- NOMINATION OF MARY SHEILA GALL, TO CHAIR THE CONSUMER PRODUCT SAFETY COMMISSION

[Senate Hearing 107-735]
[From the U.S. Government Publishing Office]

S. Hrg. 107-735

NOMINATION OF MARY SHEILA GALL, TO CHAIR THE CONSUMER PRODUCT SAFETY
COMMISSION
=======================================================================

HEARING

before the

COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

__________

JULY 25, 2001

__________

Printed for the use of the Committee on Commerce, Science, and
Transportation

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ERNEST F. HOLLINGS, South Carolina, Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska
Virginia CONRAD BURNS, Montana
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAM BROWNBACK, Kansas
MAX CLELAND, Georgia GORDON SMITH, Oregon
BARBARA BOXER, California PETER G. FITZGERALD, Illinois
JOHN EDWARDS, North Carolina JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri GEORGE ALLEN, Virginia
BILL NELSON, Florida
Kevin D. Kayes, Democratic Staff Director
Moses Boyd, Democratic Chief Counsel
Mark Buse, Republican Staff Director
Jeanne Bumpus, Republican General Counsel
C O N T E N T S

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Page
Hearing held on July 25, 2001.................................... 1
Statement of Senator Allen....................................... 20
Statement of Senator Boxer....................................... 17
Prepared statement........................................... 18
Article, USA Today, dated October 12, 1999................... 53
Statement of Senator Breaux...................................... 57
Statement of Senator Burns....................................... 66
Prepared statement of Senator Carnahan........................... 22
Statement of Senator Edwards..................................... 20
Statement of Senator Ensign...................................... 18
Prepared statement........................................... 19
Statement of Senator Hollings.................................... 1
Prepared statement........................................... 1
Statement of Senator Hutchison................................... 55
Statement of Senator Kerry....................................... 16
Statement of Senator Lott........................................ 45
Statement of Senator McCain...................................... 2
Prepared statement........................................... 4
Statement of Senator Nelson...................................... 64
Statement of Senator Smith....................................... 62
Statement of Senator Wyden....................................... 6
Letter to Senator Wyden with attachments, dated May 15, 2001,
from Mary Sheila Gall...................................... 7

Witnesses

Statement of Mary Sheila Gall, Commissioner, Consumer Product
Safety Commission.............................................. 22
Prepared statement........................................... 24
Biographical information..................................... 34

Appendix

DeLauro, Hon. Rosa L., U.S. Representative from the State of
Connecticut, prepared statement................................ 77

NOMINATION OF MARY SHEILA GALL, TO CHAIR THE CONSUMER PRODUCT SAFETY
COMMISSION

----------

WEDNESDAY, JULY 25, 2001

U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room

SR-253, Russell Senate Office Building, Hon. Ernest F. Hollings
[Chairman] presiding.
Staff members assigned to this hearing: Moses Boyd,
Democratic Chief Counsel; Aisha Pearson, Democratic Assistant
to the Chief and General Counsel; Jeanne Bumpus, Republican
General Counsel; and Virginia Pounds, Republican Professional
Staff Member.

OPENING STATEMENT OF HON. ERNEST F. HOLLINGS,
U.S. SENATOR FROM SOUTH CAROLINA

The Chairman. Good morning. This morning we will hold a
hearing on the nomination of Commissioner Mary Sheila Gall to
serve as Chairperson of the Consumer Product Safety Commission.
Ms. Gall, we welcome you this morning. I understand two of
your children are with you, and if they would stand the
Committee would welcome them and recognize them. Good. That is
Walter Gall and Rosa Gall.
Ms. Gall. Thank you, Mr. Chairman.
The Chairman. Glad to have you both here with the nominee.
I have a statement, but I will just file it for the record
and yield to Senator McCain.
[The prepared statement of Senator Hollings follows:]

Prepared Statement of Hon. Ernest F. Hollings,
U.S. Senator from South Carolina
Let me begin by welcoming Commissioner Gall to the Committee and to
thank her for her appearance today.
I am sure she is well aware of the seriousness of today's hearing.
It has been called to consider her nomination to be Chairperson for the
Consumer Product Safety Commission. There is a great deal of interest
in this nomination. To get right to the point, a number of nationally
recognized consumer organizations have voiced strong concerns about
Commissioner Gall's appropriateness to serve as Chairperson of the
CPSC, and on that basis are opposing her selection.
As Commissioner Gall will properly acknowledge, she has served as a
Commissioner on the CPSC now for 10 years. She was first appointed in
1991 by President Bush, renominated and appointed in 1999 by President
Clinton, as she was paired with the then and current Chairman Ann Brown
for renomination. In recent times, the Commission has been functioning
with three Commissioners. The law requires that at least one of those
persons be a member of the opposite party of the President's party.
This law is necessary to provide a balance of viewpoints on federal
commissions and at independent agencies. Thus under President Clinton,
Ms. Gall served as the Minority Commissioner, and was selected by the
Republican Members of Congress to maintain and fulfill that role--a
deference a President, and members of the other party generally honor.
I, along with other members of this Committee, and the Senate supported
this effort to have Commissioner Gall re-confirmed for another term.
Commissioner Gall, however, has now been nominated for a different
position, which will require her to play a different role and to
fulfill different responsibilities. Unlike being a Commissioner, as the
Chairperson she will be required to serve as the number one government
official in the country on product safety.
Additionally, she will be required to be the head administrator at
the Commission; in charge of setting its agenda, determining its
direction and the actions it will pursue; in charge of overseeing and
directing the Commission's staff, and maintaining their morale; and
lastly, in charge of educating the American people about the role their
government is playing protecting them from hazards associated with
consumer products.
The question before the Committee is whether Commissioner Mary
Sheila Gall is the appropriate individual to fulfill this role and
these responsibilities.
As I noted, several outside organizations have voiced concerns
about Ms. Gall's record. Specifically, they claim that she has a
tendency to:

(1) require excessive evidence before promulgating safety
standards;

(2) blame consumers for their injuries rather than considering
possible defects in products or seeking reasonable ways to
minimize potential product hazards; and

(3) oppose the adoption of mandatory standards, even when
evidence exists either of industry's noncompliance with a
voluntary standard or of serious deaths and injuries associated
with a product.

These groups claim that Ms. Gall often takes such positions even in
cases involving children. From their point of view, Ms. Gall proceeds
from the theory that parents are to be held responsible substantially
for their children; thus any time the CPSC considers a case involving
children, the first issue to be addressed is parental behavior--has the
parent been irresponsible--regardless of whether the product is
defective or can be made to be safer.
As I mentioned Commissioner Gall will be given ample opportunity to
respond to these charges as I am sure she is prepared to do.
There are two additional points I would like to make before turning
to my colleague, John McCain. First, let me make clear that this
hearing will be conducted fairly and that Commissioner Gall will be
given the opportunity to state her case on the record and in follow-up.
Second, in closing, I would like to make a few comments about the
CPSC. It is an agency that is dear to me. The agency was officially
created in 1972. Its mission was clear: it was to protect the American
public from unreasonable dangers associated with consumer products.
That mission is still important, in fact it may be even more so today.
Product-related injuries today contribute to more than 20,000 deaths
and close to 30 million injuries every year; they cause the death of
more children than any health-related disease. We must find a way to
protect our children from these kinds of dangers. Losing thousands of
children like this every year is uncalled for. This is the charge of
the CPSC.
Again, the task before us is deciding whether Mary Sheila Gall is
the ideal person to uphold this mission. Her record, and the answers
she gives today will be important in that determination.

STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA

Senator McCain. Well, thank you, Mr. Chairman, and thank
you for holding this hearing on this important position.
In 1991 Mary Sheila Gall was nominated to the Consumer
Product Safety Commission by President George Bush. The task of
the CPSC is an important one, to protect the public against
unreasonable risks of injuries and deaths associated with
consumer products.
Between 1991 and 1999, Commissioner Gall voted with the
majority of the three-member Commission the vast majority of
times, supported the Commission's enforcement actions, and
sought substantial fines and criminal penalties against
companies that violated the Consumer Product Safety Act and
other statutes enforced by the CPSC. During this time,
Commissioner Gall also cast a number of votes that have since
become the focus of efforts to derail her nomination. Let me
recite this parade of horribles.
In 1992, Commissioner Gall voted with both of her
colleagues against a rulemaking to put choking hazard labels on
marbles, balloons, and small toys. One year later she voted,
again unanimously, not to begin a rulemaking on baby walkers,
opting instead to urge the continued improvement of the product
through voluntary standards.
In 1994, Commissioner Gall voted, again with the majority,
not to begin a rulemaking on baby bath seats after a petition
to ban them was filed. Also in 1994, in response to a petition
filed by the National Association of State Fire Marshals,
Commissioner Gall voted not to begin a rulemaking on
upholstered furniture flammability standards. Despite this, the
State Fire Marshals endorsed her chairmanship earlier this
year.
In 1996 Gall cast another vote with the majority for which
she is now being vilified. That time it was to modify the
standards for children's sleepwear so as not to require
sleepwear for children under 9 months or snug-fitting sleepwear
to be flame resistant. Gall reasoned that parents were putting
their children in untreated, more comfortable loose cotton
garments rather than the fire-resistant fabrics and that it was
safer for children to sleep in snug, untreated pajamas, which
were less likely to catch fire. Commissioner Moore agreed with
her. Since then, Chairman Brown has agreed that the CPSC should
not expend additional resources to reconsider this 1996 action.
That same year, Commissioner Gall voted, this time in the
minority, not to initiate a rulemaking on crib slats,
commenting that the voluntary standards process had not been
given time to work, but cautioning that regulation might still
be required if the voluntary process proved inadequate.
Voluntary standards have since been adopted and the CPSC's
regulatory work is stalled.
After casting all of these votes, for which she is now
being portrayed as a cold-hearted industry pawn, in 1999--in
1999 Commissioner Gall was renominated to a second 7-year term
by President Bill Clinton. The nomination was sent to the
Senate on May 8, 1999. On June 17th, 1999, the Commerce
Committee held a hearing on the nomination, during which I was
the only member of the Committee to pose questions. On June
23rd, 1999, the Committee recommended by voice vote, with no
audible dissension, that Ms. Gall's nomination be favorably
reported to the full Senate.
On July 1, by unanimous consent and without a single
statement of opposition or concern being entered into the
record, Mary Sheila Gall was reconfirmed to a second full term
at the CPSC.
Earlier this year, President Bush indicated his intent to
nominate Commissioner Gall to Chair of the CPSC. The Senate has
already unanimously concurred on Ms. Gall's qualifications to
be the CPSC Commissioner. I believe that the President is
entitled to his prerogative to select the Chairman and that the
Senate should in most instances defer to his judgment.
I also believe the President has made a good choice with
Commissioner Gall, who during her tenure at the CPSC has
demonstrated her commitment to reason, to fair process, and to
safety.
What I do not believe, however, is the line that
Commissioner Gall's opponents have developed recently to
justify their opposition to her, and this line is that Mary
Sheila Gall, while perfectly fine as a CPSC Commissioner, is
not qualified to chair the Commission.
The CPSC, like other independent agencies, is not
autocratic. It is a collegial body whose agenda and budget are
set by all three Commissioners, all of whom have an equal vote
in rulemakings and enforcement actions. It is because the
Commissioners must work so closely that Commissioner Thomas
Moore, a Democrat who has been at the CPSC since 1995, has come
to know her philosophy and work intimately. It is Commissioner
Moore who offers what is in my mind the most persuasive
commentary on her nomination.
In response to an article that appeared in USA Today
earlier this year, Commissioner Moore wrote: ``I was dismayed
to read the article in the April 25th USA Today giving an
unfairly negative slant to the record and beliefs of Mary
Sheila Gall, my fellow Commissioner at the Consumer Product
Safety Commission.''
He continued: ``During my 6 years at the agency, I have
been impressed by Commissioner Gall's hard work, the thoughtful
consideration of every issue, and been persuaded on occasion by
her arguments. For her part, she has been willing to change her
views after hearing her colleagues on certain matters. But
whether we agree on an issue of note, I can find nothing in her
views or her voting record to cause me any alarm about her
assuming the chairmanship of the agency.''
Finally, he said: ``While I may have a different opinion
from Commissioner Gall on some aspects of Commission business,
I have no doubt she will listen to my views and that, however
she votes, her decision will be well-reasoned and give
expression to a valid viewpoint shared by many, perhaps the
majority of Americans.''
I commend Ms. Gall for her service to the CPSC and to this
country and I commend her also for her willingness to face the
tough, but I hope fair, questions she will be asked today.
Thank you, Mr. Chairman, for holding this hearing.
[The prepared statement of Senator McCain follows:]

Prepared Statement of Hon. John McCain,
U.S. Senator from Arizona
In 1991, Mary Sheila Gall was nominated to the Consumer Product
Safety Commission by President George Bush. The task of the CPSC is an
important one--to protect the public against unreasonable risks of
injuries and deaths associated with consumer products.
Between 1991 and 1999, Commissioner Gall voted with the majority of
the three-member commission the vast majority of times, supported the
Commission's enforcement actions, and sought substantial fines and
criminal penalties against companies that violated the Consumer Product
Safety Act and other statutes enforced by the CPSC.
During this time, Commissioner Gall also cast a number of votes
that have since become the focus of efforts to derail her nomination.
Let me recite this ``parade of horribles'': in 1992, Commissioner Gall
voted with both of her colleagues against a rulemaking to put choking
hazard labels on marbles, balloons, and small toys. One year later she
voted, again unanimously, not to begin a rulemaking on baby walkers,
opting instead to urge the continued improvement of the product through
voluntary standards. In 1994, Commissioner Gall voted, again with the
majority, not to begin a rulemaking on baby bath seats after a petition
to ban them was filed. Also in 1994, in response to a petition filed by
the National Association of State Fire Marshals, Commissioner Gall
voted not to begin a rulemaking on upholstered furniture flammability
standards. Despite this, the State Fire Marshals endorsed her
Chairmanship earlier this year.
In 1996, Gall cast another vote with the majority for which she is
now being vilified--that time it was to modify the standards for
children's sleepwear so as not to require sleepwear for children under
nine months, or snug-fitting sleepwear, to be flame resistant. Gall
reasoned that parents were putting their children in untreated, more
comfortable loose cotton garments rather than the fire resistant
fabrics, and that it was safer for children to sleep in snug, untreated
pajamas which were less likely to catch fire. Commissioner Moore agreed
with her. Since then, Chairman Brown has agreed that the CPSC should
not expend additional resources to reconsider this 1996 action.
That same year, Commissioner Gall voted, this time in the minority,
not to initiate a rulemaking on crib slats, commenting that the
voluntary standards process had not been given time to work but
cautioning that regulation might still be required if the voluntary
process proved inadequate. Voluntary standards have since been adopted
and the CPSC's regulatory work is stalled.
After casting all of these votes for which she is now being
portrayed as a cold-hearted industry pawn, in 1999, Commissioner Gall
was re-nominated to a second seven-year term by President Bill Clinton.
The nomination was sent to the Senate on May 8, 1999. On June 17, 1999,
the Commerce Committee held a hearing on her nomination, during which I
was the only member of the Committee to pose questions, and on June 23,
1999, the Committee recommended by voice vote, with no audible
dissension, that Ms. Gall's nomination be favorably reported to the
full Senate. On July 1, by unanimous consent, and without a single
statement of opposition or concern being entered into the Record, Mary
Sheila Gall was reconfirmed to a second full term at the CPSC.
Earlier this year, President Bush indicated his intent to nominate
Commissioner Gall to Chair of the CPSC. The Senate has already
unanimously concurred on Ms. Gall's qualifications to be a CPSC
Commissioner. I believe that the President is entitled to his
prerogative to select the Chairman, and that the Senate should, in most
instances defer to his judgment. I also believe that the President has
made a good choice with Commissioner Gall, who, during her tenure at
the CPSC, has demonstrated her commitment to reason, to fair process,
and to safety.
What I do not believe, however, is the line that Commissioner
Gall's opponents have developed recently to justify their opposition to
her, and this line is that Mary Sheila Gall, while perfectly fine as a
CPSC Commissioner, is not qualified to Chair the Commission. The CPSC,
like other independent agencies, is not autocratic. It is a collegial
body whose agenda and budget are set by all three Commissioners, all of
whom have an equal vote in rulemakings and enforcement actions.
It is because the Commissioners must work so closely that
Commissioner Thomas Moore, a Democrat who has been at the CPSC since
1995, has come to know her philosophy and work intimately. And it is
Commissioner Moore who offers what is in my mind, the most persuasive
commentary on her nomination. In response to an article that appeared
in USA Today earlier this year, Commissioner Moore wrote:

``I was dismayed to read the article in the April 25th USA
Today giving an unfairly negative slant to the record and
beliefs of Mary Sheila Gall, my fellow Commissioner at the
Consumer Product Safety Commission.''

He continued:

``During my six years at the agency, I have been impressed by
Commissioner Gall's hard work, her thoughtful consideration of
every issue and been persuaded, on occasion, by her arguments.
And for her part, she has been willing to change her views
after hearing her colleagues on certain matters. But whether we
agree on an issue of note, I can find nothing in her views of
her voting record to cause me any alarm about her assuming the
Chairmanship of the agency.''

And finally,

``While I may have a different opinion than Commissioner Gall
on some aspects of Commissioner business, I have no doubt she
will listen to my views and that, however she votes, her
decision will be well-reasoned and give expression to a valid
viewpoint shared by many (perhaps the majority) of Americans.''

I commend Ms. Gall for her service to the CPSC and to this country,
and commend her also for her willingness to face the tough, but I hope
fair, questions she will be asked today. Thank you Mr. Chairman, for
holding this hearing.

The Chairman. Thank you, Senator.
Let me as Chairman recoup a minute of my time. Yes, I did
vote, Ms. Gall, for you in 1991. In all candor, it was for
minority member's position on the Consumer Product Safety
Commission. I did not look at any particular record at that
time. I am convinced over the 30-some years that we do not as
Senators really study in any in-depth manner the record
because, as the Senator has pointed out, nominations are the
President's prerogative and we give tremendous weight to that.
Incidentally, in 1999, I remember it well because I wanted
Ann Brown, and we made a deal. They wanted you; I wanted Ann
Brown.
Now I have had occasion to review your record and there are
serious misgivings about your votes, in the sense that you will
be the Chairman and you will lead that Commission, as Ann Brown
has done a magnificent job in my opinion. So let me just say
that the reason for the hearing is to make up our minds and
have you make a record here with respect to your particular
record and answer any questions that we may have.
Let us see, Senator----
Senator McCain. Could I just say, Mr. Chairman, you have
always treated every nominee in my knowledge in my years of
experience with you in a fair and objective fashion, and I
appreciate that and I know that the witness does today.
I thank you, Mr. Chairman.
The Chairman. Thank you, too.
Senator Wyden.

STATEMENT OF HON. RON WYDEN,
U.S. SENATOR FROM OREGON

Senator Wyden. Thank you very much, Mr. Chairman, and I am
going to be brief.
Mr. Chairman, taking a hands-off approach to hazardous
products that endanger the public is not what the American
people expect their government to do. I am here to listen this
morning because I think that this is an especially important
appointment. This appointment is an early signal of where this
Administration stands on basic consumer protection issues and
that is why it is so important that we review this record that
Chairman Hollings talked about carefully.
I was particularly troubled, Ms. Gall, and we talked about
it when you came to my office, about your comments referring to
the government's role in the consumer protection area as
creating a ``federal Nanny State.'' You and I talked about
that. You wrote me a letter on that subject.
Mr. Chairman, I would ask unanimous consent that that
letter Ms. Gall wrote me be a part of the record.
The Chairman. It will be included.
[The material referred to follows:]

U.S. Consumer Product Safety Commission,
Washington, DC, May 15, 2001.

Hon. Ron Wyden,
United States Senate,
Washington, DC.

Dear Senator Wyden:

I am following up from our meeting on Friday, May 11, 2001, in
which you asked me for additional materials in connection with my
reference to the ``Federal Nanny State.'' That reference was made in a
letter to the editor that I wrote to USA Today in connection with a
press release that the Commission issued about the practice of ``co-
sleeping.'' (Co-sleeping is the practice of adults sleeping in the same
bed with infants.) I characterized the press release as a proclamation
on behalf of the Federal Nanny State because its basis was not a
product over which the Commission has jurisdiction, but rather a
cultural practice. It is appropriate for the Commission to warn the
public about defective products, but warnings about cultural practices
are not within its purview.
So that you may better understand the background against which I
made my remark, I am enclosing the press release that prompted the
letter, and an associated Commission warning document. You will note
that both documents refer to the risks associated with placing infants
alone in adult beds, which is a genuine product hazard, because infants
may become trapped between the mattress and the wall. Those references
were added at my insistence. I am also enclosing a number of press
stories that were critical of the Commission press release.
The letter to the editor refers to a ``procession of
proclamations.'' In addition to the press release on co-sleeping, I
have been critical of Commission press releases that state obvious
hazards, such as falling off of snowboards (press release enclosed).
Finally, I am enclosing a press article reporting that the General
Counsel of the Commission had intimated that motion pictures might be
within the Commission's jurisdiction for purposes of depicting safe
practices associated with all-terrain vehicle riding.
It was press releases or statements such as these, which seek to
lecture people about either practices (co-sleeping) or products
(movies) over which the Commission has no jurisdiction, or which
lecture people about obvious hazards (such as falling down while moving
forward) that prompted my remark about the Federal Nanny State. I hope
that this letter has better explained the origins of and reasons for my
use of those words
The Commission, of course, has done excellent work and accomplished
genuine safety results when it has focused on its core mission of
product safety. For example, Commission regulations requiring that
cigarette lighters be child-resistant saved an estimated 130 lives and
prevented 950 injuries and 4,800 fires between 1994 and 1998 (the last
year on which we have complete data). Commission regulations on child-
resistant packaging for prescription and over-the-counter drugs have
saved an estimated 700 children's lives since enactment of the Poison
Prevention Packaging Act. The numbers of injuries per 100,000 pounds of
fireworks shipped was cut in half from 1976-78 to 1991-93, at least
partially as a result of Commission fireworks regulations. These
results show what the Commission is capable of achieving when it
concentrates on the mission Congress gave it.
If you desire further information, or if you have additional
questions, please feel free to have your staff call Patsy Semple or
Dennis Wilson.
Sincerely,

Mary Sheila Gall,
Commissioner.
Enclosures (10)

Infant-Sleeping Study a Case of Agency's `Over-Reaching'
Mary Sheila Gall, Vice Chairman, U.S. Consumer Product Safety
Commission, Washington, D.C.
USA Today, October 12, 1999
(Copyright 1999, Gannett Company, Inc.)
USA TODAY's article addressing the latest warnings from the U.S.
Consumer Product Safety Commission (CPSC) on the perilous hazards of
children co-sleeping with their parents requires that I respond
(``Study advises against parent-infant `co-sleeping,' '' Life, Sept.
30).
Philosophically, I am troubled by an official report in which this
agency instructs mothers on whether they should be ``co-sleeping'' with
their children.
Frankly, as the only current Republican member on the commission,
it has been increasingly frustrating, in recent years, to witness the
procession of proclamations issued by this agency on behalf of the
federal Nanny State.
Specifically, I was unable to find a defective consumer product
identified in our ``study'' as the causation of this hazard. Quite
simply, there wasn't any product, defect or jurisdiction--just babies
sleeping with their parents.
This may well be a controversial practice, but it is apparently a
practice that many leading authorities have proclaimed actually
promotes family bonding.
But the lack of any subject-matter jurisdiction over human behavior
apparently did not get in the way of this agency's running with an
attention-grabbing headline.
In point of fact, this CPSC ``study'' was never intended to be
issued as an official government research effort. This was originally
an unofficial, independent effort produced by several employees of the
consumer product safety agency.
I should note that I always have supported this sort of independent
research by members of our staff--but only as their own personal work
product, produced on their own time, and not as an agency-sanctioned or
agency-funded effort.
This staff study was deemed retroactively to be an official CPSC
study--only after it was completed and written and on the verge of
publication by a prestigious professional organization. While I
personally admire these staffers for their initiative, I voted against
proclaiming this to be an official CPSC study.
Why? Very simply--it was not.
I have been a member of this commission for almost eight years and
am very proud of this agency's diligence on behalf of the American
consumer. Its agenda does provide a valuable public service.
Our recent efforts on smoke detectors, child-resistant cigarette
lighters and fireworks are only a few illustrations of how the consumer
protection agency can indeed save lives.
I also should note that I have consistently advocated personal
responsibility, criticizing attempts to declare a particular product
defective when the only ``hazard'' has been the bizarre use of a
product by the consumer. But, here, there simply is no product--
defective or otherwise.
The only peril I can detect in this particular episode is over-
reaching by a federal regulatory agency.
News from CPSC
U.S. Consumer Product Safety Commission

Office of Information and Public Affairs Washington, DC 20207
----------------------------------------------------------------------------------------------------------------
FOR IMMEDIATE RELEASE CONTACT: Ken Giles
September 29, 1999
Release #99-175

CPSC Warns Against Placing Babies in Adult Beds; Study finds 64 deaths
each year from suffocation and strangulation
WASHINGTON, D.C.--The U.S. Consumer Product Safety Commission (CPSC) is
warning parents and caregivers about the dangers of placing babies to
sleep in adult beds. A CPSC study published in the October issue of the
Archives of Pediatrics and Adolescent Medicine found that placing
babies to sleep in adult beds puts them at risk of suffocation or
strangulation. This is a danger of which many parents and caregivers
are unaware. The study revealed an average 64 deaths per year to babies
under the age of 2 years placed to sleep in adult beds, including
waterbeds and daybeds.
A review of incident data from January 1990 to December 1997 linked
adult beds to at least 515 baby deaths. Analysis of the deaths revealed
four major hazard patterns:

Suffocation associated with the co-sleeping of adult and
baby.

Suffocation where an infant becomes entrapped or wedged
between the mattress and another object.

Suffocation due to airway obstruction when the baby is face
down on a waterbed mattress.

Strangulation in rails or openings on beds that allow a
baby's body to pass through while entrapping the head.

