```

[Senate Hearing 110-1208]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 110-1208

 
                           OVERSIGHT OF THE 
                   CONSUMER PRODUCT SAFETY COMMISSION

=======================================================================

                                HEARING

                               before the

   SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY

                                 OF THE

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 21, 2007

                               __________

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

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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                   DANIEL K. INOUYE, Hawaii, Chairman
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska, Vice Chairman
    Virginia                         JOHN McCAIN, Arizona
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
BYRON L. DORGAN, North Dakota        KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California            OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 GORDON H. SMITH, Oregon
MARIA CANTWELL, Washington           JOHN ENSIGN, Nevada
FRANK R. LAUTENBERG, New Jersey      JOHN E. SUNUNU, New Hampshire
MARK PRYOR, Arkansas                 JIM DeMINT, South Carolina
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota
   Margaret L. Cummisky, Democratic Staff Director and Chief Counsel
Lila Harper Helms, Democratic Deputy Staff Director and Policy Director
              Margaret Spring, Democratic General Counsel
   Christine D. Kurth, Republican Staff Director and General Counsel
Kenneth R. Nahigian, Republican Deputy Staff Director and Chief Counsel
                                 ------                                

   SUBCOMMITTEE ON CONSUMER AFFAIRS, INSURANCE, AND AUTOMOTIVE SAFETY

MARK PRYOR, Arkansas, Chairman       JOHN E. SUNUNU, New Hampshire, 
JOHN D. ROCKEFELLER IV, West             Ranking Member
    Virginia                         JOHN McCAIN, Arizona
BILL NELSON, Florida                 TRENT LOTT, Mississippi
MARIA CANTWELL, Washington           OLYMPIA J. SNOWE, Maine
FRANK R. LAUTENBERG, New Jersey      GORDON H. SMITH, Oregon
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           JOHN THUNE, South Dakota
AMY KLOBUCHAR, Minnesota

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 21, 2007...................................     1
Statement of Senator Klobuchar...................................     3
Statement of Senator McCaskill...................................    24
Statement of Senator Pryor.......................................     1
Statement of Senator Sununu......................................     2
Statement of Senator Thune.......................................    22

                               Witnesses

Dean, John C., President, National Association of State Fire 
  Marshals.......................................................    49
    Prepared statement...........................................    51
Greenberg, Sally, Senior Product Safety Counsel, Consumers Union.    28
    Prepared statement...........................................    30
Locker, Esq., Frederick, General Counsel to the Toy Industry 
  Association and Juvenile Products Manufacturers Association....    53
    Prepared statement...........................................    55
Moore, Hon. Thomas H., Commissioner, U.S. Consumer Product Safety 
  Commission.....................................................     8
    Prepared statement...........................................    10
Nord, Hon. Nancy A., Acting Chairman, U.S. Consumer Product 
  Safety Commission..............................................     4
    Prepared statement...........................................     5
    Letter dated July 20, 2006 from Laura M. Tarantino, Ph.D., 
      Director, Office of Food Additive Safety, Center for Food 
      Safety and Applied Nutrition...............................    27
Weintraub, Rachel, Director of Product Safety and Senior Counsel, 
  Consumer Federation of America.................................    38
    Prepared statement...........................................    40

                                Appendix

Letter dated March 28, 2007 to Hon. Daniel K. Inouye from Martin 
  B. Bennett, Former Compliance Officer, Consumer Product Safety 
  Commission.....................................................    67
Response to written questions submitted to Hon. Thomas H. Moore 
  by:
    Hon. Claire McCaskill........................................    87
    Hon. Bill Nelson.............................................    80
    Hon. Mark Pryor..............................................    81
Response to written questions submitted to Hon. Nancy A. Nord by:
    Hon. Maria Cantwell..........................................    70
    Hon. Claire McCaskill........................................    78
    Hon. Bill Nelson.............................................    69

                           OVERSIGHT OF THE 
                   CONSUMER PRODUCT SAFETY COMMISSION

                              ----------                              

                       WEDNESDAY, MARCH 21, 2007

                               U.S. Senate,
  Subcommittee on Consumer Affairs, Insurance, and 
                                 Automotive Safety,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:37 a.m., in 
room SR-253, Russell Senate Office Building, Hon. Mark Pryor, 
Chairman of the Subcommittee, presiding.

             OPENING STATEMENT OF HON. MARK PRYOR, 
                   U.S. SENATOR FROM ARKANSAS

    Senator Pryor. I want to welcome everyone here to the 
Subcommittee today, and just at the outset let me say that 
Senators are welcome to submit their questions for the record 
and also enter any sort of documents they want for the record. 
We'll be glad to take those, as long as there's no objection.
    I'd like to welcome the Commissioners today, and our expert 
witnesses on the second panel, for the time that they have 
taken to prepare their testimony and to be here and appear 
before us today. This is the first oversight hearing on the 
Consumer Product Safety Commission in the Senate since 2003. 
This will be the first in a series of hearings to examine the 
work of the CPSC and how this Committee can improve the 
Commission to meet today's and tomorrow's needs.
    As we all know, the CPSC was started in 1973 to protect the 
public against unreasonable risk and injury associated with 
consumer products. At the time it was created, it had 786 full-
time employees and was responsible for the safety of about 
10,000 products. Today it is responsible for the safety of 
about 15,000 products, but they are down over 350 employees, 
down to 420 full-time employees.
    So at the outset we can say that this is an agency that's 
in distress in some ways. The budget has been cut. The number 
of positions have been cut. Because of this year's budget, or 
at least the way it looks like it's going, it looks like there 
may be some retirements just because they can't meet the budget 
requirements. The testing facilities in Maryland are 
antiquated, and apparently they have closed the branch 
facilities around the country.
    So I think most Americans would say that they want to see a 
healthy and well-operated CPSC, but for that to happen the 
administration and Congress have to work together to try to 
restore this agency to its previous levels or at least 
something close to that.
    The administration has proposed a funding level that will 
force the CPSC to further reduce its workforce to 401 full-time 
employees for Fiscal Year 2008, so that's a loss of about 19 
employees right there. This would be the fewest number of 
employees in the history of the CPSC. The importance of 
adequate staffing cannot be overemphasized. There are so many 
products out there; they need to do the testing; they need the 
oversight; they need people to look at the marketplace to see 
what's coming on the marketplace, and to do all the things that 
they do.
    Consumer products under CPSC's jurisdiction probably lead 
to about 27,100 deaths each year and about 33.1 million 
injuries each year. If you calculate the cost of the deaths, 
injuries, loss of property, et cetera, you get about $700 
billion annually.
    Now, while the CPSC has succeeded in reducing accidents, 
deaths, and injuries in some areas, unfortunately the overall 
number of deaths and injuries related to products has 
increased. If CPSC continues to be limited in terms of 
resources and authority, these numbers will continue to go up. 
In fact, there were about 2,000 more deaths last year than the 
year before.
    Experts with different perspectives on product safety all 
agree on one point: The government needs to make up its mind 
about the proper role for the CPSC. The original mandate under 
the Consumer Product Safety Act was a broad one, to protect 
Americans from unsafe consumer products, yet the agency's 
ability to achieve that mandate has been curtailed over time by 
limits in its authority, in its funding and in the number of 
commissioners.
    With the number of products in the marketplace 
exponentially larger today than it was in 1973, and given the 
number of imports that we're seeing coming into this country, I 
believe the CPSC's oversight of consumer products is needed now 
more than ever. In fact, going back to 1973, think about how 
many more--just in one category--consumer electronic products 
are on the marketplace today. The amount of new products out 
there that just didn't even exist back in 1973 is staggering.
    In spite of this exponential growth, CPSC has virtually no 
presence in America's ports, and the Commission is losing some 
of its most experienced staff. We have new chemicals, new 
consumer products such as nanotechnology. These goods are much 
more complex, and I think it's imperative that we give CPSC the 
resources it needs to be effective.
    So I look forward to hearing from the panels. What we're 
going to do for Senators is, we're going to do a 5-minute round 
of questions. We're going to ask the two witnesses to do 5-
minute opening statements and try to watch your time. But 
before we do that, I want to recognize my distinguished Ranking 
Member, Senator Sununu.

               STATEMENT OF HON. JOHN E. SUNUNU, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Sununu. Thank you, Mr. Chairman. It is a pleasure 
to have both of our panelists on our first panel with us today. 
This is a good opportunity, early in the session, to get an 
overview of how the Commission is doing, what the needs are in 
terms of resources, and infrastructure, and to begin talking 
about the potential reauthorization process.
    It's been a long time since we've had reauthorization 
legislation for the Consumer Product Safety Commission. I 
think, as everyone who has worked on these issues before 
understands, it can be contentious. There are a number of 
issues that people feel very strongly and very passionately 
about, so that can always slow down the process on such 
legislation.
    But I think the public and the government and the employees 
within a branch of government are always better served if there 
is good, clear authorization language that sets forth the 
mission, the scope of responsibility, the objectives of 
regulations, and of course sets clear guidelines for funding, 
infrastructure, and operations. So I hope that today's hearing 
might be the beginning of that process, and I look forward to 
the testimony of our witnesses. Thank you, Mr. Chairman.
    Senator Pryor. Senator Klobuchar, do you have an opening 
statement?

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Thank you, Mr. Chairman. I am pleased to 
be here today to address the many important challenges facing 
this incredibly important government body, the Consumer Product 
Safety Commission. Let me talk briefly about why I think it is 
so important to have a strong Consumer Product Safety 
Commission.
    There are those that say that our modern marketplace can 
effectively self-regulate for product safety. I don't doubt 
that we all bear a measure of responsibility for our own 
safety, and I also don't doubt that some of our companies have 
taken important voluntary steps to improve product safety in 
the last few years. But as a former prosecutor and a mother, I 
am convinced that government has an important role to play in 
protecting the public from defective and dangerous and deadly 
products.
    Senator Pryor went through the statistics. I'm not going to 
do that again. They are very troubling. And I would say, to 
carry out these roles that are so important to the safety of 
the people of our country, the government needs a first class 
agency with first class resources and a first class commitment 
to its central charge of protecting the public.
    These are my concerns. Senator Pryor mentioned the staffing 
levels and how in 1977 CPSC had a staff of 900. The current 
number of staff hovers a little above 400. The Commission's 
2007 Performance Budget Request calls for funding levels that 
would leave the staff at an all-time low.
    Second, the laboratory, CPSC's testing laboratory, is 
critical to the Commission's compliance investigations and 
safety standard activities, but no major improvements to the 
lab have been made in 32 years. One of my major concerns, when 
you look at the type of complaints that have been coming in, is 
how CPSC is not equipped for the new product safety challenges 
on the horizon, including the increasing number of unsafe 
products being imported from overseas and changing technologies 
that pose new risks to our consumers.
    And of course there is the basic problem of a quorum. As we 
sit here today, the CPSC is paralyzed because it does not have 
enough commissioners. I can think of no more clear message 
indicating that the government does not have enough focus on 
this issue, when we don't even have a quorum for commissioners.
    So those are my major concerns, and I look forward to 
hearing your testimony today and working together with you as a 
new member of this Committee. Thank you.
    Senator Pryor. Commissioner Nord?

STATEMENT OF HON. NANCY A. NORD, ACTING CHAIRMAN, U.S. CONSUMER 
                   PRODUCT SAFETY COMMISSION

    Ms. Nord. Thank you, Mr. Chairman, Senator Sununu, 
distinguished members of the Subcommittee. I am very pleased to 
be here this morning because this is the first opportunity I 
have had to come before you since I was confirmed as a 
commissioner less than 2 years ago. I appreciate the invitation 
to my colleague, Mr. Moore, and myself to come before the 
Subcommittee this morning to give you an overview of the CPSC 
and answer your questions.
    The CPSC is an independent, bipartisan commission charged 
with protecting the public from unreasonable risk of injury and 
death associated with more than 15,000 types of consumer 
products. Since its inception, the CPSC's work has contributed 
significantly to the decline in rates of death and injury 
related to the use of consumer products. While we are proud of 
the agency's record of achievement, there is still much work to 
be done. Ever more technologically complex products and an 
unprecedented surge of imports continue to present the agency 
with new challenges.
    The CPSC has three main missions: First, to identify 
existing and emerging product hazards, and to address those 
hazards by developing mandatory safety standards when voluntary 
consensus standards are not adequate. Second, to investigate 
and respond to product-related incidents, and to conduct 
product recalls to get unsafe products out of the stream of 
commerce. And, third, to alert and educate consumers about 
product-related safety issues. I'd like to briefly describe 
each of these missions.
    In the United States there is a well-established system of 
voluntary or what we prefer to call ``consensus'' product 
safety standards. This system has worked very well, and most 
U.S. product manufacturers adhere to these standards. However, 
in those instances where we find that consensus standards do 
not exist or are not adequate, the commission initiates a 
rulemaking to develop a mandatory product safety standard.
    To monitor compliance with safety standards, CPSC staff 
conducts field inspections of manufacturing facilities and 
distribution centers, and also conducts surveillance in retail 
establishments and via the Internet. Recalls occur for products 
that contain a defect that poses a substantial product hazard, 
or for products that violate our mandatory safety regulations.
    In 2006 the CPSC announced 471 product recalls, and this is 
an all-time record for the agency. And, Senators, we are now on 
track to exceed that number in this fiscal year. Two-thirds of 
these recalls were of imported products, and two-thirds of 
those were from China.
    In addition to our surveillance at U.S. ports of entry, the 
CPSC has initiated four product-specific working groups with 
China to address this challenge. The commission is determined 
to make certain that imports meet the same high safety 
standards that American-made products must meet.
    Recalls are announced and other important product safety 
information is disseminated by the CPSC through all forms of 
media to warn the public of specific product hazards and to 
educate consumers. Additionally, visits to CPSC's three 
websites have grown substantially, from 200,000 in 1997 to over 
20 million last year.
    All of CPSC's safety activities require collecting reliable 
data, and the CPSC collects a lot of data. CPSC's IT systems 
are critical to the efficient maintenance and processing of 
this data. To keep existing systems operating and current, the 
Commission's pending budget request to Congress has reallocated 
funds to maintain and, where necessary, replace aging network 
infrastructure and security features. Quality data is critical 
to the agency's decisionmaking process as it relates to 
voluntary standards development, compliance, consumer 
education, product labeling, and rulemaking initiatives.
    Recently the CPSC underwent a 6-month assessment by the 
Office of Management and Budget and received the highest 
possible rating, which underscores the fact that we continually 
strive to set ambitious goals, achieve results, and improve 
efficiency. While we are proud of this recognition, consumer 
safety is never a completed task but always an ongoing process 
of research, standards development, enforcement, and public 
education.
    Mr. Chairman, members of the Subcommittee, thank you so 
much for your support. I look forward to working with you 
during the next Congress as you look at this agency, and I 
certainly look forward to answering your questions this 
morning.
    [The prepared statement of Ms. Nord follows:]

      Prepared Statement of Hon. Nancy A. Nord, Acting Chairman, 
                U.S. Consumer Product Safety Commission

    Mr. Chairman, Senator Sununu, and distinguished Senators.
    Thank you for your invitation, to my colleague Commissioner Moore 
and me, to come before the Subcommittee on Consumer Affairs, Insurance, 
and Automotive Safety, this morning to give you an overview of the U.S. 
Consumer Product Safety Commission (CPSC) and to answer your questions 
regarding our mission, our goals, our resources and our activities on 
behalf of the American consumer.
    The CPSC is an independent, bipartisan Federal commission 
established by Congress and charged with protecting the public from 
unreasonable risks of injury and death associated with more than 15,000 
types of consumer products under the agency's jurisdiction.
