[Senate Hearing 110-1208]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1208
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY
OF THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 21, 2007
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West TED STEVENS, Alaska, Vice Chairman
Virginia JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
Margaret Spring, Democratic General Counsel
Christine D. Kurth, Republican Staff Director and General Counsel
Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel
------
SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY
MARK PRYOR, Arkansas, Chairman JOHN E. SUNUNU, New Hampshire,
JOHN D. ROCKEFELLER IV, West Ranking Member
Virginia JOHN McCAIN, Arizona
BILL NELSON, Florida TRENT LOTT, Mississippi
MARIA CANTWELL, Washington OLYMPIA J. SNOWE, Maine
FRANK R. LAUTENBERG, New Jersey GORDON H. SMITH, Oregon
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
C O N T E N T S
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Page
Hearing held on March 21, 2007................................... 1
Statement of Senator Klobuchar................................... 3
Statement of Senator McCaskill................................... 24
Statement of Senator Pryor....................................... 1
Statement of Senator Sununu...................................... 2
Statement of Senator Thune....................................... 22
Witnesses
Dean, John C., President, National Association of State Fire
Marshals....................................................... 49
Prepared statement........................................... 51
Greenberg, Sally, Senior Product Safety Counsel, Consumers Union. 28
Prepared statement........................................... 30
Locker, Esq., Frederick, General Counsel to the Toy Industry
Association and Juvenile Products Manufacturers Association.... 53
Prepared statement........................................... 55
Moore, Hon. Thomas H., Commissioner, U.S. Consumer Product Safety
Commission..................................................... 8
Prepared statement........................................... 10
Nord, Hon. Nancy A., Acting Chairman, U.S. Consumer Product
Safety Commission.............................................. 4
Prepared statement........................................... 5
Letter dated July 20, 2006 from Laura M. Tarantino, Ph.D.,
Director, Office of Food Additive Safety, Center for Food
Safety and Applied Nutrition............................... 27
Weintraub, Rachel, Director of Product Safety and Senior Counsel,
Consumer Federation of America................................. 38
Prepared statement........................................... 40
Appendix
Letter dated March 28, 2007 to Hon. Daniel K. Inouye from Martin
B. Bennett, Former Compliance Officer, Consumer Product Safety
Commission..................................................... 67
Response to written questions submitted to Hon. Thomas H. Moore
by:
Hon. Claire McCaskill........................................ 87
Hon. Bill Nelson............................................. 80
Hon. Mark Pryor.............................................. 81
Response to written questions submitted to Hon. Nancy A. Nord by:
Hon. Maria Cantwell.......................................... 70
Hon. Claire McCaskill........................................ 78
Hon. Bill Nelson............................................. 69
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
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WEDNESDAY, MARCH 21, 2007
U.S. Senate,
Subcommittee on Consumer Affairs, Insurance, and
Automotive Safety,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:37 a.m., in
room SR-253, Russell Senate Office Building, Hon. Mark Pryor,
Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS
Senator Pryor. I want to welcome everyone here to the
Subcommittee today, and just at the outset let me say that
Senators are welcome to submit their questions for the record
and also enter any sort of documents they want for the record.
We'll be glad to take those, as long as there's no objection.
I'd like to welcome the Commissioners today, and our expert
witnesses on the second panel, for the time that they have
taken to prepare their testimony and to be here and appear
before us today. This is the first oversight hearing on the
Consumer Product Safety Commission in the Senate since 2003.
This will be the first in a series of hearings to examine the
work of the CPSC and how this Committee can improve the
Commission to meet today's and tomorrow's needs.
As we all know, the CPSC was started in 1973 to protect the
public against unreasonable risk and injury associated with
consumer products. At the time it was created, it had 786 full-
time employees and was responsible for the safety of about
10,000 products. Today it is responsible for the safety of
about 15,000 products, but they are down over 350 employees,
down to 420 full-time employees.
So at the outset we can say that this is an agency that's
in distress in some ways. The budget has been cut. The number
of positions have been cut. Because of this year's budget, or
at least the way it looks like it's going, it looks like there
may be some retirements just because they can't meet the budget
requirements. The testing facilities in Maryland are
antiquated, and apparently they have closed the branch
facilities around the country.
So I think most Americans would say that they want to see a
healthy and well-operated CPSC, but for that to happen the
administration and Congress have to work together to try to
restore this agency to its previous levels or at least
something close to that.
The administration has proposed a funding level that will
force the CPSC to further reduce its workforce to 401 full-time
employees for Fiscal Year 2008, so that's a loss of about 19
employees right there. This would be the fewest number of
employees in the history of the CPSC. The importance of
adequate staffing cannot be overemphasized. There are so many
products out there; they need to do the testing; they need the
oversight; they need people to look at the marketplace to see
what's coming on the marketplace, and to do all the things that
they do.
Consumer products under CPSC's jurisdiction probably lead
to about 27,100 deaths each year and about 33.1 million
injuries each year. If you calculate the cost of the deaths,
injuries, loss of property, et cetera, you get about $700
billion annually.
Now, while the CPSC has succeeded in reducing accidents,
deaths, and injuries in some areas, unfortunately the overall
number of deaths and injuries related to products has
increased. If CPSC continues to be limited in terms of
resources and authority, these numbers will continue to go up.
In fact, there were about 2,000 more deaths last year than the
year before.
Experts with different perspectives on product safety all
agree on one point: The government needs to make up its mind
about the proper role for the CPSC. The original mandate under
the Consumer Product Safety Act was a broad one, to protect
Americans from unsafe consumer products, yet the agency's
ability to achieve that mandate has been curtailed over time by
limits in its authority, in its funding and in the number of
commissioners.
With the number of products in the marketplace
exponentially larger today than it was in 1973, and given the
number of imports that we're seeing coming into this country, I
believe the CPSC's oversight of consumer products is needed now
more than ever. In fact, going back to 1973, think about how
many more--just in one category--consumer electronic products
are on the marketplace today. The amount of new products out
there that just didn't even exist back in 1973 is staggering.
In spite of this exponential growth, CPSC has virtually no
presence in America's ports, and the Commission is losing some
of its most experienced staff. We have new chemicals, new
consumer products such as nanotechnology. These goods are much
more complex, and I think it's imperative that we give CPSC the
resources it needs to be effective.
So I look forward to hearing from the panels. What we're
going to do for Senators is, we're going to do a 5-minute round
of questions. We're going to ask the two witnesses to do 5-
minute opening statements and try to watch your time. But
before we do that, I want to recognize my distinguished Ranking
Member, Senator Sununu.
STATEMENT OF HON. JOHN E. SUNUNU,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Sununu. Thank you, Mr. Chairman. It is a pleasure
to have both of our panelists on our first panel with us today.
This is a good opportunity, early in the session, to get an
overview of how the Commission is doing, what the needs are in
terms of resources, and infrastructure, and to begin talking
about the potential reauthorization process.
It's been a long time since we've had reauthorization
legislation for the Consumer Product Safety Commission. I
think, as everyone who has worked on these issues before
understands, it can be contentious. There are a number of
issues that people feel very strongly and very passionately
about, so that can always slow down the process on such
legislation.
But I think the public and the government and the employees
within a branch of government are always better served if there
is good, clear authorization language that sets forth the
mission, the scope of responsibility, the objectives of
regulations, and of course sets clear guidelines for funding,
infrastructure, and operations. So I hope that today's hearing
might be the beginning of that process, and I look forward to
the testimony of our witnesses. Thank you, Mr. Chairman.
Senator Pryor. Senator Klobuchar, do you have an opening
statement?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you, Mr. Chairman. I am pleased to
be here today to address the many important challenges facing
this incredibly important government body, the Consumer Product
Safety Commission. Let me talk briefly about why I think it is
so important to have a strong Consumer Product Safety
Commission.
There are those that say that our modern marketplace can
effectively self-regulate for product safety. I don't doubt
that we all bear a measure of responsibility for our own
safety, and I also don't doubt that some of our companies have
taken important voluntary steps to improve product safety in
the last few years. But as a former prosecutor and a mother, I
am convinced that government has an important role to play in
protecting the public from defective and dangerous and deadly
products.
Senator Pryor went through the statistics. I'm not going to
do that again. They are very troubling. And I would say, to
carry out these roles that are so important to the safety of
the people of our country, the government needs a first class
agency with first class resources and a first class commitment
to its central charge of protecting the public.
These are my concerns. Senator Pryor mentioned the staffing
levels and how in 1977 CPSC had a staff of 900. The current
number of staff hovers a little above 400. The Commission's
2007 Performance Budget Request calls for funding levels that
would leave the staff at an all-time low.
Second, the laboratory, CPSC's testing laboratory, is
critical to the Commission's compliance investigations and
safety standard activities, but no major improvements to the
lab have been made in 32 years. One of my major concerns, when
you look at the type of complaints that have been coming in, is
how CPSC is not equipped for the new product safety challenges
on the horizon, including the increasing number of unsafe
products being imported from overseas and changing technologies
that pose new risks to our consumers.
And of course there is the basic problem of a quorum. As we
sit here today, the CPSC is paralyzed because it does not have
enough commissioners. I can think of no more clear message
indicating that the government does not have enough focus on
this issue, when we don't even have a quorum for commissioners.
So those are my major concerns, and I look forward to
hearing your testimony today and working together with you as a
new member of this Committee. Thank you.
Senator Pryor. Commissioner Nord?
STATEMENT OF HON. NANCY A. NORD, ACTING CHAIRMAN, U.S. CONSUMER
PRODUCT SAFETY COMMISSION
Ms. Nord. Thank you, Mr. Chairman, Senator Sununu,
distinguished members of the Subcommittee. I am very pleased to
be here this morning because this is the first opportunity I
have had to come before you since I was confirmed as a
commissioner less than 2 years ago. I appreciate the invitation
to my colleague, Mr. Moore, and myself to come before the
Subcommittee this morning to give you an overview of the CPSC
and answer your questions.
The CPSC is an independent, bipartisan commission charged
with protecting the public from unreasonable risk of injury and
death associated with more than 15,000 types of consumer
products. Since its inception, the CPSC's work has contributed
significantly to the decline in rates of death and injury
related to the use of consumer products. While we are proud of
the agency's record of achievement, there is still much work to
be done. Ever more technologically complex products and an
unprecedented surge of imports continue to present the agency
with new challenges.
The CPSC has three main missions: First, to identify
existing and emerging product hazards, and to address those
hazards by developing mandatory safety standards when voluntary
consensus standards are not adequate. Second, to investigate
and respond to product-related incidents, and to conduct
product recalls to get unsafe products out of the stream of
commerce. And, third, to alert and educate consumers about
product-related safety issues. I'd like to briefly describe
each of these missions.
In the United States there is a well-established system of
voluntary or what we prefer to call ``consensus'' product
safety standards. This system has worked very well, and most
U.S. product manufacturers adhere to these standards. However,
in those instances where we find that consensus standards do
not exist or are not adequate, the commission initiates a
rulemaking to develop a mandatory product safety standard.
To monitor compliance with safety standards, CPSC staff
conducts field inspections of manufacturing facilities and
distribution centers, and also conducts surveillance in retail
establishments and via the Internet. Recalls occur for products
that contain a defect that poses a substantial product hazard,
or for products that violate our mandatory safety regulations.
In 2006 the CPSC announced 471 product recalls, and this is
an all-time record for the agency. And, Senators, we are now on
track to exceed that number in this fiscal year. Two-thirds of
these recalls were of imported products, and two-thirds of
those were from China.
In addition to our surveillance at U.S. ports of entry, the
CPSC has initiated four product-specific working groups with
China to address this challenge. The commission is determined
to make certain that imports meet the same high safety
standards that American-made products must meet.
Recalls are announced and other important product safety
information is disseminated by the CPSC through all forms of
media to warn the public of specific product hazards and to
educate consumers. Additionally, visits to CPSC's three
websites have grown substantially, from 200,000 in 1997 to over
20 million last year.
All of CPSC's safety activities require collecting reliable
data, and the CPSC collects a lot of data. CPSC's IT systems
are critical to the efficient maintenance and processing of
this data. To keep existing systems operating and current, the
Commission's pending budget request to Congress has reallocated
funds to maintain and, where necessary, replace aging network
infrastructure and security features. Quality data is critical
to the agency's decisionmaking process as it relates to
voluntary standards development, compliance, consumer
education, product labeling, and rulemaking initiatives.
Recently the CPSC underwent a 6-month assessment by the
Office of Management and Budget and received the highest
possible rating, which underscores the fact that we continually
strive to set ambitious goals, achieve results, and improve
efficiency. While we are proud of this recognition, consumer
safety is never a completed task but always an ongoing process
of research, standards development, enforcement, and public
education.
Mr. Chairman, members of the Subcommittee, thank you so
much for your support. I look forward to working with you
during the next Congress as you look at this agency, and I
certainly look forward to answering your questions this
morning.
[The prepared statement of Ms. Nord follows:]
Prepared Statement of Hon. Nancy A. Nord, Acting Chairman,
U.S. Consumer Product Safety Commission
Mr. Chairman, Senator Sununu, and distinguished Senators.
Thank you for your invitation, to my colleague Commissioner Moore
and me, to come before the Subcommittee on Consumer Affairs, Insurance,
and Automotive Safety, this morning to give you an overview of the U.S.
Consumer Product Safety Commission (CPSC) and to answer your questions
regarding our mission, our goals, our resources and our activities on
behalf of the American consumer.
The CPSC is an independent, bipartisan Federal commission
established by Congress and charged with protecting the public from
unreasonable risks of injury and death associated with more than 15,000
types of consumer products under the agency's jurisdiction.
Since its inception in 1973, CPSC's work has contributed
substantially to the decline in the rates of death and injury related
to the use of consumer products. We estimate that overall, injuries and
deaths associated with the use of products under our jurisdiction have
declined by almost one-third since the agency's inception. These
reductions include:
A 45 percent reduction in consumer-related residential fire
deaths;
An 89 percent reduction in crib-related deaths;
A 74 percent reduction in product-related electrocutions;
A 47 percent reduction in consumer-related carbon monoxide
deaths; and
An 82 percent reduction in poisoning deaths of children from
drugs and household chemicals.
These are absolute reductions--when the increase in the U.S.
population is considered, the rate of these and many other categories
of product-related injuries we have targeted have declined even more
substantially.
While we are proud of these and the agency's many other
achievements over the years, there is still much work to be done. Ever
more technologically complex products, like those utilizing nano
materials, and an unprecedented surge of imports (especially from
China) continue to present the agency with new challenges. Consumer
safety is never a completed task but always an ongoing process of
research, standards development, enforcement and public education.
We accomplish our mission by executing five Federal statutes: The
Consumer Product Safety Act, the Federal Hazardous Substances Act, the
Flammable Fabrics Act, the Poison Prevention Packaging Act, and the
Refrigerator Safety Act.
Within the purview of these statutes, the CPSC has three core
missions:
1. To identify existing and emerging product hazards that
create an unreasonable risk of injury and to address those
hazards by developing mandatory safety standards when consensus
standards fail to do so. We do this through our Office of
Hazard Identification and Reduction;
2. To conduct product recalls and to investigate and respond to
product-related incidents which we accomplish through our
Office of Compliance and Field Operations; and
3. To alert and educate consumers about product-related safety
issues, done by our Office of Information and Public Affairs.
I will explain each of these in a bit more detail.
Standards Activities
In the United States, there is a very well established and vibrant
system of voluntary--or what we prefer to call consensus--product
safety standards. Under the guidance of groups like the American
National Standards Institute, ASTM International, and Underwriters
Laboratories, who work to bring all stakeholders into the process,
literally thousands of such product safety standards have been written
and are continuously being revised. These standards cover everything
from the wiring in your toaster to the performance of baby walkers.
Thus, when Congress created the CPSC, there was a strong preference
in our statutes for deference to such consensus standards over the
promulgation of mandatory CPSC-drafted regulations. Indeed, CPSC staff
serves on many of the committees and participates in writing these
standards and routinely contributes to many more.
This system has worked well, and most U.S. product manufacturers
adhere to these standards. However, in those instances where we find
that consensus standards do not exist or are not adequate to address a
risk, the Commission will initiate rulemaking to develop a mandatory
product safety standard.
At the current time we have 14 rulemakings underway, including one
on all-terrain vehicle (ATV) safety, a product in which I know Chairman
Pryor, as well as Chairman Inouye, Senator Stevens and other Senators,
have been very interested. In fact, as the Chairman knows, the
Subcommittee held an important hearing last year on ATV safety.
Another of our current rulemakings relates to portable generator
safety, a subject in which Senator Bill Nelson has been very active, as
well as has Senator Cantwell. The CPSC has been aggressive in
disseminating our safety message on portable generators in states like
Florida and Washington during their severe weather over the past couple
of years, and we certainly appreciate the Senators' interest, support
and encouragement with these efforts as we proceed on both of these
rulemakings.
Product Recalls
Recalls occur for products that contain a defect that poses a
substantial product hazard or for products that violate CPSC-issued
mandatory safety regulations.
In Fiscal Year 2006, the CPSC announced 471 product recalls
(representing over 120 million individual products), an all-time record
for the agency. These recalls represented a wide range of consumer
products and product hazards. Two-thirds of these recalls were of
imported products, primarily from China.
Products that may be subject to a recall are identified through
reports from consumers, through our own investigations and through
reports from companies.
Under Section 15 of the Consumer Product Safety Act, companies are
required to report to the CPSC whenever they obtain information that
any one of their products fails to comply with an applicable consumer
product safety rule, contains a defect which could create a substantial
product hazard, or creates an unreasonable risk of serious injury or
death. If the Commission determines that notification is required to
protect the public, CPSC staff contacts the manufacturer, distributor
or retailer and works closely with the company to give notice and
undertake a recall or other corrective action voluntarily. CPSC staff
works to make certain that the notice and the corrective action are
executed in a manner that optimizes consumer safety as expeditiously as
possible.
If necessary, the Commission may order a company to undertake a
recall, after affording the interested party an opportunity for a
hearing as required by CPSC's governing statute. CPSC's experience
shows this to be a time-consuming and resource-intensive action;
voluntary recalls are preferred because they can be conducted more
quickly and offer more immediate protection to the public.
In addition to monitoring compliance with safety standards by
conducting field inspections of manufacturing facilities and
distribution centers, CPSC staff also conducts surveillance in retail
establishments and via the Internet to assure ourselves that recalls
have been effective in getting defective products off retail shelves.
Finally, because most of our recalls involve imported products, we
undertake both routine and targeted surveillance and sampling of
imported products at U.S. ports of entry, working in conjunction with
the Bureau of Customs and Border Protection.
Information and Education
Recalls are announced and other important product safety
information is disseminated through all forms of media to warn the
public of specific product hazards and advise consumers on more general
product use issues.
In addition, the agency maintains three websites that give
consumers and others access to all manner of product safety
information. Those sites are: www.cpsc.gov, www.recalls.gov, and our
newest website, www.atvsafety.gov, which is part of a very significant
information and education campaign now underway to advise consumers
about a number of ATV safety issues. Visits to CPSC's websites have
grown rapidly over the past few years from 200,000 in 1997 to over 20
million last year.
In an effort to communicate with hard to reach populations, the
CPSC initiated the Neighborhood Safety Network, a grassroots outreach
program that provides timely lifesaving information to 5,000
organizations and individuals who in turn share our safety message with
hard-to-target consumers.
Our outreach efforts include making our product safety information
available in Spanish. In fact, the CPSC maintains a Spanish language
website. We are also active in signing up Hispanic groups to our
Neighborhood Safety Network and reaching out through Spanish language
media outlets like Telemundo and Univision.
Our staff is also able to reach out to consumers to warn of
emerging hazards or when emergencies strike. For example, in response
to the devastating hurricanes along our Nation's Gulf Coast, the CPSC
partnered with the Florida, Mississippi, Alabama and Louisiana
Departments of Health, Federal disaster agencies, the Red Cross and
local emergency management agencies. We warned residents of the carbon
monoxide hazards associated with improper portable generator use and
also the dangers that consumers may encounter when returning to their
property, including electrical, gas and standing water hazards.
Information Technology and Data Collection
All of these activities require collecting reliable data on
product-related incidents and issues. And the CPSC collects a lot of
data, most notably through our National Electronic Injury Surveillance
System, or NEISS. NEISS is a statistical hospital-based product injury
reporting system widely regarded as the best such system in the world,
and which the Centers for Disease Control and Prevention and many other
Federal, state, local, and even international government agencies rely
upon to carry out their missions. We also collect data through our
website, www.cpsc.gov, our consumer hotline, medical examiner and
coroner reports, and a variety of media source reports. As mentioned
earlier, manufacturers and retailers are also required to report to us
on certain product-related incidents.
Obviously, CPSC's IT systems are central to the agency's safety
mission. As veteran CPSC employees retire, the IT infrastructure has
become increasingly essential to tracking and identifying emerging
hazards at a state-of-the-art level. Accordingly, to keep existing
systems operating and current, we are reallocating agency resources to
maintain, and where necessary replace, aging network infrastructure and
security features.
This reallocation will help the CPSC in collecting the quality data
that is essential to the agency's mission and that facilitates the
early identification of product hazards. Quality data is critical to
the agency's decisionmaking process as it relates to voluntary
standards development, compliance, consumer education, product
labeling, and rulemaking initiatives.
International Activities
Two-thirds of our recalled products are imports, and two-thirds of
those come from China. Recognizing the continuous and significant
increase in the number of imported consumer products entering the
American marketplace, the CPSC established the Office of International
Programs and Intergovernmental Affairs to provide a comprehensive and
coordinated effort to ensure greater import compliance with recognized
American safety standards. The CPSC is determined to make certain that
imports meet the same high safety standards that products manufactured
in America must meet.
However, we have found that many overseas manufacturers,
particularly those from the developing world, are either ignorant of
existing consensus and CPSC mandatory standards or simply choose not to
design and manufacture their products to those standards. While a
violation of a consensus standard does not, in itself, indicate a
product is unsafe, the growing number of imported products that do not
meet voluntary standards has strained our resources and challenged us
to find new ways to work to ensure the safety of products in the stream
of commerce.
To address the issues presented by imported products, the CPSC has
negotiated Memoranda of Understanding with a number of foreign
countries. These agreements generally call for close consultation on
product safety issues. We are also anticipating our second U.S.-Sino
Product Safety Summit this Fall, and in preparation for that, we have
established several bilateral product-specific working groups that are
developing concrete strategies for addressing the issue of unsafe
imports. We are also working with various associations and standards
groups to assure that a strong safety message is being delivered to
Chinese manufacturers and exporters.
Management Efficiencies
Despite its relatively small size throughout its history, the CPSC
has been highly effective and efficient at reducing product-related
injuries and deaths. Within the parameters of its available resources,
the challenge at the CPSC has always been to establish the highest
safety priorities among the 15,000 product types under the agency's
jurisdiction. The agency bears a broad responsibility, but with few
exceptions, the record shows that the CPSC has performed effectively
and efficiently in assuring the safety of the tens of thousands of
consumer products that enter American homes every year.
To keep the focus of our resources on our safety mission, we have
worked arduously to generate savings and implement efficiencies to
offset the cost increases that we confront annually. For example, the
agency has saved over $1 million dollars per year because IT
investments have allowed us to close field offices and support
teleworking. Additionally, the agency foresees savings in rent at our
headquarters in suburban Maryland as we begin to consolidate space to
accommodate lower staff levels.
I know that the Senators are aware of our staff levels, and as with
any organization, the challenge with fewer staff is to continue to
maintain the agency's high standards and to achieve the agency's
mission. With the help of management efficiencies and information
technology, we at CPSC are doing that, and we will continue to strive
to accomplish that because CPSC's safety mission is so critically
important to the health and well-being of America's families.
Mr. Chairman, the CPSC logo represents the gold standard of
consumer product safety, and I am proud of what the agency has
accomplished and of the many fine professionals at the CPSC who work to
keep hazardous products off the market. The staff at the CPSC is
talented and resourceful. They include epidemiologists, toxicologists,
engineers, chemists, and many others whose skills are highly sought and
highly rewarded by the private sector. However, like you, they have
chosen public service and serve no interest but the public interest. I
am pleased and proud to serve the American people with them.
Thank you for your support, and I look forward to answering your
questions.
Senator Pryor. Thank you.
Commissioner Moore?
STATEMENT OF HON. THOMAS H. MOORE, COMMISSIONER,
U.S. CONSUMER PRODUCT SAFETY COMMISSION
Mr. Moore. Thank you, Mr. Chairman, Mr. Ranking Member, and
members of the Subcommittee. I am here to provide testimony, as
you have noted, on issues related to the reauthorization of the
United States Consumer Product Safety Commission, CPSC.
The Commission, as you have stated, is charged by Congress
with the critical responsibility of protecting the American
public against unreasonable risk of injuries and deaths
associated with unsafe consumer products. Indeed, protecting
life is a crucial responsibility. Our work has resulted in an
almost 30 percent decline in the rate of deaths and injuries
related to hazardous consumer products since 1974.
It has been stated, I think, that despite significant
reductions there remains on average about 27,100 deaths and
33.1 million injuries each year related to products under our
jurisdiction. Moreover, the deaths, injuries, and property
damage associated with unsafe products cost the Nation over
$700 billion annually.
Now, CPSC is a staff-intensive organization, with nearly 90
percent of its funding allocated to staff compensation and
staff-related space rental cost. At the heart of CPSC's
operation is its staff, without question our greatest and most
important asset.
For Fiscal Year 2008, the President's request for our
agency is $63,250,000, which is an increase of $880,000 above
our Fiscal Year 2007 requested funding level, and will support
the agency at approximately 401 FTEs. The request for Fiscal
Year 2008 represents a reduction--a reduction--of 19 full-time
equivalents.
As in the previous 2 years, we estimate that we will again
be able to achieve these reductions through attrition, but we
have reached a point where all are very concerned about the
long-term impact of these continuous staff reductions on our
agency. There are indications that the cumulative 3-year staff
reduction of 15 percent, from 471 to 401, is going to make it
difficult for us to maintain the broad range of skilled staff
we need to address the full scope of injuries and deaths
related to the 15,000 types of products under our jurisdiction.
This erosion of our most valuable asset comes despite the
fact that we still have over 15,000 types of consumer products
under our jurisdiction; creative new technologies constantly
introduce potentially new product hazard issues; new consumer
uses for products originally created for commercial use are
being introduced; imports are increasing, many from countries
that may not have similar consumer product safety standards;
and, as I previously mentioned, despite the fact that we still
face over 27,000 deaths and over 33 million injuries each year
associated with consumer products under our jurisdiction.
I believe that regulatory policies should recognize that
the private markets are the best engines for economic growth.
Regulation, therefore, should be cost-effective, consistent,
sensible, and understandable. Whenever appropriate, we
encourage voluntary industry action to address safety
requirements.
I point out to you that in 2006 alone, the Commission
completed 471 cooperative recalls, 100 percent voluntary,
involving nearly 124 million consumer product units that either
violated mandatory standards or presented a substantial risk of
injury to the public. Since 1990 we have worked cooperatively
with industry to complete 352 voluntary safety standards while
issuing only 36 mandatory safety standards. That is nearly a 10
to 1 ratio.
Effective voluntary action--effective voluntary action--is
always preferable. However, if safety is not the goal of a
certain industry or manufacturer, the commission must stand
ready to protect the consumer expeditiously and without
compromise. The key to the Commission's continued success is
funding--is funding--to successfully continue the mission of
the agency. The commission must have the resources to respond
quickly and effectively where the lives and health of the
American public are at risk.
I thank the Subcommittee for allowing me to address my
concerns at this hearing, and I look forward to working with
you and your staff in this reauthorization process. Thank you
very much.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of Hon. Thomas H. Moore, Commissioner,
U.S. Consumer Product Safety Commission
Mr. Chairman and Members of the Subcommittee, I appreciate the
opportunity to appear before you today to provide testimony on the
United States Consumer Product Safety Commission (CPSC). The Commission
is charged by Congress with the critical responsibility of protecting
the public against unreasonable risk of injury and death associated
with consumer products. This is a crucial responsibility because, often
without CPSC's intervention, the consequences of exposure to the
hazards associated with dangerous products may literally be of a life
and death nature for individual consumers unknowingly in possession of
unsafe consumer products.
As you are aware, CPSC has not been reauthorized since 1992 and has
not had a reauthorization hearing before this body since 2003. Although
these proceedings could be an exceedingly intensive undertaking for the
CPSC, I welcome this reauthorization process because I believe it
presents a unique and much needed opportunity to focus on the
Commission's present and future agenda.
The Mission
In examining the legislative history of the statute creating the
CPSC 30 years ago, we find that Congress, in its wisdom and foresight,
was concerned about technological advances creating a variety of new
products with greater potential for injury which would be less easily
recognized and comprehended by the American consumer. Congress
recognized that the dramatically increasing number of consumer
products, and the consumer's increasing reliance on more complex labor
saving and recreational devices, would create increasing risk of injury
from their use. Additionally, continuing product development
demonstrated that previously acceptable risk levels were no longer
reasonable in light of available safety technology.
Today, the risk of injury and death from unsafe consumer products
continues to be enormous and costly. CPSC's mission is to protect
children and families against unreasonable risk of injury and death
from about 15,000 types of consumer products. Our work has contributed
significantly to the substantial decline in the rate of deaths and
injuries related to hazardous consumer products since the agency's
inception. However, despite significant reductions over the years,
there remains on average over 27,100 deaths and 33.1 million injuries
each year associated with consumer products under CPSC's jurisdiction.
Today, our reliance on consumer products in our lives is tremendous
and growing. We rely on manufactured electrical and mechanized devices
to assist us in too many of life's activities to mention--at play, at
work, in education, in travel, and particularly inside and outside of
the home: in food preparation, in cleaning and making repairs around
the home, in child-care, in trimming trees and grass, and on and on and
on. To further complicate matters, we are beginning to see that more
and more of these products are being manufactured abroad.
It is suggested in some circles that the modern, sophisticated
marketplace of today can effectively regulate itself for product
safety. I strongly submit that the previously discussed justification
for governmental involvement in the protection of the consumer's right
to safety is even more compelling today than it was more than 30 years
ago. Simply stated, competition and voluntary actions of today's
businessmen do not always suffice to safeguard the public interest.
Competition does not and will not inevitably take the form of a rivalry
to produce the safest product. The role of the CPSC in today's consumer
product marketplace remains compelling, substantial and relevant.
CPSC's Budget and the Impact of Staff Reductions
For Fiscal Year (FY) 2008, the President's request for our agency
is $63,250,000 which is an increase of $880,000 above our FY 2007
requested funding level and will support the agency at approximately
401 FTEs. If measured against our FY 2007 authorized FTE level, the
request for FY 2008 represents a reduction of 19 FTEs. As in the
previous 2 years, we estimate that we will again be able to achieve
these reductions through attrition, but we have reached a point where
we are very concerned about the long-term impact of these continuous
staff reductions on our agency. There are indications that the
cumulative three-year staff reduction of 15 percent, from 471 to 401,
is going to make it difficult for us to maintain the broad range of
skilled staff we need to address the full scope of the 15,000 products
under our jurisdiction.
CPSC is a staff intensive organization with nearly 90 percent of
its funding allocated to staff compensation and staff-related space
rental costs. At the heart of CPSC's operation is its staff, without
question, our greatest and most important asset. Over the last few
years, because we have achieved our budget required staff reductions
through non-targeted means such as attrition, early-outs and buy-outs,
we have lost some very key staffers. For example, just to name a few,
we have lost key experts in these areas:
Poison Prevention,
Chemical hazards as they relate to the Federal Hazardous
Substances Act,
Compliance of toys,
Drowning prevention,
Data collection and analysis,
Emerging hazards,
Fire-related hazards, and
Legal knowledge of CPSC's regulatory process.
Over time we hope to be able to train replacements, but the
experience in these areas that we have lost will take years to recover.
Moreover, our ability to do succession planning is severely limited
because of a lack of resources and our inability to have depth of
personnel behind our key positions (no bench). In addition, dwindling
resources and staff reductions have had some negative impact on our
agency's ability to attract high level qualified candidates for our
critical vacancies as well as our ability to retain some of our own top
level employees.
There is no doubt that the President's funding proposal for FY 2008
presents challenges, particularly in light of the fact that this would
be our third consecutive year of staff reductions. As I have indicated,
since FY 2005, CPSC has been forced to reduce its funded FTE level by
15 percent from 471 to the FY 2008 proposed level of 401. This erosion
of our most valuable asset comes despite the fact that we still have
over 15,000 types of consumer products under our jurisdiction; creative
new technologies constantly introduce potentially new product hazard
issues (nanotechnology, Internet sales); new consumer uses for products
originally created for commercial use are being introduced (portable
gas powered generators); imports are increasing, many from countries
that may not have similar consumer product safety standards (ATVs,
cigarette lighters); and, as I previously mentioned, despite the fact
that we still face over 27,100 deaths and over 33.1 million injuries
each year associated with consumer products under our jurisdiction.
Our Field Division, which was combined with the Office of
Compliance in 2005, has probably been the most affected. Since
September of 2003, we have lost 43 people in the Field, 30 of which
have not been replaced. Another 15 people left Compliance, six of whom
were not replaced. One of the important duties of our Field staff was
to provide outreach to local communities. We had public affairs
specialists throughout the country that would appear on local
television and radio shows, getting the Commission's message out at the
local level. They would network with local affiliates of national
organizations, such as Safe Kids, and make presentations to many
different types of community groups. This was in addition to doing work
for our Hazard Identification Division and doing work for Compliance
(including trying to monitor the growing influx of imports at our port
cities). In other words, they used to serve all three main areas of
Commission work. Now they are primarily an investigative arm of
Compliance. Their ability to do outreach at the State and local level
has been largely eliminated. We lost creative, aggressive public
relations specialists in the Field who had developed contacts over many
years because they did not want to become mere investigators. I don't
think we can be effective doing all of our outreach and education and
information campaigns from headquarters, over the Internet or through
our Neighborhood Safety Network. But, the reality is that we can no
longer afford to do all we use to do to serve the American public and
this is an area that has suffered greatly.
Addressing Product Safety Hazards Through Enforcement
Aside from using its rulemaking authority, CPSC can act forcefully
and quickly to remove dangerous products from the marketplace through
two main enforcement activities. The first is in vigorously enforcing
its current regulations; and the second is in utilizing its Section 15
authority to achieve recalls or corrective action plans when it is
believed that a product meets the level of a substantial product
hazard. I point out to you that in 2006 alone, the Commission completed
471 cooperative recalls (100 percent voluntary) involving nearly 124
million consumer product units that either violated mandatory standards
or presented a substantial risk of injury to the public.
In addition, CPSC staff, working with the U.S. Customs and Border
Protection (CBP), prevented about 2.9 million noncompliant cigarette
lighters and fireworks from entering the U.S. and also prevented
434,000 units of toys and other children's products from entering the
country. Unless interdicted, those goods would have competed with U.S.
manufactured products, often undercutting them on price because the
foreign manufacturers did not bother complying with our safety
regulations. Our efforts to keep these violative products out of the
marketplace protect not only the American consumer, but the American
manufacturer as well.
In the future, the problems associated with increasing numbers of
possibly dangerous imported products will present the Commission with
more and more of a challenge. Increasing numbers of U.S. companies are
either importing finished products or component parts made in other
countries or establishing their own production plants outside of the
U.S. In most cases, domestic companies are not going to have the same
degree of control over these products as they would have if their
products were being made in this country. This inability to have
constant hands-on supervision can result in products entering this
country that do not meet U.S. safety standards.
When products are required to meet a Federal mandatory standard, we
can try to stop them at their port of entry before they get into the
hands of consumers. CBP is very cooperative in helping us identify and
sequester products that are potentially violative. However, both CBP
and CPSC have limited manpower to inspect and test these products,
relative to the tens of thousands of shipments that arrive daily at
U.S. ports. Additionally, CBP has a much broader national security
mandate that takes much of its resources.
