U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

22–286 PDF 2016

OVERSIGHT OF THE CONSUMER PRODUCT SAFETY 

COMMISSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, 

AND TRADE 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 19, 2015 

Serial No. 114–45 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND TRADE

MICHAEL C. BURGESS, Texas 

Chairman 

LEONARD LANCE, New Jersey 

Vice Chairman 

MARSHA BLACKBURN, Tennessee 

GREGG HARPER, Mississippi 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

GUS M. BILIRAKIS, Florida 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

FRED UPTON, Michigan (ex officio) 

JANICE D. SCHAKOWSKY, Illinois 

Ranking Member 

YVETTE D. CLARKE, New York 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

BOBBY L. RUSH, Illinois 

G.K. BUTTERFIELD, North Carolina 

PETER WELCH, Vermont 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Michael C. Burgess, a Representative in Congress from the State of 

Texas, opening statement .................................................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 4 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 5 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, prepared statement ........................................................................ 7 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 98 

WITNESSES

Elliot F. Kaye, Chairman, Consumer Product Safety Commission ..................... 8 

Prepared statement .......................................................................................... 11 

Answers to submitted questions 1 ................................................................... 128 

Ann Marie Buerkle, Commissioner, Consumer Product Safety Commission ..... 17 

Prepared statement .......................................................................................... 19 

Robert S. Adler, Commissioner, Consumer Product Safety Commission ............ 24 

Prepared statement .......................................................................................... 26 

Joseph P. Mohorovic, Commissioner, Consumer Product Safety Commission ... 31 

Prepared statement .......................................................................................... 32 

Answers to submitted questions ...................................................................... 129 

Ronald Warfield, Chief Executive Officer, ATV/ROV/UTV Safety Consulting ... 56 

Prepared statement .......................................................................................... 58 

Heidi Crow-Michael, Winnsboro, Texas ................................................................. 61 

Prepared statement .......................................................................................... 63 

Cheryl A. Falvey, Co-Chair, Advertising and Product Risk Management 

Group, Crowell & Moring, LLP ........................................................................... 78 

Prepared statement .......................................................................................... 80 

Erik Pritchard, Executive Vice President and General Counsel, Recreational 

Off-Highway Vehicle Association ........................................................................ 85 

Prepared statement .......................................................................................... 87 

SUBMITTED MATERIAL

H.R. 999, the ROV In-Depth Examination Act, submitted by Mr. Burgess ....... 99 

Statement of Marietta S. Robinson, Commissioner, Consumer Product Safety 

Commission, May 19, 2015, submitted by Mr. Burgess .................................... 104 

Letter of February 25, 2015, from Mr. Olson to Elliot Kaye, Chairman, 

Consumer Product Safety Commission, submitted by Mr. Olson .................... 121 

Letter of March 30, 2015, from Elliot Kaye, Chairman, Consumer Product 

Safety Commission, to Mr. Olson, submitted by Mr. Olson ............................. 123 

1Mr. Kaye’s answers to submitted questions have been retained in committee files and 

also are available at http://docs.house.gov/meetings/IF/IF17/20150519/103481/HHRG-114- 

IF17-Wstate-KayeE-20150519-SD005.pdf. 

(1) 

OVERSIGHT OF THE CONSUMER PRODUCT 

SAFETY COMMISSION 

TUESDAY, MAY 19, 2015 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND

TRADE, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:20 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Michael C. Burgess (chairman of the subcommittee) presiding. 

Members present: Representatives Burgess, Lance, Blackburn, 

Harper, Guthrie, Olson, Pompeo, Kinzinger, Bilirakis, Brooks, 

Mullin, Schakowsky, Clarke, Kennedy, Butterfield, Welch, and 

Pallone (ex officio). 

Staff present: Leighton Brown, Press Assistant; James Decker, 

Policy Coordinator, Commerce, Manufacturing, and Trade; Graham 

Dufault, Counsel, Commerce, Manufacturing, and Trade; Melissa 

Froelich, Counsel, Commerce, Manufacturing, and Trade; Kirby 

Howard, Legislative Clerk; Paul Nagle, Chief Counsel, Commerce, 

Manufacturing, and Trade; Olivia Trusty, Professional Staff Member, Commerce, Manufacturing, and Trade; Michelle Ash, Democratic Chief Counsel, Commerce, Manufacturing, and Trade; Christine Brennan, Democratic Press Secretary; Jeff Carroll, Democratic 

Staff Director; Elisa Goldman, Democratic Counsel; Tiffany 

Guarascio, Democratic Deputy Staff Director and Chief Health Advisor; Brendan Hennessey, Democratic Policy and Research Advisor; and Adam Lowenstein, Democratic Policy Analyst. 

Mr. BURGESS. Subcommittee on Commerce, Manufacturing, and 

Trade will now come to order. The Chair will recognize himself 5 

minutes for the purpose of an opening statement. 

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

The Consumer Product Safety Commission was established in 

1972 by Congress to protect consumers against unreasonable risks 

of injuries associated with consumer products. This statutory mission is a serious responsibility for the Commission, and it is critically important that Congress conduct oversight to ensure that 

public confidence in the Commission’s adherence to its responsibilities and stewardship of the taxpayer’s dollar. I would like to thank 

Chairman Kaye and Commissioners Adler, Buerkle, and Mohorovic 

for their testimony today. 

2 

We will also hear from a second panel of witnesses about Representative Pompeo’s bipartisan legislation, H.R. 999, the ROV InDepth Examination Act, and the open ROV rulemaking that has 

garnered substantial bipartisan concern from members on both 

sides of the dais, and both sides of the Capital. Consumer safety 

is a top priority for this subcommittee, and at a time where difficult budget decisions are being made across the Government, it 

is critical that all agencies are held accountable for their 

prioritization decisions, particular concern about the role of sound 

scientific principles at the Commission, the interaction between the 

Commission and its regulated industries, the rulemaking agenda, 

and the execution of Congressional mandates for third part test 

burden reduction, and the Commission’s continued request for new 

authority to impose user fees. There is a fundamental Constitutional issue with moving the power of the purse from Congress to 

a regulatory agency with no experience in disbursing fees. 

A wide range of open agenda items at the Commission require 

significant scientific evaluation and testing, from thiolates, to nanotechnology, to window coverings, and recreational off-highway vehicles. Consumer confidence is rooted in the belief that the Commission has the capacity to base its decision on supportable scientific 

findings. It is dangerous and short sighted for a safety agency to 

move away from science and scientific principles, as may have happened with the Chronic Hazard Advisory Panel report regarding 

thiolates, where even the Office of Management of the Budget 

guidelines for peer review were ignored. 

The Commission’s authorizing statute is based around the presumption that voluntary industry standards and cooperative relationships with the regulated industry are the preferred method of 

regulation for product safety. Safety is a strong incentive for both 

parties. There are a number of open rulemakings that fundamentally change the relationship between the Commission and the regulated industry. In an area where it is said that 90 percent of the 

threats to consumer safety are created by 10 percent of the participants, it seems counterintuitive to put additional barriers between 

the Commission and the regulated industry when the common 

ground is consumer safety. 

This is especially so where resources are always going to dictate 

the Commission will need help from industry in identifying problems. One open rulemaking fundamentally changes the fast track 

voluntary recall process, an award winning program established 20 

years ago to address long recall processes, which has produced tremendous results. Under this program last year, 100 percent of fast 

track recalls were initiated within 20 days. The positive impact for 

consumers is real when potentially dangerous products can be 

taken off the shelves in days, instead of weeks or months. 

Finally, there has been a bipartisan—there has been bipartisan 

support to reduce third party testing burdens for small businesses 

around the United States. In 2011 Congress passed H.R. 2715, 

with explicit instructions to the Commission to evaluate the testing 

burden relief in good faith, but the Commission has struggled to 

carry out the statutory requirement, even with additional funding. 

Three and a half years later, small businesses are reporting they 

3 

still have not seen any real burden reductions, and are facing 

seemingly endless comment rounds, but no real solutions. 

We are here to make certain that we are doing what we can to 

prevent tragic and unfortunate injuries from consumer products. 

However, additional funds for the Commission are difficult to justify when there are so many questions about the scientific methodology used by the Commission to support its regulatory agenda, 

and how the Administrative Procedure Act solicited comments are 

incorporated through the rulemaking process, and how the Commission operates without bipartisan support from any initiative. 

The Consumer Products Safety Commission’s mission must remain a touchstone for its important work, and not a launching pad 

for an active estate driven by headlines, rather than science and 

economics. Such an approach compromises the trust in an agency 

that has successfully removed thousands of unsafe consumer products from the economy, from product—from consumer shelves, as 

well as the voluntary safety standards that build safety into the 

products on the front end. 

[The prepared statement of Mr. Burgess follows:] 

PREPARED STATEMENT OF HON. MICHAEL C. BURGESS

The Consumer Product Safety Commission was established in 1972 by Congress 

to protect consumers against unreasonable risks of injuries associated with consumer products. This statutory mission is a serious responsibility for the Commission, and it is critically important for Congress to conduct oversight to ensure public 

confidence in the Commission’s adherence to its responsibilities and stewardship of 

taxpayer dollars. 

I would like to thank Chairman Kaye and Commissioners Adler, Buerkle, and 

Mohorovic for testifying today. We will also hear from a second panel of witnesses 

about Representative Pompeo’s bipartisan legislation, H.R. 999, the ROV In-Depth 

Examination Act and the open ROV rulemaking that has garnered substantial bipartisan concern from Members on both sides of the Hill. 

Consumer safety is a top priority for this subcommittee and at a time where difficult budgeting decisions are being made across the Government, it is critical that 

all agencies are held accountable for their prioritization decisions. I am particularly 

concerned about the role of sound scientific principles at the Commission, the interaction between the Commission and regulated industries, the rulemaking agenda, 

the execution of Congressional mandates for third-party test burden reduction, and 

the Commission’s continued request for new authority to impose user fees. There is 

a fundamental constitutional issue with moving the power of the purse from Congress to a regulatory agency with no experience with user fees. 

A wide range of open agenda items at the Commission require scientific evaluation and testing, from phthalates and nanotechnology to window coverings and recreational off-highway vehicles. Consumer confidence is rooted in the belief that the 

Commission has the capacity to base its decisions on supportable scientific findings. 

It is dangerous and short sighted for a safety agency to move away from sound 

science and scientific principles as I believe has happened with the CHAP Report 

regarding phthalates where even OMB guidelines for peer review were ignored. 

The Commission’s authorizing statute is based around the presumption that voluntary industry standards, and cooperative relationships with the regulated industry, are the preferred method of regulation for product safety. Safety is a strong incentive for both parties. There are a number of open rulemakings that fundamentally change the relationship between the Commission and the regulated industry. 

In an area where it’s said that 90 percent of the threats to consumer safety are created by 10 percent of the players-it seems counterintuitive to put additional barriers 

between the Commission and the regulated industry when the common goal is consumer safety. This is especially so where resources are always going to dictate that 

the Commission will need help from industry in identifying problems. 

One open rulemaking fundamentally changes the Fast Track voluntary recall 

process, an award-winning program established 20 years ago to address long recall 

processes, which has produced tremendous results. Under this program last year, 

100 percent of fast track recalls were initiated within 20 days. The positive impact 

4 

for consumers is real when potentially dangerous product can be taken off the shelf 

in days instead of months. 

Finally, there has been bipartisan support to reduce third party testing burdens 

for small businesses around the U.S. In 2011, Congress passed H.R. 2715 with explicit instructions for the Commission to evaluate testing burden relief in good faith. 

But the Commission has struggled to carry out this statutory requirement even with 

additional funding. Three and a half years later, small businesses are reporting they 

still have not seen any real burden reductions and are facing seemingly endless 

comment rounds but no real solutions. 

We are all here to make sure we are doing what we can to prevent tragic and 

unfortunate injuries from consumer products. However, additional funds for the 

Commission are difficult to justify when there are so many questions about the scientific methodology used by the Commission to support its regulatory agenda, how 

Administrative Procedure Act solicited comments are incorporated through the rulemaking process, and how the Commission operates without bipartisan support for 

many major initiatives. 

The CPSC’s mission must remain a touchstone for its important work and not a 

launching-off point for an activist State driven by headlines rather than science and 

economics. Such an approach compromises the trust in an agency that has successfully removed thousands of unsafe consumer products from the economy as well as 

the voluntary safety standards process that builds safety into products on the front 

end. 

Mr. BURGESS. The Chair will recognize the ranking member of 

the subcommittee, Ms. Schakowsky, for the purposes of an opening 

statement. 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman, for holding this important hearing about Consumer Product Safety Commission. The 

Commission, and its mission of protecting consumers from unsafe 

products, is very near and dear to my heart. I began work as a consumer advocate many moons ago, as a young mother working to 

get freshness dates on food. So when you go and look at the date 

on food, moi. And I know how important it is that consumers have 

access to health and safety information about the products that 

they purchase and use, and that they are protected against harmful products. 

In 2008 the landmark Consumer Product Safety Improvement 

Act was signed into law by President Bush. The bill was the product of broad bipartisan negotiation, and it marked the most significant reform of the CPSC and its responsibilities in decades. I also 

want to thank some of the advocates that are here in this room, 

and appreciate their work. The bill passed the committee 51 to 0, 

and the House by a vote of 424 to one. I was—it was slightly 

amended, again, on a bipartisan basis, in 2011, and the legislation 

gave the CPSC additional authority and resources so it could become the consumer watchdog that Americans deserve, and, frankly, 

expect. 

I am proud to have authored several provisions to the bill, including a provision requiring mandatory standards and testing for 

infant and toddler products, such as cribs and high chairs. I also 

successfully added to the reform bill a requirement for postage-paid 

recall registration cards to be attached to products so that customers can be quickly notified their products are dangers. 

The CPSC has been incredibly successful in its efforts to improve 

consumer protection over the last few years. There was a 34 perVerDate Mar 15 2010 11:28 Oct 26, 2016 Jkt 037690 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114X45XCPSCOVERSIGHTJKTREQ102116\114X45XCPSCOVERSIG
5 

cent reduction in children’s product recalls, just from 2013 to 2014. 

The 75 children’s product recalls in 2014 was the lowest number 

in more than a decade. Thank you very much. We have seen enhanced proactive outreach to provide consumers with information 

about the dangers and best practices associated with everything 

from window blinds, to electric generators, to lawnmowers. And we 

have seen rulemaking to reduce the likelihood of preventable tragedies. I applaud the Commission on its important work. While I am 

disappointed that we move forward with this hearing on a day that 

Commissioner Robinson was unable to appear, I look forward to 

hearing the perspectives of the other Commissioners about the 

CPSC’s work, and its next steps. 

The second panel today will provide analysis of H.R. 999, the 

Ride Act. I am strongly opposed to this bill, which would suspend 

CPSC’s statutory authority to complete a rulemaking affecting recreational off-highway vehicles, or ROVs, until after a study is completed at the National Academy of Science. It is not clear to me 

why this study is needed. After all, the CPSC has gone through its 

regular rulemaking process on this issue, taking into account the 

input of technical experts, the private sector, and the public. 

I am also not sure why the National Academy of Sciences would 

analyze the feasibility of, among other things, providing consumers 

with safety information at the point of sale. While the NAS has a 

highly skilled staff, market and consumer analysis is not its strong 

suit. It also makes no sense that NAS would be required to consider the impact of a rulemaking on ROVs used in the military. 

The CPSC is responsible for consumer products, not military vehicles. The proposed rule is irrelevant to military ROVs. I believe 

this legislation is a delay tactic, pure and simple. It would delay 

the implementation of the CPSC’s commonsense, consumer-focused 

rule to reduce ROV rollovers, enhance safety, and increase consumer information. 

It is not as if this rulemaking is moving too fast. The risk of ROV 

death is not a new one, and the public comment period for the ROV 

rulemaking is currently open. There is nothing preventing the supporters of this legislation from making their concerns, and their 

suggestions, known. That is the way the process is supposed to 

work. What we cannot do is usher in a long delay for the sake of 

delay. The 335 ROV related deaths, and 506 injuries, from 2003 to 

2013, I think it is time to act to enhance ROV safeguards, not tie 

the hands of the CPSC. 

Again, I look forward to hearing from our witnesses, thank them 

for coming today, and I yield back. 

Mr. BURGESS. Chair thanks the gentlelady. Gentlelady yields 

back. The Chair recognizes the vice chair of the full committee, Ms. 

Blackburn, 5 minutes for an opening statement, please. 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and I want to say 

thank you to our witnesses. We appreciate that you are here. You 

know, 2008 was really the year of the recall, and since that point 

6 

in time we have been very interested in the work that you are 

doing, and have looked at your deliverables, and your outcomes. 