CPSC's study is the first to quantify the number of fatalities
resulting from the practice of co-sleeping with babies. Of the 515
deaths, 121 were reported to be due to a parent, caregiver or sibling
rolling on top of or against the baby while sleeping. More than three-
quarters of these deaths occurred to infants younger than 3 months. The
other 394 deaths resulted from suffocation or from strangulation caused
by entrapment of the child's head in various structures of the bed.
Entrapments occurred between the mattress and the wall, bed frame,
headboard, footboard, bed railings or adjacent furniture.
One of the most tragic aspects of these deaths is that they are
largely preventable. In many cases, the adult placing the baby in the
adult bed was unaware of or underestimated the danger posed. The
practice of co-sleeping can result in the adult rolling on top of or
next to the baby smothering him or her. Mothers who breastfeed should
be alerted to this hazard and should be encouraged to return the baby
to the crib after breast-feeding.
``Don't sleep with your baby or put the baby down to sleep in an
adult bed,'' said CPSC Chairman Ann Brown. ``The only safe place for
babies is in a crib that meets current safety standards and has a firm,
tight-fitting mattress. Place babies to sleep on their backs and remove
all soft bedding and pillow-like items from the crib.''
Of the 394 entrapment deaths, 296 were on adult beds, 79 were on
waterbeds and 10 were on daybeds. Bed rails, which are portable
railings that can be installed on toddler and adult beds to keep
toddlers from falling out of beds, accounted for nine baby deaths. CPSC
is working with the bed rail industry on the design of these products
to reduce the hazard. The following chart provides more details on the
fatality scenarios from entrapment and co-sleeping.

----------------------------------------------------------------------------------------------------------------
Sleeping Environment
-------------------------------------------------------------
Fatality Scenario Portable Bed
Adult Bed Waterbed Daybed Rail Total
----------------------------------------------------------------------------------------------------------------
Wedging between mattress and wall 125 3 128
----------------------------------------------------------------------------------------------------------------
Wedging between mattress and bed frame, headboard 128 8 6 142
or footboard
----------------------------------------------------------------------------------------------------------------
Entrapment between mattress and adjacent furniture 20 20
----------------------------------------------------------------------------------------------------------------
Strangulation between bed railings 23 4 27
----------------------------------------------------------------------------------------------------------------
Entrapment between portable bed rail and mattress 9 9
----------------------------------------------------------------------------------------------------------------
Suffocation on a waterbed mattress 68 68
----------------------------------------------------------------------------------------------------------------
Total (entrapment) 296 79 10 9 394
----------------------------------------------------------------------------------------------------------------
Co-sleeping death (rolling on top of or against 108 13 121
baby while sleeping)
----------------------------------------------------------------------------------------------------------------
Total (entrapment + co-sleeping) 404 92 10 9 515
----------------------------------------------------------------------------------------------------------------

For 1998 and 1999, the Commission is aware of at least 76
additional deaths, 35 due to suffocation associated with co-sleeping
and 41 due to entrapments. The Archives of Pediatrics and Adolescent
Medicine, a member of the Journal of the American Medical Association
family of journals, study ``Adult Beds Are Unsafe Places for Children
to Sleep,'' primarily written by CPSC's Suad Nakamura, Ph.D., was co-
authored by Marilyn Wind, Ph.D., (CPSC) and Mary Ann Danello, Ph.D.,
(CPSC). Nakamura gave details about the findings at an AMA briefing in
New York today.
CPSC has also issued a Safety Alert warning against placing babies
in adult beds.
Consumer Product Safety Commission
CPSC Cautions Caregivers about Hidden Hazards for Babies on Adult Beds
Reports of more than 100 deaths from 1999-2001
Just as the U.S. Consumer Product Safety Commission (CPSC) has
alerted parents and caregivers to the hazards of soft bedding in cribs,
it is now alerting them to the hidden hazards associated with placing
infants on adult beds. The CPSC has reports of more than 100 deaths of
children under age 2, most from suffocation, associated with features
of adult beds. These deaths occurred from January 1, 1999 to December
31, 2001 and involve an entrapment, a fall, or a situation in which
bedding or the position of the child was related to the death. Nearly
all of the children, 98%, were babies under 1 year old.
Many parents and caregivers are unaware that there are hidden
hazards when placing babies on adult beds. Consumers often think that
if an adult bed is pushed against a wall, or pillows are placed along
the sides of the bed, small babies will be safe as they sleep. However,
CPSC data shows hidden hazards for babies on adult beds.
Safety Tips
Wherever your baby sleeps should be as safe as possible.
Babies placed on adult beds risk suffocation from several hidden
hazards such as:
--Entrapment between the bed and wall, or between the bed and another
object,
--Entrapment involving the bed frame, headboard or footboard,
--Falls from adult beds onto piles of clothing, plastic bags, or
other soft materials resulting in suffocation, and
--Suffocation in soft bedding (such as pillows or thick quilts and
comforters).

Always place the baby to sleep on his or her back, not on its
stomach.

When using a crib, make sure it meets current safety
standards, has a firm, tight-fitting mattress and tight-fitting
bottom sheet.

When using a portable crib or playpen, be sure to use only the
mattress or pad provided by the manufacturer.
Baby Doll Simulation

Entrapment between bed & wall

Entrapment between bed & object

Entrapment in footboard

Maybe They Shouldn't Sleep at All
The New York Post, October 1, 1999
(Copyright 1999, N.Y.P. Holdings, Inc., All rights reserved)
No wonder conservatives refer to the federal government as ``the
nanny state.''
The Consumer Product Safety Commission stepped in this week to
issue a warning about children under the age of two sleeping in their
parents' beds.
It did so based on one survey--one survey--that attributed 515 baby
deaths over a seven-year period to sleeping in their parents' bed.
The first question this raises is: Why is the Consumer Product
Safety Commission of all agencies conducting this study? Last we
checked, neither parents nor babies fall under anyone's definition of
``product.''
There is no indication that a faulty bed or pillow caused any of
these cases of early death. Instead, it is unquantifiable actions such
as ``overlying'' or an adult occasionally suffocating an infant.
The survey attributes 64 baby deaths a year to sharing the parental
bed--out of 3.9 million American babies born each year. And it still
issued its front-page warning despite the fact that this number is
statistically insignificant from the number of babies in cribs--50 a
year--who die because they get their heads caught between the slats.
Now compare these numbers with the hundreds upon hundreds of
millions of babies born for millennia who have slept close to their
parents.
Child safety is vitally important. But it is nothing short of
irresponsible for the federal government to be terrifying parents based
on the flimsiest of evidence. And it's nothing short of shocking for
the Consumer Product Safety Commission to be butting in.
Here's something of a radical notion--how about letting parents
decide how best to care for their babies? Uncle Sam, consider yourself
relieved of this particular baby-sitting duty.
`Co-Sleeping' Can Be Hazard for Babies, Federal Officials Warn
The Washington Post, September 30, 1999
by Caroline E. Mayer, Washington Post Staff Writer
(Copyright 1999, The Washington Post)
. . . old sleep in bed with their parents, setting off a new debate
over whether the increasingly popular practice puts children at risk of
suffocating.
The Consumer Product Safety Commission warning about ``co-
sleeping'' was prompted by a new CPSC study that found the practice
causes about 15 deaths a year.
``There is some evidence to suggest that the practice [of co-
sleeping] may introduce a hazard of death by overlying'' with a parent
rolling on top of the baby, or next to it and smothering him or her,
said the CPSC study, which reviewed death certificates nationwide from
1990 through . . .
A number of prominent co-sleeping advocates--who encourage bed-
sharing as a way to promote breast-feeding and increase bonding between
parent and child--immediately criticized the CPSC warning.
James J. McKenna, a biological anthropologist . . .
. . . who filled out death certificates. The findings ignore
studies that show that ``even in the deepest stages of their sleep,
mothers respond within seconds to a strange noise, sudden movement,
grunt or cough of their co-sleeping infant,'' McKenna said.
Pediatrician William Sears, who endorses co-sleeping in his best-
selling guide, ``The Baby Book,'' agreed. ``If you look at the data
very carefully, you can conclude that more infants die alone in cribs
than die in a parent's bed,'' Sears . . .
. . . in their cribs and suffocate, mostly due to defects or broken
parts in older cribs.
The study, released yesterday at an American Medical Association
briefing, is the first to quantify the number of fatalities resulting
from co-sleeping, said the commission, which has been active in a
number of issues aimed at decreasing infant deaths, such as improving
crib safety.
According to the CPSC data, 515 infant deaths occurred in adult
beds from 1990 through 1997. Of these, 121 were caused by co-sleeping,
with 77 percent of these deaths occurring in infants younger than 3
months old. While earlier studies said most overlying deaths occurred
on waterbeds, the CPSC study found only 11 . . .
Kids in the Bed;
A government pronouncement on the dangers of ``co-sleeping'' deserves a
closer look
Time, October 11, 1999
by Amy Dickinson
(Copyright 1999, Time Inc.)
You've got to love the Consumer Product Safety Commission, nanny to
the nation. They're the guys who put those impenetrable safety caps on
aspirin bottles and rounded off the corners of our furniture; they're
the original authors of WARNING: CONTENTS HOT and THIS LADDER IS TO BE
USED FOR CLIMBING. Without the CPSC, Americans wouldn't know the
dangers of rickety swing sets, toxic crayons or detachable doll's eyes.
Last week the CPSC announced that parents shouldn't allow infants to
sleep with them in bed, owing to the risk of suffocation, strangulation
or death by ``overlying''--when a sleeping parent mistakenly rolls onto
an infant. This announcement was based on data collected from 1990 to
1997 showing that on average, 64 American babies die each year while
``co-sleeping'' with their parents in adult beds.
The CPSC presented this warning to parents in absolute terms,
saying that babies should never be allowed to sleep on adult beds,
daybeds or waterbeds; that doing so exposes the child to a
``potentially fatal hazard.'' The CPSC acknowledges ``limitations''
with its data, in that the reported cause of death in some cases is
based on ``anecdotal information.'' In some of the cases the babies
might have been victims of sudden infant death syndrome (SIDS); it is
also not clear if parents' consumption of alcohol or drugs might have
contributed to the ``overlay'' deaths. (Interestingly, even safety
equipment is dangerous if misused: eight infant deaths during this
period involved baby rails, intended to keep the child from rolling out
of bed.)
So consider yourself warned. Now, if you're like me, you're
thinking about ignoring the CPSC, but you're anxious about the
consequences (I used to feel like a criminal when I put my baby to bed
in a non-flame-retardant sleeper). I asked Ann Brown, chairwoman of the
CPSC, if she thought the co-sleeping warning isn't just a touch
overblown. Hoarse from defending the CPSC's position on co-sleeping,
she said the ``huge number of deaths meant it would be wrong for us to
withhold this information from parents.''
The fact is, 3,880,894 American babies were born in 1997, the most
recent year for which we have statistics. Sadly, 28,045 died before
their first birthday. But only 64 of them died on adult beds, compared
with 736 who died of other accidental injuries--for instance, 160
babies under the age of one year died in motor-vehicle accidents.
Death is quantifiable, as the data sadly show. What can't be
measured so easily is the benefit of closeness, both for the baby and
the parent. There is no question that parents and their babies should
have as much intimate contact as possible. The problem is how to get
it. Dr. John Kattwinkel, who headed a task force on infant-sleep
positions and SIDS for the American Academy of Pediatrics, told me that
if parents can avoid ``loose bedding, pillows, soft surfaces,
waterbeds, mattresses that might pull away from bed frames, smoking and
drinking in bed,'' then co-sleeping was O.K. Otherwise they should have
their infant within reach in a bassinet. ``They have this kind now that
straps to the bed,'' Dr. Kattwinkel offered. ``Straps? I don't know.
Sounds like a hazard to me,'' I said. He assured me that there are
bassinets out there that have been tested and approved by the Consumer
Product Safety Commission.
Whew! Now don't we all feel better?
See our website at time.com/personal for more on child safety and
nurturing.
News from CPSC
U.S. Consumer Product Safety Commission

CPSC Says Snowboarding Boom Leads To More Injuries
WASHINGTON, D.C.--The U.S. Consumer Product Safety Commission (CPSC)
today is releasing statistics showing a 42 percent increase in
snowboard-related injuries from 1993 to 1994. Snowboarding is the
fastest growing winter sport and is rapidly gaining popularity at ski
resorts across the country.
CPSC Chairman Ann Brown said, ``Snowboarding is one of the hottest
new sports on the slopes and a great way to enjoy the winter outdoors.
We all know that falling or `wiping out' is inevitable. Snowboarders
should take lessons to help them enjoy the sport and reduce the risk of
injury.''
An estimated 27,000 snowboarding injuries were treated in hospital
emergency rooms in 1994, up from about 19,000 for 1993, an increase of
42 percent. Unlike skiing, where the largest number of injuries involve
the knee, the greatest number of snowboarding injuries involve the
wrist or arm. About 27 percent of snowboarding injuries in 1994
involved the wrist or arm and 9 percent involved the knee. Skiers
experienced more knee injuries (27 percent of injuries) and fewer wrist
or arm injuries (7 percent). Snowboarders and skiers were equally
likely to sustain shoulder injuries (20 percent for snowboarders and 21
percent for skiers).
Over half the snowboarding injuries in 1994 occurred to persons age
15-24. Males accounted for about 19,000 of the injuries. Although the
sport has traditionally been popular among young men, snowboarding is
quickly catching on as a family sport and is attracting more women each
year.
Most snowboarding injuries result from falling. Relatively few of
the reported injuries involved collisions with trees, other
snowboarders, or skiers. Factors contributing to snowboarding injuries
include a lack of skill or instruction for novice snowboarders and high
risk behavior.
Since 1991, CPSC has received reports of five deaths from
snowboarding, all involving males between the ages of 15 and 28. Most
of the fatalities resulted from suffocation in deep snow.
As the number of snowboarding participants surpasses 2 million,
many ski resorts and facilities are offering snowboarding lessons and
providing guidance on snowboarding etiquette to help prevent injury.
The Brakes on Culkin's Ride
The Washington Post, May 26, 1994
by Lois Romano
(Copyright 1994, The Washington Post)
Warner Bros. might see it as just good fun and box office receipts,
but the Consumer Product Safety Commission isn't laughing.
The federal regulatory agency has strongly warned Warner that
safety procedures had better be followed in scenes where child star
Macaulay Culkin zooms around on a controversial all-terrain vehicle
(ATV) in the upcoming ``Richie Rich.''
And that means the appearance of safety as well. It might not be
obvious on screen, for example, that 13-year-old Culkin's driving is
being supervised by adults--or that he is not speeding. ``We want to
make sure an adult is in the scene--otherwise the wrong impression is
left,'' said CPSC general counsel Eric Rubel.
The scene was shot recently, and a spokeswoman for Warner said last
night that the company ``did its best to meet the guidelines suggested
by the commission.'' Although the spokeswoman said Culkin wore a helmet
and did not drive wildly or on pavement, she would not address the
appearance issue.
The CPSC claims the recreational vehicles have been responsible for
more than 2,000 deaths in the past decade, nearly 900 of which were of
drivers under 16.
``Kids don't know the difference between reality and the movies,''
Ann Brown, chairman of the CPSC, tells us. ``When they see a role model
appearing to drive around unsafely, that sets a bad example.''
The agency, which put guidelines in place in `87, got tipped off by
a manufacturer contacted by Warner that Culkin would be driving an ATV.
It is, in fact, the manufacturers that are subject to the regs; the
CPSC has no enforcement authority over Warner. But, according to Rubel,
the agency is studying whether it could expand its jurisdiction on the
grounds that films are consumer products.
(P.S. The film is based on the popular and very rich comic book
character.)
Study: Children at risk when sleeping in adult beds
The Associated Press, September 29, 1999
Supporting recommendations that all infants sleep in cribs, a new
study found that an average of 64 young children die each year while
sleeping in bed with their parents or other adults.
Children risk getting their heads trapped or being rolled on by an
adult when sleeping in adult beds, according to the study by the U.S.
Consumer Product Safety Commission.
The study, published in the October issue of the Archives of
Pediatrics and Adolescent Medicine, found that the greatest number of
deaths involved children under 1 who became trapped between a mattress
and a bed frame. Children also can suffocate on waterbeds or in
depressions in mattresses, the report said.
Researchers who examined three commission databases found that 515
children died from 1990 through 1997. They said it is difficult to
determine whether that number is accurate because the databases do not
include all bed-related deaths for children under 2. But the
researchers didn't know of a better source of information than the
databases.
James McKenna, a University of Notre Dame professor who has studied
parent-baby sleeping, took issue with the researchers' warnings that
mothers who sleep with their infants to encourage breast feeding may be
putting their children at risk.
``The recommendation tries to simplify a very complicated issue,
and it suggests that all bed-sharing is dangerous, which is not true,''
McKenna said.
He said his studies show that even in the deepest stages of sleep,
mothers respond within seconds to their baby's slightest noises. He
said the only time his studies have shown parents to be unresponsive is
when they are desensitized by drugs, alcohol or some other means.
Beware, the Parenting Police
The New York Times, October 1, 1999
By Penelope Leach
(Copyright 2002, The New York Times Company)
LONDON--In the Western world, anxious parents love to follow scientific
studies that tell them what to do with their babies.
The Federal Consumer Product Safety Commission played into this
obsession on Wednesday when it issued a stern warning: parents who
sleep with their babies and toddlers are at risk of accidentally
smothering or strangling them.
Before making such a stark declaration of cause and effect, a
government agency should make its case very carefully. In this
particular instance, one would expect the commission to establish
beyond a doubt that some babies died solely because they were sleeping
in their parents' beds.
But it did nothing of the kind, and its dire warning could end up
hurting, rather than helping, parents and their babies.
First, as its authors admit, the study did not adequately account
for other risk factors. It found that from 1990 to 1997, 515 children
under the age of 2 died as a result of sleeping in their parents' beds.
How did the study determine this? It looked at the death certificates
of infants, coroners' reports and news accounts.
But death certificates often don't mention other risk factors. Did
the parents drink? Did they smoke or take drugs? Above all, were the
babies lying on their stomachs? All these elements have been shown to
play roles in sudden infant death syndrome.
Three other studies, in the United States, New Zealand and Britain,
reported no direct risk to babies from sleeping in parents' beds. The
studies, published in medical journals in 1996, 1997 and 1999, blamed
other factors for deaths. The New Zealand research found that sudden
infant death syndrome could be reduced by 35 percent if babies slept on
their backs instead of their stomachs. This is now accepted advice
everywhere.
Even without definitive scientific proof, is there any harm in
warning parents that it may be dangerous to sleep with their babies?
Well, yes. We are talking about something that is very important in the
lives of many parents. Being close at night helps parents bond with
their babies, and for mothers who aren't at home during the day, bed-
sharing is a vital aid to breast-feeding.
What happens if mothers are convinced that their duty is to keep
the baby in the crib? How many will get up night after night when a
baby cries, nurse the baby, rock the baby to sleep, put the baby back
in the crib, then go to bed? When a mother nurses an infant in her bed,
both get more sleep.
The new study seems to play to the vulnerability of Western
parents, who, lacking traditional supports like extended families,
village elders and traditions, rely on experts.
For instance, an obstetrician says, ``For the sake of the baby, you
must have a C-section.'' Any woman has to say yes. No wonder more than
a fifth of all births in the United States are by Caesarean.
I'm not knocking experts, but I do think we should avoid offering
advice until we're absolutely sure that it accounts for every variable.
How many times has one study come out, only to be contradicted by
another?
And sometimes experts should trust the parents. As long as the
parents don't drink, smoke, sleep with thick comforters or put babies
on their stomachs, there is no real evidence against sleeping with a
baby, as most people in the world do.

Senator Wyden. Mr. Chairman, I will wrap up with this, by
way of saying that certainly, Ms. Gall, there are examples
where the federal government has overreached in a variety of
areas, but when you use the words ``federal Nanny State'' in a
lot of quarters that is code for saying that there should not
be an activist role for the government in the consumer
protection area. That is something that I profoundly disagree
with.
So I am here to listen. I think there are a number of
issues that need to be explored, but I will tell you, to vote
for you I need to be confident that your philosophy is not
incompatible with the basic mission of the Consumer Product
Safety Commission to protect the consumer, kids, seniors, and
others, because otherwise we are talking about bringing a fox
into the henhouse, and that is something I cannot support. I
look forward to exploring these issues with you this morning.
Thank you, Mr. Chairman.
The Chairman. Very good.
Senator Kerry.

STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS

Senator Kerry. Thank you, Mr. Chairman.
Mr. Chairman, I think there is a distinction between
membership and leadership as the chairperson of any commission.
I think it is appropriate for the Committee to measure any
nomination by a different standard, if you will. That does not
suggest that there is an automatic difference in capacity of
the nominee. I do not suggest that at all.
I do not come here with my mind made up. I do have
questions, and I want to ask those questions and gain some
insights on the nominee's thinking about a number of areas. I
think that is fair. That is precisely what the confirmation
process is supposed to be about.
However, the CPSC is an entity that is not very well
understood and not very visible, yet it has a profound impact
on the lives of our citizens. There are some 15,000 consumer
products that it oversees. Among those are thousands of
products that are available to our children. We have some
22,000 deaths a year related to consumer products. That is
half, almost half the deaths a year of the Vietnam War over 10
years, and we know what that did to this country.
So every year, 22,000 people, because of some product they
are using, die and almost 30 million are injured. The CPSC's
mission that we have charged it with is to reduce the
occurrence of deaths and injury and to try to find ways to warn
people about foreseeable consequences of either legitimate use
or, in many cases, the foreseeable non-legitimate use. There
are certain products where you know someone might go out and
use it a certain way and you want to warn them accordingly.
There are also sometimes incidental things, like the
question of sudden infant death syndrome and parents sleeping
in beds with their children, in which the Commission has had
varying attitudes. Those instances have elicited some of the
comments that our colleagues have made with respect to
judgments you have made, and I think we need to explore that.
The bottom line is that the Chairperson needs to be a
vigorous advocate on behalf of consumers and especially
children, and this Committee wants to ensure that the next
Chair is really going to enforce the Consumer Product Safety
Act fully, completely, according to the intent of Congress. We
want a Chair who reinforces the idea that products should be
designed safe at the outset and that people should be fairly
notified about the potential consequences of their use.
Now, none of us want a federal government that is replacing
parenthood and responsibility and so forth. I think we
understand that. But, I share my colleagues' concern about code
words and about people's interpretations, and I look forward to
exploring with you, and I certainly hope that the Committee can
find adequate comfort that the consumer product safety law and
the Commission will continue to do what they are intended to
do.
Thank you, Mr. Chairman.
The Chairman. I believe Senator Allen is next, or maybe it
is Senator Burns.
Senator Burns.
Senator Burns. Pass.
The Chairman. Very good.
Senator Boxer.

STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM CALIFORNIA

Mr. Boxer. Mr. Chairman, I ask unanimous consent that my
entire statement be included in the record, and I will
summarize in just a moment.
The Consumer Product Safety Commission was created in 1972
and its mission is ``to protect the public against unreasonable
risks of injuries and deaths associated with consumer
products.'' That is the mission.
As the committee with jurisdiction over the activities of
the CPSC, I think it is our responsibility to make sure that
the head of the Commission is someone consumers can trust
completely to protect them. I think this hearing clearly gives
us the opportunity to decide whether this nominee is the right
choice.
I had a very pleasant meeting with Ms. Gall, and I was very
open with her, and I told her I had two areas of concern that I
will be exploring, and I know others will as well. The concerns
are these: one, I see a tendency as a member of the Commission
to blame consumers when injuries occur from products; and two,
I see an unwillingness to subject industry to mandatory
regulations even when the evidence indicates that voluntary
standards are not working to reduce safety hazards and to
prevent injuries.
I am also concerned that this philosophy, if I am right on
thinking that is what we have here, could well victimize
innocent children and the elderly, who do not have as much
dexterity or strength as others.
I believe in the mission of the Consumer Product Safety
Commission, and I particularly think it is the most vulnerable
that need to look to the Commission as a leader in this area.
Call me old-fashioned, but I do believe someone who is chosen
to head a Commission such as this should be a fierce, fierce
advocate.
As a Commissioner, it is a different situation. There may
be a reason to put someone on the Commission to add a certain
balance to it, but I do believe the head of this Commission
should be someone fiercely dedicated to protecting the most
vulnerable, who are the most likely to be injured.
So Mr. Chairman, I look forward to this hearing. I thank
you very much.
[The prepared statement of Senator Boxer follows:]

Prepared Statement of Hon. Barbara Boxer,
U.S. Senator from California
Mr. Chairman, thank you for calling this hearing on the nomination
of Mary Sheila Gall to Chair the Consumer Product Safety Commission
(CPSC). The CPSC was created in 1972. Its mission is to ``protect the
public against unreasonable risks of injuries and deaths associated
with consumer products.''
As the U.S. Senate Committee with jurisdiction over the activities
of the CPSC, it is our responsibility to make sure that the head of the
Commission is someone consumers can trust to protect them. This hearing
gives us an opportunity to investigate whether Commissioner Gall is
such a person.
In my review of her record, I see two areas of concern that I hope
Commissioner Gall will address here today:

One--A tendency to blame consumers when injuries occur from
products; and

Two--An unwillingness to subject industry to mandatory
regulations even when the evidence indicates that voluntary
standards are not working to reduce safety hazards and to
prevent injury.

I know that the nomination process is difficult and I expect the
questioning during this hearing to be rigorous. Like many of my
colleagues, I am concerned that Commissioner Gall's philosophy is
contrary to what I believe should be the philosophy of the Chair of the
CPSC and that is to protect consumers from harm.
I am also concerned that this philosophy could well victimize
innocent children and the elderly who do not have as much dexterity or
strength as others.
I believe that is why the CPSC was established: to protect
consumers, particularly the most vulnerable, from death and injury
caused by dangerous products. I look forward to hearing from
Commissioner Gall as to why she believes the CPSC was established and
how she intends to carry out that mission in light of her record on
products such as bunk beds, baby bath seats, and baby walkers.

The Chairman. Senator Ensign.