    Since its inception in 1973, CPSC's work has contributed 
substantially to the decline in the rates of death and injury related 
to the use of consumer products. We estimate that overall, injuries and 
deaths associated with the use of products under our jurisdiction have 
declined by almost one-third since the agency's inception. These 
reductions include:

   A 45 percent reduction in consumer-related residential fire 
        deaths;

   An 89 percent reduction in crib-related deaths;

   A 74 percent reduction in product-related electrocutions;

   A 47 percent reduction in consumer-related carbon monoxide 
        deaths; and

   An 82 percent reduction in poisoning deaths of children from 
        drugs and household chemicals.

    These are absolute reductions--when the increase in the U.S. 
population is considered, the rate of these and many other categories 
of product-related injuries we have targeted have declined even more 
substantially.
    While we are proud of these and the agency's many other 
achievements over the years, there is still much work to be done. Ever 
more technologically complex products, like those utilizing nano 
materials, and an unprecedented surge of imports (especially from 
China) continue to present the agency with new challenges. Consumer 
safety is never a completed task but always an ongoing process of 
research, standards development, enforcement and public education.
    We accomplish our mission by executing five Federal statutes: The 
Consumer Product Safety Act, the Federal Hazardous Substances Act, the 
Flammable Fabrics Act, the Poison Prevention Packaging Act, and the 
Refrigerator Safety Act.
    Within the purview of these statutes, the CPSC has three core 
missions:

        1. To identify existing and emerging product hazards that 
        create an unreasonable risk of injury and to address those 
        hazards by developing mandatory safety standards when consensus 
        standards fail to do so. We do this through our Office of 
        Hazard Identification and Reduction;

        2. To conduct product recalls and to investigate and respond to 
        product-related incidents which we accomplish through our 
        Office of Compliance and Field Operations; and

        3. To alert and educate consumers about product-related safety 
        issues, done by our Office of Information and Public Affairs.

    I will explain each of these in a bit more detail.

Standards Activities
    In the United States, there is a very well established and vibrant 
system of voluntary--or what we prefer to call consensus--product 
safety standards. Under the guidance of groups like the American 
National Standards Institute, ASTM International, and Underwriters 
Laboratories, who work to bring all stakeholders into the process, 
literally thousands of such product safety standards have been written 
and are continuously being revised. These standards cover everything 
from the wiring in your toaster to the performance of baby walkers.
    Thus, when Congress created the CPSC, there was a strong preference 
in our statutes for deference to such consensus standards over the 
promulgation of mandatory CPSC-drafted regulations. Indeed, CPSC staff 
serves on many of the committees and participates in writing these 
standards and routinely contributes to many more.
    This system has worked well, and most U.S. product manufacturers 
adhere to these standards. However, in those instances where we find 
that consensus standards do not exist or are not adequate to address a 
risk, the Commission will initiate rulemaking to develop a mandatory 
product safety standard.
    At the current time we have 14 rulemakings underway, including one 
on all-terrain vehicle (ATV) safety, a product in which I know Chairman 
Pryor, as well as Chairman Inouye, Senator Stevens and other Senators, 
have been very interested. In fact, as the Chairman knows, the 
Subcommittee held an important hearing last year on ATV safety.
    Another of our current rulemakings relates to portable generator 
safety, a subject in which Senator Bill Nelson has been very active, as 
well as has Senator Cantwell. The CPSC has been aggressive in 
disseminating our safety message on portable generators in states like 
Florida and Washington during their severe weather over the past couple 
of years, and we certainly appreciate the Senators' interest, support 
and encouragement with these efforts as we proceed on both of these 
rulemakings.

Product Recalls
    Recalls occur for products that contain a defect that poses a 
substantial product hazard or for products that violate CPSC-issued 
mandatory safety regulations.
    In Fiscal Year 2006, the CPSC announced 471 product recalls 
(representing over 120 million individual products), an all-time record 
for the agency. These recalls represented a wide range of consumer 
products and product hazards. Two-thirds of these recalls were of 
imported products, primarily from China.
    Products that may be subject to a recall are identified through 
reports from consumers, through our own investigations and through 
reports from companies.
    Under Section 15 of the Consumer Product Safety Act, companies are 
required to report to the CPSC whenever they obtain information that 
any one of their products fails to comply with an applicable consumer 
product safety rule, contains a defect which could create a substantial 
product hazard, or creates an unreasonable risk of serious injury or 
death. If the Commission determines that notification is required to 
protect the public, CPSC staff contacts the manufacturer, distributor 
or retailer and works closely with the company to give notice and 
undertake a recall or other corrective action voluntarily. CPSC staff 
works to make certain that the notice and the corrective action are 
executed in a manner that optimizes consumer safety as expeditiously as 
possible.
    If necessary, the Commission may order a company to undertake a 
recall, after affording the interested party an opportunity for a 
hearing as required by CPSC's governing statute. CPSC's experience 
shows this to be a time-consuming and resource-intensive action; 
voluntary recalls are preferred because they can be conducted more 
quickly and offer more immediate protection to the public.
    In addition to monitoring compliance with safety standards by 
conducting field inspections of manufacturing facilities and 
distribution centers, CPSC staff also conducts surveillance in retail 
establishments and via the Internet to assure ourselves that recalls 
have been effective in getting defective products off retail shelves.
    Finally, because most of our recalls involve imported products, we 
undertake both routine and targeted surveillance and sampling of 
imported products at U.S. ports of entry, working in conjunction with 
the Bureau of Customs and Border Protection.

Information and Education
    Recalls are announced and other important product safety 
information is disseminated through all forms of media to warn the 
public of specific product hazards and advise consumers on more general 
product use issues.
    In addition, the agency maintains three websites that give 
consumers and others access to all manner of product safety 
information. Those sites are: www.cpsc.gov, www.recalls.gov, and our 
newest website, www.atvsafety.gov, which is part of a very significant 
information and education campaign now underway to advise consumers 
about a number of ATV safety issues. Visits to CPSC's websites have 
grown rapidly over the past few years from 200,000 in 1997 to over 20 
million last year.
    In an effort to communicate with hard to reach populations, the 
CPSC initiated the Neighborhood Safety Network, a grassroots outreach 
program that provides timely lifesaving information to 5,000 
organizations and individuals who in turn share our safety message with 
hard-to-target consumers.
    Our outreach efforts include making our product safety information 
available in Spanish. In fact, the CPSC maintains a Spanish language 
website. We are also active in signing up Hispanic groups to our 
Neighborhood Safety Network and reaching out through Spanish language 
media outlets like Telemundo and Univision.
    Our staff is also able to reach out to consumers to warn of 
emerging hazards or when emergencies strike. For example, in response 
to the devastating hurricanes along our Nation's Gulf Coast, the CPSC 
partnered with the Florida, Mississippi, Alabama and Louisiana 
Departments of Health, Federal disaster agencies, the Red Cross and 
local emergency management agencies. We warned residents of the carbon 
monoxide hazards associated with improper portable generator use and 
also the dangers that consumers may encounter when returning to their 
property, including electrical, gas and standing water hazards.

Information Technology and Data Collection
    All of these activities require collecting reliable data on 
product-related incidents and issues. And the CPSC collects a lot of 
data, most notably through our National Electronic Injury Surveillance 
System, or NEISS. NEISS is a statistical hospital-based product injury 
reporting system widely regarded as the best such system in the world, 
and which the Centers for Disease Control and Prevention and many other 
Federal, state, local, and even international government agencies rely 
upon to carry out their missions. We also collect data through our 
website, www.cpsc.gov, our consumer hotline, medical examiner and 
coroner reports, and a variety of media source reports. As mentioned 
earlier, manufacturers and retailers are also required to report to us 
on certain product-related incidents.
    Obviously, CPSC's IT systems are central to the agency's safety 
mission. As veteran CPSC employees retire, the IT infrastructure has 
become increasingly essential to tracking and identifying emerging 
hazards at a state-of-the-art level. Accordingly, to keep existing 
systems operating and current, we are reallocating agency resources to 
maintain, and where necessary replace, aging network infrastructure and 
security features.
    This reallocation will help the CPSC in collecting the quality data 
that is essential to the agency's mission and that facilitates the 
early identification of product hazards. Quality data is critical to 
the agency's decisionmaking process as it relates to voluntary 
standards development, compliance, consumer education, product 
labeling, and rulemaking initiatives.

International Activities
    Two-thirds of our recalled products are imports, and two-thirds of 
those come from China. Recognizing the continuous and significant 
increase in the number of imported consumer products entering the 
American marketplace, the CPSC established the Office of International 
Programs and Intergovernmental Affairs to provide a comprehensive and 
coordinated effort to ensure greater import compliance with recognized 
American safety standards. The CPSC is determined to make certain that 
imports meet the same high safety standards that products manufactured 
in America must meet.
    However, we have found that many overseas manufacturers, 
particularly those from the developing world, are either ignorant of 
existing consensus and CPSC mandatory standards or simply choose not to 
design and manufacture their products to those standards. While a 
violation of a consensus standard does not, in itself, indicate a 
product is unsafe, the growing number of imported products that do not 
meet voluntary standards has strained our resources and challenged us 
to find new ways to work to ensure the safety of products in the stream 
of commerce.
    To address the issues presented by imported products, the CPSC has 
negotiated Memoranda of Understanding with a number of foreign 
countries. These agreements generally call for close consultation on 
product safety issues. We are also anticipating our second U.S.-Sino 
Product Safety Summit this Fall, and in preparation for that, we have 
established several bilateral product-specific working groups that are 
developing concrete strategies for addressing the issue of unsafe 
imports. We are also working with various associations and standards 
groups to assure that a strong safety message is being delivered to 
Chinese manufacturers and exporters.

Management Efficiencies
    Despite its relatively small size throughout its history, the CPSC 
has been highly effective and efficient at reducing product-related 
injuries and deaths. Within the parameters of its available resources, 
the challenge at the CPSC has always been to establish the highest 
safety priorities among the 15,000 product types under the agency's 
jurisdiction. The agency bears a broad responsibility, but with few 
exceptions, the record shows that the CPSC has performed effectively 
and efficiently in assuring the safety of the tens of thousands of 
consumer products that enter American homes every year.
    To keep the focus of our resources on our safety mission, we have 
worked arduously to generate savings and implement efficiencies to 
offset the cost increases that we confront annually. For example, the 
agency has saved over $1 million dollars per year because IT 
investments have allowed us to close field offices and support 
teleworking. Additionally, the agency foresees savings in rent at our 
headquarters in suburban Maryland as we begin to consolidate space to 
accommodate lower staff levels.
    I know that the Senators are aware of our staff levels, and as with 
any organization, the challenge with fewer staff is to continue to 
maintain the agency's high standards and to achieve the agency's 
mission. With the help of management efficiencies and information 
technology, we at CPSC are doing that, and we will continue to strive 
to accomplish that because CPSC's safety mission is so critically 
important to the health and well-being of America's families.
    Mr. Chairman, the CPSC logo represents the gold standard of 
consumer product safety, and I am proud of what the agency has 
accomplished and of the many fine professionals at the CPSC who work to 
keep hazardous products off the market. The staff at the CPSC is 
talented and resourceful. They include epidemiologists, toxicologists, 
engineers, chemists, and many others whose skills are highly sought and 
highly rewarded by the private sector. However, like you, they have 
chosen public service and serve no interest but the public interest. I 
am pleased and proud to serve the American people with them.
    Thank you for your support, and I look forward to answering your 
questions.

    Senator Pryor. Thank you.
    Commissioner Moore?

       STATEMENT OF HON. THOMAS H. MOORE, COMMISSIONER, 
            U.S. CONSUMER PRODUCT SAFETY COMMISSION

    Mr. Moore. Thank you, Mr. Chairman, Mr. Ranking Member, and 
members of the Subcommittee. I am here to provide testimony, as 
you have noted, on issues related to the reauthorization of the 
United States Consumer Product Safety Commission, CPSC.
    The Commission, as you have stated, is charged by Congress 
with the critical responsibility of protecting the American 
public against unreasonable risk of injuries and deaths 
associated with unsafe consumer products. Indeed, protecting 
life is a crucial responsibility. Our work has resulted in an 
almost 30 percent decline in the rate of deaths and injuries 
related to hazardous consumer products since 1974.
    It has been stated, I think, that despite significant 
reductions there remains on average about 27,100 deaths and 
33.1 million injuries each year related to products under our 
jurisdiction. Moreover, the deaths, injuries, and property 
damage associated with unsafe products cost the Nation over 
$700 billion annually.
    Now, CPSC is a staff-intensive organization, with nearly 90 
percent of its funding allocated to staff compensation and 
staff-related space rental cost. At the heart of CPSC's 
operation is its staff, without question our greatest and most 
important asset.
    For Fiscal Year 2008, the President's request for our 
agency is $63,250,000, which is an increase of $880,000 above 
our Fiscal Year 2007 requested funding level, and will support 
the agency at approximately 401 FTEs. The request for Fiscal 
Year 2008 represents a reduction--a reduction--of 19 full-time 
equivalents.
    As in the previous 2 years, we estimate that we will again 
be able to achieve these reductions through attrition, but we 
have reached a point where all are very concerned about the 
long-term impact of these continuous staff reductions on our 
agency. There are indications that the cumulative 3-year staff 
reduction of 15 percent, from 471 to 401, is going to make it 
difficult for us to maintain the broad range of skilled staff 
we need to address the full scope of injuries and deaths 
related to the 15,000 types of products under our jurisdiction.
    This erosion of our most valuable asset comes despite the 
fact that we still have over 15,000 types of consumer products 
under our jurisdiction; creative new technologies constantly 
introduce potentially new product hazard issues; new consumer 
uses for products originally created for commercial use are 
being introduced; imports are increasing, many from countries 
that may not have similar consumer product safety standards; 
and, as I previously mentioned, despite the fact that we still 
face over 27,000 deaths and over 33 million injuries each year 
associated with consumer products under our jurisdiction.
    I believe that regulatory policies should recognize that 
the private markets are the best engines for economic growth. 
Regulation, therefore, should be cost-effective, consistent, 
sensible, and understandable. Whenever appropriate, we 
encourage voluntary industry action to address safety 
requirements.
    I point out to you that in 2006 alone, the Commission 
completed 471 cooperative recalls, 100 percent voluntary, 
involving nearly 124 million consumer product units that either 
violated mandatory standards or presented a substantial risk of 
injury to the public. Since 1990 we have worked cooperatively 
with industry to complete 352 voluntary safety standards while 
issuing only 36 mandatory safety standards. That is nearly a 10 
to 1 ratio.
    Effective voluntary action--effective voluntary action--is 
always preferable. However, if safety is not the goal of a 
certain industry or manufacturer, the commission must stand 
ready to protect the consumer expeditiously and without 
compromise. The key to the Commission's continued success is 
funding--is funding--to successfully continue the mission of 
the agency. The commission must have the resources to respond 
quickly and effectively where the lives and health of the 
American public are at risk.
    I thank the Subcommittee for allowing me to address my 
concerns at this hearing, and I look forward to working with 
you and your staff in this reauthorization process. Thank you 
very much.
    [The prepared statement of Mr. Moore follows:]

       Prepared Statement of Hon. Thomas H. Moore, Commissioner, 
                U.S. Consumer Product Safety Commission

    Mr. Chairman and Members of the Subcommittee, I appreciate the 
opportunity to appear before you today to provide testimony on the 
United States Consumer Product Safety Commission (CPSC). The Commission 
is charged by Congress with the critical responsibility of protecting 
the public against unreasonable risk of injury and death associated 
with consumer products. This is a crucial responsibility because, often 
without CPSC's intervention, the consequences of exposure to the 
hazards associated with dangerous products may literally be of a life 
and death nature for individual consumers unknowingly in possession of 
unsafe consumer products.
    As you are aware, CPSC has not been reauthorized since 1992 and has 
not had a reauthorization hearing before this body since 2003. Although 
these proceedings could be an exceedingly intensive undertaking for the 
CPSC, I welcome this reauthorization process because I believe it 
presents a unique and much needed opportunity to focus on the 
Commission's present and future agenda.