We currently have five people cleared to use the CBP's computer
system, the Automated Commercial System (ACS) database, and perhaps a
total of 15 people to go to various ports around the country to inspect
shipments that have been identified as possibly not meeting our safety
standards. These inspectors do this in addition to the many other
responsibilities that they have. CPSC simply doesn't have the personnel
to do more than a cursory look at imports coming into this country. As
I have indicated, in the last several years we have lost 30 Field
personnel, largely as a result of budget cuts, who we have not been
able to replace. This has impacted our entire Field operation,
including port inspections. The new CBP computer system will help, but
nothing can substitute for actually examining a shipment. Thus, we are
frequently left to deal with products after they are in the stream of
commerce, through our recall mechanism, which can often come after the
product has already injured consumers.
Requiring a manufacturer, distributor or retailer to recall
defective products is a primary mechanism in CPSC's continuous
undertaking to address product safety hazards. However, announcing the
recall is just one step in an overall process of eliminating the
hazards presented by unsafe products in consumer's homes. We also have
some responsibility to take all reasonable steps to ensure the removal
of those unsafe products from potential consumer use. Given the
limitations presented by CPSC's resources, it is tremendously important
that the Commission maximize the effectiveness of this particular
aspect of the recall process.
Another issue in the enforcement area lies within the civil penalty
arena. I have supported, and continue to support, the elimination of
the monetary cap on civil penalties. While the cap does rise
periodically, the reality is that a $1.825 million fine means very
little to many of the corporations we regulate. Why do we need a cap at
all? While Congress may want to take another look at the guidance given
to us in the form of factors we shall consider when determining the
amount of a civil penalty, we should not have any limit on the amount
we can seek. It is one thing to limit the amount one consumer can
recover against a company (and not a position I necessarily support
either), but it is quite another to limit the government's ability to
penalize a company on behalf of all consumers, thereby limiting the
deterrent effect of civil penalties. Perhaps some companies would be
less likely to try to stall our agency by putting off reporting
hazardous products if we had penalties that were more commensurate with
the harm they can cause.
CPSC's Important Safety Work Must Continue
By most current measures, CPSC still provides both tremendous
service and tremendous value to the American people and we are very
proud of our staff's accomplishments. Our agency is the major factor in
the substantial decline in the rate of deaths and injuries related to
consumer products since 1974. During that time, through our standards
work, compliance efforts, industry partnerships, and consumer
information, there has been a 45 percent reduction in residential fire
deaths, a 74 percent reduction in consumer product-related
electrocutions, a 47 percent reduction in consumer product-related
carbon monoxide deaths, an 82 percent reduction in poisoning deaths of
children younger than 5 years of age, an 84 percent reduction in baby
walker injuries and a 89 percent reduction in crib-related deaths.
Moreover, in FY 2006, we informed the public of hazardous products
through 435 press releases, 12 video news releases and more than 1
million distributed publications while conducting about 500 television
and radio interviews. CPSC also warned the public about product-related
hazards through our hotline and consumer product safety information
websites (www.cpsc.gov, www.recalls.gov, www.atvsafety.gov), which
reached over 21 million consumers in 2006, and other outreach
activities such as the Neighborhood Safety Network (NSN). The NSN
outreach goal is to reach underserved consumers who may not routinely
receive important safety information due to lack of access or exposure
to the general means that we use to disseminate our safety messages and
warnings.
Additionally, in FY 2006, the Office of Management and Budget (OMB)
reviewed CPSC using their Program Assessment Rating Tool (PART) and
assigned us a rating of ``Effective.'' This is the highest rating a
program can achieve and signifies that, based upon OMB's criteria; CPSC
sets ambitious goals, achieves results, is well-managed and improves
efficiency.
These numbers and activities by themselves demonstrate the
indisputable consumer product safety role that the Commission continues
to perform for the American consumer despite our shrinking resources.
However, we have to be mindful of the fact that resource limitations
and staff reductions have challenged and will impact our ability to
fully respond to consumer product safety issues presented by the broad
range of products under our jurisdiction. For example, with respect to
FY 2008, although we will continue our work in reducing child drowning
deaths at the annual project level, we will no longer address this area
at the level of a strategic goal because resource limitations is a
factor. At some point in the future, the Commission will make the
ultimate determination but additional projects that could be delayed/
deferred in the FY 2008 budget include:
Bedclothes flammability,
Development of projects dealing with emerging hazards such
as consumer electronics,
Support for voluntary standards and code revisions for fire
sprinklers, lighting, ladders and ride-on mowers,
Data analysis and technical review activities for smoke
alarms, extension cords, temperature controls, glass top
furniture, children's scald burns, child gate latch durability,
and toy impact resistance guidance.
We at the Commission strongly feel that many, many deaths and
injuries have been prevented as a result of the heightened attention
given to safety issues by manufacturers and consumers due to CPSC's
leadership. The product safety landscape is ever evolving because of
more technologically complex products as well as a greater emphasis on
imports. The results of our activities clearly illustrate the benefits
of CPSC's Federal presence in today's consumer product marketplace and
therefore provide substantial justification for present and future
consideration for keeping our safety programs intact.
Emerging Technologies
The American consumer wants everything electronic to be smaller,
faster, longer-lasting and more powerful. Nowhere is this more evident
than in energy storage devices for cell phones, laptops, PDAs and other
portable electronic devices. One result of this trend is the lithium-
ion battery which first appeared commercially in 1991. Over time we
have seen problems develop with the use of these batteries when, for
example, they are put into too small a space or the device they are in
is dropped. CPSC, in conjunction with several companies, recalled more
than four million laptop batteries last year because of overheating
which either did, or could, lead to a fire. The chemical configuration
of the lithium-ion battery is constantly evolving, with changes being
made every few months. It is challenging for the battery manufacturers
themselves to keep up with the developing technology, let alone the
CPSC.
Another innovation finding its way into batteries and thousands of
other products is nanotechnology. This is the ability to alter and
create materials at the sub-atomic level. The physical properties of
materials can change as they shrink to nanometer size. How to determine
what human health and safety risks these changed materials may pose
when used in consumer products will be a major challenge for our
agency. I do not pretend to understand nanotechnology and our agency
does not pretend to have a grasp on this complicated subject either.
For Fiscal Year 2007, we were only able to devote $20,000 in funds to
do a literature review on nanotechnology. Other agencies are asking
for, and getting, millions of dollars for research in this area. Given
the many products already on the market using nanotechnology, from
computer chips to Dockers pants, I do not think
it will be too long before the agency is asked to assess the risks of
nanotechnology use in some consumer product under our jurisdiction. At
this point in time we would be hard-pressed to make such an assessment.
We simply do not have the resources to get up to speed in this area. We
are forced to devote our limited resources to the hazards with which we
have experience, such as fires, carbon monoxide poisoning and
electrocutions.
Our main challenge, no matter whether it is keeping up with imports
or understanding new technologies, is resources. When forced to make
hard choices we have to opt for what it is possible for us to
accomplish, given the personnel we have and the limited dollars we have
to spend. We do not have the luxury of getting ahead of a problem, we
have to wait until one develops and then try to solve it, usually after
it has killed or injured consumers. This dilemma is causing many
sleepless nights for some CPSC staffers. With the help of the
administration and Congress, we have to get beyond our present posture
of thinking of how we can do without and move to the position of
thinking of what more we can do.
Present and Future Activities
I strongly feel that the role of the Commission is essential to the
U.S. marketplace in an increasingly competitive international
marketplace. The Consumer Product Safety Commission and the marketplace
must work together to develop international consumer product safety
standards and enforcement compatibility so we can enhance international
trade and export opportunities without lowering U.S. safety standards.
With approximately three-quarters of our recalls comprised of
foreign manufactured products and over half of total recalled products
originating in China, CPSC must establish a definitive strategy for
increasing compliance of foreign manufactured products with U.S. safety
standards. With that goal in mind, the Commission established the
Office of International Programs and Intergovernmental Affairs. Through
the efforts of this office, CPSC has signed 12 Memoranda of
Understanding with its government counterparts abroad, including China.
These agreements seek to establish closer working relationships between
the signatories, as well as provide a formal mechanism for exchange of
information. Interdisciplinary technical teams have also been
established to determine in what areas Chinese manufacturers are more
consistently noncompliant and to develop strategies for increasing
compliance in those areas. In addition, other strategies for increasing
the compliance of imported products with U.S. safety standards are
being evaluated.
Conclusion
In closing, while I believe that consumers must take responsibility
for their own safety, there clearly is a role for the CPSC to assure
that products are designed safely and recalled where there is a
problem. I think that consumers should be informed about the products
they purchase and take reasonable care in using them. Mr. Chairman, I
believe that our government is now attempting to move into a new era of
accountability. It is my hope that this will be an era where well
reasoned, and I emphasize the word reasoned, government action will be
the rule, and not the exception.
I also think that reasoned Commission action reflects a pragmatic
approach to resolving safety problems and recognizes that regulation is
only one of many options that can be employed to address safety issues.
We will work actively to achieve safety goals, and I expect, as is
often the case, industry will respond reasonably. But, if safety is not
the goal of a certain industry or manufacturer, the Commission stands
ready to protect the consumer expeditiously and without compromise.
As Congress envisioned more than 30 years ago, the Commission
should have the capability to handle increasingly technologically
complex products as well as the capability to uncover high injury risks
and defective products using today's sophisticated data sources. To
successfully continue the mission of the agency, the Commission must
have the resources and the flexibility to respond quickly and
effectively to critical situations where the lives and health of the
American public are at risk.
I would like to thank the Subcommittee for allowing me to address
my concerns at this hearing and I look forward to working with the
Members of the Committee and its staff in this reauthorization process.
Thank you.
Senator Pryor. Thank you, and thank you both for keeping
your comments to 5 minutes. Senator Sununu has to leave in just
a few moments, so normally I would start by asking questions,
but I'll let him go first because he has some scheduling
constraints.
Senator Sununu?
Senator Sununu. Thank you, Mr. Chairman. In truth, Senator
Pryor wants me to go first because he thinks all my questions
are softballs----
[Laughter.]
Senator Sununu.--so we're going to give you an opportunity
to warm up a little bit----
Senator Klobuchar. Exactly.
Senator Sununu.--and then he'll come in with the heavy
artillery.
Senator Pryor. Yes. Once we get him out of the room, we'll
get some things done around here.
[Laughter.]
Senator Sununu. Ms. Nord, as I understand it, the
commission currently doesn't have a quorum under which it can
operate, and you pushed for a number of action items prior to
losing that quorum in January. Are there any pending items, or
items you see on the horizon, that you think aren't being
addressed at the moment because of the lack of a quorum?
Ms. Nord. Senator, you are correct. The commission does not
have a quorum by operation of our statute. We did anticipate
that we would go for a period of time without a quorum. That
has happened in the past, and indeed prior to my confirmation
the commission I think went for five or 6 weeks without a
quorum.
So it is something that we're familiar with, and we do plan
when we anticipate that this is going to happen. Prior to
losing the quorum, we pushed out, if I may use that phrase, a
number of regulatory proposals, including a very important
final rule dealing with generator safety, an advance notice of
proposed rulemaking which would potentially ban lead in
children's jewelry, and a number of other regulatory
proceedings.
Because we pushed those proposed proceedings out there, we
are now at this point collecting comments from the public, and
the staff is doing their work. So right now, today, if we had a
quorum, there really wouldn't be anything teed up for
commission action. However, as months pass and the staff does
their work on these issues, there will become issues that will
be ripe for commission action, so it really is very important
for us to get our quorum back.
Senator Sununu. When does it become a problem?
Ms. Nord. I would be giving you an off the top of my head
response, sir, because each of these regulatory proceedings is
different from another, but I am not aware right now of any
proceeding that is ripe for action, that is sitting there
waiting for the commission to vote. But, again, that's
dependent on how quickly the staff does their work and tees
these things up.
Senator Sununu. In your testimony you talked about the
importance of IT, information technology, and data collection.
How much of your budget do you put into IT and data collection
efforts?
Ms. Nord. This is the very first time that the commission
has put in place a line item, if you will, a part of its base
that is allocated to information technology, which I just find
very, very surprising. The way we have done this in the past is
basically pull from savings, and it has been a rather ad hoc-
ish way of proceeding. But this year, because IT is so
important, and because it is getting so much more important,
these are really critical tools that we need in order to do our
job, so we have really got to plan for this.
Senator Sununu. What is the amount of the----
Ms. Nord. It's $1 million.
Senator Sununu. $1 million? So 3 percent?
Ms. Nord. It's $1 million, and frankly, sir, what that does
is allow us to maintain our current systems, to replace
hardware on a schedule, to make sure that our software licenses
are up to date.
Senator Sununu. How does that compare with other Federal
agencies? I would imagine that would be dramatically lower.
Ms. Nord. I would have to come back to you with that
information.
Senator Sununu. What are the most effective and/or most
important pieces of information technology or data collection
that you are using at the moment?
Ms. Nord. Information technology has allowed us to become
much, much more efficient than we were in the past. We have
automated a number of our processes, and consequently are able
frankly to do more with less.
Senator Sununu. In what areas, for example?
Ms. Nord. Well, to give you a couple of examples, Section
15 of the Consumer Product Safety Act requires people to report
potentially dangerous products to us. We have tried to automate
all that reporting, the data collection, and the data
distribution within the agency, and that has resulted in a
much, much quicker processing of these Section 15(b) reports.
Senator Sununu. When did that begin? How long have you
been----
Ms. Nord. I'd like to come back to you. My recollection is,
it's about 18 months ago, but I'd like to come back to you with
a precise answer.
Senator Sununu. That would be fine.
Ms. Nord. Another example, we have people, State and local
officials, who partner with us in all 50 states, and we
contract with them to basically help us be another set of eyes
and ears on the ground, if you will. And we have now automated
the reports that they send us, so that they are coming in on
the web, and that has made again the processing of that
information so much more efficient. It's coming in
electronically and it's coming in consistently.
Senator Sununu. And that has happened, similarly, in the
last year to 18 months?
Ms. Nord. Again, I'd like to get back to you, but that is
my recollection.
Senator Sununu. Thank you very much.
Thank you, Mr. Chairman.
Senator Pryor. Now we also have a circumstance where
Senator Klobuchar has to preside in the Senate here in the next
few minutes, so we're going to let her go next.
Senator Klobuchar?
Senator Klobuchar. Thank you, Mr. Chairman.
I wanted to follow up a little bit on the issue of the
quorum that Senator Sununu raised. We're going on 3 months--is
that right?--without a quorum.
Ms. Nord. We lost the quorum on January 15th.
Senator Klobuchar. OK, and you have acknowledged that there
are these growing threats with technology and some of the new
changes that are going on, and I would think that there would
be some circumstances where some new threat would come up. It
may not be something that you would have to hear in a matter of
days, but you must have some opportunities and some ability to
take some kind of emergency action, and I just don't understand
how you can do this when you don't have a quorum.
Ms. Nord. Right now we are continuing to conduct recalls at
a record pace, and frankly that is the mechanism that we use to
address those kinds of issues. And those are done at the staff
level, so----
Senator Klobuchar. Well, then, what does the Commission do?
I mean, if you're doing all of this at the staff level, I would
think the major decisions about rules and changes going forward
within the ever-changing world of technology, would need a
quorum. I practiced law in the regulatory area in Minnesota,
and I just was never familiar with this, where we had an agency
that didn't have a quorum.
Ms. Nord. Well, as I indicated, unfortunately this is a
situation that we have had to deal with from time to time. The
commission votes on regulations. We vote to issue subpoenas,
and a subpoena is generally issued after a fairly extensive
back-and-forth between the staff and whoever is being----
Senator Klobuchar. So you would not have any opportunity to
issue subpoenas now when you don't have a quorum.
Ms. Nord. That's right, but we also don't have any of those
cases teed up.
Senator Klobuchar. OK.
Ms. Nord. We cannot accept settlements of more than
$50,000. However, again, before we lost the quorum, the
commission delegated to the staff the authority to accept
settlement amounts on four particular cases that were in the
final processes of being negotiated, so we tried to again
address that concern.
The commission would have to vote or would have to have a
proceeding to determine that we had an imminent hazard, and
that may be what you're addressing. However, in the history of
the commission I think there has only been five instances where
we have had an imminent hazard.
Senator Klobuchar. Do you know what those instances are?
Ms. Nord. I don't, but I'll surely get back to you.
Senator Klobuchar. I mean, I'm just picturing if we were at
a place in time, we would certainly want to have a quorum to
deal with them.
I just want to follow up on something you just said about
the record number of recalls. I would think, then, that this
shows that the risk of consumer products is going up, not down,
and especially when we see, as I mentioned, these products
coming in, the imports coming in from places, primarily China.
I am still very confused about why we would be seeing staffing
levels going down when you have these kinds of clearly rising
problems.
Ms. Nord. With respect to whether more recalls indicates
more unsafe products, what I think it actually indicates is a
couple of things: First of all, a growing economy, more people,
more products, so you would expect to see that. It also shows
that the current legislative strategy that was envisioned in
the Consumer Product Safety Act 35 years ago is working quite
well.
Not only have we had a record number of recalls, ma'am, but
we have also had a record number of reports under Section
15(b), which means that more and more companies are reporting
to us, and we are then basically going through those reports,
making determinations: this is a problem, this isn't a problem.
So frankly it shows that the Commission is really doing its job
very effectively.
Now as to how we do that with fewer people, as I indicated,
part of the answer to that is the fact that we are becoming
much, much more efficient at doing this. Technology, I can't
emphasize to you enough how important technology is to us in
doing our job.
Senator Klobuchar. Mr. Chairman, if I could just ask one
more question? I'm going to view that as a ``yes.''
[Laughter.]
Senator Klobuchar. That was a little joke, Mr. Chairman. I
was just asking if I could ask one more question.
Senator Pryor. Ask away.
Senator Klobuchar. Thank you.
You know, I appreciate your kind words about your staff and
being more efficient, but when you look at the fact that some
of these products are even getting in the hands of kids and
people in our country, I think that points us toward this issue
of import surveillance. My understanding is that CPSC has very
limited import surveillance.
What I'd like to see is that we would be catching these
products before they get into the hands of the public, and that
the current Office of International Programs is not enough to
do this. Could you comment on that?
Ms. Nord. Yes. I think imports is one of our biggest
challenges, and it's something that we really need to do more
work to get our hands around. The number of imports has
burgeoned over just the last couple of years, and it is a
challenge for us.
We are trying to address it in a couple of different ways,
ma'am. First of all, we do have a good, strong, close working
relationship with Customs, and I would like to make sure that
that relationship is even closer. We have CPSC people in the
major ports. For example, out in Long Beach our CPSC Compliance
Officer is a former Customs agent, and she works very, very
closely with Customs out in Long Beach, which is the major port
where these products are coming in.
We are also now in the process of entering into a
relationship with Customs whereby we will become authorized to
use what's known as their Automatic Commercial Environment,
which is basically a computer system of all shipments that are
coming into the United States. Obviously, we need security
clearance to do that, and we've got five or six of our customs
people already cleared to begin using this process. We've been
doing it informally, but we're going to now formalize that
arrangement and expand it so that we have a better sense of
what shipments are indeed coming in and we can pinpoint them
more precisely for Customs to inspect.
But the biggest challenge and the biggest--well, the best
way to solve this problem is to make sure that the unsafe
products don't ever get onto the boat and come to the United
States, and that really is the challenge. We've got to work
with the Chinese government and other foreign governments to
make sure that their manufacturers have the same sense of their
responsibility here as U.S. manufacturers do. There are things
that we can do and are doing with the Chinese government, and
frankly there may be some statutory changes that need to be
made in order to beef up our authorities there.
Senator Klobuchar. Thank you.
Ms. Nord. Thank you.
Senator Pryor. Thanks, Senator Klobuchar.
Let me ask, if I may, about the budget that you're under.
Madam Chair, I understand that you support the President's
budget but you would also like to see an increase in funding.
Is that fair to say?
Ms. Nord. As the Chairman of the CPSC, I support the
President's budget, sir.
Senator Pryor. And what about an increase in funding?
Ms. Nord. If you were to increase our funds, I could
certainly put them to good use.
Senator Pryor. Yes. And if there is not an increase in
funding, you're going to have to cut employees, as I
understand?
Ms. Nord. The budget request supports 401 full-time
employees.
Senator Pryor. Right, and you'll lose some, I guess, 19
employees. I assume that you're going to tell me that you are
better equipped to do your mission if you have more employees.
Is that fair to say?
Ms. Nord. Not necessarily. I think we need to make sure
that we put our resources to the best use. In some cases it may
be that technology is where we want to go. I mean, more people
doesn't absolutely mean better compliance or better carrying
out of our mission. I think we have to make sure that we've got
the right mix there.
Senator Pryor. Well, I understand the sort of hypothetical,
general nature of your comments there. We're talking about the
here and now with your agency.
Ms. Nord. Yes.
Senator Pryor. Would you be better served with more
employees or not?
Ms. Nord. Again, if we have more employees, I can put them
to good use.
Senator Pryor. OK. And do you think that you can make up
for the loss of employees by better technology? I'm talking
about this year.
Ms. Nord. Technology is absolutely critical.
Senator Pryor. I understand that, but I'm talking about
this year. Can you make up for the loss of personnel with more
technology?
Ms. Nord. Sir, with 401 employees and--well, with the
budget request that the President put to the Congress, we will
do the job that we laid out in the budget. If you give us more
employees, we presumably will do more. However, I just have to
emphasize to you that we need to make sure that we have got the
technical and the technology capabilities to have those
employees working as efficiently as they possibly can.
Senator Pryor. Well, you've been there 2 years. Are they
doing that or not? Do you have the technology or not? I'm
really not trying to argue with you. I'm trying to help you out
here.
Ms. Nord. Yes, I understand that.
[Laughter.]
Senator Pryor. I'm trying to increase your budget. I mean,
I've been talking to colleagues in the Senate about trying to
help CPSC. To me it's an agency in distress. I'm trying to get
you some more money here, some more resources, but you tell me
you don't need them?
Ms. Nord. Let me tell you what I would do with more.
Senator Pryor. In other words--let me stop here.
Ms. Nord. OK.
Senator Pryor. Let me ask the other Commissioner for his
perspective on that.
Would you like to see us, if we could find the money in the
budget, would you like to see us increase your budget?
Mr. Moore. Very definitely.
Senator Pryor. And if we could get you more employees,
would you be more able to do your job?
Mr. Moore. Without question.
Senator Pryor. And I understand the President's budget, and
I understand how the budget works here, but if we could do
that, in my view I think American consumers would be well-
served. Do you agree with that?
Mr. Moore. Absolutely.
Senator Pryor. OK. Let me move on, then, because I
understand you're an administration appointee, and I understand
sometimes you don't want to be in a position of conflicting
with what the President's budget request is. But it seems to me
that when you answered Ms. Klobuchar's question--and I'll go
ahead and ask you, Madam Chair--it seems to me when you
answered Ms. Klobuchar's question about imports--she called it
import surveillance--about imports, it seems to me that you're
in a much stronger position to monitor the imports if you have
more people to do it.
In other words, it seems to me, just as someone on this
Committee, that you're shorthanded already. It's very hard for
you to do your core mission already. And when you're faced with
these enormous number of imports coming in, it seems to me
you're better served by having more people to do that. Is that
fair to say?
Ms. Nord. Certainly we could put more people to work but,
sir, that is only part of the answer. We need to make sure that
we've got people working with the Chinese government to put in
place strategies that are going to prevent unsafe products from
getting on the boats and coming to the United States in the
first place. And that is, I think, as important a part of the
answer as it is having people----
Senator Pryor. Let me ask this: Are you working on that
right now?
Ms. Nord. We are.
Senator Pryor. OK, and are we making any progress there?
Ms. Nord. We are making some progress. We are going to be
sitting down in May for some major negotiations with the
Chinese government on a whole series of types of consumer
products. In the fall the Chinese government is going to be
coming to Washington for the Second U.S.-Sino Safety Summit. I
am hopeful that in the fall I can come back to you and report
to you that we have made progress but, as I'm sure you know,
sometimes in negotiations with the Chinese, you count progress
in small steps.
Senator Pryor. Yes, exactly. I mean, I think that's great.
I think it's great you're meeting with them, but in the
meantime I'm going to do my best to try to get you some more
resources so you can do your job.
Now let me ask--you mentioned, both of you in your
testimony basically said that recalls are at a record level. I
just want to tell you all, when I was the Attorney General of
Arkansas, we had an experience in our house where someone saw
one of our baby strollers or car seats, and it had been
recalled, and we didn't know about it.
And so I talked to my staff in the Attorney's General
office--this is five, six, 7 years ago now--and actually we
worked with the CPSC, with NHTSA, and with the FDA, I believe,
and we did a deal where we hooked onto you all's websites and
made that information available. And then what we did is, we
publicized it all around the State of Arkansas to tell people
there's one place to go for child product safety. We called it
childproductsafety.com. There's one place to go. In fact,
they're still doing it in the AG's office.
And so I think what you all do is very valuable, I think
it's very helpful. I think sometimes it's hard for people to
find the information, and I would encourage you all to just
consider ways to make that information more readily available.
That's one of the challenges I think you face.
But let me talk, if I can, about your facilities. I
understand your lab is dilapidated, it's old, it needs
improvement. Mr. Moore, let me ask you. Tell me about the
condition of the lab. It's in Gaithersburg, Maryland, right?
Mr. Moore. Yes.
Senator Pryor. Tell me about the condition of the lab.
Mr. Moore. Well, I'd have to review it again. I haven't
been out there in a while. But in terms of the work that the
staff does out there, I think it's very effective. There's a
continuing need for equipment, but I don't know precisely what
that equipment would be without consulting with the staff out
there.
Senator Pryor. For their expertise?
Mr. Moore. Yes, yes, yes. I know we have a storage facility
out there which is overfilled at this point, and it's a growing
need. It's a growing need that grows over time. And if you
don't mind, I'd like to talk with those people out there and
get back with you.
Senator Pryor. Sure, that would be great.
Madam Chair, do you know anything about the lab, the
facility?
Ms. Nord. Yes, sir. Our laboratory facilities are located
in Gaithersburg, Maryland. They are on a 1950s former Nike
missile tracking site. It is not a very efficient operation
from a physical layout standpoint. Our staff does a fabulous
job in making do with resources that I frankly think are not
adequate.
We have had conversations with GSA over the past several
years. GSA has been doing some band-aid type fixes to the lab.
We were in GSA's budget back in, I believe, 2005 perhaps, for a
major overhaul of the lab. Unfortunately, Hurricane Katrina
happened, and those kinds of resources are now being redirected
in other places.
So we have been having ongoing conversations with GSA to
try to fix this problem. Those conversations are going on right
now, and I would like to come back to you in about 6 weeks to 2
months and sit down and brief you.
Senator Pryor. That would be great. I'd like you to do
that. One last question before I turn it over to Senator Thune
and let him ask questions. On the issue of the quorum, and I
know we've talked about that already, would this all be solved
if we went back to having five commissioners? It seems to me
that would help, that you wouldn't get in these gaps where you
are losing a quorum. Would that help?
Ms. Nord. Five commissioners would certainly mean that we
wouldn't lose our quorum unless something extraordinary
happened.
Senator Pryor. Do the two of you think we at least should
consider putting five commissioners on this agency, given the
breadth of the things that you do and the number of things that
you do?
Ms. Nord. Sir, I have not thought about that in any sort of
hard way, and I'd like to do that before responding.
Do you have----
Senator Pryor. Mr. Moore?
Mr. Moore. Not at this point. I agree with her that we
ought to look at it more carefully before we put something on
the record on it.
Senator Pryor. OK.
Senator Thune?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman, and I appreciate
you holding this hearing. Oversight is obviously an important
part of the job that we do here in the Congress, and so I
appreciate our witnesses being here today. I want to welcome
Commissioner Moore and Chairman Nord, who is a native South
Dakotan. Nice to have you with us today, and I hope that you'll
make it back to our home state frequently.
I have a particular interest in the Commission's
proceedings with regard to all-terrain vehicles or ATVs. As you
know, ATVs are an important part of daily life for many South
Dakotans who make a living on a farm or a ranch. In fact,
horses all around South Dakota are breathing a sigh of relief
as more ranchers jump on their ATVs each morning to do chores
and leave the horse in the barn. But we also have a lot of
South Dakotans who use ATVs for recreation in the Black Hills.
I guess what I would like to ask is, have you noticed any
trends in the comments the commission has received in response
to the proposed rulemaking on ATVs, and do you believe the
commission will make any changes in the proposed rule based on
the comments that have been received?
Ms. Nord. I think it would be premature for me to speculate
on what the Commission is going to do, since this is indeed
open for--well, I think the comment period just closed, but we
are in active rulemaking. The balance that we need to make here
is to respect and indeed help people who use ATVs as work
vehicles in the environment you described, and also for people
who use them for recreation.
On the other hand, sir, we are seeing more and more deaths
associated with all-terrain vehicle usage. Many of these deaths
are kids, frankly, who jump on an adult size ATV, a machine
that they have absolutely no business being on and they don't
have adequate training for, and they're not wearing the proper
safety equipment.
So we've got to respond to that hazard pattern as well, and
hopefully we can find a way to respond to that and drive those
deaths down, those unnecessary deaths down, while still making
sure that the machines are available for recreation and for
work on farms and ranches.
Senator Thune. Some are calling, as this whole rulemaking
process is going on, for more regulation or legislation. Do you
believe that further regulation or legislation should occur at
the Federal level or at the State level?
Ms. Nord. Well, I think you've identified a real key point
here. The solution to this problem doesn't rest exclusively at
the Federal level. We will, through our rulemaking, look at the
machine itself to make sure that the machine is as safe as it
can possibly be.
But, you know, states have the authority to put in place
licensing requirements and determine really how the machine is
used in the local environment, and states really do need to be
looking at that. That's something for the states, not the
Federal Government, to do.
Senator Thune. I appreciate your response to that, and look
forward to, as this process becomes final, knowing a little bit
more about what those rules might do in terms of how they're
going to pertain to the use of those vehicles.
Commissioner Nord, you had mentioned in your testimony that
two-thirds of our recalled products are imports, and two-thirds
of those come from China. And I guess the other question I
would have is, what are the most dangerous products coming from
China, and what can we do make sure that those imported
products are as safe as American-made products?
Ms. Nord. I don't know the answer to what is the most
dangerous product. I know we are really focusing our activities
in four areas, and that would be toys, electrical products,
fireworks, and cigarette lighters, and that's really where
we're focused.
What we can do to address it and make sure that Chinese-
manufactured products meet the same standards as U.S.-
manufactured products, there are a number of things that we can
do. One of the things that I think is really important to
explore is the role of voluntary standards in this whole
process.
With U.S. manufacturers, there is in place a very vibrant
system of standards writing that goes on here in the U.S., and
most U.S. companies participate in voluntary standards
activities and comply with those standards. For example, I'm
sure you all are familiar with Underwriters Laboratory. That
would be an example of a voluntary standards body, and indeed
our statute specifically says to us that if there's a voluntary
standard in place, we don't put in place a mandatory standard.
We let the voluntary standard do its work.
The problem is that in China there isn't the sense of
needing to comply with voluntary standards, so you see things
coming into the U.S. that do not comply with voluntary
standards in the same way that U.S.-manufactured goods do, and
that is really, really a critical element for getting a handle
on this. If we can export that, either in a way that is non-
mandatory, or if we need to beef up our statute, it may be that
we do have to do that, but we need to make sure that imports
meet the same voluntary standards that U.S.-manufactured
products generally meet.
Senator Thune. Thank you, and thank you, Mr. Chairman. I
want to thank both of you for your service to our country and
keeping Americans safe, particularly those who cannot protect
themselves, such as infants, children, and the elderly. So
thank you for the good work that you do.
Thank you, Mr. Chairman.
Senator Pryor. Thanks, Senator Thune.
Senator McCaskill?
STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI
Senator McCaskill. Thank you, Mr. Chairman.
Back in March of 2006 you promulgated a rule on mattress
flammability that took an unprecedented step of proposing to
preempt State common law on tort claims. The preemption
language was added to the rule's preamble after the notice and
comment period closed, providing no opportunity for the public
to review it or evaluate it.
I would like your comments on that. I am deeply troubled by
an agency being in a position to think that it knows better
than the states as to what remedies should be afforded people
in our courts, and I think it is a dangerous precedent that we
are preempting State common law without opportunity for comment
on that preemption.
Ms. Nord. Is that to me?
Senator McCaskill. Yes. Either one of you. I know you're
both dying to answer.
Ms. Nord. Thank you for the question. Because the
preemption--well, first of all, all agencies are required to
make a statement of the preemptive effect of their rules, and
that's by virtue of an Executive Order issued in 1996, so we do
need to make a statement of the preemptive effect of our rules.
Because that statement is only our view, it is not part of the
rule, so consequently that's why it's in the preamble. It is
not part of the rule, and that's why it was not out there for
public comment, because it is not formally part of the rule.
And, frankly, these are issues that a court is going to
decide, really, not the commission. The particular language
that you're talking about was put in the mattress standard
preamble under the terms of the Federal Flammable Fabrics Act,
and it was done after receiving guidance from our general
counsel that that was the correct interpretation of the Federal
Flammable Fabrics Act.
You should be aware that the commission administers five
different statutes, and each of them has a little bit different
preemptive language in them, so what we would determine is
appropriate under the Federal Flammable Fabrics Act is not
necessarily the same preemptive effect that we would articulate
under, for example, the Federal Hazardous Substances Act or the
Consumer Product Safety Act. And indeed, under the Consumer
Product Safety Act there is a specific savings clause that
addresses just what you're talking about, that does not exist
in the Federal Flammable Fabrics Act.
So we had a general counsel's opinion on this and that's
what I followed.
Senator McCaskill. Was there a public discussion about
this? Did the commission discuss it in a public meeting? And,
you know, since this hadn't really occurred, this is
unprecedented, I'm just curious how it came to be.
Ms. Nord. It was certainly discussed during our open
meeting to vote on the rule, of course. And because it's not
part of the rule, it would not properly be out there for public
comment. Again, a court will be making the ultimate decision as
to what the statute means, so this is not part of the rule and
consequently is not appropriately out there for public comment.
Senator McCaskill. I guess my point would be that if the
court is going to decide, then I'm trying to figure out why
there was a need to include it, if it doesn't have any force of
law and it is, you know, not something that's going to be held
out for public comment; why would the commission think it was
important to include this, since this is not something that had
been included before?
Ms. Nord. Because we're required by the Executive Order to
state the preemptive effect.
Senator McCaskill. OK. Thank you, Mr. Chairman.
Senator Pryor. Thank you, Senator.
Let me ask one last follow-up, since we've talked about
some specific cases. The lead in lunchboxes, first, just
factual background: Why is the lead there in the first place? I
understand it's part of the fabric. Tell me why lead is in
there in the first place.
Ms. Nord. Lead is a component of vinyl. As I understand it,
sir, and you're getting a little bit beyond my technical
knowledge base here, but as I understand it, it's a stabilizing
agent. I can certainly get you a more technical answer to that
question, or I can have one of our scientists come up and talk
to you about it.
Senator Pryor. OK. As I understand it, you all looked at
lead in lunchboxes and you, as I understand it, looked at it
the first time, you did some testing. The testing was not good
for lead in lunchboxes. Changed your testing, did a change in
testing methodology. Am I right?
Ms. Nord. No, no. That's incorrect.
Senator Pryor. What happened?
Ms. Nord. Under the Federal Hazardous Substances Act, which
is what we would use to regulate children's products, the Act
very specifically says that we have to, in the case of this
particular product, we must be looking at accessible lead. That
is not total lead but accessible lead. How much lead does the
consumer come in contact with?
Senator Pryor. Right.