STATEMENT OF HON. JOHN ENSIGN,
U.S. SENATOR FROM NEVADA

Senator Ensign. Thank you, Mr. Chairman. I also ask
unanimous consent that my full statement be made part of the
record.
The Chairman. It will be included.
Senator Ensign. Mr. Chairman, thanks for calling this
hearing today, and I am pleased to lend my support to the
President's nominee, Mary Sheila Gall, as Chairwoman to the
Consumer Product Safety Commission. It should be noted that
Commissioner Gall has a distinguished record of public service,
having served her country for almost 30 years in many executive
and legislative branch positions.
Commissioner Gall has also extensive experience with
consumer safety issues, having served as Commissioner since
1991, and as Vice Chairman of the Commission for the past 5
years. Commissioner Gall also served as Assistant Commission of
the U.S. Department of Health and Human Services in the first
Bush Administration, where she worked closely on issues
affecting children, families, and the disabled.
Mr. Chairman, I have three small children, deal with safety
issues all the time, everything from car seats to a pool in our
back yard that is fenced in and it is a constant fear. I think
that parents are so much more aware today of the dangers of
products and we all want the safest products possible.
But I also understand, because I read so often about
products being out there in the marketplace, where parents were
frankly just completely irresponsible. We want the safest
products as possible, but we also do not want a marketplace in
which personal responsibility never comes into play. There are
cases in which parents were unattentive and children drowned.
Well, if you know anything about having children around water,
you never leave children unattended, whether it is a pool or
whether it is a bathtub. You do not answer the phone. You do
not do anything that would leave the children unattended.
I think what Ms. Gall has demonstrated is that balance,
understanding that personal responsibility as parents has to
come into play as well when we are looking at whether a product
caused a situation or whether the parents had some culpability.
As tragic as it is when accidents happen, we can never prevent
100 percent of accidents from happening.
So I lend my support to Ms. Gall because I believe that she
has the interest of parents, the interest of children, in mind,
but also the interest of some reasonable balance in all of
this.
Thank you, Mr. Chairman.
[The prepared statement of Senator Ensign follows:]

Prepared Statement of Hon. John Ensign,
U.S. Senator from Nevada
Thank you, Mr. Chairman for calling this hearing today. I am
pleased to lend my support for the President's nominee, Mary Sheila
Gall, to Chairwoman of the Consumer Products Safety Commission.
It should be noted that Commissioner Gall has a distinguished
record of public service, having served her country for almost 30 years
in many executive and legislative branch positions.
Commissioner Gall also has extensive experience with consumer
safety issues, having served as Commissioner since 1991, and as Vice
Chairman of the Commission for the past five years. Commissioner Gall
also served as Assistant Secretary to the US Department of Health and
Human Services in the first Bush administration, where she worked
closely on issues affecting children, families, and the disabled.
At the Commission, Commissioner Gall demonstrates a strong
commitment to ensuring product safety in the marketplace by balancing
the interests of consumer safety and private business.
Commissioner Gall's nomination is supported by the National
Association of State Fire Marshals, the American Textile Manufacturers
Institute, as well as by one of her current colleagues, Commissioner
Thomas Moore.
The Consumer Product Safety Commission is a vital component in
protecting the public against harmful or flawed consumer products. It
is imperative that the Commission adhere to its mission of working with
the business community to protect the public from risk, injury, or even
death.
I believe that Mary Sheila Gall demonstrates the expertise and
commitment to public safety necessary to achieve the mission of the
CPSC, and I will support her nomination to be Chairwoman.
Again, thank you Mr. Chairman.

The Chairman. Very good.
Senator Breaux.
Senator Breaux. I am here to listen and learn, and I will
pass.
The Chairman. Thank you.
Senator Edwards.

STATEMENT OF HON. JOHN EDWARDS,
U.S. SENATOR FROM NORTH CAROLINA

Senator Edwards. Thank you, Mr. Chairman. I will be very
brief because I am looking forward to the opportunity to ask
the witness questions.
The Consumer Product Safety Commission, in my judgment,
plays an enormously important role in this country, providing
protection for consumers from products that are unsafe and
particularly providing protection for those who cannot protect
themselves, young children and babies. Obviously, the Chairman
of that commission has an elevated responsibility over the
other commission members. So I am very interested.
I am still open-minded, still willing to listen to and
interested in listening to your answers to questions. I do have
to tell you, Ms. Gall, I have reservations, though, and those
reservations grow out of some instances in your record where it
appears that fairly minor changes could have been made in
products that would have made them safer, would have protected
kids, and your reaction seems to have been to find the
responsibility with others--parents, adults.
I just have to tell you, I do not think--and I agree only
with part of what my colleague from Nevada just said. I also
have young children. I have a 1 year old and a 3 year old.
There is no question that I have an enormous responsibility to
those children. There is also no question that they cannot
protect themselves.
If they are exposed to a product that could by reasonable
means be made safer, that would keep them from being hurt, I do
not think that and parental responsibility are mutually
exclusive. I think in fact we ought to do both. We ought to do
everything in our power to make sure parents are properly
educated about the dangers associated with products. But at the
same time, these kids cannot help themselves. They cannot
protect themselves.
I think the Chair of the Consumer Product Safety Commission
has an enormous responsibility to those children who cannot
protect themselves, and anything that can reasonably be done to
make a product safe ought to be done. It appears to me from
looking at what I have seen so far, but I want us to talk about
it, that thousands of children have been injured by products
that you did not believe were defective, that you did not
believe needed to be changed. Those are the things I think we
need to talk about during the course of this hearing.
But I am very interested in your answers. I do have serious
reservations because of the reasons I have just stated, but I
look forward to asking questions.
Thank you, Mr. Chairman.
The Chairman. The Chair is pleased to recognize our
distinguished member, Senator Allen.

STATEMENT OF HON. GEORGE ALLEN,
U.S. SENATOR FROM VIRGINIA

Senator Allen. Thank you. Thank you, Mr. Chairman and
members of the Committee.
It is my privilege to introduce an outstanding Virginian
from McLean, Fairfax County, Mary Sheila Gall, for your
consideration. I know you already have been considering her for
Commissioner of the Consumer Product Safety Commission, as
Chair.
I know many remarks, Senator Ensign and Senator McCain,
have mentioned some of the things in here. This is obviously a
hearing on consumer protection and I want to make sure it is
not witness protection needed in this.
Listening to Senator McCain--excuse me--Senator Edwards, I
think that you will find in Mary Sheila Gall somebody who does
balance needs. Yes, consumer protection needs to be an issue
that clearly the government has a role in warning and making
sure products are safe, and then there is also obviously a
parental responsibility.
You see it all over the world with different approaches.
Listening to Senator Edwards, it struck me. I remember on a
trade mission trying to promote Virginia peanuts in Great
Britain. You know, Virginia style peanuts, many of which are
grown in North Carolina as well, are the best and the largest
peanuts. It is true, a fact.
But trying to promote those peanuts in Great Britain with
KP Foods, they say, we have a hard time getting mothers to buy
peanuts for their kids. I said, well, what is the reason? They
say, well, there is a government warning label that we have to
put on all these packages that says small children may choke on
these contents, which makes mothers very worried about them
giving their children peanuts. The Virginia style peanuts grown
in eastern North Carolina and Virginia, of course, being the
biggest, are probably even more of a danger.
This is truly a marketing problem for them. And I said: You
know, in the United States our mothers and parents tell kids to
chew their food before they swallow it. But nevertheless, those
warning labels end up having an impact on the export of our
products.
But regardless of all that, that little instruction in
British consumer protection harming young children, not being
able to eat nutritious peanuts because of the fear of the
warning label. Ms. Gall received her bachelor's degree, Mr.
Chairman, from Rosary Hill College in Buffalo, New York, and,
more importantly, her master's degree in special education from
Old Dominion University in Norfolk, Virginia.
She has called Virginia home for the last 20 years. I am
also happy to see two members of her family here, daughter Rosa
and son Walter. If you would please stand up. It is good to see
you both here. Thank you for coming.
Mrs. Gall, Mr. Chairman, has had a long, distinguished
record of public service, including her last 10 years as one of
the Commissioners of the Consumer Product Safety Commission.
She was first nominated by President Bush, the first President
Bush, in 1991, and then nominated again by President Clinton in
1999. For the last 5 years Ms. Gall has served as Vice
Chairperson.
I feel that her judgment, her experience and well-grounded
philosophy make her an exceptional choice to serve as the
Chairperson of the Commission. Her long and distinguished
career in government also includes service as Assistant
Commissioner of the Human Development agencies in the United
States Department of Health and Human Services, where she was
responsible for 55 Federal programs serving children, families,
people with disabilities, the elderly, and Native Americans.
She also served as counselor to the Office of Personnel
Management and chaired President Ronald Reagan's Task Force on
Adoption.
Mary has been a very strong proponent of consumer
protection, especially for children. Her thoughtful and
exhaustive review is tied closely to the law and the intent of
Congress, and in trying to figure out what the intent of
Congress is she tries to utilize reasonable industry standards
whenever possible.
Now, when those voluntary standards are not possible, when
regulatory action is called for, she seeks a reasonable,
science-based approach, supporting such proposals of regulation
nearly 90 percent of the time when regulation is indicated.
Now, I am confident, Mr. Chairman and members of the
Committee, that Ms. Gall's background and experience,
especially in the area of product safety, and her concern for
her fellow human beings will enable her to continue her
outstanding service and contribution to Americans in her new
role as Chairperson of the Consumer Product Safety Commission.
So Mr. Chairman and members of the Committee, it is my
pleasure to introduce and present to you Mary Sheila Gall, an
exceptional nominee, this morning and wholeheartedly recommend
her confirmation.
Thank you, Mr. Chairman.
The Chairman. We thank you very much.
[The prepared statement of Senator Carnahan follows:]

Prepared Statement of Hon. Jean Carnahan,
U.S. Senator from Missouri
Thank you Mr. Chairman. The Consumer Product Safety Commission is
the federal agency principally responsible for protecting the public
against the unreasonable risk of injuries and death associated with
consumer products.
I expect the Chair of this agency to be a vigorous advocate for
consumers willing to support reasonable health and safety regulations.
Mr. Chairman, I approach today's hearing, as I approach all
Presidential nominations, with a predisposition towards supporting the
President's choice. However a number of serious questions have been
raised about Commissioner Gall's approach to the CPSC that have caused
me to have some misgivings.
Of course the President is entitled to deference on his
nominations.
But if it is determined that a nominee is not committed to the
goals Congress has established for the agency to which he or she has
been nominated, it is appropriate for the Senate to withhold its advice
and consent. This is particularly true if the nominee is to serve as
the agency's chair.
As a member of the Senate, charged with providing advice and
consent, I am seeking to determine whether my concerns about Ms. Gall's
approach to the CPSC rise to such a level to warrant rejection of her
nomination.
I look forward to hearing Ms. Gall's testimony today. I will pay
particular attention to her responses to my questions and the questions
of my colleagues. Thank you, Mr. Chairman.

The Chairman. We are now pleased to recognize Ms. Gall.

STATEMENT OF MARY SHEILA GALL, COMMISSIONER,
CONSUMER PRODUCT SAFETY COMMISSION

Ms. Gall. Thank you, Mr. Chairman. Before I begin, I have a
full statement that I would like to submit for the record.
The Chairman. It will be included.
Ms. Gall. Thank you so much.
First I would like to thank Senator Allen for his gracious
remarks and his tremendous support for my nomination, and
remind me to buy some Virginia peanuts. I would also like to
thank Senator McCain and his staff for their continued support
and, Mr. Chairman, I would like to thank you and your staff for
scheduling this hearing and the cooperation they have given me
in the preparation for this hearing.
I note that the Vice Chairman of the Consumer Product
Safety Commission is here with me today, Commissioner Thomas
Moore. Commissioner Moore is a life-long Democrat, a Clinton
appointee, and actually worked for Senator Breaux for some
years. He is here with his entire staff today to demonstrate
their sincere support for my nomination, and I thank him for
being here.
I guess I better stop thanking people now or it will sound
like the Academy Awards. I do want to say I very much
appreciate the demonstration of faith that the President has
given by honoring me with the nomination to be Chairman of the
Consumer Product Safety Commission.
As has been noted here this morning, I have 30 years of
honorable public service in the executive and legislative
branches. I have spent the last 10 years serving at the
Commission as a Commissioner, embracing fully the mission of
the Commission, and I have been delighted to work alongside an
expert and committed and dedicated staff.
As mentioned earlier, I was nominated by President Bush in
1991, nominated for a second time by President Clinton. Both
those times I was reported out of Committee without objection
and confirmed unanimously by the Senate.
I have been privileged to serve with two CPSC Chairmen, Ann
Brown and Jacqueline Jones Smith. If confirmed, I want to build
upon their successes. In addition to the work we have under way
at the Commission now, I would like to focus attention on some
other initiatives: some new ideas in fire safety, greater focus
on international issues, outreach to the elderly and our senior
citizens, and improving ways to reach hard-to-reach populations
with our important safety messages, recall alerts, and so on.
Our biggest challenge at the Commission is the issue of
resources. We have a number of new laws that require us to do
certain activities that will bring about significant
expenditures. Some of those are new data security measures,
telecommuting, electronic commerce, and access by individuals
with disabilities. We also are facing some important
expenditures for critical investments at the Commission,
including database integration, laboratory modernization, and
hopefully a research budget to continue our good work.
In the 10 years I have been a Commissioner, I have cast
almost 700 votes and some persons disagree with some of the
votes that I have taken. That is understandable. I am sure you
all have had occasion to have some folks disagree with some of
the votes that you have cast. My written statement contains an
explanation in detail of some of those votes that have been
mentioned as criticism and I hope you will take a few minutes
to take a look at those explanations.
I ask that you consider my nomination in its entirety, the
record in its entirety. I have voted with the majority 97
percent of the time in matters of enforcement, 97 percent of
the time. I have voted with the majority in all other matters
presented to the Commission 93 percent of the time. With regard
to regulations only, I have voted with the majority almost 90
percent of the time. Clearly, I think this is a record of
someone who is committed to consumer protection and the mission
of the agency.
If I am confirmed by the Senate, I will provide energetic
and consistent leadership to ensure the agency stays on course
with its crucial mission to protect American consumers from
unsafe products. I would be happy to answer any questions that
you may have.
[The prepared statement and biographical information of Ms.
Gall follow:]