The Mission
    In examining the legislative history of the statute creating the 
CPSC 30 years ago, we find that Congress, in its wisdom and foresight, 
was concerned about technological advances creating a variety of new 
products with greater potential for injury which would be less easily 
recognized and comprehended by the American consumer. Congress 
recognized that the dramatically increasing number of consumer 
products, and the consumer's increasing reliance on more complex labor 
saving and recreational devices, would create increasing risk of injury 
from their use. Additionally, continuing product development 
demonstrated that previously acceptable risk levels were no longer 
reasonable in light of available safety technology.
    Today, the risk of injury and death from unsafe consumer products 
continues to be enormous and costly. CPSC's mission is to protect 
children and families against unreasonable risk of injury and death 
from about 15,000 types of consumer products. Our work has contributed 
significantly to the substantial decline in the rate of deaths and 
injuries related to hazardous consumer products since the agency's 
inception. However, despite significant reductions over the years, 
there remains on average over 27,100 deaths and 33.1 million injuries 
each year associated with consumer products under CPSC's jurisdiction.
    Today, our reliance on consumer products in our lives is tremendous 
and growing. We rely on manufactured electrical and mechanized devices 
to assist us in too many of life's activities to mention--at play, at 
work, in education, in travel, and particularly inside and outside of 
the home: in food preparation, in cleaning and making repairs around 
the home, in child-care, in trimming trees and grass, and on and on and 
on. To further complicate matters, we are beginning to see that more 
and more of these products are being manufactured abroad.
    It is suggested in some circles that the modern, sophisticated 
marketplace of today can effectively regulate itself for product 
safety. I strongly submit that the previously discussed justification 
for governmental involvement in the protection of the consumer's right 
to safety is even more compelling today than it was more than 30 years 
ago. Simply stated, competition and voluntary actions of today's 
businessmen do not always suffice to safeguard the public interest. 
Competition does not and will not inevitably take the form of a rivalry 
to produce the safest product. The role of the CPSC in today's consumer 
product marketplace remains compelling, substantial and relevant.

CPSC's Budget and the Impact of Staff Reductions
    For Fiscal Year (FY) 2008, the President's request for our agency 
is $63,250,000 which is an increase of $880,000 above our FY 2007 
requested funding level and will support the agency at approximately 
401 FTEs. If measured against our FY 2007 authorized FTE level, the 
request for FY 2008 represents a reduction of 19 FTEs. As in the 
previous 2 years, we estimate that we will again be able to achieve 
these reductions through attrition, but we have reached a point where 
we are very concerned about the long-term impact of these continuous 
staff reductions on our agency. There are indications that the 
cumulative three-year staff reduction of 15 percent, from 471 to 401, 
is going to make it difficult for us to maintain the broad range of 
skilled staff we need to address the full scope of the 15,000 products 
under our jurisdiction.
    CPSC is a staff intensive organization with nearly 90 percent of 
its funding allocated to staff compensation and staff-related space 
rental costs. At the heart of CPSC's operation is its staff, without 
question, our greatest and most important asset. Over the last few 
years, because we have achieved our budget required staff reductions 
through non-targeted means such as attrition, early-outs and buy-outs, 
we have lost some very key staffers. For example, just to name a few, 
we have lost key experts in these areas:

   Poison Prevention,

   Chemical hazards as they relate to the Federal Hazardous 
        Substances Act,

   Compliance of toys,

   Drowning prevention,

   Data collection and analysis,

   Emerging hazards,

   Fire-related hazards, and

   Legal knowledge of CPSC's regulatory process.

    Over time we hope to be able to train replacements, but the 
experience in these areas that we have lost will take years to recover. 
Moreover, our ability to do succession planning is severely limited 
because of a lack of resources and our inability to have depth of 
personnel behind our key positions (no bench). In addition, dwindling 
resources and staff reductions have had some negative impact on our 
agency's ability to attract high level qualified candidates for our 
critical vacancies as well as our ability to retain some of our own top 
level employees.
    There is no doubt that the President's funding proposal for FY 2008 
presents challenges, particularly in light of the fact that this would 
be our third consecutive year of staff reductions. As I have indicated, 
since FY 2005, CPSC has been forced to reduce its funded FTE level by 
15 percent from 471 to the FY 2008 proposed level of 401. This erosion 
of our most valuable asset comes despite the fact that we still have 
over 15,000 types of consumer products under our jurisdiction; creative 
new technologies constantly introduce potentially new product hazard 
issues (nanotechnology, Internet sales); new consumer uses for products 
originally created for commercial use are being introduced (portable 
gas powered generators); imports are increasing, many from countries 
that may not have similar consumer product safety standards (ATVs, 
cigarette lighters); and, as I previously mentioned, despite the fact 
that we still face over 27,100 deaths and over 33.1 million injuries 
each year associated with consumer products under our jurisdiction.
    Our Field Division, which was combined with the Office of 
Compliance in 2005, has probably been the most affected. Since 
September of 2003, we have lost 43 people in the Field, 30 of which 
have not been replaced. Another 15 people left Compliance, six of whom 
were not replaced. One of the important duties of our Field staff was 
to provide outreach to local communities. We had public affairs 
specialists throughout the country that would appear on local 
television and radio shows, getting the Commission's message out at the 
local level. They would network with local affiliates of national 
organizations, such as Safe Kids, and make presentations to many 
different types of community groups. This was in addition to doing work 
for our Hazard Identification Division and doing work for Compliance 
(including trying to monitor the growing influx of imports at our port 
cities). In other words, they used to serve all three main areas of 
Commission work. Now they are primarily an investigative arm of 
Compliance. Their ability to do outreach at the State and local level 
has been largely eliminated. We lost creative, aggressive public 
relations specialists in the Field who had developed contacts over many 
years because they did not want to become mere investigators. I don't 
think we can be effective doing all of our outreach and education and 
information campaigns from headquarters, over the Internet or through 
our Neighborhood Safety Network. But, the reality is that we can no 
longer afford to do all we use to do to serve the American public and 
this is an area that has suffered greatly.

Addressing Product Safety Hazards Through Enforcement
    Aside from using its rulemaking authority, CPSC can act forcefully 
and quickly to remove dangerous products from the marketplace through 
two main enforcement activities. The first is in vigorously enforcing 
its current regulations; and the second is in utilizing its Section 15 
authority to achieve recalls or corrective action plans when it is 
believed that a product meets the level of a substantial product 
hazard. I point out to you that in 2006 alone, the Commission completed 
471 cooperative recalls (100 percent voluntary) involving nearly 124 
million consumer product units that either violated mandatory standards 
or presented a substantial risk of injury to the public.
    In addition, CPSC staff, working with the U.S. Customs and Border 
Protection (CBP), prevented about 2.9 million noncompliant cigarette 
lighters and fireworks from entering the U.S. and also prevented 
434,000 units of toys and other children's products from entering the 
country. Unless interdicted, those goods would have competed with U.S. 
manufactured products, often undercutting them on price because the 
foreign manufacturers did not bother complying with our safety 
regulations. Our efforts to keep these violative products out of the 
marketplace protect not only the American consumer, but the American 
manufacturer as well.
    In the future, the problems associated with increasing numbers of 
possibly dangerous imported products will present the Commission with 
more and more of a challenge. Increasing numbers of U.S. companies are 
either importing finished products or component parts made in other 
countries or establishing their own production plants outside of the 
U.S. In most cases, domestic companies are not going to have the same 
degree of control over these products as they would have if their 
products were being made in this country. This inability to have 
constant hands-on supervision can result in products entering this 
country that do not meet U.S. safety standards.
    When products are required to meet a Federal mandatory standard, we 
can try to stop them at their port of entry before they get into the 
hands of consumers. CBP is very cooperative in helping us identify and 
sequester products that are potentially violative. However, both CBP 
and CPSC have limited manpower to inspect and test these products, 
relative to the tens of thousands of shipments that arrive daily at 
U.S. ports. Additionally, CBP has a much broader national security 
mandate that takes much of its resources.
    We currently have five people cleared to use the CBP's computer 
system, the Automated Commercial System (ACS) database, and perhaps a 
total of 15 people to go to various ports around the country to inspect 
shipments that have been identified as possibly not meeting our safety 
standards. These inspectors do this in addition to the many other 
responsibilities that they have. CPSC simply doesn't have the personnel 
to do more than a cursory look at imports coming into this country. As 
I have indicated, in the last several years we have lost 30 Field 
personnel, largely as a result of budget cuts, who we have not been 
able to replace. This has impacted our entire Field operation, 
including port inspections. The new CBP computer system will help, but 
nothing can substitute for actually examining a shipment. Thus, we are 
frequently left to deal with products after they are in the stream of 
commerce, through our recall mechanism, which can often come after the 
product has already injured consumers.
    Requiring a manufacturer, distributor or retailer to recall 
defective products is a primary mechanism in CPSC's continuous 
undertaking to address product safety hazards. However, announcing the 
recall is just one step in an overall process of eliminating the 
hazards presented by unsafe products in consumer's homes. We also have 
some responsibility to take all reasonable steps to ensure the removal 
of those unsafe products from potential consumer use. Given the 
limitations presented by CPSC's resources, it is tremendously important 
that the Commission maximize the effectiveness of this particular 
aspect of the recall process.
    Another issue in the enforcement area lies within the civil penalty 
arena. I have supported, and continue to support, the elimination of 
the monetary cap on civil penalties. While the cap does rise 
periodically, the reality is that a $1.825 million fine means very 
little to many of the corporations we regulate. Why do we need a cap at 
all? While Congress may want to take another look at the guidance given 
to us in the form of factors we shall consider when determining the 
amount of a civil penalty, we should not have any limit on the amount 
we can seek. It is one thing to limit the amount one consumer can 
recover against a company (and not a position I necessarily support 
either), but it is quite another to limit the government's ability to 
penalize a company on behalf of all consumers, thereby limiting the 
deterrent effect of civil penalties. Perhaps some companies would be 
less likely to try to stall our agency by putting off reporting 
hazardous products if we had penalties that were more commensurate with 
the harm they can cause.

CPSC's Important Safety Work Must Continue
    By most current measures, CPSC still provides both tremendous 
service and tremendous value to the American people and we are very 
proud of our staff's accomplishments. Our agency is the major factor in 
the substantial decline in the rate of deaths and injuries related to 
consumer products since 1974. During that time, through our standards 
work, compliance efforts, industry partnerships, and consumer 
information, there has been a 45 percent reduction in residential fire 
deaths, a 74 percent reduction in consumer product-related 
electrocutions, a 47 percent reduction in consumer product-related 
carbon monoxide deaths, an 82 percent reduction in poisoning deaths of 
children younger than 5 years of age, an 84 percent reduction in baby 
walker injuries and a 89 percent reduction in crib-related deaths.
    Moreover, in FY 2006, we informed the public of hazardous products 
through 435 press releases, 12 video news releases and more than 1 
million distributed publications while conducting about 500 television 
and radio interviews. CPSC also warned the public about product-related 
hazards through our hotline and consumer product safety information 
websites (www.cpsc.gov, www.recalls.gov, www.atvsafety.gov), which 
reached over 21 million consumers in 2006, and other outreach 
activities such as the Neighborhood Safety Network (NSN). The NSN 
outreach goal is to reach underserved consumers who may not routinely 
receive important safety information due to lack of access or exposure 
to the general means that we use to disseminate our safety messages and 
warnings.
    Additionally, in FY 2006, the Office of Management and Budget (OMB) 
reviewed CPSC using their Program Assessment Rating Tool (PART) and 
assigned us a rating of ``Effective.'' This is the highest rating a 
program can achieve and signifies that, based upon OMB's criteria; CPSC 
sets ambitious goals, achieves results, is well-managed and improves 
efficiency.
    These numbers and activities by themselves demonstrate the 
indisputable consumer product safety role that the Commission continues 
to perform for the American consumer despite our shrinking resources. 
However, we have to be mindful of the fact that resource limitations 
and staff reductions have challenged and will impact our ability to 
fully respond to consumer product safety issues presented by the broad 
range of products under our jurisdiction. For example, with respect to 
FY 2008, although we will continue our work in reducing child drowning 
deaths at the annual project level, we will no longer address this area 
at the level of a strategic goal because resource limitations is a 
factor. At some point in the future, the Commission will make the 
ultimate determination but additional projects that could be delayed/
deferred in the FY 2008 budget include:

   Bedclothes flammability,

   Development of projects dealing with emerging hazards such 
        as consumer electronics,

   Support for voluntary standards and code revisions for fire 
        sprinklers, lighting, ladders and ride-on mowers,

   Data analysis and technical review activities for smoke 
        alarms, extension cords, temperature controls, glass top 
        furniture, children's scald burns, child gate latch durability, 
        and toy impact resistance guidance.

    We at the Commission strongly feel that many, many deaths and 
injuries have been prevented as a result of the heightened attention 
given to safety issues by manufacturers and consumers due to CPSC's 
leadership. The product safety landscape is ever evolving because of 
more technologically complex products as well as a greater emphasis on 
imports. The results of our activities clearly illustrate the benefits 
of CPSC's Federal presence in today's consumer product marketplace and 
therefore provide substantial justification for present and future 
consideration for keeping our safety programs intact.

Emerging Technologies
    The American consumer wants everything electronic to be smaller, 
faster, longer-lasting and more powerful. Nowhere is this more evident 
than in energy storage devices for cell phones, laptops, PDAs and other 
portable electronic devices. One result of this trend is the lithium-
ion battery which first appeared commercially in 1991. Over time we 
have seen problems develop with the use of these batteries when, for 
example, they are put into too small a space or the device they are in 
is dropped. CPSC, in conjunction with several companies, recalled more 
than four million laptop batteries last year because of overheating 
which either did, or could, lead to a fire. The chemical configuration 
of the lithium-ion battery is constantly evolving, with changes being 
made every few months. It is challenging for the battery manufacturers 
themselves to keep up with the developing technology, let alone the 
CPSC.
    Another innovation finding its way into batteries and thousands of 
other products is nanotechnology. This is the ability to alter and 
create materials at the sub-atomic level. The physical properties of 
materials can change as they shrink to nanometer size. How to determine 
what human health and safety risks these changed materials may pose 
when used in consumer products will be a major challenge for our 
agency. I do not pretend to understand nanotechnology and our agency 
does not pretend to have a grasp on this complicated subject either. 
For Fiscal Year 2007, we were only able to devote $20,000 in funds to 
do a literature review on nanotechnology. Other agencies are asking 
for, and getting, millions of dollars for research in this area. Given 
the many products already on the market using nanotechnology, from 
computer chips to Dockers pants, I do not think 
it will be too long before the agency is asked to assess the risks of 
nanotechnology use in some consumer product under our jurisdiction. At 
this point in time we would be hard-pressed to make such an assessment. 
We simply do not have the resources to get up to speed in this area. We 
are forced to devote our limited resources to the hazards with which we 
have experience, such as fires, carbon monoxide poisoning and 
electrocutions.
    Our main challenge, no matter whether it is keeping up with imports 
or understanding new technologies, is resources. When forced to make 
hard choices we have to opt for what it is possible for us to 
accomplish, given the personnel we have and the limited dollars we have 
to spend. We do not have the luxury of getting ahead of a problem, we 
have to wait until one develops and then try to solve it, usually after 
it has killed or injured consumers. This dilemma is causing many 
sleepless nights for some CPSC staffers. With the help of the 
administration and Congress, we have to get beyond our present posture 
of thinking of how we can do without and move to the position of 
thinking of what more we can do.

Present and Future Activities
    I strongly feel that the role of the Commission is essential to the 
U.S. marketplace in an increasingly competitive international 
marketplace. The Consumer Product Safety Commission and the marketplace 
must work together to develop international consumer product safety 
standards and enforcement compatibility so we can enhance international 
trade and export opportunities without lowering U.S. safety standards.