Ms. Nord. So what we would first do is test the lunchbox to
see if indeed there is lead in it at all, and that's what we
did. And then making the determination that yes, indeed, there
is lead, then you have to do the second part of the analysis:
Is the lead accessible to the consumer? And that's the second
piece of this.
And when they did the second test, which is the swipe test,
that is when the staff said, you know, ``We're not finding
accessibility.'' In this particular case, sir, they did a
series of tests. They came back to each of the commissioners
individually and said, ``OK, this is what the tests are showing
us.'' Each of the commissioners individually, without
consulting with each other, told the staff to go back and test
more just to make sure.
That's important because, sir, the Consumer Product Safety
Commission has a long history of protecting the public against
the hazards of lead. Banning lead, in residential house paint.
We've recalled products over time if they have lead in them
that is accessible to a consumer.
We've got an ongoing rulemaking dealing with lead in
children's jewelry. The hazard there, sir, is that children
will swallow it and it will get down into their system. We
dealt with lead in miniblinds where the lead, unlike
lunchboxes, did come to the surface and got into the dust. We
know how to deal with lead, and we are committed to making sure
that this is a hazard that we address.
Unfortunately, with the lunchboxes, we just weren't finding
it.
Senator Pryor. OK, but even after you sent your findings
over to FDA, didn't they send out a letter to the
manufacturers?
Ms. Nord. I think if you read that letter, you'll find that
they say that it might be a problem. And you have to understand
that the FDA is dealing with a very different Act than the Act
that the CPSC is administering. I believe what the FDA said is
that it might be viewed as a food additive, and as I understand
the Food, Drugs and Cosmetic Act, there is a very different
standard there. But again, I think that's a question that needs
to go to the FDA. We have to administer the Federal Hazardous
Substances Act, and that's what we did.
Senator Pryor. OK. Well, we'll submit the FDA's letter for
the record, so we'll have it and everybody can be clear on it.
Ms. Nord. Surely.
[The information referred to follows:]
U.S. Food and Drug Administration
Washington, DC, July 20, 2006
CFSAN/Office of Food Additive Safety
Letter to Manufacturers and Suppliers Concerning the
Presence of Lead in Soft Vinyl Lunchboxes
Note to: Suppliers or Vendors of Soft Vinyl Lunchboxes:
The Food and Drug Administration (FDA) is directing this letter to
manufacturers and suppliers of soft vinyl lunchboxes marketed in the
United States. Based on testing performed by the Consumer Product
Safety Commission (CPSC), we have learned that the interior polyvinyl
chloride (PVC) linings of certain flexible lunchboxes contain lead
(Pb).\1\ We believe that the source of the lead is likely to be lead-
containing compounds used as adjuvants in the manufacture of PVC.
Because neither lead nor lead compounds are authorized for use in the
manufacture of PVC food-contact articles such as lunchboxes, and some
migration of lead to food as a result of such use may reasonably be
expected, we urge companies to refrain from marketing such lead-
containing lunchboxes.
---------------------------------------------------------------------------
\1\ Unpublished data. See U.S. Consumer Product Safety Commission
Q&As: Vinyl Lunch Boxes.
---------------------------------------------------------------------------
While the amount of lead that may transfer to food from these
lunchboxes is likely to be relatively small, it has been a longstanding
objective of the FDA to reduce, to the extent practicable, consumer
exposure to lead from foods. The adverse health effects of elevated
lead levels in children are well-documented and may have long-lasting
or permanent consequences. Because lead accumulates in the body, these
effects can occur even at low exposure levels, and may include delayed
mental and physical development, and learning deficiencies.
Any component of these lunchboxes that is reasonably expected to
become a component of food is potentially a food additive, subject to
the premarket approval requirements of the Federal Food, Drug, and
Cosmetic Act (FD&C Act). Specifically, substances that are reasonably
expected to migrate to food because of their intended use are defined
as food additives (FD&C Act Section 201(s)) if they are not prior
sanctioned or generally recognized as safe (GRAS) for their use. All
food additives are required to undergo FDA premarket approval in
accordance with Section 409 of the FD&C Act. However, neither lead nor
any lead compound is authorized for use in PVC food-contact material.
According to the CPSC data, a small amount of the lead present in
the interior linings of the lunchboxes is transferable by a swipe test.
This implies that a small amount of lead may reasonably be expected to
transfer to food that contacts the interior lining and could be deemed
to be an unsafe food additive within the meaning of section 409 of the
FD&C Act, and therefore adulterated within the meaning of section
402(a)(2)(C) of the statute. Therefore, the lunchboxes containing the
lead compounds may be subject to enforcement action.
As always, manufacturers and suppliers are encouraged to consult
with the agency regarding the regulatory status of component substances
of food-contact articles, including those that may be under
consideration as alternatives to lead compounds.
Please do not hesitate to contact us if you have any questions
concerning this matter.
Sincerely,
Laura M. Tarantino, Ph.D.,
Director, Office of Food Additive Safety,
Center for Food Safety and Applied Nutrition.
Senator Pryor. And I would like to know more, and we don't
have to wear out this audience because we have the next panel
waiting, but I'd like to know more about your testing, because
it seems to me I don't know how a swipe test is done. I don't
know how to do it.
But it seems to me if you have food rolling around in a
lunchbox, you know, apples, sandwiches, whatever they are, are
rubbing on this all the time, and there's lead in it, and any
of the lead comes off, it would seem over time, especially the
longer you use the lunchbox, that it could be a health hazard.
But we'll leave that for a second discussion.
Did you have any follow-ups? OK, what I would like----
Mr. Moore. May I?
Senator Pryor. Yes, sir. Go ahead.
Mr. Moore. Because I don't think there should be any lead
in a product such as a child's lunchbox. But as the Chairman
has noted, we are bound by the limits of our statutes.
Senator Pryor. OK. Well, like I said, we'll look at that.
We'll continue to look at that, and maybe we ought to have a
rule that there's not any lead in a lunchbox. But we'll look at
that for you and we'll continue on that.
If I may, I want to thank this first panel. We've kept you
longer than I thought we would, but I'd like to have the second
panel come up. And what I'll do is introduce you all as you're
making your way to the microphones.
First we're going to have Ms. Sally Greenberg, Senior
Product Safety Counsel, Consumers Union; then Rachel Weintraub,
Director of Product Safety and Senior Counsel, Consumer
Federation of America; then John C. Dean, President, National
Association of State Fire Marshals; and then Frederick Locker,
General Counsel, Toy Industry Association and the Juvenile
Products Manufacturers Association, testifying on behalf of the
Consumer Product Safety Commission Coalition of the National
Association of Manufacturers.
So as soon as everybody gets situated and finds their
place, I will recognize Ms. Greenberg. So let's let everybody
sit down and we'll get going here. And like I said, we'd love
to ask questions here in a few moments, but if you all can
limit your opening statements to 5 minutes or less, that would
be great.
Ms. Greenberg, why don't you go first, please?
STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT SAFETY COUNSEL,
CONSUMERS UNION
Ms. Greenberg. Thank you, Mr. Chairman. Good morning,
Chairman Pryor, other members of the Subcommittee, Senator
McCaskill. My name is Sally Greenberg. I'm Senior Product
Safety Counsel for Consumers Union. We are the nonprofit
publisher of Consumer Reports magazine. Thanks for providing me
the chance to come before you today to provide our views on the
work of the Consumer Product Safety Commission.
We think there are two paramount questions before the
Committee today: Does the CPSC have the resources necessary to
fulfill their mission? And is the CPSC using those resources it
has in order to best fulfill its mandate?
The CPSC is a vitally important Federal agency with many
dedicated career staff who are committed to consumer safety.
The CPSC has jurisdiction over 15,000 products. The great
importance of CPSC is that it has jurisdiction over so many
children's products--we've already talked some about that this
morning--including toys, clothing, bath seats, high chairs, and
cribs, all used by children. In any given year, 27,000 people
die and 33 million people are injured by products under CPSC's
purview.
Yet when we look at the history of congressional support
and funding for CPSC, things have never looked so bleak. And,
Mr. Chairman, I appreciate your comments earlier about the
funding situation at the commission, and I do hope you will
take that message to your colleagues, because if you read
through the performance overview statement it's actually very
sad.
The commission is at an all-time low in terms of employees.
And I was a little surprised that Chairman Nord wasn't willing
to say that more employees are needed, because the 2008 Budget
report just says it. A lot of our core strategic efforts and
our core mission is really suffering as a result of the
dwindling number of resources.
For example, CPSC says in the budget report for this year
that they will no longer make child drowning death reductions a
strategic goal because of resource limitations, yet drowning is
the second highest cause of deaths to young children. They also
go on to talk about because of staff reductions, core functions
like safety standards enforcement, consumer outreach, won't be
carried out.
One of the things we did was look at the budget of the
National Highway Traffic Safety Administration which oversees
the safety of our roads and highways. There are 43,000 people
dying on our roads and highways every year. And they have a
budget of $800 million.
When you look at CPSC's budget, we see that 27,000 people
die because of consumer products under their jurisdiction every
year, and yet their budget is only $63 million. If you did the
percentages, and gave the Commission a percentage increase,
you'd have them at $502 million, and yet we see their budget at
$63 million. So this is an agency whose resources have been
dwindling for a long time, and it's a great area of concern for
us.
One of the things I want to talk about is the issue of
recalls and what we think is really a broken recall system.
One-third to one-half of all products recalled in the last 6
years are used by children. And of those 111 children's
products recalled last year, a third exposed children to risk
of bodily injury, falling, laceration, and impact injuries.
Here is the problem: The term ``recalled product'' suggests
that a product has been successfully returned--returned,
repaired, or replaced--but that is in fact rarely the case. Ten
to 30 percent of all recalled products ever get returned. In
other words, 70 to 90 percent are still in the home and are
still exposing children, particularly, to many times life-
threatening injuries and even death.
CPSC claims that they have tried to improve recall
effectiveness, the effort to get recalled products out of the
homes, but when consumer groups in 2003 went to the CPSC with a
petition asking for simple registration cards on children's
products, the CPSC voted down that petition. And to add insult
to injury, once a product is recalled, CPSC won't make public
how many products actually come back. We don't know why they
won't do this. It would be useful information for consumers to
have.
One of the things that we're doing is supporting two pieces
of legislation that have been introduced in the House to
provide product registration cards on many children's products
above a certain price point. And the other piece of legislation
we're supporting, and we'd like to see introduced over here in
both cases, is a mechanism for testing products, durable
children's products, before they get into people's homes,
because it has proven so difficult to get them back if they
prove dangerous or defective.
We have a number of other areas of concern that are in our
written testimony. Let me just speak for 1 more minute and then
I'll close. The commission, as we talked about at length, as
you, Mr. Chairman, and Senator McCaskill talked about at length
this morning, is suffering from lack of a quorum. And we know
that that has been going on now for a couple of months, since
January, and the position of chairman has been vacant since
July.
We believe that the fact that this position has lain vacant
for so many months is itself a statement on the lack of regard
for the work of the CPSC. However, while the commission needs
leadership, to be sure, its work is too important to allow the
chairmanship to go to a political appointee with no
demonstrable experience in or commitment to consumer
protection. CPSC is a regulatory agency and requires, we
believe, a chairman who has shown a commitment to using the
regulatory process for consumer protection.
We just want to direct your attention to 4(a) of the
Consumer Product Safety Act, which says that the President
shall appoint the commissioners with the advice and consent of
the Senate, but in making such appointment the President shall
consider individuals who, by reason of their background and
expertise in areas related to consumer products and protection
of the public from risks to safety, are qualified to serve as
members of the Commission. So I'll close by saying that we urge
the Senate to give thorough consideration to the current
nominee under this Section 4(a). And I thank you for your time.
[The prepared statement of Ms. Greenberg follows:]
Prepared Statement of Sally Greenberg, Senior Product Safety Counsel,
Consumers Union
Good morning, Chairman Senator Pryor and Ranking Member Sununu, and
other members of the Subcommittee. I am Sally Greenberg, Senior Product
Safety Counsel for Consumers Union (CU), non-profit publisher of
Consumer Reports.\1\ Thank you for providing me the chance to come
before you today to provide our views on the work of U.S. Consumer
Product Safety Commission (CPSC).
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\1\ Consumers Union is a nonprofit membership organization
chartered in 1936 under the laws of the State of New York to provide
consumers with information, education and counsel about goods,
services, health, and personal finance. Consumers Union's income is
solely derived from the sale of Consumer Reports, its other
publications and from noncommercial contributions, grants and fees. In
addition to reports on Consumers Union's own product testing, Consumer
Reports and ConsumerReports.org with more than 6.2 million paid
circulation, regularly carries articles on health, product safety,
marketplace economics and legislative, judicial and regulatory actions
that affect consumer welfare. Consumers Union's publications carry no
advertising and receive no commercial support.
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For the past 71 years, Consumers Union (CU) has been testing and
reporting on products and services in order to arm consumers with the
information they need to protect themselves in the marketplace. CU's
mission is to work for a fair, just and safe marketplace for all
consumers.
CU applauds the Subcommittee for holding this oversight hearing. We
believe that there are two paramount questions before the Committee
today--does the CPSC have the resources necessary to fulfill its
mission? And is the CPSC using the resources it has to effectively
fulfill its mission? CU's serious concerns in both of these areas are
discussed below.
U.S. Consumer Product Safety Commission
Every Congress that has reauthorized the CPSC during the past 30
years has reaffirmed its clear and unmistakable purpose: the CPSC is
charged with the mandate to reduce or eliminate unreasonable risks of
injury and death to consumers from more than 15,000 types of products.
There are 27,100 fatalities and 33.1 million injuries per year
associated with products under the CPSC's jurisdiction. Deaths,
injuries and property damage from consumer product incidents cost the
Nation more than $700 billion annually. The CPSC's viability is of
critical importance to the safety of children, since the Commission has
jurisdiction over the safety of so many children's toys and products
like bath seats, high chairs, and cribs.
However, we believe the CPSC currently is at a crossroads which
will determine its ability to be effective in the future. Among our
concerns are the following: (i) the failure of Congress to provide CPSC
with needed regulatory and enforcement authority and the failure of the
CPSC to seek new regulatory and enforcement authority or to
aggressively use the authority it possesses; (ii) budget cuts resulting
in a crippling loss of their most experienced and knowledgeable staff;
(iii) increasing numbers of counterfeit, dangerous and violative
imported products; (iv) new and emerging technologies in product
production (e.g., nanotechnology); and (v) the changing demographics of
the U.S. population. In addition, CU is concerned that the CPSC will
not be able to adequately address areas that we consider to be of high
priority, including: increasing the effectiveness of product recalls
and reporting of product hazards; decreasing import of unreasonably
dangerous imported products; drowning prevention and pool safety,
reducing deaths relating to CO poisoning from consumer use of portable
electric generators and home heating appliances; improving ladder
safety (i.e., strength and stability); furniture safety (preventing
deaths and injuries from furniture tip over and glass tables); removal
of lead from all products intended for use by children (e.g., jewelry,
toys, and clothing); all-terrain vehicle safety (increasing safe use of
all-terrain vehicles by adults, and ending their use by children under
16 years old); and identifying dangers associated with products
developed through the use of new technologies--particularly
nanotechnology.
The CPSC must have the resources--and the will--needed to inform
and to protect the public from new and emerging hazards. CU strongly
urges this Subcommittee to recommend significant increases in the
CPSC's budget in order to enable the Commission to better protect
consumers from unreasonably dangerous products. However, added
resources will not be enough. We also strongly urge the Subcommittee to
continue its oversight to ensure that the CPSC uses its resources
appropriately to fulfill its mission relating to current and emerging
hazards.
Specific areas of increasing challenge to the CPSC and its
effectiveness are discussed in detail below.
1. Budget Cuts Resulting in a Crippling Loss of Staff and Functions
The CPSC is critically underfunded and understaffed. According to
CU's review, the staffing level at the CPSC has been steadily
dwindling, and has resulted in the ``brain drain'' of too many of the
most experienced and knowledgeable staff at the Commission. When the
CPSC opened its doors in 1974 its budget was $34.7 million, rising in
1977 to $39 million budget with a staff of 900.\2\
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\2\ Understanding Government Report, E.Marla Felcher, ``U.S.
Consumer Product Safety Commission: Paper Tiger of American Product
Safety.''
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The staffing level at the CPSC has been steadily dwindling. The
budget for fiscal 2007 culminates a two-year reduction of full-time
positions from 471 to 420--a total loss of 51 employees. The
Commission's 2008 Performance Budget Request notes in a bleak
statement: The Commission's request for 2008 of $63,250,000 represents
an increase of $880,000 from 2007. Because of the cost increases
described below, the increase of $880,000 will require a decrease of 19
FTEs.\3\
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\3\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, Submitted to Congress, February 2007, http://
www.cpsc.gov/cpscpub/pubs/reports/2008plan.pdf.
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Indeed, the Commission's Budget Request reads like a cry for help
to support critical programs and is justified, in our view.
If mandatory salary increases are taken into account, the
Commission stands to lose an additional 19 employees,\4\ dropping staff
levels to 401, leaving the Commission understaffed and full time
employees (FTEs) at an all time low.
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\4\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, Submitted to Congress, February 2007, http://
www.cpsc.gov/cpscpub/pubs/reports/2008plan.pdf.
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The $39 million allocated to CPSC in 1977 would be worth $125
million today. Yet CPSC's funding request of $63 million means that
CPSC is funded at half of its original level in 1977 and the number of
staff has consequently dropped by more than half.
The CPSC already has acknowledged in its budget document that it
will not be able to continue to focus on a past strategic goal of great
importance to CU--reducing child drowning deaths. Drowning is the
second leading cause of accidental death for children under 14 and most
drowning incidents occur in residential swimming pools. Further
budgeting and staffing cutbacks will clearly result in reduced
enforcement of safety authority. Without adequate policing, unsafe
products can continue to more easily infiltrate the marketplace.
Offers for sale of banned imported products, such as ``Kinder
Eggs,'' \5\ monitored by CU, appear to be much worse recently. In
addition, the presence of counterfeit products in the U.S. marketplace
has increased. We believe that part of this increase results from fewer
CPSC representatives present at border points of entry. In addition,
the CPSC has been forced to reduce the number of field staff that
normally would lead investigations and follow up on product-related
injuries and deaths. CU is concerned that CPSC's inadequate budget is
preventing it from having the critically needed staff and resources to
properly police the marketplace. We believe that the CPSC must have the
resources it needs to monitor imported consumer products that may pose
safety hazards, and take whatever actions are needed to keep
unreasonably dangerous products off the market. CPSC must be able to
work more collaboratively with U.S. Customs to prevent dangerous and
violative products from crossing the borders into this country.
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\5\ Hollow chocolate eggs (made by Italy's Ferrero Group)
containing ``surprise'' toys, banned in the United States since 1997,
when the CPSC warned that the toys could pose a choking hazard to
children under 3.
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2. Lack of Adequate Manufacturer Focus on Safety and Ineffective System
of Recalls
According to the July 28, 2006 CPSC Nursery Product-Related
Injuries and Deaths to Children under age 5 Annual Memorandum, an
estimated 59,800 children under age five were treated in hospital
emergency rooms for injuries associated with nursery products in 2005.
We believe the number of injuries and deaths from using such products
is far too high and that most are preventable.
These trends are confirmed in a report,\6\ based on CPSC data, due
to be released next week from the Chicago advocacy group, Kids in
Danger. Kids in Danger's report indicates that there were 111 recalls
of children's products in 2006--representing 35 percent of all product
recalls. Of the 111 products recalled, about a third were recalled
because they exposed children to risk of bodily injury--falling,
laceration and impact injuries. Indeed, these recalled products caused
177 injuries and six deaths in 2006.
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\6\ Upcoming, ``Unexpected Danger: Children's Product Recalls in
2006,'' Kids in Danger, March 2007. www.kidsindanger.org
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This is not a new phenomenon. In the years from 2001 to 2006,
children's product recalls ranged from one-third to one-half of all
recalls, with a high of 55 percent in 2001 to a low of 31 percent in
both 2004 and 2003. This year alone nearly 19 million children's
product units were recalled. Between 1993 and 2003, the children's
product industry had recalled almost 60 million items.
The term ``recalled product'' suggests that a product has been, or
will be, returned, repaired or replaced, by a manufacturer. This rarely
is the case. Despite the fact that, once a product is recalled, the
CPSC and the manufacturer draft a recall notice and send it out over
the wires, this vital information often does not reach the very
people--such as parents, day care centers and other caregivers--who
should see it. There is no law requiring manufacturers to try to find
purchasers of the product or to notify parents or day care centers if a
product proves dangerous and must be recalled. Further, there is no
requirement that manufacturers advertise a product recall in the same
way they advertised the product in the first place--high chairs, cribs,
strollers, infant swings and carriers often continue to be used for
months or years after they have been recalled. As a result only a very
small percentage of recalled juvenile products ever make their way back
to the manufacturer. In fact, a CPSC study estimates that manufacturers
cannot account for 70-90 percent of sold infant products after they
have been recalled.\7\
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\7\ ``It's No Accident,'' Marla Felcher, Common Courage Press,
2001.
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Recall effectiveness is a major concern. Fifteen children, for
example, have died in five different brands of recalled cribs,\8\ and
many more of these cribs presumably remain in homes and day car
centers.
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\8\ Kids In Danger Newsletter, 2002.
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In an effort to improve recall effectiveness, consumer groups
petitioned the CPSC \9\ asking that the Commission require simple
registration cards on products intended for use by children.
Registration cards have proven an effective means for facilitating
recalls: A 2003 National Highway Traffic Safety Administration survey
found that almost three-quarters (73 percent) of parents/caregivers who
said they obtained the car seat new also said that a registration card
came with the seat. Of these, 53 percent mailed back the card.\10\
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\9\ Federal Register, Vol. 66, No. 148, Wednesday, August 1, 2001.
\10\ Motor Vehicle Occupant Safety Survey, http://
www.nhtsa.dot.gov/people/injury/research/2003MVOSSVol5/pages/
ExecSumm.htm.
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The Commission denied the consumer groups' petition on April 28,
2003, citing concerns about the effectiveness of registration
cards,\11\ Consumers Union and other groups are supporting legislation
to require registration cards with certain baby products.
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\11\ http://www.cpsc.gov/LIBRARY/FOIA/FOIA03/petition/Intended.pdf.
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In addition to the challenges of effectively notifying consumers
about recalled products, once a product is recalled by CPSC, the
Commission will not release information on the number of units that
have been successfully recalled. This prevents the public and news
organizations from accurately estimating how many dangerous products
remain at large, the extent of the remaining risk, or whether the
particular recall outreach was successful. We discuss this at length
below in our comments related to Section 6(b).
In response to the deficiencies in the system outlined above,
consumer groups have supported two bills introduced in the 109th
Congress and expected to be introduced shortly in the 110th:
H.R. 6141, the ``Child Product Safety Notification Act,''
sponsored by Congresswoman Jan Schakowsky (D-Il), directs the
CPSC to promulgate a consumer product safety standard requiring
manufacturers of juvenile products (such as toys, cribs high
chairs, bath seats, playpens, strollers, and walkers), and
small appliances to establish and maintain a system for
providing notification of recalls to purchasers. Manufacturers
would be required to improve their notification of consumers by
either distributing products safety notification cards that
could be returned to them by consumers, or by creating a method
of registering buyers electronically.
H.R. 4896, the ``Infant and Toddler Durable Product Safety
Act,'' \12\ also sponsored by Representative Schakowsky, would
better ensure the safety of infant and toddler products by
requiring independent testing of certain durable goods before
they are sold on the market. The legislation would require
manufacturers to pretest ``durable'' products likely to be used
by children under five, including cradles, cribs, toddler beds,
high chairs, safety gates, play yards, and strollers.
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\12\ Introduced by Congresswoman Jan Schakowsky. Cosponsors
include: Mrs. McCarthy of NY, Mr. Lantos of CA, Ms. Norton of DC, Ms.
Millender-McDonald of CA, Ms. Kilpatrick of MI, Mrs. Christensen of VI,
Mr. Grijalva of AZ, Mr. Serrano of NY, Mr. McDermott of WA, Mr.
Gutierrez of IL, Ms. Brown of FL, Ms. De Lauro of CT, Mr. Meehan of MA,
Mr. Moran of VA, Mr. Davis of IL, Mr. Lipinski of IL, Ms. Lowey of NY,
and Mr. Waxman, CA.
Under their General Product Safety Directive, the European Union
requires pre-market testing and recordkeeping to show that products are
essentially safe prior to going to market. The U.S. has no similar
regulations.
We encourage the Senators on this Subcommittee to sponsor similar
legislation to better protect U.S. consumers.
Section 6(b)
Last year, my brother-in-law's airbag failed to deploy during a 65
mph crash. As a result, he was badly injured, but happily alive.
However, he wanted to see whether drivers of the same vehicle had
experienced similar airbag failures. He went to the National Highway
Traffic Safety Administration's (``NHTSA'') website, entered in his
car's make and model, and learned that, indeed, there were several
similar complaints. He decided not to buy the same model again. If a
parent finds that a highchair collapses, he or she cannot do what my
brother-in-law did--check CPSC's website to see if there have been
other complaints--because under Section 6(b) of the Consumer Product
Safety Act (CPSA) the Commission cannot provide the information unless
the product has been recalled. This restriction is a major obstacle to
consumer information and consumer safety.
Section 6(b) acts as a kind of reverse Freedom of Information Act,
barring the release of consumer complaint information unless and until
the agency has sent a copy of it to the named manufacturer, allowed the
manufacturer 30 days to comment on the information, reviewed the
manufacturer's comments regarding the accuracy of the information and
the fairness of releasing it, and determined that disclosure of the
information would effectuate the purposes of the CPSA. Exceptions to
these restrictions are extremely limited.\13\
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\13\ Section 6(b)(1) requires that the CPSC must, at least 30 days
prior to ``public disclosure'' of information, notify each manufacturer
or private labeler identified in the documents of the forthcoming
release and give them an opportunity to submit comments, and take
reasonable steps to ensure accuracy.
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The resource drain on the Commission staff for these procedures is
enormous and unfair. The effect of Section 6(b) is to make the release
of some information almost impossible. Objections by any manufacturer
can lead to a long struggle. Even newspaper clippings on a particular
product cannot be released by the CPSC without prior review.
Indeed, before the 111 children's products were recalled in 2006,
928 failure incidents were reported. Unlike under NHTSA's system
described above, if a product hasn't been recalled, the CPSC is unable
to provide consumers with information about previous safety complaints.
Parents looking to buy a crib or high chair will often want to be sure
it has a good safety record. They ought to be able to check on the
CPSC's website for previous complaints. Perhaps if they could have,
some of the 928 incidents last year related to the 111 recalled
products might have been avoided. Unfortunately, parents and caregivers
must go to other websites with consumer reviews, such as Amazon.com,
rather than consulting the CPSC, to see if consumers have reported
product has safety concerns with products on the market.
We think the statute should be changed. CU recommends that Congress
repeal Section 6(b) of the CPSA because it prevents public access to
important--and possibly life saving--product safety information in the
files of CPSC . . .
While we understand that life--even for children--is not risk free,
too large a percentage of unsafe products are marketed for children or
to children. Products intended for use by children should be tested for
safety before being sent into the marketplace because once they arrive
in consumers' homes, the ineffectiveness of our current recall process
means that getting them back is unlikely.
Reporting Requirements Under Section 15(b) of Consumer Product Safety
Act
One of most important sections of the Consumer Product Safety Act
is 15(b). That section requires companies to report to the Commission
if they learn that their product may create a ``substantial risk of
injury to the public.'' \14\ In July of 2006, Chairman Hal Stratton
announced a final interpretive rule change \15\ on Section 15(b), which
he argued was intended to demystify the reporting process. Chairman
Stratton noted in his statement, ``I thought it essential that this
agency engage regulated parties to determine how best the CPSC could
accomplish its goals without creating a drag on commerce.''
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\14\ CPSA, Section 15(b).
\15\ http://www.cpsc.gov/pr/strattonsec15.pdf.
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In the previous 2 years, industry groups had asked the CPSC to
revise its interpretive rules. Apparently this final rule was the
Commission's response to industry's request. The revised interpretive
rules added three factors companies were to consider in deciding
whether they were obligated to report a product hazard under Section
15: (1) obviousness of the hazard, (2) product warnings and
instructions and (3) consumer misuse. The interpretative rules also
allow manufacturer to consider such issues as to whether the product
meets voluntary standards when considering whether to report incidents
to the CPSC. Reliance on voluntary standard is, in our view, misplaced
trust in standards that often do not address safety concerns.
We commend to members of the Committee the full statement of CPSC
Commissioner Thomas Moore in response to these interpretive 15(b)
changes. CU shares Commissioner Moore's concerns about the impact of
these changes on reporting of hazardous products:
The Commission was created to protect consumers, sometimes even
from what might be viewed as an obvious risk and, with regard
to children, sometimes even from the inattentiveness of their
own parents. Our work on child-resistant cigarette lighters and
baby walkers are evidence of that. The power of section 15(b)
is its requirement that information that could prevent the
injuries or deaths of consumers be reported to the Commission.
Even with these revisions, the Commission's position remains,
when in doubt, report. It is the Commission that will
ultimately decide whether a product defect presents a
substantial product hazard, not the manufacturer. Adding more
unexplained factors that manufacturers might grasp at to decide
they do not need to report is likely to do the manufacturers
(not to mention consumers) a disservice and adds nothing by way
of real guidance, clarity or transparency.\16\
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\16\ Statement of the Honorable Thomas H. Moore on the Publication
of the Federal Register Notice Seeking Public Comments on Proposed
Revisions to 16 C.F.R. Part 1115. http://www.cpsc.gov/PR/
MooreCFR1115.pdf.
Consumers Union believes these new rules are unnecessary and
confusing. Moreover, simply because a company reports under 15(b) does
not automatically trigger CPSC action--indeed, one CPSC official
estimated that only 50 percent of 15(b) reports trigger CPSC
activity.\17\ Reporting safety hazards is critical because it ensures
that when hazards come to the attention of a company, they are reported
to the Commission and when warranted, necessary action is taken. CPSC
is mandated to carry out this function. By giving companies reasons not
to report, we believe the new interpretive rules may discourage
companies from erring on the side of caution and thereby heighten the
risk that consumers will be exposed to product hazards.
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\17\ Conversation with officials at Office of Compliance at the
U.S. Consumer Product Safety Commission.
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All-Terrain Vehicles
The CPSC faces the perennial problem of stemming the tide of deaths
and injuries from use of All Terrain Vehicles (ATVs). ATVs rank
consistently as one of the most hazardous consumer products--ATV-
related injuries requiring emergency room visits increased to 136,700
in 2005. Children under 16 suffered 40,400 of those injuries. In 2005,
120 children under 16 operating ATVs were killed. The steady trend of
increasing numbers of injuries and deaths should be a concern to
Congress and to the CPSC.
Pursuant to a petition filed by the Consumer Federation of America,
CU has supported a ban on the sale of ATVs to children under the age of
16 (and other safety measures). We are also concerned that the CPSC is
moving forward with an ill-advised rule on ATVs that proposes teen and
pre-teen ATVs and even junior ATVs for children between 6-8 years old,
without having conducted the proper testing or research to proceed.
But we also think Congress can play a pivotal role in helping to
reduce the injuries and deaths from ATVs. We believe that states should
be encouraged to enact model ATV safety legislation like the kind
drafted by the American Academy of Pediatrics. AAP's Model Statute is
an excellent and comprehensive approach to ATV regulation, providing
for training and licensure of ATV riders and requiring safety gear like
helmets and proper clothing.
We urge this Subcommittee to schedule field hearings on ATV safety
similar to the hearing the CPSC held in West Virginia in 2003. Congress
could then consider providing financial incentives to states to adopt
ATV safety laws.
There is precedent for this approach. In 2000, Congress passed and
President Clinton signed a law requiring that states enact a 0.08
percent BAC (blood alcohol content level) law by October 1, 2003 or
lose a portion of highway funding. Federal law currently offers
financial incentives to the states to adopt a 0.08 percent permissible
blood alcohol level for drivers and has been successful in persuading
states to adopt this provision. Prior to this law, 18 states and the
District of Columbia had passed 0.08 percent BAC laws. In the 2 years
since, the total number of states with 0.08 percent BAC laws has
increased to 33 and the District of Columbia.
3. Other CU Priority Safety Areas for CPSC Focus
CU is concerned that due to shortfalls in its budget, the CPSC will
not be able to adequately address areas that we consider to be of high
priority, including: product safety issues affecting children (e.g.,
toy hazards, lead in children's jewelry, and pool safety); reinitiating
efforts to reduce incidents of consumer injury and death from cooking
fires (there are 80 deaths, 2,440 injuries, and over 47,000 residential
range top fire annually); other product-related fires (e.g., products
powered by lithium-ion batteries); decreasing all-terrain vehicle
accidents and deaths; carbon monoxide poisonings relating to use of
portable electric generators \18\ and home heating appliances;
identifying and addressing potentially unreasonable risks posed to
consumers through the use of or exposure to products created with
nanotechnology, using nanoparticles.
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\18\ CU commends the CPSC for initiating a rulemaking proceeding to
examine regulatory approaches that could be used to reduce portable
generator-related deaths and injuries, particularly those related to
carbon monoxide poisoning (71 Fed. Reg. 74472, December 12, 2006). CU
also commends the Commission for issuing a new portable generator
mandatory labeling rule, approved by the Commission on January 4, 2007,
but noted that ``education and warnings alone are not enough'' and
urged CPSC to take critical next step in requiring all generators be
equipped with a CO detector that automatically shuts down the unit if
it detects dangerous levels of CO. See http://www.cpsc.gov/cpscpub/
prerel/prhtml07/07074.html.
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Two other areas of concern bear mentioning. First, there are nearly
50,000 residential cooking fires each year, killing and estimated 80
people and injuring almost 2,500. Cooking fires account for about 10
percent of fire deaths in recent years. Mitigating cooking fires was
once a priority of the CPSC who developed technological fixes to the
problem in their lab. The project was later dropped due to industry
pushback.
Injuries from glass furniture now amount to more than 20,000
serious injuries per year. Although there are safety standards in
Europe that require safety glass in furniture, there are no safety
standards here. Yet these hazards have long fallen below the radar of
the CPSC.
Both of these safety hazards are ones we believe the CPSC needs to
address.
4. Trends and Factors Exacerbating the Impact of CPSC'S Lack of
Adequate
Funding
CU is also concerned that a number of trends are presenting the
CPSC with great challenges to their efforts to reduce the number of
unreasonably dangerous products on the market. These trends (discussed
more in detail below) include: (i) the increasing number of
counterfeit, dangerous, and violative products on the market, (ii) new
and emerging technologies (e.g., nanotechnology), and (iii) the
changing demographic of the American consumer. CU also is concerned,
that in addition to the above trends, the CPSC also is hampered by
other factors beyond the lack of adequate resources. These factors,
discussed in detail below, include: (i) the lack of a permanent
chairman and lack of a quorum, (ii) lack of manufacturer focus on
safety and insufficient deterrents available in the form of strong
civil penalty authority, and (iii) inadequate laboratory facilities.
A. Trends Exacerbating the Impact of CPSC'S Lack of Adequate Funding
(i) Increasing Numbers of Counterfeit, Dangerous, and Violative
Products--We are very concerned that current trends are increasing the
risk that unsafe products will make their way to the marketplace--and
too many remain on the market even after safety hazards are uncovered.
As the world's large, powerful retailers squeeze manufacturers to
reduce prices, we have seen evidence that quality and safety can also
be reduced. Today, more than ever, pressure from major retailers has
created a ``speed to market'' mantra that can leave little time and few
resources for the product safety testing and quality assurance process.