Prepared Statement of Mary Sheila Gall, Commissioner,
Consumer Product Safety Commission
Good morning, Mr. Chairman and Members of the Committee. My name is
Mary Sheila Gall and I am honored to appear before you today as
President George W. Bush's nominee for Chairman of the Consumer Product
Safety Commission.
I have served as a Commissioner of the CPSC since December 1991. I
was renominated to a second seven-year term by President Clinton in
1998, and confirmed by the Senate in 1999. As a result of my nearly ten
years of active service at the Commission, I am thoroughly aware of its
statutory responsibilities and procedures, its day-to-day operations
and the regulatory, enforcement and other issues that Commissioners and
the Chairman must confront. Prior to my service with the Commission, I
served as an assistant secretary in the Department of Health and Human
Services, where I oversaw 55 federal programs, a staff of approximately
1,000 employees and an annual budget of five billion dollars. I also
worked in the White House and for a number of Members of Congress.
These almost thirty years of public service in both the legislative and
executive branches of government help me to understand the Commission's
functions and how it interacts with Congress, the regulated community
and the other stakeholders who have an interest in the Commission's
mission and operations.
For Senators who are new members of the Committee, let me provide
some background. The mission of the Commission is to protect consumers
from unreasonable risk of death and injury associated with the
approximately 15,000 types of products within its jurisdiction. The
Commission's major programs are designed to (1) identify and analyze
product hazards, (2) assist industry in developing voluntary product
safety standards, (3) monitor compliance with voluntary standards, (4)
issue and enforce mandatory product safety standards, (5) obtain
recalls of dangerous products, (6) penalize companies that violate the
law and the Commission's regulations, and (7) inform and educate the
public about potential product risks.
To carry out this mission, the Commission employs approximately 480
FTE's, about two-thirds in the Commission's Bethesda, Maryland
headquarters and Gaithersburg, Maryland laboratory, and about one-third
in its field offices. The Commission's budget for fiscal year 2001 is
52.4 million dollars and the request to Congress for fiscal year 2002
is 54.2 million dollars.
The Commission is authorized to have five Commissioners but has
been operating with three since the mid-1980's. The Consumer Product
Safety Act requires an explicit partisan division among the
Commissioners. Thus when Congress created the Commission it not only
provided that regulatory decisions should be made by a collegial body,
and not be a single official, but that that collegial body itself
should have members of different political philosophies. If only one
point of view was expressed a large segment of the public would never
have their views heard. The Commissioners are available to critique one
another's reasoning, and this leads to better and more informed
decisions.
The rest of this statement is divided into two parts. The first
will address the challenges that I see lying ahead for the Commission,
and how I believe that the Commission can meet them. In the second, I
address certain aspects of my record as a Commissioner. I am aware that
there is some opposition to my nomination. I intend to address the
issues that I have heard raised and to state why I took the positions
that I did. I think when you read the entire record that was before the
Commission, even people who continue to disagree with me will
understand the basis for my actions.
Commission Accomplishments and Challenges
The Consumer Product Safety Commission is a strong and effective
organization, one that gives the American taxpayer great value for the
resources devoted to it. The Commission has grown stronger during the
tenure of the two Chairmen with whom I have been privileged to serve.
Chairman Jones-Smith oversaw the move of the Commission to its new
headquarters in Bethesda, and worked with Congress to reauthorize the
Commission. Chairman Brown has raised the visibility of the Commission
considerably during her tenure and has proven very effective in
disseminating the Commission's safety message, particularly in the area
of product recalls. The Commission has accomplished a great deal,
especially in improving the safety of children's products. I intend to
build upon this record of success, to be an effective steward of the
mission of the Commission and of the public monies entrusted to it, and
to enhance the efficiency of the Commission's operations.
Imports and Exports of Consumer Products
There are three areas of Commission operations that I intend to
emphasize if I am confirmed as Chairman. The first lies in the area of
imported and exported consumer products. When the Commission began its
work in 1973, relatively few of the products over which it had
jurisdiction were imported. Today that situation has changed
dramatically. Moreover, U.S. manufacturers have increased significantly
their own export markets for consumer products. The large growth in
imports and exports means that the Commission needs to be more active
in protecting consumers from defective products while at the same time
facilitating the obvious benefits of imports and exports.
Consumer Product Safety Standards Harmonization
There are two ways in which the Commission can improve the safety
of imported and exported consumer products. First, Commission technical
staff should participate more in the effort to harmonize international
product safety standards through U.S. representative bodies to
international voluntary standards-setting organizations. It can also
take advantage of the existing activity of U.S. government
organizations such as the National Institutes of Standards and
Technology, the International Trade Administration, and the Technology
Administration within the Department of Commerce. Commission staff
participation will give voluntary standards-setting organizations the
benefit of both the technical expertise of Commission staff and its
commitment to product safety.
Product standards harmonization should never be an excuse to lower
the level of protection available to American consumers. International
consensus is not a justification for permitting the importation of
products that pose an unreasonable risk of death or injury to American
consumers. I am, however, confident that the excellence of both the
U.S. standards-setting process, and of the standards that it produces,
are apparent in the international arena, and that the effort to
harmonize international product safety standards is worth the support
and encouragement of the Commission.
Communicating with Importers
The second area through which the Commission can improve the safety
of imports is to communicate its safety message and requirements to
industries and governments in other countries that export to the United
States. The Commission already makes such efforts. Commission laws and
regulations are available to anyone with access to the Internet through
the Commission's web site. Commission representatives travel regularly
to the People's Republic of China, to inform its industry and
government representatives about Commission regulations, emphasizing
products such as fireworks, toys, and cigarette lighters. We need to
continue this effort and to disseminate the Commission's message to
countries that may be exporting consumer products to the U.S. for the
first time. The Commission should focus more on imports arriving from
Mexico. The value of imports into the U.S. from Mexico more than
doubled between 1994 ($49.5 billion) and 2000 ($136 billion). Given
that dramatic increase in the volume of trade, the Commission needs to
ensure that consumer products imported from Mexico meet U.S. safety
standards. The Commission also needs to strengthen ties with Mexican
government and private organizations that create, enforce, and monitor
consumer product safety standards.
The Commission's resources available to carry out this effort are
limited while the resource requirements of disseminating information
internationally are immense. In order to get the Commission's message
out within its resource limitations, we need to leverage the resources
of other government agencies through strategic alliances to better
inform foreign governments, industries, and trade associations of
Commission regulations and activities.
Getting the Commission's Message Out
Another area that I believe can be improved is the Commission's
communications with the public. The present Chairman has done a very
good job in publicizing the Commission's product recalls through
television appearances. The Commission will continue to use this
important mass media outlet to reach members of the public. The
Commission also has ongoing a pilot project with industry to see if the
return rates of product registration cards can be improved. This pilot
project needs to be completed, and the Commission needs to assess all
other ways in which companies with product recalls and the Commission
itself can expeditiously and efficiently inform consumers.
Beyond notice of product recalls is the Commission's more general
information and education effort. The Commission has improved its
effectiveness in this arena, through such activities as baby safety
showers, many of which are carried out in cooperation with
congressional field offices. Another successful information and
education effort has been ``Recall Roundup,'' an annual Commission
project to inform the public about previously-announced recalls, where
the Commission has reason to believe that unreturned and still
dangerous products remain in the hands of consumers. Yet another
successful campaign of information and education has been an inter-
agency effort known as ``Back to Sleep.'' This program tells new
parents and other caregivers to place newborn infants on their backs to
sleep. Various studies have shown that placing young infants in this
position reduces the incidence of deaths associated with Sudden Infant
Death Syndrome (SIDS), some cases of which may be related to
suffocation in a face down sleeping position. Since the advent of the
``Back to Sleep'' campaign, the SIDS rate in the U.S. has decreased by
about 46% since 1992, saving the lives of more than 2,600 babies every
year. All of these efforts should be continued and reinvented when
necessary.
The Commission needs to do more to get its message out to
populations that have limited access to important consumer safety
information. Efforts to reach minority and low-income populations will
require all of the Commission's ingenuity and creativity. I intend to
leverage Commission resources by working with community groups, plus
state and local governmental entities and other federal agencies. The
Commission needs to pay particular attention to our elderly citizens.
America's elderly are particularly vulnerable to product safety hazards
involving fires and falls. They are more likely to have older products
that do not meet present safety standards, possibly even products that
have been recalled by the Commission. Older Americans, especially the
elderly over 85, represent the fastest growing segment of the U.S.
population. The Commission needs to enhance its present information and
education efforts that reach the elderly and initiate new efforts to
reach them even more effectively. The National Fire Protection
Association and the Centers for Disease Control have a program designed
to reduce the incidences of fires and falls among our senior citizens.
The Commission provided much of the information used by that campaign,
and should remain involved in it, as well as using other innovative
means to make sure that America's elderly citizens have the most up-to-
date and useful information to enhance their safety.
Resource Challenges and Better Operations
The Commission will be facing a number of resource challenges in
the next few years. These challenges must be met if the Commission is
to continue its life-saving mission activities, while at the same time
complying with the other mandates that Congress has given to it.
Public Access to Government Materials
Recent legislation requires Federal agencies to improve public
access to government materials. Virtually all of the agency records and
reports that are publicly available at the Commission will need to be
made available in an electronic format so that the public can gain
access through and view them over the Internet. At the same time,
sensitive Commission materials, such as cases under investigation by
the Compliance staff, must not be disclosed. State of the art
``firewall'' computer software will have to be maintained and
continually upgraded.
There are other new government-wide mandates that have substantial
resource implications for the Commission. The Government Paperwork
Elimination Act requires that much of what we do presently through
paper must be done electronically. Fulfilling this requirement will
require virtually universal use of electronic signatures. The mandate
known as ``Section 508'' requires that all of the equipment that the
Commission acquires be usable by persons with disabilities. Information
made available to the public must also be made available for persons
with disabilities. At this time, we have no specific dollar estimate of
the costs of compliance with these requirements, but it is likely to be
significant.
Telecommuting
Congress has also passed legislation requiring federal agencies to
adopt telecommuting programs that will cover an agency's entire
workforce by April 2004. We are developing a pilot telecommuting
program for Commission headquarters staff. The Commission has
substantial telecommuting experience already from its implementation of
a telecommuting program in the field. Our program in the field saved
money, because the Commission was able to close a number of small field
offices and reduce the sizes of others. We achieved savings overall,
but the implementation of the telecommuting program required a
substantial investment in new equipment. A telecommuting program for
headquarters staff will be different, because it will be a part-time
program, enabling employees to work from their homes at least one day a
week. The Commission must maintain office space for employees and
computer stations will need to be upgraded and modernized so that the
employee can work effectively from both home and office. Telecommuting
at headquarters will result not in budget savings but rather in
increased outlays.
Laboratory Modernization
The General Services Administration (GSA) is studying the existing
Commission laboratory facilities and operations in Gaithersburg,
Maryland. We expect GSA to recommend that the Commission undertake a
five-year redevelopment plan to enable the lab to continue to support
the Commission's operations. Without this redevelopment, lab operations
will suffer. These operations are housed in facilities that were
designed originally to support a Nike missile-tracking radar site from
the early 1950's, not a modern laboratory. The FY 2002 Budget Request
does not contain funding for this redevelopment plan.
Without additional funds to invest, all of the requirements
described above would eventually have to be satisfied by reductions in
the Commission's operations. We will be unable to sustain our effort to
integrate the Commission's hazard databases, to continue to modernize
our information technology system, to maintain a replacement cycle for
computers, or even to sustain our present level of activity. I intend
to work aggressively to secure the funding for these critical
investments and activities.
Better Operations
The Commission, like any organization, is dependent for its success
on very important people who work behind the scenes. Since the
Commission is a data-driven agency, its ability to collect, analyze and
disseminate data is crucial to its effectiveness. At the present time,
the Commission maintains five databases: epidemiology, consumer
complaint, news articles, and compliance, which has separate databases
for its regulated products and for its other recalls. A Commission
employee, trying to locate all of the Commission's death and injury
information about a particular product, must search all of these
databases. Moreover, some of this search must be through paper
documents. We want to integrate our databases and to convert paper
documents into electronic format. The Commission has made progress in
this project, but it has been hobbled by resource limitations.
Similarly, resource limitations have prevented the Commission from
implementing a regular program of replacing and improving information
technology equipment.
In addition to problems caused by lack of resources in the area of
information technology, the Commission has not had a research budget.
If the Commission had a research budget, it could contract out for
research into significant consumer product safety problems that require
substantial resources to understand and to evaluate. For example,
residential electrical distribution systems (e.g., circuit breakers,
panel boards and wiring) were implicated in an estimated 38,000 fires,
resulting in 280 deaths and $680 million in property damage in 1998.
One project that the Commission has considered is conducting long-term
testing and evaluation of the performance of circuit breakers and panel
boards to determine if the safety standard for these products should be
upgraded. It is true that industry performs research, but most of it is
for product development, rather than to evaluate the overall safety of
classes of products and the adequacy of voluntary safety standards. The
research contemplated by the Commission will spur research and
innovation by manufacturers. But the preliminary work must often be
done by a government agency, which is why most other federal health and
safety agencies have a separate research budget. As Chairman, I intend
to work to secure the resources so that the Commission can integrate
databases, meet its information technology needs, and undertake
research projects.
Record
I have been a Commissioner since 1991. In that time I have cast
almost 700 votes. I have, in addition, made a number of public
statements, both in connection with those votes and in other contexts.
Given that number of votes and public statements, I am bound to have
taken positions on specific issues with which some people may disagree.
I urge you to consider my record in its entirety, and not just one, or
even several, votes on issues on which you find that you reach a
different result.
Voting Record
My voting record at the Commission shows that I do not hesitate to
support recalls when products are dangerous, and to impose penalties
when businesses have violated Commission regulations. On questions of
enforcement, such as recalls, subpoenas and civil and criminal
penalties, I voted approximately 97% of the time with the majority. My
only disagreements were four votes: the amount of two civil penalty
settlements; the timing of the issuance of a subpoena and special
order; and the timing of the filing of an administrative complaint. I
have always supported staff recommendations that an administrative
complaint be filed seeking to have a product recalled. Similarly, I
have always supported civil penalty and referrals to the Department of
Justice to seek civil or criminal penalties.
My voting record on regulatory matters does not differ a great deal
from my record on enforcement matters. I have voted with the majority
in approximately 93% of the votes that I have taken. There have been
several votes I have cast against proceeding with regulation that have
been criticized. I will address those votes and opinions below.
Baby Bath Seats
The controversy surrounding baby bath seats is perhaps the best
example of where I believe my opponents' criticism is misguided. Baby
bath seats and rings are products designed to facilitate the bathing of
a slippery, squirmy infant. They entered the U.S. market in the early
1980s. Unfortunately, some caregivers left infants placed in such bath
seats or rings unattended in tubs of water, with the tragic result that
the infants drowned. In some cases, the infant ended up in the water
because the bath seat overturned when the suction cups failed.
In 1994, the Commission staff presented the Commission with a
series of options, including an outright ban of the product. The staff
recommended that the Commission issue an Advanced Notice of Proposed
Rulemaking. Most of the discussion at that time centered on an outright
ban of the product.
I joined my colleague, Commissioner Jacquelyn Jones-Smith and voted
against rulemaking. Commissioner Jones-Smith and I did instruct the
staff to begin an information and education campaign to alert consumers
about the hazards of leaving infants unattended in tubs, with or
without a bath seat. I voted against beginning rulemaking at that time
because my review of the in-depth investigations showed me that the
presence of this product had nothing to do with the reasons that
persons left infants unattended. The ``theory'' of the proponents of
banning baby bath seats is that people are more likely to leave infants
unattended in bath seats than they are without a bath seat. This theory
had as its basis statements by persons who had left infants unattended
in tubs with a bath seat. They said that they had left the child only
for ``an instant'' or for ``a short time.'' When I read the in-depth
investigations of these drowning incidents, however, which included
police, medical examiner, emergency room, social worker and paramedic
interview reports, they revealed that these caregivers had often left
the victims unattended for extended periods, sometimes for over an
hour. In one case, a baby sitter placed an infant in a bath seat in a
stationery tub in the laundry room and left the room. The baby sitter
admitted that she knew that the baby could turn the water faucets on.
The baby did turn on the hot water and died of thermal burns over 85%
of his body when hot water filled the tub. The baby sitter forgot about
the baby in the tub until water flowed through several rooms before
reaching the room in which the baby sitter was located. I simply could
not find that the bath seat was in any way defective or determinative
of why caregivers left infants unattended.
In 2000, the Commission received a petition to ban baby bath seats.
My review of the in-depth investigations showed the same pattern of
infants left unattended in tubs for the same reasons, unrelated to the
presence or absence of a bath seat. It is notable that my colleague,
Chairman Ann Brown, who had voted to begin rulemaking in 1994 and who
had generally favored a ban on the product, changed her position and
said that a ban was not justified.
The evidence before the Commission, however, revealed developments
in the use of bath seats that caused me to reconsider the position that
I had taken in 1994. The new data showed that infants were tipping over
in bath seats and sliding through the leg openings even in the presence
of caregivers. It also showed that bathtubs increasingly are being made
of non-slip resistant material to which suction cups do not adhere.
Finally, although progress had been made in developing a voluntary
standard, it still did not deal with the issue of infants sliding
through the seats, and its only attempt to address the problem of non-
skid bathtub surfaces was an inadequate labeling requirement on the
packaging. As a result of these new developments, in May 2001, I joined
my colleagues and voted to begin a rulemaking that has as its objective
the development of a performance standard for baby bath seats.
What conclusions should the Members of this Subcommittee draw from
the bath seat example about my regulatory philosophy? As a regulator my
task is to assess whether or not the product was defective, and whether
it poses a substantial risk of injury to the public, the statutory
criteria upon which the Commission is empowered to take action.
In 1994, I found that the record would not support a ban, because
the evidence before the Commission failed to show any characteristic of
bath seats that induced caregivers to leave infants unattended more
frequently or for longer periods than they did in the absence of a bath
seat. In 2001, the evidence available to the Commission changed. The
record still failed to show that the presence of a bath seat induced
caregivers to leave more frequently or to stay away longer, but it did
show that bath seats tipped over or children slid through leg hole
openings in the presence of caregivers. Moreover, the Commission staff,
which had not proposed any ideas for a performance standard in 1994,
had several ideas about improving the stability/retention of bath seats
and minimizing the hazard of infants becoming entrapped by sliding
through the leg hole openings. I was, therefore, persuaded that
beginning rulemaking was justified.
Baby Walkers
In 1994, the Commission was petitioned to ban the sale of baby
walkers. The Commission staff recommended that the Commission begin
formal rulemaking to develop mandatory performance standards for baby
walkers. I voted against rulemaking in this case for two reasons.
First, the record showed that just as many babies fell down stairs who
were not in walkers as fell down stairs who were in walkers. This fact
suggested to me that the real problem was an open staircase. The simple
act of closing a door or using a safety gate would protect babies in or
out of walkers. Second, I thought that any changes needed in the
product could best be addressed through the voluntary standards setting
process. The Commission staff and industry worked together to develop
voluntary standards that prevent babies in walkers from going down
stairs. These standards appear to be adequate and compliance with them
appears substantial.
Bunk Beds
The question of whether and how to regulate bunk beds posed a
different issue. In the cases of baby bath seats and baby walkers, the
product contemplated some level of caregiver involvement and
supervision. One should never leave an infant alone in a tub of water
and one should always block access to hazards such as stairs that might
threaten a child in or out of a baby walker. Bunk beds, however,
contemplate that the caregiver will leave the child unattended while
the child sleeps. Thus, the design and construction of the bunk bed
must give the child a safe place in which to sleep, separate and apart
from the actions of the caregiver. Some bunk beds had guard rails or
end pieces with spacing that resulted in fatal entrapments of children.
The bunk bed industry was aware of this problem and first adopted
safety guidelines in 1978. By the time that the Commission considered
its mandatory rule, the industry voluntary standard had virtually
eliminated the entrapment hazard and differed from the mandatory rule
in only minor technical points. In my experience as a Commissioner, I
have found few voluntary standards groups that have been as responsive
to the Commission's concerns as the bunk bed industry.
Both the Consumer Product Safety Act and the Federal Hazardous
Substances Act require that the Commission not promulgate regulations
if an existing voluntary standard eliminates or adequately reduces the
risk of injury, and it is likely that there will be substantial
compliance with the voluntary standard. In the case of bunk beds, the
voluntary standard had been effective and had been under constant
revision to make it even more effective. Moreover, compliance with the
voluntary standard in the seven years preceding adoption of the
Commission of the mandatory standard had been in excess of 90%, and may
have been 100% at the time that the Commission adopted the rule. It was
my view that the statutory criteria were more than fulfilled by the
record before the Commission, and I voted, therefore, not to adopt the
mandatory standard. By the time that I voted, the bunk bed industry,
threatened by inconsistent state legislation mandating bunk bed
specifications, had changed its position and actually favored a
mandatory standard. Since the time that the mandatory standard has gone
into effect the Commission staff negotiated the recall of 200 bunk beds
in October 2000 as a result of a collapsing hazard covered by the
voluntary, but not the mandatory, standard. There will be an intensive
program in the field to search for non-conforming bunk beds in the fall
of this year.
The basis of my decision against a mandatory standard for bunk beds
was very different from the basis of the decision in baby bath seats
and baby walkers. I did not vote against a mandatory standard because
the product could be used safely with reasonable caregiver attention,
or even with reasonably foreseeable misuse. I did not cite caregiver
neglect as a basis for opposing regulation, even though the record
showed that most of the bunk bed fatalities occurred when infants were
placed on bunk beds, a clear misuse of the product that is warned
against. Rather, I rejected a mandatory standard because the statutes
under which the Commission operates require that it defer to the
voluntary standard under these circumstances. Congress made the
voluntary versus mandatory standards policy call when it amended the
Commission's statutes in 1981 and the Commission must adhere to this
Congressional direction.
Crib Slats
The Commission has had crib spacing regulations in effect since
1973 and they have helped to reduce significantly the number of
fatalities associated with entrapments in cribs. The Commission's
mandatory standard does not include criteria for structural or
mechanical integrity of cribs. There is, however, an ASTM voluntary
standard governing crib integrity, which was first published in 1989 as
a result of a Commission staff request. The Juvenile Products
Manufacturers Association (JPMA) has a third party certification
program in place for cribs.
Between January 1985 and September 1996 the Commission became aware
of incidents in which the crib slats disengaged from the side rails.
Once the slats came loose from the side rails, they were free to move,
which could create an entrapment hazard. The Commission staff asked
that the ASTM subcommittee consider adopting a Canadian standard that
required crib slats to withstand a certain amount of torquing
(twisting) force.
Manufacturers were concerned that the Canadian standard would not
detect the type of problem that caused crib slats to separate from crib
rails. Eventually the Commission staff agreed, and proposed an
amendment to the voluntary standard different from the Canadian
standard. I voted against publishing an Advance Notice of Proposed
Rulemaking. I did so because I believed that the Commission had not
given the voluntary standards setting process sufficient time to test
and to comment on the standard that the staff was then proposing. For
most of the time that the voluntary standards subcommittee had been
considering the issue, the Commission staff had been advocating the use
of the Canadian standard that the staff itself eventually conceded was
inadequate. At the time that the Commission was asked to vote on the
ANPR, the Commission staff-proposed standard, which was much different
than what the staff had recommended previously, had been before the
voluntary standards subcommittee only about two and a half months. The
subcommittee chairman had committed to considering the standard as
early as the very next month. Manufacturers needed time to test and
evaluate the staff-proposed voluntary standard. Under the circumstances
I believed that it was premature for the Commission to begin rulemaking
while the voluntary standards setting process appeared to be actively
considering and in the process of adopting a standard. I did note in my
statement that there was a definite problem with crib slats, and that
mandatory rulemaking remained an option if sufficient progress was not
made on the voluntary standard. The ASTM subcommittee did adopt a
voluntary standard that the Commission staff found acceptable and which
became effective in March 2000. The Commission staff is presently
monitoring the extent of compliance with the voluntary standard in
order to determine whether it can recommend the withdrawal of the ANPR.
In both my decisions on bunk beds and on crib slat retention, the
issue of deferral to voluntary standards was crucial. A preference for
voluntary standards is not just my own personal decision as a
Commissioner. Rather the Commission's own governing statutes require
deferral to a voluntary standard whenever compliance with the voluntary
standard would eliminate or adequately reduce the risk of injury
addressed by the voluntary standard, and it is likely that there will
be substantial compliance with the voluntary standard. Congress has
itself adopted voluntary standards when it has chosen to legislate
product safety standards. For example, in 1994, Congress adopted as
interim bicycle helmet mandatory standards the following voluntary
standards: American National Standards Institute Standard Z90.4-1984,
Snell Memorial Foundation Standard B-90, or ASTM Standard F 1447. Thus,
Congress itself has recognized the advantages of voluntary standards
when it has acted in the area of product safety.
Nor is the statutory preference for voluntary standards irrational.
Voluntary standards are easier to adopt and to amend when flaws are
detected, when new designs emerge, or when changing patterns of
consumer use reveal new hazards. It is true that mandatory standards do
have enforcement advantages. But it would be a mistake to regard
``regulated'' as a synonym for ``safe.'' Some products that the
Commission regulates have violation rates that are surprisingly high.
For example approximately 33%-40% of imported fireworks violate some
aspect of Commission regulations, and 25% of imported fireworks are
sufficiently violative so as to be actionable. Since 1998, the
Commission has had 48 separate recalls involving 189 models of
cigarette lighters that violated Commission regulations. In fiscal year
2001 alone, the Commission staff found over 14 million non-conforming
units. So the existence of federal mandatory regulations does not mean
that products always comply with the regulations.
Choking Hazards
In 1979, the Commission issued a small parts regulation under the
authority of the Federal Hazardous Substances Act to ban certain toys
and other articles intended for use by children under three because
they posed a choking hazard if aspirated. In 1992, the Commission staff
recommended: (1) mandatory labels for balloons warning of choking
hazards in children up to age eight; (2) mandatory labels for marbles
warning of choking hazards and reminding children not to put them in
their mouths; (3) a ban of small balls less than 1.68 inches in
diameter marketed for children under three, and a mandatory warning
label on all games and toys with balls less than 1.68 inches in
diameter.
I voted with my colleagues not to proceed with rulemaking along the
lines recommended by the staff. I found that the statutory requirement
that there be an unreasonable risk of injury was not present, and
further found that the proposed regulations would do little or nothing
to alleviate the risk that did exist. In the case of balloons, the risk
of injury or death was low to begin with, there existed an ASTM
voluntary standard for warning labels for balloons, and even the
proposed mandatory regulation would apply only to about two-thirds of
the balloons sold in the U.S. Upon my motion, the Commission did
instruct the staff to cooperate with ASTM to improve the voluntary
standard.
In the case of marbles, the risk of injury or death was again low
and the mandatory standard would have applied only to about 30% of the
marbles sold in the U.S. (marbles sold for industrial or collector
purposes would have been exempt). Although there was no voluntary
standard for labeling, a number of manufacturers did provide warnings
about the well-known hazard of very young children putting marbles in
their mouths. The situation was similar in the case of small balls and
small parts in toys and games for children aged three and four years:
low risk of injury or death, coupled with widespread consumer knowledge
of the hazards of letting children under three play with items that can
potentially choke them.
Industry had opposed the proposed regulations in its submissions to
the Commission. In the aftermath of the Commission's decision not to
proceed with regulation, the State Legislature of Connecticut passed a
toy labeling law and other state legislatures began considering similar
legislation. Industry attempted to have the Connecticut law struck down
as an unconstitutional infringement on Congress's power to regulate
interstate commerce. When court decisions upheld the Connecticut law,
however, industry changed its position and asked for congressional
intervention to prevent inconsistent state laws from requiring
different labels.
Congress subsequently passed the Child Safety Protection Act, which
codified many of the staff recommended labels. Congress is, of course,
free to make this policy call and need develop no record further than a
majority of the House and Senate. Congress, for example, exempted
products manufactured outside of the U.S. from the labeling
requirements if the products were shipped directly to a consumer and if
``accompanying material shipped with the product'' contained the
warning. I accept that Congress can choose to act even when the record
before the Commission is insufficient to support rulemaking, and I have
supported enforcement actions under the authority of the new law.
``Nanny State''
Questions have been raised about a statement that I made in a
letter to the editor that appeared in the October 12, 1999 issue of USA
Today, in which I referred to certain Commission activities as
``proclamations issued by this agency on behalf of the federal Nanny
State.'' My statement was in connection with a Commission press release
about the practice of ``co-sleeping.'' (``Co-sleeping'' refers to
adults and infants sleeping together.) I characterized the press
release as a proclamation on behalf of the federal Nanny State because
its basis was not a product over which the Commission has jurisdiction,
but rather a cultural practice. It is entirely appropriate for the
Commission to warn the public about defective products, but warnings
about cultural practices are not within its purview. The press release
in question also warns about the practice of placing infants in adult
beds, which presents the genuine product hazard of entrapment between
the mattress and the wall, and to the dangers of infants sleeping on
soft bedding. These additional product warnings were inserted at my
insistence.
My statement referred to a procession of proclamations. In addition
to the press release on co-sleeping, I have been critical of Commission
press releases that warn against obvious hazards, such as falling off
snowboards. Finally, the Commission's General Counsel stated to the
Washington Post in May 1994 that the movie industry might be within the
Commission's jurisdiction if movies depicted unsafe practices with
consumer products, such as stunts by children riding all-terrain
vehicles. It was press releases or statements such as these, which seek
to lecture people about either practices (co-sleeping) or products
(movies) over which the Commission has no jurisdiction, or which
lecture people about obvious hazards, such as falling down while moving
forward, that prompted my remark about the federal Nanny State.
Threshold for Commission Action
I have been asked whether I have a higher ``threshold'' or ``burden
of proof'' for Commission action than other commissioners. My answer is
that all Commissioners must adhere to the statutory requirements,
either for enforcement or regulatory actions. To order a recall, the
Commission must find that there is a substantial product hazard or that
a product is a misbranded or a banned hazardous substance. To issue
regulations, the Commission is bound by detailed procedural regulations
set forth in its governing statutes, and by findings that it must make
in order to justify the regulations. These statutes are binding on all
Commissioners and upon the Commission staff. Persons who do not believe
that the statutes have been followed may seek judicial review of
Commission decisions and actions.
Perhaps what prompted the questions about my ``threshold'' or
``burden of proof'' for enforcement and regulation is my practice of
asking detailed questions at staff briefings about the cases that are
being relied upon to support staff recommendations to go forward with
regulation. These questions are based upon my personal reading of the
in-depth investigations (IDIs) of incidents of deaths and injuries
associated with the use of products. They may include police reports,
medical examiner reports, social worker reports, hospital emergency
room and paramedic reports, and the Commission staff's own interviews
with the participants.
Reading IDIs and asking questions about them is a practice to which
I have adhered faithfully as a Commissioner. I will continue to do so
if I am confirmed in the position of Chairman. One cannot evaluate the
need for product regulation without understanding all of the facts and
circumstances surrounding deaths and injuries associated with the use
of the product. I may find that the presence of the product was
incidental, and that the real causes of the death or injury were not
associated with the product, but lay elsewhere. These deaths or
injuries could not have been prevented by any conceivable product
safety standard. If regulation of the product will not reduce the risk
of death of injury, then the Commission is not justified in proceeding
with regulation.
Conclusion
One of the rewards of public service is the privilege of working
every day with people who share the goal of helping others. This has
been my experience during my more than nine years of service at the
Commission. The hard-working, dedicated, career staff at the Commission
fuels the engine that allows a small agency to operate effectively.
What provides me with the greatest personal satisfaction is the fact
that our work at the Commission helps protect America's families.
Mr. Chairman, I believe that my service and record at the
Commission demonstrates a consistent, compassionate and responsible
commitment to protecting our nation's consumers from unreasonable risks
posed by defective consumer products. I believe that I can do even more
as Chairman of the Commission. I am attaching two letters to this
testimony in support of my nomination, one from my fellow Commissioner
Thomas Moore, and one from the National Association of State Fire
Marshals. I ask that they be made a part of the record. Mr. Chairman, I
want to thank you again for this opportunity to testify before you and
share my views with the Members of the Committee, and to discuss my
qualifications to serve as Chairman of the Commission. I would be
pleased to answer any questions that the Committee Members wish to pose
to me.

Attachments
National Association of State Fire Marshals,
Government Relations, January 8, 2001.

Hon. George W. Bush,
President-Elect,
Bush-Cheney Presidential Transition Foundation, Inc.,
McLean, VA.

Dear Mr. President-Elect:

On behalf of the most senior fire official of each of the 50 states
and District of Columbia, the National Association of State Fire
Marshals wishes to express its support of Commissioner Mary Sheila Gall
as Chairman of the United States Consumer Product Commission.
Commissioner Gall has served the Commission for nearly a decade and
well understands the workings of this important agency.
Over the course of her tenure, our association has disagreed with
Commissioner Gall on occasions. But, in the spirit of your
Administration, we believe these are times to focus on areas of
agreement. We have never doubted her concern for the safety of American
families and the importance of individuals taking responsibility for
their actions, be they single parents in public housing or corporate
CEOs.
We will work with whomever you select to Chair the Commission, Mr.
President-Elect, but we believe that it is Commissioner Gall's turn at
the Commission's helm.
Sincerely,
George A. Miller,
President.

U.S. Consumer Product Safety Commission,
Washington, DC, April 26, 2001.
The Editor,
USA Today,
Arlington, VA.

Dear Sir:

I was dismayed to read the article in the April 25th USA Today
giving an unfairly negative slant to the record and beliefs of: Mary
Sheila Gall, my fellow Commissioner at the U.S. Consumer Product Safety
Commission. As the article notes, Commissioner Gall has served at CPSC
for ten years. She was initially appointed by President Bush and then
re-appointed only a couple of years ago by President Clinton. As a
life-long Democrat, and a Clinton appointee, I find it disturbing that
Mary Gall would be attacked for her convictions and her beliefs now
that she is being nominated for the Chairmanship of the agency.
Reading the article one might not know that the Commission is a
three-member decision-making body. At any one time the agency may have
no more than two members of any political party. At the moment there
are two Democrats, myself and current Chairman Ann Brown and one
Republican, Mary Gall. To search for some nefarious motive for
Commissioner Gall's selection as Chairman is to fail to understand the
political reality. She is the only sitting Republican and the President
has the right to name his own chairman of the agency. Characterizing
Commissioner Gall's appointment as `political' is saying nothing more
than the truth about Presidential appointments--they are all political.
Perhaps it is my own naivete speaking, but I was under the
impression that being true to one's convictions was a virtue. That
those convictions may not be shared by everyone makes them no less
worthy of consideration. During my six years at the agency, I have been
impressed by Commissioner Gall's hard work, her thoughtful
consideration of every issue and been persuaded, on occasion, by her
arguments. And for her part, she has been willing to change her views
after hearing her colleagues on certain matters. But whether we agree
on an issue or not, I can find nothing in her views or her voting
record to cause me any alarm about her assuming the Chairmanship of the
Agency. (Anyone who looks at the totality of her record will find that
she has voted with the Democratic majority or formed a majority with
one or another Democrat on the Commission many, many more times than
not.)
One of the results of Presidential and congressional elections is
that periodically the philosophy of government changes. Our laws are
designed to encourage that. It is healthy for the pendulum to swing
back and forth between liberal and conservative views. If only one view
was ever expressed or exercised, a large segment of the public would
never have their views heard. While I may have a different opinion than
Commissioner Gall on some aspects of Commission business, I have no
doubt she will listen to my views and that, however she votes, her
decision will be well-reasoned and give expression to a valid viewpoint
shared by many (perhaps the majority) of Americans. To attack her
nomination as Chairman because her thoughts on government intervention
are somewhat different than her predecessor's is to trivialize our
system of government and Commissioner Gall's very thoughtful approach
to it.
Sincerely,
Thomas Hill Moore,
Commissioner.

a. biographical information
1. Name: (Include any former names or nick names used.) Mary Sheila
Gall.
2. Position to which nominated: Chairman, United States Consumer
Product Safety Commission.
3. Date of nomination: May 8, 2001.
4. Address: (List current place of residence and office addresses.)
Home Address: 6811 Dillon Avenue, McLean, Virginia 22101. Office
Address: The U.S. Consumer Product Safety Commission, Suite 722, 4330
East West Highway, Bethesda, Maryland 20814.
5. Date and place of birth: July 19, 1949 in North Tonawanda, New
York (near Buffalo).
6. Marital status: (Include maiden name of wife or husband's name.)
I am single, never married.
7. Names and ages of children: (Include stepchildren and children
from previous marriages.) The names of my children are Maria Rosa Gall
(``Rosita'' age 17) and Walter Paul Gall (age 22.) I adopted my
children as a single parent.
8. Education: (List secondary and higher education institutions,
dates attended, degree received and date degree granted.) Bishop
Neumann High School, Williamsville, New York. Attended from 9/63 to 6/
67. Received a New York State Regents Diploma 6/67.
Rosary Hill College, Amherst, New York. Attended from 9/67 to 5/71.
Received a B.A. in History and Government, minor in Education, 5/71.
Trinity College, Washington, D.C. Attended from 1/70 to 5/70--
special junior year semester program. No Degree.
Old Dominion University, Norfolk, VA (Northern Virginia Campus).
Attended night and weekend classes from 6/96 to 12/98. Received a
Masters of Science in Education/Special Education, 12/98.
9. Employment record: (List all jobs held since college, including
the title or description of job, name of employer, location of work,
and dates of employment.)

1991-Present
Commissioner
U.S. Consumer Product Safety Commission (CPSC)
Bethesda, MD

Determine policy and priorities of the CPSC which has over 15,000
consumer products subject to its jurisdiction. Specifically, as
Commissioner, I approve or reject petitions, promulgate regulations,
refer matters for civil or criminal penalties, initiate administrative
complaints, approve or reject settlements for civil or criminal
penalties, accept or reject settlements in substantial product hazard
proceedings, review appeals from administrative law judge
determinations, prepare and submit testimony to Congress, approve or
disapprove staff proposed budget requests, approve or disapprove annual
operating plans, approve or disapprove officers of the Commission, and
supervise and evaluate staff in my own office.
1989-1991
Assistant Secretary
Human Development Services
U.S. Department of Health and Human Services
Washington, D.C.

Administered the Human Development Services agency, the U.S. Department
of Health and Human Services division serving children, youth,
families, people with disabilities, the elderly and Native Americans.
Oversaw a yearly budget of $5 billion and the activities of 1,000
employees. Worked closely with the Administration and Congress to
develop and implement program policies, such as Head Start expansion,
the Americans with Disabilities Act, foster care. Chaired the White
House Working Group on the Family and served as a member of the White
House Working Group on Disabilities.

1987-1988
Chair
President's Task Force on Adoption
Washington, D.C.

Worked with over 130 special interest organizations and many federal,
state and local agencies to identify barriers to adoption and methods
to promote adoption. Presented the Task Force report to the White House
Domestic Policy Council and to the President. Conducted White House
press briefings and gave interviews to national media. Testified before
Congress. Organized White House and Congressional events to highlight
adoption issues.

1986-1989
Counselor to the Director
U.S. Office of Personnel Management
Washington, D.C.

Senior confidential advisor to the Director on administration and
agency policy development and implementation. Worked directly with the
White House Cabinet Councils, federal agencies and public interest
organizations on matters pertaining to the federal civil service (3
million civilian employees) and other national policies affecting the
federal workplace.

1981-1986
Deputy Domestic Policy Advisor
Office of Vice President Bush
White House
Washington, D.C.

Provided policy option analysis for White House Cabinet Council and
Cabinet meetings. Delivered oral and written briefs for the Vice
President's issue/special interest and media use. Represented the Vice
President at the Cabinet Council meetings and meetings with the public.
Worked with federal, state and local government agencies. Extensive
domestic travel with the Vice President.

1980-1981
Reagan-Bush Presidential Campaign and Transition Team
Alexandria, VA & Washington, D.C.

