has picked up no incidents involving the failure of gun locks. While CPSC lacks jurisdiction over firearms, (4) it collects data regarding unintentional injuries with firearms for the Centers for Disease Control (CDC).

CPSC has ventured into the gun lock business in the past. In July of last year, CPSC and Master Lock Co. jointly recalled some 752,000 trigger gun locks. The Master Lock problem involved a defect in which the two halves of the locks could be manually separated without a key. Again, there were no incidents reported as a result of the defect.

California has already regulated gun locks. Under provisions of a new state law, an emergency regulation on gun locks has been promulgated, subject to a period of public comment. The California regulation would subject locks to a test in which a "determined adult" using common household tools could not force the lock open.

Oddly, the California law defines "common household tools" as meaning items such as hacksaws or hammers.

The Kerry and Engel bills now before the Congress direct CPSC to promulgate a regulation that would require gun locks that "are sufficiently difficult for children to de-activate or remove; and prevent the discharge of the handgun unless the gun lock has been de-activated or removed."

In the bills the term "child" is defined as an individual who has not attained the age of 13. CPSC observers say designing such a standard might be impossible, given the ability of children of that age to use sophisticated tools.

Protocols for child resistant cigarette lighters and child resistant closures on hazardous household products require only that a child five years old of younger not be able to defeat the device.

Given the propensity of other states to follow California's lead in safety regulation, some observers have suggested that the firearms industry may prefer federal regulation to avoid conflicting state law. But Commissioner Mary Gall (the only sitting Republican Commissioner and a good bet to become the next CPSC chair) believes a voluntary American Society for Testing and Materials (ASTM) standard could be the answer. CPSC staff has already referred the gun lock issue to ASTM and a subcommittee of the group will take it up soon.

Simultaneously, another trade organization, the Sports Arms and Ammunition Manufacturers Institute, has already been at work developing a gun lock standard through the American National Standards Institute (ANSI).

Larry Keane, vice president and general counsel of the NSSF, said that gun locks have been distributed with firearms since 1996, with no known incidents involving giving access to guns to unauthorized users. Keane also said that NSSF would be willing to participate in the development of an ASTM standard. He added that there were concerns that the effect of the new California gun lock regulation would be to make the devices too expensive to manufacture and market. He says that the California regulation, as he understands it, seeks to make gun locks foolproof--an impossible task. Keane reiterated that NSSF's goal is to help provide gun locks that make firearms "child resistant," not childproof.

One CPSC insider observed that going the ASTM route would be much faster than relying on CPSC to regulate, citing the fact that it has taken CPSC 20 months to ban "dive sticks," which were hazardous devices used in swimming pools.

Given the lack of incidents, the Commissioners could not make a finding of substantial product hazard of conduct a cost-benefit analysis to support rulemaking under the Consumer Product Safety Act. It appears the Kerry and Engel bills would eliminate those statutory requirements in the case of gun locks. Two years ago, a bill to define firearms and ammunition as "consumer products" (by deleting 15 U.S.C. 2052 (a)(1)(E) from the CPSA), was introduced. (5) While there was no support for the bill, any move to direct CPSC to regulate gun locks is one more step in that direction.

CPSC Splits on OMB Review of Proposed Rule on Candle Wicks

CPSC voted February 9 to issue an Advance Notice of Proposed Rulemaking (ANPR) to ban leadcored candle wicks. While the three Commissioners agreed that lead candle wicks, present in some decorative and novelty type candles, were hazardous, they disagreed on whether their proposal should be reviewed by the Office of Management and Budget (OMB).

The candle wick issue came before CPSC as a result of a petition. The agency reported that its studies showed that despite the existence of a voluntary standard to remove lead from candle wicks, a small percentage of candles on the market continued to contain lead. Many retailers and manufacturers had already discontinued the production or sale of such candles. But the Commissioners were concerned about the health risk associated with the few candles on the market that could still pose a hazard.

Commissioner Mary Gall supported the ANPR, but favored submitting it to OMB prior to sending it to the Office of the Federal Register for publication.

Gall stated that a January 20, 2001 memorandum from the President entitled "Regulatory Review Plan" was sent to all heads and acting heads of Executive Departments and Agencies, directing them to refrain (temporarily) from transmitting proposed or final regulations to the Federal Register without review by the OMB.

Gall noted in her statement that although she recognized there was no requirement to submit the agency's proposed rules to OMB, there was also no prohibition against voluntary cooperation by the agency. The regulatory review memo said that agencies could request an exemption from OMB in the case of regulations affecting critical health and safety functions, and Gall said she was certain OMB would recognize this as one of those exceptions. (6)

Her two colleagues disagreed. Commissioner Thomas Moore observed that CPSC as an independent agency "cannot comply with this request without seriously eroding the power granted by Congress to the individual Commissioners."