Off-shore design and manufacturing is too often conducted by companies
who have inadequate knowledge of U.S. voluntary and mandatory safety
standards. In addition, sometimes foreign manufacturers lack an
understanding of how consumers will use the products they produce
because use of the product is not prevalent in their country. For
example, the manufacture of gas grills is moving rapidly from the U.S.
to China where the concept of grilling food on a gas heated cooking
grid is unfamiliar. We believe that a recent result is the manufacture
of substandard and sometimes dangerous gas grills; since 2004, there
have been more than one dozen product safety recalls on gas grills--in
all cases the defective products or components were made outside of the
U.S. Over a similar two-year period just 10 years ago, when most gas
grills were U.S. made, there were no recalls.
Also of concern to CU is the widespread lack of compliance with
voluntary safety standards. The March 2006 issue of Consumer Reports
features an article on furniture tipover, a problem that results in
8,000 to 10,000 serious injuries and almost 10 fatalities each year,
mostly to young children. Although ASTM--International publishes a
safety standard to prevent furniture tipover injuries, many of the
products CU tested do not comply. In fact, since the CPSC requested
that ASTM develop an industry safety standard, the numbers of annual
fatalities associated with falling furniture have actually increased by
50 percent. In today's highly competitive marketplace, there is often
little incentive for manufacturers to meet voluntary safety standards.
(ii) New and Emerging Technologies in Product Manufacturing and
Production--CU is very concerned that the ``brain drain'' impacting the
Commission may prevent the CPSC from aggressively investigating safety
issues relating to new and emerging technologies--particularly those
relating to the manufacture of consumer products created with
nanotechnology, using nanoparticles.
Nanotechnology--Relating to nanotechnology, the CPSC's, sole
mention of nanotechnology in its 2008 Performance Budget request is, as
follows:
Nanomaterials represent a wide range of compounds that may vary
significantly in their structure, physical and chemical
properties, and potentially in their behavior in the
environment and in the human body. CPSC staff will continue to
participate in interagency activities for nanotechnology. Goal:
Staff will use the information gained from its participation in
interagency activities, along with other information collected
on the use of nanomaterials in consumer products, to identify
issues and projects for future consideration. Staff will
prepare a draft status report of this effort.\19\
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\19\ U.S. Consumer Product Safety Commission, ``2008 Performance
Budget Request, Saving Lives and Keeping Families Safe,'' Submitted to
the Congress, February 2007. http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/
2008plan.pdf.
We believe that the CPSC must be much more proactive in arming
itself with a detailed understanding of the dangers posed to consumers
by cutting-edge products, especially those created through
nanoengineering. We urge this Subcommittee to ensure that the CPSC has
the laboratory equipment and resources needed to assess any
unreasonable risks to consumers, and the will to follow through.
Lithium-Ion Batteries--An additional area of concern is fire and
burn related dangers relating to lithium-ion batteries. On August 16,
2006 the CPSC announced a sweeping recall involving batteries,
manufactured by Sony, which came with 33 different computers sold April
1, 2004 through July 18, 2006. The recall involved 4 million
rechargeable lithium-ion batteries (sold separately and as replacement
parts) for dozens of Dell laptop computers, due to the danger that they
could overheat and catch fire. Of the 4.1 million suspected batteries,
2.7 million were distributed in the U.S. At the time of the recall,
Scott Wolfson, public affairs spokesman for the CPSC, stated to
Consumer Reports that the hazards stem from quality-control issues at
battery manufacturing facilities in Japan and China.
Additional recalls were conducted of Sony laptop batteries,
eventually bringing the total number of Sony's recalled laptop
batteries to about 9.4 million. Overheating problems affecting
rechargeable lithium-ion batteries have been an ongoing issue. Lithium-
ion batteries pack high amounts of energy into a small package and,
subsequently, can produce a lot of heat. Despite the wide-spread
attention given to batteries in laptops, the dangers are not limited to
these products. The CPSC has logged 339 incident reports between 2003
and 2005 involving potentially faulty laptop computer batteries as well
as cell phone batteries. The incidents ranged from smoking and
charring, to batteries bursting into flames and skin burns. Cell phone
batteries have been associated with more serious burn injuries because
of the close proximity between the telephone and the user's head and
face.
Issues relating to lithium-ion batteries require research,
investigation, and market surveillance to ensure that unsafe electronic
products do not present an unreasonable risk to consumers. We encourage
the CPSC to continue to urge the development of safety standards for
these batteries, and to strongly encourage manufacturers to focus more
attention on quality control. In addition, we urge the Subcommittee to
follow the CPSC's activities in this area closely.
(iii) Changing Demographics of the U.S. Population--The CPSC itself
has identified a disturbing trend, and has documented that from 1991 to
2002, the number of older adults (75 and older) treated in U.S.
hospital emergency rooms for products-related injuries increased 73
percent. This increase is almost three times the group's increase in
population. Many of the injuries were related to common household
products such as yard and garden equipment, ladders, step stools, and
personal use items. As the population ages, it is even more important
that manufacturers work to reverse this recent trend with products that
are not defective and unreasonably dangerous when used by the elderly.
B. Legal and Regulatory Factors Exacerbating the Impact of CPSC'S Lack
of
Adequate Funding
(i) Lack of a Permanent Chairman and Quorum at the Commission--The
Commission has suffered from lack of a quorum after the departure of
Chairman Hal Stratton in July of 2006, and has since been working with
only two commissioners and forced to operate without a quorum for some
months. That this position lay vacant for so many months is itself a
statement on the lack of regard for the work of the CPSC. However,
while the Commission needs leadership, to be sure, its work is too
important to allow the chairmanship to go to a political appointee with
no demonstrable experience in or commitment to consumer protection.
CPSC is a regulatory agency and it requires a chairman who is willing
to protect the public from risks to safety by regulating industry where
necessary. Section A of the Consumer Product Safety Act \20\ provides
useful guidance to Congress and the President on this point:
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\20\ Consumer Product Safety Act, 15 U.S.C. 2051-2084, Public Law
92-573; 86 Stat. 1207, Oct. 27, 1972.
An independent regulatory commission is hereby established, to
be known as the Consumer Product Safety Commission, consisting
of five Commissioners who shall be appointed by the President,
by and with the advice and consent of the Senate. In making
such appointments, the President shall consider individuals
who, by reason of their background and expertise in areas
related to consumer products and protection of the public from
risks to safety, are qualified to serve as members of the
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Commission.
We urge this Committee and the Senate, therefore, to keep this in
mind and carefully examine the background and qualifications of the
current Administration nominee.
(ii) Inadequacy of Civil Penalties--The use of civil penalties to
penalize suppliers for selling or failing to report unsafe products is
often an ineffective deterrent. The $750,000 civil penalty levied
against Wal-Mart in 2003 for failing to report safety hazards with
fitness machines cost the company an equivalent of the sales rung up in
only 1 minute and 33 seconds. For large retailers and manufacturers,
paying civil fines are a small cost of doing business. In 2006, CPSC
negotiated out of court settlements in which six companies agreed to
pay $2.3 million in civil penalties to the U.S. Treasury for failing to
report under 15(b).\21\
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\21\ CPSC 2008 Performance Budget Request, submitted to Congress
February 2007.
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The Consumer Product Safety Act's Section 15(b) requires that
manufacturers, distributors, and retailers who learn that their product
either: (1) fails to comply with an applicable consumer product safety
rule or with a voluntary consumer product safety standard; (2) or
contains a defect that could create an unreasonable risk of serious
injury or death (i.e., a ``substantial product hazard'') must
immediately notify the CPSC--unless the company knows the CPSC has
already been informed.\22\ The history, however, of manufacturers'
failure to report in a timely manner under this section is all too well
known. Especially of concern are manufacturers' failures to report
children's products known by them to have caused injury or death.
Included among companies failing to report are Wal-Mart and General
Electric (GE)--two of the wealthiest corporations in America. We
believe the cap on the fines CPSC can levy for failure to report known
hazards weakens the power of the reporting statute. Current total fines
may not exceed $1,850,000 for any related series of violations. This
amount is too small to be an effective deterrent for large
corporations. CU believes in lifting the cap on fines.
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\22\ See 15 U.S.C. 2064(b).
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We believe that if the level of fines is not so easily calculable,
companies will view the potential fines as a bona fide deterrent to the
nonreporting of product safety hazards.
(iii) Inadequacy of CPSC Laboratories--CU understands that the
effectiveness of the CPSC in fulfilling its mission is
seriously impaired by a lack of capital investment. This
failure to equip CPSC staff with state-of-the-art laboratory
equipment is disturbing. The CPSC must be given the resources
needed to keep abreast of advancing science and technology.
Without these resources, the Commission is handicapped--and is
little able to investigate products developed with new
technologies, such as nanotechnology.
I thank the Chairman and other members of the Subcommittee for the
opportunity to testify, and I look forward to answering any questions
you have.
Senator Pryor. Thank you.
Ms. Weintraub?
STATEMENT OF RACHEL WEINTRAUB, DIRECTOR OF
PRODUCT SAFETY AND SENIOR COUNSEL, CONSUMER FEDERATION OF
AMERICA
Ms. Weintraub. Chairman Pryor and members of the
Subcommittee, specifically Senator McCaskill, I am Rachel
Weintraub, Director of Product Safety and Senior Counsel for
Consumer Federation of America. CFA is a nonprofit association
of approximately 300 consumer groups with a combined membership
of over 50 million people, that was founded in 1968 to advance
the consumer interest through advocacy and education.
The Consumer Product Safety Commission plays a critical
role in protecting consumers from product hazards. CPSC saves
society $700 billion each and every year. CFA believes that a
stronger CPSC, one with more funds, more staff, and an improved
authorizing statute, can better serve the public than a less
robust agency.
Last September the commission voted to approve a budget
request of $66.838 million, which is a $4.468 million increase
over the President's 2007 budget request. This request would
have maintained current staff levels at 420 full-time employees
and covered the cost of information technology necessary to
maintain CPSC's program activities.
However, the President's 2008 budget, as we have discussed,
would fund only 401 full-time employees, the fewest number in
the agency's history, and provide $63.25 million to operate the
agency. This is a reduction of 19 full-time employees and a
small increase of just $880,000 from the 2007 appropriation.
The agency's budget has not kept up with inflation, has not
kept up with its deteriorating infrastructure, has not kept up
with increasing data collection needs, has not kept up with the
fast-paced changes occurring in consumer product development,
and has not kept up with the vast increase in the number of
consumer products on the market. CPSC's staff has suffered
severe and repeated cuts during the last two decades, falling
from a high of 978 employees in 1980 to just 401 for this next
fiscal year, a loss of almost 60 percent. This is so
significant because 90 percent of the agency's costs cover
staff expenses.
There are vast consequences to this budget. The CPSC's
laboratory, as we discussed, is old and outdated. However, the
2008 performance budget does not request any funds at all to
improve this laboratory which serves a crucial role in CPSC's
compliance investigations and safety activities. Further,
sophisticated, high-tech products such as the Segway device,
lithium batteries, and those with nanotechnology, pose
particularly resource-intensive challenges. The 2008
performance budget does not provide any funds or an opportunity
for CPSC staff to adequately study emerging technologies in the
consumer products market.
To deal with imported products, along with their work with
Customs, CPSC seeks to sign Memorandums of Understanding with
other countries. We hope that these lead to concrete efforts to
prevent unsafe products from entering the United States. To
achieve this, the CPSC must work to prohibit the export of
products that don't meet voluntary or mandatory safety
guidelines.
We have a number of substantive issue areas of concern. CFA
is profoundly dissatisfied with CPSC's current rulemaking on
all-terrain vehicles. Serious injuries requiring emergency room
treatment increased to 136,700 in 2006, and deaths in 2005
reached an estimated 767. CPSC's rule changes the way ATVs have
been categorized by engine size to a system based upon speed.
CPSC staff admitted that speed-limiting devices, upon which
these categories depend, fail consistently.
This categorization failed to take weight of the ATVs into
consideration. And, further, while 45 percent of ATV incidences
involve an ATV tipping over, CPSC has not conducted stability
tests or research because CPSC staff has not had the resources
to perform the necessary tests.
The ability of CPSC to conduct effective recalls of unsafe
products is critical to protecting the public from risks
associated with unsafe consumer products. However, the 2008
budget appropriates no funds for this purpose.
An emerging hazard necessitating CPSC action involves toy
manufacturers' use of strong, small magnets in toys. The
ingestion of more than one of these magnets poses serious risks
of death or injury to children. CPSC has conducted four recalls
of these products. However, given the seriousness of the
consequences of ingestion of these magnets, some of these
recalls were not even called recalls, and another triggered
action only after the magnet already came out of the toy.
CPSC's budget does not include a number of important
programs or activities that it has in the past. For example,
the commission has no plans for in-depth studies on playgrounds
or ATVs, and no longer includes child drowning deaths as one of
its strategic goals, even though it's a leading cause of death
among children.
While we have grave concerns about numerous issues before
the commission, there are aspects worthy of praise which we
would like to articulate. First, CFA has a deep respect for
CPSC staff, who have continued to work diligently and
effectively throughout the commission's budget cuts, loss of
experienced senior level staff, and loss of a quorum. Second,
CPSC's National Electronic Injury Surveillance System is
working effectively.
We have concerns about the loss of a quorum. We also have a
number of suggestions about improvements to CPSC statutes:
First, to increase the cap on civil penalties, which is
currently capped at $1.825 million. Second, eliminating Section
6(b), which we feel handicaps the agency and ties their hands
to provide information to the public. And, third, to improve
recall effectiveness.
In conclusion, this Subcommittee must make sure that the
Federal Government lives up to the commitment it made to
protect consumers from product-related deaths and injuries when
it created the Commission. CFA urges more funds to be
appropriated to the Commission, and amendments to its statute,
so that the Commission can grow to incorporate a changing and
more complex marketplace.
[The prepared statement of Ms. Weintraub follows:]
Prepared Statement of Rachel Weintraub, Director of Product Safety and
Senior Counsel, Consumer Federation of America
Chairman Inouye, and members of the Subcommittee, I am Rachel
Weintraub, Director of Product Safety and Senior Counsel for Consumer
Federation of America (CFA). CFA is a non-profit association of
approximately 300 pro-consumer groups, with a combined membership of 50
million people that was founded in 1968 to advance the consumer
interest through advocacy and education. Thank you for the opportunity
to speak today.
I. Introduction
CPSC's mission, as set forth in the Consumer Product Safety Act,
CPSC's authorizing statute, is to ``protect the public against
unreasonable risks of injury associated with consumer products.'' \1\
CPSC is charged with protecting the public from hazards associated with
over 15,000 different consumer products. Its statutes give the
Commission the authority to set safety standards, require labeling,
order recalls, ban products, collect death and injury data, inform the
public about consumer product safety, and contribute to the voluntary
standards setting process.
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\1\ Consumer Product Safety Act, 15 U.S.C. 2051, section 2(b)(1).
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The Consumer Product Safety Commission (CPSC) plays an extremely
critical role in protecting American consumers from product hazards
found in the home, in schools and during recreation. CPSC saves $700
billion in societal costs each year.\2\ We know from past experience,
from survey data, and from consumers who contact us, that safety is an
issue that consumers care deeply about and that CPSC is an agency that
consumers support and depend upon to protect them and their families.
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\2\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page 72. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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While Consumer Federation does not always agree that the CPSC is
acting in the best interest of consumers, indeed CPSC has denied
several petitions CFA has filed to better protect the public and CFA
has opposed numerous aspects of CPSC's rulemakings and inaction on
other issues, CFA still believes that a stronger CPSC, one with more
funds and more staff, can better serve the public than a less robust
one struggling to re-set and limit its priorities. In addition, CFA has
deep respect for CPSC staff: they are dedicated and hardworking and
have worked diligently while weathering the storms of budget cuts and a
lack of quorum.
II. CPSC Budget
With jurisdiction over many different products, this small agency
has a monstrous task. This challenge is heightened by the fact that,
over the past two decades, CPSC has suffered the deepest cuts to its
budget and staff of any health and safety agency.\3\
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\3\ See Appendix 1, at the end of this document.
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In 1974, when CPSC was created, the agency was appropriated $34.7
million and 786 FTEs. Now 32 years later, the agency's budget has not
kept up with inflation, has not kept up with its deteriorating
infrastructure, has not kept up with increasing data collection needs,
has not kept up with the fast paced changes occurring in consumer
product development, and has not kept pace with the vast increase in
the number of consumer products on the market. CPSC's staff has
suffered severe and repeated cuts during the last two decades, falling
from a high of 978 employees in 1980 to just 401 for this next fiscal
year. This is a loss of almost 60 percent.
While every year an estimated 27,100 Americans die from consumer
product related causes, and an additional 33.1 million suffer injuries
related to consumer products under the jurisdiction of the CPSC, this
agency, with its reduced staff and inadequate funds, is limited in what
it can do to protect consumers. Due to these constraints, CPSC cannot
even maintain its current level of safety programs, let alone invest in
its infrastructure to improve its work in the future.
Because of this historically bleak resource picture, CFA is
extremely concerned about the agency's ability to operate effectively
to reduce consumer deaths and injuries from unsafe products. It is for
this reason that CFA believes that one of the most important things
that can be done to protect consumers, including children, from unsafe
products is to assure that CPSC has sufficient funding. CPSC's current
budget, staff, and equipment are stretched to the point of breaking.
CPSC salaries and rent currently consume almost 90 percent of the
agency's appropriation. The remaining 10 percent of the agency's budget
pays for other functions (such as supplies, communications and utility
charges, operation and maintenance of facilities and equipment) that
merely allow CPSC to keep its doors open for business each day.
III. 2008 Budget Numbers
In September of 2006, Acting Chairman Nord and Commissioner Moore
voted unanimously to approve the Executive Director's recommendations
as proposed in her memorandum.\4\ The memorandum included a budget
request of $66,838,000 which is a $4,468,000 increase over the
President's 2007 budget request. This request would maintain current
staff levels at 420 FTE and cover the costs of information technology.
Both the staffing and information technology are necessary to maintain
CPSC's current level of program activities.\5\
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\4\ This document is not publicly available.
\5\ Record of Commission Action, Commissioners Voting by Ballot,
Fiscal Year 2008 Performance Budget Request, September 7, 2006.
Available on the web at http://www.cpsc.gov/LIBRARY/FOIA/ballot/
ballot06/FY08.pdf.
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However, this budget request was rejected by the Administration.
The President's 2008 budget would fund only 401 full time employees
(``FTE''), the fewest number of FTEs in the agency's over 30 year
history, and provide only $63,250,000 to operate the agency. This is a
reduction of 19 FTEs and a small increase of $880,000 from the 2007
appropriation. This increase does not provide for inflation, will not
allow the CPSC to maintain its current programming, and will not allow
for the CPSC to invest in its research resources and infrastructure.
Funding for the CPSC has remained essentially flat for the past 2
years, forcing staff decreases of 31 FTEs in 2006 and 20 FTEs in 2007.
Since 2000, the CPSC has lost 79 FTEs, a loss of 16 percent. This loss
in staff is particularly significant because ``CPSC is a staff
intensive organization with nearly 90 percent of its recent funding
absorbed by staff compensation and staff related space rental costs.''
\6\ CPSC estimates that to maintain its current staffing level of 420
FTEs, which already requires limiting CPSC's programs; CPSC would need
an additional $2,167,000. CPSC is required by various Federal rules to
increase costs for staff such as a projected 3 percent Federal pay
raise, increased Federal Employee Retirement System contributions and
two additional paid work days.
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\6\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page v. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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CPSC faces additional cost increases of $50,000 for rental space,
though it is off-setting that by saving $500,000 in returning unused
space, as a result of the reduced number of staff, which is currently
causing a lot of commotion at the agency. In addition, ``annual costs
for service contracts are growing faster than CPSC is able to find off-
setting savings.'' \7\ These costs include required system enhancements
for payroll and accounting that cost $250,000.
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\7\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page v. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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CPSC estimates that it needs an addition $1,000,000 to update
CPSC's operating systems but admits that this amount is a minimum
amount that will not allow them to implement new software systems.
Improvements in the CPSC's information technology are critical. The
Commission has requested funds for improving their information systems
for many years and the needs are growing exponentially. Especially with
such reduced staffing, CPSC needs mechanisms to increase efficiency at
every level and IT is the best way to facilitate those efficiencies. IT
is critical to what staff at CPSC do every day. In practically every
aspect of CPSC's work, ``CPSC relies on IT in our related technical,
compliance, outreach and operational areas.'' \8\
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\8\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page vi. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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IV. Consequences of the 2008 Budget Request
``CPSC has maximized staff efficiencies and cannot absorb further
reductions without having an impact on its product safety activities.''
\9\ Below are just a few examples of how this limited budget affects
CPSC.
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\9\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page vi. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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A. Laboratory Will Not Be Modernized
Much of CPSC's equipment, particularly at the Commission's
laboratory, is old and outdated. However, the 2008 performance Budget
document does not even request any funds to improve the laboratory.
This exemplifies how limited this budget is. CPSC's testing laboratory
serves a crucial role in CPSC's compliance investigations and safety
standards activities. In spite of the laboratory's critical importance,
no major improvements have been made in the past 32 years. Rather, CPSC
and GSA have made only slight modifications to its infrastructure,
which was originally designed for military use not laboratory use.
Currently, CPSC staff working at the lab are working under merely
adequate conditions. If the laboratory were to be modernized, the CPSC
would increase productivity and efficiency. For example, each time the
CPSC must conduct a test on a baby walker, due to a compliance
investigation such as a recall or a standard setting activity, the
specialized equipment must be rebuilt due to limited space and limited
existing equipment. Therefore, each test takes up more time than it
would if the equipment existed permanently and prevents CPSC engineers
from working on other projects. Moreover, with increasingly more
complex products under CPSC's jurisdiction, the facilities at the
laboratory are becoming more outdated every year.
B. CPSC Will Not Be Able To Regulate Effectively
CPSC's funding directly affects its ability to regulate
effectively. Most of the recalls brought about by the agency are the
result of voluntary agreements reached between CPSC and manufacturers
and/or distributors. However, in every recall matter it considers, the
Commission must be prepared with research evidence to convince the
company of the need for action. In cases where the agency must file a
complaint and litigate the matter, the agency may require even more
extensive testing and research data for use as evidence at trial. This
testing and research, whether leading to a recall or trial, may need to
be contracted out and is very costly. This contingency is one with
enormous ramifications. In effect, not having sufficient resources puts
the CPSC in a terrible position as an enforcement agency. It can't put
its money where its mouth is--so to speak--because it can't be sure it
will have the money needed to follow through on its enforcement
actions.
C. Changing Consumer Product Market--New Products and More Imports
This concern is further exacerbated as new products and new
technologies come on to the market. Sophisticated, high tech products,
such as Segway devices, which CPSC engineers may have never seen, much
less have expertise with, pose particularly resource intensive
challenges. Products such as computer lithium batteries that have
recently been subject to recall as well as products involving
nanotechnology challenge the Commission's limited resources. For the
CPSC to live up to its safety mandate, it must be able to keep pace
with the ever-changing development of technology. The 2008 Performance
Budget does not seem to provide funds or an opportunity for CPSC staff
to adequately study these and other emerging technologies in the
consumer product market.
Another aspect of the changing consumer product market is that
every year, more and more consumer products are imported into the
United States. According to CPSC, two thirds of all recalls involved
products manufactured overseas. CPSC has two programs dealing
specifically with this issue. The first is its program with the U.S.
Customs and Border Protection. In 2006, CPSC field staff and U.S.
Customs staff prevented about 2.9 million noncompliant cigarette
lighters and fireworks from entering the United States \10\ and also
prevented 434,000 units of toys and other children's products from
entering the country.\11\ The 2008 Performance Budget includes a goal
of import surveillance for one product for which fire safety standards
are in effect and one product for which safety standards are in effect.
These are limited goals due to limited resources.
---------------------------------------------------------------------------
\10\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page 21. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
\11\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page 36. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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The second is the relatively new Office of International Programs
and Governmental Affairs which seeks to have signed Memorandums of
Understanding with seventeen countries by the end of 2008. These
memoranda establish closer working relationships and set up frameworks
for exchanging safety information with CPSC's counterparts in other
countries. CFA hopes that these memoranda lead to concrete efforts to
prevent unsafe products from entering the United States and we believe
that to achieve this, the CPSC must work with other countries to
prohibit the export of products that don't meet voluntary or mandatory
safety guidelines. Specifically, compliance with safety standards
should be made a necessary condition of receiving an export license for
certain products which have had pervasive safety problems. Further,
products should be required to be tested/certified by an independent
third party laboratory to determine if products meet safety standards.
If they do not, products cannot be exported to United States. This
protects the marketplace before products enter the stream of commerce.
Critically, this will not rely on the customs program which has many
other competing homeland security priorities. Ultimately the
responsibility falls on the manufacturers, many of which are not based
in the United States and they must be more fully engaged in policing
their products.
D. Freedom of Information Act
CPSC had an internal policy of responding to Freedom of Information
Act (FOIA) requests within 20 days. Recently, there has been a large
backlog and many responses now take considerably longer than 20 days.
This is due in large part to the staff allocated to work on FOIA
requests. At the end of 2004, CPSC had 15 FTEs devoted to responding to
FOIA requests. As of March of 2006, CPSC had 8 FTEs devoted to the same
efforts. These staff reductions like many in the Commission were
achieved through attrition and retirement buy-outs. As of December 31,
2005, the FOIA backlog was 145 requests. At that time the commission
anticipated that it would have a backlog of 90 requests at the end of
2006.\12\ A recent Associated Press article included a telling example:
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\12\ See http://www.cpsc.gov/library/foia/foia061406.pdf.
Tom Curley, President and CEO of The Associated Press and a
member of the Sunshine in Government Initiative, a media
coalition, related how it took a year for an AP reporter to get
lab reports on lead levels in lunch boxes that the Consumer
Product Safety Commission had deemed safe. The tests revealed
that one lunch box in five contained lead levels that some
medical experts considered unsafe. ``Why did it take a year for
the commission to respond to a relatively simple request that
FOIA says it was supposed to answer in 20 working days?''
Curley said.\13\
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\13\ Associated Press, ``Democrats push for open government agenda:
`Sunshine Week' bills in Congress to counter Bush administration
secrecy,'' March 14, 2007. available on the web at: http://
www.msnbc.msn.com/id/11203718/.
Responding to requests for information from the public is a
critically important function of the agency and one that ultimately
leads to improved products and a safer public, yet under this budget
proposal CPSC is limited in how they can respond and fulfill the
public's request for information.
V. Substantive Issue Areas of Concern
A. All-Terrain Vehicles (ATVs)
One of CFA's priority issues before CPSC is all-terrain vehicle
safety. It is no secret that CFA is extremely dissatisfied with CPSC's
current rulemaking on ATVs. Serious injuries requiring emergency room
treatment increased to 136,700 in 2005. Since 2001, there has been a
statistically significant 24 percent increase in serious injuries from
ATVs. The estimated number of ATV-related fatalities increased to 767
in 2004. Children under 16 suffered 40,400 serious injuries in 2005.
Since 2001, there has been a statistically significant increase of 18
percent in the number of children under 16 seriously injured by ATVs.
Children made up 30 percent of all injuries. In 2005, ATVs killed at
least 120 children younger than 16 accounting for 26 percent of all
fatalities. Between 1985 and 2005, children under 16 accounted for 36
percent of all injuries and 31 percent of all deaths.
One of our biggest concerns with CPSC's proposed rule is that it
will change the way ATVs are categorized. CPSC is seeking to change the
way ATVs have been traditionally categorized--by engine size to a
system based upon speed. Since the late 1980s, adult size ATVs have
been defined as an ATV with an engine size of over 90cc's. The CPSC
proposes to alter the age/size guidelines by creating a system that
limits the maximum speeds of ATVs intended for children under the age
of 16.
The Commission's rule proposes Teen ATVs, intended for children
between 12-15 years old, with a maximum speed of 30 mph; Pre-teen ATVs,
intended for children between 9-11 years old, with a maximum speed of
15 mph; and Junior ATVs, intended for children between 6-8 years old,
with a maximum speed of 10 mph. We are not satisfied that the
Commission has adequate evidence to support this rule. CPSC staff
admitted that speed limiting devices upon which the above outlined
categories depend, do not work consistently. This categorization fails
to take weight of the ATV into consideration, which significantly
impacts the consequence of a crash or tip over. Further, we are vastly
concerned that the Commission has neglected researching critical
aspects of this issue, partly because it simply cannot afford to do so.
For example, 45 percent of ATV incidents involve an ATV tipping
over, thus raising the issue of an ATVs inherent stability. However,
CPSC has not conducted stability tests or research. When Commissioner
Moore asked CPSC staff about this lack of information, CPSC staff
responded, ``CPSC staff has not had the resources to perform the
necessary tests and evaluations to develop a comparative analysis of
the current market of ATVs for steering, pitch stability, lateral
stability, braking, and other handling features.'' \14\
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\14\ CPSC Staff Response Regarding Follow Up Questions from
Commissioner Moore after June 15, 2006, ATV Safety Briefing, July 11,
2006.
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This is unfathomable--the factors that staff are not studying
comprise those aspects of ATVs that are most involved in ATV incidents
leading to death and injury. Failures of these systems are critical to
ATV crashes and tip-overs. However, the Commission is moving forward on
an ill-advised rule without studying these issues due, at least to a
significant degree, to a lack of resources. We fear that not only will
this rule not save lives, but that it may lead to younger children
riding larger, faster and potentially more dangerous machines.
B. Recall Effectiveness
The ability of the CPSC to conduct effective recalls of unsafe
products is critical to protecting the public from unreasonable risks
associated with consumer products. However, the 2008 Performance Budget
does not describe any efforts to improve recall effectiveness. In 2001,
CFA filed a petition with CPSC urging them, among other things, to
issue a rule that would require that manufacturers (or distributors,
retailers, or importers) of products intended for children provide
along with every product a Consumer Safety Registration Card that
allows the purchaser to register information, through the mail or
electronically. Such information will allow the manufacturer to contact
the purchaser in the event of a recall or potential product safety
hazard.
The Commission denied CFA's petition in March of 2003 and has not
undertaken any concrete efforts to broadly increase recall
effectiveness other than the creation of a website dedicated to
recalls. Unfortunately, the website requires a consumer to take
proactive steps to obtain recall information, even though research
indicated that direct-to-consumer notification is the best method for
informing consumers about recalls. Direct ways to inform consumers who
purchased the recalled product exist and would be more effective than
the current approach which relies upon the media to convey the news of
the recall.
When consumers do not hear of product recalls, their lack of
information can lead to tragic consequences, including death or injury.
By relying solely upon the media and manufacturers to broadly
communicate notification of recalls to the public, CPSC and the
companies involved are missing an opportunity to communicate with the
most critical population--those who purchased the potentially dangerous
product. Product registration cards or a similar electronic system
provide consumers the opportunity to send manufacturers their contact
information enabling manufacturers to directly notify consumers about a
product recall. The 2008 budget does not provide any funds for the
Commission to study this issue or to consider better more effective
alternatives.
C. Mattress Rule--Preemption
The Commission promulgated a rule on mattress flammability on March
15, 2006 that purports to preempt state common law remedies. According
to CPSC's own data, annual national fire loss estimates for 1999-2002
indicate that mattresses or mattress bedding were the first item to
ignite in 15,300 residential fires resulting in property loss of $295
million, and causing 350 deaths and 1,750 injuries. Mattress
flammability poses a significant threat to lives and property and
compels a Federal response to eliminate these injuries. However,
insofar as the new CPSC Rule seeks to preempt a consumers' ability to
hold mattress manufacturers accountable in state court, the Rule could
undermine public safety and consumers' right of redress for harms
caused by unreasonably dangerous products in state courts.
First, the proposed preemption of state common law remedies by a
CPSC final rule is unprecedented. Second, state common law claims
resulting from dangerous products compensate consumers who have been
harmed by the negligence of others. Third, while CPSC rules sometimes
include preemption of state safety standards, the language in the Draft
Final Rule would also, for the first time, claim to preempt state
common law tort claims. Finally, the preemption language was added to
the rule's preamble after the notice and comment period closed,
providing no opportunity for review or evaluation by the public.
The U.S. Consumer Product Safety Commission's main duty to Congress
and the public is to protect the public from unreasonable risks of
injury associated with consumer products. Since liability law enhances
safety by providing continual incentives to improve product design, the
inclusion of a preemption provision in a final rule would violate the
CPSC's core mission.
D. Magnet Toy Recalls
A recent emerging hazard necessitating CPSC action involves
numerous toy manufacturers' use of strong, small magnets in toys. The
ingestion of more than one of these magnets poses serious risks of
death or injury to children. The magnets can link together and siphon
off the intestines, creating a deadly blockage. According to a December
2006 Centers for Disease Control article, since 2003, CPSC staff
members have identified one death resulting from ingestion of these
magnets and 19 other cases of injuries requiring gastrointestinal
surgery.\15\ CPSC has conducted four recalls \16\ of these products;
however, given the seriousness of the consequences of the ingestion of
these products, some of these recalls were questionable and
unacceptably weak.
---------------------------------------------------------------------------
\15\ J Midgett, Ph.D., Div of Human Factors; S Inkster, Ph.D., Div
of Health Sciences; R. Rauchschwalbe, MS, M. Gillice, Office of
Compliance, Consumer Product Safety Commission. J. Gilchrist, MD, Div.
of Unintentional Injury Prevention, National Center for Injury
Prevention and Control, CDC. ``Gastrointestinal Injuries from Magnet
Ingestion in Children--United States, 2003-2006,'' MMWR, December 8,
2006/55 (48); 1296-1300, available on the web at www.cdc.gov/mmwr/
preview/mmwrhtml/mm5548a3.htm.
\16\ These recalls include: Rose Art Industries, Magnetix, March
31, 2006, http://www.cpsc.gov/CPSCPUB/PREREL/prhtml06/06127.html;
Mattel, Polly Pockets, November 21, 2006, http://www.cpsc.gov/CPSCPUB/
PREREL/prhtml07/07039.html; Geometix International LLC
MagneBlocksTM Toys, January 18, 2007, http://www.cpsc.gov/
CPSCPUB/PREREL/prhtml07/07085.html; and Jazwares Inc., Link-N-
LitesTM Magnetic Puzzles, February 15, 2007, http://
www.cpsc.gov/CPSCPUB/PREREL/prhtml07/07106.html.
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In March 2006, Rose Art Industries conducted a ``Replacement
Program'' for their Magnetix Magnetic Building Sets. The term
``replacement program'' is ambiguous to consumers and fails to alert
them to the seriousness of this issue. Further, it was never made clear
that products put back on the shelf after the recall were substantively
different from the recalled products, thus not necessarily reducing the
risk. In addition, a January 18, 2007 recall of Geometix International
LLC's MagneBlocksTM Toys, included a surprisingly weak
recommendation for what consumers should do. The press release stated
that, ``CPSC recommends children under 6 years of age not play with
toys containing magnets. If a magnet comes out of one of the blocks in
these sets, immediately remove the block from the set and send it to
Geometix International for a free replacement block.'' \17\
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\17\ See Geometix press release at http://www.cpsc.gov/CPSCPUB/
PREREL/prhtml07/07085.htm.
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Thus, only after it is visibly clear that the harm may have
occurred should action be taken to protect a child. Recalls are already
a response to the knowledge of a potential risk. This recall is doubly
weak because it does not give consumers the opportunity to prevent a
documented likely harm. Sadly, the response by some in the toy industry
has been to shift responsibility from manufacturers to parents.
However, it is clear, that magnets come out so frequently from some of
these toys and are so small, that no amount of parental supervision
could have prevented many of these incidents. We urge this Committee to
look into why some of these recalls have been so weak.