Contributed to the domestic issues section of the debate briefing book
for the Reagan/Carter debates. Handled communications and policy
transition work for the Vice President Elect. Worked with President
Elect's transition team planning scheduling for the first 90 days in
office.

1980-1981
Senior Legislative Analyst
House Republican Study Committee
Washington, D.C.

Analyzed legislative proposals for publication and distribution to
Republican Members of Congress and interest groups. Conducted issue
research, wrote floor and other speeches for Members, drafted articles
for publication.
1979-1980
Director of Research
George Bush for President Campaign
Alexandria, VA

Provided oral and written briefings to the candidate on foreign and
domestic issues. Traveled with candidate and provided briefings for the
candidate, his family, campaign staff and supporters. Supervised full-
time staff and volunteers. Wrote daily news summary for candidate.

1971-1979
Legislative Aide
Individual Members of House and Senate
Of United States Congress
Washington, D.C. and Buffalo, N.Y.

Employed by Senator James Buckley (C.R., N.Y.), Representatives Jack
Kemp (R., N.Y.), and Tom Coleman (R., Missouri). Work included drafting
bills and amendments, floor speeches, casework, and supervision of a
nine-county Senate office in upstate New York.

10. Government experience: (List any advisory, consultative,
honorary or other part-time service or positions with Federal, State,
or local governments, other than those listed above.) All listed above.
11. Business relationships: (List all positions held as an officer,
director, trustee, partner, proprietor, agent, representative, or
consultant of any corporation, company, firm, partnership, or other
business enterprise, educational or other institution.) None.
12. Memberships: (List all memberships and offices held in
professional, fraternal, scholarly, civic, business, charitable and
other organizations.) I am a member of St. John's Church in McLean, VA.
I taught Sunday School there for four years. Prior to St. John's, I was
a member of the St. Thomas More Catholic Church in Arlington, VA. I
currently teach Sunday School at St. James Church in Fall Church. I
have served, in a voluntary capacity, as a soccer coach, Cub Scout den
leader, homeroom mother for my children's schools, member of the Parent
Teacher organizations of each school, etc. Also previously served on
the National Committee for Adoption, Special Needs Adoption Committee
and the North American Council for Adoptable Children. I was a hotline
volunteer for the National Wildlife Rescue League in 2000.
13. Political affiliations and activities:
(a) List all offices with a political party which you have held or
any public office for which you have been a candidate. I was elected a
member of the Republican City Committee of Alexandria, VA in the late
70s. I was also elected as a delegate to the State Republican
Conventions in the late seventies. These were not ``public office''
elections and I did not campaign or spend any money.
(b) List all memberships and offices held in and services rendered
to all political parties or election committees during the last 10
years. None.
(c) Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $500 or more for the past 10 years. No campaign contributions
of $500 or more.
14. Honors and awards: (List all scholarships, fellowships,
honorary degrees, honorary society memberships, military medals and any
other special recognitions for outstanding service or achievements.)
Scholarships:
1. LFull four year teaching scholarship for D'Youville College,
Buffalo, N.Y. (turned it down).

2. LNew York State Regents Scholarship.

3. LScholarship from Rosary Hill College, Buffalo, N.Y.
Honors/Awards:
Secretarial Commendation from Dr. Louis Sullivan, Secretary, Department
of Health and Human Services.

Several service awards from Vice President Bush.

Warner Lambert Company Salute to American Family Award for Work to
Promote Adoption.

Distinguished Service Award from National Committee on Adoption.

Father Clement DeMuth Award for Service to Children.

Christian Service Award for Outstanding Service to Children.

15. Published writings: (List the titles, publishers, and dates of
books, articles, reports, or other published materials which you have
written.) I wrote a story called ``Little Red Socks'' that was
published in a book entitled, The Greatest Gifts Our Children Give Us
(Simon and Schuster, '97).
I chaired President Reagan's Task Force on Adoption and was
responsible for the final report, ``America's Waiting Children''
(1987).
I wrote several articles promoting adoption and some about the need
to cherish our children. These were during my service as Assistant
Secretary at HHS.
There are several letters to the editor of the Washington Post
concerning HHS issues, such as the impact of parental drug abuse on
children. While serving as Commissioner of CPSC. I have written letters
to the editors of major newspapers about agency issues.
16. Speeches: Provide the Committee with two copies of any formal
speeches you have delivered during the last 5 years which you have
copies of on topics relevant to the position for which you have been
nominated. Typically, I do not give formal speeches from a prepared
text. I have enclosed a number of my policy statements for your
review.*
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* The information referred to has been retained in the Committee
files.
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17. Selection:
(a) Do you know why you were chosen for this nomination by the
President? The President has nominated me as Chairman of the CPSC based
on my over 9 years of service at the Commission. My record as a
Commissioner demonstrates a strong commitment to the safety of the
American public in their homes and communities. This commitment and my
regulatory philosophy are consistent with those of the President.
(b) What do you believe in your background or employment experience
affirmatively qualifies you for this particular appointment? I was
originally nominated to serve as Commissioner in 1991 based on my broad
experience in the public sector focusing on issues relating to
children, individuals with special needs and my experience with
consumer safety issues. During my tenure as Commissioner, I have become
thoroughly familiar with the statutory responsibilities and day-to-day
operations of the Commission. This knowledge and experience qualify me
for the position of Chairman.
b. future employment relationships
1. Will you sever all connections with your present employers,
business firms, business associations or business organizations if you
are confirmed by the Senate? Not applicable.
2. Do you have any plans, commitments or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, explain. No.
3. Do you have any plans, commitments or agreements after
completing government service to resume employment, affiliation or
practice with your previous employer, business firm, association or
organization? No.
4. Has anybody made a commitment to employ your services in any
capacity after you leave government service? No.
5. If confirmed, do you expect to serve out your full term or until
the next Presidential election, whichever is applicable? Yes.
c. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients or customers. None.
2. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. None.
3. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated? None.
4. Describe any activity during the past 10 years in which you have
engaged for the purpose of directly or indirectly influencing the
passage, defeat or modification of any legislation or affecting the
administration and execution of law or public policy. As Assistant
Secretary for Human Development Services, HHS and as Commissioner at
CPSC I have testified before various House and Senate Committees on
matters under my jurisdiction.
5. Explain how you will resolve any potential conflict of interest,
including any that may be disclosed by your responses to the above
items. (Please provide a copy of any trust or other agreements.) Not
applicable. I have nothing that could ever result in a conflict of
interest.
6. Do you agree to have written opinions provided to the Committee
by the designated agency ethics officer of the agency to which you are
nominated and by the Office of Government Ethics concerning potential
conflicts of interest or any legal impediments to your serving in this
position? Yes.
d. legal matters
1. Have you ever been disciplined or cited for a breach of ethics
for unprofessional conduct by, or been the subject of a complaint to
any court, administrative agency, professional association,
disciplinary committee, or other professional group? If so, provide
details. No.
2. Have you ever been investigated, arrested, charged or held by
any Federal, State, or other law enforcement authority for violation of
any Federal, State, county, or municipal law, regulation or ordinance,
other than a minor traffic offense? If so, provide details. No.
3. Have you or any business of which you are or were an officer
ever been involved as a party in interest in an administrative agency
proceeding or civil litigation? If so, provide details? No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? No.
5. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination. None.
e. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines set by congressional committees for information? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistle blowers from reprisal
for their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, to include technical experts and career employees with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
f. general qualifications and views
1. Please describe how your previous professional experience and
education qualifies you for the position for which you have been
nominated. I have served as an incumbent Commissioner for the past 9
years, and I am thoroughly familiar with its day-to-day operations and
statutory responsibilities. The chairman and the two other
commissioners each have one vote on all regulatory and enforcement
matters undertaken by the Commission. These matters include decisions
to: (1) issue, withdraw or amend regulations; (2) file administrative
complaints seeking to have products recalled; (3) issue subpoenas and
special orders; (4) settle civil penalty cases; and (5) refer civil or
criminal penalty cases to the Department of Justice for prosecution. In
addition, many major decisions affecting Commission operations, such as
the budget, hiring of senior staff, reorganization of agency program
offices, and the operating plan require my involvement. I served
previously as an Assistant Secretary with the Department of Health and
Human Services. I was head of the Human Development Services Agency and
oversaw 55 federal programs with a staff of 1000 employees and a $5
billion budget. As an appointed federal official, I have appeared
before the national media as spokesman for various Administration
initiatives. I came to the position of Commissioner with over 20 years
of public service experience.
2. What skills do you believe you may be lacking which may be
necessary to successfully carry out this position? What steps can be
taken to obtain those skills? Based on my many years of government
service and my work at the Commission, I believe that I have developed
and demonstrated the skills necessary to assume the responsibilities of
Chairman of the CPSC.
3. Why do you wish to serve in the position for which you have been
nominated? I wish to serve as Chairman of the CPSC because I will
improve the safety and well being of the American public in their homes
and communities. The Commission has done much good work in the past
improving public safety and I am certain that it can do even better in
the future. The Commission can, through information and education
campaigns conducted in cooperation with industry and with public
interest organizations, educate the public more effectively in the safe
use of consumer products. Without in any way compromising safety, the
Commission can work with the regulated community more cooperatively. In
my previous service on the Commission I have made a significant
contribution by bringing a sense of balance and a ``limited
government'' perspective to the Commission's regulatory mission. I
believe that I can contribute even more in the position of Chairman.
4. What goals have you established for your first two years in this
position, if confirmed? International trade has expanded dramatically
since the Commission began operations in 1973. Increasing numbers of
consumer products are made in countries outside the United States and
U.S. manufacturers export greater numbers of consumer products every
year. The Commission needs to be more active in seeking to improve the
safety of products being distributed in international trade. One of the
best ways to accomplish this objective is to enhance Commission
participation in the technical aspects of international product safety
standards.
One of the major challenges of the Commission is getting notice of
recalls and other safety information to consumers, especially the most
vulnerable communities, who need it. The Commission needs to enhance
its existing effort to reach consumers with notices of recalls and
other crucial information about safe practices. I will leverage the
Commission's resources by cooperative efforts with other Federal
agencies, with industry, and with state and local entities that deal
with these consumer constituencies. I would especially like to work
with local fire departments.
I intend to work with Congress in order to obtain the level of
resources adequate for the Commission to meet its obligations to comply
with requirements for: (1) public accessibility of Commission
information; (2) availability of Commission facilities and data to
persons with disabilities, and (3) telecommuting options for Commission
employees. I also will continue to ensure that our staff has the
appropriate tools to address the increasing number of technologically
complex hazards.
5. Please discuss your philosophical views on the role of
government. Include a discussion of when you believe the government
should involve itself in the private sector, when should society's
problems be left to the private sector, and what standards should be
used to determine when a government program is no longer necessary. I
will set forth my philosophical views in the context of the mission of
the Commission: consumer product safety. We need product safety
regulation to protect the public. But the nature of the regulations
needs to be targeted at the true hazard. If the hazard lies in some
defect or dangerous aspect of the product, then regulations and
enforcement action to address and correct that hazard are appropriate.
But where the nature of the hazard lies in careless consumer behavior
in the presence of the product, and not with the product itself, then
regulation and enforcement action are not appropriate. Regulation of or
enforcement action against products when consumer behavior is the real
problem does not promote enhanced safety because it does not address
the underlying cause of deaths and injuries. Determining when a hazard
is in the product and when it is not is often difficult. The Commission
has a highly capable technical staff, and the input of consumers, the
regulated community and other stakeholders to assist it. I have served
as a Commissioner with a strong commitment to maintaining an
appropriate balance in the respective roles of government, industry and
the consuming public in attaining the critical goals of this agency.
I believe that the Commission should adhere to risk-based policy
making. This is a process by which the Commission balances the degree
of risk of a hazard, the vulnerability of the population at risk to the
hazard, the susceptibility of the hazard to remedial action and the
cost of the remedy in deciding whether and what type of regulatory or
enforcement action to take. A government agency must focus its efforts
in addressing those areas where it can do the most good in the most
efficient and effective manner possible. With regard to this
Commission, Congress has clearly established a preference for
Commission participation in the development of, and deferral to,
voluntary safety standards and for the use of cost-benefit analysis
when the Commission does undertake rulemaking. When voluntary efforts
at product safety have proven to be a failure, then it becomes the
responsibility of the Commission to take action, if the other criteria
necessary to promulgate mandatory rules are present.
Finally, I believe in the principle of strict statutory
construction. In our system of government, it is Congress that provides
the specific authorization for Agency action. An Agency is never at
liberty to amend its statutory authority in the guise of
``interpretation,'' in order to achieve a particular result, no matter
how desirable that result might appear. The authority to amend a
statute is reserved to Congress itself.
6. In your own words, please describe the agency's current
missions, major programs, and major operational objectives. The mission
of the Consumer Product Safety Commission is to protect consumers from
the unreasonable risk of injuries and deaths associated with the
approximately 15,000 types of consumer products under its jurisdiction.
The Commission's major programs are designed to identify and analyze
product hazards, assist industry in developing voluntary safety
standards for products, monitor compliance with voluntary standards,
issue and enforce mandatory standards, obtain recalls of unreasonably
dangerous products and to inform and educate the public about potential
product risks and good safety practices.
The Agency's operational objective, given limited agency resources,
has been to streamline operations while enhancing productivity. We have
implemented telecommuting for the majority of our regional employees.
We are upgrading our computer technology and enhancing and integrating
our databases to give our staff better access to our data systems. We
have significantly reduced the amount that the General Services
Administration charges us for lab space by consolidating our
laboratories and we continue to work to modernize our laboratories and
improve our technical capability.
7. In reference to question number six, what forces are likely to
result in changes to the mission of this agency over the coming five
years. The overall mission of the Commission, the protection of the
public from the unreasonable risks of injury associated with consumer
products, will not change. There will, however, be changes that will
affect the way that the Commission carries out that overall mission.
One of the greatest changes will be in the growth of international
trade. Increasing numbers of consumer products are being imported into
the U.S. and U.S. manufacturers are exporting larger numbers of
consumer products. These changes pose two challenges to the Commission.
The Commission must seek to make the existence and nature of its
regulations available worldwide to manufacturers who are sending
products to the U.S. The Commission must also work with our trading
partners to harmonize product safety standards so that consumers are
protected from unreasonable risks without unnecessarily impeding
commerce. This work will often lie in participating in the voluntary
standards-setting process carried on by international standards-setting
organizations.
Channels of communication have changed dramatically since the
Commission began its work in 1973. For example, at that time there were
only three major television networks for consumers to watch. Today
consumers obtain information from numerous print and electronic media
(e.g., cable and satellite television, the Internet and specialty
publications). Yet many of our most vulnerable populations have only
limited access to print or electronic media. The Commission needs to
continue to assess innovative means of communication that help the
Commission get its message out when it has announced recalls or other
safety information.
The composition of the U.S. population is changing. Changes in the
demographics in the U.S. will challenge the Commission to deliver its
message to different dynamic communities, especially our most
vulnerable populations.
8. In further reference to question number six, what are the likely
outside forces which may prevent the agency from accomplishing its
mission? What do you believe to be the top three challenges facing the
board/commission and why?
Response to First Question
There are relatively few outside forces that may prevent the
Commission from accomplishing its statutory mission. No one opposes
consumer product safety, although there may be differences of opinion
in how that objective should be attained.
The Commission will always face the prospect of limited resources.
The Commission must, therefore, strive to use the resources allocated
to it by Congress as efficiently as possible and strive to be as
effective as possible in its choice of the activities that it
undertakes to accomplish its mission.
There are some outside forces that impact how the Agency performs
its mission. In the past few years, the Agency has had to address a
growing number of unforeseen serious product safety hazards involving
very complex technological issues. We have also become more involved in
protracted legal negotiations in order to arrive at an equitable
solution for both consumers and industry. Addressing these problems has
required substantial staff and financial resources.
Response to Second Question
I consider the following to be the top three challenges facing the
Commission.
The Commission needs to improve consumer product safety by
harmonizing international consumer product safety standards. This
harmonization will involve more effective participation by Commission
technical staff in the voluntary standards setting process carried out
by international voluntary standards setting organizations. The
Commission also needs to leverage the existing resources of government
by strategic alliances with other government organizations that have an
existing international presence (e.g., commercial officers).
The Commission needs to work cooperatively with consumers, the
regulated community, public interest groups and other stakeholders to
disseminate information about recalls, and other safety messages, as
widely as possible.
The Commission needs to work with Congress to review the
appropriate role of the Commission. The Commission needs to work
especially closely with Congress to ensure that its resource level is
adequate to permit it to accomplish its mission while meeting other
mandates such as information accessibility and telecommuting.
9. In further reference to question number six, what factors in
your opinion have kept the board/commission from achieving its missions
over the past several years? Inadequate resources and lack of
management attention devoted to international standards-setting
activities have limited Commission effectiveness in this area. In
addition, the Commission has not sought to partner effectively with
U.S. government agencies outside of the U.S.
Unjustified criticism of companies' ``speed of reporting'' or
disagreement with Commission staff on the details of recalls makes
companies reluctant to report. Fair treatment would encourage
reporting. Unjustified criticism also tends to focus public attention
on perceived ``villains'' rather than the Commission's safety message.
Internal disagreements as to the proper jurisdiction of the
Commission and differences of opinion as to the most responsible
methods of accomplishing its legitimate regulatory objectives have been
the most serious impediments over the past few years.
10. Who are the stakeholders in the work of this agency? The
``stakeholders'' in the mission of this Commission are the consuming
public and those organizations that manufacture, distribute and market
consumer products. Other organizations with a safety-related mission,
such as fire departments follow and participate in the activities of
the Commission, as do a number of public interest organizations. In
addition, the Congress and State and local safety agencies and trial
lawyers also have an active interest in the operations of this Agency.
11. What is the proper relationship between your position, if
confirmed, and the stakeholders identified in question number ten. The
primary responsibility of each member of the Commission is to protect
the consuming public. The Commission accomplishes this responsibility
by communicating safety-related information to the public, as well as
taking other actions, consistent with the Commission's mission and
procedures, designed to remove defective products from commerce and to
ensure that consumer products in commerce do not have unreasonable
risks associated with their use. The Chairman is the principal
executive officer of the Commission. The Chairman is the person
principally responsible for the efficient functioning of the
Commission, and its compliance with the requirements incumbent upon
government agencies. The Chairman is also the principal spokesperson
for the Commission and takes the lead in the Commission's relationships
with other government agencies, with the Office of Management and
Budget, and with Congress.
Product safety further requires the active participation of the
consumer, industry and government. I believe that the Commission must
work with and solicit the cooperation of both consumers and industry
when possible in order to fulfill its regulatory mission. I encourage
cooperative efforts between the Commission and state safety agencies.
12. Please describe your philosophy of supervisor/employee
relationships. Generally, what supervisory model do you follow? Have
any employee complaints been brought against you?

In my experience, the key factors integral to sound agency management
include:

clearly defined and easily understood mission statement,
goals and objectives

providing staff the tools to do their job (training and
equipment)

opportunities for upward mobility and professional
development

supportive workplace environment

recognition of employee achievement

`walking the line'--unscheduled visits to employee
workstations to remind them of the importance of their work

maintain an open-door policy

encourage employee `minority views' on issues without fear
of reprisal

I also believe in delegation of responsibility and authority. In
general, managers should be given sufficient authority to resolve
matters at their designated level of responsibility, and then be held
accountable for the results.
I have never had an employee whom I supervised bring a complaint
against me personally. As an HHS official, my name appeared on one
employee complaint brought against the Agency. The employee dropped the
complaint.
13. Describe your working relationship, if any, with the Congress.
Does your professional experience include working with committees of
Congress? If yes, please describe. In my role as Assistant Secretary at
HHS, I was asked to testify before the Senate and House Committees on
various issues under my jurisdiction. My Agency worked very closely
with committee staff to supply information and assist with our budgets.
As a Commissioner, I have testified before House and Senate authorizing
committees on several occasions pertaining to issues of Commission
authority and decisions that the Commission has made. I have also
testified before House and Senate committees on our budget requests and
other issues under the Commission's jurisdiction. I have maintained a
working relationship with Members of Congress and committee staff.
Committee staff and Members' personal staff often call upon my office
for assistance. It is my belief that an open line of communication
between Congress and the Commission, including the office of the
Chairman is key to the effective functioning of the Agency.
14. Please explain how you will work with this Committee and other
stakeholders to ensure that regulations issued by your board/commission
comply with the spirit of the laws passed by Congress. I intend to keep
the pertinent committees of Congress aware of all of the pending
rulemaking activities under way at the Commission. I maintain an open
door policy to allow members of the public and industry to communicate
their concerns to the Commission and I actively seek their input. My
staff and I have also been very diligent in working with Members of
this Committee and other Congressional Committees of jurisdiction in
addressing issues of mutual interest and concern. I welcome inquiries
and other communications from all Members of Congress and intend to
assure that congressional correspondence is answered promptly and
accurately.
15. In the areas under the board/commission jurisdiction, what
legislative action(s) should Congress consider as priorities? Please
state your personal views. Congress last authorized the Commission in
1990 and Congress may need to consider whether there is a need for
legislative action.
16. Please discuss your views on the appropriate relationship
between a voting member of an independent board or commission and the
wishes of a particular president. I believe that Commission members
must be independent in their judgment. At the same time the President
has the Constitutional responsibility to ensure that the laws,
including the laws administered by the Commission, are faithfully
executed. The Commission should, therefore, cooperate with a
President's Administration to the extent that it can do so without
compromising its independent judgment. For example, the Commission has
cooperated with the Office of Management and Budget in preparing a
regulatory agenda and plan in response to executive orders requiring
that it do so. I also believe that the Commission may comply with
certain requests of an Administration without undermining its
independence.

The Chairman. Very good.
Let the record show that the Consumer Product Safety
Commission has eliminated a lot of trial lawyers. I know that
will make a lot of people happy, but that is the greatest call
upon any profession, is to eliminate itself: the doctors seek
to eliminate all diseases, the ministers all sin. If we lawyers
can get rid of injury cases, that would be the greatest honor.
I harken when this Committee was confronted with the flammable
blankets.
We had many a hearing there with respect to the little
babies burning up in the cribs with those blankets, and so we
instituted the Consumer Product Safety Commission. Over the
years, the agency has saved many lives. I just note that Ms.
Ann Brown has done an outstanding job in continuing its
mission.
Other than that, I will yield to my colleague Senator
McCain.
Senator McCain. I thank you, Mr. Chairman.
Let us try to address a couple of the issues that have been
raised, Ms. Gall, in the time that I have. The question has
been raised about a letter to the editor of October 12, 1999,
in which you referred to certain Commission activities as
``proclamations issued by this agency on behalf of the federal
Nanny State.'' Was that in connection with a press release from
the Commission about co-sleeping?
Ms. Gall. Yes, Senator, there were three issues that I
addressed in that letter. First let me say that that letter
also contained high praise for the Commission and its important
work with regard to cigarette lighters and other issues that we
had undertaken.
There were three issues I was concerned about. First, a
press release and a study from the Commission that addressed
the issue of co-sleeping. Co-sleeping is when parents, usually
the mother, will take the baby to bed, perhaps to breastfeed,
and sleep with the baby in the bed. Some staffers at CPSC
independently, not as a Commission responsibility, but
independently had undertaken a study to review death
certificates to see how many circumstances there were where a
baby died when co-sleeping with a parent. They just looked at
death certificates. They did not look at the circumstances
associated with it, whether there was alcohol or drug-related
incidence with the parents and perhaps that had something to do
with it.
I felt that it was inappropriate to issue a press release
on a cultural practice. There was no product involvement. The
Academy of Pediatrics, Maternal and Child Health at NIH and the
offices at HHS never suggested, never opposed the concept of
co-sleeping. I am sure the Senators here would never tell a
member of their staff who may be nursing, a new mother, that
she should not take her baby to bed and nurse the baby there.
Certainly it would not be your business any more than it would
be the business of the Consumer Product Safety Commission to
tell parents how they sleep with their children. That concerned
me greatly.
The second item was a press release which said that if you
go snowboarding you can fall. Well, I think it is pretty
obvious to most folks that if you move you can fall. So I did
not think it was necessary to use our press release to inform
people of something that was that obvious. I felt that we
devalued the coinage of a press release when we use it for
something along those lines. That is what my dear father would
say, mistaking motion for progress.
The third issue I was concerned about was a newspaper
article that I read. You can imagine I am drinking my coffee
one morning at home before going to work and I read this
article saying that the general counsel of the Consumer Product
Safety Commission thinks that we can exert jurisdiction over
the movie industry. Why? Because one particular movie called
``Richie Rich'' showed a picture of a child riding an ATV.
Now, I am the first one to say that children have no place
on ATV's, adult ATV's. That simply is unacceptable. But I do
not believe that automatically gives us jurisdiction over the
movie industry. That is like saying if you show a bus speeding
in a movie that the Department of Transportation has
jurisdiction over the movie industry.
Senator McCain. Ms. Gall, I have several other questions.
Ms. Gall. All right. You see I enjoy my subject matter.
Senator McCain. You have been criticized for voting not to
bring a rulemaking on bunk bed entrapment hazards. It has been
said you relied on a legal technicality to avoid providing
needed protection for children who were dying as a result of
getting stuck in the bunk bed railing. Can you explain this
legal technicality?
Ms. Gall. Sure. There were two different issues with bunk
beds. The first one was a few years ago and it pertained to two
fatalities in lower berth bunk beds. So the case would be that
there would be one fatality per 40 million bunk beds. The
second fatality was in a bed that would not be covered by a
voluntary or a mandatory standard. So we were looking at
something that the voluntary standard could accept.
The issue that you are talking about, Senator, was more
recent. It pertained to a voluntary standard that was being
introduced automatically to be accepted by the Commission as a
mandatory standard. Our regulations and our law tells us we
must look first to voluntary standards before, to see if they
cover the issue and deal with the problem and second if there
is substantial compliance.
When the issue was brought to the Commission in a briefing,
there was over 90 percent compliance with the voluntary
standard, over 90 percent. I asked the staff if they were aware
of a single instance of where a company was not in compliance
with the voluntary standard and they said no, at the time of
the briefing they thought it was 100 percent.
So our law tells us we must look to voluntary standards
first. The proposed language was absorbing the voluntary
standard as a mandatory standard, and I said that that was
unacceptable. Commissioner Moore agreed with that analysis that
that was not the basis on which to act.
Senator McCain. I am very pleased that Commissioner Moore
is here today and we appreciate you being here, Commissioner
Moore, and the rest of the staff.
In 1994 you voted with the majority not to begin a
rulemaking on baby bath seats. And I believe it was because you
were not sure that baby bath seats were safer or less safe than
not using one. Do you have any answer yet to the question of
whether drownings occur at a higher rate when baby bath seats
are not used?
Ms. Gall. Senator, there was a study done, the Mann study,
which has not been peer reviewed or published, that took a look
at the use of baby bath seats for 5 to 10 month old babies. In
addition, our staff did its own independent research. There are
some who believe that the data demonstrates that it may be
safer for a baby to be in a bath seat than in a bath tub
without a bath seat.
I did not base my vote in either case, in 1994 or this
year, on that basis, because my concern most recently was that
we saw a number of cases where the caregiver was present and
there was a near miss, where the baby was able to slide down
through the bath seat and could have drowned if the parent had
not been there to act.
The biggest concern I have had is that in 1994 when we
looked at bath seats we had 12 or 13 cases; all except one, the
parent was absent at the time. Many of these were egregious
cases. Now, I know most people have heard that it is the mother
turned away for just a moment to get a towel or answer the
phone, but that was not the case. These were very serious,
egregious cases of being away from the baby for prolonged
periods of time.
Fast forward to 2001, we now have 70 cases where in many
cases again these are egregious cases where children are left
alone for long periods of time. But we did see that there were
now 40 cases where babies had a near miss with the parent
actually there. So that was the basis on which, along with some
other factors, I decided that we had to move forward to begin
mandatory standards to address this issue.
Senator McCain. Thank you. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Senator Lott, we are delighted to have our
Leader here. Senator Lott, do you have a statement or anything
which you would like to make? I know you have got other
responsibilities on the floor.