Moore continued, saying "[n]or do I think it would be wise from a policy standpoint to give any power over the promulgation of our regulations, even on a temporary basis, to an office of the Executive Branch, in this case the OMB." (7)

In like manner, Chairman Ann Brown said that "Congress specified that it wanted CPSC removed as far as possible from the influence of partisan politics or political control. Influence in the form of oversight by OMB or a change in political leadership was what Congress wanted CPSC to avoid." (8)

Apparently, Chairman Brown sees no conflict between the above statement and her use of the Clinton White House to promote legislation to give greater enforcement powers to CPSC. (9)

`Code of Conduct for Attorneys' Fails to Get Support

In September 2000, CPSC Monitor reported that CPSC's Office of General Counsel was proposing a "Rules of Conduct for Outside Attorneys" regulation. The proposed rule would allow penalties to be imposed on attorneys representing clients before CPSC if they were, in the opinion of CPSC staff, violating the CPSC "Standards of Conduct." Attorneys could be barred from practicing before CPSC under certain of the newly proposed rules.

The proposal was published in the Federal Register November 6, 2000 but as the comment period draws to a close, it appears there ate no supporters, with the lone exception of the Consumer Federation of America (CFA).

In a letter filed with CPSC's Office of the Secretary, attorneys who represent various trade associations expressed their strong opposition to the new roles.

The attorneys called the proposal "unwarranted and dangerous," and said that the Commission would, under the proposal, "serve as judge, jury, and executioner without affording even the most basic notion of fair play and due process."

The group continued to express fear that the proposal could result in the "defamation of the lawyer or law firm subject to the allegations of misconduct."

The group also said it believed that "the proposal fails to present a credible case for amending the current regulation, is flawed in providing basic due process, and should be withdrawn." (10)

The proposal has met with such strong opposition that it will likely die or be amended substantially to eliminate the expressed concerns.

Briefly Noted ...

* Look for a staff package proposing the ban of baby bath seats to be sent to the Commission within a few weeks. The Commission could adopt this proposal, unless there is a change in the makeup of the body shortly.

* The upholstered furniture proposed rule is also due for submission to the Commission soon. There is some talk that the proposal may be significantly amended to include not only requirements for the flammability of fabrics but the use of barrier technology. This rule is based on the concept that products must be made safe from the results of unsupervised child play--usually with lighters and matches.

* No word on the "Chairman Watch." Chairman Ann Brown is said to have scheduled commitments--as Chairman--well into June. Although there are no vacancies, President Bush could name a new Chairman from among the sitting Commissioners, but there is no sign as yet that action is imminent.

(1) Sen. Kerry's bill is S. 4016, and Rep. Engel's bill is H.R. 499.

(2) The National Shooting Sports Foundation represents some 1,800 gun and accessory manufacturers.

(3) In March 2000, the National Shooting Sports Foundation joined forces with the American Academy of Pediatrics and the National Safe Kids Campaign to form Common Sense about Kids and Guns, a national nonprofit public education campaign.

(4) See Consumer Product Safety Act, [15 U.S.C. 2052] (1) (E). This section defines consumer products and exempts firearms and ammunition from CPSC jurisdiction.

(5) S. 1190, 106th Congress, 1st Session, To apply the Consumer Product Safety Act to firearms and ammunition. Referred to the Committee on Commerce, Science and Transportation. Section 3(a)(1) of the Consumer Product Safety Act would have been amended by striking subparagraph (E).

(6) Statement of the Honorable Mary Sheila Gall In Support of Granting of Petition and Issuing an Advance Notice of Proposed Rulemaking to Ban Use of Lead-Cored Candle Wicks, February 9, 2001

(7) Statement of the Honorable Thomas H. Moore in Support of Granting the Petition to Ban LeadCored Candle Wicks and Issuing an Advance Notice of Proposed Rulemaking, February 9, 2001.

(8) Statement of the Honorable Ann Brown in Support of Petition and Advance Notice of Proposed Rulemaking to Ban Lead-Cored Candle Wicks, February 13,2001.

(9) See CPSC Monitor, Vol. 5, Issue 5, May 2000 "White House Pushes Bills to Increase Penalties, Expand CPSC Authority,"

(10) Letter to the Office of the Secretary, Consumer Product Safety Commission, from the CPSC Coalition, Jan. 8, 2001. Members of the Coalition include nine prominent trade associations, including the National Association of Manufacturers, the Toy Manufacturers Association, and the Association of Home Appliance Manufacturers.

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