E. Changes to Section 15(b) of the Consumer Product Safety Act
On July 13, 2006, the Commission issued Final Interpretative
Guidance on section 15(b) of the Consumer Product Safety Act. Section
15(b) requires that every manufacturer, distributor, or retailer must
immediately inform the CPSC if it ``obtains information that reasonably
supports the conclusion that its product either: (1) fails to comply
with an applicable consumer product safety rule or with a voluntary
consumer product safety standard . . .; (2) contains a defect which
could create a substantial product hazard . . .; or (3) creates an
unreasonable risk of serious injury or death.'' \18\ The CPSC guidance
purported to clarify the current law by adding factors to be considered
when evaluating the duty to report: the definition of defect will be
amended to include the role of consumer misuse, adequacy of warnings,
and obviousness of the risk; the number of defective products on the
market will be considered; and compliance with product safety standards
will be evaluated. We fear that these factors could cloud the
interpretation of the law and the obligation to report under this
section.
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\18\ 15 U.S.C. 2064(b)(1), (b)(2), and (b)(3).
---------------------------------------------------------------------------
We are also troubled that these proposed changes will shift the
burden of weighing relevant factors in reporting under section 15(b)
from the CPSC to businesses as well as create a safe harbor for non-
reporting. Further we are alarmed about reliance on factors such as the
number of defective products in use as well as compliance with product
safety standards to determine whether hazards are reportable. We fear
that this guidance may jeopardize the Commission's ability to receive
important product safety information that is critical for CPSC's
consumer protection function.
F. Other Areas No Longer Addressed
CPSC's Performance Budget Document does not include a number of
incredibly important programs or activities that it has had in the
past. For example, the Commission has no plans for in-depth studies on
playgrounds or ATVs. These in-depth studies provide incredibly
important information about the way injuries and deaths occur. These
studies are invaluable to people working on solutions to prevent these
incidents.
Significantly, the Commission no longer includes reducing child
drowning deaths as one of its results-oriented hazard reduction
strategic goals. The Commission, in the 2008 Performance Budget
document states, ``We continue our work in reducing child drowning
deaths at the annual project level including expanding our public
information efforts. Staff, however, proposes that we no longer address
this area at the level of a strategic goal because of resource
limitations and the limited ability to develop further technical
remedies to address the behavioral aspects of child drowning.'' \19\
Drowning continues to be the second leading cause of accidental injury-
related death among children ages one to fourteen and the leading cause
of accidental injury-related death among children one to four. Thus,
even though a leading cause of death among children, the Commission can
no longer prioritize its work on reducing child drowning as a result of
reduced funding.
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\19\ U.S. Consumer Product Safety Commission, 2008 Performance
Budget Request, submitted to Congress, February 2007, page 8. On the
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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VI. Positive Commission Activity
While we have grave concerns about numerous issues before the
Commission, there are also some activities worthy of praise. First, as
I already mentioned, CFA has deep respect for CPSC staff who have
continued to work effectively and diligently throughout the
Commission's budget cuts, loss of experienced senior level staff, and
loss of a quorum. It is due to their commitment to product safety that
the Commission is able to uphold its mission.
Second, CPSC's National Electronic Injury Surveillance System
(NEISS) is working effectively. NEISS is a national probability sample
of hospitals in the United States. Patient information is collected
from approximately 100 NEISS hospitals for every emergency visit
involving an injury associated with consumer products. From this
sample, the total number of product-related injuries treated in
hospital emergency rooms nationwide can be estimated.\20\ In this era
of significant patient privacy concerns, it can be extremely difficult
and expensive to recruit a hospital for participation in the NEISS
sample. Yet the Directorate for Epidemiology has not only maintained
the NEISS sample of hospitals but has also ensured the statistical
integrity of CPSC's estimates of product-related injuries. This is
critical for CPSC to produce trends from year to year. It is the
ability to produce trends that is most fragile in a political, budget-
driven environment, since one party's budget can destroy another
party's trend. NEISS must remain unaffected by the tumultuousness of
the budget process, and in recent years, the Directorate for
Epidemiology has successfully shielded it from that in part by entering
into inter-agency agreements with other government agencies that use
NEISS data, including the Centers for Disease Control, the National
Institute for Occupational Safety and Health, and the Food and Drug
Administration. While CPSC's Directorate for Epidemiology has not been
completely unaffected by the changes at CPSC they have managed to keep
the NEISS system running.
---------------------------------------------------------------------------
\20\ http://www.cpsc.gov/LIBRARY/neiss.html.
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VII. Lack of a Quorum
Section 4(d) of the Consumer Product Safety Act provides that three
members serving at the Commission constitute a quorum, which is
necessary for the transaction of business. If there are only two
Commissioners because of a vacancy, two members shall constitute a
quorum for 6 months after the vacancy was created.\21\ Chairman
Stratton left the CPSC in July and thus, the quorum expired in January.
The ability of the Commission to transact business is thwarted
significantly: the Commission can not conduct any business requiring a
vote including voting on rulemakings or civil or criminal penalties.
The Commission cannot have public hearings. While the Commission staff
can continue to work on programs, even those related to rulemakings or
penalties, no final action can be taken. The lack of a quorum is
severely hindering the Commission's ability to protect the public from
unreasonable risks associated with consumer products and signals to all
of the industries that CPSC regulates, that it does not have its full
power. This must affect CPSC's bargaining power as well as manufacturer
or retailer decisions regarding CPSC compliance, rulemakings and other
issues before the Commission. Significantly, this lack of a quorum as
well as the limited CPSC budget indicates that the Administration does
not place a high priority on product safety or the work of the
Commission. CFA supports legislative efforts to extend the quorum.
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\21\ Consumer Product Safety Act, 15 U.S.C. 2051, section 4(d).
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VIII. Improvements to CPSC's Statutes
CFA believes that CPSC could be an even more effective agency if a
number of changes were made to the statutes over which CPSC has
jurisdiction.
First, CFA suggests that Congress eliminate the cap on the amount
of civil penalties that CPSC can assess, as spelled out in section
20(a) of the Consumer Product Safety Act (CPSA), against an entity in
knowing violation of CPSC's statutes. The current civil penalty is
capped at $7,000 for each violation up to $1.83 million. A ``knowing
violation'' occurs when the manufacturer, distributor or retailer has
actual knowledge or is presumed to have knowledge deemed to be
possessed by a reasonable person who acts in the circumstances,
including knowledge obtainable upon the exercise of due care to
ascertain the truth of representations. Knowing violations often
involve a company's awareness of serious injury or death associated
with their product. Eliminating the cap will encourage manufactures to
recall products faster and comply with CPSC's statutes in a more
aggressive way. Importantly, the elimination of the cap will act as a
deterrent to noncompliance with CPSC's regulations. Eliminating the cap
will also strengthen CPSC's bargaining power when negotiating with many
companies to take a particular action.
Second, CFA urges Congress to eliminate section 6(b) of the CPSA.
This section of the Act prohibits CPSC, at the insistence of industry,
to withhold safety information from the public. This provision, to
which no other health and safety regulatory agency must adhere,
requires that CPSC must check with the relevant industry before it can
disclose the information to the public. It serves to hold CPSC captive
to the very industry it regulates. If the industry denies access to the
information, CPSC must evaluate their response and may just drop the
issue and deny access of the information to consumers. This has the
effect of delaying or denying access of important information to
consumers.
Third, to improve recall effectiveness, CFA recommends that section
15 of CPSA be amended to require manufacturers to provide a means of
directly communicating information of recalls to consumers--either
through a registration card, electronically or other means of
technology. Manufacturers, retailers or importers should be required to
report the existence of the recall to retailers and all commercial
customers within 24 hours after issuing the recall or warning. All
entities within the stream of commerce should be required to post the
recall to websites, if in existence, within 24 hours of issuance of
recall. We suggest that manufacturers, retailers, distributors or
importers should be required to communicate notice of the recall with
all known consumers. Retailers, after receiving notice of the recall,
must remove the recalled product from their shelves and website within
three business days and retailers must post notice of the recall in
their stores for 120 days after issuance of the recall.
Fourth, CFA encourages Congress to restore CPSC's authority over
fixed-site amusement parks. According to the CPSC, as of 2003, serious
injuries on theme park rides have soared 96 percent in the last 5
years. Federal oversight is crucial to the prevention of any future
deaths and injuries associated with fixed-site amusement parks due to
the vast variation in state laws and the absence of any regulation in
some states. CPSC has illustrated its ability to identify and prevent
injuries from many consumer products, including mobile amusement park
rides. CPSC should be granted the same scope of authority to protect
against unreasonable risks of harm on fixed-site rides that it
currently retains for carnival rides that are moved from site to site.
However, with this additional authority, CPSC should be authorized more
money to take on this important role.
Fifth, we ask Congress to require businesses selling toys on the
Internet to provide on their website the same cautionary labeling that
is required on toy packaging. Currently, Section 24 of the Federal
Hazardous Substances Act (FHSA) requires cautionary labeling on small
balls, marbles and toys that contain small parts for children 3 years
of age and younger. This labeling must be apparent to consumers at the
point of purchase so consumers are able to make informed decisions
about potential safety hazards associated with the toys. Online
retailers should be required to post the cautionary warnings on their
website so that consumers could be aware of the potential safety issues
before actually purchasing the product.
IX. Conclusion
In conclusion, this Subcommittee must make sure that the Federal
Government lives up to the commitment it made to protect consumers from
product-related deaths and injuries when it created the Consumer
Product Safety Commission. CFA urges more funds to be appropriated to
the Consumer Product Safety Commission so that the Commission can grow
to incorporate a changing and more complex marketplace. Sadly, this
2008 Budget Proposal fails to give the Commission's that opportunity.
Thank you.
Appendix 1
CPSC Resources
------------------------------------------------------------------------
Year Budget Authority FTEs *
------------------------------------------------------------------------
1974 $34,776,000 786
1975 $36,954,000 890
1976 $39,564,000 890
1977 $39,759,000 914
1978 $40,461,000 900
1979 $42,940,000 881
1980 $41,350,000 978
1981 $42,140,000 891
1982 $32,164,000 649
1983 $34,038,000 636
1984 $35,250,000 595
1985 $36,500,000 587
1986 $34,452,000 568
1987 $34,600,000 527
1988 $32,696,000 513
1989 $34,500,000 529
1990 $35,147,000 526
1991 $37,109,000 514
1992 $40,200,000 515
1993 $48,400,000 515
1994 $42,286,000 518
1995 $42,431,000 487
1996 $39,947,000 487
1997 $42,500,000 480
1998 $45,000,000 480
1999 $46,949,000 480
2000 $48,814,000 480
2001 $52,384,000 480
2002 $55,200,000 480
2003 $56,767,000 471
2004 $59,604,000 471
2005 $62,149,000 471
2006 $62,370,000 446
2007 $62,370,000 420
2008 (proposed) $63,250,000 401
------------------------------------------------------------------------
* This column represents the staffing ceiling established for the agency
in each year. The term FTE or full time employee has been used since
1980. From 1974-1979 the figures in this column represent positions or
people. One FTE is equivalent to 2,080 hours per year.
Senator Pryor. Thank you.
Mr. Dean?
STATEMENT OF JOHN C. DEAN, PRESIDENT, NATIONAL ASSOCIATION OF
STATE FIRE MARSHALS
Mr. Dean. Mr. Chairman, Senator McCaskill, my name is John
Dean. I am the current President of the National Association of
State Fire Marshals, and have served as the Fire Marshal for
the State of Maine since 1998. I have served as a fire chief, a
firefighter, and an EMT for most of the past three decades.
Thank you for the opportunity to appear before the
Subcommittee this morning to share the views of NASFM on the
U.S. Consumer Product Safety Commission. I would like to convey
a sense of urgency about the current state of the CPSC and the
need for immediate action to address both short-term and long-
term needs.
Many of the ills of the commission have been documented and
are well known to this Committee: The budget that has not even
kept up with inflation, the attrition of long-time experienced
staff, a topheavy management structure, and a lack of quorum
that has contributed to paralysis on many issues. We have even
heard that the commission is making plans to consolidate
offices to save on rent, throwing out active records because
there is no room to store them.
To use an analogy from the emergency responder community,
the CPSC has been hemorrhaging to the point where it is now in
critical condition. It moves slowly at best, but in most cases
it is completely paralyzed. We believe the patient can be
saved, but immediate and decisive action is needed by Congress
to address both the short-term survival and the long-term
viability of the agency.
We recommend a two-part approach. First, a short-term
infusion of additional funding above the current services to
get the patient's heart beating and the blood flowing. We
realize that the Commerce Committee does not appropriate funds,
but we believe you can influence those who are responsible to
give this matter serious consideration.
How much more should the CPSC be given to do its job? We
would respectfully suggest a starting point of $75 million for
the coming year, which is $12 million above the Fiscal Year
2008 budget request, and would amount to spending only about 25
cents per person in the United States. This relatively small
additional expenditure now and similar modest increases over
the next few years would help the agency rebuild and train the
staff, pay for office and storage space, and complete work on
projects that have been languishing for years.
Second, it is time for Congress to ask the Government
Accountability Office to determine how the CPSC can best
continue to fulfill its mission to consumers. A GAO study might
consider whether the Commission has the resources to fulfill
its mission. The Commission's budget request for Fiscal Year
2008 is about $63 million. That is $63 million and about 400
full-time employees, to prevent $700 billion annually in losses
from incidents involving consumer products within the agency's
jurisdiction.
A GAO study might compare the Commission's funding and
staffing levels to those of other Federal agencies with the
same mission such as the Food and Drug Administration. The CPSC
has less than \1/20\ the number of employees of the FDA, with a
budget about \1/29\ as large as FDA, to oversee products in its
jurisdiction whose economic losses equal 70 percent of the
retail value of the FDA products.
A GAO report might consider how the Commission and other
agencies manage the same function, product recalls. The FDA,
Federal Aviation Administration, National Highway Traffic
Safety Administration, Department of Justice, and U.S.
Environmental Protection Agency have broad powers to ensure
public safety. Does the Commission have sufficient authority
and resources to properly research, test, and deal with the
manufacturers of products that have been designed and
constructed in an inherently dangerous way?
A GAO study might address the question of whether it is
time for the CPSC to be transformed from a commission structure
to an agency headed by a single administrator, like all the
other government agencies I mentioned in this statement.
Firefighters care deeply about public safety. Our view of
the commission is that if it is to continue to exist, and we
strongly believe that it should, it must have the authority and
resources to protect human life and property from consumer
products within its jurisdiction. It must have leadership
committed to public safety and unwilling to accept constant
erosion of the agency's human and physical resources. We urge
the Subcommittee to ask the GAO to take a hard look, because a
hard look is what is needed now.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dean follows:]
Prepared Statement of John C. Dean, President, National Association of
State Fire Marshals
My name is John Dean. I am the current President of the National
Association of State Fire Marshals, and have served as the Fire Marshal
for the State of Maine since 1998. I have served as a fire chief, a
firefighter and an EMT for most of the past three decades. Thank you
for the opportunity to appear before the Subcommittee this morning to
share the views of NASFM on the U.S. Consumer Product Safety
Commission.
With all due respect, an oversight hearing lasting a few hours is
not adequate to cover this morning's topic. But I would like to convey
our sense of urgency about the current state of the CPSC and the need
for immediate action to address both short-term and long-term needs. We
have many safety issues before the Commission, but rather than
bemoaning the lack of progress in each, we think it would be more
useful to approach this hearing from a broader perspective and address
the Commission's basic ability to fulfill its mission.
Before there even was a United States of America, Scottish moral
philosopher and political economist Adam Smith wrote, ``The chief
purpose of government is to preserve justice. The object of justice is
security from injury.'' \1\ Security from injury is the mission of the
Consumer Product Safety Commission, and we believe that it is an
appropriate function of good government.
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\1\ Lectures on Jurisprudence, originally delivered at the
University of Glasgow in 1762-1763. http://oll.libertyfund.org/Home3/
Book.php?recordID=0141.06.
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However, many of the ills of the Commission have been documented
and are well known to this Committee: the budget that has not even kept
up with inflation, much less been increased on the basis of the work
that needs to be done; the attrition of long-time experienced staff,
leaving a skeleton crew of capable but junior technical employees to do
most of the work without guidance, expertise, historical memory or the
means to acquire these necessary resources; a management top-heavy with
Senior Executive Service employees; a lack of quorum that has
contributed to paralysis on many issues. We have even heard that the
Commission is making plans to consolidate offices to save on rent,
cramming the staff into ever-smaller spaces and, in the process,
throwing out active records because there is no room to store them.
To use an analogy from the emergency responder community, the CPSC
over the past several years has been hemorrhaging to the point where it
is now in critical condition: The resources and leadership no longer
exist to allow the Commission to fulfill its very important mission,
and it is no longer functioning. It moves slowly at its best, but in
most cases is completely paralyzed.
We believe the patient can be saved, but immediate and decisive
action is needed by Congress to address both the short-term survival
and the long-term viability of the Agency. We know that the Congress is
already considering legislation to extend the Commission's quorum until
such time that a new chairman is in place.
For the other concerns, we recommend a two-part approach.
First, we suggest a short-term infusion of additional funding above
current services to get the patient's heart beating and the blood
flowing. We realize that the Commerce Committee does not appropriate
funds, but we believe that it is appropriate for you to ask that this
be given serious consideration by those who are responsible. The
current CPSC budget breaks out to only about 21 cents per person in the
United States. This is entirely inadequate for an agency charged with
assuring the safety of products in America's homes. It is certainly not
a bargain for consumers.
So how much more should the CPSC be given to do its job? This could
and probably should be done incrementally over the next several years.
But we would respectfully suggest a starting point of $75 million for
the coming Fiscal Year--which is $12 million above the FY08 budget
request and would amount to spending only about 25 cents per person in
the U.S. This relatively small additional expenditure now--and similar
modest increases over the next few years--would result in several
benefits: It would help the Agency get back on track to rebuilding and
training the staff so that they can, in time, develop the expertise to
become the product safety leaders they should be. It would allow the
Agency to pay for office space for staff and storage space for working
records. It would allow them to complete work on projects that have
been languishing for years, and to do a proper job of the projects they
are addressing.
Second, we believe it is time for the Congress to ask the
Government Accountability Office (GAO) to conduct a head-to-toe
examination of the Agency to determine how the CPSC can best continue
to fulfill its mission to consumers and recover the viability and the
relevance it had in the early days of its existence.
A GAO study must consider whether the Commission has the resources
to fulfill its mission. According to the Commission, deaths, injuries
and property damage from consumer product incidents cost the Nation
more than $700 billion annually. The Commission clearly lacks the
authority and resources to address losses of this magnitude. The
Commission's budget request for Fiscal Year 2008 is about $63 million.
Again, that's $63 million and about 400 full-time employees to prevent
$700 billion annually in losses from incidents involving consumer
products within the Agency's jurisdiction.\2\
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\2\ http://www.cpsc.gov/about/about.html and http://www.cpsc.gov/
cpscpub/prerel/prhtml07/07118.html.
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A GAO study might compare the Commission's funding and staffing
levels to those of other Federal agencies with the same mission. For
example, the GAO might look at the Food and Drug Administration, which
has 9,000 employees and a budget of over $1.8 billion to oversee
products in its jurisdiction that total about $1 trillion a year in
retail sales.\3\ The CPSC has less than \1/20\ the number of employees
of FDA, with a budget about \1/29\ as large as FDA's, to oversee
products in its jurisdiction whose economic losses alone equal 70
percent of the retail value of FDA's products.
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\3\ http://www.fda.gov/oc/history/historyoffda/default.htm.
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A GAO report might consider how well other government agencies are
supporting the Commission's mission. If preventing injury is a
legitimate role of government, the GAO might question why the USDA was
given $16.7 million to promote the sale of cotton--when the Commission
lacks the funds to properly review its 1953 general wearing apparel
flammability standard, which was recently tweaked only to update some
definitions and laundering procedures. Meanwhile, we continue to see
many fires, horrific burns and tragic deaths involving everyday
clothing, much of it made of cotton, especially among children and the
elderly. The standard is so weak, newspaper and facial tissue can pass
it.
A GAO report might consider how the Commission and other agencies
manage the same function: product recalls, as well as the Commission's
ability to compel recalls. Again, comparisons may be useful. The FDA,
Federal Aviation Administration, National Highway Traffic Safety
Administration, Department of Justice and U.S. Environmental Protection
Agency have broad powers to ensure public safety. Does the Commission
have sufficient authority and the resources to properly research, test
and deal with manufacturers of products that have been designed and
constructed in an inherently dangerous way?
A GAO study could address the question of whether it is time for
the CPSC to be transformed from a commission structure to an agency
headed by a single administrator--like all of the other government
agencies I have mentioned in this statement.
And, finally, a GAO study could answer the basic question: should
there even be a U.S. Consumer Product Safety Commission, or should we
rely entirely on litigation to address the $700 billion in losses from
incidents involving consumer products?
Firefighters care deeply about public safety. Our view of the
Commission is that if it is to continue to exist--and we strongly
believe that it should--it must have the authority and resources to
protect human life and property from consumer products within its
jurisdiction. It must have leadership committed to public safety and
unwilling to accept constant erosion of the Agency's human and physical
resources. We urge the Subcommittee to ask GAO to take a hard look,
because a hard look is what is needed now.
I earlier quoted Adam Smith and will conclude, with apologies to
the Majority, by quoting Ronald Reagan, who said, ``Don't be afraid to
see what you see.'' Thank you, Mr. Chairman.
Senator Pryor. Thank you.
And last, Mr. Locker.
STATEMENT OF FREDERICK LOCKER, ESQ., GENERAL
COUNSEL, TOY INDUSTRY ASSOCIATION AND THE
JUVENILE PRODUCTS MANUFACTURERS ASSOCIATION
Mr. Locker. Thank you, Mr. Chairman and members of the
Committee. I am Frederick Locker. I am General Counsel of the
Toy Industry Association and the Juvenile Products
Manufacturers Association. These are both not-for-profit trade
association members of the Council of Manufacturing
Associations of the National Association of Manufacturers. And
I'm a member of a coalition which is a CPSC coalition and part
of NAM. Thank you for providing this opportunity to testify
today.
I want to be clear that our coalition represents more than
65 product manufacturers and, importantly, trade associations.
We have functioned for many decades as a forum to address
common issues related to the operation of the commission and
policies initiated pursuant to the Consumer Product Safety Act
and those related acts we call the sister acts. The mission of
our coalition is to promote product safety in a fair, balanced,
and effective manner.
The theme I think from today is that more is not always
better; better is better. And we'll touch on that. The
coalition does not involve itself in pending product-specific
regulatory or adjudicative matters. Similar to every witness on
this panel and the commission members that you have heard from,
we support the important and essential mission of the
commission.
CPSC's mission is vital. It protects children and families
against unreasonable risk of injury and death from more than
15,000 types of consumer products, and it governs a wide range
of hazards. Their work is vital in addressing consumer hazards
through a framework of mandatory product standards, engagement
in these consensus standard-setting processes that you have
heard something about, compilation of important data upon which
to base decisions to engage in rulemaking, issuance of safety
guidelines, implementation of information and education
programs in an effort to proactively avoid injuries, and
product recalls and corrective actions when necessary.
The agency is operating on a relatively modest budget. We
have all agreed that the $63.25 million allocated for 2008
should certainly be granted, and in your discretion and subject
to negotiation with the administration, we would favor
significant increases earmarked for retention of staff,
upgrades to their testing laboratory, increased coordination
with other countries regarding not only the effectiveness of
standards but also better inspection and enforcement
coordination. We ask this Committee to act thoughtfully in its
review of the regulatory structure, however, that has been in
place and served the American public for more than 30 years.
These are no doubt exceedingly difficult economic times. A
vibrant, healthy manufacturing sector in our Nation is
necessary for our Nation's prosperity. U.S. manufacturers in
the consumer product industry presently face increasing global
competition. It's more intense than it has ever been before.
You know that as members of this Committee.
In such an economic environment, the U.S. manufacturer
should not be disadvantaged by unnecessarily intrusive and
inefficient domestic regulatory regimes. More is not always
better. More efficient, leveraged use of resources is what we
seek and what we aim for.
Now we have noted there has been marked improvement in the
openness of the commission, and we have specific
recommendations that we've come here to talk about. We support
dynamic new partnerships between stakeholders and the
commission to promote safety and safe practices with consumers.
Consumer information and education we understand is not a
substitute for the essential responsibility that is ours as
manufacturers to provide absolutely safe products, but it can
help with that percentage of accidents due to improper,
irresponsible conduct or lack of supervision of minors. You've
touched on that today in terms of the complex issues related to
ATV use. The commission is fully authorized to embark on such
programs. They do not need greater authority. They can act now,
and encouragement from Congress should be provided.
Next, we support, strenuously support the Commission's
involvement in those private consensus standard-setting
activities that people talked about. These standards are
essential, whether it's UL or ASTM or ANSI or ISO or other
standard-setting bodies, commission engagement is important in
providing comments, proposals, and the involvement of their
staff is essential. And with a process that leads to 10 times
as many standards being enacted, revised, reviewed, and changed
on a constant, dynamic basis in that regard as compared to
mandatory standards, it is essential.
And, finally, a few other areas. We need to have them
engage in outreach, and engage that portion of the population
of our country that is the small manufacturer and small
businesses, which comprise in many cases more than 60 or 70
percent of our manufacturing trade associations. You write the
laws, but these companies and businesses need better guidance,
and they need to understand what those laws mean, and they need
the help of the agencies in this government to understand that
so they can engage constructively in business and the economy
can grow.
The CPSC has a strong role in setting and enforcing these
standards. In a global economy, we note that this agency is
important, and their international engagement is important not
just to ensure import compliance with our safety standards, but
to seek to harmonize standards globally in a global economy, to
promote export opportunities for American businesses, to
eliminate nontariff trade barriers which may act as a barrier
of entry to U.S.-produced or designed goods.
The existing regulatory framework is clearly effective.
However, as everyone has acknowledged today, more resources are
needed. We agree with you in the Senate and every other panel
member, that the CPSC really doesn't lack the requisite
authority to implement its congressional mandate to protect the
public against unreasonable risks of injury associated with
consumer products. They need greater resources to implement it
effectively, and they need to leverage those resources with
other agencies within the government to do so.
Thank you for providing me this opportunity.
[The prepared statement of Mr. Locker follows:]
Prepared Statement of Frederick Locker, Esq., General Counsel, Toy
Industry Association and the Juvenile Products Manufacturers
Association
Mr. Chairman and members of the Committee, I'm Frederick Locker,
General Counsel to the Toy Industry Association and Juvenile Products
Manufacturers Association, not-for-profit trade Association members of
the Council of Manufacturing Associations of the National Association
of Manufacturers (NAM), and a member of the NAM CPSC Coalition. Thank
you for providing me the opportunity to testify on the reauthorization
of the U.S. Consumer Product Safety Commission (``Commission''). Our
Coalition represents approximately 65 consumer product manufacturers
and manufacturing associations. It has functioned for many decades as a
forum to address common issues related to the operation of the
Commission and policies initiated pursuant to the Consumer Product
Safety Act and related sister acts. The mission of the Coalition is to
promote product safety policy in a fair, balanced and effective manner.
The Coalition does not involve itself in pending product specific
regulatory or adjudicative matters. Similar to the other witnesses on
this panel, we support the important and essential mission of the
Commission.
CPSC Performs a Vital Function
CPSC's mission is to protect children and families against an
unreasonable risk of injury and death from more than 15,000 types of
consumer products from a wide range of product hazards. Their work is
vital in that it addresses consumer product hazards through a framework
of mandatory product safety standards; engagement in the voluntary or
consensus standard-setting process; compilation of consumer injury
data; issuance of safety guidelines; implementation of information and
education programs in an effort to proactively avoid injuries; and
product recalls and corrective actions when necessary. The agency is
operating on a relatively modest budget, with a request of $63,250,000
for Fiscal Year 2008. We believe that their budget request should be
granted with increases earmarked for retention of staff, upgrades to
their testing laboratory and support of increased coordination with
other countries regarding harmonization of standards with better
inspection and enforcement coordination.
With respect to reauthorization of the Commission, we ask this
Committee to act thoughtfully in any review of a regulatory structure
that has served the American public well for more than 30 years. In
these exceedingly difficult economic times a vibrant healthy
manufacturing sector is critical to our Nation's prosperity. U.S.
manufacturers in the consumer product industry presently face
increasing global competition that is more intense than ever before. In
such an economic environment, U.S. manufacturers should not be
disadvantaged by an unnecessarily intrusive and inefficient domestic
regulatory regime.\1\
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\1\ It is interesting to note that the European Union recently
announced that it wants to boost trade between EU countries by making
it more difficult for member states to block imports of specific
products on the basis that they do not meet a national product safety
standard. The EU wants member states to bear the cost and burden of
demonstrating that a product is unsafe if they wish to remove it from
their market. Procedures Relating to the Application of Certain
National Technical Rules to Products Lawfully Marketed in Another
Member State and Repealing Decision 3052/95/EC.
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CPSC Has Effectively Marshaled Resources
The Commission works well with and understands the needs of
manufacturers, retailers and the consumers. Whenever appropriate, they
have encouraged voluntary collaborative actions among stakeholders to
address safety requirements. During the past decade, they have worked
cooperatively with industry to conduct more than 5,000 recalls and
needed to resort to litigation to compel recalls only several times. In
2006, CPSC completed 471 product recalls involving nearly 124 million
product units that either violated mandatory standards or presented a
potential risk of injury to the public and negotiated civil penalties
of approximately $2.3 million. In addition, the CPSC compliance staff
has continued to refine its Retailer Reporting Model implemented in
2005 and used by two of the Nation's largest retailers. This provides
additional trending complaint data for evaluation by the staff, which
supplements manufacturer and consumer reporting. With shrinking
resources, leveraged collaborative action is preferable to mandatory
regulations provided it can be implemented in a timely fashion and
adequately addresses an unreasonable risk of injury.\2\
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\2\ An excellent example is their work with industry to revise the
ASTM consensus baby walker safety standard to address injuries from
stair falls. New walkers with safety features are now on the market.
There has been a decrease in injuries of over 84 percent since 1995,
likely due in large part to the effectiveness of such standard
requirements. The commission projected societal costs decreased by
about $600 million annually from this one action. Similarly, there was
an 89 percent reduction in crib-related deaths from an estimated 200 in
1973 and an 82 percent reduction in poisoning deaths of children
younger than 5 from drugs and household chemicals from 216 in 1972.
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Today's U.S. economy is consumer-driven. An enormous number and
variety of consumer products are designed, manufactured, imported and
sold in the United States. With that in mind, industry, standards
organizations and internal safety requirements developed in cooperation
with manufacturers result in some of the best hazard-based standards
that ensure that American consumers may be comfortably secure in the
safe use of their consumer products. Many companies also increasingly
recognize the value of taking responsible corrective action to address
patterns of injuries or misuse that may indicate a problem with their
product. This accounts for the vast majority of product recalls
conducted in cooperation with the Commission. Of course, there are
still occasions where the Commission justifiably acts to remove unsafe
products from the marketplace and to set standards where private
standards either do not exist or are clearly inadequate. Consumer
product manufacturers are committed to working with the Commission to
achieve these objectives. We have consistently supported Commission
efforts, along with the U.S. Customs Service, to monitor imported
products to ensure that they meet mandatory Federal safety standards.
We recognize that this has been an efficient leveraging of resources to
enhance enforcement related to product imports. In addition, we note
that the Commission has played an increasingly significant role in
educating consumers about safety concerns and practices.
CPSC Has Shown Marked Improvement in Its Openness
U.S. industry has made no secret of its discomfort with certain
past Commission practices, policies and procedures over the years. We
have expressed concern in the past when cooperation with industry was
minimized while a public-relations campaign to tarnish a company was
launched in the media. We have objected in the past to proposed
mandates when education, research and innovative private initiatives
were not encouraged or leveraged. We have expressed concern when due
process has not been accorded companies.
We have also lauded the Commissions efforts at affording public
comment, of all interested parties without predisposition on important
matters. We appreciate the Commission hearings and outreach workshops
to improve recall efficiency. This affords experts from a variety of
disciplines to share information. In particular we have noted and
applaud the Commission's growing emphasis on sound hazard research and
data, including its focus on more rigorous risk-benefit analyses, as
the basis for regulatory action. We note that they employ capable high-
level and well-experienced epidemiologists, toxicologists,
physiologists, chemists, engineers, statisticians, and economists to
inform their decisionmaking. They have performed well in OMB
assessments of their overall regulatory policies.
Along those lines, we believe that there are ways to make the
Commission more effective and at the same time more efficient. As I
noted, in these difficult economic times complexities and confusion in
the regulatory process are an unnecessary burden on consumer product
companies. Allow me to share a few proposals on ways the Commission can
increase its effectiveness in protecting consumers while minimizing
burdens on the manufacturing sector of this country.
Recommendations
Collaborative Information and Education Programs
First, we support dynamic new partnerships between stakeholders and
the Commission to promote safety and safe consumer practices. Consumer
information and education does not substitute for the essential
responsibility of manufacturers to provide safe products, but it can
help with a large percentage of accidents due to improper or
irresponsible conduct or lack of supervision of minors. The Commission
is fully authorized to embark on such programs, but encouragement from
Congress should be provided.\3\
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\3\ CPSC has been increasingly effective at using electronic media
and websites. The creation of www.recalls.gov and enhancements to their
website has resulted in a rapid growth from 200,000 visits in 1997 to
what is expected to be almost 25 million visits by the end of the year.
Product safety information is increasingly available in Spanish and
other languages. In addition, outreach activities such as the
Neighborhood Safety Network; collaborative efforts with FEMA and public
information education initiatives with NGO's and industries have
resulted in increasingly effective communication about fire and carbon
monoxide hazards, disaster preparedness, hazards associated with
recreational vehicles, proactive holiday safety messaging, poison
prevention, pool drowning risks and back to school safety programs.
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Continued Involvement in Consensus Safety Standards and Activities
Second, we are supportive of the Commission's involvement in
private standards activities as authorized in the current statute.
These standards are the bulwark of our national and even international
safety system, and the Commission plays an important role in providing
comments and proposals.\4\ However, we believe the Commission needs to
better manage and supervise its internal process, particularly staff
input to standards organizations, to ensure an opportunity for public
comment and to prevent proposals which lack technical merit or
otherwise cannot be justified as Federal standards. This is why we
support the Commission's stated strategic goal to improve the quality
of CPSC's data collection through 2009 by improving the accuracy,
consistency and completeness of the data. For an agency such as the
CPSC, it is essential to maintain and use accurate data as a valuable
tool to allocate staff time and resources to address emerging real
world hazards.
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\4\ CPSC has worked with stakeholders to develop effective
consensus standards completing approximately 10 times as many voluntary
standards as mandatory standards (CPSC assisted in completing and
developing 352 voluntary safety standards while issuing 36 mandatory
standards from 1990 through 2006).
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Continued Efforts to Engage and Educate Small Manufacturers
Third, there is a need for better guidance and education from the
Commission on the implementation of the Section 15 Substantial Product
Hazard Reporting provisions. Manufacturers with defective products that
could create substantial product hazards are obliged to report to the
Commission and, if needed, to take corrective action including recalls.
However, the law and implementing regulations are vague and ambiguous.
It is difficult for manufacturers, especially small businesses, to
determine when reporting and corrective action is necessary. Likewise,
it is difficult for them to comprehend how the penalty for the failure
to report in a timely fashion is justified by the agency. We support
the Commission's efforts to clarify guidance on reporting and penalty
computation by issuance of guidelines, which were subject to prior
publication, comment and review prior to adoption.\5\
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\5\ Federal Register, Vol. 71, No. 142, pages 42028-42031 and
proposed interpretive rule, Federal Register, Vol. 71, No. 133, pages
39248-39249.
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A Strong Role in Setting and Enforcing Safety Standards in a Global
Economy
Fourth, in a global economy, we note the importance of the agency's
international engagement to ensure greater import compliance with U.S.
safety standards and harmonization of standards to promote export
opportunities for American businesses and the elimination of non-tariff
trade barriers. CPSC has entered into Memorandums of Understanding
(MOU) with a number of foreign governments to provide for a greater
exchange of information regarding consumer product safety. We note by
the end of 2008, CPSC expects to have MOUs with 17 countries. These
activities are becoming increasingly important in helping to ensure
consistent hazard-based, harmonized global safety standards.