    With approximately three-quarters of our recalls comprised of 
foreign manufactured products and over half of total recalled products 
originating in China, CPSC must establish a definitive strategy for 
increasing compliance of foreign manufactured products with U.S. safety 
standards. With that goal in mind, the Commission established the 
Office of International Programs and Intergovernmental Affairs. Through 
the efforts of this office, CPSC has signed 12 Memoranda of 
Understanding with its government counterparts abroad, including China. 
These agreements seek to establish closer working relationships between 
the signatories, as well as provide a formal mechanism for exchange of 
information. Interdisciplinary technical teams have also been 
established to determine in what areas Chinese manufacturers are more 
consistently noncompliant and to develop strategies for increasing 
compliance in those areas. In addition, other strategies for increasing 
the compliance of imported products with U.S. safety standards are 
being evaluated.

Conclusion
    In closing, while I believe that consumers must take responsibility 
for their own safety, there clearly is a role for the CPSC to assure 
that products are designed safely and recalled where there is a 
problem. I think that consumers should be informed about the products 
they purchase and take reasonable care in using them. Mr. Chairman, I 
believe that our government is now attempting to move into a new era of 
accountability. It is my hope that this will be an era where well 
reasoned, and I emphasize the word reasoned, government action will be 
the rule, and not the exception.
    I also think that reasoned Commission action reflects a pragmatic 
approach to resolving safety problems and recognizes that regulation is 
only one of many options that can be employed to address safety issues. 
We will work actively to achieve safety goals, and I expect, as is 
often the case, industry will respond reasonably. But, if safety is not 
the goal of a certain industry or manufacturer, the Commission stands 
ready to protect the consumer expeditiously and without compromise.
    As Congress envisioned more than 30 years ago, the Commission 
should have the capability to handle increasingly technologically 
complex products as well as the capability to uncover high injury risks 
and defective products using today's sophisticated data sources. To 
successfully continue the mission of the agency, the Commission must 
have the resources and the flexibility to respond quickly and 
effectively to critical situations where the lives and health of the 
American public are at risk.
    I would like to thank the Subcommittee for allowing me to address 
my concerns at this hearing and I look forward to working with the 
Members of the Committee and its staff in this reauthorization process.
    Thank you.

    Senator Pryor. Thank you, and thank you both for keeping 
your comments to 5 minutes. Senator Sununu has to leave in just 
a few moments, so normally I would start by asking questions, 
but I'll let him go first because he has some scheduling 
constraints.
    Senator Sununu?
    Senator Sununu. Thank you, Mr. Chairman. In truth, Senator 
Pryor wants me to go first because he thinks all my questions 
are softballs----
    [Laughter.]
    Senator Sununu.--so we're going to give you an opportunity 
to warm up a little bit----
    Senator Klobuchar. Exactly.
    Senator Sununu.--and then he'll come in with the heavy 
artillery.
    Senator Pryor. Yes. Once we get him out of the room, we'll 
get some things done around here.
    [Laughter.]
    Senator Sununu. Ms. Nord, as I understand it, the 
commission currently doesn't have a quorum under which it can 
operate, and you pushed for a number of action items prior to 
losing that quorum in January. Are there any pending items, or 
items you see on the horizon, that you think aren't being 
addressed at the moment because of the lack of a quorum?
    Ms. Nord. Senator, you are correct. The commission does not 
have a quorum by operation of our statute. We did anticipate 
that we would go for a period of time without a quorum. That 
has happened in the past, and indeed prior to my confirmation 
the commission I think went for five or 6 weeks without a 
quorum.
    So it is something that we're familiar with, and we do plan 
when we anticipate that this is going to happen. Prior to 
losing the quorum, we pushed out, if I may use that phrase, a 
number of regulatory proposals, including a very important 
final rule dealing with generator safety, an advance notice of 
proposed rulemaking which would potentially ban lead in 
children's jewelry, and a number of other regulatory 
proceedings.
    Because we pushed those proposed proceedings out there, we 
are now at this point collecting comments from the public, and 
the staff is doing their work. So right now, today, if we had a 
quorum, there really wouldn't be anything teed up for 
commission action. However, as months pass and the staff does 
their work on these issues, there will become issues that will 
be ripe for commission action, so it really is very important 
for us to get our quorum back.
    Senator Sununu. When does it become a problem?
    Ms. Nord. I would be giving you an off the top of my head 
response, sir, because each of these regulatory proceedings is 
different from another, but I am not aware right now of any 
proceeding that is ripe for action, that is sitting there 
waiting for the commission to vote. But, again, that's 
dependent on how quickly the staff does their work and tees 
these things up.
    Senator Sununu. In your testimony you talked about the 
importance of IT, information technology, and data collection. 
How much of your budget do you put into IT and data collection 
efforts?
    Ms. Nord. This is the very first time that the commission 
has put in place a line item, if you will, a part of its base 
that is allocated to information technology, which I just find 
very, very surprising. The way we have done this in the past is 
basically pull from savings, and it has been a rather ad hoc-
ish way of proceeding. But this year, because IT is so 
important, and because it is getting so much more important, 
these are really critical tools that we need in order to do our 
job, so we have really got to plan for this.
    Senator Sununu. What is the amount of the----
    Ms. Nord. It's $1 million.
    Senator Sununu. $1 million? So 3 percent?
    Ms. Nord. It's $1 million, and frankly, sir, what that does 
is allow us to maintain our current systems, to replace 
hardware on a schedule, to make sure that our software licenses 
are up to date.
    Senator Sununu. How does that compare with other Federal 
agencies? I would imagine that would be dramatically lower.
    Ms. Nord. I would have to come back to you with that 
information.
    Senator Sununu. What are the most effective and/or most 
important pieces of information technology or data collection 
that you are using at the moment?
    Ms. Nord. Information technology has allowed us to become 
much, much more efficient than we were in the past. We have 
automated a number of our processes, and consequently are able 
frankly to do more with less.
    Senator Sununu. In what areas, for example?
    Ms. Nord. Well, to give you a couple of examples, Section 
15 of the Consumer Product Safety Act requires people to report 
potentially dangerous products to us. We have tried to automate 
all that reporting, the data collection, and the data 
distribution within the agency, and that has resulted in a 
much, much quicker processing of these Section 15(b) reports.
    Senator Sununu. When did that begin? How long have you 
been----
    Ms. Nord. I'd like to come back to you. My recollection is, 
it's about 18 months ago, but I'd like to come back to you with 
a precise answer.
    Senator Sununu. That would be fine.
    Ms. Nord. Another example, we have people, State and local 
officials, who partner with us in all 50 states, and we 
contract with them to basically help us be another set of eyes 
and ears on the ground, if you will. And we have now automated 
the reports that they send us, so that they are coming in on 
the web, and that has made again the processing of that 
information so much more efficient. It's coming in 
electronically and it's coming in consistently.
    Senator Sununu. And that has happened, similarly, in the 
last year to 18 months?
    Ms. Nord. Again, I'd like to get back to you, but that is 
my recollection.
    Senator Sununu. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Pryor. Now we also have a circumstance where 
Senator Klobuchar has to preside in the Senate here in the next 
few minutes, so we're going to let her go next.
    Senator Klobuchar?
    Senator Klobuchar. Thank you, Mr. Chairman.
    I wanted to follow up a little bit on the issue of the 
quorum that Senator Sununu raised. We're going on 3 months--is 
that right?--without a quorum.
    Ms. Nord. We lost the quorum on January 15th.
    Senator Klobuchar. OK, and you have acknowledged that there 
are these growing threats with technology and some of the new 
changes that are going on, and I would think that there would 
be some circumstances where some new threat would come up. It 
may not be something that you would have to hear in a matter of 
days, but you must have some opportunities and some ability to 
take some kind of emergency action, and I just don't understand 
how you can do this when you don't have a quorum.
    Ms. Nord. Right now we are continuing to conduct recalls at 
a record pace, and frankly that is the mechanism that we use to 
address those kinds of issues. And those are done at the staff 
level, so----
    Senator Klobuchar. Well, then, what does the Commission do? 
I mean, if you're doing all of this at the staff level, I would 
think the major decisions about rules and changes going forward 
within the ever-changing world of technology, would need a 
quorum. I practiced law in the regulatory area in Minnesota, 
and I just was never familiar with this, where we had an agency 
that didn't have a quorum.
    Ms. Nord. Well, as I indicated, unfortunately this is a 
situation that we have had to deal with from time to time. The 
commission votes on regulations. We vote to issue subpoenas, 
and a subpoena is generally issued after a fairly extensive 
back-and-forth between the staff and whoever is being----
    Senator Klobuchar. So you would not have any opportunity to 
issue subpoenas now when you don't have a quorum.
    Ms. Nord. That's right, but we also don't have any of those 
cases teed up.
    Senator Klobuchar. OK.
    Ms. Nord. We cannot accept settlements of more than 
$50,000. However, again, before we lost the quorum, the 
commission delegated to the staff the authority to accept 
settlement amounts on four particular cases that were in the 
final processes of being negotiated, so we tried to again 
address that concern.
    The commission would have to vote or would have to have a 
proceeding to determine that we had an imminent hazard, and 
that may be what you're addressing. However, in the history of 
the commission I think there has only been five instances where 
we have had an imminent hazard.
    Senator Klobuchar. Do you know what those instances are?
    Ms. Nord. I don't, but I'll surely get back to you.
    Senator Klobuchar. I mean, I'm just picturing if we were at 
a place in time, we would certainly want to have a quorum to 
deal with them.
    I just want to follow up on something you just said about 
the record number of recalls. I would think, then, that this 
shows that the risk of consumer products is going up, not down, 
and especially when we see, as I mentioned, these products 
coming in, the imports coming in from places, primarily China. 
I am still very confused about why we would be seeing staffing 
levels going down when you have these kinds of clearly rising 
problems.
    Ms. Nord. With respect to whether more recalls indicates 
more unsafe products, what I think it actually indicates is a 
couple of things: First of all, a growing economy, more people, 
more products, so you would expect to see that. It also shows 
that the current legislative strategy that was envisioned in 
the Consumer Product Safety Act 35 years ago is working quite 
well.
    Not only have we had a record number of recalls, ma'am, but 
we have also had a record number of reports under Section 
15(b), which means that more and more companies are reporting 
to us, and we are then basically going through those reports, 
making determinations: this is a problem, this isn't a problem. 
So frankly it shows that the Commission is really doing its job 
very effectively.
    Now as to how we do that with fewer people, as I indicated, 
part of the answer to that is the fact that we are becoming 
much, much more efficient at doing this. Technology, I can't 
emphasize to you enough how important technology is to us in 
doing our job.
    Senator Klobuchar. Mr. Chairman, if I could just ask one 
more question? I'm going to view that as a ``yes.''
    [Laughter.]
    Senator Klobuchar. That was a little joke, Mr. Chairman. I 
was just asking if I could ask one more question.
    Senator Pryor. Ask away.
    Senator Klobuchar. Thank you.
    You know, I appreciate your kind words about your staff and 
being more efficient, but when you look at the fact that some 
of these products are even getting in the hands of kids and 
people in our country, I think that points us toward this issue 
of import surveillance. My understanding is that CPSC has very 
limited import surveillance.
    What I'd like to see is that we would be catching these 
products before they get into the hands of the public, and that 
the current Office of International Programs is not enough to 
do this. Could you comment on that?
    Ms. Nord. Yes. I think imports is one of our biggest 
challenges, and it's something that we really need to do more 
work to get our hands around. The number of imports has 
burgeoned over just the last couple of years, and it is a 
challenge for us.
    We are trying to address it in a couple of different ways, 
ma'am. First of all, we do have a good, strong, close working 
relationship with Customs, and I would like to make sure that 
that relationship is even closer. We have CPSC people in the 
major ports. For example, out in Long Beach our CPSC Compliance 
Officer is a former Customs agent, and she works very, very 
closely with Customs out in Long Beach, which is the major port 
where these products are coming in.
    We are also now in the process of entering into a 
relationship with Customs whereby we will become authorized to 
use what's known as their Automatic Commercial Environment, 
which is basically a computer system of all shipments that are 
coming into the United States. Obviously, we need security 
clearance to do that, and we've got five or six of our customs 
people already cleared to begin using this process. We've been 
doing it informally, but we're going to now formalize that 
arrangement and expand it so that we have a better sense of 
what shipments are indeed coming in and we can pinpoint them 
more precisely for Customs to inspect.
    But the biggest challenge and the biggest--well, the best 
way to solve this problem is to make sure that the unsafe 
products don't ever get onto the boat and come to the United 
States, and that really is the challenge. We've got to work 
with the Chinese government and other foreign governments to 
make sure that their manufacturers have the same sense of their 
responsibility here as U.S. manufacturers do. There are things 
that we can do and are doing with the Chinese government, and 
frankly there may be some statutory changes that need to be 
made in order to beef up our authorities there.
    Senator Klobuchar. Thank you.
    Ms. Nord. Thank you.
    Senator Pryor. Thanks, Senator Klobuchar.
    Let me ask, if I may, about the budget that you're under. 
Madam Chair, I understand that you support the President's 
budget but you would also like to see an increase in funding. 
Is that fair to say?
    Ms. Nord. As the Chairman of the CPSC, I support the 
President's budget, sir.
    Senator Pryor. And what about an increase in funding?
    Ms. Nord. If you were to increase our funds, I could 
certainly put them to good use.
    Senator Pryor. Yes. And if there is not an increase in 
funding, you're going to have to cut employees, as I 
understand?
    Ms. Nord. The budget request supports 401 full-time 
employees.
    Senator Pryor. Right, and you'll lose some, I guess, 19 
employees. I assume that you're going to tell me that you are 
better equipped to do your mission if you have more employees. 
Is that fair to say?
    Ms. Nord. Not necessarily. I think we need to make sure 
that we put our resources to the best use. In some cases it may 
be that technology is where we want to go. I mean, more people 
doesn't absolutely mean better compliance or better carrying 
out of our mission. I think we have to make sure that we've got 
the right mix there.
    Senator Pryor. Well, I understand the sort of hypothetical, 
general nature of your comments there. We're talking about the 
here and now with your agency.
    Ms. Nord. Yes.
    Senator Pryor. Would you be better served with more 
employees or not?
    Ms. Nord. Again, if we have more employees, I can put them 
to good use.
    Senator Pryor. OK. And do you think that you can make up 
for the loss of employees by better technology? I'm talking 
about this year.
    Ms. Nord. Technology is absolutely critical.
    Senator Pryor. I understand that, but I'm talking about 
this year. Can you make up for the loss of personnel with more 
technology?
    Ms. Nord. Sir, with 401 employees and--well, with the 
budget request that the President put to the Congress, we will 
do the job that we laid out in the budget. If you give us more 
employees, we presumably will do more. However, I just have to 
emphasize to you that we need to make sure that we have got the 
technical and the technology capabilities to have those 
employees working as efficiently as they possibly can.
    Senator Pryor. Well, you've been there 2 years. Are they 
doing that or not? Do you have the technology or not? I'm 
really not trying to argue with you. I'm trying to help you out 
here.
    Ms. Nord. Yes, I understand that.
    [Laughter.]
    Senator Pryor. I'm trying to increase your budget. I mean, 
I've been talking to colleagues in the Senate about trying to 
help CPSC. To me it's an agency in distress. I'm trying to get 
you some more money here, some more resources, but you tell me 
you don't need them?
    Ms. Nord. Let me tell you what I would do with more.
    Senator Pryor. In other words--let me stop here.
    Ms. Nord. OK.
    Senator Pryor. Let me ask the other Commissioner for his 
perspective on that.
    Would you like to see us, if we could find the money in the 
budget, would you like to see us increase your budget?
    Mr. Moore. Very definitely.
    Senator Pryor. And if we could get you more employees, 
would you be more able to do your job?
    Mr. Moore. Without question.