Now, one of the things that is of tremendous concern to us—and 

I have got to tell you, I heard a lot about this during small business week, which was just a couple of weeks ago. And I was out 

and about in my district, visiting with small businesses, visiting 

with some retailers, and there are a lot of complaints that are coming about the way you all are going about your task, and some of 

the unnecessary burdens that are being put on retailers, and on 

businesses, and changes in reporting requirements. And I have got 

to tell you, I think there is a lot of unhappiness with the American 

public in how you are doing your job. I would say too there is probably some confusion as to what your mission statement is, and you 

are meeting that. 

Now, I think it is fair to say that, as we look at the cost to business, and the cost to consumers, and a cost-benefit analysis, what 

we want to do is drill down with you a little bit. We share the same 

goal, being certain that the supply chain is safe, that products are 

safe when consumers get those products. There are different ways 

to go about this, and we want to make certain that there is an accountability issue, a transparency issue, and a fairness issue, or 

standards, that are being met. So we will have questions, and will 

move forward with those—so want to take a moment and welcome 

our former colleague. Commissioner Buerkle, it is wonderful to see 

you back in these halls, and it is wonderful to see you back in a 

hearing room, and we appreciate the work that you are doing. 

With that, Mr. Chairman, I am going to yield the balance of my 

time to Mr. Pompeo for a statement. 

Mr. POMPEO. Thank you, Madam Vice Chairman. Look, we have 

a—thank you all for being here, Chairman Kaye, and your colleagues, for coming today. We have this obligation, just as you do, 

to make sure that the CPSC statutes are implemented in a way 

that is both legal, and appropriate, and useful, and gets the economics and the safety balance just right. I think with respect to the 

ROV rules that you all have put forward, there is a lot of work that 

could be done. I think industry is prepared to try and get to a really good outcome that is a better place than the rulemaking that is 

proceeding will end up. 

I was out last week too. I was actually on an ROV vehicle, out 

in Kansas in the woods. Wore my helmet, did all the things right, 

and I am here today to tell about it, which is good. I hope we can 

get this right, and the legislation that I have proposed isn’t aimed 

at delaying. It is aimed at getting to a good outcome. It may cause 

a little more time, and a little more thoughtfulness, and a little 

more work to be done, but I hope we can get that right, that we 

can get the best science, and the best engineering associated with 

getting these rules in the right place, and get a voluntary standard 

put that industry can do the right thing, and get these vehicles in 

a safe place, to the right people. And I hope—and look forward to 

working with you to see if we can’t achieve that. With that, I will 

yield back my time. 

Mrs. BLACKBURN. I thank the gentleman, and does any other 

member seek the balance of my time? None so doing, I yield back, 

Mr. Chairman. 

7 

Mr. BURGESS. Chair thanks the gentlelady. Gentlelady yields 

back. Chair recognizes Democratic side for an opening statement. 

Ms. SCHAKOWSKY. Mr. Chairman, if I could just submit for the 

record Mr. Pallone’s opening statement? 

Mr. BURGESS. Without objection, so ordered. 

[The prepared statement of Mr. Pallone follows:] 

PREPARED STATEMENT OF HON. FRANK PALLONE, JR. 

Thank you, Chairman Burgess, and welcome to the Commissioners. 

While I know this is a rescheduled hearing, and we face time constraints, I want 

to start by saying that I am sorry that Commissioner Robinson is unable to be here 

due to prior commitments. This is particularly true today, as she has raised concerns about the length of time it takes to get a mandatory standard passed when 

the voluntary standard is inadequate. Her views would have been of value to the 

subject of today’s second panel, since the potential delay of a proposed rule for 

strengthening the safety of Recreational Off-Highway Vehicles (ROVs) is being discussed. 

The first part of today’s hearing examines the ongoing work of a relatively small, 

yet essential Federal agency—the Consumer Product Safety Commission (CPSC). 

After years of CPSC being ineffective and reactive, members of Congress worked 

together and produced landmark bipartisan legislation, the Consumer Product Safety Improvement Act of 2008 (CPSIA). In 2011, Congress again passed bipartisan legislation, giving CPSC additional flexibilities in implementing CPSIA (C*P*S*I*A). 

As a result, CPSC is now both an effective and proactive agency. 

Passage of CPSIA was a tremendous victory for consumers and improved the safety of products sold in the United States. CPSIA’s successes include getting lead and 

toxic phthalates out of children’s products and toys, strong safety standards for infant and toddler products such as cribs and high chairs and a publicly accessible 

database of reported unsafe products. 

As the Product Safety Commission finishes implementing stronger safety standards for products such as cribs, walkers, bath seats, toddler beds, and infant swings, 

we see the number of dangerous products on the market falling, the number of recalls falling, and the number of injuries falling. 

The Product Safety Commission now is moving beyond CPSIA implementation, 

and there is still a lot of hard work ahead. The Commission has worked aggressively 

to engage industry in the process of setting voluntary safety standards. And while 

that is essential, sometimes voluntary standards are not enough. 

That is why I am pleased it has begun the rulemaking process to protect children 

from the preventable strangulation hazard posed by cords in window blinds. In addition, the Product Safety Commission should ensure that any new Federal requirements regarding upholstered furniture flammability offer real public safety benefits 

and do not require or drive the use of harmful flame retardants. 

Unfortunately, some of the efforts of the Commission to protect consumers are 

being met with opposition by industry and members of this committee. Today’s second panel will focus on legislation that would unnecessarily delay the implementation of important safety standards for ROVs that would save lives. 

ROVs can be very dangerous, especially when they are built without key safety 

measures. These vehicles, which look like something between a car and a go-cart, 

can rollover on top of the driver or passengers, badly hurting or killing them. In 

other cases, people have lost limbs when ejected from the vehicle or when a foot or 

arm struck an object outside the vehicle. 

This is another case in which voluntary standards are simply not providing adequate protection for consumers. CPSC found that between 2003 and April of 2013, 

there were 335 reported deaths and 506 reported injuries related to ROV accidents. 

The reasonable standards being proposed by the Product Safety Commission require manufacturers to build certain safety measures into ROVs, including a minimum level of resistance for preventing rollovers and minimum protection to keep 

occupants inside the vehicle. 

We are very fortunate to have Heidi Crow-Michael, who has travelled all the way 

from Winnsboro, Texas, to join us today. In 2007, Ms. Crow tragically lost her 9- 

year-old son, J.T., in a ROV accident. I believe that her story is an important one 

for everyone on this subcommittee to hear. 

Ms. Crow-Michael has been advocating for the type of safety standards included 

in the Commission rule, so that the same tragedy does not befall another family. 

8 

Unfortunately, the fact is that preventable deaths continue to occur because important safety features are not being built into ROVs. 

The time to get this done is now-no more delays. 

Thank you, and I yield back the balance of my time. 

Mr. BURGESS. That concludes member opening statements. The 

Chair would like to remind members that, pursuant to committee 

rules, opening statements will be made a part of the record. 

We will now hear from our witnesses. I want to welcome all of 

our witnesses, and thank you for taking time to testify before the 

subcommittee. Today’s hearing will consist of two panels. Each 

panel of witnesses will have the opportunity to give an opening 

statement, followed by a round of questions from members. Once 

we conclude questions with the first panel, we will take a brief— 

underscore brief—recess to set up for the second panel. 

Our first panel today, we have the following witnesses, testifying 

on behalf of the Consumer Product Safety Commission. Chairman 

Elliot F. Kaye, Chairman of the Consumer Product Safety Commission, thank you for your attendance. Commissioner Robert Adler, 

and we welcome you, sir, to the subcommittee. Commissioner Ann 

Marie Buerkle, thank you for—it is good to see you again. You give 

me confidence that there is an afterlife. And Commissioner Joseph 

P. Mohorovic, thank you so much for your attendance today. We 

are honored to have all of you today. Chairman Kaye, you will 

begin the first panel, and you are recognized for 5 minutes for the 

purposes of an opening statement, please. 

STATEMENTS OF ELLIOT F. KAYE, CHAIRMAN, CONSUMER 

PRODUCT SAFETY COMMISSION; ANN MARIE BUERKLE, 

COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION; ROBERT S. ADLER, COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION; AND JOSEPH P. MOHOROVIC, 

COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION 

STATEMENT OF ELLIOT F. KAYE 

Mr. KAYE. Good morning, Chairman Dr. Burgess, Ranking Member Schakowsky, and the members of the subcommittee. Thank you 

for the invitation to come speak about the work of the United 

States Consumer Product Safety Commission, and our proposed 

budget for fiscal year 2016. I am pleased to be joined by my friends 

and colleagues from the Commission, Commissioners Adler, 

Buerkle, and Mohorovic, and I bring regrets from Commissioner 

Robinson. 

CPSC’s vital health and safety mission touches us all in some 

way every day. From the parents of the baby, who gently moves his 

or her child throughout the day from crib, to baby bouncer, to 

stroller, and back again to the crib, or the self-employed millennial 

who, on a warm spring day, relies on a room fan to stay cool, and 

an extension cord to power a computer, to the baby boomer who 

purchased adult bed rails to help care for an aging parent, the 

products in CPSC’s jurisdiction are inseparable from our lives. 

We believe we provide an excellent return on investment for the 

American people. We run a lean operation, and we cover thousands 

of different kinds of consumer products, with a budget in the milVerDate Mar 15 2010 11:28 Oct 26, 2016 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114X45XCPSCOVERSIGHTJKTREQ102116\114X45XCPSCOVERSIG
9 

lions, not the billions. We are very appreciative of the continued bipartisan support for the Commission and our work. We saw this 

support in the overwhelming, nearly unanimous vote to pass the 

Consumer Products Safety Improvement Act of 2008, and the near 

unanimous passage of an update to CPSIA in 2011. Your support 

has allowed our dedicated staff to drive standards development, to 

make children’s products safer, to increase our enforcement effectiveness, and to better educate consumers about product related 

hazards. 

Our staff has also been hard at work trying to reduce costs associated with third party testing, while also assuring compliance with 

the law. Congress’ inclusion of the $1 million as part of our funding 

for the current fiscal year has enhanced those efforts. I have emphasized priority—prioritizing those actions most likely to provide 

the greatest amount of relief, especially to small businesses. We are 

set to consider at least three different regulatory changes to provide relief this fiscal year, with more in the works. 

While the burden reduction, assure compliance work proceeds, 

our continuing efforts to carry out and enforce CPSIA driven enhancements to consumer product safety are reflected in our proposed budget. Unfortunately, not all of those priorities and requirements are achievable at our current levels. For that reason, we 

were pleased to see the President include in his budget two important consumer product safety initiatives. Both initiatives, if funded, 

will advance consumer safety and provide real value to those in industry making or importing safe products. 

First, we are seeking a permanent funding mechanism to allow 

the agency to comply with the Congressional charge in Section 222 

of the CPSIA. Section 222 called on the Commission to work with 

Customs and Border Protection and develop a risk assessment 

methodology to identify the consumer products likely to violate any 

of the Acts we enforce out of all the consumer products imported 

into the United States. 

To meet our mandate, in 2011 we created a small scale pilot that 

has been a success. However, a pilot alone does not fulfill the direction of Congress, and without full implementation, we will not be 

able to integrate CPSC into the much larger U.S. Government-wide 

effort to create a single window for import and export filing of all 

products. If CPSC can be fully integrated into the single window, 

we can transform Congress’ vision of a national scope, risk based, 

data driven screening at the ports into a reality, a reality that 

would mean faster entry for importers of compliant products, and 

safer products in the hands of American consumers. 

Our proposed budget also seeks to address critical emerging and 

safety—emerging health and safety questions associated with the 

rapidly growing use of nanomaterials in consumer products. In 

light of the questions raised in the scientific community about the 

effects inhalation of certain nanoparticles might have on human 

lungs, concerns that center on identified similarities to asbestos exposure, we are proposing to significantly advance the state of the 

science as it relates to human exposure, especially to children, from 

consumer products. 

Finally, I would like to discuss an additional priority of mine, one 

that is not reflected in dollars, but to me, at least, makes a lot of 

10 

sense. How we at the CPSC do what we do is often just as important as what we do. Since day one in this position, I have worked 

daily to try to establish a certain culture among the five of us at 

the Commission level. The Commission, and more importantly the 

American public, are far better served by an agency where we operate at the Commission level in a culture of civility, collaboration, 

and constructive dialogue. 

Thank you again for the invitation to speak to you about the 

CPSC and the life-saving work undertaken by our staff. I look forward to answering questions you may have. 

[The prepared statement of Mr. Kaye follows:] 

11 

12 

13 

14 

15 

16 

17 

Mr. BURGESS. Chair thanks the gentleman. The gentleman yields 

back. The Chair recognizes the gentlelady, Ms. Buerkle, for her 

question—her statement, please. 

STATEMENT OF ANN MARIE BUERKLE 

Ms. BUERKLE. Thank you, Mr. Chairman, and good morning, Mr. 

Chairman and Ranking Member Schakowsky, and distinguished 

members of this committee. Thank you for holding today’s hearing 

with regard to the Consumer Product Safety Commission. I had the 

honor of serving alongside many of the subcommittee members in 

the 112th Congress, and I am delighted to be back here on Capitol 

Hill in my capacity as a Commissioner at the CPSC. And I do hope 

that today’s hearing strengthens our partnership to keep consumers safe from unreasonable risks of injury. 

I have been a Commissioner at the agency since July of 2013, 

and throughout this time what has continued to impress me is the 

dedication of the CPSC staff. The mission of safety is taken very 

seriously. The regulated community has also impressed me, not 

only with their eagerness to understand and comply with our regulations, but also with their entrepreneurial drive to innovate and 

advance safety. I am thankful too for the tone set by our Chairman, and joined by my colleagues. We offer—we often differ significantly on policy issues, but those differences are discussed in a mutually respective manner. 

As a Commissioner I have stressed three general priorities, collaboration, education, and balance. Number one, it is crucial to— 

that CPSC builds strong relationships with all stakeholders. If the 

lines of communications are open, we can tap the knowledge, insight, and expertise of many outside experts. This is especially important in the case of the regulated community. If we inspire cooperation, rather than hostility, we will see quicker introduction of 

safer designs, as well as timely removal of defective products, all 

to the benefit of the consumer. That is why I am deeply troubled 

regarding the discussion of high—higher civil penalties, changes to 

important programs known as retailer reporting, and the proposals 

known as voluntary recall in 6(b). Without question, I believe these 

undermine engagement and collaborative efforts. 

Number two, education. It is crucial to our mission. We need to 

make the regulated community aware of best practices and be honest regarding what we are intending to achieve. More importantly, 

we also need to engage the consumer, helping them to avoid hidden 

hazards and take advantage of safer products that are already 

available to them. A prime candidate for a comprehensive educational campaign is the issue of window coverings. Increased 

awareness and education will prevent many unfortunate injuries 

and death. 

And number three, while consumer safety is our top priority, I 

believe that that safety can be achieved in a balanced, reasonable 

way that does not unnecessarily burden the regulated community, 

deprive consumers of products they prefer, or insert Government 

into the market where it does not belong. Our statutes express a 

strong preference for voluntary standards rather than mandatory 

standards. Where mandatory standards are unavoidable, the CPSA 

18 

instructs us to find the least burdensome solution that adequately 

addresses the risk. 

Mandatory standards have unintended consequences. They tend 

to stagnate, while the world of consumer products evolves rapidly. 

It makes then—sense, therefore, to revisit our rules periodically 

and make sure they are effective without stifling innovation. I am 

pleased that the Commission voted unanimously last week for a 

retrospective review of our rules, and I do hope it will become a 

more regular activity of the Commission. 

Regulation is a necessary function of the Government, and the 

Consumer Products Safety Improvement Act strengthened our authority. It is clear, however, the CPSIA went too far in some respects, forcing regulation without regard to risk, let alone cost. 

This subcommittee led the way in moderating some of the untoward consequences of CPSIA through its work on H.R. 2715, which 

passed into Public Law 112–28 while I was a member of the House. 

Some objectives of that law remain unfulfilled. Last year, the 

House included $1 million in our 2015 appropriations, thanks to 

Representative Blackburn, to kick start our efforts on test burden 

reduction. There is still much more we can do to remove unnecessary regulatory burdens in this arena, and I do look forward to 

working with this committee on those unresolved CPSIA issues. 

The common goal among all of us, Congress, CPSC, industry, and 

consumers, is safety. We are all people who have families for whom 

we want safe products. I have six children and 16 grandchildren. 

I do now want dangerous products hurting them, or anyone, however, the United States Government cannot, and should not, try to 

create a zero risk society. The solutions we seek should be balanced, and address actual problems. Consumers should be protected from unreasonable risks, while the regulated community is 

protected from an arbitrary Government. Thank you for this time 

today, and I do look forward to taking any questions you might 

have. Thank you, Mr. Chair. 