STATEMENT OF HON. TRENT LOTT,
U.S. SENATOR FROM MISSISSIPPI

Senator Lott. Well, thank you very much, Mr. Chairman. I do
not want to break in line here, but I do have a statement I
would like to submit for the record, and I do want to say how
pleased I am to offer my support to Mary Sheila Gall. I have
known her for a long time and I appreciate the work she has
done and the service she has given to her country. I also
appreciate the kind of person she is as an individual and her
work on things unrelated to her government service on issues
such as adoption. The fact that she has two adopted children is
a side of her personality that people do not really see, so I
wanted to mention that.
Mr. Chairman, I do not want to go through her long record
of service, but I do want to note that she has been on the
Consumer Product Safety Commission for 10 years and that she
was reappointed to a 7-year term by President Clinton in 1999.
I also want to remind my colleagues that she has been confirmed
by the Senate without a single dissenting vote, I believe,
twice.
She has lengthy experience working on Capitol Hill for
Senators and for Congressmen from two different States. She
worked in the Reagan Administration in a critical position and
the Bush Administration in critical positions. She served as
Assistant Secretary of HHS, and I think she has done exemplary
work at the Consumer Product Safety Commission.
I know there will be some people that will be critical of
some of the positions that she took. I would note that I
believe some of those positions she took actually occurred
before the last vote that confirmed her unanimously, and that
on this Commission it is not always easy to come to a
conclusion. There are sometimes very strong arguments on both
sides. There are difficult questions and you have to weigh them
and come to the best decision within your own judgment, within
your own conscience.
I do not quite understand why there is this mounting
opposition to this confirmation now, and I want to question
anybody's reasoning in opposing her. She clearly is qualified,
even though I saw some Senators suggest yesterday that she was
not qualified to be Chair of the Commission she has served on
for 10 years. With her personal record, and through probably 25
years of service to government, I think she certainly is
qualified. I wanted to be here to personally offer my support.
Thank you for letting me interject my thoughts at this
point, Mr. Chairman. I look forward to further supporting this
nomination.
The Chairman. Very good.
Senator Kerry was next here.
Senator Kerry. Mr. Chairman, thank you very much.
Ms. Gall, I would like to review with you the area that
Senator McCain just inquired about with respect to bunk beds.
Ms. Gall. Sure.
Senator Kerry. From the period of 1990 to 1998 the
Commission received reports of 89 bunk bed-related deaths. Of
this number, 64 percent involved entrapment, 24 involved
children being hung from the beds by objects such as clothing,
bedding, and belts, and another 8 were falls from the beds.
CPSC's statistical survey found that about 31,400 children were
treated in emergency rooms for bunk bed-related injuries.
Now, although there was a voluntary standard in place, to
which you have referred, the field staff visited 55 retail
outlets in 39 cities, examining 58 manufacturers' bunk bed
models, and they made the following findings: Of the 58 models,
23 were found to be in noncompliance with the voluntary
standard. That is almost 50 percent of the voluntary standard
not working. Seven firms were repeat violators. Five
manufacturers were discovered to have significant entrapment
hazards associated with their products, three of whom, more
than 50 percent, were clearly aware of their voluntary
standard. All in all, the staff found 630,000 beds in
noncompliance.
You interpreted the law and said the following. I quote
you. You said: ``Our statute provides that the `Commission
shall not promulgate' a mandatory rule unless an existing
voluntary standard: 1) `is not likely to result in elimination
or adequate reduction of such risk of injury' or 2) is `not
likely' to have `substantial compliance.' '' You then hung your
decision, the sole dissenting vote, on the notion that you
thought there was at least it appears, presumptive, of
substantial compliance. Correct?
Ms. Gall. Yes.
Senator Kerry. Now, the law actually says otherwise. You
actually applied the law incorrectly. The law says ``it would
eliminate or adequately reduce the risk of injury addressed
and''--not ``or''; ``and''--``is likely there will be
substantial compliance.''
Ms. Gall. Yes, that is correct, that is correct.
Senator Kerry. So your decision was based on only
substantial compliance when the staff in fact recommended that
children are dying, they are being seriously injured in high
numbers in the presence of the voluntary standard, and that
evidence was sufficient because it was not accomplishing what
the law said, doing away with the injury. Therefore, they
wanted to move to a mandatory standard.
How do you justify, number one, misinterpreting the law;
number two, ignoring the evidence of the Commission with
respect to the injuries that were continuing to be committed?
Ms. Gall. Well, first of all, I did not misinterpret the
law. The law says that a voluntary standard must do two things.
It must adequately address the problem at hand--that is not
exact language, of course--and second must have substantial
compliance.
Senator Kerry. But that is not what you said in your
statement. In your statement you said otherwise.
Ms. Gall. OK, all right. Well, thank you----
Senator Kerry. Do you acknowledge then that you were
incorrect?
Ms. Gall. It must be both of those things together.
It is true that we found a significant number of beds that
were out of compliance, and that demonstrates two things:
first, that our staff has the capability to identify problem
beds; and second, it has the capability under a voluntary
standard to take action under section 15. Second, it
demonstrates that we are able to work with people who are in
violation and bring them into compliance with the voluntary
standard.
Senator Kerry. Well, with all due respect, Ms. Gall, I am
sorry to interrupt you, but you are not, in fact, answering my
question.
Ms. Gall. Well, I am getting there.
So what the staff had proposed was the exact language of
the voluntary standard to be incorporated as the mandatory
standard. If we thought that the voluntary standard was not
adequate to address the problem, why would we propose that as
the language for the mandatory standard, point number one.
Point number two----
Senator Kerry. Well, because for the following four
reasons: because the staff said, number one, by making it
mandatory it would allow them to pursue civil penalties for
violations; number two, it would facilitate the recall of
defective beds; number three, it would increase compliance; and
number four, it would prevent the importation of noncomplying
beds by foreign manufacturers--all four of which things you
could not do under the voluntary----
Ms. Gall. Actually, Senator, we did identify noncomplying
beds, as you noted, and we did take action against those
noncomplying beds. So that is incorrect.
Senator Kerry. Because they voted to make it mandatory, and
you voted against it.
Ms. Gall. No, this was before. This was before, Senator.
If I may continue, what they proposed was the voluntary
standard to be incorporated as a mandatory standard. To say
that the mandatory standard would automatically increase
compliance from over 90 percent to 100 percent is not
justification for moving in that direction because the law does
not say that. The Congress told us to look to voluntary
standards first. The Congress said if those were adequate and
if there was a high rate of compliance, that was what we were
to do.
To change that interpretation of the law to say that
automatically a mandatory standard is going to have a higher
rate of compliance than a voluntary standard is not what the
law states, number one, and number two, is not necessarily
true. We have mandatory standards at the Commission. We would
like to think that they have 100 percent compliance, but in the
last year we had over a million cigarette lighters stopped at
the docks that were not in compliance with the mandatory
standard. We have fireworks, where we have about a rate of 56
percent compliance with the mandatory standard.
We are working hard to improve that, but that does not
necessarily mean there will be a higher rate of compliance if
the standard is mandatory rather than voluntary, and that is
not what the law tells us to do.
Senator Kerry. Well, my time is up. It raises a very
serious question, if I may say, and I will just say this very
quickly. See, this is what underscores the question of sort of
a philosophy or a point of view. If two members of the
Commission were prepared to move to mandatory and the staff was
saying overwhelmingly we are not protecting these children
adequately, the voluntary standard has not worked over 8 years,
but you hung your hat on a substantial compliance concept,
erroneously putting it into one segment of a two-part law. You
effectively turned away from the mandatory promulgation and
based it on a percentage.
Now, indeed percentages are statistics, but for the 10
percent, you can have 10 percent of a large number of people
which is too many of our children being submitted to a
particular risk. The question is which way were you willing to
fall in that balance.
Ms. Gall. But Senator, first of all, I was following what
the law said. Commissioner Moore agreed with me that the
general counsel's interpretation was incorrect.
Second, making something a mandatory standard does not
guarantee a higher rate of compliance than having a voluntary
standard. If we have 90 percent of people in compliance with a
voluntary standard, we have a mandatory standard on another
issue where there is 56 percent of compliance, or we have a
million cigarette lighters coming into the country that are not
in compliance with the mandatory standard, I think that
demonstrates that, while we try to go for 100 percent
compliance with a mandatory standard, we do not always reach
that. And the law tells us we must look to voluntary standards
first.
The Chairman. Senator Burns.
Senator Burns. I am going to pass this first round.
The Chairman. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Ms. Gall, every Senator here has acknowledged that there is
a role for individual responsibility and consumer misuse on
these issues. But what we are concerned about is whether you
are going to skew the balance toward saying that the consumer
is at fault rather than looking at product shortcomings. I want
to review with you three statements that you made that suggest
that you will skew the balance against the question of
investigating whether the product is part of the problem and
give you a chance to respond.
On the baby walker issue, you said: ``. . . the problem
here is not with the walker, but with the failure of those
entrusted with caring for small children. . . .'' On the gas-
fired water heater you said almost the same thing: ``. . . the
problem before us is one of consumer behavior rather than a
defective product.'' In the baby bath seats issue you said,
again virtually the same thing: ``The problem is not with the
product, but with the use of the product by the adult.''
So in three significant cases you said that the problem is
with the consumer rather than the product. Here is what
troubles me because, like my colleagues, I think there is a
clear and key role for individual responsibility and the
question of consumer misuse has already been talked of. But
what concerns me is that you voted not to even look at the
question of whether a product's shortcoming is part of the
problem as well.
In other words, you were not voting on the baby bath seats
initially on a ban, which is what you told me, and I was
troubled when you said that. You were voting against
investigating whether there was a potential product
shortcoming.
So my question to you is, if you get to be the Chair are
you going to investigate only when a product is so unsafe that
it is a problem even when you have perfect consumer behavior
every time in the marketplace?
Ms. Gall. Well, first of all, Chairman Brown talks about
the Federal safety triangle. There is a role for government,
for industry, and for the consumer, as you have noted.
With regard to baby walkers first, my concern was that
there were about 18,000 babies per year going flying down the
stairs in baby walkers. There were the same number of babies
the same age falling down the stairs who were not in baby
walkers. Obviously, I am concerned about both groups of babies,
and the simplest way to address that of course is to put up a
baby gate or to close a door, as the Senators who have young
children here acknowledge, that that is a safety measure you
have to take when you have young children around the home.
With regard to baby walkers, I felt that it was
inappropriate to move forward on a mandatory standard. However,
I recommended that we work closely with the voluntary standard
community and the Juvenile Products Manufacturers Association
to develop any necessary work to address some of these issues
with baby walkers. In point of fact, it did not take a
mandatory standard to correct and to improve baby walkers so
that they have either braking mechanisms or they are now
stationary. It did not take a mandatory standard.
Unfortunately, as we have these discussions about various
issues, just as with the Senate, at the Commission there is no
one size fits all solution to every issue that comes before us.
There are lots of different ideas about patients bill of rights
and prescription drugs and so on that come to the Senate in a
mix. We have to think at the Commission outside those blinders
of it must be a mandatory standard all the time and look at the
best way to address an issue.
Sometimes it is a mandatory standard. Sometimes it is
working with the voluntary standards community. Sometimes it is
sitting down, as with gas-fired water heaters, it is sitting
down with industry, bringing them all together. Gas-fired water
heaters is a success story, Senator.
Senator Wyden. Well, Ms. Gall, the time is short. In each
one of those statements, though, you did not say what you just
said.
Ms. Gall. Sure I did.
Senator Wyden. No, ma'am. I quoted you. In three
proceedings you in effect blamed the consumer. What I want to
make sure is that if you are Chair of this Commission that you
are willing to at least investigate--I am not talking about
what the remedy is--to at least investigate whether or not
product shortcomings are part of the problem as well, because
in three proceedings you said you would not even take the
initial steps to investigate whether there are product
shortcomings.
My second question to you is would you approach your job
differently if you are confirmed as Chair than you did, say, as
a member? Everybody has got a right to change, and I have
certainly made changes on my views over the years. But, I would
like to have you say for the record whether you are going to
handle your position as Chair the way you handled your
assignment during your previous 10 years.
Ms. Gall. Senator, I would just like to follow up quickly.
I did agree to work with the voluntary standard community with
baby walkers and it was successful. With gas-fired water
heaters, we called industry together. I worked very closely
with industry. They had to develop new technology and they have
done so. It is now being field tested and we will have some
wonderful news for you in the near future.
With regard to bath seats, I voted based on the facts and
the law before me at the time. I did so again, changing my mind
because there was new evidence, in the recent vote that we
took. I look at the evidence and I look at the law. I will not
change the way I conduct business by looking at the evidence
and looking at the law.
With bath seats, in 1994 we had the extreme cases. As I
mentioned to you, some of them were very extreme, where
children were left for long periods of time, but the bath seat
functioned properly. It was attached to the tub, it was sitting
upright. There were extreme circumstances.
Again this year, there were extreme circumstances. You
know, I think very few of you would agree to regulate when
there is an issue, for example, of a mother who is drunk, she
puts her child in a bath seat in the tub, turns the water on,
goes downstairs; the water fills the tub completely, overflows,
floods the bathroom floor, seeps through the bathroom floor to
the living room ceiling below. There is no mandatory standard,
there is no performance standard, there is no ban, that will
protect that baby in that kind of circumstance. That is an
egregious case.
That was the kind of thing we saw frequently with the cases
before us in 1994.
Senator Wyden. My time is up. I only want to say, Ms. Gall,
what troubles me is that when we create this balance between
consumer use and product shortcoming, it still looks to me like
your reaction is going to be to first blame the consumer rather
than to initiate an effort to examine whether product
shortcomings are part of this as well.
I look forward to the next round, Mr. Chairman.
The Chairman. Next we will have Senator Allen.
Senator Allen. Thank you, Mr. Chairman.
Having come and gone, I am not sure what was being covered,
but I think everything from car seats to bunk beds have been.
Let me ask you something that is maybe not in the various
safety matters, but I was looking at your response to the
second question as far as the top three challenges facing the
Commission. The first one that you brought up was ``The
Commission needs to improve consumer product safety by
harmonizing international consumer product safety standards,''
and more participation with the technical staff and so forth.
Then you get into ``leveraging of existing resources of
government by strategic alliances with other government
organizations that have an existing international presence.''
Yesterday I met with the Secretary of Commerce on some of
the issues. I was reading on the issues as far as international
trade, and I read just yesterday how there is actually some
pretty good positive comments coming out of Great Britain with
the U.S. counterpart on having not just a NAFTA for North
America, but having the Americas and Europe harmonizing trade,
which would be beneficial, I think clearly beneficial to
Americans, to be able to get our products into Europe. There
are some very good products out of France and Germany and
Britain and the Netherlands, the Swiss, and Austria and
elsewhere that we would like as well.
Now, the key to that I think, in the event that there is
that harmonization and that we can get our products easily into
Europe and European countries can get their products into our
country, clearly one of the things that they talked about is
the safety standards. Clearly, your agency would have to be
involved in that.
Ms. Gall. That is right.
Senator Allen. You made that a number one priority, which I
think is very good because it means jobs and opportunities for
this country. How do you see your agency or this agency or this
Commission working with your European counterparts? Where would
you see any problems or where do you see--do you think that
their regulations of consumer protection would be so difficult
that we could not be able to agree with them, or do you see
that as fairly easy, although with some negotiations, in
harmonizing their safety standards with those of the United
States?
Ms. Gall. Well, first of all, we have had limited
experience at the Consumer Product Safety Commission on
addressing those issues. We have not done much in the last
several years. Many of the safety organizations in Europe are
voluntary standard-setting organizations. Some individual
countries of course have mandatory standards as well.
We believe that our safety standards here in the United
States, at least certainly the ones involved with the Consumer
Product Safety Commission, are the best in the world and we
would never consider lowering the standards to accommodate
European standards. So let me say that first.
Second, we would probably be very closely involved with the
Trade Representative, State Department, Commerce, and so on.
But I think we need to go beyond that because we have new
markets emerging, countries who are bringing their goods into
the United States for the first time. We need to work with
those countries to let them know what our standards are and
what we expect when we import goods from their countries.
One area I think we need to address is Mexico. We have had
a doubling of imports from Mexico in the last 10 years. There
are consumer products, everything from textiles to small
appliances and toys and cigarette lighters, coming in through
the Mexican borders. So that is an area I would like to see us
open up communications with Mexico.
We have an ongoing good relationship with Canada and we
will continue that, of course. But the harmonization of
standards I think is a very important issue.
There are other international issues that we need to take a
look at as well. We have had the opportunity in the last couple
years to do some research with our European counterparts. There
have been concerns raised here in the United States and in
Europe about the use of diosononophthalates in polyvinyl
chloride, which is used to soften toys, and there have been
some concerns raised about whether or not those chemical
compounds are toxic to organs within the body and perhaps
cancer-producing.
We issued a report saying that we had taken a look at these
issues and we felt that DINP was safe. But our American
companies voluntarily removed it from their products that
children would mouth, such as teething rings and pacifiers and
those kinds of things.
But that kind of exchange when we are both addressing the
same issue, concerns about chemicals in products, is something
that is very healthy. We developed a methodology that the
Europeans are going to adopt as they do their testing for their
products. So that exchange, that international exchange, is a
healthy consequence of some of the work that we do at CPSC. But
again, the harmonization is a very important issue.
Senator Allen. I do not have much time left.
Ms. Gall. I'm Irish; I tend to talk a lot.
Senator Allen. I know that you look at having industry
voluntarily come up with standards. I think that what you will
find in this area is that sometimes you will find that the
industry, wanting to enter say the European market or the
Europeans wanting to enter our market, whether it is on
tractors or chain saws or appliances or whatever it may be,
they are going to agree to maybe a stricter standard because
they just want to please everyone with it, but it is good for
business and it is good for consumers as well. So your
voluntary approaches may have industry actually saying, here is
what we want to do, which is maybe further than we may want to
constrain them.
The Chairman. Very good.
Senator Boxer.
Senator Boxer. Ms. Gall, I am going to make a couple of
comments and then at the end I am going to ask a question about
recalls and your philosophy on that.
Ms. Gall. All right.
Senator Boxer. I want to pick up on what you said about an
example you gave of a drunk mother--it could be a drunk mother
or a drunk father--who puts a child, let us say, in a baby bath
seat, walks downstairs and, to use your example, forgets about
the child and so on.
How do I feel about that? I would go after that mother or
that father with the full backing of law enforcement. But you
know what else? I would make that baby bath seat the safest it
can be. If it can be made safer, do everything to protect that
child. That child should not be punished because that poor
little innocent has a neglectful parent, mother or father.
So that is one place where I do not see the two being
incompatible. You go after the negligent parent, you make that
baby bath seat the safest it can be.
You have said to me privately, and you repeat it today, you
voted 97 percent of the time with the other Commissioners. You
said in my office that----
Ms. Gall. Right, on enforcement.
Senator Boxer. Let me finish.
--I am not extremist. Now, we have looked at most of the
votes in the Commission. Most of them are noncontroversial, Mr.
Chairman, such as voting to publish a notice in the Federal
Register, appoint staff, accept settlement agreements, or to
commend a company for taking certain actions.
But you see, what troubles me is this kind of dual message
we get from you. You say that; on the other hand, you said in
your testimony before this very Committee in 1999 when you were
up to be back on the Commission, quote, quote from you: ``The
other Commissioners and I do not always agree. In fact, a lot
of the time we do not agree.''
So it seems to me there is a kind of a changing deal here.
Sometimes you do not agree with them and now you say you agree
with them, and I am very, very troubled by this conflict.
I want to talk to you about this education campaign that
the Commission embarked upon to let parents know that if they
do take a child into bed with them there are certain risks. It
was an education campaign. It did not have to do with recall of
a product. It did not say the bed was faulty. It just let
parents know that there are 64 deaths every year from
suffocation and strangulation when this occurs.
Now, clearly it is up to a parent, but I found that to be
important for parents to think about. You could roll over on a
child, the child could slip down between the mattress and the
guard rail. These are things that are important for parents to
know.
Well, how did you react? You not only did not agree, but
you wrote a big article in the USA Today. I have it. I would
ask unanimous consent to place this into the record.
The Chairman. It will be included.
[The material referred to follows:]

Infant-Sleeping Study a Case of Agency's `Over-Reaching'

Mary Sheila Gall, Vice Chairman, U.S. Consumer Product Safety
Commission, Washington, D.C.

USA Today, October 12, 1999

USA TODAY's article addressing the latest warnings from the
U.S. Consumer Product Safety Commission (CPSC) on the perilous
hazards of children co-sleeping with their parents requires
that I respond (``Study advises against parent-infant `co-
sleeping,' '' Life, Sept. 30).
Philosophically, I am troubled by an official report in
which this agency instructs mothers on whether they should be
``co-sleeping'' with their children.
Frankly, as the only current Republican member on the
commission, it has been increasingly frustrating, in recent
years, to witness the procession of proclamations issued by
this agency on behalf of the federal Nanny State.
Specifically, I was unable to find a defective consumer
product identified in our ``study'' as the causation of this
hazard. Quite simply, there wasn't any product, defect or
jurisdiction--just babies sleeping with their parents.
This may well be a controversial practice, but it is
apparently a practice that many leading authorities have
proclaimed actually promotes family bonding.
But the lack of any subject-matter jurisdiction over human
behavior apparently did not get in the way of this agency's
running with an attention-grabbing headline.
In point of fact, this CPSC ``study'' was never intended to
be issued as an official government research effort. This was
originally an unofficial, independent effort produced by
several employees of the consumer product safety agency.
I should note that I always have supported this sort of
independent research by members of our staff--but only as their
own personal work product, produced on their own time, and not
as an agency-sanctioned or agency-funded effort.
This staff study was deemed retroactively to be an official
CPSC study--only after it was completed and written and on the
verge of publication by a prestigious professional
organization. While I personally admire these staffers for
their initiative, I voted against proclaiming this to be an
official CPSC study.
Why? Very simply--it was not.
I have been a member of this commission for almost eight
years and am very proud of this agency's diligence on behalf of
the American consumer. Its agenda does provide a valuable
public service.
Our recent efforts on smoke detectors, child-resistant
cigarette lighters and fireworks are only a few illustrations
of how the consumer protection agency can indeed save lives.
I also should note that I have consistently advocated
personal responsibility, criticizing attempts to declare a
particular product defective when the only ``hazard'' has been
the bizarre use of a product by the consumer. But, here, there
simply is no product--defective or otherwise.
The only peril I can detect in this particular episode is
over-reaching by a federal regulatory agency.

Senator Boxer. In which you wrote, among other things, and
let me quote it directly: ``Infant sleeping study, a case of
agency's overreaching.'' You wrote, and I am just quoting
because of time a couple of the things: ``Frankly, as the only
current Republican member on the commission''--which I find--I
did not think we think of ourselves when we are on a
commission, but fine--``it has been increasingly
frustrating''--your service on the Commission--``in recent
years to witness the processing of proclamations issued by this
agency on behalf of the federal Nanny State.''
Then you go on and say: ``While I personally admire the
[sic] staffers for their initiative, I voted against
proclaiming this to be an official CPSC study.''--in other
words, studying if kids die if they are brought into bed with
their parents. You say: ``The only peril I can detect in this
particular episode is over-reaching by a federal regulatory
agency.''
Well, that is incredible to me when you look at the fact
that there are 64 deaths each year, but the only peril you see
is overreaching.
I am a believer that information is very, very important,
and I worry because, again, being on the Commission is one
thing; being the Chair, you impact the staff, you have
tremendous influence over the staff. I worry about a chilling
effect on the staff when they are told not to give information
to the public.
Now, obviously people will make that decision, but you
know, a breast-feeding mother might just say: I never thought
of that, so I am going to bring my baby into bed with me and
when I am done I am going to change that baby's diaper and put
her back into her crib that has safety standards, and maybe
that would in fact save lives--64 kids a year.
So it greatly troubles me that not only would you oppose
the Commission informing parents, but you go so far as to write
an op-ed piece mentioning that you were the only Republican and
you are worried about the direction of the Commission.
I wanted to ask you about recalls. It is my understanding--
please correct me if I am wrong--that the way a recall works is
the staff will recommend a recall and they will sit down with
the product, the maker of the product, the manufacturer, and
together they will come to some conclusion about a recall; is
that correct? You do not directly vote on recall, is that
correct?
Ms. Gall. No, we do not. We are informed along the process
and give direction if necessary.
Senator Boxer. Well, I had heard a tape of one of these
discussions with the Commission, Mr. Chairman, where you, Ms.
Gall, are talking about a baby walker. It involved the Safety
First baby walker, where children were getting their teeth
caught in a seam on the handle of the baby walker. You know how
kids teeth on everything, that toddlers would teeth. What would
happen is they would put their teeth down and literally their
teeth would pop out and they would lose their teeth on this
``Safety First'' baby walker.
I was listening to your questions and I was frankly
stunned, because your line of questioning was, and I am quoting
directly from your question: ``The teeth we are talking about
are baby teeth, right? Would that damage be permanent?''
In other words, your whole approach to it was to sort of
belittle the fact that these kids were losing their teeth, and
we know that in fact if baby teeth are lost prematurely it
impacts on the speech development of the child and all the
rest. So just your approach to these things is very worrisome.
My time has run out, so we can either ask you to respond to
that baby teeth question or we can wait until the next round,
Mr. Chairman.
The Chairman. Well, let the witness respond. Go ahead, Ms.
Gall, any response you have.
Ms. Gall. Thank you very much.
That was in a closed compliance meeting, so it is
interesting that someone gave you that tape. But the essence of
the discussion was this. I wanted to understand the extent of
the injury that was caused. I supported the recall.
Senator Boxer. Did you say that? Did you say you supported
it?
Ms. Gall. I may not have said that when you heard the tape,
but the agency knows that I supported the recall for that
product.
I was asking questions to establish the amount of the
injury. I did not know what the impact of losing baby teeth
would be on permanent teeth and that was the question I was
asking.
The Chairman. Good.
Senator Hutchison.