    Senator Pryor. And I understand the President's budget, and 
I understand how the budget works here, but if we could do 
that, in my view I think American consumers would be well-
served. Do you agree with that?
    Mr. Moore. Absolutely.
    Senator Pryor. OK. Let me move on, then, because I 
understand you're an administration appointee, and I understand 
sometimes you don't want to be in a position of conflicting 
with what the President's budget request is. But it seems to me 
that when you answered Ms. Klobuchar's question--and I'll go 
ahead and ask you, Madam Chair--it seems to me when you 
answered Ms. Klobuchar's question about imports--she called it 
import surveillance--about imports, it seems to me that you're 
in a much stronger position to monitor the imports if you have 
more people to do it.
    In other words, it seems to me, just as someone on this 
Committee, that you're shorthanded already. It's very hard for 
you to do your core mission already. And when you're faced with 
these enormous number of imports coming in, it seems to me 
you're better served by having more people to do that. Is that 
fair to say?
    Ms. Nord. Certainly we could put more people to work but, 
sir, that is only part of the answer. We need to make sure that 
we've got people working with the Chinese government to put in 
place strategies that are going to prevent unsafe products from 
getting on the boats and coming to the United States in the 
first place. And that is, I think, as important a part of the 
answer as it is having people----
    Senator Pryor. Let me ask this: Are you working on that 
right now?
    Ms. Nord. We are.
    Senator Pryor. OK, and are we making any progress there?
    Ms. Nord. We are making some progress. We are going to be 
sitting down in May for some major negotiations with the 
Chinese government on a whole series of types of consumer 
products. In the fall the Chinese government is going to be 
coming to Washington for the Second U.S.-Sino Safety Summit. I 
am hopeful that in the fall I can come back to you and report 
to you that we have made progress but, as I'm sure you know, 
sometimes in negotiations with the Chinese, you count progress 
in small steps.
    Senator Pryor. Yes, exactly. I mean, I think that's great. 
I think it's great you're meeting with them, but in the 
meantime I'm going to do my best to try to get you some more 
resources so you can do your job.
    Now let me ask--you mentioned, both of you in your 
testimony basically said that recalls are at a record level. I 
just want to tell you all, when I was the Attorney General of 
Arkansas, we had an experience in our house where someone saw 
one of our baby strollers or car seats, and it had been 
recalled, and we didn't know about it.
    And so I talked to my staff in the Attorney's General 
office--this is five, six, 7 years ago now--and actually we 
worked with the CPSC, with NHTSA, and with the FDA, I believe, 
and we did a deal where we hooked onto you all's websites and 
made that information available. And then what we did is, we 
publicized it all around the State of Arkansas to tell people 
there's one place to go for child product safety. We called it 
childproductsafety.com. There's one place to go. In fact, 
they're still doing it in the AG's office.
    And so I think what you all do is very valuable, I think 
it's very helpful. I think sometimes it's hard for people to 
find the information, and I would encourage you all to just 
consider ways to make that information more readily available. 
That's one of the challenges I think you face.
    But let me talk, if I can, about your facilities. I 
understand your lab is dilapidated, it's old, it needs 
improvement. Mr. Moore, let me ask you. Tell me about the 
condition of the lab. It's in Gaithersburg, Maryland, right?
    Mr. Moore. Yes.
    Senator Pryor. Tell me about the condition of the lab.
    Mr. Moore. Well, I'd have to review it again. I haven't 
been out there in a while. But in terms of the work that the 
staff does out there, I think it's very effective. There's a 
continuing need for equipment, but I don't know precisely what 
that equipment would be without consulting with the staff out 
there.
    Senator Pryor. For their expertise?
    Mr. Moore. Yes, yes, yes. I know we have a storage facility 
out there which is overfilled at this point, and it's a growing 
need. It's a growing need that grows over time. And if you 
don't mind, I'd like to talk with those people out there and 
get back with you.
    Senator Pryor. Sure, that would be great.
    Madam Chair, do you know anything about the lab, the 
facility?
    Ms. Nord. Yes, sir. Our laboratory facilities are located 
in Gaithersburg, Maryland. They are on a 1950s former Nike 
missile tracking site. It is not a very efficient operation 
from a physical layout standpoint. Our staff does a fabulous 
job in making do with resources that I frankly think are not 
adequate.
    We have had conversations with GSA over the past several 
years. GSA has been doing some band-aid type fixes to the lab. 
We were in GSA's budget back in, I believe, 2005 perhaps, for a 
major overhaul of the lab. Unfortunately, Hurricane Katrina 
happened, and those kinds of resources are now being redirected 
in other places.
    So we have been having ongoing conversations with GSA to 
try to fix this problem. Those conversations are going on right 
now, and I would like to come back to you in about 6 weeks to 2 
months and sit down and brief you.
    Senator Pryor. That would be great. I'd like you to do 
that. One last question before I turn it over to Senator Thune 
and let him ask questions. On the issue of the quorum, and I 
know we've talked about that already, would this all be solved 
if we went back to having five commissioners? It seems to me 
that would help, that you wouldn't get in these gaps where you 
are losing a quorum. Would that help?
    Ms. Nord. Five commissioners would certainly mean that we 
wouldn't lose our quorum unless something extraordinary 
happened.
    Senator Pryor. Do the two of you think we at least should 
consider putting five commissioners on this agency, given the 
breadth of the things that you do and the number of things that 
you do?
    Ms. Nord. Sir, I have not thought about that in any sort of 
hard way, and I'd like to do that before responding.
    Do you have----
    Senator Pryor. Mr. Moore?
    Mr. Moore. Not at this point. I agree with her that we 
ought to look at it more carefully before we put something on 
the record on it.
    Senator Pryor. OK.
    Senator Thune?

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman, and I appreciate 
you holding this hearing. Oversight is obviously an important 
part of the job that we do here in the Congress, and so I 
appreciate our witnesses being here today. I want to welcome 
Commissioner Moore and Chairman Nord, who is a native South 
Dakotan. Nice to have you with us today, and I hope that you'll 
make it back to our home state frequently.
    I have a particular interest in the Commission's 
proceedings with regard to all-terrain vehicles or ATVs. As you 
know, ATVs are an important part of daily life for many South 
Dakotans who make a living on a farm or a ranch. In fact, 
horses all around South Dakota are breathing a sigh of relief 
as more ranchers jump on their ATVs each morning to do chores 
and leave the horse in the barn. But we also have a lot of 
South Dakotans who use ATVs for recreation in the Black Hills.
    I guess what I would like to ask is, have you noticed any 
trends in the comments the commission has received in response 
to the proposed rulemaking on ATVs, and do you believe the 
commission will make any changes in the proposed rule based on 
the comments that have been received?
    Ms. Nord. I think it would be premature for me to speculate 
on what the Commission is going to do, since this is indeed 
open for--well, I think the comment period just closed, but we 
are in active rulemaking. The balance that we need to make here 
is to respect and indeed help people who use ATVs as work 
vehicles in the environment you described, and also for people 
who use them for recreation.
    On the other hand, sir, we are seeing more and more deaths 
associated with all-terrain vehicle usage. Many of these deaths 
are kids, frankly, who jump on an adult size ATV, a machine 
that they have absolutely no business being on and they don't 
have adequate training for, and they're not wearing the proper 
safety equipment.
    So we've got to respond to that hazard pattern as well, and 
hopefully we can find a way to respond to that and drive those 
deaths down, those unnecessary deaths down, while still making 
sure that the machines are available for recreation and for 
work on farms and ranches.
    Senator Thune. Some are calling, as this whole rulemaking 
process is going on, for more regulation or legislation. Do you 
believe that further regulation or legislation should occur at 
the Federal level or at the State level?
    Ms. Nord. Well, I think you've identified a real key point 
here. The solution to this problem doesn't rest exclusively at 
the Federal level. We will, through our rulemaking, look at the 
machine itself to make sure that the machine is as safe as it 
can possibly be.
    But, you know, states have the authority to put in place 
licensing requirements and determine really how the machine is 
used in the local environment, and states really do need to be 
looking at that. That's something for the states, not the 
Federal Government, to do.
    Senator Thune. I appreciate your response to that, and look 
forward to, as this process becomes final, knowing a little bit 
more about what those rules might do in terms of how they're 
going to pertain to the use of those vehicles.
    Commissioner Nord, you had mentioned in your testimony that 
two-thirds of our recalled products are imports, and two-thirds 
of those come from China. And I guess the other question I 
would have is, what are the most dangerous products coming from 
China, and what can we do make sure that those imported 
products are as safe as American-made products?
    Ms. Nord. I don't know the answer to what is the most 
dangerous product. I know we are really focusing our activities 
in four areas, and that would be toys, electrical products, 
fireworks, and cigarette lighters, and that's really where 
we're focused.
    What we can do to address it and make sure that Chinese-
manufactured products meet the same standards as U.S.-
manufactured products, there are a number of things that we can 
do. One of the things that I think is really important to 
explore is the role of voluntary standards in this whole 
process.
    With U.S. manufacturers, there is in place a very vibrant 
system of standards writing that goes on here in the U.S., and 
most U.S. companies participate in voluntary standards 
activities and comply with those standards. For example, I'm 
sure you all are familiar with Underwriters Laboratory. That 
would be an example of a voluntary standards body, and indeed 
our statute specifically says to us that if there's a voluntary 
standard in place, we don't put in place a mandatory standard. 
We let the voluntary standard do its work.
    The problem is that in China there isn't the sense of 
needing to comply with voluntary standards, so you see things 
coming into the U.S. that do not comply with voluntary 
standards in the same way that U.S.-manufactured goods do, and 
that is really, really a critical element for getting a handle 
on this. If we can export that, either in a way that is non-
mandatory, or if we need to beef up our statute, it may be that 
we do have to do that, but we need to make sure that imports 
meet the same voluntary standards that U.S.-manufactured 
products generally meet.
    Senator Thune. Thank you, and thank you, Mr. Chairman. I 
want to thank both of you for your service to our country and 
keeping Americans safe, particularly those who cannot protect 
themselves, such as infants, children, and the elderly. So 
thank you for the good work that you do.
    Thank you, Mr. Chairman.
    Senator Pryor. Thanks, Senator Thune.
    Senator McCaskill?

              STATEMENT OF HON. CLAIRE McCASKILL, 
                   U.S. SENATOR FROM MISSOURI

    Senator McCaskill. Thank you, Mr. Chairman.
    Back in March of 2006 you promulgated a rule on mattress 
flammability that took an unprecedented step of proposing to 
preempt State common law on tort claims. The preemption 
language was added to the rule's preamble after the notice and 
comment period closed, providing no opportunity for the public 
to review it or evaluate it.
    I would like your comments on that. I am deeply troubled by 
an agency being in a position to think that it knows better 
than the states as to what remedies should be afforded people 
in our courts, and I think it is a dangerous precedent that we 
are preempting State common law without opportunity for comment 
on that preemption.
    Ms. Nord. Is that to me?
    Senator McCaskill. Yes. Either one of you. I know you're 
both dying to answer.
    Ms. Nord. Thank you for the question. Because the 
preemption--well, first of all, all agencies are required to 
make a statement of the preemptive effect of their rules, and 
that's by virtue of an Executive Order issued in 1996, so we do 
need to make a statement of the preemptive effect of our rules. 
Because that statement is only our view, it is not part of the 
rule, so consequently that's why it's in the preamble. It is 
not part of the rule, and that's why it was not out there for 
public comment, because it is not formally part of the rule.
    And, frankly, these are issues that a court is going to 
decide, really, not the commission. The particular language 
that you're talking about was put in the mattress standard 
preamble under the terms of the Federal Flammable Fabrics Act, 
and it was done after receiving guidance from our general 
counsel that that was the correct interpretation of the Federal 
Flammable Fabrics Act.
    You should be aware that the commission administers five 
different statutes, and each of them has a little bit different 
preemptive language in them, so what we would determine is 
appropriate under the Federal Flammable Fabrics Act is not 
necessarily the same preemptive effect that we would articulate 
under, for example, the Federal Hazardous Substances Act or the 
Consumer Product Safety Act. And indeed, under the Consumer 
Product Safety Act there is a specific savings clause that 
addresses just what you're talking about, that does not exist 
in the Federal Flammable Fabrics Act.
    So we had a general counsel's opinion on this and that's 
what I followed.
    Senator McCaskill. Was there a public discussion about 
this? Did the commission discuss it in a public meeting? And, 
you know, since this hadn't really occurred, this is 
unprecedented, I'm just curious how it came to be.
    Ms. Nord. It was certainly discussed during our open 
meeting to vote on the rule, of course. And because it's not 
part of the rule, it would not properly be out there for public 
comment. Again, a court will be making the ultimate decision as 
to what the statute means, so this is not part of the rule and 
consequently is not appropriately out there for public comment.
    Senator McCaskill. I guess my point would be that if the 
court is going to decide, then I'm trying to figure out why 
there was a need to include it, if it doesn't have any force of 
law and it is, you know, not something that's going to be held 
out for public comment; why would the commission think it was 
important to include this, since this is not something that had 
been included before?
    Ms. Nord. Because we're required by the Executive Order to 
state the preemptive effect.
    Senator McCaskill. OK. Thank you, Mr. Chairman.
    Senator Pryor. Thank you, Senator.
    Let me ask one last follow-up, since we've talked about 
some specific cases. The lead in lunchboxes, first, just 
factual background: Why is the lead there in the first place? I 
understand it's part of the fabric. Tell me why lead is in 
there in the first place.
    Ms. Nord. Lead is a component of vinyl. As I understand it, 
sir, and you're getting a little bit beyond my technical 
knowledge base here, but as I understand it, it's a stabilizing 
agent. I can certainly get you a more technical answer to that 
question, or I can have one of our scientists come up and talk 
to you about it.
    Senator Pryor. OK. As I understand it, you all looked at 
lead in lunchboxes and you, as I understand it, looked at it 
the first time, you did some testing. The testing was not good 
for lead in lunchboxes. Changed your testing, did a change in 
testing methodology. Am I right?
    Ms. Nord. No, no. That's incorrect.
    Senator Pryor. What happened?
    Ms. Nord. Under the Federal Hazardous Substances Act, which 
is what we would use to regulate children's products, the Act 
very specifically says that we have to, in the case of this 
particular product, we must be looking at accessible lead. That 
is not total lead but accessible lead. How much lead does the 
consumer come in contact with?
    Senator Pryor. Right.
    Ms. Nord. So what we would first do is test the lunchbox to 
see if indeed there is lead in it at all, and that's what we 
did. And then making the determination that yes, indeed, there 
is lead, then you have to do the second part of the analysis: 
Is the lead accessible to the consumer? And that's the second 
piece of this.
    And when they did the second test, which is the swipe test, 
that is when the staff said, you know, ``We're not finding 
accessibility.'' In this particular case, sir, they did a 
series of tests. They came back to each of the commissioners 
individually and said, ``OK, this is what the tests are showing 
us.'' Each of the commissioners individually, without 
consulting with each other, told the staff to go back and test 
more just to make sure.
    That's important because, sir, the Consumer Product Safety 
Commission has a long history of protecting the public against 
the hazards of lead. Banning lead, in residential house paint. 
We've recalled products over time if they have lead in them 
that is accessible to a consumer.
    We've got an ongoing rulemaking dealing with lead in 
children's jewelry. The hazard there, sir, is that children 
will swallow it and it will get down into their system. We 
dealt with lead in miniblinds where the lead, unlike 
lunchboxes, did come to the surface and got into the dust. We 
know how to deal with lead, and we are committed to making sure 
that this is a hazard that we address.
    Unfortunately, with the lunchboxes, we just weren't finding 
it.
    Senator Pryor. OK, but even after you sent your findings 
over to FDA, didn't they send out a letter to the 
manufacturers?
