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The Consumer Safety Agency, Stalled by Room at the Top

By Cindy Skrzycki
Tuesday, February 20, 2007

From the outside, it looks like business as usual at the Consumer Product Safety Commission. The agency issued more than a dozen voluntary recall notices during the first two weeks of this month, pulling off the market batteries that can ignite, hooded sweatshirts with drawstrings that can choke children and jackets with snap closures that contain lead.

The reality, however, is that the agency is working with one hand tied behind its back. The three-person commission has been without a chairman since last summer, and for the past month, it has lacked a quorum to vote on issues central to its mission: suing a manufacturer, setting civil penalties or writing rules.

"You can rely on the integrity of most companies, but there are situations where the commission has to compel a recall by filing a lawsuit," said Alan Schoem, who directed the commission's Office of Compliance from 1997 to 2004.

The loss of authority illustrates what can happen in the final years of an administration when the urgency to fill vacancies is not as high a priority as at more-prestigious independent agencies, such as the Securities and Exchange Commission and the Federal Communications Commission.

Public safety may be at stake, too, because the lack of a quorum means the agency can't pursue its regulatory agenda to lower the level of lead in children's jewelry, redesign portable generators and address safety risks of all-terrain vehicles.

President Bush hasn't named a nominee to replace Chairman Hal Stratton, who left July 15. Industry and consumer groups say they regret the lack of leadership at the agency, which is charged with protecting the public from hazardous products, including toys, smoke alarms and baby cribs.

Consumer advocates said letting the CPSC's authority lapse is just the latest chapter in the years-long weakening of the agency. It has dealt with meager budget increases and staff cuts. There is no money, they say, to update product-testing or pursue emerging safety issues, such as the injury potential of Heelys, a combination sneaker and roller skate.

"With budget cuts and a lack of a quorum, the CPSC cannot fulfill its mission, at least not for consumers," said Rachel Weintraub, senior counsel and director of product safety for the Consumer Federation of America in the District. "It shows where the agency falls on the administration's list of priorities. There is no way they can continue the current level of work."

The commission has lost its quorum four other times, twice earlier in the Bush administration. Agency officials said that the CPSC is functioning and that companies that ignore their duty to report hazards do so at their peril.

"It's business as usual," said spokeswoman Julie Vallese. "There are procedures in place to allow us to continue advancing safety in the consumer marketplace."

The legislation that created the agency in 1972 lets two commissioners make up a quorum for six months after a vacancy occurs. Since Stratton left, the two remaining commissioners, Republican Nancy Nord and Democrat Thomas Moore, have approved two civil penalty settlements with companies, voted to approve a mandatory warning label for generators, amended a flammability standard for carpeting and started working on a rule to limit lead in children's jewelry.

"We rushed out a lot of things that were ripe," said Pamela Weller, counsel to Moore. That six-month quorum period ended Jan. 15. She said the current lack of a quorum means "public safety is held in abeyance until a third commissioner comes on board."

Nord and Moore voted on Jan. 12 to delegate some of their authority to the staff, so some pending civil penalties could be assessed and voluntary recalls conducted.

This partial authority doesn't help David Baker, a lawyer in Washington who represents the Lighter Association, a trade group for manufacturers and distributors of lighters in the United States.

He petitioned the agency in 2001, asking that it set a mandatory safety standard for lighters on the grounds that imports, particularly from China, don't meet the standard that U.S. manufacturers, such as Zippo Manufacturing and Bic now meet.

"It does affect us," Baker said. "I thought there might be a decision before they lost quorum."

Rick Locker, counsel to the Toy Industry Association and the Juvenile Products Manufacturers Association, said the agency is crippled because it can't file a suit or vote on a rule. He said the companies he represents would like to see the agency have the funding to work on uniform international safety standards.

The cure to the quorum problem, of course, is getting someone into the top chair. The strongest candidate appears to be Michael Baroody, executive vice president and top lobbyist for the National Association of Manufacturers. The NAM has challenged commission rules that it thinks go too far or aren't based on scientific evidence.

Emily Lawrimore, a White House spokeswoman, wouldn't comment on Baroody, saying only that no nominee's name has been sent to the Senate.

If nominated, Baroody would have to convince Democrats on the Senate Commerce, Science and Transportation Committee, which oversees the agency, that he would protect consumer interests.

Another possibility is that the White House could give Baroody a recess appointment and sidestep a nomination hearing. Congress isn't in session this week.

In the meantime, Sen. Mark Pryor, a Democrat from Arkansas who is chairman of the committee's consumer affairs subcommittee, is trying to restore the agency's quorum.

He introduced legislation on Feb. 13 to give the two remaining commissioners another six months of authority. His spokeswoman, Lisa Ackerman, said Pryor hopes the bill will "light a fire under the administration to get things moving."

Cindy Skrzycki is a regulatory columnist for Bloomberg News. She can be reached atcskrzycki@bloomberg.net.

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