STATEMENT OF HON. KAY BAILEY HUTCHISON,
U.S. SENATOR FROM TEXAS

Senator Hutchison. Thank you, Mr. Chairman.
Thank you, Ms. Gall, for the information you are providing.
You have corrected the record in a lot of instances in today's
hearing and I think you are acquitting yourself quite well.
As a grandmother of five, I want to compliment you on the
vote to rescind the infant sleepwear rule requiring that
pajamas be flame-resistant and therefore polyester. Our
grandchildren have suffered from heat and have not worn pajamas
at all because they are so hot in the summertime because they
could not be all cotton. I know that that has been twisted and
made you to look like you were not for the flame-retardant
safety. You have, in fact, been able to look into it, get the
facts, and determine that actually the flame-resistant
sleepwear did not make that much of a difference.
I appreciate your willingness to stand up, and a lot of
mothers and grandmothers in the southern States especially
appreciate it in the summertime when they want cotton next to
their children's bodies, not polyester.
Did you want to elaborate on your reasoning behind that and
clarify what I think has been a distortion of your record on
that point?
Ms. Gall. Thank you very much, Senator. Both Commissioner
Moore and I agreed in our concern that parents wanted, and
grandparents wanted, to place their children in safe cotton
alternatives, and we discovered that there were many burn
injuries with large size tee shirts, adult size tee shirts that
children were wearing to bed because that was the cotton
alternative.
So we looked for a safe cotton alternative for parents to
use. The tight-fitting sleepwear that we proposed as a safe
alternative retards the spread of the flame. It is designed for
a single point ignition of a small flame, if a child is playing
with a cigarette lighter or matches or whatever. It is less
likely to catch because it is snug-fitting.
We also maintained the flame-resistant sleepwear such as
nightgowns and other kinds of pajamas, so that people have the
alternatives available to them. The cotton alternative is very
carefully labeled so that a parent knows that he or she can
make that choice and clearly understand the parameters of the
choice they are making.
The other point to note is that the Canadians and several
other countries have adopted this same type of sleepwear and
none of those countries have experienced burn injuries related
to the safe cotton alternative. Theirs was less stringent than
our alternative that we devised, and we too have not seen the
burn injuries that we saw previously.
We still continue to see burn injuries with children in tee
shirts, but we are hoping that now that we have provided this
alternative parents will not put the children in tee shirts,
but will put them in the safe cotton alternative instead. It
appears to be quite a success story. Unfortunately, it has
been, as you noted, distorted to make it sound as though we
want children to burn to death.
There is no alternative for sleepwear in a whole-house
fire. Really, there is not any fabric that will protect a child
in a whole-house fire. But this is to give children a chance if
they come across a small single point ignition, matches,
cigarette lighter, and so on.
Senator Hutchison. Thank you very much for that.
I just want to ask if you think common sense plays a role
when you are in a regulatory position and where you would apply
the common sense, as I think you did in this particular
instance? Are there places where you think common sense should
be more a part of the regulatory processes that you as
Chairman, if you are confirmed, would be able to affect?
Ms. Gall. Well, first of all, we look at the law, we look
at the evidence. But I think common sense certainly comes into
play when we are talking about consumer behavior. I mentioned
an extreme case earlier about the drunk mother who leaves the
water running and the child in the tub. That is an extreme
case. There is very little that we can do about that, and I am
encouraged to hear that Senator Boxer agrees with me that that
is the kind of thing we need to go after in terms of the parent
behavior.
To follow up on your point, Senator Boxer, about the bath
seats, we are taking steps, as I noted to you earlier, to look
at rulemaking for bath seats. We are concerned if we devise too
safe a looking bath seat that that will encourage parents to
leave children for longer periods of time. So it is a delicate
balance. You have to look at both sides.
We have learned from air bags in the front seat passenger
side and the impact on young children that, while something may
sound good, we have to do that delicate balance. Certainly
common sense plays a role in looking at consumer behavior.
There is a role for addressing through a mandatory or
voluntary standard consumer foreseeable misuse. Gramma leaves
her pills out on the kitchen table because she cannot open the
child-resistant top to her medicine, so she leaves her medicine
out on the table. Her grandchild comes along and thinks the
medicine is candy, takes it, and is poisoned. When we noted an
increase in the number of cases where we saw children being
poisoned by their grandparents' medicine because the caps were
left off, we moved forward with providing adult-friendly,
child-resistant caps that have a two-step cognitive process
where you can remove the cap easily, so that we do not have the
experience of medicines being left out and open.
There are a number of other issues where I believe we have
to address, the law tells us to address, foreseeable misuse. So
it is a balance and it is common sense, that is true.
Senator Hutchison. Thank you very much.
Ms. Gall. Thank you.
The Chairman. Very good.
Senator Breaux.

STATEMENT OF HON. JOHN B. BREAUX,
U.S. SENATOR FROM LOUISIANA

Senator Breaux. Thank you, Mr. Chairman.
Ms. Gall, thank you for coming before the Committee and
answering these questions and your statement. I think that the
fact that you were appointed originally by President Bush,
reappointed by President Clinton, and now appointed by
President George W. Bush is important to show that you had the
support in a bipartisan fashion over the years.
I would make the point, however, that it is one thing to be
appointed as a member of a Commission and it is another thing
to be appointed to chair that Commission, because the Chair
obviously has a great deal more responsibility in setting the
tone, setting the policy, and setting the schedule for a
commission to operate. That is true in all of our commissions.
So it is not inappropriate, I think, for us to explore
further your philosophy in how you would take the Commission,
in what direction. I am particularly interested in your
comments in a number of cases with regard to your position on
mandating design changes to products when in fact your opinion
is that the accident was caused by the negligent use of that
product and/or by a lack of supervision in using those
products.
It would seem to me that in the baby walker case you said
that in normal use in a protected environment, under
appropriate supervision, there is no evidence that the design
or the manufacture of the walkers present an unreasonable risk
of falls. In the baby bath case you said that it is clear that
irresponsible actions of those entrusted with caring for these
children have almost without exception caused their death.
My concern is that we do not live in a theoretical world
where everybody does things properly and appropriately and in a
supervised manner. If everyone drove cars in a responsible
fashion we would not need seat belts, we would not need air
bags, we would not need cars that are built to higher safety
standards. But the fact is in the real world people operate
machinery and use equipment and products in an unsafe manner.
That is particularly true among seniors, that is particularly
true among children, who do not have the capacity to always act
in a responsible manner. We as a society know that.
So my question I think is, it seems to me that your
position has been consistent in not mandating design changes
when, in your opinion, the cause of the accident is the
negligent use of the product. It would seem to me that we have
to take into consideration that products in fact are used in a
negligent manner, that they are in fact used without
supervision, that this is a fact of life, and therefore, when
we can redesign a product to take that into consideration we in
fact should do that.
That does seem to be your position in a very consistent
manner, and I would like you to talk to me about that.
Ms. Gall. Sure. Thank you. First of all, let me take one
example, gas-fired water heaters. It was true, at least in my
view it was true, that consumer misuse had a great deal to play
in that issue. We noted in the data of the in-depth
investigations that young men between 18 and 26 were storing
gasoline--predominantly young men, not always--were storing
gasoline improperly, not putting covers on it and so on, where
the vapors would escape and go across the room. The hot water
heater worked appropriately, the way a hot water heater is
supposed to work, but when it was exposed to vapors from
improperly stored gasoline or gasoline that was being used to
clean hands, for example, or whatever at the time, that the
vapors would build up and cause a fire incident.
That required a multi-prong approach. The gas manufacturers
did a very in-depth education, information campaign that was
widely recognized as a model for industry, so that was one
point. We worked very closely with them on that.
Senator Breaux. My question to you is directly--I know we
can cite examples, but I have given you two examples where some
would argue that the redesign of a product can take into
account the improper use of that product, and it is not going
to be adequately supervised, that people are going to misuse
the product.
Ms. Gall. I am getting to that.
Senator Breaux. Your position has been in those two cases
that you feel that if the negligent use of the product caused
the accident, we should not consider redesigning those
products. Am I correct in saying that or not?
Ms. Gall. Let me continue on with the gas-fired water
heater.
Senator Breaux. Just tell me what you believe.
Ms. Gall. I believe that we need to take a look at
products. We also need to take a look at behavior. Some
behavior is extreme, and you cannot devise a voluntary or
mandatory standard to address extreme behavior. We can look at
foreseeable misuse and we can address issues related to
foreseeable misuse, and I have done that quite often.
Senator Breaux. But you did not do it in the two baby
cases, the baby walker and the baby bath case. You said that if
it was used properly it would not be a problem.
Ms. Gall. Well, Senator, my concern was not only for the
children in the walker, but the children who fell down the
stairs who were not in the walker, and that is why I felt it
was important, first of all, that parents close doors and
engage safety gates.
Senator Breaux. But parents do not do that sometimes.
Ms. Gall. But let me finish, Senator. I did support working
with industry to devise a voluntary standard and to redesign
product. I did not feel it was necessary to go forward on a
mandatory standard because we had a good track record with this
industry.
When we do not have a good track record with the voluntary
standards on a particular issue, we do not have a good track
record with industry devising a response, then we have to move
forward on a mandatory standard, and I have done so with bath
seats, cigarette lighters, a whole host of other issues.
But to get back to gas-fired water heaters, since that was
one of your examples, we did call together----
Senator Breaux. I did not mention that. That was your
example.
Ms. Gall. Well, someone's example. We did call all the
industry leaders together. We have worked with them on devising
new technology. There was not anything we could do a mandatory
standard about at the time. The technology did not exist. So we
have worked with industry. We have done a tremendous amount of
research with industry. They have devised some new designs.
That shows how we can work together without having a mandatory
standard forcing the issue.
I just disagree that we require that all the time to get
the job done in working with industry.
Senator Breaux. Thank you.
The Chairman. Thank you.
We will recognize Senator Edwards. He has got to preside
here momentarily. Senator Edwards.
Senator Edwards. Thank you, Mr. Chairman.
Good morning, Ms. Gall.
Ms. Gall. Good morning. It is a long morning.
Senator Edwards. It is still morning.
I wanted to follow up on some answers you gave to Senator
Kerry a little earlier today. He made reference specifically to
your dissenting vote against issuing a Federal safety standard
for bunk beds. In 1999, you were the sole vote against issuing
a safety standard for bunk beds.
Ms. Gall. Right.
Senator Edwards. The two of you talked about two components
in the law that are necessary in order to find that a voluntary
standard is adequate.
Ms. Gall. Right.
Senator Edwards. The voluntary standard for bunk beds had
been in place since 1992, I believe; is that correct?
Ms. Gall. Yes. There had been changes throughout, but----
Senator Edwards. But it had been there for 7 or 8 years.
Ms. Gall. Yes.
Senator Edwards. The two requirements in the law, one of
which you made reference to when you made your decision, was--
it is actually the second requirement--that there be
substantial compliance with such voluntary standards. Some
would argue that 630,000 recalls over the course of 7 or 8
years is not substantial compliance.
But, I want to focus on the first requirement, which is
that you have to find that the voluntary standard would
eliminate or adequately reduce the risk of injury. Now, a
voluntary standard, as of the time of that vote, had been in
place for 7 years. Since 1990, 89 children had died in bunk
bed-related accidents, 57 from entrapment.
My question to you is, did you find in making that decision
and rendering that vote that there had been adequate
compliance, number one; and number two, that the voluntary
standard eliminated or adequately reduced the risk, even in the
face of 50 some odd children dying while the voluntary standard
was in place?
Ms. Gall. First of all with regard to the number of
children who had died, obviously every death is a tragedy,
especially when it is a child. Of those 57 deaths, most of them
were beds that would not be covered by a mandatory standard
because they were institutional beds that were taken and used
by individuals.
Senator Edwards. But you would concede that some children
died during that period of time, would you not?
Ms. Gall. I concede they had.
Senator Edwards. My question is if children are--excuse me,
I am sorry. If children were dying during that period of time,
whatever the number is, and maybe we could argue about that,
but whatever the number is, if children died while the
voluntary standard was in place--and in fact by 1999 it had
been in place for 7 years--if children died during that period
of time, from your perspective did that voluntary standard
eliminate or adequately reduce the risk of injury?
Ms. Gall. Senator, my point about the----
Senator Edwards. Can you answer that question and then I
would be glad to hear your explanation.
Ms. Gall. I would be happy to. First of all, the deaths
would not be covered by the voluntary or the mandatory
standard. That is the first point. These were homemade beds,
they were altered beds, they were institutional beds that had
been removed from dorms, never would have been--let me finish,
Senator, please. They never would have been covered by either
the voluntary or mandatory standard. That is one point.
Senator Edwards. Yes, ma'am, but were you saying----
Ms. Gall. The second point is the adequacy----
Senator Edwards. Excuse me, I am sorry. Are you saying that
all those children who died who fell in the categories you just
talked about--none of the children who died would in fact have
been covered by the standard? For example, sitting two rows
behind you is Lyn Starks, who lost her daughter, I think in
1997, her 3 year old child in 1997, 5 years after this
voluntary standard had been put in place. Would you say to her
that this standard adequately protected her daughter from the
risk of injury, excuse me, from this bunk bed?
Ms. Gall. Senator, what I am saying is that a significant
number--I am not saying every single death--was associated with
a bed that would not have been covered, number one.
Number two, with regard to the adequacy of the standard, if
the staff felt that the voluntary standard was inadequate the
question is why would they propose that to be a mandatory
standard. Why would they do that if they thought it was
inadequate?
Senator Edwards. I do not know, but two of your colleagues
apparently----
Ms. Gall. That is the question----
Senator Edwards. Excuse me. Two of your colleagues
apparently thought that it was important to have a mandatory
standard. They laid out the fact that 89 deaths had occurred,
57 by entrapment, that Ms. Starks had lost her child in 1997,
her 3 year old daughter, 5 years after a voluntary standard had
been put in place.
Let me ask you about a second area if I can. One of the
responsibilities of the Commission is you have authority over
whether or not to pursue legal action against companies that
manufacture defective products, correct?
Ms. Gall. Right.
Senator Edwards. I want to ask you about an area that I do
not think you have been asked about before, which is
sprinklers, sprinklers to avoid fires, put out fires,
sprinklers in homes, dormitories, hospitals, that sort of
thing. You opposed the filing of an administrative complaint,
and I think you alone opposed it, against the sprinkler company
that had been found to be manufacturing sprinklers that did not
operate properly. They were in homes; they were in schools;
they were in hospitals; they were in dormitories.
The result of the complaint, I think, was a resolution
where a huge number of these defective sprinklers were
recalled. However, you were the sole dissenting vote against
the Consumer Product Safety Commission taking action against a
company that had manufactured sprinklers, put them in homes,
hospitals, dormitories, all over this country. The result of
the legal action that was taken was a successful resolution.
These sprinklers were recalled.
Am I correct about that? Were you the sole vote against it?
Ms. Gall. Senator, I have twice voted against an
administrative complaint with one reason and one reason only,
and that is I would like to see these matters resolved before
going to administrative complaint, because my concern is if we
have protracted legal battles that go on for years the
products, the unsafe products, remain in the home or in the
school. I had asked that we----
Senator Edwards. But, in fact, in this case there was, as a
specific result of the action being filed by the Commission,
which you opposed, there was a specific resolution recalling
all of these defective sprinklers. In the mean time, if you did
not take legal action and you were just engaging in discussion,
these sprinklers stay in place, these defective sprinklers stay
in place, and the risk of families, students, and patients in
hospitals being hurt as the result of a fire continues, does it
not?
Ms. Gall. My point was this. In both cases my point was
this----
Senator Edwards. If you could answer my question first, and
then I would be happy to hear your point.
Ms. Gall. Senator, my point was that if we set a date
certain by which time we are unable to negotiate a settlement
that would remove the unsafe product from the home quickly,
then I would approve of an administrative complaint. My effort
in both cases was to go back and try one more time, one more
time to try and get a settlement, so we would not have to
potentially go into protracted legal battles.
Every single administrative complaint that we have filed--
and I have supported all of them except two--thank God, has
resulted in a settlement that got the unsafe products out of
the home. But every time we go for an administrative complaint
the potential exists that those products can remain in the home
or in the school for years as we go through these battles.
I would prefer to see us settle these matters as quickly as
possible to remove those unsafe products from the home.
Senator Edwards. Thank you, Mr. Chairman.
Thank you, Ms. Gall.
The Chairman. Thank you.
Senator Smith.

STATEMENT OF HON. GORDON SMITH,
U.S. SENATOR FROM WASHINGTON

Senator Smith. Thank you, Mr. Chairman.
Thank you, Ms. Gall, for being here. Is it your view that
there are businesses out there that sell and run, that are
flim-flam operations?
Ms. Gall. I think for the most part industry wants to make
a safe product because they want to sell more of them. But we
have had occasion to see that there have been some bad actors.
We have had problems with imports coming into the United States
where the child-resistant feature on a cigarette lighter was
deliberately disengaged. That is a case where I think we have
to go after people with criminal penalties and have a severe
response and a quick response.
We are often able to stop those products from crossing the
border with our good help from U.S. Customs. But occasionally
they get to the shelves, and that is harder for us to stop once
they have reached the store shelves.
We have had experience with bad actors, but for the most
part I think companies try to manufacture a sound product.
Senator Smith. But there are some bad actors.
Ms. Gall. Yes.
Senator Smith. That is why your Commission exists. That is
why we have trial lawyers what seek civil justice. That is why
we have criminal laws to go after those with criminal intent,
and those things are ongoing. But it is your experience that
most in business are trying to produce products that are safe,
affordable, and that serve their purpose, and they want to sell
the American consumer not one day, but every day if they can?
Ms. Gall. That is right.
Senator Smith. What percentage of the bad actors, the sell
and run types, do you think are out there?
Ms. Gall. Well, we see those with cigarette lighters
occasionally. We see them with fireworks occasionally. We have
had a number of criminal penalties related to fireworks and to
the cigarette lighters. Small, inexpensive import toys
sometimes are a very serious problem for us and we work
aggressively to stop those from coming into the country, and
when they are on the store shelves we work aggressively to go
after them with recalls.
Senator Smith. You are a mother; you care about safety in
products in the home?
Ms. Gall. Of course.
Senator Smith. I wonder if you can tell me, because I am
new to this Committee, what difference will there be in your
role as a member of the Commission, which I understand you will
continue to be whether or not confirmed to be the Chairman or
not. You will continue until 2006; is that correct?
Ms. Gall. That is right.
Senator Smith. What different role would you have, what
influence change would you have, if you were the chair?
Ms. Gall. Well, certainly Chairman Brown has done a
terrific job with highlighting public attention on the
Commission and she has vigorously enforced the law and she has
made a particular project of going after children's potential
hazards. That will not change. I strongly support those
initiatives.
Senator Smith. The current Chairman is a Democrat?
Ms. Gall. Yes.
Senator Smith. And supports your nomination?
Ms. Gall. She has not publicly supported my nomination. In
private she has supported my nomination, but not in public.
Commissioner Moore, the Vice Chairman, has supported publicly
my nomination.
In addition to carrying on the mission as Chairman Brown
has, I also have highlighted in my opening remarks some areas
of interest that I would like to pursue with regard to senior
citizens and with regard to fire safety and some other issues
as well, as well as critical investments that we need within
the agency to do our jobs and do them well.
Senator Smith. Do you have an adequate budget in your
agency?
Ms. Gall. That is a loaded question, is it not? I think
that we need to have some additional funds to meet the needs of
the new laws that have been imposed on the Commission and also
to fund a research budget. We do not have a research budget. We
need to do that. There are opportunities for studying circuit
breaker fires, some wiring issues, that we do not have the
capability of doing right now, that I would like to see us get
involved in.
Industry does research, but it is product development
primarily. We would be interested in doing safety-related
research and working with industry to address those issues.
Senator Smith. I think what every Senator who is going to
vote on your confirmation is really struggling with is do you
have a different threshold than other members of the Commission
for when, or burden of proof, if you will, for when you
regulate or when you resort to voluntary. Is your standard
different from others?
Ms. Gall. Well, I look at the evidence and I look at the
law, and I assume that my fellow Commissioners do the same. I
also take into account consumer misuse and abuse, foreseeable
misuse and abuse, when determining whether or not to proceed
with a mandatory standard. I also look to see what voluntary
standards are out there and whether or not they are adequate to
address the problem at hand and if there is substantial
compliance. If that is the case on both counts, then I look
first to the voluntary standard, as required by law.
Senator Smith. You are usually consistent with other
Commissioners on that kind of approach?
Ms. Gall. Yes, I believe so.
Senator Smith. One of the Commission's most important
functions, I have learned, is that of compliance. Can you
explain how you have supported the Commission's compliance
efforts?
Ms. Gall. The staff does the day to day negotiations on
recalls. I have supported all the recalls. I have supported,
with two exceptions, administrative complaints, and I have
explained why, because I wanted to make one last effort to
settle before going to administrative complaint. I have
supported enforcement issues, votes, 97 percent of the time.
One instance I felt that, rather than going for a subpoena,
we should either request the information or go for a search
warrant if there was a concern that the information would not
be forthcoming, and so I took a different direction than my
colleagues on that one instance.
But for the most part, overwhelmingly I have supported
compliance activities and in fact have sometimes pressured the
staff to go for criminal penalties in situations that I thought
were particularly egregious, for example the deliberate
disengagement, as I mentioned earlier, of cigarette lighter
child resistance. I feel that when there is deliberate intent
like that that we should aggressively pursue a criminal
penalty.
Senator Smith. Thank you, Ms. Gall.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Nelson.

STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA

Senator Bill Nelson. Thank you, Mr. Chairman.
I asked your staff to provide us with examples of deaths of
elderly Floridians particularly that were occasioned by space
heaters and other kinds of unfortunate accidents. I would like
for you to talk to us a little bit about how you would propose
to deal with a vulnerable population like the elderly.
Ms. Gall. Well, in the past 7 years we have done some
terrific work with AARP and others, but it has been primarily
focused on grandparents as caregivers. That is an important
consideration, certainly, as I mentioned earlier about
medication, children being exposed to medication not in a
proper container. We often see grandparents as primary
caregivers of young children these days. That is on the
increase.
So that work has been very important. But my concern is
that when we look at fire data and other data related to
injuries and deaths we see that we are not reaching the
elderly, we are not reaching the elderly poor, and that is a
concern of mine that I would like to pursue. If you look at the
census data, you see that the elderly are on the increase. In
fact, those over 85 will double in the foreseeable future. So
that is a particular interest of mine, especially the elderly
poor that are less likely to have up to date wiring in their
homes, they have pre-standard furniture in their homes, they
are more likely to smoke and so that is a potential fire hazard
there.
So there are a whole host of these kinds of things that I
think we need to address.
Senator Bill Nelson. Exactly. You have identified, I think,
very correctly that they are a very vulnerable population. My
question is how do you propose to deal with that? Talk to me,
for example, about how you would go about educating the
elderly?
Ms. Gall. Well, there are two important things. Obviously,
we can use the traditional resources: the Office of Aging, the
AARP, and we reach a number of elderly that way. The elderly
poor are another circumstance, just like new immigrants are
another circumstance. They are difficult to reach with safety
messages.
So I would propose that we use some creative, outside the
box, shall we say, approaches to meeting, to providing them
with safety information. I am in the process of developing
those and, if confirmed by the Senate, I will pursue that.
Senator Bill Nelson. Give me some ideas. What is outside of
the box?
Ms. Gall. I think, as with other cases that we have seen in
the past with new immigrants, government agencies are not
traditionally in close contact and have an authority basis for
the elderly. You can reach them perhaps through a message in
the Social Security envelope when the check comes, but there
are non-traditional, non-government approaches that can be
used.
For example, working with Congressional offices to identify
leaders in those communities and to work through some non-
traditional leadership roles to reach the elderly poor through
day care settings and so on, where elderly may be coming into a
day care setting, a senior day care, those kinds of activities.
Also, providing information, I think, on the web for those
who care for older citizens. We do not have that kind of
information in one place where someone who is either caring for
them or someone who is running a senior day care center or a
social service provider or a family member needs to be able to
go to one place to get the kind of information they need. So I
would like to set up something like that as well.
Senator Bill Nelson. What would you propose with regard to
minority populations of elderly, where there is a language
barrier?
Ms. Gall. Well, again, that is why you have to be creative
and you have to go right to the source in that community to
find those who speak the language and who have the contacts,
whether that is through a church community or other local
resources, where you can address the language problem. Again,
that is an issue with new immigrant populations as well that I
am concerned about not receiving the kinds of information we
need to get across.
Senator Bill Nelson. You talked about outside of the box.
What kind of additional resources are you going to need in
order to do this?
Ms. Gall. Well, I am a great believer in leveraging
resources, in working in partnerships with State and local
agencies and with nonprofit organizations and so on. I have not
defined a particular budget, but, believe me, you will know
about it when I do. I think it would require some additional
resources, but I do not have a dollar figure for you at the
moment.
Senator Bill Nelson. Thank you, Mr. Chairman.
The Chairman. Thank you.
On the second round, Senator Burns.

