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Bridge Over Troubled Water

In October, Thomas Moore, with whom I have had the pleasure of serving for six years, will end a 16-year tenure of stewardship as a CPSC Commissioner. Like many others, I hope the President nominates and the Senate confirms Commissioner Moore’s successor promptly.

There has been growing speculation as to how the Commission will function if our new colleague’s arrival is delayed. It’s no secret that many of our recent decisions have been contentious, with philosophical disagreements producing frequent 3-2 splits in either votes or opinions. Until another takes Commissioner Moore’s place, the three-Commissioner majority bloc will be down to two, and some worry a four-member CPSC will be immobilized by stalemates.

This dire prediction overlooks an option we’ve had all along: Cooperation. And for an example of how important that can be, we need look no further than Commissioner Moore.

From three years, I served as the acting Chairman of the CPSC. During that time, we had more seats empty than filled, as Commissioner Moore and I were the only members. With only two votes available, and since the law requires at least two votes for any official action, we had to work together if we wanted to get anything done. So we did.

During that time, with an under-funded and under-staffed CPSC, we took important strides to make, among others, portable generators, upholstered furniture, ATV’s and cribs safer, and we started climbing the mountain of work the CPSIA demanded. In the 9 months following the passage of the CPSIA, we issued more than two dozen rules and other decisions. We could not have done any of that work without a commitment to cooperation and civility.

But that collaboration wasn’t just a matter of necessity. Cooperation was—and remains—the most effective way for the CPSC to operate.  Cooperation and collaboration are hallmarks of genuine leadership. Leadership is recognizing that the best time to build a bridge is before the water is troubled. Commissioner Moore and I built such a bridge, but it seems to have been burned.

With the crutch of an absolute majority to lean on, it has not been necessary for the current Commission to collaborate or cooperate. Now, it looks like a seat will be empty and any action will require bi-partisan support.  We will again have a river to cross, but with no bridge to walk. My hope is that we still remember how to build a new one.

The talk about Commissioner Moore’s departure should be limited to how much we’ll miss him, but instead the rancor of the past two years stirs whispers of deep divides and stalemates.  This doesn’t have to be. Every Commissioner wants to protect consumers, as does every CPSC employee. We differ in our approach, in how we choose to balance the consequences of our choices, but we share that common goal.

 My vote will continue to go, as it always does, to the merits of each issue. If we can build another bridge and restore an atmosphere of collegiality and trust, I’m confident we can find enough common ground to allow the CPSC to effectively carry out its mission. The only remaining question is how many bridge builders we have left on the Commission.

Tumbling into a Registry

Remember when you were a kid and you really wanted nothing more than to go out and play, but your parents said you couldn’t until you cleaned your room? Did you try to get by with just shoving everything in the closet? That worked right up until the door was opened and everything tumbled out, revealing the sloppiness of your effort. Now replace the child with a federal agency, and replace parental orders with congressional mandates. That’s what’s happening at the CPSC.

Like a child who “cleans” his room by stuffing everything into the closet, the CPSC rushed through a congressionally-mandated small-batch–manufacturers registry sloppily and at the last minute. As a result the agency may be failing to protect the very people the registry was supposed to protect. Last week, we finally issued a press release to let small batch manufacturers (SBMs) of children’s products know how they can take advantage of the testing relief Congress provided SBMs last August. Left unclear was whether an SBM had to be on the registry not to be required to perform certain tests that are mandated to begin in January 2012.

There is no new rule, and there was no Commission action. We shoved everything into a press release and called it a day. And to make matters worse, we issued our press release on December 23, during the holidays and just days before the new testing requirement kicks in. Our insincerity is obvious.

Another policy question not discussed by the Commission was this: Should the registry be public? There are reasonable arguments that it should be. However, there are also reasons why it should not be public since, by publishing the registry, we are implicitly releasing confidential information. (To register, a company has to be below certain revenue and product-quantity thresholds. Commissioner Northup has detailed the problems with publicizing this information, and I won’t belabor them here.) My key concern is there was no Commission-level discussion of this important policy issue.

Instead of working to find a compromise or a solution that would accommodate both points of view—something that could have been accomplished—the concerns of half of the Commission were ignored. The Chairman decided to call the process of establishing the SBM Registry and the attendant issues surrounding it “operational” rather than policy in order to act unilaterally through staff, instead of through a Commission vote.

They have told companies to use the complicated Freedom of Information Act (FOIA) exemption process if they want to keep the CPSC from telling their financial particulars to the whole world. That process requires time and legal expertise, and I believe our retreat to FOIA is contrary to the spirit of the law.

Congress wanted to relieve the product-testing burden for companies least able to bear it and to protect America’s vital small business job-creation engine. Do we really think Congress meant for these businesses to save money on testing just to spend it on lawyers? All these points could and should have been part of a Commission discussion, so people understand the reasoning behind these important decisions.

Will there occasionally be some substantial, fundamental disagreements about the best course of action? Of course there will be, but we owe to each other and the public to work to make those as infrequent as possible and to resolve them as best we can when they occur. I know we can do better, and I hope we will, but I’ll need some help from my Democratic colleagues to build a bridge.

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