[The prepared statement of Ms. Buerkle follows:] 

19 

20 

21 

22 

23 

24 

Mr. BURGESS. The Chair thanks the gentlelady. The Chair recognizes Commissioner Adler, 5 minutes, please, for an opening statement, sir. 

STATEMENT OF ROBERT S. ADLER 

Mr. ADLER. Good morning, Chairman Burgess, Ranking Member 

Schakowsky, and the distinguished members of the subcommittee. 

Thank you for the opportunity to appear along with my fellow 

CPSC Commissioners today. I am pleased to be able to testify 

about an agency that I have been associated with in some fashion 

since its establishment 40 years ago. At the outset, I would point 

out that we are far and away the smallest of the Federal Health 

and Safety agencies, with a current funding level of 123 million, 

and a staff of roughly 560 FTEs. I want to put that in perspective. 

For fiscal year 2016, we have asked for an appropriation of $129 

million, which is an increase of roughly $6 million. By way of comparison, our sister agency, FDA, has asked for roughly $4.9 billion 

in fiscal year 2016, which is an increase of roughly $148 million. 

Or, to put it more succinctly, FDA has asked for an increase that 

is larger than CPSC’s entire budget. 

Notwithstanding our modest budget, our jurisdictional scope is 

extremely wide, encompassing roughly 15,000 categories of consumer products found in homes, stores, school, and recreational 

settings. Given this broad jurisdiction, the agency has adopted a 

thoughtful, data-based approach, using its highly skilled technical 

staff to figure out which products present the greatest risk, and we 

address them using our regulatory and educational tools in a way 

designed to minimize market disruption, while always making consumer safety our top priority. We don’t operate alone. We have always sought to include our various stakeholder partners in a quest 

to reduce or eliminate unreasonable risks. Included in this group 

are our friends in the business and the consumer communities, as 

well as the various standards development bodies that work closely 

with the agency. 

And I want to note, looking from the perspective of 40 years, just 

how much good work has been done. There has been an estimated 

30 percent decline in the rate of deaths and injuries associated 

with consumer products over this 40 years. And let me just cite a 

few statistics, particularly pertaining to children. Over this period 

of time we have seen an 83 percent drop in childhood poisoning, 

a 73 percent drop in crib death, an 86 percent reduction in baby 

walker injuries, and almost complete elimination of childhood suffocation in refrigerators. 

I would also like to mention the tremendous strides the agency 

has taken to implement the Consumer Products Safety Improvement Act, which has been noted was approved by the House by a 

vote of 424–1, signed by President Bush on August 4—14, 2008. 

And among the things we have done to implement the law, we 

have enforced stringent limits on lead and thiolates in children’s 

products. We have promulgated the strongest safety standard for 

cribs in the world. We have made mandatory a comprehensive voluntary toy standard. We have written, and continue to write, a series of standards for durable infant products, like play yards and 

25 

strollers, and we have developed new approaches to catching dangerous imported products, which we hope to expand. 

Since I last appeared before this committee, the Commission has 

experienced a significant turnover in members. In fact, I am the 

last one standing. Although I miss my former colleagues, I am 

pleased to welcome as new colleagues Chairman Elliot Kaye and 

Commissioners Robinson, Buerkle, and Mohorovic. Simply put, 

they are a joy to work with. They have brought new perspectives 

and insights that have freshened and sharpened my thinking on a 

host of issues, and they have done so in a way that has brought 

a new era of civility to the agency. We certainly disagree, vigorously sometimes, on issues, but we listen to and we trust one another in ways I have not seen at this agency in many, many years. 

A final point, Mr. Chairman, I would like to reiterate my concern 

about a set of issues that surrounds a critical demographic that I 

don’t think has received enough attention of the past number of 

years, and that is senior citizens, a group of which I am a proud 

member. CPSC data show that the second most vulnerable population after kids is adults over 65, and I note this is a rapidly growing group doing to—due to the aging of baby boomers, and the 

greater longevity of our citizens. An interesting statistic, there are 

more of us in the over 65 age group in this country than there are 

people in Canada. 

But what is particularly troubling to me is that seniors, while 

comprising only 13 percent of the population, account for 65 percent of our consumer product related deaths, and by 2020 they, we, 

will be 20 percent of the U.S. population. So, given my concerns 

while I was acting Chair, I worked with staff to create a senior 

safety initiative, which is ongoing, and which I hope to have the 

Congress include, and hope to work with you. 

Thank you for your time, and I look forward to your questions. 

[The prepared statement of Mr. Adler follows:] 

26 

27 

28 

29 

30 

31 

Mr. BURGESS. Gentleman yields back. Chair thanks the gentleman. The Chair recognizes Commissioner Mohorovic, 5 minutes 

for your opening statement, please. 

STATEMENT OF JOSEPH P. MOHOROVIC 

Mr. MOHOROVIC. Thank you, Chairman Burgess, Ranking Member Schakowsky, members of the committee. I very much appreciate the opportunity to be here today. I will keep my opening remarks very, very brief and focus on only one element of evolving 

CPSC policy, and that is our import surveillance. This is one area 

that I think we can dramatically improve both our efficiencies 

and—as well as our effectiveness. 

And while we are developing our strategies to better target illegitimate inbound consumer products, I believe CPSC can and 

should do more to facilitate legitimate trade through public/private 

partnerships with those importers voluntarily willing, identified, 

and carried down the stream of commerce without disruption. This 

concept, a trusted trader program and model, moves beyond incremental increases in targeting to more evolved, account-based understanding of importers’ demonstrated commitment to making 

safe products. 

But to earn CPSC’s trust, traders would undergo intense scrutiny, including thorough reviews of their supply chain competencies. They would have to empirically demonstrate a culture of 

compliance reflecting the highest standards, and membership 

would have its privileges. To attract applicants, trusted trader status would offer fewer inspections and faster, more predictable time 

to market. But should a trader violate the trust we have placed in 

them, the Government’s response would be swift and sure. 

No discussion of CPSC import surveillance is complete without 

addressing the $36 million annual funding level we outlined in our 

most recent budget request, and the user fees we hope will pay for 

it. I am not entirely convinced of the legality of the user fee mechanism. Moreover, while I am generally supportive of what we want 

to spend that money on, I look forward to further discussions with 

our staff to develop a more nuanced understanding of that expenditure. 

However, my potential support for that spending, whether from 

user fees or from appropriations, is predicated on implementation 

of a properly resourced trusted trader program that is capable of 

attracting robust participation. If we are going to ask for more 

money, particularly if it comes from the very importers whose shipments we are rooting around in, we need to spend some of that 

money making life easier for the good actors who voluntarily subject themselves to intense scrutiny. If we can develop the confidence necessary to take those good actors’ shipments out of our 

haystack, finding the needles will be that much easier. Thank you, 

Mr. Chairman. 

[The prepared statement of Mr. Mohorovic follows:] 

32 

33 

34 

35 

36 

Mr. BURGESS. The Chair thanks the gentleman. The Chair would 

note that it appears that the era of good feelings is now settled 

upon the Consumer Products Safety Commission. You all referenced how well you work together, so the Chair takes that as a 

good sign as we move forward. And, again, I want to thank you all 

for being in our hearing. We will now move into the question portion of the hearing. Each member will have 5 minutes for questions. 

And, Chairman Kaye, let me begin, and again, thank you for 

your willingness to be here, and apologize about us having to reschedule during the snow day. Kind of an unexpected snowfall in 

March that caught a lot of us by surprise. But thank you for your 

flexibility in rescheduling. The budget for fiscal year 2016 requests—the Commission requests new Commission authority to impose undefined user fees on importers. 

I think I have already shared with you I have some misgivings 

about that, and would really welcome further discussion from the 

Commission as to how these user fees, not just how they are collected, but how they are disbursed. Are these fees that are paid 

into the Treasury, and then subject to appropriations by the Appropriations Committee, or are they fees that are retained within the 

agency for use within the agency? So I would like some clarification 

about that. And I would just remind the members the appropriation—we are in appropriations season. The appropriations for the 

Consumer Products Safety Commission I believes comes through 

the Financial Services Appropriation bill, so we all will want to be 

vigilant about that and make certain that we do pay attention to 

the agency during the appropriations. 

But there is the risk assessment methodology, which is a pilot 

program to assess hazardous imports in the Commission’s performance, budget requests to Congress to target a percentage of entries 

sampled is identified through the pilot system for fiscal year 2015 

but is only labeled baseline, and fiscal year 2016 the target is to 

be decided. So are we on the brink of nationalizing a pilot program 

where we don’t know the metrics for inspection and evaluation? 

Mr. KAYE. Thank you, Mr. Chairman. No, we are definitely not 

on the brink of nationalizing the program, even though the Government is on the brink of nationalizing the single window requiring 

electronic filing, which is a big reason why the CPSC is trying to 

do its part. We want to make sure that, as close as possible, by December of 2016, when the system that Customs and Border Protection runs to receive electronic filing is up and running, and there 

is truly one single window, that we are not creating an unnecessary disruption to the market by not being a part of that. 

But, as we envision in our appropriations request, if a permanent 

funding mechanism one way or another would allow the agency to 

collect and retain the funds solely for the purpose of funding this 

program—it wouldn’t be used for any other reason. There is a long 

history of agencies with border authorities doing this. We took the 

time to study those other agencies and work with the Office of 

Management and Budget to come up with what was the preferred 

method, to not reinvent the wheel so that CPSC could do its part 

with the single window. 

37 

Mr. BURGESS. Yes, it is actually some of the activities of those 

other agencies and departments that has been the genesis for my 

concern about this. And, again, I—we are coming into the appropriations time. I want us to be careful about how we approach 

things. But on the single window issue, and, Commissioner 

Mohorovic perhaps you can address this as well, I was on the committee in the 110th Congress. That was the committee that actually did the reauthorization of the CPSC, and the toy safety bill. 

And I became very concerned—we did hearings—Chairman Rush 

was sitting in this chair at the time, but that was the year that 

so many things were imported into the country, and then found to 

be problematic. So there didn’t seem to be a way to stop things before they came in, and then the concern became what happens to 

all this stuff in warehouses that is offloaded by longshoremen in 

Long Beach, California, and then where is it going to end up? Nobody seemed to talk about shipping it back to the point of origin 

and saying, you deal with it, other country that shouldn’t have sent 

this stuff to us in the first place, because your attention was lax. 

So are we any better off today than we were in 2007 and 2008, as 

far as containing things that come into the country that may be 

hazardous? 

Mr. MOHOROVIC. Thank you, Dr. Burgess. In short, I do think we 

are in a much better position today than we were before. And one 

of the points that I remind folks of is the fact that I am the only 

non-lawyer on this Commission. So I think in terms of metrics for 

my formal education, being the only MBA, so I think of things in 

terms of risk—on return on investment. And so in applying that to 

the—to public service, I think about safety return on investment. 

And I am committed to the fact that the investment and the evolution of our import targeting activities, and the sophistication of 

those strategies, is the greatest safety return on investment that 

we can apply, in terms of our resources and our budget. It completely bypasses the difficulties that you mentioned, Mr. Chairman, 

with regards to recall effectiveness, et cetera, and it will ensure 

that we don’t have to learn from that experience. 

Of course, before us we have the potential to scale up into a nationalized program a very significant program. Do I believe that we 

have a proof of concept, and do we have reason to move forward, 

based on the success of our pilot project, the RAM? And the question for—the answer for me is absolutely. But, again, I think we 

do have to look at more closely the significant IT spend so it will 

be able to yield the kind of targets, and the targeting effectiveness, 

that we hope to achieve, as well as the operationalization. 

Prior to joining the agency, I was in the conformity assessment 

business, as part of the testing community, for 8 years, so I have 

had to scale up a massive supply chain, testing operations, and 

with that you expect to see significant economies of scale. That is 

something that I have yet to see in terms of some of the operational scope that we have identified, but I am sure further communication will identify that. 

Mr. BURGESS. And I am certain that it will. It may even in this 

hearing. I will yield back my time, recognize the gentlelady from 

Illinois, Ms. Schakowsky, 5 minutes for questions, please. 

38 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. Commissioner 

Adler, like you, I identify as a senior citizen, and wonder what you 

anticipate will be, or what already is part of this Commission’s senior safety initiative? 

Mr. ADLER. Well, thank you very much for the question. First 

thing I would like to announce is that we are participating in a 

2015 healthy aging summit which is sponsored by HHS, which will 

be held on July 27 and July 28, and the Commission will be there 

in a listening mode. So the agency is committed to the senior safety 

initiative. 

One of the things that I asked the staff to do was to look at mechanical hazards, because that seems to be the area where seniors 

suffer the most. And one of the issues that we addressed was what 

can you do with respect to senior citizens when there are other citizens who are not senior citizens using the same products? 

Ms. SCHAKOWSKY. What do you mean by mechanical hazards? 

Mr. ADLER. Falls, sawings, cuts, lacerations, things along those 

lines. 

Ms. SCHAKOWSKY. Um-hum. 

Mr. ADLER. And so what the staff has done I think is a very 

smart thing. They first look to see products that present unique 

hazards, and they are intended for senior citizens, such as bed 

rails, and these panic buttons that seniors wear if they fall. The 

next thing they have looked at is products that present disproportionate risks to seniors, but that also present unreasonable risks to 

the public at large, and a product there I would say would be table 

saws. 

And then even with respect to products where the Commission 

might find that there is disproportionate injury to seniors, the staff 

is looking into areas where we can at least alert seniors that they 

are at particular risk of harm, and their caregivers as well. So I 

think it is a fairly comprehensive program—— 

Ms. SCHAKOWSKY. Um-hum. 

Mr. ADLER [continuing]. That we are doing, and I am delighted 

that the staff has taken to this with such enthusiasm. 

Ms. SCHAKOWSKY. Well, as the co-chair of the Senior Citizens 

Task Force, let us stay in touch on that. I am really interested. 

I wanted to get to the issue of flammability standards. The—I 

know the Consumer Products Safety Commission has the authority, under the Flammable Fabrics Act, to issue standards. And I 

know there are some promulgated flammability standards, and as 

a—including some children’s products that it is possible, and it 

looks likely, have contributed to significant use of flame retardant 

chemicals that pose health risks. 

The Chicago Tribune, which was an early reporter about this, 

said the average American baby is born with the highest recorded 

levels of flame retardants among infants in the world. And I know 

recent studies have linked flammable—flame retardant chemicals 

to a wide variety of adverse health effects, endocrine disruption, 

immunotoxicity, reproductive toxicity, developmental effects, impaired thyroid, neurological function and cancer, et cetera. 

My question really is if we, one, have any studies or information 

demonstrating that flammability standards promulgated by CPSC 

reduce instances of fire-related injuries, and, looking—and if you 

39 

have any plans to revisit—to find out if the issue of the flame 

retardants themselves is a danger? 

Mr. KAYE. Thank you, Congresswoman. So, I don’t know if I can 

do justice to this topic in a minute 23, but I will do my—— 

Ms. SCHAKOWSKY. Yes. 

Mr. KAYE [continuing]. Best. Certainly, Commissioner Adler’s 

point in the beginning, thanks in large part to the fire community, 

and the CPSC staff, over time, and I believe this is attributable to 

some of the flammability standards, especially with clothing and 

children’s pajamas, there has been a reduction of fire related incidents. The issue you are getting at, though, is flame retardants, 

and to what extent those have had any impact on it. 

I am not aware that flame retardants have been proven to be effective, and I am certainly aware of the studies that you are talking about, or at least some of the studies, that go to the potential 

health concern. And I can say to you that it bothers me even more 

than as a regulator, it bothers me as a parent of two young children that there has to be this uncertainty about products that we 

interact with, and the chemicals that might be in them. And a perfect example of that is a couch. 

Most people don’t view a couch as a potential hazardous product, 

but if it is true that the flame retardants that the Trib pointed out, 

that have doused the foam in an attempt to deal with cigarette 

fires, have ended up getting in the dust, and children, as we know, 

go under couches, they put their hands in their mouth, if it is true 

that that has had a very negative impact on the health of children, 

that is a significant concern of ours. 

Ms. SCHAKOWSKY. And uncertain usefulness in reducing—— 

Mr. KAYE. Correct. 

Ms. SCHAKOWSKY [continuing]. Flammability. 

Mr. KAYE. Correct. So one of the things that I have tried to do 

at my level is talk to our sister agencies, who have overlapping jurisdictions and similar interests in this area, to try to get the Government working more cohesively to address this uncertainty. I 

think consumers deserve to know answers to these questions as 

quickly as possible. 

Ms. SCHAKOWSKY. What are the other agencies? 

Mr. KAYE. The EPA, the FDA, ATSDR with CDC, and the National Toxicology Program as part of the National Institutes of 

Health, and the National Institute of Environmental Health 

Sciences. 