    Ms. Nord. I think if you read that letter, you'll find that 
they say that it might be a problem. And you have to understand 
that the FDA is dealing with a very different Act than the Act 
that the CPSC is administering. I believe what the FDA said is 
that it might be viewed as a food additive, and as I understand 
the Food, Drugs and Cosmetic Act, there is a very different 
standard there. But again, I think that's a question that needs 
to go to the FDA. We have to administer the Federal Hazardous 
Substances Act, and that's what we did.
    Senator Pryor. OK. Well, we'll submit the FDA's letter for 
the record, so we'll have it and everybody can be clear on it.
    Ms. Nord. Surely.
    [The information referred to follows:]

                          U.S. Food and Drug Administration
                                      Washington, DC, July 20, 2006
CFSAN/Office of Food Additive Safety
Letter to Manufacturers and Suppliers Concerning the
Presence of Lead in Soft Vinyl Lunchboxes

Note to: Suppliers or Vendors of Soft Vinyl Lunchboxes:

    The Food and Drug Administration (FDA) is directing this letter to 
manufacturers and suppliers of soft vinyl lunchboxes marketed in the 
United States. Based on testing performed by the Consumer Product 
Safety Commission (CPSC), we have learned that the interior polyvinyl 
chloride (PVC) linings of certain flexible lunchboxes contain lead 
(Pb).\1\ We believe that the source of the lead is likely to be lead-
containing compounds used as adjuvants in the manufacture of PVC. 
Because neither lead nor lead compounds are authorized for use in the 
manufacture of PVC food-contact articles such as lunchboxes, and some 
migration of lead to food as a result of such use may reasonably be 
expected, we urge companies to refrain from marketing such lead-
containing lunchboxes.
---------------------------------------------------------------------------
    \1\ Unpublished data. See U.S. Consumer Product Safety Commission 
Q&As: Vinyl Lunch Boxes.
---------------------------------------------------------------------------
    While the amount of lead that may transfer to food from these 
lunchboxes is likely to be relatively small, it has been a longstanding 
objective of the FDA to reduce, to the extent practicable, consumer 
exposure to lead from foods. The adverse health effects of elevated 
lead levels in children are well-documented and may have long-lasting 
or permanent consequences. Because lead accumulates in the body, these 
effects can occur even at low exposure levels, and may include delayed 
mental and physical development, and learning deficiencies.
    Any component of these lunchboxes that is reasonably expected to 
become a component of food is potentially a food additive, subject to 
the premarket approval requirements of the Federal Food, Drug, and 
Cosmetic Act (FD&C Act). Specifically, substances that are reasonably 
expected to migrate to food because of their intended use are defined 
as food additives (FD&C Act Section 201(s)) if they are not prior 
sanctioned or generally recognized as safe (GRAS) for their use. All 
food additives are required to undergo FDA premarket approval in 
accordance with Section 409 of the FD&C Act. However, neither lead nor 
any lead compound is authorized for use in PVC food-contact material.
    According to the CPSC data, a small amount of the lead present in 
the interior linings of the lunchboxes is transferable by a swipe test. 
This implies that a small amount of lead may reasonably be expected to 
transfer to food that contacts the interior lining and could be deemed 
to be an unsafe food additive within the meaning of section 409 of the 
FD&C Act, and therefore adulterated within the meaning of section 
402(a)(2)(C) of the statute. Therefore, the lunchboxes containing the 
lead compounds may be subject to enforcement action.
    As always, manufacturers and suppliers are encouraged to consult 
with the agency regarding the regulatory status of component substances 
of food-contact articles, including those that may be under 
consideration as alternatives to lead compounds.
    Please do not hesitate to contact us if you have any questions 
concerning this matter.
        Sincerely,
                                 Laura M. Tarantino, Ph.D.,
                          Director, Office of Food Additive Safety,
                          Center for Food Safety and Applied Nutrition.

    Senator Pryor. And I would like to know more, and we don't 
have to wear out this audience because we have the next panel 
waiting, but I'd like to know more about your testing, because 
it seems to me I don't know how a swipe test is done. I don't 
know how to do it.
    But it seems to me if you have food rolling around in a 
lunchbox, you know, apples, sandwiches, whatever they are, are 
rubbing on this all the time, and there's lead in it, and any 
of the lead comes off, it would seem over time, especially the 
longer you use the lunchbox, that it could be a health hazard. 
But we'll leave that for a second discussion.
    Did you have any follow-ups? OK, what I would like----
    Mr. Moore. May I?
    Senator Pryor. Yes, sir. Go ahead.
    Mr. Moore. Because I don't think there should be any lead 
in a product such as a child's lunchbox. But as the Chairman 
has noted, we are bound by the limits of our statutes.
    Senator Pryor. OK. Well, like I said, we'll look at that. 
We'll continue to look at that, and maybe we ought to have a 
rule that there's not any lead in a lunchbox. But we'll look at 
that for you and we'll continue on that.
    If I may, I want to thank this first panel. We've kept you 
longer than I thought we would, but I'd like to have the second 
panel come up. And what I'll do is introduce you all as you're 
making your way to the microphones.
    First we're going to have Ms. Sally Greenberg, Senior 
Product Safety Counsel, Consumers Union; then Rachel Weintraub, 
Director of Product Safety and Senior Counsel, Consumer 
Federation of America; then John C. Dean, President, National 
Association of State Fire Marshals; and then Frederick Locker, 
General Counsel, Toy Industry Association and the Juvenile 
Products Manufacturers Association, testifying on behalf of the 
Consumer Product Safety Commission Coalition of the National 
Association of Manufacturers.
    So as soon as everybody gets situated and finds their 
place, I will recognize Ms. Greenberg. So let's let everybody 
sit down and we'll get going here. And like I said, we'd love 
to ask questions here in a few moments, but if you all can 
limit your opening statements to 5 minutes or less, that would 
be great.
    Ms. Greenberg, why don't you go first, please?

 STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT SAFETY COUNSEL, 
                        CONSUMERS UNION

    Ms. Greenberg. Thank you, Mr. Chairman. Good morning, 
Chairman Pryor, other members of the Subcommittee, Senator 
McCaskill. My name is Sally Greenberg. I'm Senior Product 
Safety Counsel for Consumers Union. We are the nonprofit 
publisher of Consumer Reports magazine. Thanks for providing me 
the chance to come before you today to provide our views on the 
work of the Consumer Product Safety Commission.
    We think there are two paramount questions before the 
Committee today: Does the CPSC have the resources necessary to 
fulfill their mission? And is the CPSC using those resources it 
has in order to best fulfill its mandate?
    The CPSC is a vitally important Federal agency with many 
dedicated career staff who are committed to consumer safety. 
The CPSC has jurisdiction over 15,000 products. The great 
importance of CPSC is that it has jurisdiction over so many 
children's products--we've already talked some about that this 
morning--including toys, clothing, bath seats, high chairs, and 
cribs, all used by children. In any given year, 27,000 people 
die and 33 million people are injured by products under CPSC's 
purview.
    Yet when we look at the history of congressional support 
and funding for CPSC, things have never looked so bleak. And, 
Mr. Chairman, I appreciate your comments earlier about the 
funding situation at the commission, and I do hope you will 
take that message to your colleagues, because if you read 
through the performance overview statement it's actually very 
sad.
    The commission is at an all-time low in terms of employees. 
And I was a little surprised that Chairman Nord wasn't willing 
to say that more employees are needed, because the 2008 Budget 
report just says it. A lot of our core strategic efforts and 
our core mission is really suffering as a result of the 
dwindling number of resources.
    For example, CPSC says in the budget report for this year 
that they will no longer make child drowning death reductions a 
strategic goal because of resource limitations, yet drowning is 
the second highest cause of deaths to young children. They also 
go on to talk about because of staff reductions, core functions 
like safety standards enforcement, consumer outreach, won't be 
carried out.
    One of the things we did was look at the budget of the 
National Highway Traffic Safety Administration which oversees 
the safety of our roads and highways. There are 43,000 people 
dying on our roads and highways every year. And they have a 
budget of $800 million.
    When you look at CPSC's budget, we see that 27,000 people 
die because of consumer products under their jurisdiction every 
year, and yet their budget is only $63 million. If you did the 
percentages, and gave the Commission a percentage increase, 
you'd have them at $502 million, and yet we see their budget at 
$63 million. So this is an agency whose resources have been 
dwindling for a long time, and it's a great area of concern for 
us.
    One of the things I want to talk about is the issue of 
recalls and what we think is really a broken recall system. 
One-third to one-half of all products recalled in the last 6 
years are used by children. And of those 111 children's 
products recalled last year, a third exposed children to risk 
of bodily injury, falling, laceration, and impact injuries.
    Here is the problem: The term ``recalled product'' suggests 
that a product has been successfully returned--returned, 
repaired, or replaced--but that is in fact rarely the case. Ten 
to 30 percent of all recalled products ever get returned. In 
other words, 70 to 90 percent are still in the home and are 
still exposing children, particularly, to many times life-
threatening injuries and even death.
    CPSC claims that they have tried to improve recall 
effectiveness, the effort to get recalled products out of the 
homes, but when consumer groups in 2003 went to the CPSC with a 
petition asking for simple registration cards on children's 
products, the CPSC voted down that petition. And to add insult 
to injury, once a product is recalled, CPSC won't make public 
how many products actually come back. We don't know why they 
won't do this. It would be useful information for consumers to 
have.
    One of the things that we're doing is supporting two pieces 
of legislation that have been introduced in the House to 
provide product registration cards on many children's products 
above a certain price point. And the other piece of legislation 
we're supporting, and we'd like to see introduced over here in 
both cases, is a mechanism for testing products, durable 
children's products, before they get into people's homes, 
because it has proven so difficult to get them back if they 
prove dangerous or defective.
    We have a number of other areas of concern that are in our 
written testimony. Let me just speak for 1 more minute and then 
I'll close. The commission, as we talked about at length, as 
you, Mr. Chairman, and Senator McCaskill talked about at length 
this morning, is suffering from lack of a quorum. And we know 
that that has been going on now for a couple of months, since 
January, and the position of chairman has been vacant since 
July.
    We believe that the fact that this position has lain vacant 
for so many months is itself a statement on the lack of regard 
for the work of the CPSC. However, while the commission needs 
leadership, to be sure, its work is too important to allow the 
chairmanship to go to a political appointee with no 
demonstrable experience in or commitment to consumer 
protection. CPSC is a regulatory agency and requires, we 
believe, a chairman who has shown a commitment to using the 
regulatory process for consumer protection.
    We just want to direct your attention to 4(a) of the 
Consumer Product Safety Act, which says that the President 
shall appoint the commissioners with the advice and consent of 
the Senate, but in making such appointment the President shall 
consider individuals who, by reason of their background and 
expertise in areas related to consumer products and protection 
of the public from risks to safety, are qualified to serve as 
members of the Commission. So I'll close by saying that we urge 
the Senate to give thorough consideration to the current 
nominee under this Section 4(a). And I thank you for your time.
    [The prepared statement of Ms. Greenberg follows:]

 Prepared Statement of Sally Greenberg, Senior Product Safety Counsel, 
                            Consumers Union

    Good morning, Chairman Senator Pryor and Ranking Member Sununu, and 
other members of the Subcommittee. I am Sally Greenberg, Senior Product 
Safety Counsel for Consumers Union (CU), non-profit publisher of 
Consumer Reports.\1\ Thank you for providing me the chance to come 
before you today to provide our views on the work of U.S. Consumer 
Product Safety Commission (CPSC).
---------------------------------------------------------------------------
    \1\ Consumers Union is a nonprofit membership organization 
chartered in 1936 under the laws of the State of New York to provide 
consumers with information, education and counsel about goods, 
services, health, and personal finance. Consumers Union's income is 
solely derived from the sale of Consumer Reports, its other 
publications and from noncommercial contributions, grants and fees. In 
addition to reports on Consumers Union's own product testing, Consumer 
Reports and ConsumerReports.org with more than 6.2 million paid 
circulation, regularly carries articles on health, product safety, 
marketplace economics and legislative, judicial and regulatory actions 
that affect consumer welfare. Consumers Union's publications carry no 
advertising and receive no commercial support.
---------------------------------------------------------------------------
    For the past 71 years, Consumers Union (CU) has been testing and 
reporting on products and services in order to arm consumers with the 
information they need to protect themselves in the marketplace. CU's 
mission is to work for a fair, just and safe marketplace for all 
consumers.
    CU applauds the Subcommittee for holding this oversight hearing. We 
believe that there are two paramount questions before the Committee 
today--does the CPSC have the resources necessary to fulfill its 
mission? And is the CPSC using the resources it has to effectively 
fulfill its mission? CU's serious concerns in both of these areas are 
discussed below.

U.S. Consumer Product Safety Commission
    Every Congress that has reauthorized the CPSC during the past 30 
years has reaffirmed its clear and unmistakable purpose: the CPSC is 
charged with the mandate to reduce or eliminate unreasonable risks of 
injury and death to consumers from more than 15,000 types of products. 
There are 27,100 fatalities and 33.1 million injuries per year 
associated with products under the CPSC's jurisdiction. Deaths, 
injuries and property damage from consumer product incidents cost the 
Nation more than $700 billion annually. The CPSC's viability is of 
critical importance to the safety of children, since the Commission has 
jurisdiction over the safety of so many children's toys and products 
like bath seats, high chairs, and cribs.
    However, we believe the CPSC currently is at a crossroads which 
will determine its ability to be effective in the future. Among our 
concerns are the following: (i) the failure of Congress to provide CPSC 
with needed regulatory and enforcement authority and the failure of the 
CPSC to seek new regulatory and enforcement authority or to 
aggressively use the authority it possesses; (ii) budget cuts resulting 
in a crippling loss of their most experienced and knowledgeable staff; 
(iii) increasing numbers of counterfeit, dangerous and violative 
imported products; (iv) new and emerging technologies in product 
production (e.g., nanotechnology); and (v) the changing demographics of 
the U.S. population. In addition, CU is concerned that the CPSC will 
not be able to adequately address areas that we consider to be of high 
priority, including: increasing the effectiveness of product recalls 
and reporting of product hazards; decreasing import of unreasonably 
dangerous imported products; drowning prevention and pool safety, 
reducing deaths relating to CO poisoning from consumer use of portable 
electric generators and home heating appliances; improving ladder 
safety (i.e., strength and stability); furniture safety (preventing 
deaths and injuries from furniture tip over and glass tables); removal 
of lead from all products intended for use by children (e.g., jewelry, 
toys, and clothing); all-terrain vehicle safety (increasing safe use of 
all-terrain vehicles by adults, and ending their use by children under 
16 years old); and identifying dangers associated with products 
developed through the use of new technologies--particularly 
nanotechnology.
    The CPSC must have the resources--and the will--needed to inform 
and to protect the public from new and emerging hazards. CU strongly 
urges this Subcommittee to recommend significant increases in the 
CPSC's budget in order to enable the Commission to better protect 
consumers from unreasonably dangerous products. However, added 
resources will not be enough. We also strongly urge the Subcommittee to 
continue its oversight to ensure that the CPSC uses its resources 
appropriately to fulfill its mission relating to current and emerging 
hazards.
    Specific areas of increasing challenge to the CPSC and its 
effectiveness are discussed in detail below.

1. Budget Cuts Resulting in a Crippling Loss of Staff and Functions
    The CPSC is critically underfunded and understaffed. According to 
CU's review, the staffing level at the CPSC has been steadily 
dwindling, and has resulted in the ``brain drain'' of too many of the 
most experienced and knowledgeable staff at the Commission. When the 
CPSC opened its doors in 1974 its budget was $34.7 million, rising in 
1977 to $39 million budget with a staff of 900.\2\
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    \2\ Understanding Government Report, E.Marla Felcher, ``U.S. 
Consumer Product Safety Commission: Paper Tiger of American Product 
Safety.''