Existing Regulatory Framework is Effective, But More Resources are
Needed
Finally, we believe that the existing authority granted to the
Commission under the Consumer Product Safety Act and related Acts,
together with existing implementing regulations, are sufficient for the
CPSC to execute its mission in an effective manner. The CPSC does not
lack the requisite authority to implement fully its congressional
mandate ``to protect the public against unreasonable risks of injury
associated with consumer products.'' However, it requires greater
resources to implement such authority.
Thank you for providing me the opportunity to testify. The
Commission is an important agency and we fully support its mission. It
can and should, have the funding and resources it needs to effectively
function and we look forward to working with the Commission and the
Committee to this end.
Senator Pryor. Thank you. Now Senator McCaskill has a
conflict that has developed, so she is going to ask the first
questions.
Senator McCaskill. Thank you very much, Mr. Chairman.
I would ask you first, Mr. Locker, do you support making
the effectiveness of the recalls that CPSC has done public
information?
Mr. Locker. It depends on how you define ``effectiveness.''
Senator McCaskill. Well, I'll make it simple. Would you
support it being public how many of the products that have been
recalled actually have been returned? Do you support making
that public?
Mr. Locker. We have no problem with that information being
publicly available. However, I think we need to talk about this
in the context of what is an effective recall.
Think about it in your own terms. That toy that you may
have bought for your child 10 years ago that cost $5 and may
have had a 6-month useful life is not likely to be around. We
look at recall effectiveness the same way perhaps that the Food
and Drug Administration does, or the National Highway Traffic
Safety Administration, as getting the message out. You can
bring the proverbial horse to the water trough but you cannot
necessarily make it drink.
So effectiveness is getting the message out, not
necessarily a body count of what you get back. Certainly we
expect to see 100 percent back of any products that are on the
retail shelf. In the hands of the consumer, over time, it's a
complicated factor. There's no simple answer to that issue of
what should be the number. We know that in studies, that
average consumer return rates over 15 years among a variety of
consumer products, different from automobiles, has been
approximately 4.5 to 5 percent.
Senator McCaskill. Well, you know, I guess maybe I have
shopped more garage sales than you have, for items for my
children. I don't think I ever had a car seat at a certain
point in time in my life that hadn't been purchased from
someone else.
And so I think knowing whether or not products have been
returned and to what extent they have been returned, is very
important information for the public. And now, with the advent
of the technology and websites, this would be something that
would be easily obtainable by a mother who was trying to figure
out if that high chair or if that crib--I had a lot of anxiety
about crib purchase when I was purchasing for my infants.
Do you agree that the cap on civil penalties for a knowing
violation is extraordinarily low in some circumstances, where
you're looking at companies that have a net revenue in the
hundreds of millions of dollars? Do you agree that a knowing
violation with a civil penalty capped at less than $2 million
seems extraordinarily low?
Mr. Locker. Sure, I'd like to answer that, and I will. But
with regard to your last comment, I would say one thing. We
have applauded the use of technology for outreach programs on
products, on heirloom and used products, on products in the
thrift store milieu, products that may be put away in attics.
And that's why we have welcomed, and many of our members and
associations all lead to this great new concept of recalls.gov,
or the concept that the Chairman talked about and how it had
been implemented in Arkansas. We are clearly in favor of that.
Now, with respect to penalty caps, I want to note something
in terms of knowing violation. If you look at the statute,
knowledge is not actual knowledge; it can be imputed knowledge
also. So I think we need a definition and a better framework of
what that really means.
Senator McCaskill. Well, having been in a courtroom, it's a
very high burden. Whether it's imputed or whether it's actual,
it is a very high burden to meet knowledge.
Mr. Locker. Right. Now most of these cases of course never
wind up in the courtroom, and those that have, courts have
actually imposed lower civil penalties, even under the limits
that you have now, than the CPSC has. And in terms of the
historical perspective, you have to understand that you already
have a mechanism in place, and have since 1990.
So the old recalls of $2,000 per product and up to a cap of
$500,000 that existed in 1990 have actually been subject to
escalation provisions built into the enabling statutes, and
you've now reached up to $8,000 and in excess of $1.8 million,
and within 2 years those will go up.
And if we look at it in terms of historical perspective,
since 1990 the maximum amount of a civil penalty collected has
never exceeded the existing caps. So if you're going to create
that mechanism, just put a cap, you know, just make it more, it
isn't necessarily better.
If that means allocating staff resources and having this
agency hire 100 lawyers to just go out and enforce penalties, I
wouldn't necessarily be in favor of that. I'd like to see them
go out and hire those engineers and toxicologists and
epidemiologists that track that and can focus on, as we have
talked about, preventing those products from ever reaching the
marketplace.
Senator McCaskill. The last fact that I noticed in some of
the testimony and some of the information we were given is, I
think, fascinating. That is, two-thirds of the recalls came
from imported manufacturers.
Now it seems to me that if I were manufacturing a toy in
the United States of America, and I realized that two-thirds of
what was recalled was coming from our competitors in other
countries that don't have the kind of standards we have in the
United States--and I understand it's a cost factor for exports
for American manufacturers--but it seems to me right now, when
we are working so hard at the trade balance issue and working
so hard in terms of a global economy, it seems to me--and
maybe, Ms. Greenberg, or Ms. Weintraub, or Mr. Dean, if you
would want to briefly comment on this--it seems to me that
starving this agency when we are, I think, at the beginning
stages of a global explosion in terms of manufactured goods
being produced with much lower labor costs, much less
regulation, much less environmental standards, with those goods
coming into our country, that the American manufacturers would
want us to pump up this agency because they are doing a great
job in terms of the recalls that are occurring, calling out
your competitors for production of products that simply aren't
safe by our standards.
Mr. Locker. And that's one of the reasons we're here today
saying we fully, completely support the vital mission of this
agency and would like to see them have more resources, so we
couldn't agree more with that. But as you look to those
numbers, you have to realize that the fact that two-thirds of
the recalls involved imported products and two-thirds of those
were from China, that's more likely to be a reflection of the
nature of the global economy and how many goods are coming in
as imports, unfortunately, into the United States, rather than
the particular issues related to manufacturers in overseas
markets.
And we clearly support every effort to reach overseas.
That's why, if you look at our comments on the record, we want
this agency engaged with overseas governments not only to
buttress the product safety standards, improve enforcement, but
also to create harmonized standards that reduce nontariff trade
barriers.
Senator McCaskill. I don't have any other questions, unless
any of you would like to comment on that.
Ms. Weintraub. I would just like to make one comment. We
agree, obviously, that the commission needs many more resources
to deal with these growing and complicated problems. One issue
that I just don't want to let fall through the cracks is that
of the two-thirds of the two-thirds of the products that are
made in China, I'm not sure what percentage of them but a
sizable percentage are actually made by American manufacturers
who have produced their products in China. So in addition to
working very diligently to prevent products that don't meet
mandatory or voluntary standards from being exported into the
United States, we need to do a lot of work with our American
manufacturers to make sure that they use the same standards and
the same standard of care that they do in the United States
when they're making their products, just as they do when
they're making their products overseas.
Senator McCaskill. Thank you, Mr. Chairman.
Senator Pryor. Thank you.
Mr. Locker, since Senator McCaskill has you in the hot
seat, I'll just keep you there for a few minutes.
Mr. Locker. I'm used to being there, Senator.
Senator Pryor. Me, too, sometimes. But let me ask about
recall reform. You guys are for recall reform?
Mr. Locker. Absolutely.
Senator Pryor. And give me, before we get into this, give
me a specific recall, that you disagree about. What product is
there that should not have been recalled?
Mr. Locker. As I said, I don't want to get into specific--
--
Senator Pryor. No, I want you to, though. I want you to
give me an example so we can work on that.
Mr. Locker. You want an example of a product?
Senator Pryor. That got recalled that you think should not
have been recalled.
Mr. Locker. Let's take a step back. The fact of the matter
is, as you have heard, 100 percent of the products that have
been subject to corrective action were entered into on a
voluntary basis with those companies, so I'm not here to second
guess what companies have done. The fact that companies have
decided to engage in corrective action, whether we call it a
recall or something else, and done it collaboratively with the
CPSC, should be approved. I am not against recalls.
The process, however, by which you get there needs to be
clearer, as I have said, for manufacturers. They need to
understand their obligations in terms of reporting. They need
to have a balanced consideration, and a staff in place at the
agency that is familiar with the particular category of product
that they're dealing with, to be able to engage in discussions
about that, to be able to engage in discussions with the staff
to determine whether the product itself is actually defective
to begin with, or whether the recall was done proactively
because of a concern that the product may be even unreasonably
misused in the marketplace.
So at the end of the day it's really about putting people
with knowledge and efficient capabilities together so that they
can get to that end result. And I'm not so sure that that end
result has always been achieved in the most efficient,
effective, or fair manner. But the fact of the matter is, the
recalls that have taken place, since they are 100 percent
voluntary with industry, have done so with the consent of that
industry.
Senator Pryor. So, in other words, your concern is more of
a process concern. In other words, in some ways you're making
my argument that I was trying to make earlier with the Chairman
of the Commission: the Commission needs more people and needs
more resources.
Mr. Locker. Yes, as long as they're not lawyers, sir.
Senator Pryor. Now, tell me why you say that?
Mr. Locker. That was just a joke, but actually I do think
that the legal staff does a fine job at the agency. I think the
resources and the types of people that this agency needs are
the people that are electrical engineers, engineers,
scientists, chemists that are familiar with these emerging
technologies that we've all talked about that are finding their
way into products, so that if there is an issue that comes up,
people can engage in a dialogue. The last thing you want from a
government regulator is for them to know so much--or their
people dealing with issues that, as technology expands, that
don't have any proficiency in that technology.
Senator Pryor. Let me ask this question: If the recalls are
100 percent voluntary, and one of your companies decides not to
recall a product that CPSC thinks is a choking hazard, your
company disagrees, what happens then?
Mr. Locker. Then the CPSC has the option of commencing an
adjudication.
Senator Pryor. And does that happen sometimes?
Mr. Locker. It does happen, and it has happened rarely. It
actually happened with a company from your state, in Arkansas,
Daisy Manufacturing. And it does happen occasionally.
The power of the CPSC, however, is in the power of their
bully pulpit. There are so many different streams of
distribution and channels, that even if the agency doesn't get
the manufacturer necessarily to agree to go along with the
recall, they can act on their own to deal with other
distributors of that product.
And no one has talked about the role of retailers in
today's economy. There has been enormous consolidation in
retailing. And so if a retailer, for example, engages in that
recall, it almost doesn't matter today what the manufacturer
wants to do.
Senator Pryor. We can talk about that when we have more
time because that's more of a philosophical question, but let
me ask you, is it fair to say that from the standpoint of your
industry, and your members, you feel like there is an
adversarial relationship with the CPSC?
Mr. Locker. Like any relationship, like any between people,
there are good times and there are bad times, and for the most
part I would actually not say it's adversarial. I would say
it's literally a discussion over how best to leverage resources
to get safety information and education out to the public and
to deal with product safety issues when they arise, and that's
a discussion we welcome every day.
Senator Pryor. All right. Let me ask that, because you
mentioned leveraging resources a number of times in your
testimony and in your answers here. When you say ``leverage
resources,'' what do you mean by that?
Mr. Locker. Well, let's take the important role of the U.S.
Customs Service in border protection and their interaction with
the agency. Historically that has been and proved to be an
extremely effective program, whether it's applied to toys or
appliances or fireworks or bicycles.
It is effective because it interdicts and deals with
products at the point of entry, prior to having to deal with
them when the products are in the hands of consumers or on
store shelves. And I think everyone favors earlier interdiction
if there is a problem with products.
The way that is leveraged, those people who have the
authority are Customs officers. They have the authority to
detain those products and conduct those inspections, in
conjunction with the expertise provided by the CPSC staff.
Senator Pryor. Are you saying that's not being done?
Mr. Locker. No, I'm saying it is being done, but more of it
can be done and it can be done more efficiently. And you have
to realize that when I'm talking about leveraging, it is being
done in an interagency manner with the staff of another agency
in the government that is funded and does have border
protection agents. So it's a question of allocation of those
agents to this mission, and that's a difficult balancing act
because they face many demands in this post-9/11 era, as well.
Senator Pryor. OK. Let me, if I may, switch to Mr. Dean
very quickly. The CPSC and I think the firefighters have been
working for several years to try to get the upholstered
furniture standard approved, and that is kind of at a
standstill as I understand. What has been the problem in
promulgating this rule?
Mr. Dean. Well, I think the problem may be just in the
willingness to move forward.
Senator Pryor. Is it from the agency's standpoint?
Mr. Dean. No, I think it's more from the industry itself.
We know that it can be done, the technology is there. We know
that California has had a standard for some time, and since
they instituted theirs, they have had a 25 percent reduction in
fatal fires involving upholstered furniture, so we know it can
be done and is manufactured there. We also see in Great Britain
similar results, and they rarely have a fatal fire from
upholstered furniture.
So we know it can be done. I think it's just a willingness
to agree to some of the details of how to go about doing it,
and I think that's always the stickler, is in the details.
Senator Pryor. OK. Let me ask the two consumer groups, if I
may, you all heard me a few moments ago ask about the lead in
the lunchboxes, and you heard Chairman Nord's explanation of
that. Do you agree with what she said?
Ms. Greenberg. Consumers Union believes that children's
products shouldn't have lead in them. The problem with lead is,
it builds up--it's cumulative.
So there is exposure from a variety of sources, and even
though the exposure that CPSC found was very small--and the
bioavailability I think is what she was referring to in terms
of kids and lunchboxes--the fact is that there is lead from a
number of sources that children are exposed to in their homes,
at school, in various products that they use. And the
cumulative effects are such that it can be very dangerous and
have serious impacts on kids.
Senator Pryor. So, in other words, you would like to see
lead banned from all----
Ms. Greenberg. We think that, yes, manufacturers and CPSC
should take the steps to get lead out of the lunchboxes,
because kids put their sandwiches in them, and they are just
exposed to too much lead in their daily lives. So, yes, we
would take issue with that position.
Senator Pryor. Ms. Weintraub, do you have anything to add
to that?
Ms. Weintraub. We would agree. Recently CFA, along with
Consumers Union, sent in comments to the CPSC on their
rulemaking which the comment deadline just ended on, lead in
children's jewelry. And in that comment we stated together that
we see no reason for lead to be in children's products unless
there is some essential use, and it still remains to be seen
what an essential use would be that cannot be replaced with
something that does not pose the same type of hazard in any
children's product, especially one in contact with children's
food, as well as toys that can be mouthed.
Senator Pryor. And their food 5 days a week in many cases.
OK. Ms. Weintraub, while I'm talking to you, what about the ATV
standard? As I understand it, your organization has been
critical of this proposed ATV rule because apparently it takes
into consideration speed and engine size but does not recognize
weight. Is that fair to say?
Ms. Weintraub. Sir, what has occurred is that from sort of
the beginning of time with ATVs, ATVs have been categorized by
the cubic centimeters of their engine, the cc's, as it's known.
And it was a 90cc threshold that has been in effect since the
1980s as determining what is an adult size ATV and what is a
youth model ATV.
What the Commission rulemaking proposes, and what also
industry's voluntary standards propose, is to move away from
this engine size, instead going to a system based on speed. The
industry standard and CPSC standard differ in the mile-per-hour
limits. We are opposed to both because we fear that there has
not been enough evidence, enough studies conducted to determine
whether, for example, a 14-year-old child could operate a 30
mile-per-hour ATV in a safe manner.
Also, if I may, speed is entirely one-dimensional. It does
not take into account the weight of the machine, and there are
many serious injuries, devastating deaths which occur when very
heavy ATVs fall on children and crush them and they die. The
concern is, with the speed limitation, how does that involve
the weight of the ATV? As the commission rule reads now, and
also as the ANSI proposed draft rule is now, there is no
consideration of weight either.
Senator Pryor. OK. Let me close with this last question for
the two consumer groups. I think you both have said in your
statements that you think the CPSC needs more funding. Do you
have any studies or any evidence that shows that as the funding
levels and as the staffing levels of the CPSC are going down,
that the number of consumer products that are violating CPSC
standards are growing, or that injuries or deaths are growing?
Is there a correlation to the budget or the size or the
effectiveness of the CPSC to the numbers going in the wrong
direction, is what I'm asking.
Ms. Greenberg. I can start out. You know, when we were
talking earlier about the number of recalls, I know Chairman
Nord said that they were at a record level of recalls, and when
we look back over the history of recalls it appears to us to
depend on the aggressiveness of the leadership of the CPSC,
because if you look back in 1980, there were upwards of over
500 recalls. Chairman Nord is talking about record level
recalls. I only know what the recall level was for 2006, and
that was 318 products. Under Chairman Ann Brown, the recalls
were in the 400s during her first year.
So it really depends on what the staff is doing and it
depends on who is in charge and what their sort of level of
focus is on the need to recall products. It makes it very
difficult to tell if there are more dangerous products as a
result of CPSC's understaffing situation right now, but
certainly for our purposes we see way too many kids being
exposed to recalled products. I've already talked about that.
And, Mr. Chairman, if I may just comment on one of the
things that Mr. Locker has said twice now, about the issue of
product misuse, and this is a perennial issue between industry
and consumer groups. I think it's very important to point out
that when the CPSC was created, it was established to address
issues that include foreseeable misuse.
And I'm quoting here from a letter that was written by
Robert Adler, a business professor in North Carolina, who
worked as a lawyer for the CPSC for a number of years. His law
review article, notes that ``While contributory negligence may
diminish the impact of a product liability suit, Congress
wanted no such limitations with respect to product safety
regulation. The operative test in determining whether CPSC
should take action has relatively little to do with whether or
not a consumer acted carelessly. Rather, the agency is supposed
to look at and weigh the severity and frequency of the harm,
whether the fix can be done inexpensively, and whether a
product fix would interfere with the product's utility.''
So I think it's very important that we understand what the
mission and the charge of this commission is, and it's not
about not acting when consumers have exposed children to a
dangerous situation. That's a misperception that we hear over
and over again, and it's something that disturbs us, and we
want to make sure it is clear on the record.
So I've given you my answer on the number of products.
Senator Pryor. You all have been very patient, and these
panels have gone a little bit longer than I think we all had
anticipated, but it has been informative and helpful. We're
going to keep the record open here for 2 weeks, to allow
Senators to ask questions, and we're going to submit that FDA
letter that we mentioned earlier for the record. There may be
other Senators who want to submit items for the record. Your
testimony will be made part of the record. And with that, we'll
adjourn the hearing, and we'll see you soon.
Mr. Locker. Senator Pryor, could I just ask you to
recognize that this is National Poison Prevention Week?
Senator Pryor. Sure. This is National Poison Prevention
Week. Thank you for bringing that up. Thank you.
[Whereupon, at 12:35 p.m., the hearing was adjourned.]
A P P E N D I X
Brooklyn, NY, March 28, 2007
Hon. Daniel K. Inouye,
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
Re: U.S. Consumer Product Safety Commission
Dear Senator Inouye:
Please consider adding my comments to the record of the March 21,
2007 oversight hearing on the U.S. Consumer Product Safety Commission.
The Commission can be one of the most effective agencies of the
Federal Government. Over the past thirty years its work contributed
significantly to a thirty percent decline in the rate of deaths and
injuries associated with consumer products. Unfortunately its
management has not always been effective. This has been especially true
under the current Administration. I believe that deaths and injuries
will increase if the Administration succeeds in further disabling CPSC.
While working for the U.S. Food and Drug Administration (FDA, 1968-
1973) I played a key part in identifying hazards (lead paint on toys,
asbestos in fabric and noise in caps). I was responsible for
identifying four of the first twelve toys banned by FDA. I transferred
to CPSC in 1973 and retired as a GS-12 Compliance Officer in its
Eastern (New York) Regional office in 2002. In addition to my assigned
work within the Commission, I played a key part in identifying the need
for voluntary standards for fuel containers and window guards (as noted
below). Thus, I can give you a perspective on where CPSC has failed and
how it can be improved.
CPSC is charged with protecting the public from unreasonable risks
of death and serious injury from fire, electrical, chemical and
mechanical hazards. It regulates 15,000 types of consumer products
including art materials, chemicals, cigarette lighters, cribs, electric
devices, extension cords, fireworks, flammable fabrics, furniture,
household gadgets, jewelry, lead paint, mattresses, pacifiers and toys.
Deaths, injuries and property damage from these regulated consumer
product incidents cost the Nation more than $700 billion.
The Commission's budget has always been insignificant compared to
the cost of the accidents it prevents. In 1975 its budget was
$36,954,000. It is now only $62,370,000, which is a tremendous decrease
when inflation is factored in. This compares with $254 million that the
Bush administration spent on public relations contracts in 4 years.
(The New York Times, March 13, 2005, pages 1 and 34.)
CPSC's original fourteen regional offices have been reduced to
two--San Francisco and Chicago. Field laboratories no longer exist, so
samples have to be shipped to the headquarters laboratory which can
delay analyses.
CPSC's full-time equivalent staff has decreased from 890 in 1975 to
440 in 2006. The cuts have been hardest on the field. The original
(1973) New York metropolitan area staff included twenty investigators,
six inspectors, six chemists and a support staff. I understand that
only one investigator is currently stationed in New York City--and she
works out of her house at the southern tip of Staten Island. Three
other investigators cover northern New Jersey, Long Island and
Westchester/Connecticut.
The Commission has not had an investigator stationed in Puerto Rico
for about twenty-five years. Years ago I concluded that many of the
products sold in Puerto Rico violate the Commission's regulations and
standards.
The Administration has placed a new priority on timeliness and
quantity of in-depth accident investigations. There is no way that the
field staff can conduct these accident investigations and the cover
even a fraction of the importers, manufacturers and distributors of the
above listed products. This is especially true in New York City.
Some areas where I have personal knowledge of hazards that should
be addressed are discussed below.
A few weeks ago ten people died in New York City in a fire believed
to have been caused by either an electric heater or an extension cord.
I worked on both hazards prior to my retirement. Initial information on
oil filled heaters came to me from the NYC Fire Department. Cheap
extension cords were a major problem that the staff had to deal with.
They often bear counterfeit UL listings.
A recent news article discussed a man whose eye was knocked out by
the hook of a bungee cord. I previously studied this product/hazard and
accumulated incident data showing that the design is faulty and that
safer devices are on the market. An American Society of Mechanical
Engineering report on Portable Luggage Cart Safety (11/17/95) pointed
out that ``Most current designs adopt the bungee cord for rapidly
securing and unfastening the load. This `rubberband like' restraining
element has been identified by the . . . (CPSC) as the primary source
of luggage cart injuries because of its propensity for producing impact
hazards that strike the eye. Countermeasures for controlling the impact
hazard randomly appear throughout the family of luggage carts.''
However, since the product does not violate an existing regulation, the
hazard is not caused by a defect and there were other priorities I was
not able to get CPSC to take action.
Aluminum bats. The New York City Council recently enacted a ban on
the use of aluminum bats in high school baseball games. These bats have
been responsible for the deaths of a number of ball players. A
Republican city councilman stated that ``Where the overseeing bodies
have failed to live up to their responsibility to protect these kids,
it falls into our laps.'' I presume that he meant that since CPSC has
failed to take action New York City will.
Window fall accidents. My memo to Ann Brown dated April 4, 1994
documented 227 preventable deaths from window falls. As a result CPSC
initiated work to establish a ``voluntary'' (ASTM PS 112-98) standard
for window guards. The Commission has taken no recent action to prevent
such falls. All that would be required is to issue yearly press
releases reminding parents to place guards in windows that are
accessible to children.
Gasoline containers. Congressman Moore is sponsoring the
``Children's Gasoline Burn Prevention Act.'' The current ASTM standards
for gasoline and fuel containers and their labeling were instituted as
a direct result of my 1978 petition (CP 78-17) to the U.S. Consumer
Product Safety Commission. See the Federal Register (45 F.R. 59376),
which lists me by name, but does not indicate that I was then an
employee of the Commission. The standards (now F22234-03) should be
reviewed to address Congressman Moore's concerns.
Nose rings with hazardous magnets. The magnets used in this jewelry
are the subject of a proposed revision to the ASTM standard for
children's toys (now F963-03). However, the standard does not cover the
magnets when used in jewelry worn in the nose by pre-teens. This
jewelry poses a similar hazard when aspirated into the lungs.
Cigarette lighters. This is a case where responsible industry will
cooperate in enforcement. A survey that I conducted in 2001 revealed
that non-complying lighters were being imported from China and openly
distributed in New York City. I still see them on display. Them is just
no field staff to enforce this standard.
Mattresses. The Commission's standard has been revised twice.
However, almost no inspections were conducted to enforce the standard
that was effective from 1984 to 2006. With the current staff; it is not
likely that the revised standard will be enforced. Reconditioned used
mattresses pose a serious fire hazard that can be eliminated with
appropriate manpower.
Mercury. The use of metallic mercury in voodoo rites threatens
public health and the housing stock. It may turn out to be as great a
threat as lead paint. However, CPSC has done very little in regard to
regulating retail sale of metallic mercury. This was true even in the
1990s when the staff was larger. There are long term implications to
this matter, which has low priority at this time.
Chemical hazards under the Federal Hazardous Substances Act (FHSA).
The original New York staff consisted of twenty investigators who had
degrees in the sciences or engineering. This staff was deliberately
eliminated during the 1980s reduction-in-force. Over the years local
management hired and promoted a number of individuals who had never
even taken a college science or chemistry course. These individuals
could, thus, not perform a basic part of their job (chemical
inspections under the FHSA).
It is most discouraging when competent productive workers see
management hire and promotes unqualified inexperienced individuals to
the GS-12 level! There should be a minimum education level for CPSC
investigators. Similarly the Commissioners should be individuals who
``by reason of their background and expertise in areas related to
consumer products and protection of the public from risks to safety are
qualified to serve as members of the Commission.'' (See section 4(a) of
the Consumer Product Safety Act).
The Consumer Product Safety Commission can not function without an
adequate, competent, dedicated and inquisitive staff--from the Chairman
down to the investigator level. Fully staffing the agency's field with
competent employees will more than pay for itself in increasing public
safety and decreasing the cost of government programs such as Medicare
and Medicaid.
Sincerely,
Martin B. Bennett.
cc: Senator Mark Pryor, Chairman, Subcommittee on Consumer Affairs,
Insurance, and Automotive Safety
Mr. Alex Hoehn-Saric, Committee Counselor
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Hon. Nancy A. Nord
Question 1. The Commission's final rule in the Portable Generator
Labeling proceeding (72 Federal Register 1443, January 12, 2007) stated
that the issue of ``integrated CO monitors'' would be addressed in the
context of the Portable Generator Performance Standard Advance Notice
of Proposed Rulemaking (71 Federal Register 74472, December 12, 2006)
(hereinafter ``Generator Performance ANPR''). The comment period for
the Generator Performance ANPR ended on February 12, 2007. What is the
Commission's current timeline for issuance of a specific Notice of
Proposed Rulemaking (``NPRM'') regarding interlocked carbon monoxide
detection devices on new portable generators?
Answer. CPSC staff is investigating potential technical approaches
to reducing the hazard of carbon monoxide (CO) poisoning from portable
generators. In FY 2006, the CPSC's staff successfully demonstrated the
feasibility of shutting down a generator when elevated levels of CO are
detected, using CO detectors located in the home and in the vicinity of
an operating generator. Additional developmental work would be
necessary to address technical and human factors issues that were
identified during this concept demonstration. CPSC staff believes that
protecting the consumer from the CO hazard by way of an interlocking or
auto shut-off device is a complementary yet secondary approach that
should be pursued if the CO emission rate cannot be sufficiently
reduced. The staff is currently considering additional research on
auto-shutdown techniques in conjunction with the low-CO engine
contract, using the same engine control technologies that are being
used in that effort. This research will be completed in FY 2008.
The staff's current emphasis is on developing a prototype portable
generator that emits significantly reduced levels of CO, using
available technologies such as exhaust catalysts and electronic fuel
injection. If successful, this would provide a margin of safety to help
protect consumers against exposure to CO in the event they improperly
operate a generator in an enclosed space or near an open window.
The Commission awarded a contract to the University of Alabama in
September 2006 to develop and demonstrate a prototype low-CO emission
generator with a goal of achieving reductions in the CO emission rate
on the order of 90%-95%. CPSC staff predicts that this level of
reduction will significantly improve survivability when a generator is
operated in an improper location. This effort is ongoing and will be
completed in FY 2008.
The public comment period for the advance notice of proposed
rulemaking (ANPR) closed on February 12, 2007. The Commission received
detailed and complex comments which CPSC staff is currently evaluating.
Additionally, CPSC staff is assessing technologies and researching
performance testing methods that would be required if the Commission
voted to proceed to issue a notice of proposed rulemaking (which is the
next step in the Commission's mandated three-step rulemaking process)
on all or part of the issues raised in the ANPR. When these steps are
completed, the staff will prepare a briefing package (publicly
available) and provide it to the Commission for its consideration.
Since rulemaking is necessarily driven by scientific assessments and
conclusions, no hard date can be set at this time for the completion of
that briefing package.
Question 2. Last year, the Commission completed approximately 471
cooperative recalls of consumer products. It is my understanding that
all of these were completely voluntary. Does the Commission have
adequate resources to order a mandatory recall--if necessary?
Answer. Yes. For a number of reasons, the Commission rarely must
litigate to obtain recalls. On those occasions when such litigation has
been required, adequate resources have always been provided for staff
to proceed.
Question 3. Commissioner Thomas has mentioned nanotechnology as one
``emerging technology'' that the Commission will have to address in the
near future. Do you see any other emerging technologies that the
Commission may have to deal with in the near future? If so, how should
the Commission deal with them?
Answer. Addressing the safety challenges that can arise from new
and emerging technologies has been an integral part of the agency's
mission since its inception. Working with stakeholders, consumers and
other government agencies, CPSC staff continuously monitors new
exposures, patterns, and trends in an effort to quantify risks and
identify potential hazards from these evolving technologies. While the
list below is by no means exhaustive, some examples are discussed.
Newer battery technologies, such as lithium-ion rechargeable cells
used in cell phones and laptop computers, offer a significant increase
in energy in smaller enclosures compared to older technologies. Such
battery technologies provide more operating power for longer periods of
time for consumer electronic devices. However, these types of batteries
have been the subject of numerous recalls due to the potential thermal
burn or fire hazard, and staff has worked with industry to develop new
safety standards to address these hazards. CPSC staff continues to work
with other government agencies and industry to develop standard and
certification programs for their safe use.
In the future, CPSC staff expects that newer technologies such as
fuel cells will likely provide high energy density power sources for
consumer applications. The chemical energy can be derived from various
fuels such as natural gas, propane or compressed hydrogen. Reductions
in fuel cell production costs have made them increasingly attractive
for commercialization. Potential consumer applications include
stationary residential power generation, portable power generation, and
replacements for battery-operated devices.
Another area is the use of sensor technologies to address consumer
product hazards. Sensor technologies are applied in the automotive
industry to reduce the risk of collision and theft and have been
utilized in the defense, space and security industries for many years.
Recent national initiatives in the research and development community
promise to increase the sophistication and utility of sensor
technologies. The emergence and routine application of sensor
technologies raises the prospect that there may be opportunities for
detecting and averting various hazard scenarios in many consumer
products. While there is extensive research and development underway in
sensor technologies and applications, and a few applications have been
introduced into the marketplace, hazard avoidance applications have not
yet been explored in depth within the consumer product manufacturing or
safety assurance communities. Of particular interest to the CPSC are
potential hazard scenarios that could be detected using the appropriate
sensors and signal processing techniques and their application in
specific consumer products that have been involved in hazards or in
which hazards could be anticipated.
Addressing issues associated with emerging technologies is often
resource intensive. As new technologies enter the marketplace, CPSC
staff must identify the products that contain these technologies and
assess the effect on consumers. CPSC staff will need to develop
technical information that can be used to support new performance
requirements in product standards, if necessary. Staff will need to
collect and analyze data and scenarios, develop subject matter
expertise needed for product testing and evaluation, become familiar
with laboratory equipment to conduct product testing, and develop
appropriate test methods and performance requirements.
______
Response to Written Questions Submitted by Hon. Maria Cantwell to
Hon. Nancy A. Nord
Question 1. As you know, last December western Washington
experienced a severe windstorm that knocked out power to millions of
residents. It took eleven days for electric service to be restored to
all customers in western Washington. Eight people died and more than
300 were treated for carbon monoxide poisoning as a result of burning
charcoal or running portable generators indoors.
First, I want to thank the Commission for issuing its final rule on
labeling requirements on portable generators this past January. I
believe it is an important step to improving public safety.
The Commission has opened an Advanced Notice of Proposed Rulemaking
on Portable Generators that looks into several of the issues addressed
in the ``Portable Generator Safety Act'', which I co-sponsored with
Senator Bill Nelson in the 109th Congress. I know you cannot comment on
an open proceeding, but I believe as a minimum, portable generators
should be weatherized with ground fault interruption so that users are
not afraid to operate them outdoors in the rain and that the Commission
should establish carbon monoxide emission standards to reduce exposure
risk when they are improperly used indoors. What is the status of the
advanced rulemaking? Can you provide me with a date when you anticipate
that the advanced rulemaking will be completed?
Answer. CPSC staff was very active in delivering safety messages
before, during and after the severe storms that were experienced in
western Washington. CPSC staff tracked weather reports in advance of
the storm and provided radio and television outlets with our safety
alerts in the event of a power outage, including alerts on the proper
use of portable generators and warnings against the use of gas stoves
for heat. Following the storm CPSC staff continued to communicate our
safety messages on the radio and in the print media. CPSC staff also
reached out to Washington's Governor and state health officials with
our carbon monoxide (CO) safety messages.
CPSC staff agrees that portable generator weatherization features,
including ground fault protection, are an important part of enabling
and encouraging consumers to safely operate their generators outdoors
as a means to help reduce the CO poisoning hazard. In February 2007,
Underwriters Laboratories (UL) announced its intention to develop a
voluntary standard for portable generators. The preliminary draft of UL
Standard 2201, Portable Engine Generator Assemblies, includes
requirements for features that would permit safe use of portable
generators outdoors in wet conditions, including a requirement for
ground fault protection on the electrical circuits. The status of this
voluntary standard effort will be taken into consideration by CPSC
staff in the course of its ongoing rulemaking proceedings.
CPSC staff is investigating potential technical approaches to
reducing the hazard of carbon monoxide (CO) poisoning from portable
generators. In FY 2006, CPSC staff successfully demonstrated the
feasibility of shutting down a generator when elevated levels of CO are
detected, using CO detectors located in the home and in the vicinity of
an operating generator. Additional developmental work would be
necessary to address technical and human factors issues that were
identified during this concept demonstration. CPSC staff believes that
protecting the consumer from the CO hazard by way of an interlocking or
auto shut-off device is a complementary yet secondary approach that
should be pursued if the CO emission rate cannot be sufficiently
reduced by available technologies. The staff is currently considering
additional research on auto-shutdown techniques in conjunction with the
low-CO engine contract, using the same engine control technologies that
are being used in that effort. This research will be completed in FY
2008.
The staff's current emphasis is on developing a prototype portable
generator that emits significantly reduced levels of CO, using
available technologies such as exhaust catalysts and electronic fuel
injection. If successful, this would provide a margin of safety to help
protect consumers against exposure to CO in the event they improperly
operate a generator in an enclosed space or near an open window.
The Commission awarded a contract to the University of Alabama in
September 2006 to develop and demonstrate a prototype low-CO emission
generator with a goal of achieving reductions in the CO emission rate
on the order of 90-95 percent. CPSC staff predicts that this level of
reduction will significantly improve survivability when a generator is
operated in an improper location. This effort is ongoing and will be
completed in FY 2008.