Ms. SCHAKOWSKY. Thank you. I yield back. 

Mr. BURGESS. Chair thanks the gentlelady, gentlelady yields 

back. The Chair recognizes the gentlelady from Tennessee, 5 minutes for questions, please. 

Mrs. BLACKBURN. Thank you, Mr. Chairman. Chairman Kaye, let 

me come to you first. Commissioner Buerkle mentioned and referenced the million dollars that my amendment put in to advancing the Consumer Products Safety Improvement Act, and I just 

want to ask you what you all have done to reduce that third party 

testing requirement, where you are in that process? How are you 

putting that million dollars to work? 

Mr. KAYE. So thank you for the $1 million, Congresswoman. It 

has certainly made a big difference. As soon as the $1 million was 

40 

appropriated, we moved, at the Commission level, via an amendment to our operating plan, to allocate that $1 million to seven different projects that we had identified, primarily based on stakeholder feedback, but also with discussions at the Commission level, 

to try to get to this issue. And so—— 

Mrs. BLACKBURN. Um-hum. 

Mr. KAYE [continuing]. Where we are now is there are three 

projects that staff is very close to sending up to the Commission 

for us to vote on to try to provide some of that relief. And as I mentioned in my opening statement, my direction to staff has been to 

prioritize those actions that will have the widest potential benefit 

to small businesses. 

Mrs. BLACKBURN. OK. Let me ask you this. In your letter to Senator Thune you identified three areas for—the determinations of 

lead content, finding international toy standards, and then guidance allowing for third party testing exemptions. So those are the 

three areas that you are—— 

Mr. KAYE. No, those are actually three separate areas that my 

staff and I continue to work on, and have discussions with Commissioner Mohorovic. So, in total, you are talking about 10 different 

projects. 

Mrs. BLACKBURN. OK. Commissioner Mohorovic, you want to respond? 

Mr. MOHOROVIC. I would love to, thank you. It is perfectly logical 

to wonder why, with the full commitment of the entire Commission 

behind reducing third party test burden, why we have achieved 

very little in terms of results. And that is because we are replying 

to these proposals an unreasonable interpretation of our statute, 

this language, consistent with assuring compliance. And the problem is, very quickly, it is inconsistent with established CPSC policy. If you looked at the component part testing rule, which was 

non-controversial—— 

Mrs. BLACKBURN. So you are in a bureaucratic—— 

Mr. MOHOROVIC. We are—— 

Mrs. BLACKBURN [continuing]. Quagmire? 

Mr. MOHOROVIC. Absolutely, yes. 

Mrs. BLACKBURN. OK. 

Mr. MOHOROVIC. Absolutely, Congresswoman. 

Mrs. BLACKBURN. So you can’t get to the outcome, the deliverable, because you are still talking among yourselves? 

Mr. MOHOROVIC. Not until we change that standard. I wouldn’t 

recommend—— 

Mrs. BLACKBURN. OK. What is the timeline for getting it finished? We want this finished, so when are you going to have it finished by? 

Mr. MOHOROVIC. So we will have three in the next few months 

to vote on, and then there is more to come after that. 

Mrs. BLACKBURN. Give me few months. 

Mr. MOHOROVIC. I—— 

Mrs. BLACKBURN. I mean, a month, 2 months, 3 months? What 

do you mean by that? 

Mr. MOHOROVIC. I think that within June we will have the first 

up, and then two more by September. 

41 

Mrs. BLACKBURN. OK. All right. So that is going to be your deliverable. Let me ask you something else. I mentioned being out, and 

a lot of dissatisfaction, and the way you are going about the 11/10 

rule, all the public comment, except one, was against that. But I 

think what I am hearing is you moved forward with a little bit 

more of a heavy hand than what you would represent to us. 

And you say you want to be engaging the industry, and you want 

to be collaborative, but what I—the feedback I am getting, it is 

those are your words, but your actions are much more heavy handed, that you have determined what you want as the outcome, thereby—you are going to let people think they are participating, but in 

the end, you are the rulemaker, and you are going to get your way. 

So do you feel like that is a collaborative atmosphere, and trying 

to work with the industry? And how would you respond to those 

type of comments that are made about the way you all are approaching rulemaking? 

Mr. KAYE. Is that for me? I am happy to—— 

Mrs. BLACKBURN. Yes, sir. 

Mr. KAYE [continuing]. Answer that. And—— 

Mrs. BLACKBURN. You are the Chairman. 

Mr. KAYE. And is that question specifically to 11/10 rule, or more 

general? 

Mrs. BLACKBURN. It is specifically to 11/10, but in general, when 

it comes to dealing with industry. 

Mr. KAYE. Sure, so I will address both. The 11/10 rule is in a 

definite pause at this point. I was not the Chairman when that 

came up, and that was not part of what I worked on, but as soon 

as I became Chairman I engaged our staff, and I worked with them 

to make sure that they were doing much more collaborative engagement with the—with our—— 

Mrs. BLACKBURN. Are you still advancing that? 

Mr. KAYE. No. It is not moving right now. It is in a—— 

Mrs. BLACKBURN. OK. 

Mr. KAYE [continuing]. Pause mode. 

Mrs. BLACKBURN. You are going to put it completely in pause? 

Mr. KAYE. It is in pause mode. It is already—— 

Mrs. BLACKBURN. OK. 

Mr. KAYE [continuing]. Completely paused, and what we 

have—— 

Mrs. BLACKBURN. OK. 

Mr. KAYE [continuing]. Been doing is working with our stakeholder community, through an advisory panel, on the issue of the 

single window in our imports. We are running a pilot that is going 

to be coming out, the FR notice, in a few months, and we are trying 

to get it right. And so we are having—— 

Mrs. BLACKBURN. OK. 

Mr. KAYE [continuing]. Those exact collaborations that you are 

talking about. 

Mrs. BLACKBURN. OK. My time is out, and I have got one other 

question, but I will submit that question to you in writing. And I 

thank you all, and I yield back. 

Mr. BURGESS. Chair thanks the gentlelady. The Chair now recognizes the gentleman from Texas, Mr. Olson, 5 minutes for questions, please. 

42 

Mr. OLSON. I thank the Chair, and welcome to our witnesses. A 

special welcome to a former House colleague, Ann Marie Buerkle. 

Good to see you again, Ann Marie. 

I want to talk about nanotechnology. As a 1985 graduate of Rice 

University in Houston, Texas, we are proud that two of our professors, Robert Curl and Richard Smalley, won the Nobel Prize for 

nanotechnology. In fact, Dr. Smalley taught me Chemistry 102, so 

it is very special to me about nanotechnology. 

Chairman Kaye, I wrote you a letter on February 25 about this 

issue. The fact that your budget requests for $5 million more for 

nanotechnology—the research center is almost 85 percent of the 

proposed budget increase. That caught my eye. I appreciate your 

response by letter, and, Mr. Chairman, I ask unanimous consent to 

enter my letter and Chairman Kaye’s response in the record. 

Mr. BURGESS. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. OLSON. Thank you. I only have a few questions to clarify 

issues from your letter. You stated that the reason that CPSC 

needs five million is—for a new research center is because your 

work has ‘‘identified significant data gaps regarding exposure to 

nanomaterials present in consumer products.’’ Can you elaborate 

on what these data gaps are, more details on the data gaps, sir? 

Mr. KAYE. Absolutely, and it is not only that we have identified, 

Congressman, those data gaps, it is that the larger nanotechnology 

initiative, the NNI, that is the collaboration that I think that everyone would want to see from the Federal Government, where all 

the agencies that have a present on nano are working together, actually, the NNI working groups have identified this data gap. And 

it really goes to understanding the exposure from consumer products that have nanomaterials in them. 

And so there are plenty—there is a billion dollars—more than a 

billion dollars that have been—billions of dollars that has been 

spent by the Federal Government on advancing nanotechnology, 

but none of that, or very little of that money has gone to understanding the specifics of consumer product exposure, which is a 

unique exposure pathway. 

If you have a child that is out swinging a tennis racket, and 

every time that child hits that—hits a ball, some nanoparticles fly 

off, and the child is breathing those nanoparticles in, and those 

nanoparticles in, and those nanoparticles supposedly mirror asbestos, these are the types of critical health and safety questions that 

we want to get at, and are behind our request. 

Mr. OLSON. Also in your letter you listed four categories as criteria for success. The first one was to develop, and this is a quote, 

‘‘robust test methods to determine and characterize human exposure to nanomaterials.’’ What defines a robust testing method? 

Mr. KAYE. That is what I leave to our toxicologists. Certainly I 

think that is what this working group has been working on, with 

the money that Congress has been giving us, and that we, in conjunction with the National Science Foundation, as well as a number of manufacturers in other agencies, would hope to get to those 

answers. 

43 

I can’t—I am not a technical expert. I can’t decide what reaches 

that threshold of robustness, but I think we have got the technical 

expertise at our staff level to be able to make that determination. 

Mr. OLSON. In your letter you expect to staff this research center 

with 12 senior scientists, 15 technicians, 10 post-doctoral students, 

and 12 graduate students. These positions come from your current 

staff, or come from outside? 

Mr. KAYE. I think they would come from outside. It would be 

part of the funding. 

Mr. OLSON. How much expertise does your current staff have on 

these nano-issues? Because they have been working this since 

2011, I do believe. 

Mr. KAYE. We have some expertise. I think we—it is thin, 

though. We have a thin bench. We have a phenomenal toxicologist, 

who is our representative in this space with the other agencies on 

the NNI, but, admittedly, it is not a deep bench, and I think that 

is one of the reasons why we are not trying to go in the more costly 

way, and try to just hire internally and procure a bunch of expensive test materials that we might not end up needing. We are trying to do the more cost efficient way of building off a successful 

model, and pursue it through the NSF. 

Mr. OLSON. How about stakeholders in nanospace? What kinds 

of interaction do you have with these stakeholders? 

Mr. KAYE. Through the NNI working groups, there is a good 

amount of interaction our staff reports back. 

Mr. OLSON. Anybody else—the NNI mean other agencies working 

on nano with yourselves, or just—that is pretty much the primary 

agency? 

Mr. KAYE. So there is—— 

Mr. OLSON. The EPA? Who else is working—what other agencies 

are—— 

Mr. KAYE. Department of Defense, Homeland Security. There 

is—there are many, many agencies as part of NNI. 

Mr. OLSON. OK, that is my questions. Yield back by saying go 

Rockets. 

Mr. BURGESS. Chair thanks the gentleman, the gentleman yields 

back. The Chair now recognizes Mr. Guthrie from Kentucky, 5 minutes for your questions, please. 

Mr. GUTHRIE. Thank you, Mr. Chair. And I was preparing for the 

hearing today, and I talked about Commissioner Buerkle, and 

showed up, and it is you. I am glad to have you back. I didn’t realize that you are in this row, and really enjoyed serving with you, 

as Mr. Pompeo and I spent 4 years of our life in the State of New 

York. It was always fun to talk about what was going on with you 

back there. 

So I do have a question, it is—in table saws. I guess when we 

were serving together, I had table saw manufacturers in my district, and I understand that the CPSC has begun a special study 

of National Electronic Injury Surveillance System data to obtain information about the type of table saws involved in incidents, along 

with other information about incidents. 

And this study began on July 2014, and it concerns me, because 

it seems to me, and I am not sure, but it seems to me that no outreach has—to members of the industry by the CPSC was—for this 

44 

study. And for years the industry has tried to work cooperatively 

with CPSC, and the industry’s input could have been of value. So, 

Commissioner Buerkle, was there any outreach to the industry representatives or manufacturers regarding this special study? 

Ms. BUERKLE. Thank you, and it is good to be back here on Capitol Hill. To—in fact, a specific request was made that would—we 

would reach out to industry and allow them to participate and be 

a part of that survey, and it did not happen. So, you know, I think 

that is—goes to the point I made earlier about collaboration and 

outreach. I think it is—— 

Mr. GUTHRIE. Um-hum. 

Ms. BUERKLE [continuing]. Incumbent upon the agency to make 

sure we have these conversations with industry beforehand. 

Whether it is before a survey, or before it is a proposed rule, that 

we engage with them so that we go forward, and we get the right 

information. 

I will say that NICE is one of the—it is a data collection system 

that we use, and it avails us of a lot of very helpful information. 

And—so, to that end, that is an important project. But having 

stakeholder engagement before the survey goes out, I think, is crucial. 

Mr. GUTHRIE. You know, a lot of them are concerned about mandating certain technologies, particularly patent questions that are 

mandating a specific technology in a Federal standard. And there 

are patent concerns that have been raised throughout the table 

saw petition discussions over the years. And is the Commission 

aware that there are 140 patents related to the proposed technology held by the petitioner to mandate this technology on all 

table saws? 

Ms. BUERKLE. Are you referring that question to me? 

Mr. GUTHRIE. Yes, ma’am. 

Ms. BUERKLE. Well, let me say this. Quite frankly, and quite 

honestly, my colleague, Commissioner Adler, this is his pet project. 

Mr. GUTHRIE. Um-hum. 

Ms. BUERKLE. And I don’t mean to pass the buck, because this 

is not a priority of mine, nor do I think it should be a priority of 

the agency. But to your point about the patents, and the concerns 

about that, I have tremendous concerns about that. But it is not 

a project, quite frankly, that I think should be a priority of the 

agency right now. 

Mr. GUTHRIE. OK. I have one more question for you before 

we—— 

Ms. BUERKLE. Thank you. OK. 

Mr. GUTHRIE [continuing]. You recently stated—I am sorry, I 

couldn’t see you through Mr. Pompeo there. You recently stated 

that the sole basis for CHAP’s recommendation to the ban of most 

widely used chemicals was a cumulative risk assessment which 

found that the majority—I guess Citizens’ Health Advisory Panel’s 

what—recommendation, which found that the majority of the risk 

associated with these chemicals was from another chemical, DEHP. 

Can you explain your concerns for using cumulative risk assessment as a basis for such regulatory determination? 

Ms. BUERKLE. Thank you. The CHAP, of course, is a—and then 

thiolate proposed rule is of great concern to me. It has been of conVerDate Mar 15 2010 11:28 Oct 26, 2016 Jkt 037690 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114X45XCPSCOVERSIGHTJKTREQ102116\114X45XCPSCOVERSIG
45 

cern to me since the CHAP issued its report, because I believe the 

CHAP report should have been a public—should have been subject 

to a public peer review at that point. So from that point on, to me, 

the system, and the whole process, has been flawed. 

The cumulative risk assessment that you are talking about is one 

of my concerns, and that—it—the process that is used, that is not 

well accepted in the scientific community, cumulative risk assessment. So I think that goes to the process, and the validity, and the 

integrity of the CHAP report. More importantly, though, I think— 

and certainly another grave concern I have is when the CHAP did 

their review, they used very old data, that was—data that was before CPSIA, and before the ban of those thiolates. So that study, 

to me, and the CHAP report, is almost—it is, it is irrelevant because it doesn’t use timely data. 

So the Commission has taken on analyzing the more recent data, 

and I have constantly and consistently said, and advocated that we 

put that, the findings and the analysis of the staff on the more current data out for public comment. It should be put out for at least 

60 days, and the staff should comment on how they are going to 

use that analysis relative to the proposed rule. Because, in order 

to get comments from the public, we have to include that information in the proposed—in that opportunity for them to comment. 

Mr. GUTHRIE. OK. Chairman Kaye, are you concerned about cumulative data, and do you believe it should be out for public comment? 

Mr. KAYE. I agree with Commissioner Buerkle that the staff’s 

analysis should go out for public comment, and I was the one who 

directed staff, at the beginning of the process, to even undertake 

that analysis. And my hope is that we will reach an agreement in 

the coming days, when the staff is ready to put that out for analysis, for it to go out. 

As far as the cumulative risk assessment, I have to respect the 

work of the CHAP, because that is the statutory regimen that was 

set up by Congress in Section 108 of the Consumer Products Safety 

Improvement Act. That was the scientific direction, or the policy direction, to the CHAP members, which, by the way, were picked 

through the National Academy of Sciences as the leading experts 

around the world on this issue. And so, considering that that is 

what the statute told them to look at, and that is what they looked 

at, I respect that decision on their part. 

Mr. GUTHRIE. Thank you, my time has expired. 

Mr. BURGESS. Gentleman yields back. The Chair thanks the gentleman. Chair recognizes the gentleman from Kansas, Mr. Pompeo, 

5 minutes for your questions, please. 

Mr. POMPEO. Thank you, Mr. Chairman. Mr. Kaye, I want to talk 

about the ROV rulemaking. You testified before the Appropriations 

Committee. You described the hearing as the longest in—the hearing that was held as the longest in the CPSC’s history. Went late 

into the night, many panels, many witnesses. I appreciate you all 

taking the time to do that. Now I want to make sure that we don’t 

cut short this process, that we get the data right, the science, and 

the engineering, and technology right. That is why I have introduced a piece of legislation. Have you had a chance to take a look 

at that—— 

46 

Mr. KAYE. I have. 