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    The staffing level at the CPSC has been steadily dwindling. The 
budget for fiscal 2007 culminates a two-year reduction of full-time 
positions from 471 to 420--a total loss of 51 employees. The 
Commission's 2008 Performance Budget Request notes in a bleak 
statement: The Commission's request for 2008 of $63,250,000 represents 
an increase of $880,000 from 2007. Because of the cost increases 
described below, the increase of $880,000 will require a decrease of 19 
FTEs.\3\
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    \3\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, Submitted to Congress, February 2007, http://
www.cpsc.gov/cpscpub/pubs/reports/2008plan.pdf.
---------------------------------------------------------------------------
    Indeed, the Commission's Budget Request reads like a cry for help 
to support critical programs and is justified, in our view.
    If mandatory salary increases are taken into account, the 
Commission stands to lose an additional 19 employees,\4\ dropping staff 
levels to 401, leaving the Commission understaffed and full time 
employees (FTEs) at an all time low.
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    \4\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, Submitted to Congress, February 2007, http://
www.cpsc.gov/cpscpub/pubs/reports/2008plan.pdf.
---------------------------------------------------------------------------
    The $39 million allocated to CPSC in 1977 would be worth $125 
million today. Yet CPSC's funding request of $63 million means that 
CPSC is funded at half of its original level in 1977 and the number of 
staff has consequently dropped by more than half.
    The CPSC already has acknowledged in its budget document that it 
will not be able to continue to focus on a past strategic goal of great 
importance to CU--reducing child drowning deaths. Drowning is the 
second leading cause of accidental death for children under 14 and most 
drowning incidents occur in residential swimming pools. Further 
budgeting and staffing cutbacks will clearly result in reduced 
enforcement of safety authority. Without adequate policing, unsafe 
products can continue to more easily infiltrate the marketplace.
    Offers for sale of banned imported products, such as ``Kinder 
Eggs,'' \5\ monitored by CU, appear to be much worse recently. In 
addition, the presence of counterfeit products in the U.S. marketplace 
has increased. We believe that part of this increase results from fewer 
CPSC representatives present at border points of entry. In addition, 
the CPSC has been forced to reduce the number of field staff that 
normally would lead investigations and follow up on product-related 
injuries and deaths. CU is concerned that CPSC's inadequate budget is 
preventing it from having the critically needed staff and resources to 
properly police the marketplace. We believe that the CPSC must have the 
resources it needs to monitor imported consumer products that may pose 
safety hazards, and take whatever actions are needed to keep 
unreasonably dangerous products off the market. CPSC must be able to 
work more collaboratively with U.S. Customs to prevent dangerous and 
violative products from crossing the borders into this country.
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    \5\ Hollow chocolate eggs (made by Italy's Ferrero Group) 
containing ``surprise'' toys, banned in the United States since 1997, 
when the CPSC warned that the toys could pose a choking hazard to 
children under 3.
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2. Lack of Adequate Manufacturer Focus on Safety and Ineffective System 
        of Recalls
    According to the July 28, 2006 CPSC Nursery Product-Related 
Injuries and Deaths to Children under age 5 Annual Memorandum, an 
estimated 59,800 children under age five were treated in hospital 
emergency rooms for injuries associated with nursery products in 2005. 
We believe the number of injuries and deaths from using such products 
is far too high and that most are preventable.
    These trends are confirmed in a report,\6\ based on CPSC data, due 
to be released next week from the Chicago advocacy group, Kids in 
Danger. Kids in Danger's report indicates that there were 111 recalls 
of children's products in 2006--representing 35 percent of all product 
recalls. Of the 111 products recalled, about a third were recalled 
because they exposed children to risk of bodily injury--falling, 
laceration and impact injuries. Indeed, these recalled products caused 
177 injuries and six deaths in 2006.
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    \6\ Upcoming, ``Unexpected Danger: Children's Product Recalls in 
2006,'' Kids in Danger, March 2007. www.kidsindanger.org
---------------------------------------------------------------------------
    This is not a new phenomenon. In the years from 2001 to 2006, 
children's product recalls ranged from one-third to one-half of all 
recalls, with a high of 55 percent in 2001 to a low of 31 percent in 
both 2004 and 2003. This year alone nearly 19 million children's 
product units were recalled. Between 1993 and 2003, the children's 
product industry had recalled almost 60 million items.
    The term ``recalled product'' suggests that a product has been, or 
will be, returned, repaired or replaced, by a manufacturer. This rarely 
is the case. Despite the fact that, once a product is recalled, the 
CPSC and the manufacturer draft a recall notice and send it out over 
the wires, this vital information often does not reach the very 
people--such as parents, day care centers and other caregivers--who 
should see it. There is no law requiring manufacturers to try to find 
purchasers of the product or to notify parents or day care centers if a 
product proves dangerous and must be recalled. Further, there is no 
requirement that manufacturers advertise a product recall in the same 
way they advertised the product in the first place--high chairs, cribs, 
strollers, infant swings and carriers often continue to be used for 
months or years after they have been recalled. As a result only a very 
small percentage of recalled juvenile products ever make their way back 
to the manufacturer. In fact, a CPSC study estimates that manufacturers 
cannot account for 70-90 percent of sold infant products after they 
have been recalled.\7\
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    \7\ ``It's No Accident,'' Marla Felcher, Common Courage Press, 
2001.
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    Recall effectiveness is a major concern. Fifteen children, for 
example, have died in five different brands of recalled cribs,\8\ and 
many more of these cribs presumably remain in homes and day car 
centers.
---------------------------------------------------------------------------
    \8\ Kids In Danger Newsletter, 2002.
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    In an effort to improve recall effectiveness, consumer groups 
petitioned the CPSC \9\ asking that the Commission require simple 
registration cards on products intended for use by children. 
Registration cards have proven an effective means for facilitating 
recalls: A 2003 National Highway Traffic Safety Administration survey 
found that almost three-quarters (73 percent) of parents/caregivers who 
said they obtained the car seat new also said that a registration card 
came with the seat. Of these, 53 percent mailed back the card.\10\
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    \9\ Federal Register, Vol. 66, No. 148, Wednesday, August 1, 2001.
    \10\ Motor Vehicle Occupant Safety Survey, http://
www.nhtsa.dot.gov/people/injury/research/2003MVOSSVol5/pages/
ExecSumm.htm.
---------------------------------------------------------------------------
    The Commission denied the consumer groups' petition on April 28, 
2003, citing concerns about the effectiveness of registration 
cards,\11\ Consumers Union and other groups are supporting legislation 
to require registration cards with certain baby products.
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    \11\ http://www.cpsc.gov/LIBRARY/FOIA/FOIA03/petition/Intended.pdf.
---------------------------------------------------------------------------
    In addition to the challenges of effectively notifying consumers 
about recalled products, once a product is recalled by CPSC, the 
Commission will not release information on the number of units that 
have been successfully recalled. This prevents the public and news 
organizations from accurately estimating how many dangerous products 
remain at large, the extent of the remaining risk, or whether the 
particular recall outreach was successful. We discuss this at length 
below in our comments related to Section 6(b).
    In response to the deficiencies in the system outlined above, 
consumer groups have supported two bills introduced in the 109th 
Congress and expected to be introduced shortly in the 110th:

   H.R. 6141, the ``Child Product Safety Notification Act,'' 
        sponsored by Congresswoman Jan Schakowsky (D-Il), directs the 
        CPSC to promulgate a consumer product safety standard requiring 
        manufacturers of juvenile products (such as toys, cribs high 
        chairs, bath seats, playpens, strollers, and walkers), and 
        small appliances to establish and maintain a system for 
        providing notification of recalls to purchasers. Manufacturers 
        would be required to improve their notification of consumers by 
        either distributing products safety notification cards that 
        could be returned to them by consumers, or by creating a method 
        of registering buyers electronically.

   H.R. 4896, the ``Infant and Toddler Durable Product Safety 
        Act,'' \12\ also sponsored by Representative Schakowsky, would 
        better ensure the safety of infant and toddler products by 
        requiring independent testing of certain durable goods before 
        they are sold on the market. The legislation would require 
        manufacturers to pretest ``durable'' products likely to be used 
        by children under five, including cradles, cribs, toddler beds, 
        high chairs, safety gates, play yards, and strollers.
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    \12\ Introduced by Congresswoman Jan Schakowsky. Cosponsors 
include: Mrs. McCarthy of NY, Mr. Lantos of CA, Ms. Norton of DC, Ms. 
Millender-McDonald of CA, Ms. Kilpatrick of MI, Mrs. Christensen of VI, 
Mr. Grijalva of AZ, Mr. Serrano of NY, Mr. McDermott of WA, Mr. 
Gutierrez of IL, Ms. Brown of FL, Ms. De Lauro of CT, Mr. Meehan of MA, 
Mr. Moran of VA, Mr. Davis of IL, Mr. Lipinski of IL, Ms. Lowey of NY, 
and Mr. Waxman, CA.

    Under their General Product Safety Directive, the European Union 
requires pre-market testing and recordkeeping to show that products are 
essentially safe prior to going to market. The U.S. has no similar 
regulations.
    We encourage the Senators on this Subcommittee to sponsor similar 
legislation to better protect U.S. consumers.
Section 6(b)
    Last year, my brother-in-law's airbag failed to deploy during a 65 
mph crash. As a result, he was badly injured, but happily alive. 
However, he wanted to see whether drivers of the same vehicle had 
experienced similar airbag failures. He went to the National Highway 
Traffic Safety Administration's (``NHTSA'') website, entered in his 
car's make and model, and learned that, indeed, there were several 
similar complaints. He decided not to buy the same model again. If a 
parent finds that a highchair collapses, he or she cannot do what my 
brother-in-law did--check CPSC's website to see if there have been 
other complaints--because under Section 6(b) of the Consumer Product 
Safety Act (CPSA) the Commission cannot provide the information unless 
the product has been recalled. This restriction is a major obstacle to 
consumer information and consumer safety.
    Section 6(b) acts as a kind of reverse Freedom of Information Act, 
barring the release of consumer complaint information unless and until 
the agency has sent a copy of it to the named manufacturer, allowed the 
manufacturer 30 days to comment on the information, reviewed the 
manufacturer's comments regarding the accuracy of the information and 
the fairness of releasing it, and determined that disclosure of the 
information would effectuate the purposes of the CPSA. Exceptions to 
these restrictions are extremely limited.\13\
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    \13\ Section 6(b)(1) requires that the CPSC must, at least 30 days 
prior to ``public disclosure'' of information, notify each manufacturer 
or private labeler identified in the documents of the forthcoming 
release and give them an opportunity to submit comments, and take 
reasonable steps to ensure accuracy.
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    The resource drain on the Commission staff for these procedures is 
enormous and unfair. The effect of Section 6(b) is to make the release 
of some information almost impossible. Objections by any manufacturer 
can lead to a long struggle. Even newspaper clippings on a particular 
product cannot be released by the CPSC without prior review.
    Indeed, before the 111 children's products were recalled in 2006, 
928 failure incidents were reported. Unlike under NHTSA's system 
described above, if a product hasn't been recalled, the CPSC is unable 
to provide consumers with information about previous safety complaints. 
Parents looking to buy a crib or high chair will often want to be sure 
it has a good safety record. They ought to be able to check on the 
CPSC's website for previous complaints. Perhaps if they could have, 
some of the 928 incidents last year related to the 111 recalled 
products might have been avoided. Unfortunately, parents and caregivers 
must go to other websites with consumer reviews, such as Amazon.com, 
rather than consulting the CPSC, to see if consumers have reported 
product has safety concerns with products on the market.
    We think the statute should be changed. CU recommends that Congress 
repeal Section 6(b) of the CPSA because it prevents public access to 
important--and possibly life saving--product safety information in the 
files of CPSC . . .
    While we understand that life--even for children--is not risk free, 
too large a percentage of unsafe products are marketed for children or 
to children. Products intended for use by children should be tested for 
safety before being sent into the marketplace because once they arrive 
in consumers' homes, the ineffectiveness of our current recall process 
means that getting them back is unlikely.

Reporting Requirements Under Section 15(b) of Consumer Product Safety 
        Act
    One of most important sections of the Consumer Product Safety Act 
is 15(b). That section requires companies to report to the Commission 
if they learn that their product may create a ``substantial risk of 
injury to the public.'' \14\ In July of 2006, Chairman Hal Stratton 
announced a final interpretive rule change \15\ on Section 15(b), which 
he argued was intended to demystify the reporting process. Chairman 
Stratton noted in his statement, ``I thought it essential that this 
agency engage regulated parties to determine how best the CPSC could 
accomplish its goals without creating a drag on commerce.''
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    \14\ CPSA, Section 15(b).
    \15\ http://www.cpsc.gov/pr/strattonsec15.pdf.
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    In the previous 2 years, industry groups had asked the CPSC to 
revise its interpretive rules. Apparently this final rule was the 
Commission's response to industry's request. The revised interpretive 
rules added three factors companies were to consider in deciding 
whether they were obligated to report a product hazard under Section 
15: (1) obviousness of the hazard, (2) product warnings and 
instructions and (3) consumer misuse. The interpretative rules also 
allow manufacturer to consider such issues as to whether the product 
meets voluntary standards when considering whether to report incidents 
to the CPSC. Reliance on voluntary standard is, in our view, misplaced 
trust in standards that often do not address safety concerns.
    We commend to members of the Committee the full statement of CPSC 
Commissioner Thomas Moore in response to these interpretive 15(b) 
changes. CU shares Commissioner Moore's concerns about the impact of 
these changes on reporting of hazardous products:

        The Commission was created to protect consumers, sometimes even 
        from what might be viewed as an obvious risk and, with regard 
        to children, sometimes even from the inattentiveness of their 
        own parents. Our work on child-resistant cigarette lighters and 
        baby walkers are evidence of that. The power of section 15(b) 
        is its requirement that information that could prevent the 
        injuries or deaths of consumers be reported to the Commission. 
        Even with these revisions, the Commission's position remains, 
        when in doubt, report. It is the Commission that will 
        ultimately decide whether a product defect presents a 
        substantial product hazard, not the manufacturer. Adding more 
        unexplained factors that manufacturers might grasp at to decide 
        they do not need to report is likely to do the manufacturers 
        (not to mention consumers) a disservice and adds nothing by way 
        of real guidance, clarity or transparency.\16\
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    \16\ Statement of the Honorable Thomas H. Moore on the Publication 
of the Federal Register Notice Seeking Public Comments on Proposed 
Revisions to 16 C.F.R. Part 1115. http://www.cpsc.gov/PR/
MooreCFR1115.pdf.

    Consumers Union believes these new rules are unnecessary and 
confusing. Moreover, simply because a company reports under 15(b) does 
not automatically trigger CPSC action--indeed, one CPSC official 
estimated that only 50 percent of 15(b) reports trigger CPSC 
activity.\17\ Reporting safety hazards is critical because it ensures 
that when hazards come to the attention of a company, they are reported 
to the Commission and when warranted, necessary action is taken. CPSC 
is mandated to carry out this function. By giving companies reasons not 
to report, we believe the new interpretive rules may discourage 
companies from erring on the side of caution and thereby heighten the 
risk that consumers will be exposed to product hazards.
---------------------------------------------------------------------------
    \17\ Conversation with officials at Office of Compliance at the 
U.S. Consumer Product Safety Commission.
---------------------------------------------------------------------------
All-Terrain Vehicles
    The CPSC faces the perennial problem of stemming the tide of deaths 
and injuries from use of All Terrain Vehicles (ATVs). ATVs rank 
consistently as one of the most hazardous consumer products--ATV-
related injuries requiring emergency room visits increased to 136,700 
in 2005. Children under 16 suffered 40,400 of those injuries. In 2005, 
120 children under 16 operating ATVs were killed. The steady trend of 
increasing numbers of injuries and deaths should be a concern to 
Congress and to the CPSC.