STATEMENT OF HON. CONRAD BURNS,
U.S. SENATOR FROM MONTANA

Senator Burns. I have sat here and listened to the dialog
this morning, and what a novel thing it is to have a person up
that has 10 years experience with the Commission and still has
a sense of humor.
Ms. Gall. Senator, you have to to get through this.
Senator Burns. How novel it is to have product knowledge
and understand the human being and still approach it with a
common sense type thing of trying to solve problems without
going into court. Sometimes that is the most desirable way, is
working with organizations.
I think there have been some examples here that have been
pretty far-reaching this morning. So I am going to support this
nomination. After listening--I sat here just to listen this
morning more than to ask question, to be right honest with you,
because I am not real sure after hearing all this that I
could--we did not have bath seats for kids. I think our kids
got a bath in the kitchen sink. We could not afford it. And I
am not sure I could raise kids any more. I do not know what it
is all about.
But I know that I guess when we lost our daughter when she
was 15 years old and we had an unfortunate accident, I guess I
could go through a lot of things and probably blame somebody
else. It is easy to do that under those circumstances.
But I like your approach. I know there are going to be
three votes on that Commission and the desires of the
Commission I would imagine will be seen by a majority of two to
one. I served on a three-panel commission on a county and I was
not always on the majority. But nonetheless, I am going to
support this, and your answers, and just to keep approaching
these problems under a common sense approach. I think we need
more of that in government.
So I appreciate all the questions that everybody else asked
and I am going to take that into consideration. But I
appreciate your positive attitude, approach to some very
serious problems we have in product safety. We cannot make them
safe enough and then on the other hand be able to afford them
at all. So I appreciate what you do.
Thank you, Mr. Chairman, and that is my statement and I am
sticking to it.
The Chairman. Good.
Ms. Gall. Thank you.
The Chairman. I participated in the initiation of the
Consumer Product Safety Commission. Once again, it was the
flammable blankets. This has saved, as you indicated otherwise,
it saved a lot of legal procedures.
Senator Burns. You know, I sat on the board of directors at
one time of the Shriners Hospitals for Children. As you know,
we have three burn centers. No other organization in the world
has done more research on burns than that organization. When we
looked at different circumstances that caused, after we dealt
with it, what caused this thing and fire and fire retardants
and this type thing, we finally came to the conclusion
sometimes the fire retardant wear did more damage under certain
circumstances than, say, just straight cotton in what we slept
in as kids.
So we have some experience with this. So I am glad to see
some common sense approach to this situation.
The Chairman. Dr. Curtis Arts is the eminent physician on
burns, and I have worked with him.
I just want to emphasize on my little minute here that we
started with Love Canal and all the toxic fumes and disease and
death that that caused up there in Buffalo, and we instituted
the Environmental Protection Administration, and that saved a
lot of law cases. The Consumer Product Safety Commission has
saved a lot of law cases as well as lives and injury.
While I have worked for some 34, almost 35, years now in
the cancer field, it was not Dr. Koop and Dr. Kessler. On the
contrary, it was trial lawyers who got that $368 billion
settlement. Now, when I go to the tobacco-growing area of
Florence, South Carolina, in the courthouse they have got no
smoking. The trial lawyers really have saved the lives. In
deference to my doctor friends, they have saved a lot of lives.
But, it was not until we really brought that case and got that
settlement that people understood the dangers of smoking.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman. I appreciate your
having a second round, Mr. Chairman, because this is really a
signal today about how the Administration is going to handle
consumer protection issues and, frankly, I am very troubled
about what we have heard in the last couple of hours.
When I and my colleagues have given you these examples of
these cases where you essentially said it was the consumer's
fault, your response has essentially been to cite extreme cases
of individual irresponsibility. We talked about drunk drivers--
excuse me, drunk parents this morning, and it seems to me that
you are overlooking the significant role that the product is
going to play in the vast majority of mainstream cases where
the consumer has behaved responsibly.
How would you respond to that?
Ms. Gall. Well, Senator, when we believe there is a defect
or an unreasonable risk of injury through some means, then we
address that issue. We do not always address it with a
mandatory standard. I think that is one of the things I really
have to get across here. Since Chairman Brown----
Senator Wyden. That is not what----
Ms. Gall. May I finish, Senator?
Senator Wyden. But just so we are clear now, and I would
like you to respond to the question, that is not what your
record shows. Your record shows that you will not even begin
the inquiry, and you cite this question of extreme
irresponsibility for not beginning the inquiry. That is what I
would like you to respond to.
Ms. Gall. Senator, since 1994 we have gone with 23
mandatory standards and 118 voluntary standards. That is a
five-to-one margin of a demonstrated preference for voluntary
standards when we think they will work. That is with Chairman
Brown, Commissioner Moore and myself voting on those issues.
Our statutes tell us we have to look to voluntary standards
first. Those are the statutes that the Congress has given us.
There is not a one size fits all solution to every problem.
Yes, there is extreme consumer behavior. No mandatory standard
will address that. But when there is foreseeable, foreseeable
consumer misuse or abuse, we address it--not always by a
mandatory standard, sometimes by a voluntary standard,
sometimes by bringing industry in and working on the problem
together.
That is the way I like to do business, and that is the way
the Commission has done business. Twenty-three mandatory
standards, 118 voluntary standards. The record stands for
itself.
Senator Wyden. Could you give some examples in the last 10
years where you opposed an industry position that industry felt
strongly about?
Ms. Gall. Well, I can think of one right off the bat, and
that is the very controversial issue of child-resistant caps
for medications and for household products that are toxic.
Industry went to great lengths and great expense to develop
child-resistant caps for these products, and it took a long
period of time and a great deal of patience to come up with the
appropriate caps.
Then we saw, as I mentioned earlier, an increase of
poisonings because the caps were so hard to use, especially for
people who have arthritis or have one hand or some situation
like that. They were very difficult to get off. I had problems
with them myself. Sometimes I used inappropriate language when
trying to open some of those caps.
We sat there and we saw the increase on poisonings and we
had to go back and develop an adult-friendly, child-resistant
cap that has a two-step cognitive process where you twist and
pull open. That was expensive. Industry was not interested in
doing that for the most part. They had to come up with new
designs, because it is not just caps on medicine, it is also
tubes and other kinds of individual blister packs and so on. We
had to come up with this child-resistant, adult-friendly.
We get trounced in our appropriations hearing for doing
that. There was tremendous pressure from industry, segments of
industry, not all industry. So we went ahead and did it anyway.
Senator Wyden. In 10 years there was once where you voted
against industry?
Ms. Gall. No, I am citing that as one example. I am citing
that as one example.
Senator Wyden. Could you give me a couple of others?
Ms. Gall. Well, there was some resistance on efforts on
some other products where industry has come around after we
have negotiated with them and so on, and I do not particularly
care to mention those particular industries, however, given
that we are in a delicate situation with them, where there was
strong initial resistance and we were able to bring them around
and have us work together in a non-threatening approach.
I think that is the best way to do business. You can club
people over the head with an advanced notice of proposed
rulemaking or you can sit down with them and work something out
and get a good result.
Senator Wyden. I think we ought to hold the record open on
this point, Mr. Chairman. But the witness has said that in 10
years at the Consumer Product Safety Commission she voted
against industry in one instance.
Ms. Gall. I am not saying that, Senator. I am saying that
is one example. I would be happy to provide you additional
examples for the record.
Senator Wyden. Why do you not tell us those. Why do you not
tell us those this morning? Why do you not give us those this
morning?
Ms. Gall. I think I understand what you are getting at. You
have to understand from my perspective that there is initial
resistance with industry on a number of issues that we deal
with, but when we come to the table and we work together and
they understand that we mean business, then we are able to come
up with a result, after we negotiate internally among the
Commissioners, we are able to come up with a workable result.
That is the way it is supposed to work.
Senator Wyden. I want to wrap up with this, Mr. Chairman,
because I think this is right at the heart of the question.
There is no question that one size does not fit all, and you
need creative solutions. What has troubled me the most about
what you have said today and in the past is that when you will
not even initiate an inquiry in most instances you cannot get
industries to the table in order to start looking for these
kind of practical solutions.
Ms. Gall. I disagree with that, Senator. I disagree with
your premise.
Senator Wyden. That is what happened in the baby walker
case. With all due respect, that is how you finally began to
make some progress there.
Ms. Gall. I disagree with that.
Senator Wyden. I came here today open. This has been an
area I have specialized in since my days with the Gray
Panthers. I think your views on consumer protection regrettably
are not in the mainstream.
Mr. Chairman, I appreciate the second round.
The Chairman. Very good.
Senator Boxer.
Senator Boxer. Thank you, Mr. Chairman, very much.
Ms. Gall, thank you for praising my very strong belief that
negligent parents should be held accountable. I have a long
record on this. I have gone after deadbeat dads in welfare
reform. I have gone after parents who leave guns unsupervised,
unlocked, so kids can get their hands on them.
But, unhappily, you do not have a similar record going
after dangerous products, because I think you have got to do
both. You have got to take a firm stand against people who
would neglect their children and also make the safest possible
products. I do not see that balance in your record.
Let us be clear. Voluntary standards cannot be enforced.
They cannot be enforced and that is important.
Now, I am troubled by many of these inconsistencies that
keep coming back up in your testimony. Again, you cite 97
percent of the time you voted with your fellow Commissioners,
and yet, in your own words, ``The other Commissioners and I do
not always agree. In fact, a lot of the time we do not agree.''
So you keep bringing up 97 percent of the time and yet I
have pointed out how many of these votes----
Ms. Gall. With enforcement matters, 97 percent of the time
with enforcement.
Senator Boxer.--how many of these votes are routine votes.
Now, in answer to Senator Nelson's questions, you said you
would educate the elderly. You think it is important to work
with groups to educate the elderly. Yet, when we try to educate
parents about placing their children in adult beds, you not
only oppose it, but you write a letter to the editor and you
condemn the Commission staff. I shudder to think the chilling
effect that making you Chairman would have on that staff.
Sixty-four kids a year, Mr. Chairman, died because of this.
I think it is good--I am a grandmother. I think it is important
that my daughter knows of this problem, and she can make her
own choice on how she wants to deal with it.
But, you condemn it. How are we supposed to believe you
that you are going to educate seniors? You do not want to
educate parents. You think it was an overreaching of the staff.
But in answer to Senator Nelson, oh, you are going to educate
seniors. I do not believe it. I do not believe it. You can have
an opinion, but then you write an op-ed piece striking out at
the staff for what they did, saying the only issue here was
overreaching.
I simply think these inconsistencies are very, very
troubling, and I do not believe that you will educate the
elderly because you did not want to educate the kids or even a
grandma who might take her grandchild into bed when there is an
infant involved. You do not want to do that. So I have a
problem with it.
Now, you then say, in response to Senator Edwards'
questions about the sprinkler, oh, you did not want to take
that issue on because it takes too long. Do you know how long
it took to resolve that once the complaint was filed? Do you
have that information? Tell me?
Ms. Gall. I do not recall the number of days.
Senator Boxer. Well, I will tell you. I will tell you. That
complaint was filed in March, and it was resolved in October.
So your point that, oh, when you issue a complaint it takes a
lot of time, is disproved by the facts. It was resolved in
October, and people were saved.
Then you say you voted for all but two administrative
complaints. How many were there in the last 8 years, do you
know?
Ms. Gall. I believe there were about 10 or 11.
Senator Boxer. In the last 8 years--we just checked--there
were 3. There were 3 according to the Commission.
Ms. Gall. I think there were more than that, but anyway.
Senator Boxer. It is not ``but anyway.'' I mean, I am
really frustrated.
I think, Mr. Chairman, we have a witness here who is
recasting herself and saying, well, 97 percent I voted with the
Commission, I only voted twice against administrative actions,
complaints, when in fact there were only 3 in the last 8 years,
to make us believe that she is in the mainstream. Now, we got
this information from the Commission staff, that there were
only 3 in the last 8 years.
So I have to say this is a deeply troubling nominee.
I want to talk to you about the baby walkers in the time I
have remaining. You voted against a rule for baby walkers
because caregivers were failing to provide ``adequate
supervision.'' We have gone over that, and I have told you I
agree we want to give adequate supervision to our children; but
a child does not choose its parents and if there is a real
problem and the parent does not supervise, we want the safest
products possible for the child, to protect the child.
You know, with the bunk beds you said the parents should
not put the kids in the upper bunk. Try controlling a kid from
climbing up into the upper bunk in the middle of the night. It
is not easy in the real world. A kid does not read the warning.
You know on the mattress label they always have a warning. Kids
do not read that. They do not read the warning with the
product, and they may climb up onto the top bunk.
Well, here is what we know. As a result, you voted against
a rule for baby walkers and yet the injuries dropped 60 percent
in 5 years as a result of the redesign. You voted against the
rulemaking proceeding. Now, as a result 11,300 injuries to
babies have been prevented each year. Would you change your
vote, knowing that?
Ms. Gall. Senator, I voted in opposition to the ANPR, but I
supported and worked with industry to make the changes.
Senator Boxer. You voted against a rulemaking----
Ms. Gall. May I finish, Senator?
Senator Boxer.--is that correct?
Ms. Gall. I voted against an ANPR at the time and moved
forward to support making changes, working alongside with
industry.
Senator Boxer. Mr. Chairman, anyone who knows anything
knows the reason industry sat down was because of that
rulemaking.
Ms. Gall. I disagree with that.
Senator Boxer. Well, you can disagree, but that is a fact.
We have the safest products in the world because we have
people who serve on these commissions who care, who are
fiercely fighting. And when they slack off, we do have trial
lawyers what come in, much maligned as they are. We have the
safest products in the world because we have a system that
protects consumers.
If we have the head of the Consumer Product Safety
Commission, Mr. Chairman, who is anything less than vigilant
and a fighter and an advocate--Ms. Gall, I say you are on the
Commission as a balance. You wrote you were the only
Republican, you disagreed with your colleagues. It is healthy,
it is healthy. I do not mind that. That is fine. But to make
you the head of this Commission, it seems to me to be wrong,
because we need a fighter. We need someone who is going to get
out there and advocate, not someone who says, well, the
rulemaking had nothing the do with the fact that the people
came to the table. I think that is why the people came to the
table.
So I just want to make sure I am right. Knowing that 11,600
kids each year--let me correct that--11,300 injuries to babies
have been avoided, would you still vote against that
rulemaking?
Ms. Gall. I believe that the juvenile products group----
Senator Boxer. Could we have a yes or no?
Ms. Gall. Senator, may I please----
Senator Boxer. Could we have a yes or no?
Ms. Gall. May I finish? I am very frustrated as well,
because I would like to comment on a couple things you said.
First of all, we were able to work that out without a
mandatory standard. That is the important thing to remember. A
mandatory standard is not always the answer. We are able to
work cooperatively with industry on many occasions. That is
point number one.
Point number two, I truly believe in educating seniors
about the dangers of consumer products, how to upgrade their
consumer products. I do not believe in educating parents about
cultural practices that are their own business in the privacy
of their homes. We are not the Consumer Cultural Practices
Commission. We are Consumer Product Commission. We need to
confine our role, which is a big role because we oversee 15,000
consumer products. We need to address the concerns about
consumer products, not about private cultural practices.
Let me say again, the American Academy of Pediatrics and
the maternal and child health folks at NIH never stated that
co-sleeping was dangerous in any way. We were trounced in the
press repeatedly, with articles in The New York Times, Time
magazine, Newsweek and others who criticized us heavily for
that co-sleeping study. I will just leave that at that.
I do believe in working with people to inform them about
safety issues related to consumer products.
With regard to baby walkers, I disagree with you. I have to
be honest about it, I have a longer degree of experience in
dealing with juvenile products people and the industry itself.
They were more than willing to work with us. It did not take a
mandatory, the initiation of a mandatory standard to work with
them, just as it did not take the initiation of a mandatory
standard to solve issues related to gas-fired water heaters.
Industry came together, we asked them to work with us, they
did. That is a success story. It does not always take a
mandatory standard or the beginning of a mandatory standard.
Our staff can initiate investigation about products without
beginning rulemaking.
My response to you is we use common sense. The 97 percent
that you are quoting was with regard to enforcement. I have
clearly stated that to you several times. It is with regard to
enforcement issues. With regard to all issues before the
Commission, including some of the things you cited, Senator
Boxer, my record is 93 percent at the time. That includes
everything, from budgets, operating plans, civil penalties, and
so on, 93 percent of the time; 97 percent of the time with
enforcement issues.
When it comes to regulatory matters, it is about 87 to 90
percent support for regulatory issues. This is not an extreme
record, Senator.
If I am confirmed, I will aggressively act as the leader of
the Commission. Let me also say for the record that the
Chairman plays an important role as the administrative leader
at the agency, the point person for Congress, the point person
with regard to the media. But the Commissioners play important
roles as well. We vote yes or no on civil penalties,
administrative complaints. We deal with the daily operations of
the Commission: budgets, operating plans, monitoring of
voluntary standards, hiring of the top people at the agency,
reviewing performance plans, reviewing requests for increases,
salary increases. We have to vote on press releases. We have to
vote on all the issues that pertain to the Commission.
I have 10 years worth of experience in dealing with all of
those issues. So I hope that I will be confirmed by the Senate
and reported out by this Committee.
The Chairman. I yield you my time. Go ahead.
Senator Boxer. Thank you so much.
Mr. Chairman, let the record show that Ms. Gall did not
answer my question as to whether she would cast the same vote
against a rulemaking that dealt with baby walkers, which we all
know the other Commissioners voted for.
Ms. Gall. I would be happy to answer that, Senator.
Senator Boxer. Well, excuse me. You had time to talk. That
was my question. Instead of answering yes or no, you went on
and on. The bottom line is you did not answer it. I am sure
that the Chairman will give you the chance to answer it.
But, I want to point out that as of this point in a direct
question, Ms. Gall refused to answer would she cast the same
vote. What she said was, I work with industry. Well, why do you
think industry came to the table? Because the other
Commissioners had the guts to say that 11,300 injuries a year
to babies is too much to take. Yes, industry came to the table.
Good, good for those Commissioners. And then you got in the
act, good, good, good. But as Chairman of the Commission, you
should be the one leading the charges.
I would finish and say this. What troubles me tremendously
is the fact that you voted against agency action on the bath
seats, again claiming negligent parents. You reversed your vote
in 2001 as controversy against your nomination was building.
Seventy-eight children have died using these baby bath seats.
You also voted against a rule for bunk beds. About ten
children die every year from entrapment. While your primary
reason for opposing the rule was to defer to voluntary
standards, which had not worked, and the record will show that,
you also voiced your views that the real cause of death was the
parents inappropriately placing children under 4 years old in
the upper bunks.
So it seems to me that this approach is repeated and
repeated and repeated and repeated. I do not want to do
anything on my watch that is going to punish children because
they cannot read the warnings or is going to punish elderly
people because maybe they are not as swift as they once had
been.
This has been an extraordinary experience for me, this
hearing. I think, if anything, we can see here that, while
someone may provide a balance on a commission as a
commissioner--and I do not question your integrity in any way.
You are doing what you believe in. You believe that industry
should fix itself, you believe that parents are to blame, and
that is what you believe and you have a right to believe it.
But, you do not believe in making products safe. That is
what I think about your record. You do not believe in doing
what it takes to make products safe, and you would rather let
it go to industry to deal with it. I think that is a problem
when considering your nomination to be the Chairman of a
commission whose mission is making products as safe as they can
be.
Thank you.
The Chairman. Ms. Gall, you have every opportunity to
respond.
Ms. Gall. Thank you, Mr. Chairman.
Well, as might be stating the obvious, I disagree with
Senator Boxer's characterization of my record. I believe you
need to address consumer product issues based on the issue
before you. I do not believe that there is an automatic
requirement to go to a mandatory standard every time in every
issue, just as there is not a one size fits all answer for
every issue that comes before the Senate.
My vote with regard to bath seats changed because the
evidence before us changed. I looked at the evidence and at the
law and I based my decision on that and that alone. Perhaps if
Senator Boxer had observed me over the last 10 years, she would
know that any implications about my nomination are false with
regard to how I voted that time.
I must say that the people who have criticized my
nomination have stated that repeatedly, and that simply is not
true. I looked at the evidence and I looked at the law. The
evidence had changed and consequently my vote changed. I would
think that the fact that I am willing to change my vote based
on the evidence before me would be a good thing, not a bad
thing.
Obviously, Senator Boxer and I view things differently.
Apparently she believes that a mandatory standard, the
beginning of a mandatory standard, is a must in every
circumstance. I disagree with that. I know that there are times
when it is necessary, and I have done so when it is necessary.
I have supported child-resistant cigarette lighters when we
saw the circumstances, the data, the evidence, and what the law
instructs us to do. I also did so with multi-purpose lighters,
those lighters you use to light charcoal on a grill. They are
long, they have the long nose and the trigger mechanism, and
children really like those. So I voted for a child-resistant
mechanism for those. I have supported poison prevention
packaging throughout the history of my role at the Commission.
So really, if you take a real look at my record, you will
see that I am willing to address issues that come before the
Commission with an appropriate fix. That is not always the
beginning of a mandatory standard. Sometimes it is. But if you
look at the record of the Commission, 118 voluntary standards
and 23 mandatory. I think that tells you something about the
record of the Commission and the fact that we must look to
voluntary standards first before we address the issue of
mandatory standards.
The Chairman. Very good.
We have the statement of the Honorable Rosa DeLauro. It
will be made a part of the record, and I am going to furnish
you a copy, too, Ms. Gall, so you can respond, and do it as
promptly as you can. [Refer to Appendix.]
The Chairman. I have not talked with Senator McCain, but it
would be the hope perhaps of the Committee to look at this
nomination and vote on it before we leave for the August break.
I am not sure of that.
Otherwise, the Committee is indebted and appreciative of
your appearance here this morning, and the Committee will be in
recess subject to the call of the chair. Thank you all.
[Whereupon, at 11:54 a.m., the Committee was adjourned.]
A P P E N D I X

Prepared Statement of Hon. Rosa L. DeLauro,
U.S. Representative from the State of Connecticut
Thank you Mr. Chairman and members of the Committee for allowing me
to be here today to share my concerns about the nomination of Mary
Sheila Gall to chair the Consumer Product Safety Commission.
Ms. Gall, who has served on the Commission since 1991, has
repeatedly voted against stronger consumer product safety regulations
throughout her tenure. Given a choice between consumer safety and the
manufacturers, Ms. Gall came down on the side of the manufacturers,
deciding in favor of products that are dangerous and put our children
at risk. She has a history of blaming consumers when injuries result
and she has shown a clear reluctance to impose mandatory safety
standards when evidence shows that voluntary standards are not enough
to reduce safety hazards and prevent injuries.
Accordingly, I am here today to urge my Senate colleagues to reject
her nomination. I speak from my own experience on this issue. Over the
years, as a member of Congress, I have introduced legislation on
children's sleepwear flammability standards, upholstered furniture
standards and I have fought against dangerous candy products that posed
serious choking hazards to our children.
Mary Sheila Gall's record speaks for itself, but I would
respectfully like to highlight a few key points in Ms. Gall's history
that illustrate that she does not have the interests of children and
families in mind.
On the children's sleepwear issue, Ms. Gall voted in 1996 to
eliminate the fire-resistant standard for infant sleepwear putting
millions of additional children at risk of injury. This 25 year old
standard had been credited with helping reduce the average death rate
from clothing ignition for children younger than 14 from 60 deaths each
year to only four per year. This was the most effective measure taken
to protect children from injury in the event of a house fire. In her
statement, in support of repealing the standard, Ms. Gall said that
non-flame resistant sleepwear did not pose an ``unreasonable risk.''
Ms. Gall's vote put millions of children at risk of death or injury and
put her odds with the National Fire Protection Association. The
Association strongly opposed her position, saying that Ms. Gall put the
burden of safety standards on consumers.
Fire-resistant pajamas is a common-sense standard, and I have
introduced legislation to instruct the CPSC to return to the strict
fire safety standard that governed children's sleepwear for a quarter
of a century. We cannot allow children to be put into bed wearing
pajamas that pose a fire hazard.
Ms. Gall's position with respect to baby baths is also
disconcerting. From 1983 to 2000, 69 infants died and 95 were injured
in accidents involving baby bath seats. In 1994 Ms. Gall voted against
the regulation of baby bath seats, saying ``infant drowning . . .
resulted not from the design or manufacture of the product, but rather
from irresponsible behavior of the care-givers.'' On August 9, 2000,
Ms. Gall voted to publish a Federal Register notice to invite
interested persons to comment on a petition to regulate baby bath seats
and rings, all the while publicly commenting that, ``Infant drownings
that occurred while a baby bath seat or ring was present resulted not
from the design or manufacture of the product, but rather from the
irresponsible behavior of the caregivers in leaving an infant alone in
the tub . . . I have reviewed these incidents as they have been
reported and have found nothing that causes me to alter the opinion
that I expressed in 1994.''
Mr. Chairman and members of the Committee, since 1972, American
families have relied on the Consumer Product Safety Commission to
regulate unsafe products and protect them from potentially hazardous
ones. In regulating potentially dangerous products, I believe the
American people prefer us to err on the side of caution. They do not
want products that endanger their lives sold in the stores where they
shop. The Chairperson of the Commission must be a leader who will
demand the strictest safety standards for consumer products. Yet, Mary
Sheila Gall's record as a CPSC Commissioner indicates an overt
hostility toward the commission's mission.
Her impact on this nation's children doesn't stop at sleepwear and
bath seats. In a statement dated June 30, 1994, Ms. Gall, in opposition
to the proposed government regulation of baby walkers, once again
blamed parents and babysitters for accidents that had occurred. In some
instances that may have been true. But didn't she think that there
might be a way to build a safer baby walker--one that would not fly off
down the hall or down the stairs the moment a parent turned around.
Parents will be the first to agree that sometimes they get distracted,
but that is no reason not to try to make a safer walker. This proposed
regulation was supported by the American Academy of Pediatrics, the
National Association of Pediatric Nurse Associates and Practitioners
and the American Medical Association. The American Medical Association
wrote in a letter to the Commission, ``We believe that this product
should be taken off the market. . . . baby walkers account for higher
numbers of injuries annually than does any other type of nursery
product.'' Her opposition to the rule demonstrated an astounding lack
of sensitivity toward child safety.
Time after time, Mary Sheila Gall has voted against consumer
protections and for manufacturers of unsafe products. Ms. Gall
questioned the need, when crayon makers agreed to remove asbestos
fibers from their products. She voted against safety standards for
bicycle helmets, opposed labels to warn consumers about indoor charcoal
burning, endorsed the move to block rules on flame resistant furniture
and opposed bunk bed standards to prevent strangulation--since 1990, 57
children have died by entrapment in bunk beds.
Mr. Chairman, I have fought very hard to protect consumer safety
during my tenure in Congress. I am here today, because safety for this
nation's children is something that I deeply believe in. The
Chairperson of the federal agency charged with protecting consumer
safety has an important job to do in protecting the health and safety
of the nation. How many children have to be harmed or killed in burning
sleepwear because we failed to enact strict flammability standards. In
my opinion, if we could prevent one child's death--just one child--then
a regulation is warranted. She could be your child or your grandchild
or your neighbor's child. I urge you to consider Ms. Gall's record, her
reluctance to use the authority invested in her as a member of the
Commission. And consider whether we ought to have her as the head of
the nation's consumer protection agency.
Thanks for the opportunity to testify today.