Mr. POMPEO [continuing]. 999? 

Mr. KAYE. I have. 

Mr. POMPEO. And I didn’t see your name as a co-endorser, but 

I am looking forward to hearing you today say that you think it 

is something that wouldn’t make sense, to make sure that industry 

can work alongside you, and get a chance to get a set of voluntary 

standards that make sense. 

Mr. KAYE. So, thank you, Congressman, and I know that you 

have been particularly interested, and I appreciate that, since the 

time you have been in office in the work of the CPSC, and I think 

that is a good thing. I think it is important to have this continued 

dialogue. 

The ROV issue is one of great significance to the Commission. 

We are taking it very seriously. Similar to the work on directing 

staff to do an analysis on the thiolates issue, I directed staff to redouble their efforts to engage with the voluntary standards effort 

to try to reach a solution. I think that that is the preferred solution 

many of us would like to see, if they can adequately address the 

hazard, and it can be substantially complied with. 

As far as the bill is concerned, unfortunately, I am not going to 

be able to tell you what you want to hear. I don’t have the ability 

to co-endorse, even if I wanted to. 

Mr. POMPEO. You can just say it here this—— 

Mr. KAYE. Yes. I—sounds like I could say it, but based on where 

we are, and our discussions, I think it is well intended, but, unfortunately, it would have a negative impact for three reasons. One, 

I don’t want to call it a delay, but it looks like a delay, even if it 

is not intended to be, and those delays cost lives. Every year we 

are looking at getting close to now 80 dates per year, many of them 

children, associated with ROVs. So every year that this issue is not 

addressed, whether it is through a robust voluntary standard, or a 

mandatory standard, is more deaths, and I think that that is something we should all be concerned about. 

Second of all, there are real costs. Every time that there is a 

death, you are talking about, from an impact the community and 

society, about $8 million, as our staff estimates it, from an economic standpoint. So with 100 and—if it is a 2-year study, and you 

are talking about 150 deaths, that is upward near a billion dollars 

in cost to society that would result from this. 

And probably in the area, from a timing perspective, and I just 

had a conversation with Mr. Pritchard, who you will hear on the 

second panel, before we came here, the staff and the voluntary 

standards body, meaning industry, are really at a position that I 

don’t think they have been at for many, many years, where they 

are finally engaging in a substantive technical discussion to try to 

resolve these issues. If this bill were to pass, it puts out for question for 2 years one of the key areas that both industry and the 

staff are driving to try to solve now. I just don’t think that that 

is going to help the timing of it. 

Mr. POMPEO. I appreciate that. No one wants more deaths. I 

mean, no one is advocating for delay in order to achieve that result. 

I know I am not, no one on this committee would either. Party— 

it is a bipartisan piece of legislation. I know industry would want 

47 

that either. I don’t think it—because of that, I think it is required. 

I think you have to get the data. 

I am not going to go through it, but there—but I have seen testimony from staff that says that we don’t have the engineering and 

technology, right? The—Bob Franklin on your staff said we would 

have to look at the data, looking at exposure over time to the different ROVs. It might be possible to do something like that, but we 

have not done it. 

I am thrilled to hear that you are having these discussions with 

industry, and that you are making progress. That is absolutely a 

preferred solution, I think, for the CPSC, and from my perspective 

as well, it would be a great outcome. But I would hope that you 

would be prepared to at least suspend the rulemaking for a period 

of time. Put it on hold, keep it out there as something that might 

happen in the event that the discussions don’t move forward in the 

way that—sounds like you have at least some optimism, as do I. 

I would love to see you at least consider suspending the rulemaking, or put it on hold while those discussions were happening. 

If they fall apart, industry and you can’t get together, then so be 

it, you can continue to proceed. Would you at least consider that? 

Mr. KAYE. Well, one, I can’t—I don’t have the power unilaterally 

to suspend the rulemaking, so that would have to be a Commission 

decision. And I would say that, from my perspective, I do think, 

whether industry likes it or not, one of the reasons that we have 

reached this situation, where we are at a position where everybody 

is trying to finally reach a solution, I think that everyone has proper incentives. And, from my perspective, the fact that the CPSC 

has taken it seriously to this point, and is prepared to move toward 

a mandatory standard, has provided the types of conditions that 

have created this environment. And I so I think that it is incumbent upon us to keep moving forward. As I mentioned, the deaths, 

they do certainly weigh on me, and so that is not something, at this 

point, that I think would be a positive. 

Mr. POMPEO. Well, I hope you will reconsider that. I may or may 

not be the incentive structure that has been achieved, but we have 

a June 19 deadline now for comments to come in. Those comments, 

I know, will be critical of the rule from many in the industry. I 

hope that doesn’t put—I want to keep it in a constructive way, and 

I hope that this deadline won’t artificially create animosity where 

I think there is a chance to really get it right, save lives, and get 

the rule right. So, with that, Mr. Chairman, I yield back. 

Mr. BURGESS. Chair thanks the gentlemen, gentleman yields 

back. The Chair recognizes the gentlelady from Indiana, 5 minutes 

for questions, please. 

Mrs. BROOKS. Thank you, Mr. Chairman. Indiana has a large 

presence of juvenile product manufacturers in the state that make 

everything from strollers to car seats, and I have heard firsthand 

about the challenges that they face with regards to redundant testing requirements that might do nothing to advance safety, while siphoning away money that could have been spent on R and D in 

these companies, innovation and resources like additional employment. 

And one Hoosier manufacturer told me recently the Consumer 

Product Safety Improvement Act was passed—since it is passed, 

48 

they have spent $12 1⁄2 million in testing costs alone. And that is 

not—that is because they not only have to test every platform that 

the products are on, but every SKU as well. So not only do they 

spend an average of $8,900 to test every new stroller or cradle design, but they have to spend an extra $1,000 to test every paint, 

every new paint color as well. 

And so I think we all agree that the safety of our children is of 

utmost importance, and shouldn’t be compromised, however, I 

think we have to draw the right balance, and—to ensure that the 

companies have the needed resources to do further R and D to ensure their products are safer. And so, Mr. Chairman, I have a question to you that—with this in mind, what actions have you taken 

in the past year to provide relief to companies with respect to 

these—cost of these third party testing requirements? 

Mr. KAYE. Thank you, Congresswoman. One of the areas that we 

found really interesting, and this has been discovered by our small 

business ombudsman, and I don’t want to get Commissioner 

Mohorovic upset, since it involves his prior occupation, but we have 

found that a lot of the third party labs are testing for services that 

are not required. 

And so our small business ombudsman and his office provide 

phenomenal support and assistance working with small businesses, 

and I would encourage any of the members who have small businesses in particular that have issues to reach out to Neal Cohen 

of the CPSC because he can work with companies to go through 

their testing reports and to find out whether or not they really 

need certain testing. 

Now, he doesn’t actually go line by line, but what he says is, here 

are some general guidances, and here are some questions that you 

should be asked. He really does a phenomenal job of empowering 

a lot of companies, and I think that has gone a huge way to addressing some of these issues. 

Mrs. BROOKS. Thank you. Commissioner Mohorovic? 

Mr. MOHOROVIC. Thank you, Congresswoman. I think what you 

will get is a lot of the dodging tactics from the agency to try to explain why we haven’t achieved much in terms of measurable outcomes in reducing the cost and burden of third party testing. We 

have all of the resources we need. We have the legal authority. We 

just lack the will to be able to enact very many of the policies and 

suggestions that have come before the agency. 

So we can blame the testing labs, we can blame retailers for retail protocols, we can dodge and weave on this as long as we want, 

but, as I said earlier, it is frustrating for me particularly because 

it is so—it lacks alignment. It is so inconsistent with established 

CPSC policy. If we applied the same appreciation for risk tolerance 

that we did in the promulgation of the Component Part Testing 

Rule, we would have all of the emphasis, and staff would be able 

to recommend countless means to reduce the cost and burden without any adverse health or safety impact. 

Mrs. BROOKS. Thank you. Chairman Kaye, it is my understanding that a million dollars of your 2015 budget was to be allocated to reducing the needless and duplicative testing burdens. Can 

you explain what actions you have actually taken in leading the 

Commission to fulfill that role? What—how have you reached out, 

49 

what do companies expect to see from this relief if we have, you 

know, mandated that in your budget? 

Mr. KAYE. Sure. And one of the limitations in—on—I agree with 

Commissioner Mohorovic that we do have a lot of what we need, 

but we don’t have everything that we need. But one of the areas 

is that it is a one-time appropriation, which means we cannot staff 

up from it. We can’t count on—it is not prudent to hire a bunch 

of people without knowing how you are going to pay for them in 

the following fiscal year, so most of this money has gone through 

contracting. So we contract out with organizations who can do a lot 

of the technical work to figure out if there is possibility for relief. 

But ultimately our staff has to take that work. There has to be resources internally to be able to turn that work around, and to try 

to make it something actionable. 

And so the three areas that I mentioned in response to Congresswoman Blackburn’s questions have to do with providing this exact 

type of relief. Looking, for instance, at natural wood, and whether 

or not, if you use natural wood alone, you have to test for certain 

heavy metals that are required by law. We keep trying to check off 

lists of materials and types of products that you don’t actually have 

to test to to avoid these costs. And that has been the theme, both 

in terms of stakeholder engagement and internal deliberations, 

that we are trying to pursue to provide—to make it worth the 

while. 

Mrs. BROOKS. Thank you. My time is up. I yield back. 

Mr. BURGESS. Chair thanks the gentlelady. The Chair recognizes 

the Ranking Member of the full committee, Mr. Pallone, 5 minutes 

for your questions, please. 

Mr. PALLONE. Thank you, Mr. Chairman. My question is of 

Chairman Kaye. There have been concerning reports of young athletes that have non-Hodgkin lymphoma and other blood cancers, 

and who also have been playing sports on athletic fields that are 

filled with crumb rubber coming from tires, which often contains 

cancer causing chemicals. This past October I wrote to the Agency 

for Toxic Substances and Disease Registry explaining that I believe 

additional research is needed into whether synthetic turf athletic 

fields increase the risk of lymphoma, leukemia, and other blood 

cancers. In the agency’s reply, they stated that they are supporting 

efforts by the Commission in this area. 

Yet in 2008 the Commission released a statement saying that 

field filled with crumb rubber are ‘‘OK to install, OK to play on,’’ 

and I was pleased to hear more recently that a spokesperson explained that the 2008 statement does not reflect your current 

views. So I just wanted to ask, is it correct that your views are not 

reflected in that 2008 report, and do you agree that additional research and study is necessary to determine whether crumb rubber 

used in synthetic turf athletic fields presents any public health 

dangers? And also, is the Commission committed to working with 

other Federal agencies to obtain this information, and to ensure 

young athletes playing on these fields are protected? Just ask you, 

Mr. Chairman. 

Mr. KAYE. Thank you, Congressman, and thank you for your 

leadership on this area. I think you have three questions embedded 

in there, so I am going to try to address all three—— 

50 

Mr. PALLONE. Sure. 

Mr. KAYE [continuing]. In turn. The first is, you are absolutely 

correct that that 2008 release does not reflect my views of the state 

of play, and I think it is important to note that that 2008 didn’t— 

release didn’t even reflect, as far as I understand it, the technical 

staff’s views at the time, that there was a political effort at the 

time at the Commission to say something in the headline of the release that may not actually reflect the state of play, which is basically that those products are safe. 

I think there is a big difference in looking at the lead exposure 

that might exist from the blades of the grass and determining that, 

based on a small sample size, the staff was not able to say that 

there are—were disconcerting levels of lead in those fields in that 

particular aspect. That is very different from saying these things 

are safe to play on. Safe to play on means something to parents 

that I don’t think we intended to convey, and I don’t think we 

should have conveyed. So that is the answer to the first question. 

The answer to the second question is, absolutely we are working 

with our Federal partners to try to figure out a better and faster 

way, working together, to see if an issue such as crumb rubber can 

be resolved more quickly. As I mentioned to the Ranking Member 

earlier, we are working with EPA, we are working with NIH, 

through their center down in Research Trial Park, North Carolina, 

the National Institute of Environmental Health Sciences and the 

National Toxicology Program, CDC, ATSDR, and then also the 

FDA. We are trying to figure out a way for the Government to 

come together, use our existing resources and authorities to address these issues. Parents don’t care which acronym-name Government agency is supposed to do what. They just want answers, 

and they want this uncertainty resolved. 

And the third question—I apologize, I can’t even remember what 

the third one was. If you could—if you wouldn’t mind asking me 

again? 

Mr. PALLONE. Well, I am just—I think you are, you know, just 

really basically trying to find out what your view is, and what the 

Commission is doing, and whether you are working with other Federal agencies—— 

Mr. KAYE. Absolutely. 

Mr. PALLONE [continuing]. On the issue. 

Mr. KAYE. Absolutely. 

Mr. PALLONE. All right. Thank you very much. 

Mr. KAYE. Thank you. 

Mr. PALLONE. Thank you. 

Mr. BURGESS. Gentleman yields back. The Chair thanks the gentleman. The gentleman from Illinois, Mr. Kinzinger, recognized 5 

minutes for your questions. 

Mr. KINZINGER. Thank you, Mr. Chairman. Thank you all for 

being here today, and it is nice to have you in front of the committee. 

Chairman Kaye, it seems that banning a chemical that has been 

deemed safe by other Government agencies opens the door to the 

use of substitutes that have been far less studied, and with far 

fewer scientific and performance data available. Is the agency prepared to deal with the market and potential safety repercussions 

51 

of transitioning from well tested thiolates to the uncertainty associated with any potential substitutes? 

Mr. KAYE. Well, this gets into, Congressman, some of the answers to Congressman Pallone. There is a larger issue going on 

from a public policy matter, where, unfortunately—and the concept 

that you are getting to is regrettable substitution, where one chemical is banned, and we don’t really have a full sense, from a scientific and safety perspective, what the substituting chemical will 

be. I think that is a failed public policy, I have to admit. 

I think the better approach, and this can be done working with 

industry, and this would be something that I would like to see happen, is for the Government and industry to come together to not 

only focus on which chemicals shouldn’t be used, but to try to get 

to a faster way to figure out which chemicals should be used. So, 

as a public policy matter, that is my preference. Unfortunately, neither the resources or the authorities and the directions that agencies have been going in for a long time are moving in that direction. 

But, again, as part of these collaborative efforts that I am trying 

to undertake, and that we are trying to undertake from CPSC with 

these other agencies, that is one of the key goals that we are looking at. 

Mr. KINZINGER. Yes, and I think, you know, until we get to that 

point, where we can have that perfect system, we—I think we 

ought to be very careful when we look at banning substances. Because if we don’t have a situation in place where we can do all the 

studying of alternatives, I think, you know, we ought to be very 

careful. 

Let me—following the thiolate rulemaking, Commissioner 

Buerkle noted in—her concern on banning chemicals that have 

been in use for many years, and there is risk even studying what 

little is known about the substitutes. So you said you agree with 

that. I want to see—Commissioner Buerkle, what are your 

thoughts on the idea of banning something with unknown substitutes to follow? 

Ms. BUERKLE. Thank you for your question. As you note, that 

was one of my concerns when the MPR came out, that we are not 

proposing substitutes be used that we know little—less about than 

we know about the chemicals that are already banned. My more 

general concern, with regards to the CHAP, and I have, both in 

comment and—here today, and also in previous statements—was 

the whole process for how the CHAP report was done, and now this 

proposed rule. And I think we really need to take a step back. 

Whether it is regarding chemicals, or whether it is regarding any 

of the things we do, we are a data driven agency. And so to make 

sure that we have the data correct, and to make sure that the processes we follow are correct, and that the CHAP followed a process 

that the entire scientific community can accept as credible is very 

key to our agency, and the credibility of our agency. It has been 

noted the American people rely on information coming from us, so 

it is important that we get it right. And so if it takes a little more 

time, if it requires a request to Congress that we can’t promulgate 

that rule within 180 days after the CHAP report was issued, so be 

52 

it. We have to make that request, because it is incumbent upon our 

agency to get it right, to take the time that we need to do. 

Mr. KINZINGER. Yes, and, you know, I want to add to that especially—I guess maybe to reiterate what you said. You know, I understand that there is, in many cases, a need for 180 days. Going 

past deadlines isn’t fun, it is nothing that any of us like to do. But 

I think at the risk of maybe getting something wrong, versus getting something right, even if we have to go past a little bit of a 

deadline, I think, frankly, Republicans, Democrats, Americans, 

Independents, far right, far left would all agree that that is probably a preferable way to go. And so that is, you know, some of the 

concerns we have there. 