The public comment period for the advance notice of proposed
rulemaking (ANPR) closed on February 12, 2007. The Commission received
detailed and complex comments which CPSC staff is currently evaluating.
Additionally, CPSC staff is assessing technologies and researching
performance testing methods that would be required if the Commission
voted to proceed to issue a notice of proposed rulemaking (which is the
next step in the Commission's mandated three-step rulemaking process)
on all or part of the issues raised in the ANPR. When these steps are
completed, the staff will prepare a briefing package (publicly
available) and provide it to the Commission for its consideration.
Since rulemaking is necessarily driven by scientific assessments and
conclusions, no hard date can be set at this time for the completion of
that briefing package.
Question 2. Anecdotally, hundreds of people die in the United
States each year from accidental carbon monoxide poisoning related to
consumer products. My understanding is that the Commission compiles
this data in a report entitled, ``Non-Fire Carbon Monoxide Deaths and
Injuries Associated with the Use of Consumer Products''. How current is
the data collected?
Answer. CPSC staff receives reports of product related incidents on
a daily basis. Some of the sources for these reports are: hospitals in
the CPSC's National Electronic Injury Surveillance System (NEISS); CPSC
staff field investigations; and reports from consumers, hotline
complaints, newspaper clippings, and medical examiner reports.
Additionally, CPSC augments these incident reports by purchasing
selected death certificates from all states, New York City, and the
District of Columbia. Death certificates are purchased according to
specified external ``cause of death'' codes as systematized by the
World Health Organization's International Classification of Diseases.
Data from all of these reports are housed in CPSC's Epidemiological
Databases which are updated on an ongoing basis.
The primary source of data for CPSC staff estimates of carbon
monoxide fatalities is purchased death certificates. Because of
differing reporting procedures among states, the time lag between when
a death occurs and when CPSC staff receives the death certificate
varies. Based on CPSC staff records from 1990 through 2003,
approximately 50 percent of the death certificates were received within
a year after the fatality. About 10 percent of the death certificates
were not received until more than 2 years after the fatality occurred.
Less than 2 percent of outstanding death certificates lag 3 years or
more beyond the actual date of death.
After the October 2000 release of 1997 annual estimates of non-fire
related carbon monoxide fatalities and injuries associated with
consumer products, CPSC staff discontinued production of injury (non-
fatal carbon monoxide incident) estimates because of concerns about the
scientific soundness of these estimates. Previously, CPSC staff
generated national injury estimates using NEISS data collected from a
probability based sample of emergency rooms. However, after considering
a scientific assessment of physiological factors and exposure
scenarios, CPSC staff concluded that data in NEISS records are often
insufficient to identify carbon monoxide injury incidents. The symptoms
of carbon monoxide poisoning (fatigue, headache, nausea, dizziness,
shortness of breath) mimic those of the flu or a cold. The short
narrative associated with NEISS records makes it difficult to discern
whether cold or flu has been misdiagnosed as a carbon monoxide incident
or vice versa. Further information, such as carboxyhemoglobin (COHb)
blood levels and description of the exposure scenarios, is necessary to
distinguish carbon monoxide injury incidents from other incidents. The
distinction of these incidents is integral to the production of
scientifically sound and reliable national estimates on non-fire carbon
monoxide injuries. CPSC staff has recently sought to enhance data
quality by requesting that COHb measurements be included in NEISS
records whenever possible and has implemented a detailed special
follow-up survey to support better characterization of exposures.
In summary, CPSC staff collects incident data on an ongoing basis.
However, product associated fatality estimates are performed
periodically and yearly fatality estimates often lag due to lags in the
receipt of death certificates. Current data sources--both CPSC and
external sources--are insufficient to support production of non-fatal
carbon monoxide injury estimates.
Question 2a. Has the Commission reported any of its compiled data
since its 2001 estimates?
Answer. CPSC staff reported 2002 annual estimates along with
updated fatality estimates for the years 1999 through 2001 in a July
2005 report entitled ``Non-Fire Carbon Monoxide Deaths Associated with
the Use of Consumer Products: 2002 Annual Estimates.'' This report is
available at http://www.cpsc.gov/library/data.html. Staff is preparing
estimates of 2003 and 2004 fatalities for a report scheduled to be
completed this fall.
Question 2b. If the 2001 data on carbon monoxide poisonings is the
most recent data published, why has there not been more recent data on
carbon monoxide poisonings published?
Answer. CPSC staff reported 2002 annual fatality estimates in July
of 2005. During 2006, CPSC's staff resources were focused on analyses
supporting rulemaking activities related to portable generators. These
analyses, reported as ``Non-fire Carbon Monoxide Fatalities Associated
with Engine-Driven Generators and Other Engine-Driven Tools in 2002
through 2005'' in an August 2006 memorandum, are posted on CPSC's
website at http://www.cpsc.gov/library/data.html. Staff is currently
preparing 2003 and 2004 annual estimates of non-fire carbon monoxide
fatalities associated with consumer products. As mentioned above, the
lag time between the date of non-fire carbon monoxide fatalities and
when CPSC staff receives the death certificates is the most significant
factor in the offset between the current year and the year of the
estimates report. In order to provide meaningful estimates, CPSC staff
must use as complete a database as is practical. Therefore, there is an
unavoidable lag between the date the estimate report is published and
the latest year covered in the report.
Question 3. To date, the Commission's approach to prevention of
carbon monoxide poisoning from consumer products has emphasized warning
labels. The label on bags of charcoal briquettes was modified in 1997.
What impact did this have on charcoal related carbon monoxide deaths
and injuries? Is there evidence that this approach is effective?
Answer. Although it is difficult to assign a direct cause and
effect to any single action such as a labeling modification, CPSC staff
estimates show that the average annual number of charcoal-related CO
poisoning fatalities from 1990 through 1997 was about 21. From 1998
through 2002, the average was down to around 13 per year.
Question 3a. As you know in last December's epidemic of carbon
monoxide poisoning in Washington State, the predominant source of
carbon monoxide was charcoal briquettes. Anecdotally, a
disproportionate number of those treated for carbon monoxide poisoning
were from immigrant populations. Even if the current warning label on
bags of charcoal briquettes is shown to be reducing morbidity and
mortality, does the label need to be revisited for possible improvement
in light of my state's recent experience?
Answer. The label currently required on bags of charcoal briquettes
was developed as a result of considerable evaluation and research. The
primary objective in developing and selecting the label design was to
maximize the effectiveness of the prohibition to never burn charcoal
inside a house, tent, or vehicle. Potential pictograms were assessed
using a sample of at-risk charcoal users. The methodology used was
consistent with the requirements in the nationally recognized standard,
American National Standard Criteria for Safety Symbols (ANSI) Z535.3.
The objective of the testing was to ensure that the label communicated
the hazard to the populations at the greatest risk. Fifty percent of
the subjects were Hispanics who did not read English. The researchers
used open-ended testing as opposed to multiple-choice, as open-ended
testing is the most demanding assessment for measuring label
comprehension. The results of the testing indicated that the label was
correctly interpreted by a large number of the subjects, with no
``critical confusions'' (misinterpretations that would increase the
risk).
We are continuing to investigate every product-related carbon
monoxide poisoning death we become aware of to learn about the products
and circumstances involved in the incidents. In addition, our Human
Factors experts continue to review and evaluate studies related to
warning label design and effectiveness. At this time, CPSC staff is not
aware of any new information about the hazard or in the labeling
literature that indicates that changes to the label would increase its
effectiveness in warning consumers about the hazard.
Question 4. Washington State lawmakers are considering legislation
to ban chemical flame retardants called polybrominated diphenyl ethers,
or PBDEs. The ban focuses on the deca form of PBDEs. Production of two
other forms, penta and octa, ceased voluntarily in 2004 over safety
concerns. While flame retardants help save lives, they are of
increasing concern to scientists and at least State regulatory agencies
because of their ubiquitous presence in the environment and
bioaccumulation in humans, wildlife and aquatic organisms. If the
legislation becomes law, Washington State would be the first in the
Nation to ban the use of PBDEs in a number of consumer items. For
example, it would ban the manufacture and sale of mattresses containing
deca by January 1, 2008 and would ban the manufacture and sale of TVs,
computers and residential upholstered furniture containing deca by
January 1, 2011, if a safer, technically feasible alternative is found.
Before making a determination that deca could be used to meet the
new standards on the flammability of mattresses and mattress pad, did
the Commission take into consideration the following:
Deca breaks down into more toxic compounds (penta and octa)
that have already banned in numerous states?
Deca, when burned, generates dioxins and furans?
Deca has the same neurotoxic effects as the penta and octa
forms of PBDE?
The high levels of deca already found in house dust due to
its use in enclosures for electronics?
The long term effects of these PBDEs on children and the
rapidly rising levels in people and the environment?
Answer. The Commission has made no determinations regarding the use
of deca to meet the new standards on the flammability of mattresses.
While deca can be used to meet the flammability requirements for
mattresses, manufacturers have several other options to consider. Most
manufacturers use flame resistant barriers made of inherently flame-
resistant textiles. Few, if any, use barriers treated with deca.
The staff of the Directorate for Health Sciences (HS) assessed the
potential health risks to consumers from exposure to deca and other
flame retardant (FR) treatments in mattresses. The staff concluded that
deca would not present a hazard to consumers during ``reasonably
foreseeable handling or use'' of mattresses treated with this FR
chemical. This analysis addressed the direct exposure to deca from
mattresses. If it is found that during consumer use of mattresses, deca
can break down to more toxic congeners, then this information would be
evaluated.
We also note that the U.S. Environmental Protection Agency (EPA)
has the authority under the Toxic Substances Control Act (TSCA) to
regulate the environmental effects of FR chemicals, and so we do not
typically investigate that aspect of their use.
All combustion processes from natural wildfires to automobile
exhaust to residential fires produce chlorinated (and un-chlorinated)
dioxins and furans. Although brominated dioxins and furans are produced
in residential fires, we are not aware of any studies comparing total
dioxin and furan production in the presence of brominated FRs to such
production in the absence of brominated FRs.
CPSC staff reviewed the data on the possible neurotoxicity of deca
but there were a number of study limitations. Thus, in 2005, CPSC staff
asked the National Toxicology Program (NTP) to perform additional
developmental neurotoxicity tests on deca. CPSC staff estimates direct
exposure from deca in mattresses or upholstered furniture is low in
comparison to the levels that cause the neurotoxic effects in animals.
The presence of deca in residential settled dust is a relatively
new finding. It appears to be related to the presence of electronic
equipment. The significance of these dust levels to human health has
not been evaluated. CPSC staff will monitor ongoing studies or other
developments in this area.
In assessing the potential health effects of deca, CPSC staff
considered all of the available data. To the extent possible, the staff
considered the chronic effects in children and adults. However, data on
health effects in children, as compared to adults, are generally
lacking.
The staff also considered the levels of PBDE's in humans, animals,
and the environment and the potential environmental impact of deca in
mattresses. At the request of CPSC, the EPA has developed a draft
Significant New Use Rule (SNUR) that could be used to obtain additional
information of the potential risks of FR chemicals to consumers,
workers, and the environment. In addition, the EPA has authority under
TSCA to regulate the environmental effects of FR chemicals.
Due to the scientific complexity of these issues, the CPSC would be
pleased to have one of our technical staff come to your office to brief
your staff and answer your questions directly at any time that is
convenient for you.
Question 5. What is the current status of the Commission's efforts
to develop a national flammability standard for residential upholstered
furniture?
Answer. The Commission published an advance notice of proposed
rulemaking (ANPR) in 2003. This ANPR expanded an existing regulatory
proceeding to address ignitions of upholstered furniture by smoldering
cigarettes as well as small open flame sources like lighters, matches
and candles. CPSC staff developed a draft flammability performance
standard for upholstery materials and presented the draft standard and
regulatory alternatives to the Commission in 2006. In FY 2006 and 2007,
the staff conducted additional technical work in support of a possible
proposed rule and published two status reports for public review. The
staff continues to work with government, industry and fire safety
community stakeholders on a variety of technical issues.
Question 5a. What are your plans to consider the long term health
and environmental impacts of the chemicals that can be used to meet
these standards?
Answer. Throughout the agency's regulatory proceeding on
upholstered furniture, the CPSC staff's major objective has been to
achieve substantial fire safety benefits to consumers without imposing
health or environmental risks. In addition to the 1999-2000 National
Academy of Sciences' (NAS) study, CPSC staff performed two exposure and
health risk assessments related to fabric and foam filling material FRs
in upholstered furniture and another related to FRs in mattress
barriers that could also be used in furniture. These assessments
focused primarily on long term chronic health effects. Further, the
staff prepared a preliminary environmental assessment, in accordance
with the National Environmental Policy Act. The NAS study and the CPSC
staff's fabric FR risk assessment and environmental assessment
identified a number of chemicals that could be used without presenting
health or environmental risks to consumers. Also, the staff modified
its draft performance standard to minimize fabric FR usage and possible
exposure. To provide additional information, CPSC staff nominated
several FRs for study by the National Toxicology Program of the
Department of Health and Human Services. The CPSC staff continues to
monitor ongoing FR chemical studies to inform the standards development
process. We note again that the U.S. Environmental Protection Agency
(EPA) has the authority under the Toxic Substances Control Act (TSCA)
to regulate the environmental effects of FR chemicals, and so we do not
typically investigate that aspect of their use.
Question 5b. What work is being done to consider non-chemical
alternatives to meet the standards and is this a priority?
Answer. The staff's draft standard contains a number of compliance
options for manufacturers and importers. While the standard could be
met by using FR materials, it would not prescribe the use of
polybrominated diphenyl ethers (PBDEs) or any other particular FR.
Complying furniture could use non-hazardous FRs or could use no FR
treatments, for example, by using leather or wool cover materials or
inherently fire-resistive barrier materials similar to some of those
used to meet the Commission's new mattress rule. Ensuring the
availability of non-chemical alternatives to meet a standard has
consistently been, and remains, a priority in the rulemaking process.
Question 6. As you know, in 2000, the National Research Council
(NRC) released its study on the ``Toxicological Risks of Selected
Flame-Retardant Chemicals'', a report that was required as part of the
Commission's FY 1999 appropriations. In the report, the NRC examined
the health risks posed by exposure to 16 chemicals (or chemical
classes) of flame retardant that are likely to be used in residential
upholstered furniture to meet a flammability standard that the
Commission was considering. Much has been learned about the
environmental and health impacts of certain flame retardants over the
intervening years. Do you believe there would be value in having the
National Research Council update its study?
Answer. Much of the more recent research activities on flame
retardant (FR) chemicals since the 2000 NRC report has focused on
environmental fate and environmental effects. The 2000 NRC report
attempted to address potential risk to consumers exposed to FR
chemicals from the use of upholstered furniture containing FR
chemicals. However, many information gaps existed. Since the NRC
report, CPSC staff has worked to provide data on exposure and dermal
absorption, which the NRC subcommittee lacked and viewed as a
significant limitation. CPSC staff is also attempting to fill these
gaps through additional testing by the National Toxicology Program
(NTP), administered by HHS, but this will take several years to
complete.
As CPSC staff proceed in this rulemaking, any additional
information, from any reliable source, on the potential human health
effects of FR chemicals would be welcome.
Question 7. Does the Commission have national flammability
standards for consumer electronics products such as television
enclosures and computer enclosures? If not, should the Commission
pursue such standards or are the voluntary industry standards adequate?
Answer. There are no mandatory national flammability standards for
consumer electronics products such as television enclosures and
computer enclosures. The industry voluntary safety standard for
televisions is Underwriters Laboratories (UL) 60065, Audio, Video and
Similar Electronic Apparatus--Safety Requirements. The industry
voluntary safety standard for computer enclosures is UL 60950, Standard
for Safety for Information Technology Equipment.
In the 1970s, CPSC staff worked with industry to improve
flammability requirements in voluntary standards for television
enclosures. Since 1979, these products must meet improved requirements
of UL 94, Test for Flammability of Plastic Materials for Parts in
Devices and Appliances. In 2002, CPSC staff reviewed reports of fires
and near-fires involving computers and printers. The staff did not find
any field data suggesting the need for special action for computer
products. In addition, staff is not aware of any recalls of televisions
or computers due to hazards associated with flammability of the
enclosures.
With the potential exception of portable computing products, CPSC
staff believes that the flammability requirements for television and
computer enclosures in the voluntary standards are adequate to address
the risk of fire from electrical sources within these products. The
staff is considering the adequacy of flammability requirements for
portable computer enclosures to protect against fire hazards associated
with lithium-ion batteries as it addresses safety requirements for
these batteries.
CPSC staff has been in the forefront for upgrading the flammability
requirements for plastics used for enclosures of portable electrical
appliances. The staff worked with Underwriters Laboratories and the
electrical appliance industry to develop new, more protective
flammability requirements applicable to all portable electric
appliances. These new requirements became effective in July 2004.
Question 8. In your testimony, you mentioned that two-thirds of
product recalls in FY 2006 were of imported products. How is the
Commission monitoring imported consumer products to ensure compliance
with U.S. safety standards?
Answer. CPSC's Compliance staff monitors imported consumer products
and enforces U.S. safety standards typically through surveillance and
sampling of products both at ports of entry and at U.S. retail
establishments. In recent years, Internet surveillance has played an
increasingly significant role in our programs. Product samples
collected at various locations are shipped to our Laboratory for
testing and to CPSC Headquarters for other evaluations as appropriate.
In the case of toy samples, for example, each product is age-graded by
experts from CPSC's human factors staff. This process is generally
necessary to determine the applicability of specific standards. Some
ports have their own testing laboratories which may be capable of
conducting tests for us. Additionally, CPSC works closely with U.S.
Customs and Border Protection to identify and seize hazardous consumer
products before they enter the American marketplace.
Question 8a. How does the Commission identify which imported
consumer products it checks for compliance?
Answer. The Compliance staff uses a variety of different sampling
methods to identify products for testing. One of the most sophisticated
sampling methods applies to imported fireworks. The method takes into
account such factors as whether the importer or shipper has had the
fireworks tested by an independent third party; whether the importer
and product are known to the staff; whether the importer has a good
record of compliance with the regulations; and so on. Unlike some other
products, such as cigarette lighters, fireworks tend to be used at
certain times of the year and therefore have busy and slow importation
seasons. As a result, sampling rates may change during different times
of the year.
Question 8b. Currently, how many countries has the Commission
signed MOUs with? Typically, what agency is the Commission's foreign
counterpart (please provide a few examples)? Can you describe the
contents of a typical MOU the Commission signs with foreign
governments. What does ``close consultation'' mean from the standpoint
of implementation?
Answer. CPSC currently has twelve signed and active MOUs: Canada,
Chile, China, Costa Rica, India, Korea, Mexico, Israel, Taiwan, Peru,
the European Commission and Japan. Also, CPSC is in current
negotiations with Argentina, Brazil, Colombia, Thailand and Vietnam. We
work with those foreign government agencies that have responsibility
for consumer products. Some counterparts may be responsible for more
than just consumer products. Additionally, in some countries there may
be multiple agencies responsible for various responsibilities all
encompassed in the United States within the jurisdiction of CPSC. For
example, in Japan the Ministry of Economy, Trade and Industry is
responsible for product safety and the National Institute of Technology
and Evaluation is responsible for collecting injury data. Examples of
other counterpart agencies are Health Canada, Profeco in Mexico, and
Health and Consumer Protection Directorate-General (DG Sanco) of the
European Commission.
All the MOUs signed to date are non-binding and have been reviewed
by the U.S. Trade Representative's Office as well as the Department of
State. The MOUs begin by stating those laws that govern the CPSC and
those laws that govern our counterpart agency. The MOUs then proceed to
outline areas of and cooperation which center around three main topics
and when combined, provide a working definition of ``close
consultation'':
1. Exchange information and documents relating to consumer product
safety, consumer welfare and the awareness of consumers;
2. Develop training programs for government officials and others
dealing with the subject of consumer product safety; and
3. Exchange officials, experts and professionals in the areas of
consumer product safety to carry out specific programs of mutual
cooperation.
For the above areas of cooperation each country is responsible for
their expenses related to carrying out the MOU. Also no confidential
information is ever exchanged.
Question 8c. What level of resources in terms of budget and FTE's
is the Commission allocating for these activities on an annual basis?
Answer. The CPSC budget does not distinguish between funds spent on
domestic product recalls and those spent on imported product recalls.
In FY 2007, the agency budgeted 150 FTEs and $17 million for the Office
of Compliance which obtains recalls, a significant majority of which
are of imported products. Additionally, the Commission established the
Office of International Programs and Intergovernmental Affairs (OIPIA)
to serve as the focal point of the agency's international efforts. That
Office is budgeted at six FTEs, for an additional $642,000.
Question 8d. At what U.S. ports of entry are there Commission
personnel monitoring imported consumer products to ensure compliance
with U.S. safety standards?
Answer. CPSC investigators are not assigned to specific ports of
entry as a permanent duty station. Instead, our investigators are
located around the Nation and can interact with ports on an as-needed
basis. During some periods, we have contingents of CPSC personnel who
work at the ports on a daily basis.
Question 8e. Is there Commission personnel stationed at overseas
ports monitoring the safety standards of consumer products intended for
export to the U.S.?
Answer. No. Currently, there are no CPSC personnel stationed
overseas.
Question 8f. Is the relationship between the Commission and the
Bureau of Customs and Border Protection memorialized in a Memorandum of
Understanding or Memorandum of Agreement, or is it an informal
arrangement? If it is an informal arrangement, does the Commission
believe that Congress should statutorily require the Commission and the
Bureau of Customs and Border Protection to develop a formalized
relationship?
Answer. The relationship between CPSC and the Bureau of Customs and
Border Protection (CBP) is the subject of an interagency Memorandum of
Understanding (MOU) that was signed on October 3, 2002. This MOU will
likely be updated in the near future to reflect CPSC's participation in
the International Trade Data System/Automated Commercial Environment,
which is a new system for tracking imports being introduced by CBP. It
would be the prerogative of Congress to direct a more formal
relationship between CPSC and CBP; however, additional inspection
resources and tools might also be considered.
Question 8g. In your testimony you noted that most of the recalls
of imported products originated in China. What specific steps is the
Commission taking to remedy this problem?
Answer. In Fiscal Year 2006, nearly 50 percent of CPSC recalls
involved products that were manufactured in China, and CPSC recognizes
the fact that the number of imported products will continue to grow in
the coming years. To address this situation, CPSC staff is pursuing a
multi-pronged approach.
First, the Compliance staff conducts routine and targeted
inspections at U.S. ports of entry;
Second, as imports increase, it is essential that manufacturers
abroad be educated about U.S. safety requirements. In recent years, the
agency revised our Handbook for Manufacturers, which contains many
valuable tips on manufacturing safe products and had it translated into
Mandarin Chinese. CPSC safety experts also have conducted seminars for
Chinese manufacturers on CPSC safety standards and requirements.
Third, the agency has strengthened our cooperation with foreign
governments and sought to develop coordinated strategies for improving
the safety of products exported to the United States, particularly from
China. In May 2007, CPSC Acting Chairman Nancy Nord and staff will meet
with Chinese government officials in Beijing to negotiate specific
actions in preparation for the Second U.S.-Sino Consumer Product Safety
Summit, to be held in Bethesda, Maryland, in September 2007.
Fourth, CPSC staff is working with U.S. Customs and Border
Protection to strengthen our ability to prevent unsafe products from
entering U.S. commerce. For example, the CPSC has recently become a
participating agency in the International Trade Data System (ITDS)
Automated Commercial Environment. This status will allow us to take
advantage of the next generation of information technologies being
developed by U.S. Customs.
Fifth, most imports to this nation are sold by U.S. retailers.
Therefore, CPSC staff has worked with retailers to heighten their
safety consciousness and to underscore the need to address safety
proactively in the case of imported as well as domestic products. We
have developed a new reporting model that promotes more information
flow between retailers and manufacturers, as well as with the CPSC.
Sixth, when the CPSC knows the identity of the relevant
manufacturer, the CPSC will provide the name of the manufacturer to
AQSIQ, the Chinese government agency responsible for consumer product
regulation. The CPSC will also provide AQSIQ with a copy of the public
announcement or press release of the recall. The information will be
transmitted and maintained under the terms of the Memorandum of
Understanding and any addenda adopted by the CPSC and AQSIQ. Finally,
if the CPSC knows the name and address of the Chinese manufacturer, the
CPSC will provide it with notice of the voluntary recall.
Question 8h. How does the Commission ensure that the steps it takes
to ensure that imported consumer products meet U.S. safety standards
are not viewed by foreign governments as a non-tariff barrier to trade?
Answer. CPSC staff does not single out the products of any nation
for disproportionate enforcement scrutiny. To our knowledge there has
never been a complaint from the Chinese or others of selective
enforcement. It is worth noting that while the number of recalls of
products from China has increased in recent years, the number of
recalls of products from the United States has not declined over the
same period.
List of Attachments
1. Statement of the Honorable Thomas H. Moore on the Proposed
Reorganization, June 16, 2005
2. Guidance for lead (Pb) in consumer products, January 1, 2004
3. Guidance for hazardous liquid chemicals in children's products,
January 1, 2004
4. Statement of the Honorable Thomas H. Moore on the Final Rule and
Preamble for the Flammability (Open-Flame) of Mattress Sets, February
16, 2006
5. Federal Register, May 21, 1998, Proposed technical changes to
the Children's Sleepwear Standards
6. Federal Register, January 19, 1999, Final technical changes to
the Children's Sleepwear Standards
7. Federal Register, March 17, 1999, Proposed amendments to the
Mattress and Mattress Pad Flammability Standard
8. Federal Register, March 10, 2000, Final amendments to the
Mattress and Mattress Pad Flammability Standard
9. Federal Register, March 17, 1999, Proposed amendments to
laundering provisions of the Children's Sleepwear Standard
10. Federal Register, March 10, 2000, Final amendments to the
laundering provisions of the Children's Sleepwear Standards
11. Federal Register, March 17, 1999, Proposed amendments to the
Small Carpet and Rug Flammability Standard
12. Federal Register, March 10, 2000, Final amendments to the Small
Carpet and Rug Flammability Standard
13. Federal Register, January 13, 2005, (front page and preamble
language only), of, Proposed rule for Mattress and Mattress/Foundation
Set Flammability Standard (Open-Flame)
14. Vote sheet dated January 13, 2006 and attached page from public
briefing package showing missing preemption language on the Final Rule
for the Flammability (Open-Flame) of Mattress Sets
15. Closing remarks of Commissioner Thomas H. Moore at the public
briefing on the Final Rule for the Flammability of Mattress Sets,
February 1, 2006
16. Federal Register, November 13, 2006, Proposed technical
amendment to the Carpet and Rug Flammability Standard
17. Statement of the Honorable Thomas H. Moore With Regard to the
``For Official Use Only'' Treatment of the Ballot on the Technical
Amendment to the Flammability Standards for Carpets and Rugs, October
31, 2006
18. Federal Register, February 27, 2007, Proposed rule to amend the
Clothing Textile Flammability Standard
19. Federal Register, March 15, 2006, (front page and preamble
language only), Final Rule for Mattress and Mattress/Foundation Set
Flammability Standard (Open-Flame)
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Hon. Nancy A. Nord
Question 1. Has the General Counsel's office prepared memos in
relation to other Commission proceedings that speak to the
preemptibility of state standards or requirements? If so, please
provide copies of these memos.
Question 2. In addition to the mattress flammability rulemaking the
Commission commenced in 2005, are there other rulemakings pursuant to
the Flammable Fabrics Act in which the Commission has commented on the
preemptibility of state standards or requirements? If so, please
provide a list of these rulemakings and a copy of the Commission's
statement with respect to preemptibility.
Answer. Flammable Fabrics Act (FFA) Rulemakings with Executive
Order 12988 or similar discussion (all attached):
Standard for the Flammability of Children's Sleepwear: 65
Fed. Reg. 12924 (March 10, 2000).
Standard for the Flammability of Mattresses and Mattress
Pads: 65 Fed. Reg. 12935 (March 10, 2000).
Standard for the Surface Flammability of Carpets and Rugs:
65 Fed. Reg. 12929 (March 10, 2000).
Standard for the Flammability of Clothing Textiles: 72 Fed.
Reg. 8844 (Feb. 27, 2007).
Technical amendment to the Flammability Standards for
Carpets and Rugs: 71 Fed. Reg. 66145 (Nov. 13, 2006).
Standard for the Flammability (Open Flame) of Mattresses and
Mattress/Foundation Sets, Proposed Rule: 70 Fed. Reg. 2470
(Jan. 13, 2005).
Question 3. In its discussion of Executive Order 12988 in the
January 2005 notice of proposed rulemaking on a standard for the
flammability of mattresses and mattress/foundation sets, the Commission
states that pursuant to 15 U.S.C. 1203(b), ``the Federal Government,
or a State or local government, may establish and continue in effect a
non-identical flammability standard or other regulation for the
Federal, State or local government's own use if it provides a higher
degree of protection than the FFA standard'' and says that this would
be one exception to the preemption of non-identical state or local
mattress flammability standards designed to protect against the same
risk of the occurrence of fire. However, the Commission's discussion of
preemptibility in the preamble of the final rule focuses on preemption
of any non-identical state requirements, regardless of whether the
state requirements offer a higher degree of protection than the FFA
standard. 15 U.S.C. 1203(b) is not mentioned in the Commission's
preemptibility analysis in the final rule. Did the Commission consider
15 U.S.C. 1203(b) when evaluating the preemptibility of state
requirements? If not, why not? If so, why did the Commission preempt
all non-identical state requirements rather than only those non-
identical state requirements that do not provide a higher degree of
protection from a fire risk than the Commission's standard? Why is 15
U.S.C. 1203(b) discussed in the notice of proposed rulemaking but not
in the preamble to the final rule?
Answer. Section 16(a) of the FFA explains when an FFA flammability
standard or other regulation preempts a State or local government's
flammability standard or other regulation. Section 16(b), 15 U.S.C.
1203(b), of the FFA provides an exception for certain Federal, State or
local flammability standards or regulations. That section allows
Federal, State or local governments to establish or continue in effect
a flammability standard or other regulation if: (1) the standard or
regulation is designed to protect against the same risk of fire as the
FFA standard; (2) it applies to a fabric, related material, or product
that is for the state's own use; and (3) the standard or regulation
provides a higher degree of protection from fire than the FFA standard.
Thus, the exception is only available if the non-FFA standard applies
to items that are for the State, Federal or local government's own use,
such as for use in correctional facilities and other state or local
government owned institutions. This exception was noted in the preamble
to the mattress flammability proposed rule published at 70 Fed. Reg.
2492-93. This statute is very clear and the Commission's open flame
mattress flammability Final Rule was not intended to affect the
application or interpretation of this authority. Because no comments
were received which discussed a state standard applicable to a consumer
product intended ``for the state's own use,'' staff did not again
discuss the issue in the preamble to the Final Rule.
Question 4. In Section H.7. of the preamble to the Commission's
mattress flammability rule, the Commission states that it received
several comments concerning preemption, including one comment
supporting preemption of both codified state rules and state common law
claims and others asking the Commission to indicate that the standard
would not preempt stricter state standards. Did the Commission consider
the comments opposing preemption? If so, how did it weigh these
comments and why did the Commission not clarify that the standard would
not preempt stricter state standards?
Answer. The Commission staff considered all comments received in
response to the proposed rule in formulating the Final Rule text and
preamble. The Commission's preamble to the Final Rule did, in fact,
describe that a state may adopt a stricter standard under certain
conditions: ``The statute also provides an application process for an
exemption from Federal preemption for non-identical State or political
subdivision flammability requirements. Thus in the absence of such an
exemption, the Federal standard will preempt all non-identical state
requirements.'' See 71 Fed. Reg. 13496 (March 15, 2006). To qualify for
an exemption, a state is required to show, inter alia, that compliance
with the proposed state standard would not be a violation of the
Federal standard, that the state standard provides a significantly
higher degree of protection from the risk of occurrence of fire than
the Federal standard, and that the state regulations do not unduly
burden interstate commerce. See 15 U.S.C. 1203(c)(1). As a result, a
significantly higher state standard would not be preempted only if the
state applied for, and was granted, an exemption from the preemption
requirement of 15 U.S.C. 1203(a).
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Hon. Thomas H. Moore
Question 1. The Commission's final rule in the Portable Generator
Labeling proceeding (72 Federal Register 1443, January 12, 2007) stated
that the issue of ``integrated CO monitors'' would be addressed in the
context of the Portable Generator Performance Standard Advance Notice
of Proposed Rulemaking (71 Federal Register 74472, December 12, 2006)
(hereinafter ``Generator Performance ANPR''). The comment period for
the Generator Performance ANPR ended on February 12, 2007. What is the
Commission's current timeline for issuance of a specific Notice of
Proposed Rulemaking (``NPRM'') regarding interlocked carbon monoxide
detection devices on new portable generators?
Answer. The Commission staff is investigating potential technical
approaches to reducing the hazard of carbon monoxide (CO) poisoning
from portable generators. In FY 2006, the Commission staff successfully
demonstrated the feasibility of shutting down a generator when elevated
levels of CO are detected, using CO detectors located in the home and
in the vicinity of an operating generator. Additional developmental
work would be necessary to address technical and human factors issues
that were identified during this concept demonstration. The Commission
staff believes that protecting the consumer from the CO hazard by way
of an interlocking or auto shut-off device is a complementary yet
secondary approach that should be pursued if the CO emission rate
cannot be sufficiently reduced. The staff is currently considering
additional research on auto-shutdown techniques in conjunction with the
low-CO engine contract, using the same engine control technologies that
are being used in that effort. This research will be completed in FY
2008.
The staff's current emphasis is on developing a prototype portable
generator that emits significantly reduced levels of CO, using
available technologies such as exhaust catalysts and electronic fuel
injection. If successful, this would provide a margin of safety to help
protect consumers against inadvertent exposure to CO in the event they
improperly operate a generator in an enclosed space or near an open
window.
The Commission awarded a contract to the University of Alabama in
September 2006 to develop and demonstrate a prototype low-CO emission
generator with a goal of achieving reductions in the CO emission rate
on the order of 90-95 percent. The Commission staff predicts that this
level of reduction will significantly improve survivability when a
generator is inadvertently operated in an improper location. This
effort is ongoing and will be completed in FY 2008.
The public comment period for the advance notice of proposed
rulemaking (ANPR) closed on February 12, 2007. The Commission received
detailed and complex comments which CPSC staff is currently evaluating.
Additionally, CPSC staff is assessing technologies and researching
performance testing methods that would be required if the Commission
voted to proceed to issue a notice of proposed rulemaking (which is the
next step in the Commission's mandated three-step rulemaking process)
on all or part of the issues raised in the ANPR. When these steps are
completed, the staff will prepare a briefing package (publicly
available) and present it to the Commission for its consideration.
Question 2. Last year, the Commission completed approximately 471
cooperative recalls of consumer products. It is my understanding that
all of these were completely voluntary. Does the Commission have
adequate resources to order a mandatory recall--if necessary?
Answer. For a number of reasons, the Commission has rarely
litigated to obtain recalls. On those occasions when such litigation
has been required, resources have been provided for staff to proceed. I
anticipate that with respect to a future action to order a mandatory
recall, such an action would be a priority and the necessary resources
would also be provided even if it would mean shifting resources from
other Commission activities.
Question 3. Commissioner Thomas Moore has mentioned nanotechnology
as one ``emerging technology'' that the Commission will have to address
in the near future. Do you see any other emerging technologies that the
Commission may have to deal with in the near future? If so, how should
the Commission deal with them?
Answer. As I indicated in my statement to the Subcommittee
submitted for the March 21st hearing, the American consumer wants
everything electronic to be smaller, faster, longer-lasting and more
powerful. Nowhere is this more evident than in energy storage devices
for cell phones, laptops, PDAs and other portable electronic devices.