Chairman Kaye, I want to go to a bit of a different subject just 

real quick. In the preamble for the proposed rule on voluntary recalls, the CPSC indicated that it has encountered firms that have 

deliberately and unnecessarily delayed the timely implementation 

of the provisions of their correction action plans. How many firms 

have deliberately and unnecessarily delayed the implementation of 

provisions of their corrective action plans? 

Mr. KAYE. Congressman, I will have to follow up and give you 

an answer to that. I don’t know the answer to that question. The 

voluntary recall rule, as my colleagues know very well, at this 

point, from our continued reiterations of our positions on it, is not 

something that has been a high priority for me. I have had higher 

priorities that go to saving lives. I am not saying the rule is without merit. I think it has some value, but it has not been something 

that I have spent a lot of time on. I thought that early—— 

Mr. KINZINGER. Well, can you give me, like, an example maybe 

of—— 

Mr. KAYE. I can certainly give you anecdotal examples of where 

we have reached a situation—the agreements are voluntary. So we 

have reached a voluntary corrective action plan with a company, 

and we notice, when they file their quarterly reports, that they are 

not doing what they said they were going to do. They are either 

not engaging on social media, or they are not attempting to reach 

out and put forth the amount of resources and effort that they said 

they would. I—one, I wouldn’t name a company, even if I could—— 

Mr. KINZINGER. I understand. 

Mr. KAYE [continuing]. But I can’t name a company at this point. 

But I thought Commissioner Adler, last week, during a public 

meeting that we had, when this topic came up, had a phenomenal 

suggestion, where he asked our staff to spend a few months collecting this data, and reporting back to the Commission to see 

whether or not this is a real issue. And, to Commissioner Buerkle’s 

point, we are data driven, and I think that will be a useful exercise, and we will all be curious to see that. 

Mr. KINZINGER. Good. Well, yes, I would be interested too, and 

I just want to point out, let us make sure, if you are going to throw 

out the entire system, that it is very data driven. So, with that, 

thank you all for being here, and I will yield back. 

Mr. BURGESS. Chair thanks the gentleman, gentleman yields 

back. The Chair recognizes the gentleman from Oklahoma, Mr. 

Mullin, 5 minutes for questions, please. 

53 

Mr. MULLIN. Thank you, Mr. Chairman, and thank you to the 

Commissioners for taking the time to be here. I know you guys 

have a very busy schedule too, and anytime you’ve got to come to 

the Hill, you have got to be thrilled about that, right? 

But, you know, we are all held accountable for statements that 

are made, and sometimes, when you are sitting in a position, 

Chairman, that you sit in, your agency carries a pretty big stick, 

and your statements can be devastating to people that are producing a product that depend on retail sales. Would you agree with 

that? 

Mr. KAYE. Absolutely, and I think about that all the time. There 

is a lot of thought that goes into what I say, whether I end up saying something like that or not. 

Mr. MULLIN. Well, I am holding in my hand right here a story 

that was published by an Indianapolis news agency, and it says, 

‘‘If a consumer was to see a gas can at a retail that contained a 

flame arrester, we would encourage them to select such a model, 

as it provides a vital layer of fire protection.’’ That was made by 

your agency. Are you familiar with that news story? 

Mr. KAYE. I am. 

Mr. MULLIN. Do you agree with that statement? 

Mr. KAYE. I don’t understand enough about the technical aspects 

of flame arresters, I am sorry. That is just not—on gas cans. I can’t 

comment one way or another. 

Mr. MULLIN. But your statements have an impact, and the flame 

arresters that we are talking about, they are only sold on commercial cans. They are not in retail stores. Are you familiar with that? 

Mr. KAYE. No, I am not familiar with that. I don’t have any familiarity with gas cans, other than talking to our staff, and knowing that the issue that you are talking 

about—— 

Mr. MULLIN. But someone on your staff made this statement. 

And the reason why I say this is because, in my district, I had a 

manufacturer that produced retail gas cans, and your agency came 

out and made a statement referring to retail gas cans, and—has 

nothing to do with retail gas cans. They are only regulated by 

OSHA and the EPA with the flame arresters. Once again, we are 

held accountable for what we said, and your agency made a statement that could have possibly cost real people their jobs. So does 

the CPSC regulate commercial safety cans? 

Mr. KAYE. We do not, but the statement that you are talking 

about, I am not sure that it is inconsistent with the position that 

our staff has taken in the voluntary standards capacity. 

Mr. MULLIN. OK. Well, then let us talk about that. Are you 

aware that the commercial safety—a commercial safety can with 

the flame arrester failed an ASTM protocol? 

Mr. KAYE. I am not. 

Mr. MULLIN. But you made the statement. Your agency made the 

statement encouraging people to go out and buy a gas can from a 

retail store that doesn’t even exist, and the purpose of it is to keep 

children from being burned. But you guys made a statement that 

failed that exact test, but yet the consumer can does. It met those 

ASTM standards. You don’t see a problem with this? 

54 

Mr. KAYE. I see a problem with it if what you are saying is 100 

percent accurate, and I am not—— 

Mr. MULLIN. Well, I am holding the news story. 

Mr. KAYE. No, I understand—— 

Mr. MULLIN. You guys sent the press release. 

Mr. KAYE. I am not doubting—— 

Mr. MULLIN. And this is coming from ASTM, their testing protocol, that said it failed. 

Mr. KAYE. I understand that, but what I am—my point is that 

I am not familiar enough with the area that you are talking about 

where I can give you the type of answer you are looking for. 

Mr. MULLIN. Then how about we do this? Why don’t you get back 

with my office—— 

Mr. KAYE. Absolutely. 

Mr. MULLIN [continuing]. Since you guys are making those statements, and since they affect real jobs in my district? Why don’t you 

get back with me and give me that information so you can be spun 

up to it, so the next time that your agency opens its mouth and 

gives a statement like that, maybe they are informed about what 

they are saying. 

Mr. KAYE. Would you be willing to have a meeting with my staff 

and me on it? 

Mr. MULLIN. Without question. We would—— 

Mr. KAYE. OK. 

Mr. MULLIN [continuing]. Love to, because we would—— 

Mr. KAYE. OK. 

Mr. MULLIN [continuing]. Like to get to the problem of this, too, 

because statements like that hurt real people. 

Mr. KAYE. Excellent. So my hope is that you would be willing to 

come out to our testing center, where we have the technical expertise, and we can walk through the gas cans, and we can look at 

the issue together. Would you be willing to do that? 

Mr. MULLIN. Absolutely I would. 

Mr. KAYE. That would be great. 

Mr. MULLIN. But then we have got to come back and—if I am 

going to be willing to do that—— 

Mr. KAYE. Yes. 

Mr. MULLIN [continuing]. If what I am saying is accurate, I 

would like you guys to make another statement publicly—— 

Mr. KAYE. You got it. 

Mr. MULLIN [continuing]. Backing that up. 

Mr. KAYE. Yes. Let us get to the answers together, and then we 

will figure out where we go from there. And you have my commitment that if it turns out that we said something that we both believe—— 

Mr. MULLIN. Well, it is not if. The statement says it, and you 

guys—— 

Mr. KAYE. No, the rest of it—— 

Mr. MULLIN. We checked it. 

Mr. KAYE. If we said something that is not accurate, you have 

my commitment that I will say something that is accurate. I am 

not going to leave it to anybody else. I will say it. 

Mr. MULLIN. Good enough. Mr. Chairman, I yield back. Thank 

you. 

55 

Mr. KAYE. You are welcome. 

Mr. BURGESS. Chair thanks the gentleman. The gentleman 

brings up an excellent point. Several years ago I actually took a 

field trip up to the CPSC testing facility, and it was a very illuminating day. My understanding is you are in new headquarters 

now, and I think the gentleman is quite right. A field trip of the 

subcommittee out to the CPSC would be both informative and instructive, and probably help the Commission, as well as the subcommittee members, and we will see about putting that in the 

process. 

I would just also observe that I am, in addition to being chairman of this subcommittee, I am the chairman of the House Motorcycle Caucus. I know that is kind of a disconnect, but I am. And 

going over to talk to that group one day after we passed the CPSIA 

here in the subcommittee in 2007 or 2008, there was a young man, 

very young man, probably 12 or 13 years old, who stood up in front 

of the group and said, ‘‘Mr. Congressman, if you promise to give me 

my motorcycle back, I promise I won’t eat the battery anymore.’’ 

Apparently youth motorcycles had been—the sale had been prohibited during the bill that we passed, and until those technical corrections were enacted, it made it very, very difficult for the people 

who sold youth motorcycles and their parts. So we do have to be 

careful about the unintended consequences. 

Seeing no other members—did you have a follow up question, 

Ms.—— 

Ms. SCHAKOWSKY. No. 

Mr. BURGESS [continuing]. Schakowsky? Seeing no further members wishing to ask questions for this panel, I do want to thank you 

all for being here today. This will conclude our first panel, and we 

will take an underscore brief recess to set up for the second panel. 

And thank you all very much for your time today. 

[Recess.] 

Mr. BURGESS. The subcommittee will come back to order, and I 

will thank everyone for their patience and taking time to be here 

today. We are ready to move into our second panel for today’s hearing, and we will follow the same format as during the first panel. 

Each witness will be given 5 minutes for an opening statement, followed by a round of questions from members. 

For our second panel, we have the following witnesses. Mr. Ronald Warfield—I have here ‘‘Buck,’’ is that correct?—CEO of ATV/ 

ROV/UTV Safety Consulting. Ms. Heidi Crow-Michael from 

Winnsboro, Texas. Thank you for being here today. Ms. Cheryl 

Falvey, Co-Chair of the Advertising and Product Risk Management 

Group at Crowell, Moring, and Mr. Erik Pritchard, Executive Vice 

President and General Counsel for the Recreational Off-Highway 

Vehicle Association. 

We will begin our second panel with Mr. Warfield. You are recognized for 5 minutes for the purpose of an opening statement, 

please. 

56 

STATEMENTS OF RONALD WARFIELD, CHIEF EXECUTIVE OFFICER, ATV/ROV/UTV SAFETY CONSULTING; HEIDI CROW–MICHAEL, WINNSBORO, TEXAS; CHERYL A. FALVEY, CO–CHAIR, 

ADVERTISING AND PRODUCT RISK MANAGEMENT GROUP, 

CROWELL & MORING, LLP; AND ERIK PRITCHARD, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, RECREATIONAL OFF–HIGHWAY VEHICLE ASSOCIATION 

STATEMENT OF RONALD WARFIELD 

Mr. WARFIELD. Thank you, Mr. Chairman, Ranking Members, 

and members of the committee. Thank you for this opportunity to 

testify in support of H.R. 999, the ROV In-Depth Examination, or 

the RIDE Act. My name is Buck Warfield, and I have extensive experience in dealing with safe and appropriate use of off-highway 

vehicles. First a bit of background. I was employed by the Maryland State Police as a police officer, or a trooper, for over 23 years, 

and I retired in 1993. With regard to off-highway vehicle experience, in 1985 I was trained and certified by the Specialty Vehicle 

Institute of America, SVIA, as an ATV instructor. In 1989 I became 

an ATV Safety Institute, or ASI, licensed chief instructor, and I 

continued to be contracted by ASI to train, license, and monitor 

other ATV instructor staff. 

With respect to recreational off-highway vehicles, known as 

ROVs, or side by sides, I have assisted several agencies, including 

military and Government groups, in developing primary ROV 

training programs, and combining the Recreational Off-Highway 

Vehicle Association, or ROHVA, approved training program in December of 2010. I currently serve as chief ROV driver coach/trainer, 

and I have a training facility at my farm in Sikesville, Maryland 

which has been designated by ROHVA as a driver/coach training 

center, and that is one of only three in the entire United States. 

On a personal note, I have logged over 900 hours as an operator 

of my personal ROV since 2006. I currently own two ROVs, utilized 

primarily for ROV training, and two more utilized for daily facility 

maintenance at my training center and farm. 

I participated in the development of the ROV basic driver course 

curriculum, which is designated for current and prospective recreational off-highway vehicle drivers. The basic driver course is a 

training opportunity that provides current and experienced ROV 

drivers the chance to learn and practice basic skills and techniques. 

It addresses basic operation, and emphasizes safety awareness related to specific—related specifically to ROV operation. The overall 

aim of the driver/coach course is to provide for drivers’ development 

in the area of skill and risk management strategies. This includes 

learning to foster driver gains in basic knowledge, skill, attitude, 

values, and habits. 

I am here to support H.R. 999. The legislation would only pause 

the Consumer Product Safety Commissions ongoing ROV rulemaking until the National Academy of Science, in cooperation with 

the Department of Defense, and the National Highway Traffic Safety Administration, perform a study of the vehicle handling and requirements proposed by CPSC. I do not claim to be an engineer, 

or to fully understand the complex engineering issues, but I do understand that these are some basic disagreements on a select few 

57 

issues between engineers at CPSC and the engineers who work for 

major manufacturers. I appreciate the CPSC is well intended. I 

also know that the manufacturers develop safe, capable vehicles for 

me, my family, my friends, and the students that I train to use— 

with power sport vehicles, including training countless people who 

have no prior experience with ATVs or ROVs show me that these 

vehicles are safe, with amazing capabilities when operated as intended. 

H.R. 999 is a narrowly tarrowed—tailored—is narrowly tailored 

to examine, first of all, the technical validity of CPSC’s proposed 

lateral stability and vehicle handling requirements. Also, the number of ROV rollovers that would be prevented if the rule were 

adopted, and whether there is a technical basis for the proposal to 

provide information on a point of sale hang tag about a vehicle’s 

rollover resistance on a progressive scale. And, lastly, the effects on 

the utility of ROVs used by the U.S. military if the rule were 

adopted. 

So, in conclusion, I think the best way to—forward would be for 

the industry and CPSC to work together to find a voluntary solution that works for all the parties, and protects the safety of ROV 

drivers and passengers. Barring a cooperative solution, the best 

and safest way forward is for independent third party experts to 

make sure that we get it right. Thank you, sir. 

[The prepared statement of Mr. Warfield follows:] 

58 

59 

60 

61 

Mr. BURGESS. Gentleman yields back, the Chair thanks the gentleman. Ms. Crow-Michael, you are recognized for 5 minutes for the 

purpose of an opening statement, please. 

STATEMENT OF HEIDI CROW–MICHAEL 

Ms. CROW-MICHAEL. Thank you. My name is Heidi Crow-Michael, and I would like to thank you all for allowing me to speak 

today on behalf of my son, J.T. Crow. 

I play many roles in life. I am a homemaker, and an advocate, 

but most importantly a mother to five children. J.T. Crow is my 

second child, and firstborn son. He was a happy and extraordinary 

9-year-old boy. At school he was a straight A student with perfect 

attendance. He loved science, and learning about birds and butterflies. J.T. also loved being outside and playing sports like soccer 

and football. 

J.T.’s life was cut short when he went for a ride in a 2007 

Yamaha Rhino 450. While riding at a slow speed around a slight 

curve, the ROV suddenly and inexplicably rolled over. Through J.T. 

was wearing a safety belt, he was thrown from the Rhino ROV, and 

then crushed by the half ton vehicle as it rolled over. Paramedics 

rushed J.T. to the emergency room, but he had sustained more injuries than his young body could handle. My son died that day, 

when he was 9 years old, and my life was forever changed. On a 

daily basis I live with the pain of the tragedy that struck my family, and the fear of knowing that it could happen to other families. 

This fear has led me to become an advocate for ROV safety and industry reform. I have been given the opportunity to use my son’s 

life to make a difference, a difference that can save lives. 

As we sit here this morning, the ROV industry is one that sets 

its own safety standards and makes its own rules, and innocent 

people are paying the price. I am not against ROVs. I just want 

safe ROVs. Many consumers buy ROVs because they have four 

wheels, and sometimes seat belts, roll bars and roofs, and they look 

safer than ATVs, but ROVs are not safe. And it has been many 

years, and every year, every day that there is not a better solution 

implemented for ROV safety is a day that more people, more children, our children, are put at risk. 

When we wrote the Citizens’ Report on Utility Trained Vehicle 

Hazards and Urgent Need to Improve Safety and Performance 

Standards in February of 2009, asking for safety and performance 

standards, including minimum occupant containment stability and 

seat belt standards, we were hopeful our recommendations for safer 

ROVs would become standard. We asked for action. Nothing happened. An already unacceptably high casualty rate will continue 

unless action is taken. 

In 2014 ROV use resulted in at least 61 deaths, and eight more 

in 2015. While less stringent than the recommended safety measures in the Citizens’ Report, the CPSC has proposed standards that 

would significantly improve ROV safety. If the ROV industry really 

wants to protect their consumers, why wouldn’t they want to make 

the safest product possible? Why wouldn’t they want to do all they 

could do to protect the people who purchase their vehicles? I have 

been given the opportunity to speak to many families, and we all 

share a common bond. We have lost someone we love in an ROV 

62 

rollover accident. Perhaps the most painful part of my role as an 

advocate for this cause is hearing the heart wrenching stories from 

those families. 

I know I am not alone in asking this committee to allow the 

CPSC to move forward with its rulemaking to issue ROV safety 

standards and stop the senseless death of our loved ones. In my 

journey over the last 8 years, I have collected the names and stories of those who shared a fate similar to J.T.’s, and it is for them 

that I speak today. For Ellie Sand, age 10, Kristin Lake, 11, Dusty 

Lockabey, 14, Ashlyn Vargas, 12, Dani Bernard, 18, Stephanie 

Katin, 26, Whitney Bland, 13, Sydney Anderson, 10, and Abbey 

West, age 13. 

Our stories do not begin and end on the day our loved ones were 

killed or injured. The battle is ongoing for all of us. We will miss 

soccer games, dance recitals, graduations, birthdays, weddings, and 

holiday celebrations. We will live with the consequences forever. 

Today you have the opportunity, and I think the obligation, to help 

me honor these young lives, their families, and the life of my son, 

J.T. Crow, but it is more than that. You have an opportunity to become a part of their story, the part that offers hope for the future 

by bringing about change. Our request is simply common sense. It 

is unimaginable that anyone would feel differently. If you don’t do 

something about it, can you live with yourself? 

Delay is a problem. Delay puts our children at risk. It has been 

too many years and too many tragedies already. We urge you not 

to contribute to any further delay. Thank you for your time. 

[The prepared statement of Ms. Crow-Michael follows:] 

63 

64 

65 

66 

67 

68 

69 

70 

71 

72 

73 

74 

75 

76 

77 

78 

Mr. BURGESS. Chair thanks the gentlelady, gentlelady yields 

back. Ms. Falvey, you are recognized, 5 minutes for opening statement, please. 

STATEMENT OF CHERYL A. FALVEY 

Ms. FALVEY. Thank you, Chairman Burgess, Ranking Member 

Schakowsky, distinguished members. Thank you for providing the 

opportunity to discuss the statutory framework that the Consumer 

Product Safety Commission will use to address the kind of risk we 

have just heard about. I have served as the General Counsel of the 

Consumer Products Safety Commission from 2008 to 2012, during 

the implementation of both the Virginia Graeme Baker Pool and 

Spa Safety Act, as well as the Consumer Product Safety Improvement Act. Both of those statutes made voluntary standards mandatory. I have been asked to discuss the way the CPSC statutes interrelate to the voluntary standards process to inform the committee’s 

consideration of H.R. 999. 

My oral remarks will focus on three important aspects of the 

interrelationship between the voluntary standards process and 

mandatory law. First, safety standards developed by the CPSC require time and effort to develop in order to meet the statutory requirements. It is not easy. Section 7 of the CPSA provides the 

CPSC with the authority to promulgate rules that set forth performance standards and require warnings and instructions, but 

only when the CPSC finds such a standard reasonably necessary 

to prevent or reduce an unreasonable risk of injury, and that the 

benefits of such regulation bear reasonable relationship to the costs 

of the regulation. The Commission must consider and make appropriate findings on a variety of issues, including the degree and nature of the risk, along with the utility of the product, and the costs 

and means to achieve the objective. 

To issue a final rule, the Commission must find that the rule is 

necessary to reasonably eliminate or reduce the unreasonable risk 

of injury, and that issuing that rule is in the public interest. Must 

also find that the rule imposes the least burdensome requirement 

that would adequately reduce the risk of injury. Congress recognized just how difficult it is for CPSC to do that when it enacted 

the CPSIA, and made it easier to make voluntary standards mandatory law in the Danny Keysar Child Safety Notification Act, due 

in part to resolute efforts by Ranking Member Schakowsky, which 

streamlined the process of making voluntary standards mandatory 

law. 

Second, the CPSC statute favors voluntary standards when they 

eliminate the risk of injury, and are complied with by manufacturers. If a voluntary standard addressing the same risk of injury is 

adopted and implemented, the Commission cannot proceed with a 

final rule unless it finds that the voluntary standard is not likely 

to eliminate the risk of injury, and that—and/or that it is unlikely 

that there will be substantial compliance with the voluntary standard. These can be very difficult findings for the Commission to 

make. As a data driven agency, the CPSC staff has to look for hard 

science to demonstrate the intended safety benefits of both its 

standards and consensus driven voluntary standards, but the 

79 

CPSC must still attempt to extrapolate from current data the likely 

future effects of its proposed rulemaking. 

The legislative history of the CPSA sets a high bar, directing the 

CPSC to consider whether the voluntary standard will reduce to a 

sufficient extent, such that there will no longer exist an unreasonable risk of injury. Predicting that there is an unreasonable risk in 

certain circumstances is easy. It can be extremely difficult when 

you are dealing with the highly technical issues of vehicle rollover. 

And that is why it takes staff time to develop the rulemaking packages, and why it is over 500 pages long. Determining whether there 

is substantial compliance is also a challenge when so many products come into the country now from overseas. The legislative history of the CPSC—CPSA directs that the Commission look at the 

number of complying products, rather than the number of complying manufacturers, and those products are coming in from all 

over the world. 

Third, and finally, the challenges of making voluntary standards 

mandatory law is one of the most important lessons we learned in 

both CPSIA and the Virginia Graeme Baker Pool and Spa Safety 

Act. These voluntary standards are iterative. They evolved over 

years. And unless we know that the test methods can be replicated 

and are reliable, making them law prematurely can be very dangerous. 

[The prepared statement of Ms. Falvey follows:] 

80 

81 

82 

83 

84 

85 

Mr. BURGESS. Chair thanks the gentlelady. Chair recognizes Mr. 

Pritchard, 5 minutes for an opening statement, please. 

STATEMENT OF ERIK PRITCHARD 

Mr. PRITCHARD. Good afternoon, Mr. Chairman, Ranking Member, and members of the committee. Thank you for this opportunity 

to testify in support of H.R. 999, the ROV In-Depth Examination, 

or RIDE Act. My name is Erik Pritchard. I am the Executive Vice 

President and General Counsel of the Recreational Off-Highway 

Vehicle Association, known as ROHVA. ROHVA is a not-for-profit 

trade association sponsored by Arctic Cat, BRP, Honda, John 

Deere, Kawasaki, Polaris, Textron, and Yamaha. ROHVA was 

formed to promote the safe and responsible use of recreational offhighway vehicles, called ROVs, or side-by-sides, in North America. 

Between 2011 and 2014 alone, ROV sales are conservatively estimated to total more than 750,000 in the U.S. These popular offhighway vehicles are used safely by families, emergency personnel, 

and the U.S. military in a variety of environments ranging from 

mud, to sand, to forest, to trails. This is a high growth industry, 

and a bright spot in the U.S. manufacturing economy. ROHVA is 

accredited by the American National Standards Institute to develop 

standards for ROVs, and has worked with numerous stakeholders 

for years to develop those standards, commencing in 2008, and culminating in voluntary standards approved in 2010, 2011, and most 

recently in September 2014. The CPSC has been involved throughout that process. 

The newest ROV voluntary standard includes a new dynamic 

stability and handling test and requirement, as well as new alternative seat belt reminders that were proposed by the CPSC staff, 

and driver side speed limiting seat belt interlocks found in over 60 

percent of the 2015 model year ROVs. Nonetheless, and essentially 

simultaneously with the approval of the new voluntary standard, 

the CPSC voted out the pending notice of proposed rulemaking regarding ROVs. The NPR largely ignores the new voluntary standard. Instead, the CPSC staff analyzed the prior 2011 version of the 

voluntary standard, and based it on testing of vehicles from model 

year 2010. 

In a supplemental briefing submitted 3 weeks after the voluntary 

standard was approved, the CPSC staff summarily rejected the 

new standard because it did not match the rulemaking. The 

CPSC’s proposals are not supported by science or real world application. One area of concern is the CPSC’s application of on road vehicle dynamics to vehicles used in rugged off-highway environments. Meanwhile, the CPSC actually continues to conduct testing 

in support of the NPR it has already voted out. 

While our review of the CPSC’s data underlying the rulemaking 

is not yet complete, I can share a couple initial observations with 

you. According to the CPSC’s data, where seat belt use is known, 

approximately 90 percent of riders suffering fatalities did not wear 

the seat belts that are provided in every ROV. Next, approximately 

60 percent of the severe injury rolled sideways incidents in the 

data were reported by a Plaintiff’s law firm. This is a representative example of the reporting relied on by the CPSC. A 46-year-old 

man was injured by the tip over of an ROV, whose unpadded roll 

86 

cage crushed his foot on June 16, 2006. While it has been a year 

since his accident, foot is still swollen, he finds it extremely difficult to walk, and is in considerable pain, end. 

Putting aside the bias of a Plaintiff’s lawyers reporting, this is 

not a scientifically sound approach to gathering data. It tells us 

nothing about how or why the alleged tip over occurred, and it is 

not possible to draw any statistical conclusions based on this limited information. These vehicles are significantly more complex 

than other products under the CPSC’s jurisdiction. The ROV manufacturers and engineers have serious safety concerns about the effects of the CPSC’s proposals. The RIDE Act will help resolve these 

matters by having these proposals examined by an independent 

agency, such as the National Academy of Sciences. 

This commonsense approach, resolving technical issues before 

considering implementation, should be supported by everyone. 

Some, however, have attempted to characterize the RIDE Act as 

further delay in a long process. The record, however, does not support that criticism. The voluntary standard has been updated as 

technology has evolved. The fact that the CPSC spent years drafting a proposed rule based on vehicles from 2010 cannot be evidence 

that the rule should be pursued, nor is the quantity of pages in the 

briefing package relevant to their quality. And the NPR comment 

period has been extended only because the CPSC failed, until recently, to turn over the documents and data underlying the rulemaking. 

This morning an ROV industry group is meeting with CPSC staff 

to discuss voluntary standards. ROHVA members went with—met 

with the CPSC on May 5. The effort to establish a mutually agreeable voluntary standard is the best approach, a view, that I understand, is shared by the CPSC in light of this morning. But in the 

meantime, the NPR remains pending. It would be a mistake to proceed to a mandatory rule without first conducting the testing contemplated by the RIDE Act. It is imperative that we get this right 

for the families, emergency personnel, and the military who use 

these vehicles in a variety of off-highway terrains and conditions. 

Thank you for your time. 

[The prepared statement of Mr. Pritchard follows:] 

87 

88 

89 

90 

91 

Mr. BURGESS. The Chair thanks the gentleman, gentleman yields 

back. The Chair is prepared to recognize Ms. Schakowsky. Five 

minutes for your questions, please. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. I just have to 

begin by saying, as a consumer advocate pretty much all of my 

adult life, I have been around these conversations for a very long 

time, and, frankly, I think this panel is reflective of what happens 

to consumers, three to one, on not doing these kinds of mandatory 

standards. 

You know, one example—I have been working on this rear visibility, and the number of children who are killed in—when—often 

their parent or grandparent drives their car over backwards on 

them. We had one in Chicago recently. And now we are going to 

have, by 2018, mandatory in every car there is going to be a camera. That bill was passed in 2008, and an average of two children 

die every week. Well, heck, that is not that many kids. 355 deaths 

from these vehicles since—between 2003 and 2013. And thank you, 

Ms. Crow-Michael, for reading some of those names, and bringing 

it home to us. And thank you for your courageous testimony today. 

I would like to hear from the industry, instead of why it all ought 

to be voluntary—because you said 15—I guess that is under the 

voluntary standards. Fifteen people have died this year, is that 

right, already? Isn’t that—200 and—2015? 

Ms. CROW-MICHAEL. Yes, correct. 

Ms. SCHAKOWSKY. Yes. So that is under voluntary standards, I 

take it. Well, maybe cost/benefit doesn’t make that worthwhile to 

have mandatory standards. I disagree. And I think that, while you 

want to get it right, absolutely, I am sick of hearing, the fault is 

the trial lawyers, the fault is the user who doesn’t put on the seat 

belt. And if we can do something to save another life, and I am 

with you, then we need to have mandatory standards. 

So I am wondering if you had any feeling that you had any reason not to trust the vehicle that your son was using when you 

looked at that. 

Ms. CROW-MICHAEL. In the beginning, I really feel like the vehicles give a perception of safety, but ROVs are not safe. And the fact 

that so many children have lost their lives has proven that, time 

and time again. 

Ms. SCHAKOWSKY. And when your son was bucked into the vehicle, did you trust that the seat belt would keep him from being 

thrown from the vehicle, just like it would in a car? 

Ms. CROW-MICHAEL. Of course. We think the products that we 

buy are safe. 

Ms. SCHAKOWSKY. Did the vehicle your son was riding look like 

the kind of vehicle that would lead to more than 300 deaths? Or 

I guess you already said the vehicle—— 

Ms. CROW-MICHAEL. Absolutely not. 

Ms. SCHAKOWSKY. Proponents of the CPSC rule, an activist like 

yourself, had said that the type of everyday use of the ROVs that 

lead to rollover deaths is not necessarily obvious to riders, particularly children. Do you agree? 

Ms. CROW-MICHAEL. I agree. 

92 

Ms. SCHAKOWSKY. And based on your work advocating on behalf 

of other victims of ROV accidents, do you believe that children are 

particularly vulnerable? 

Ms. CROW-MICHAEL. I do, and I believe waiting for more data is 

waiting for more deaths. 

Ms. SCHAKOWSKY. So what I would like to see is, rather than 

saying we have to have perhaps years more of study, and years 

more of death, that the industry work with the advocates, and with 

the CPSC, and with their investigators, to—if you don’t think the 

rule—the mandatory rule is proper, then figure out what a mandatory rule ought to look like. Didn’t you say, Ms. Falvey, that there 

are imports, et cetera, and that, you know, we need to look at all 

of those? 

Ms. FALVEY. The way the statute would work, the Commission 

would need to know that there is substantial compliance before 

they relied upon a voluntary standard. Or they could just decide, 

we don’t have confidence in these foreign manufacturers, and that 

they will be compliant, and move forward with their final rule. 

Ms. SCHAKOWSKY. So why don’t we have a mandatory standard 

that would apply to all, including imports? I mean, I just feel so 

strongly that when we have an opportunity to do something that 

is going to save a life, and I know that there are complicated mathematics that figures out money spent, is it worth a life? I don’t 

really abide by that, and it seems to me that 335 is enough, I think 

your son is enough, that we ought to move ahead. I support moving 

ahead as quickly as possible with the mandatory standards, and I 

yield back. 

Mr. BURGESS. The Chair thanks the gentlelady, gentlelady yields 

back. I will recognize myself, 5 minutes for questions. 

Ms. Falvey, let me just, first off, say thank you for your work on 

the Virginia Graeme Baker pool standards. I was on the subcommittee when that bill went through, and actually added the 

language for ornamental pools because, as you may recall, we lost 

a number of people at a Fort Worth water garden just shortly before that came through, which underscored to me the necessity of 

including ornamental pools, as well as backyard pools. But when 

you were doing the drain cover recall, did you go from a voluntary 

standard to a mandatory standard during that process? 

Ms. FALVEY. Yes, we did. 

Mr. BURGESS. And what were the advantages, or perhaps the disadvantages, in moving from the voluntary to the mandatory standard? 

Ms. FALVEY. The advantage is always safety and stopping death. 

You are always tempted to move as quickly as possible in order to 

address an addressable risk. The disadvantage in that circumstance is—— 

Mr. BURGESS. Let me just interrupt you there for a second, if I 

could, because—which is the more expeditious path, the voluntary 

or the mandatory? 

Ms. FALVEY. It depends, but it can be more expeditious to rely 

on the voluntary standard. You get industry and the CPSC staff 

working together on a standard that everyone can agree on. 

The problem with doing it too quickly, and mandating it as law 

when it is not quite ready to be law is that, in that case, we didn’t 

93 

make things safer fast enough, in that the drain covers were tested 

by different labs in different ways. We didn’t know that the test results—exactly how to do the tests at the lab level, and there were 

different labs passing different drain covers, and we ended up with 

pools with brand new drain covers installed that weren’t compliant. 

And we had to recall those, pull them out, and put them in, properly tested. 

That works well in the voluntary world, where things can be 

iterative and change over time. When you make it mandatory law, 

it changes the equation. And so while it is helpful, from a safety 

perspective, to move as quickly as possible, and that is always the 

CPSC’s goal, if you don’t do it right, it can cost an enormous 

amount of money, and it doesn’t save lives. And that is what we 

want to try to avoid. 