Newer battery technologies, such as lithium-ion rechargeable cells used
in cell phones and laptop computers, offer a significant increase in
energy in smaller enclosures compared to older technologies. Such
battery technologies provide more operating power for longer periods of
time for consumer electronic devices. However, these types of batteries
have been the subject of numerous recalls due to the potential thermal
burn or fire hazard, and staff has worked with industry to develop new
safety standards to address these hazards. Commission staff continues
to work with other government agencies and industry to develop standard
and certification programs for their safe use.
In the future, Commission staff expects that newer technologies
such as fuel cells will likely provide high energy density power
sources for consumer applications. The chemical energy can be derived
from various fuels such as natural gas, propane or compressed hydrogen.
Reductions in fuel cell production costs have made them increasingly
attractive for commercialization. Potential consumer applications
include stationary residential power generation, portable power
generation, and replacements for battery-operated devices.
Another area is the use of sensor technologies to address consumer
product hazards. Sensor technologies are applied in the automotive
industry to reduce the risk of collision and theft, and have been
utilized in the defense, space and security industries for many years.
Recent national initiatives in the research and development community
promise to increase the sophistication and utility of sensor
technologies. The emergence and routine application of sensor
technologies raises the prospect that there may be opportunities for
detecting and averting various hazard scenarios in many consumer
products. While there is extensive research and development underway in
sensor technologies and applications, and a few applications have been
introduced into the marketplace, hazard avoidance applications have not
yet been explored in depth within the consumer product manufacturing or
safety assurance communities. Of particular interest to the CPSC staff
are potential hazard scenarios that could be detected using the
appropriate sensors and signal processing techniques, and their
application in specific consumer products that have been involved in
hazards or in which hazards could be anticipated.
Addressing issues associated with emerging technologies is often
resource intensive. As new technologies enter the marketplace,
Commission staff must identify the products that contain these
technologies and assess the effect on the consumers. Commission staff
will need to develop technical information that can be used to support
new performance requirements in product standards, if necessary. Staff
will need to collect and analyze data and scenarios, develop subject
matter expertise needed for product testing and evaluation, become
familiar with laboratory equipment to conduct product testing, and
develop appropriate test methods and performance requirements.
______
Response to Written Questions Submitted by Hon. Mark Pryor to
Hon. Thomas H. Moore
Question 1. The Commission has been operating without a quorum
since January 15. In anticipation of the inability to perform certain
functions, the Commission provided certain delegations and completed a
number of actions prior to the loss of the quorum. Now that 3 months
have passed without a quorum, is the Commission coming to a critical
period where its ability to function is now going to be severely
curtailed or will actions taken in January continue to provide the
Commission with the ability to carry out its duties?
Answer. The agency functions normally during the first 6 months
after one Commissioner departs, as two commissioners constitute a
quorum during that period (whether it is the Chairman that leaves or
another Commissioner). Once the quorum lapses, however, the agency
loses much of its ability to act as a regulatory agency. Anything that
requires a Commission vote, such as moving a rulemaking proceeding
forward (from Advance Notice of Proposed Rulemaking, to Notice of
Proposed Rulemaking and to the Final Rule stage), accepting negotiated
civil penalties, issuing subpoenas and approving our budget, cannot be
done. Even though it might be very tempting to ignore the fact that
there is no quorum and continue to operate as normal, we cannot because
that would be in violation of the laws that govern operations at the
Commission. We did delegate certain limited functions to the staff
before the quorum lapsed but it would have been inappropriate and, in
the case of subpoenas impossible, to delegate to staff the basic powers
of the Commission.
The longer we are without a quorum, the more items will begin to
accumulate that need Commission attention and which will have to be set
aside until the Commission regains its quorum. We are close to signing
certain Memoranda of Understanding with several foreign countries and
these cannot be signed until the quorum is restored; there are a few
rulemakings that will soon require Commission action that will have to
wait. It is unclear what authority the ``Commission'' has to negotiate
with foreign governments, such as China, during this period. Certainly
no new Commission positions can be put forward. Companies who may be
negotiating civil penalties know that even if they agree to a civil
penalty amount it may be months before the Commission is able to vote
on it and, therefore, months before they will have to pay the amount to
the Federal Government. If a company refused to do a voluntary recall
we would be powerless to act. This may make staff reluctant to press
for an aggressive recall for fear the company will not take voluntary
action. We are not a toothless tiger during this period, but that we
should lose any of our powers when a majority of the Commission (as
presently constituted) is still sitting, makes little sense to me.
Question 2. Due to anticipated staff reductions, the Commission
went through reorganization in 2005. What has been the overall affect
of the reorganization on the Commission's ability to perform its
mission?
Answer. We were forced to go through a ``reorganization'' in order
to get Voluntary Early Retirement Authority (VERA) and Voluntary
Separation Incentive Payment (VSIP) authority from OPM. We needed these
authorities to be able to provide buy-outs and early outs due to budget
constraints that forced us to reduce our staff. We did not want to have
to do a reduction in force (RIF) to accomplish the staff reductions
and, having a number of older employees, we felt it was likely we would
have enough employees willing to take advantage of VERA or VSIP to be
able to avoid a RIF, which was in fact the case.
From my own personal observations, little in the way of efficiency
was gained by the reorganization. Additional layers of vertical
management were added in several organizations actually resulting in
less efficiency. The statement that I issued at the time of the
reorganization, when I voted against it, can be found through the
following link: http://search.cpsc.gov/
query.html?col=pubweb&qt=reorganization&x
=7&y=11 . The reorganization was a tool to achieve a necessary, if
unpleasant goal. But employee input could have resulted in a smoother
transition and in perhaps a somewhat different organizational
structure. A major concern that I had with the reorganization, and this
is a continuing problem at the agency, is the reluctance of CPSC
management to include the employees in agency decisions that directly
affect them. I think this is one reason why there is an expressed lack
of confidence in the agency leadership as shown in the latest OPM Human
Capital Survey. When the small agencies' scores in that survey were
compared recently by the Partnership for Public Service and American
University's Institute for the Study of Public Policy Implementation,
the Commission ranked very near the bottom, 29th out of 31 small
agencies, in terms of how the employees believed leadership at the
agency generates motivation and commitment, encourages integrity, and
manages people fairly. The 2007 score represented a nearly 9 percent
decline from the 2005 score in which the agency ranked fifth from the
bottom out of 26 agencies surveyed. I should note that responses to
both surveys were provided by our employees prior to Commissioner Nord
assuming the Acting Chairmanship role. While I have no executive or
administrative powers, I am still part of the leadership and, to the
extent our staff feels frustration about my lack of control over these
kinds of agency decisions, this may be reflected in the survey results
as well.
The reorganization represented a consolidation, a collapsing of
agency functions. We have fewer people because of budget cuts and we,
of necessity, do less. We lost a lot of valuable people through the
VERA and VSIP process whose knowledge will take years, if ever, to
replicate. The staff reductions have severely wounded us. The
reorganization did not, could not, salvage what has been lost.
Question 3. The Commission's laboratory testing facilities are
essential to its ability to make determinations about the safety of
consumer products in our marketplace--and to its ability to develop
safety standards. Some have expressed concern about the age of your
equipment and the overall condition of your lab site. What is your
assessment of your laboratory testing facilities with respect to the
Commission's ability to adequately evaluate safety issues associated
with emerging product technologies?
Answer. We have been trying to obtain funds to modernize our lab
since before I arrived at CPSC in 1995 yet we have never received any
significant funding for that goal. We've been working with GSA on a
modernization plan since at least 1999. There certainly has been a
level of frustration associated with the process. We have been forced
to accept a band-aid approach to fixing the lab, when what we really
need is a major modernization commitment.
I have seen other testing labs, such as those at Underwriters
Laboratories, which are much more sophisticated, spacious and up-to-
date than our lab. Given that we are the Federal agency designated to
protect consumers from product hazards and that our laboratory testing
plays a key role in making hazard determinations, I think the state of
our lab should concern everyone. However, whenever I go to our lab I am
constantly amazed at the ingenuity of our lab staff in overcoming space
and resource limitations. We often talk about the agency making do with
what it has and nowhere can that be seen more strikingly than at the
lab. I would like to see a real investment made in upgrading our lab so
that we can do more testing in our own facility rather than having to
contract the work out and so that tests don't stack up because of a
lack of adequate space or other resources, which prevent us from doing
simultaneous testing on various products.
We are currently looking at different real estate solutions with
GSA that would give us a better physical plant. However, these
solutions may or may not allow us to function at the same capability we
currently have and they would not include any modernization of
equipment. The cost to truly modernize our lab, if we were to stay on
the current site, would be somewhere around thirty million dollars.
This would expand our capabilities, give us new equipment and a
physical plant that is both energy efficient and an effective use of
space. A modern facility would also put us in a better position to deal
with emerging technologies, such as nanotechnology. It is difficult for
us to even contemplate how we would assess potential product-related
nanotechnology hazards when we struggle to provide the basic lab
capabilities to meet our current needs.
Question 4. In light of the Commission's continuing budgetary
constraints, does the Commission have the necessary resources to police
and monitor contemporary marketplaces such as the Internet for unsafe
products?
Answer. I believe that, in order to carry out our mission, we will
certainly need to have additional resources to devote to monitoring
Internet marketplaces. In recent years, our Compliance staff has
devoted an increasing share of its resources to the Internet. We now
routinely look for regulated products, such as pacifiers, on the
Internet and sample them as part of our general market surveillance
effort. We also look for unregulated products that may pose a risk to
consumers, such as hooded sweatshirts with drawstrings. Virtually all
business enterprises have a website; accordingly, when a firm conducts
a recall in cooperation with the CPSC, we work with the firm to post an
appropriate notice on the Internet. We also monitor the secondary
(aftermarket) sites and third-party auctionsites to prevent sales of
new or used products that have been recalled. Our staff anticipates
that the Internet will continue to grow in importance for us over time.
Therefore, the resources devoted to monitoring these marketplaces will
also need to increase.
Question 5. We have recently seen a number of issues arising out of
the possibility that certain children's products contain high lead
levels. Are there limitations in the Federal Hazardous Substances Act
provisions with respect to the Commission's authority to fully address
the hazards of children's products containing lead and other toxic
substances?
Answer. I wish the Commission had the authority to find it
unacceptable for any amount of lead (or any other toxic substance) to
be in children's product. However, our statute requires us to assess
the accessibility of the lead (or other toxic substance) and that is
the key measure under the Federal Hazardous Substances Act (FHSA) of
whether or not a product can be deemed to contain a banned hazardous
substance. The Commission did issue a guidance document back in January
1998, which went so far as to urge manufacturers ``to eliminate lead in
consumer products.'' The link to this guidance document follows as well
as a similar one the Commission issued dealing with hazardous liquid
chemicals in children's products.
http://a257.g.akamaitech.net/7/257/2422/12feb20041500/
edocket.access.gpo.gov/cf
r_2004/janqtr/16cfr1500.230.htm; http://a257.g.akamaitech.net/7/257/
2422/12fe
b20041500/edocket.access.gpo.gov/cfr_2004/janqtr/16cfr1500.231.htm.
Given the provisions of the FHSA, the Commission does not have the
authority to enforce the total elimination of lead or other toxic
substances from children's products, and the Commission went as far as
it could in expressing its views on the subject. I would welcome
congressional attention to this important issue.
Question 6. With the recent reductions in Commission staff, the
ability of the Commission to sufficiently address the mounting number
of possibly unsafe imported products under the Commission's
jurisdiction is a concern. Given your current budgetary picture what is
the status of the Commission's ability to adequately address the
concerns raised by the growing number of imported products?
Answer. In Fiscal Year 2006, fully 75 percent of our recalls
involved imported products. Nearly 50 percent of all recalls involved
products of Chinese manufacture. To deal with the escalating number of
unsafe consumer products being imported, we are devoting an ever
increasing share of staff resources to the problem and we are trying to
leverage those resources through other entities.
First, CPSC staff is working with U.S. Customs and Border
Protection to strengthen our ability to prevent unsafe consumer
products from entering U.S. commerce. For example, the CPSC has
recently become a participating agency in the International Trade Data
System (ITDS) Automated Commercial Environment. This status will allow
us to take advantage of the next generation of technologies being
developed by U.S. Customs to identify and track incoming product
shipments.
Second, the agency has strengthened our cooperation with foreign
governments and sought to develop coordinated strategies for improving
the safety of products exported to the United States, particularly from
China.
Third, as imports increase, it is essential that manufacturers
abroad be educated about U.S. safety requirements. In recent years, the
agency revised our Handbook for Manufacturers, which contains many
valuable tips on manufacturing safe products, and had it translated
into Mandarin Chinese. CPSC safety experts also have conducted seminars
for Chinese manufacturers on CPSC safety standards and requirements.
Fourth, most imports to this Nation are sold by U.S. retailers.
Therefore, CPSC staff has worked with retailers to heighten their
safety consciousness and to underscore the need to address safety
proactively in the case of imported as well as domestic products. Our
staff has developed a new reporting model that promotes more
information flow between certain major retailers and manufacturers, as
well as with the CPSC.
While these efforts can be successful, the dimensions of the
problem are large and have continued to grow over the last several
years. To keep pace, staff efforts and related resources will also have
to significantly increase. This will be a major challenge.
Question 7. Now that you have had the opportunity to deliberate,
what is your reaction to a reinstatement of five Commissioners on the
Commission? Would that eliminate the loss of quorum problem? What would
be the cost to restore the two Commissioners' offices?
Answer. Congress, in its wisdom, originally established a five-
member Commission. A five-member Commission provides for diversity of
views and allows different combinations of alliances to be formed on
various issues. In such an atmosphere, ideological views may become
more important than political affiliations. Larger Commissions also
make it more likely that an Independent could become a Commissioner,
giving a less partisan flavor to decisions.
The current three-member structure usually only allows for one
alliance to be formed--by the majority political party at the
Commission. The change voted by the Commission in January of 2006,
which altered the Commission's former policy of annually rotating the
Vice Chairmanship among all of the Commissioners, to one that can
always give control of both the Chairmanship and the Vice Chairmanship
to the same party, has further politicized the Commission. This is
precisely how independent agencies are not supposed to work. With only
three Commissioners, the Chair assumes greater significance than our
statute contemplates. The ``executive and administrative functions,''
which should be the only authority that sets the Chair apart from his
colleagues has morphed into control over policy matters. Now the Chair
only has to secure one vote--that of his fellow party member--to
control the Commission. If the Chair had to secure two votes, his
ability to have unchecked say over policy matters would be lessened.
Having two additional Commissioners might put more of a burden on
staff in terms of private briefings, but the result might also be more
public briefings, which have been exceedingly rare these last few
years. The tendency has become for the majority in power to pre-
negotiate decisions that are then presented to the public as staff
recommendations requiring Commission consideration.
In 1976, the ``Government in the Sunshine Act'' was signed into
law. Its purpose was to ensure that government agency decisions were
made in the open, not behind closed doors. The Congress wanted the
public to understand and see the decisionmaking process. Thus whenever
a majority of the decisionmakers in an agency get together to discuss
significant matters which are pending before their agency, that meeting
must be announced a week in advance and must be open to the public
(with a few exceptions). When you have an agency with seven or five
members, the Sunshine Act does not hamper the normal dialogue that
should go on in an agency because any member can still talk to any
other member about agency business. But where you have only three
Commissioners, the result is that no Commissioner should ever talk to
another Commissioner about any matter of substance before the
Commission except in an open meeting after public notice because two
members constitute a quorum. Consequently, no thoughtful give and take
can take place on issues except through intermediaries. Of course, much
can get lost in the translation in those discussions.
The inability of Commissioners to talk to each other about agency
business can have other consequences. I believe it undermines the
collegiality that should be the hallmark of an independent agency's way
of doing business. Having to be constantly vigilant about not straying
into areas of common concern at the agency makes the Commissioners
hesitant to explore ideas with each other and makes it difficult to
understand the reasoning behind a fellow Commissioner's decisions. We
can read each others written decisions, but nothing takes the place of
a conversation where questions can be asked and ideas are challenged.
That breakdown in the collegial system can give the Chairman of the
agency greater control of agency policy than would likely be the case
if the Chairman was subject to having to justify or explain his actions
privately to the other Commissioners.
I estimate adding two additional Commissioners would cost about
$1,000,000. The actual amount would depend upon what salary grade and
step their staffs members were brought in at. This does not include the
cost of recapturing the two Commissioners' office suites, which are
currently occupied by offices of the Executive Director and Human
Resources, and moving those employees to other offices.
The Commission never should have lost two Commissioners, especially
through the Appropriations process. As part of a comprehensive package
to restore the staff and resources we have lost and to begin the
process of rebuilding the agency, the restoration of the two unfunded
Commissioners would send a strong signal that the Congress still
believes in the agency's mission and in the importance of the agency
being insulated as much as possible from political pressures. However,
if such a comprehensive rebuilding were not contemplated then, because
of the reductions in staff the Commission has suffered in recent years,
if I had to choose between using a million dollars to restore the two
Commissioners or putting that money toward hiring more statisticians,
engineers and other scientists to help us do the work of protecting the
American public, then I would choose the latter. Some of the anomalies,
like the loss of quorum, that result from having only three
Commissioners could be dealt with by changes to our statute.
Question 8. One of the members of the second panel at the March 21
hearing suggested that the Commission should be changed to a single
Administrator. What are your views on that?
Answer. I believe the public is better served when regulatory
agencies are headed by multi-member Commissions that have some
insulation from political pressure and where divergent philosophical
views must temper each other to reach a consensus. The give-and-take,
the checks and balances of a collegial body of independent
Commissioners is a much more effective means of securing and
maintaining a reasonable balance in the effective yet controlled use of
Commission authority in the interest of reasonable public safety. You
may not always get the strongest decision in such an environment, but
there are built-in checks and balances that tend to keep the most
extreme views of either side from prevailing.
A single administrator is, in most cases, going to follow the lead
of the Administration that appointed him. That one person's abilities,
integrity and leadership skills will determine whether the agency
fulfills its mission or fails the American public. A Commission is more
likely to consider all sides of an issue, listen to the opinions of
colleagues where each vote has the same weight, and think creatively to
resolve differences.
Commissions also provide a certain amount of continuity. We have
been fortunate in the last 10 years or so to have Commissioners who,
for the most part, wanted to serve on the Commission and sought
reappointment to continue their work. This has been particularly
important at a time when so much of the Commission's historical
knowledge is being lost as seasoned employees leave either through
retirements or transfers.
When a new Chairman of an agency comes onboard, there is a period
of adjustment and, depending on the makeup of the rest of the
Commission, there can be changes in approach, but significant policy
shifts usually only happen over a period of time. However, when a
single administrator is replaced, there can be dramatic and immediate
changes in agency policy. Consumers and businesses alike expect
consistency from agencies that set national product safety standards
and exercise broad enforcement powers.
Question 9. One of the ways you are trying to address your
budgetary constraints for Fiscal Year 2008 is surrendering office
space. Can you provide us with a detailed account of what is being done
in this regard and what avenues the Commission has to expand its space
once again, if additional funds are provided for staff? Would
additional space in the same building have to be rented at higher rates
than the current rental agreement? Provide a detailed cost breakdown of
what the office consolidation will cost in the current fiscal year,
including disruption in staff productivity, man-hours spent moving/
packing/unpacking and any space reconfigurations that have or will have
to be done.
Answer. The last three budget cycles have forced the Commission to
make some very difficult decisions with regard to reducing funding for
the agency's operations. Because so much of our budget is devoted to
salaries and space rental, when our budget is reduced significantly
(and given our small budget, significant to us is anything over half a
million dollars) salaries and rent are where we are forced to make
cuts. For the fiscal 2008 budget we had to make a number of tradeoffs
to accommodate the OMB pass-back figure which did not provide us with
enough funds to maintain current services, given the cost increases we
had to sustain for salaries, rent and other annual contractual
obligations. As we had been forced to reduce our staff over the two
preceding years, and were going to have to reduce staff again under the
proposed 2008 budget, it made sense to see if we could consolidate
office space in our headquarters building and return some space to GSA
in return for reduced rent. We thus proposed a rent reduction of
$500,000 which would allow us to retain four or five FTEs that we would
otherwise have to lose (on top of the 19 we were already resigned to
losing for that fiscal year).
The challenge was to find a large enough block of contiguous space
that would be acceptable to be returned under GSA requirements, and
which would result in the needed savings. The space was found but at a
cost in loss of morale, less desirable working conditions for some
employees and short-term financial costs to the agency that have to be
absorbed. The latter will be recouped through the rental savings, but
the other two may take longer to recover from.
To many employees, this reduction in our office space is just
another indication of how little value is placed on our agency. We are
shrinking at a time when our responsibilities are increasing. Some
offices that had their own space were consolidated with employees from
other offices. For example, we had to consolidate our Equal Opportunity
Office with our Inspector General's Office. These are both offices
where employees expect privacy in pursuing matters they may not want
management (or certain other employees) to be aware of. Combining them
was the best solution we could find, but we certainly would rather not
have done anything that would risk reducing our employees' comfort
level at pursuing their rights or reporting wrongdoing.
We currently have 270 employees at headquarters. After the space
consolidation is complete and we give back the space we are vacating,
we could accommodate up to another 20 people, but given the nature of
where pockets of office space would still exist, the likelihood of new
employees being able to be situated in the office that hired them and
being with their colleagues to be acclimated and mentored is small and,
in some instances, we already know it will be impossible. There will be
a cubicle here and there scattered throughout our space where we could
put new hires but there will be no sizable contiguous space available.
We can accommodate new hires in the Field without limit (as to office
space) as they all telecommute.
If we were to get funding for additional employees, and additional
funding to increase our headquarters space, we would be able to rent
any available space in our current building at our then current lease
rates, through GSA. We would not be paying any more for the space than
we would under our current lease. The longer we wait, though, the more
likely it is that the space we give back will be rented by other
entities and then we will have the additional security costs related to
placing employees on floors other than those already occupied and
secured by the Commission.
I am told that we are trying to keep the cost of the consolidation
to the amount of the cost savings that we will realize by giving the
space back by June 30th of this year. This amounts to the approximately
$120,000 in rent savings that will accrue for July through September.
This amount does not allow for a number of build-outs that would make
the reconfigured space much more comfortable and workable for the
offices that were forced to move into new space. It is estimated that
if all of the work was done that would provide the staff with the
optimal space and configuration that we are able to accommodate in our
reduced square footage, that the cost would be approximately $500,000,
or one full year's rent savings. In addition to the materials and labor
costs of moving, each office involved in a move (11) lost approximately
2 days of productive work in packing and unpacking their offices, which
equate to almost a month of lost productivity. The moves have been
staged to reduce the disruption as much as possible, but it is a
disconcerting process nonetheless.
This space consolidation is predicated on the assumption that we
will have to yet again reduce our FTEs by 19 in 2008. If we do not, or
if we get funding for even more FTEs, then in addition to funding for
that personnel, we may need additional funding to restore some or all
of the space that is being given up this year.
Question 10. Acting Chairman Nord indicated that the Commission's
action with regard to adding new preemption language in the preamble of
the Final Mattress Rule was dictated by a memo from your agency's
Office of General Counsel. What is your position on that preemption
language?
Answer. I have attached and provided a link to my statement on the
preemption language which provides my analysis of the Commission
actions with respect to the language added to the preamble of the Final
Mattress Rule. http://www.cpsc.gov/CPSCPUB/PREREL/prhtml06/06091.html.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Hon. Thomas H. Moore
Question 1. In addition to the mattress flammability rulemaking the
Commission commenced in 2005, are there other rulemakings pursuant to
the Flammable Fabrics Act in which the Commission has commented on the
preemptibility of state standards or requirements? If so, please
provide a list of these rulemakings and a copy of the Commission's
statement with respect to preemptibility.
Answer. The first instance under the Flammable Fabrics Act (FFA) in
which the Commission spelled out the preemption language, pursuant to
the 1996 Executive Order, was in proposed technical amendments to the
Children's Sleepwear Standard, Sizes 7 through 14, published in the
Federal Register on May 21, 1998. The Commission gave a brief summary
of the statutory language and mentioned both subsections (b) and (c) of
Section 16 of the FFA, which describe situations in which preemption
might not apply to a non-identical Federal, State or local government
standard or regulation. http://www.cpsc.gov/businfo/frnotices/fr98/
sleeptech.html The next action under the FFA is the finalization of
those technical amendments, which appeared in the Federal Register on
January 19, 1999. http://www.cpsc.gov/businfo/frnotices/fr99/tech.html
While it again seeks to merely summarize the statutory language, for
some reason, it only mentions subsection (c) of Section 16 and omits
any reference to subsection (b). It may be that it was thought that a
State or other government entity would be unlikely to adopt a
children's sleepwear standard ``for its own use'' and, for that reason,
the reference to subsection (b) of Section 16 was omitted. This was a
change that was never brought to my attention. While the Commission
cannot change the statutory provisions through language in the preamble
to a regulation, the omission of any reference to subsection (b) of
Section 16, after having referenced it in the proposed rule could lead
to confusion and it should have been retained, however unlikely its use
would be. This is an issue you raise in your second question with
regard to the Mattress Flammability (Open Flame) Rule.
The next time the preemption language appears is in proposed
amendments to revise the laundering standards for mattress pads,
published in the Federal Register on March 17, 1999. http://
www.cpsc.gov/businfo/frnotices/fr99/mattress.html. In an apparent
attempt to shorten the preemption discussion, subsections (b) and (c)
of Section 16 of the FFA are dispensed with in the language: ``With
certain exceptions which are not applicable here. . . .'' Again, I have
to assume that staff did not foresee higher Federal, State or local
standards for mattress pads for the use of those entities, nor did they
expect to receive any applications for exemption in that area. These
were technical amendments to an existing standard, most of which
remained unchanged, and that may also explain why a description of
subsection (b) and (c) were omitted. These amendments were finalized on
March 10, 2000, and the final preemption language is identical to the
language in the proposal. http://www.cpsc.gov/businfo/frnotices/fr00/
matt.html.
The next appearance of the preemption language is in proposed
revisions to the laundering provisions to the children's sleepwear
standards, also published in the Federal Register on March 17, 1999.
http://www.cpsc.gov/businfo/frnotices/fr99/flammstd.html. It is
identical to the language used in the mattress pad proposal. The
language remains the same in the final amendments to these standards,
which were published in the Federal Register on March 10, 2000. http://
www.cpsc.gov/businfo/frnotices/fr00/sleepwr.html.
Also on March 17, 1999, the Commission published proposed
amendments to the laundering procedures in the small carpet and rug
standard. http://www.cpsc.gov/businfo/frnotices/fr99/carpet.html. The
language is the same as the other proposed rules issued the same day.
The final amendments, with the same language, were issued on March 10,
2000. http://www.cpsc.gov/businfo/frnotices/fr00/rugs.html.
It should be noted that in all of these recitations of the
statutory preemption language the phrase ``standard or other
regulation'' is used. This is taken directly from Section 16 where that
language is used repeatedly--no less than 25 times in this fairly short
provision. The word ``requirement'' is used only once, and then it is
clearly referring back to one of the many ``standard or other
regulation'' references. The word ``requirement'' is given new and
unexpected meaning in the preamble to the Mattress Final Rule.
On January 13, 2005, the proposed rule for the Flammability (Open
Flame) of Mattresses and Mattress/Foundation Sets was published. http:/
/www.cpsc.gov/businfo/frnotices/fr05/openflame.html. The language
tracks the language that had been used in rulemakings under the FFA
since the issuance of the Executive Order and does reference the
specific exception in subsection (b). The discussion then goes on to
make specific reference to an existing California mattress flammability
standard and an Advisory Opinion issued by our General Counsel on the
preemptive effect of any new Federal standard on that California
standard. It is this discussion that supposedly put the public on
notice that the Commission was about to stake out new territory with
regard to the preemptive effect Section 16 had on state court actions.
This Advisory Opinion did not deal with a state court action and is
merely advisory in nature, never having been adopted by the Commission.
(See footnote 4 of my statement on the Final Mattress Rule for a
discussion of this Advisory Opinion.) A year later in January of 2006,
the Commission released the draft final rule to the public.
Specifically omitted from the public document was the preemption
language in the preamble. All that appears in the public document is
the title of the section ``N. Executive Order 12988 (Preemption)'' and
the words ``[TO BE INSERTED].'' http://www.cpsc.gov/businfo/frnotices/
fr05/openflame.html. This was actually the first public notice from the
Commission that something different was about to be put forth with
regard to the preemption language. The proposed preemption language was
circulated to the Commissioners' offices, but not released to the
public. On February 1, 2006, I publicly asked my colleagues to release
the proposed preemption language so that the public would have an
opportunity to comment on it. My statement of that date follows:
Closing Remarks of Commissioner Thomas Hill Moore at the Briefing on
the Final Rule for the Flammability of Mattress Sets--February 1, 2006
I will very shortly be submitting a few additional questions to the
staff on the package, including some related to the new proposed
language on the preemption effect that this regulation has on state
common law remedies. Unfortunately our General Counsel's memo on this
issue is not available to the public. It has an excellent analysis of
this issue, which would be extremely helpful to the public in
understanding the reasoning behind the proposed language.
There is an analysis of the preemption issue in Comment Number 523,
filed in this proceeding by representatives of the mattress industry.
It can be found on our website at www.cpsc.gov under Library-Freedom of
Information Act, 2005 FOIA Information, Public Comments. The preemption
discussion in Comment 523 begins at page 79 of Part 14 and continues
into Part 15 of those comments.
It will be difficult for the public to properly analyze this issue
without seeing the proposed preemption language, which was omitted from
the draft Final Rule when that was made public. I think the entire rule
should be made public before the Commission votes on it. There should
be some time, however brief, for interested parties to comment on the
preemption issue. I know it would be very beneficial to me to hear from
all sides on this issue. I would like to ask my colleagues to join with
me in directing the staff to make that language promptly and
prominently available on the CPSC website.
My colleagues agreed and the proposed preamble language was put on
our website, but not, as I had requested, prominently, so my office had
to make sure that groups that would normally want to comment on such
matters were notified about the availability of the language in time to
do so. The public had 2 weeks to comment on this language before the
Commission voted. My request to make the General Counsel's memo, which
was the underpinning for this new interpretation, public was not agreed
to, so the rationale of the new interpretation was not available for
public comment, other than what could be gleaned from the actual
preemption language in the preamble.
On November 13, 2006, technical amendments were proposed to the
ignition source in the test methodology of the Flammability Standard
for Carpets and Rugs. http://www.cpsc.gov/businfo/frnotices/fr07/
flammability.html. The preemption language is the same language that
had been used prior to the Mattress Flammability Final Rule. In other
words, no interpretation with regard to the preemptive effect on state
court actions is described. When asked why, my staff was told there had
been a mistake, that the interpretive language should have been
included. Due to a new policy of not disclosing the draft proposed or
final rule language to the public until after the Commission has voted
to adopt it, and assuming the preemption language is changed in the
final rule to reflect the new interpretive style of the mattress
standard, there will be no public notice that such preemption language
will appear in the Final Rule prior to its being voted upon by the
Commission. I do not support this change in policy and am unclear how
it can be ordered by one Commissioner without the support of the other.
(See my statement of October 31, 2006, which accompanied my vote on
this rulemaking. http://search.cpsc.gov/
query.html?col=pubweb&qt=carpet+and+rug&x=12&y=12).
The final matter voted on by the Commission under the Flammable
Fabrics Act is a proposed amendment to the Standard for the
Flammability of Clothing Textiles. It was published in the Federal
Register on February 27, 2007, although it was voted on by the
Commission prior to the expiration of the quorum. http://www.cpsc.gov/
businfo/frnotices/fr07/clothingflammstd.html. When this proposal was
before the Commission, we were down to just two Commissioners, and I
was able to secure the agreement of Acting Chairman Nord to not include
the interpretive language in the preamble at that time and to revert to
the traditional Commission language which merely summarizes the
statutory provisions.
Question 2. In its discussion of Executive Order 12988 in the
January 2005 notice of proposed rulemaking on a standard for the
flammability of mattresses and mattress/foundation sets, the Commission
states that pursuant to 15 U.S.C. 1203(b), ``the Federal Government,
or a State or local government, may establish and continue in effect a
non-identical flammability standard or other regulation for the
Federal, State or local government's own use if it provides a higher
degree of protection than the FFA standard'' and says that this would
be one exception to the preemption of non-identical state or local
mattress flammability standards designed to protect against the same
risk of the occurrence of fire. However, the Commission's discussion of
preemptibility in the preamble of the final rule focuses on preemption
of any non-identical state requirements, regardless of whether the
state requirements offer a higher degree of protection than the FFA
standard. 15 U.S.C. 1203(b) is not mentioned in the Commission's
preemptibility analysis in the final rule. Did the Commission consider
15 U.S.C. 1203(b) when evaluating the preemptibility of state
requirements? If not, why not? If so, why did the Commission preempt
all non-identical state requirements rather than only those non-
identical state requirements that do not provide a higher degree of
protection from a fire risk than the Commission's standard? Why is 15
U.S.C. 1203(b) discussed in the notice of proposed rulemaking but not
in the preamble to the final rule?
Answer. The Commission cannot change the statutory language in the
Flammable Fabrics Act with regard to preemption, which, as you know,
does not preempt non-identical standards issued by Federal, State or
local governments meant for their own use that provide a higher degree
of protection than the Federal standard. While I did vote for the
Mattress Flammability Final Rule--because I thought the mattress
flammability standard was too important to vote against--I did not
agree with the preemption language used in the preamble to the
regulation and most of the statement that I issued with my vote was
devoted to that issue. I discussed the point you raise on the first and
second pages of my statement. http://www.cpsc.gov/businfo/frnotices/
fr07/clothingflammstd.html. I wanted to make it clear that the
regulation did not (indeed could not) preempt such existing or future
standards that applied to facilities such as state-run prisons or
hospitals.
I do not know why this was omitted from the preemption discussion
in the preamble to the Final Rule, particularly as mattress
flammability is an area where we know some states do have more
stringent standards for certain state-run facilities. This rule is the
first time that there had been any attempt to interpret the statutory
preemption language in any of our statutes, as opposed to merely
quoting or summarizing the statutory language. It may be that because
the focus was more on staking out new ground with regard to the
potential preemption of state civil court actions than in stating the
statutory language, that this point was inadvertently omitted. I know
from talking to the technical staff that they agree with my assessment
that such standards are not preempted.
Question 3. In Section H.7. of the preamble to the Commission's
mattress flammability rule, the Commission states that it received
several comments concerning preemption, including one comment
supporting preemption of both codified state rules and state common law
claims and others asking the Commission to indicate that the standard
would not preempt stricter state standards. Did the Commission consider
the comments opposing preemption? If so, how did it weigh these
comments and why did the Commission not clarify that the standard would
not preempt stricter state standards?
Answer. I certainly considered the comments on preemption, both pro
and con. I can understand why any industry would want to try to shield
themselves from civil liability for injuries from a product which
complies with a Federal standard. However, I saw no evidence that this
was what Congress had intended and saw absolutely no reason to attempt
to make a strained argument that this is what Congress had intended
after 10 years of silence by the Commission on this point. My statement
on the preemption issue is attached. As to why the preemption language
did not give proper notice of the exception in the statute to higher
standards issued by other government entities for their own use, please
see my answer above.
May I just add that it will be said that the preamble is not part
of the regulation and will not appear in the Code of Federal
Regulations and thus has no force or effect. A preamble is in the
nature of legislative history. It explains, often in great detail, why
the Commission took the action it did in any particular instance. The
Commissioners pay as much attention to what is expressed in the
preamble as they do to the actual language of the regulation itself.
The preamble is the foundation upon which the regulation rests and a
bad foundation can undermine the validity of the regulation. The
preamble is referenced by stakeholders, and I often go back to look at
earlier Commission precedents as expressed in the preamble of a
regulation to find the basis for a Commission action. Clearly if the
majority did not feel the preamble carried any weight they would not
have used it to put interpretive gloss on the language of our statute.