Mr. BURGESS. Very well. Now, we—Mr. Pritchard, I guess I 

should ask this question of you. The list that Ms. Crow-Michael 

read is impressive, but it is also impressive because of the young 

age of so many of the people who were—who met their demise. Is 

there—do you placard these machines with an age restriction, or 

a recommendation for training under certain ages? 

Mr. PRITCHARD. We do. The industry’s recommendation is that, 

in order to drive an ROV, you need to be at least 16 years of age, 

and have a valid driver’s license. These are not toys. These are not 

meant to be driven by children. This is on the machines, it is part 

of the free online training that is available to everyone. It is certainly part of the hands-on training that is available. Children 

don’t belong behind the wheel of these vehicles. 

We have covered a lot of ground here in sort of very short form. 

One thing I do want to clarify is that, when we talk about a voluntary standard, and the requirements under the voluntary standard, that is enforceable. That is enforceable by the CPSC. It is not 

voluntary in the sense of an opt-in and opt-out. It is the standard. 

And that is how the approximately 14 to 15,000 other products that 

are under the jurisdiction of the CPSC are handled. I mean, you 

could—you can imagine the CPSC trying to write 15,000 different 

standards for every product out there. So the voluntary standard 

is enforceable. 

Mr. BURGESS. Yes. Let me just interrupt you for a minute, because I am going to run out of time, and I want to be respectful 

of the other members. 

Now, Ms. Crow-Michael, on your—I think it is a Facebook page 

that is set up to the memory of your son, there is a list of I guess 

safety measures, for want of a better term. One mentions the age, 

another mentions a helmet. I mean, these are things that your organization recommends? 

Ms. CROW-MICHAEL. First off, I don’t have an organization, per 

se. But if we are talking about the fact that children shouldn’t be 

on them, then I would have to say, what about Karen Harwood, 46, 

or Andrea Jones, who is 34? 

Mr. BURGESS. And that is an excellent point, and I was going to 

ask Mr. Warfield, is there—you have studied this for a long time. 

Mr. WARFIELD. Yes. 

Mr. BURGESS. Does, you know, the age placarding may be one 

thing, but does there—I want to say this as nicely as I can, but 

94 

does body mass make a difference? That is, the lighter the driver— 

because most of the people older than age 16 that Ms. Crow-Michael mentioned on her list, most of those were women, so presumably of lighter body weight. Does that make a difference? Is that 

something that you have studied? 

Mr. WARFIELD. Not the weight itself, sir. What I see time and 

time again with these machines, it is operator error. It has almost 

nothing to do with the design of the vehicle. Please let me carry 

it one step further here. I have been operating these machines 

since 1985. I currently have 13 ATVs. I have four ROVs. I have a 

brand-new one coming in today. I am on those ROVs every day, either maintenance or through training. I have never rolled an ROV 

over. I have never rolled an ATV over. I have operated these machines in every State in the United States, including Alaska and 

Hawaii, except for North Dakota. I don’t know why I missed that 

on North Dakota. 

But what I am getting at is I put these machines through their 

paces, through training, through an advocate of riding. I wear a 

helmet, I make sure the proper age person is operating the machine. I follow the guidelines. So what I am saying is, I have trusted this industry. I have trusted this industry that they have shown 

me—they have given me and my family a vehicle that is safe to operate. I am really concerned that now CPSC is saying, wait a 

minute, there is something wrong here. 

And to answer your question, why wait? I have been operating 

a machine that was perfectly capable of doing everything I wanted. 

If we are going to make a change, let us make sure that change 

is not a negative change. 

Mr. BURGESS. All right. I am going to ask you to hold that 

thought, and the Chair will recognize Ms. Clarke. Five minutes for 

questions, please. 

Ms. CLARKE. Thank you, Mr. Chairman. I thank the Ranking 

Member, and I thank our witnesses for their testimony here today. 

It has been more than a half a decade since the Consumer Product 

Safety Commission issued the advance notice of proposed rulemaking in 2009. Since then, CPSC has conducted thorough research to determine the appropriate mandatory standards for 

ROVs. CPSC staff reviewed more than 550 ROV related incidents, 

335 of which resulted in the death of the driver, or passenger, or 

both. Each incident was reviewed by a multi-disciplinary team, included—including an economist, human factors engineer, a health 

scientist, and a statistician. The Commission also worked with FEA 

Limited, a CPSC contractor, to create a ROV rollover simulator 

from scratch. In addition to the agency’s own data collection, this 

year the CPSC also held a 7-hour public meeting in which the 

Commission heard testimony from and asked questions of witnesses both for and against the proposal. By any traditional measure, internal research, hypothetical simulation, incident review, 

and public input, the Commission has conducted a thorough investigation and has more than enough information to issue appropriate standards. 

Ms. Crow-Michael, your son was not the only person affected by 

weak safety standards that allowed Yamaha to continue selling defective versions of the Rhino ROV. In 2009 the Consumer Product 

95 

Safety Commission estimated that 59 people were killed riding the 

Rhino. In fact, the Rhino incident—accident epidemic was one of 

the primary drivers of the Commission’s original rulemaking. But 

H.R. 999 would force the CPSC to contract with the National Academy of Sciences to conduct further research before implementing 

these reasonable and thoroughly tested standards. So my question 

to you, Ms. Crow-Michael, is do you think more data is needed to 

determine the ROVs that are currently on the market are unsafe? 

Ms. CROW-MICHAEL. CPSC, I think they have worked hard to get 

the data that they have. They have spent money to gather and understand that data. More delay puts and all people at serious risk 

of injurly [sic]—injury or death, I am sorry. But I don’t think more 

data is needed. I think it has been enough time, and I—and, like 

I said before, waiting for more data is waiting for more death. 

Ms. CLARKE. Then let me just follow up with that question. You 

have suffered an unspeakable loss because of an unsafe ROV. Do 

you think that the CPSC is rushing to judgment in proposing 

standards for a recreational activity responsible for more than 330 

deaths in the last decade? 

Ms. CROW-MICHAEL. No. 

Ms. CLARKE. I thank you. Mr. Chairman, I yield back the balance 

of my time. 

Mr. BURGESS. Chair thanks the gentlelady, gentlelady yields 

back. Chair recognize the gentleman from Kentucky, 5 minutes for 

questions, please. 

Mr. GUTHRIE. Thank you, Mr. Chairman, and thank you all for 

being here to testify today. I have a question for Mr. Pritchard. I 

notice in your testimony you mention that the ROHVA is accredited by the American National Standards Institute to develop 

standards for the equipment, configuration, and performance of 

ROVs. Can you tell us more about this process, and how voluntary 

safety standards have been developed over the last few years, and 

does this process involve the CPC? I know you touched on it a little 

bit, but how that process of voluntary standards that are mandated, and is the CPSC involved? 

Mr. PRITCHARD. Absolutely, and cut me off when you get tired of 

listening, because I could talk about this all day. ROHVA was 

formed in 2007. The work on a voluntary standard began in 2008, 

so essentially almost immediately. In 2010 a voluntary standard 

was developed and published, then another version in 2011, and 

another version in 2014 reflecting the evolving technology. 

The way the process works is you get the process started through 

a procedure mandated by—it is ANSI [ph], that is the acronym, for 

this process. You put out a proposed draft standard to the canvas, 

and the canvas is made of a variety of stakeholders, and the stakeholders include—in every iteration has included the CPSC. It has 

included consumer groups. It has included industry. It has included 

user groups. It is a broad swath. And the way this works is people 

get the draft, the canvasees comment, and submit their comments 

back in. The comments are shared with everyone on the canvas, 

then ROHVA responds to those comments. Each one has to say, 

your suggestion for this area, say seat belts, here is our response. 

Then the canvas gets all of those comments from ROHVA back 

to the canvasee, so everyone gets to see this full exchange of inforVerDate Mar 15 2010 11:28 Oct 26, 2016 Jkt 037690 PO 00000 Frm 00099 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114X45XCPSCOVERSIGHTJKTREQ102116\114X45XCPSCOVERSIG
96 

mation, and then a consensus is built around the voluntary standard. It is then sent to ANSI, here is how we did it, and ANSI 

checks that process and verifies that you followed the ANSI procedure. When ANSI approves it, then it becomes official, and ultimately a book, for lack of a better word, is published, and that becomes the standard by which all of the vehicles subject to that voluntary standard must conform. 

Mr. GUTHRIE. So then it becomes mandatory? 

Mr. PRITCHARD. It is voluntary—— 

Mr. GUTHRIE. So what is the difference between mandatory and 

voluntary, then? 

Mr. PRITCHARD. Sure. It is voluntary in the sense of—it is developed by stakeholders, but it is enforceable. Mandatory means the 

CPSC imposes what it thinks is the best approach. And where we 

are now is at an impasse between a voluntary standard that is 

brand new, that just came out in September 2014, and a mandatory standard, or at least a proposal for a mandatory standard, 

based on the old standard, but a mandatory standard proposed by 

the CPSC. And the engineers and industry just think CPSC has got 

this wrong. 

Mr. GUTHRIE. Well, was the voluntary standard better? What— 

was it more likely to protect life than the mandatory standard? 

Mr. PRITCHARD. So—— 

Mr. GUTHRIE. What are the critical differences, and why is yours 

better? 

Mr. PRITCHARD. So there are three—what I call three fundamental differences between the two. One is on vehicle handling. 

The CPSC wants to impose something called an understeer mandate. Every vehicle must understeer, and I can tell you about that. 

The next is testing lateral stability. The CPSC’s test for lateral stability, frankly, suffers from problems with repeatability and reproducibility, which the CPSC is conducting testing to address right 

now. The final piece is seat belts. CPSC has proposed a seat belt 

interlock which would essentially prevent the vehicle from moving 

above 15 miles an hour if the seat belts aren’t moved in both the 

driver and the passenger seat. 

Now, in the driver seat, there is actually a lot of agreement, and 

the voluntary standard includes that as an approach. The dispute 

really is over the passenger seat. CPSC commissioned a study of 

the passenger seat interlock. They just got the results I think in 

February. They published them in March. So they got these after 

the voluntary standard was voted out. And the study confirmed 

what industry had been telling—that we have heard from our own 

consumers, which is no one wants this passenger side seat belt 

interlock because drivers don’t want to lose control of their vehicle. 

You add on top of that the technical challenges, which would be if 

you put your dog in the seat, your toolbox in the seat—this is an 

area for which there is no answer. 

And the final wrinkle on this is that even on the driver’s side 

seat belt interlock, you—it doesn’t work with a diesel or carbureted 

engine, because it has to be talking with a computer. Computer has 

to talk from the seat belt through the speed limited to tell it that 

we have a connection here. So that is one small example of what 

97 

is a, frankly, complex area. And the CPSC’s engineers, while I believe well intentioned, don’t have this right. 

And I want to add, we didn’t get—we went through this voluntary standard process last year, which I didn’t think the CPSC 

was very engaged in. A better way to put that, though, is that they 

seem to be much more engaged with industry now. And there is a 

meeting taking place right now between industry and CPSC staff 

to discuss the voluntary standards. That is the path forward. 

Mr. GUTHRIE. Thank you. And, before I yield back, if I could 

ask—I want to say, Ms. Crow-Michael, thank you for coming. Your 

advocacy is very important, and thoughts and prayers are with 

you. But thank you for taking this cause, and hopefully we can 

come to the right standard and do the right—and have the right 

thing as a result. Thank you. 

Mr. BURGESS. Gentleman yields back. The Chair thanks the gentleman. Chair recognizes Ms. Schakowsky for the purpose of a 

unanimous consent request. 

Ms. SCHAKOWSKY. I would like to put on the record the statement of G.K. Butterfield; the statement of John Sand, father of an 

ROV victim; letters from the American Academy of Pediatrics; letter from various consumer groups; testimony of Rachel Weintraub 

of the Consumer Federation of America before the CPSC; Citizens’ 

Report that Ms. Crow-Michael referred to in her testimony. We will 

add that to the permanent record. 

Mr. BURGESS. Without objection, so ordered. 

Chair would just note I offered Ms. Schakowsky a follow-up question. She declined. I did have one follow-up question that I wanted 

to ask. 

Ms. Crow-Michael, your son was injured on the Yamaha Rhino 

450. Just ask the question of anyone on the panel, is that particular model still available? Is that something that is still sold on 

the market? 

Mr. PRITCHARD. I can address it. 

Mr. BURGESS. Please. 

Mr. PRITCHARD. That vehicle is not sold. In fact, you are talking 

about a vehicle from 2007, if I recall your testimony correctly. We 

are now three voluntary standards past that, so the technology has 

evolved beyond that. I can add, there are tens of thousands of those 

Rhinos still in use that people enjoy, at this point have probably 

put on hundreds of thousands, if not more, hours of use. But, no, 

the technology for these vehicles has evolved, and we are now in 

a new standard. 

Mr. BURGESS. But you could still buy one on Craigslist? 

Mr. PRITCHARD. Yes, I would guess. 

Mr. BURGESS. Yes. So it is going to be an informational challenge 

to get information to people who may be new purchasers of old machines. 

Mr. PRITCHARD. But those vehicles—and, respectfully, are not defective, period—I think that these incidents are more complicated 

than what we have heard today. I don’t think that is the focus of 

today. I think the focus of today is, can we get this right between 

industry and the CPSC, and if the CPSC just won’t listen to industry, they won’t listen to the folks who make these vehicles, maybe 

they will listen to the National Academy of Sciences. 

98 

Mr. BURGESS. Very well. Chair wishes to thank all members of 

the panel. Ms. Crow-Michael, I just echo what Mr. Guthrie said. I 

am sure every member of the subcommittee extends to you our condolences for your loss. 

Seeing that there are no further members wishing to ask questions, before we conclude, I would like to submit the following documents for inclusion in the record by unanimous consent: statement 

for the record from Commissioner Marietta Robinson from the Consumer Product Safety Commission; a letter—we already did Mr. 

Olson’s letter; a response letter from Chairman Elliot Kaye to 

Chairman Olson. 

[The information appears at the conclusion of the hearing.] 

Mr. BURGESS. Pursuant to committee rules, I remind members 

they have 10 business days to submit additional questions for the 

record. I ask the witnesses to submit their response within 10 business days upon receipt of the questions. Without objection, again, 

my thanks to the panel, and thank you for staying with us through 

a long morning. Without objection, the subcommittee is adjourned. 

[Whereupon, at 12:45 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

As one of the smaller agencies that this committee oversees, the Consumer Product Safety Commission has a critically important mission: to protect consumers 

against unreasonable risks of injury from consumer products. 

Over 15,000 different products fall within the Commission’s jurisdiction-from toys 

and baby cribs to swimming pools and recreational off-highway vehicles. The Commission’s work is critically important, but over the years there have been many 

issues raised with the Commission’s implementation of its mission. When the Commission overreaches, it can jeopardize safety and erode Congress’ trust. I have a responsibility to families in southwest Michigan to ensure the CPSC is focusing on 

its whole mission of safety, and not just on headlines or a few interest driven priorities. 

Today, I am pleased to see Chairman Elliot Kaye, as well as Commissioners Ann 

Marie Buerkle and Joseph Mohorovic before the subcommittee for the first time in 

their new capacities. And Commissioner Adler, we welcome you back. I would also 

like to welcome the witnesses of the second panel here to talk about Mr. Pompeo’s 

bipartisan legislation, H.R. 999. 

Oversight of an agency with such broad jurisdiction is critical to ensuring unsafe 

products are either stopped from coming into the stream of commerce or are taken 

off the shelves in a seamless and timely manner. I look forward to hearing from the 

Commissioners about issues currently before them as well as their budget and regulatory priorities for the upcoming fiscal year. In particular, I would like an update 

on the progress being made on third party testing burdens that impact small businesses. 

I would also like to hear more about how the Commission prioritizes consumer 

education initiatives for known hazards in specialized circumstances, such as the 

newly announced ‘‘Best for Kids’’ program for window coverings, and how working 

with industry has provided opportunities for additional outreach. We have seen an 

increase in company-driven safety initiatives, ranging from this year’s Super Bowl 

ads to the self-directed recall of Fitbit activity bands last year. The potential for cooperation and partnerships should not be overlooked when consumer safety is at 

stake. 

Everyone in this room shares the common goal of protecting consumers. Today’s 

hearing is a positive step and I look forward to continuing to work with my colleagues on the off-road vehicles and other issues. 

99 

100 

101 

102 

103 

104 

105 

106 

107 

108 

109 

110 

111 

112 

113 

114 

115 

116 

117 

118 

119 

120 

121 

122 

123 

124 

125 

126 

127 

128 

[Mr. Kaye’s answers to submitted questions have been retained 

in committee files and also are available at http://docs.house.gov/ 

meetings/IF/IF17/20150519/103481/HHRG-114-IF17-WstateKayeE-20150519-SD005.pdf.] 

129 

130 

131 

Æ