    Pursuant to a petition filed by the Consumer Federation of America, 
CU has supported a ban on the sale of ATVs to children under the age of 
16 (and other safety measures). We are also concerned that the CPSC is 
moving forward with an ill-advised rule on ATVs that proposes teen and 
pre-teen ATVs and even junior ATVs for children between 6-8 years old, 
without having conducted the proper testing or research to proceed.
    But we also think Congress can play a pivotal role in helping to 
reduce the injuries and deaths from ATVs. We believe that states should 
be encouraged to enact model ATV safety legislation like the kind 
drafted by the American Academy of Pediatrics. AAP's Model Statute is 
an excellent and comprehensive approach to ATV regulation, providing 
for training and licensure of ATV riders and requiring safety gear like 
helmets and proper clothing.
    We urge this Subcommittee to schedule field hearings on ATV safety 
similar to the hearing the CPSC held in West Virginia in 2003. Congress 
could then consider providing financial incentives to states to adopt 
ATV safety laws.
    There is precedent for this approach. In 2000, Congress passed and 
President Clinton signed a law requiring that states enact a 0.08 
percent BAC (blood alcohol content level) law by October 1, 2003 or 
lose a portion of highway funding. Federal law currently offers 
financial incentives to the states to adopt a 0.08 percent permissible 
blood alcohol level for drivers and has been successful in persuading 
states to adopt this provision. Prior to this law, 18 states and the 
District of Columbia had passed 0.08 percent BAC laws. In the 2 years 
since, the total number of states with 0.08 percent BAC laws has 
increased to 33 and the District of Columbia.

3. Other CU Priority Safety Areas for CPSC Focus
    CU is concerned that due to shortfalls in its budget, the CPSC will 
not be able to adequately address areas that we consider to be of high 
priority, including: product safety issues affecting children (e.g., 
toy hazards, lead in children's jewelry, and pool safety); reinitiating 
efforts to reduce incidents of consumer injury and death from cooking 
fires (there are 80 deaths, 2,440 injuries, and over 47,000 residential 
range top fire annually); other product-related fires (e.g., products 
powered by lithium-ion batteries); decreasing all-terrain vehicle 
accidents and deaths; carbon monoxide poisonings relating to use of 
portable electric generators \18\ and home heating appliances; 
identifying and addressing potentially unreasonable risks posed to 
consumers through the use of or exposure to products created with 
nanotechnology, using nanoparticles.
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    \18\ CU commends the CPSC for initiating a rulemaking proceeding to 
examine regulatory approaches that could be used to reduce portable 
generator-related deaths and injuries, particularly those related to 
carbon monoxide poisoning (71 Fed. Reg. 74472, December 12, 2006). CU 
also commends the Commission for issuing a new portable generator 
mandatory labeling rule, approved by the Commission on January 4, 2007, 
but noted that ``education and warnings alone are not enough'' and 
urged CPSC to take critical next step in requiring all generators be 
equipped with a CO detector that automatically shuts down the unit if 
it detects dangerous levels of CO. See http://www.cpsc.gov/cpscpub/
prerel/prhtml07/07074.html.
---------------------------------------------------------------------------
    Two other areas of concern bear mentioning. First, there are nearly 
50,000 residential cooking fires each year, killing and estimated 80 
people and injuring almost 2,500. Cooking fires account for about 10 
percent of fire deaths in recent years. Mitigating cooking fires was 
once a priority of the CPSC who developed technological fixes to the 
problem in their lab. The project was later dropped due to industry 
pushback.
    Injuries from glass furniture now amount to more than 20,000 
serious injuries per year. Although there are safety standards in 
Europe that require safety glass in furniture, there are no safety 
standards here. Yet these hazards have long fallen below the radar of 
the CPSC.
    Both of these safety hazards are ones we believe the CPSC needs to 
address.

4. Trends and Factors Exacerbating the Impact of CPSC'S Lack of 
        Adequate 
        Funding
    CU is also concerned that a number of trends are presenting the 
CPSC with great challenges to their efforts to reduce the number of 
unreasonably dangerous products on the market. These trends (discussed 
more in detail below) include: (i) the increasing number of 
counterfeit, dangerous, and violative products on the market, (ii) new 
and emerging technologies (e.g., nanotechnology), and (iii) the 
changing demographic of the American consumer. CU also is concerned, 
that in addition to the above trends, the CPSC also is hampered by 
other factors beyond the lack of adequate resources. These factors, 
discussed in detail below, include: (i) the lack of a permanent 
chairman and lack of a quorum, (ii) lack of manufacturer focus on 
safety and insufficient deterrents available in the form of strong 
civil penalty authority, and (iii) inadequate laboratory facilities.

A. Trends Exacerbating the Impact of CPSC'S Lack of Adequate Funding
    (i) Increasing Numbers of Counterfeit, Dangerous, and Violative 
Products--We are very concerned that current trends are increasing the 
risk that unsafe products will make their way to the marketplace--and 
too many remain on the market even after safety hazards are uncovered.
    As the world's large, powerful retailers squeeze manufacturers to 
reduce prices, we have seen evidence that quality and safety can also 
be reduced. Today, more than ever, pressure from major retailers has 
created a ``speed to market'' mantra that can leave little time and few 
resources for the product safety testing and quality assurance process. 
Off-shore design and manufacturing is too often conducted by companies 
who have inadequate knowledge of U.S. voluntary and mandatory safety 
standards. In addition, sometimes foreign manufacturers lack an 
understanding of how consumers will use the products they produce 
because use of the product is not prevalent in their country. For 
example, the manufacture of gas grills is moving rapidly from the U.S. 
to China where the concept of grilling food on a gas heated cooking 
grid is unfamiliar. We believe that a recent result is the manufacture 
of substandard and sometimes dangerous gas grills; since 2004, there 
have been more than one dozen product safety recalls on gas grills--in 
all cases the defective products or components were made outside of the 
U.S. Over a similar two-year period just 10 years ago, when most gas 
grills were U.S. made, there were no recalls.
    Also of concern to CU is the widespread lack of compliance with 
voluntary safety standards. The March 2006 issue of Consumer Reports 
features an article on furniture tipover, a problem that results in 
8,000 to 10,000 serious injuries and almost 10 fatalities each year, 
mostly to young children. Although ASTM--International publishes a 
safety standard to prevent furniture tipover injuries, many of the 
products CU tested do not comply. In fact, since the CPSC requested 
that ASTM develop an industry safety standard, the numbers of annual 
fatalities associated with falling furniture have actually increased by 
50 percent. In today's highly competitive marketplace, there is often 
little incentive for manufacturers to meet voluntary safety standards.
    (ii) New and Emerging Technologies in Product Manufacturing and 
Production--CU is very concerned that the ``brain drain'' impacting the 
Commission may prevent the CPSC from aggressively investigating safety 
issues relating to new and emerging technologies--particularly those 
relating to the manufacture of consumer products created with 
nanotechnology, using nanoparticles.
    Nanotechnology--Relating to nanotechnology, the CPSC's, sole 
mention of nanotechnology in its 2008 Performance Budget request is, as 
follows:

        Nanomaterials represent a wide range of compounds that may vary 
        significantly in their structure, physical and chemical 
        properties, and potentially in their behavior in the 
        environment and in the human body. CPSC staff will continue to 
        participate in interagency activities for nanotechnology. Goal: 
        Staff will use the information gained from its participation in 
        interagency activities, along with other information collected 
        on the use of nanomaterials in consumer products, to identify 
        issues and projects for future consideration. Staff will 
        prepare a draft status report of this effort.\19\
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    \19\ U.S. Consumer Product Safety Commission, ``2008 Performance 
Budget Request, Saving Lives and Keeping Families Safe,'' Submitted to 
the Congress, February 2007. http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/
2008plan.pdf.

    We believe that the CPSC must be much more proactive in arming 
itself with a detailed understanding of the dangers posed to consumers 
by cutting-edge products, especially those created through 
nanoengineering. We urge this Subcommittee to ensure that the CPSC has 
the laboratory equipment and resources needed to assess any 
unreasonable risks to consumers, and the will to follow through.
    Lithium-Ion Batteries--An additional area of concern is fire and 
burn related dangers relating to lithium-ion batteries. On August 16, 
2006 the CPSC announced a sweeping recall involving batteries, 
manufactured by Sony, which came with 33 different computers sold April 
1, 2004 through July 18, 2006. The recall involved 4 million 
rechargeable lithium-ion batteries (sold separately and as replacement 
parts) for dozens of Dell laptop computers, due to the danger that they 
could overheat and catch fire. Of the 4.1 million suspected batteries, 
2.7 million were distributed in the U.S. At the time of the recall, 
Scott Wolfson, public affairs spokesman for the CPSC, stated to 
Consumer Reports that the hazards stem from quality-control issues at 
battery manufacturing facilities in Japan and China.
    Additional recalls were conducted of Sony laptop batteries, 
eventually bringing the total number of Sony's recalled laptop 
batteries to about 9.4 million. Overheating problems affecting 
rechargeable lithium-ion batteries have been an ongoing issue. Lithium-
ion batteries pack high amounts of energy into a small package and, 
subsequently, can produce a lot of heat. Despite the wide-spread 
attention given to batteries in laptops, the dangers are not limited to 
these products. The CPSC has logged 339 incident reports between 2003 
and 2005 involving potentially faulty laptop computer batteries as well 
as cell phone batteries. The incidents ranged from smoking and 
charring, to batteries bursting into flames and skin burns. Cell phone 
batteries have been associated with more serious burn injuries because 
of the close proximity between the telephone and the user's head and 
face.
    Issues relating to lithium-ion batteries require research, 
investigation, and market surveillance to ensure that unsafe electronic 
products do not present an unreasonable risk to consumers. We encourage 
the CPSC to continue to urge the development of safety standards for 
these batteries, and to strongly encourage manufacturers to focus more 
attention on quality control. In addition, we urge the Subcommittee to 
follow the CPSC's activities in this area closely.
    (iii) Changing Demographics of the U.S. Population--The CPSC itself 
has identified a disturbing trend, and has documented that from 1991 to 
2002, the number of older adults (75 and older) treated in U.S. 
hospital emergency rooms for products-related injuries increased 73 
percent. This increase is almost three times the group's increase in 
population. Many of the injuries were related to common household 
products such as yard and garden equipment, ladders, step stools, and 
personal use items. As the population ages, it is even more important 
that manufacturers work to reverse this recent trend with products that 
are not defective and unreasonably dangerous when used by the elderly.

B. Legal and Regulatory Factors Exacerbating the Impact of CPSC'S Lack 
        of 
        Adequate Funding
    (i) Lack of a Permanent Chairman and Quorum at the Commission--The 
Commission has suffered from lack of a quorum after the departure of 
Chairman Hal Stratton in July of 2006, and has since been working with 
only two commissioners and forced to operate without a quorum for some 
months. That this position lay vacant for so many months is itself a 
statement on the lack of regard for the work of the CPSC. However, 
while the Commission needs leadership, to be sure, its work is too 
important to allow the chairmanship to go to a political appointee with 
no demonstrable experience in or commitment to consumer protection. 
CPSC is a regulatory agency and it requires a chairman who is willing 
to protect the public from risks to safety by regulating industry where 
necessary. Section A of the Consumer Product Safety Act \20\ provides 
useful guidance to Congress and the President on this point:
---------------------------------------------------------------------------
    \20\ Consumer Product Safety Act, 15 U.S.C. 2051-2084, Public Law 
92-573; 86 Stat. 1207, Oct. 27, 1972.

        An independent regulatory commission is hereby established, to 
        be known as the Consumer Product Safety Commission, consisting 
        of five Commissioners who shall be appointed by the President, 
        by and with the advice and consent of the Senate. In making 
        such appointments, the President shall consider individuals 
        who, by reason of their background and expertise in areas 
        related to consumer products and protection of the public from 
        risks to safety, are qualified to serve as members of the 
---------------------------------------------------------------------------
        Commission.

    We urge this Committee and the Senate, therefore, to keep this in 
mind and carefully examine the background and qualifications of the 
current Administration nominee.
    (ii) Inadequacy of Civil Penalties--The use of civil penalties to 
penalize suppliers for selling or failing to report unsafe products is 
often an ineffective deterrent. The $750,000 civil penalty levied 
against Wal-Mart in 2003 for failing to report safety hazards with 
fitness machines cost the company an equivalent of the sales rung up in 
only 1 minute and 33 seconds. For large retailers and manufacturers, 
paying civil fines are a small cost of doing business. In 2006, CPSC 
negotiated out of court settlements in which six companies agreed to 
pay $2.3 million in civil penalties to the U.S. Treasury for failing to 
report under 15(b).\21\
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    \21\ CPSC 2008 Performance Budget Request, submitted to Congress 
February 2007.
---------------------------------------------------------------------------
    The Consumer Product Safety Act's Section 15(b) requires that 
manufacturers, distributors, and retailers who learn that their product 
either: (1) fails to comply with an applicable consumer product safety 
rule or with a voluntary consumer product safety standard; (2) or 
contains a defect that could create an unreasonable risk of serious 
injury or death (i.e., a ``substantial product hazard'') must 
immediately notify the CPSC--unless the company knows the CPSC has 
already been informed.\22\ The history, however, of manufacturers' 
failure to report in a timely manner under this section is all too well 
known. Especially of concern are manufacturers' failures to report 
children's products known by them to have caused injury or death. 
Included among companies failing to report are Wal-Mart and General 
Electric (GE)--two of the wealthiest corporations in America. We 
believe the cap on the fines CPSC can levy for failure to report known 
hazards weakens the power of the reporting statute. Current total fines 
may not exceed $1,850,000 for any related series of violations. This 
amount is too small to be an effective deterrent for large 
corporations. CU believes in lifting the cap on fines.
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    \22\ See 15 U.S.C.  2064(b).
---------------------------------------------------------------------------
    We believe that if the level of fines is not so easily calculable, 
companies will view the potential fines as a bona fide deterrent to the 
nonreporting of product safety hazards.
        (iii) Inadequacy of CPSC Laboratories--CU understands that the 
        effectiveness of the CPSC in fulfilling its mission is 
        seriously impaired by a lack of capital investment. This 
        failure to equip CPSC staff with state-of-the-art laboratory 
        equipment is disturbing. The CPSC must be given the resources 
        needed to keep abreast of advancing science and technology. 
        Without these resources, the Commission is handicapped--and is 
        little able to investigate products developed with new 
        technologies, such as nanotechnology.
    I thank the Chairman and other members of the Subcommittee for the 
opportunity to testify, and I look forward to answering any questions 
you have.

    Senator Pryor. Thank you.
    Ms. Weintraub?

           STATEMENT OF RACHEL WEINTRAUB, DIRECTOR OF

   PRODUCT SAFETY AND SENIOR COUNSEL, CONSUMER FEDERATION OF 
                            AMERICA

    Ms. Weintraub. Chairman Pryor and members of the 
Subcommittee, specifically Senator McCaskill, I am Rachel 
Weintraub, Director of Product Safety and Senior Counsel for 
Consumer Federation of America. CFA is a nonprofit association 
of approximately 300 consumer groups with a combined membership 
of over 50 million people, that was founded in 1968 to advance 
the consumer interest through advocacy and education.
    The Consumer Product Safety Commission plays a critical 
role in protecting consumers from product hazards. CPSC saves 
society $700 billion each and every year. CFA believes that a 
stronger CPSC, one with more funds, more staff, and an improved 
authorizing statute, can better serve the public than a less 
robust agency.
    Last September the commission voted to approve a budget 
request of $66.838 million, which is a $4.468 million increase 
over the President's 2007 budget request. This request would 
have maintained current staff levels at 420 full-time employees 
and covered the cost of information technology necessary to 
maintain CPSC's program activities.
    However, the President's 2008 budget, as we have discussed, 
would fund only 401 full-time employees, the fewest number in 
the agency's history, and provide $63.25 million to operate the 
agency. This is a reduction of 19 full-time employees and a 
small increase of just $880,000 from the 2007 appropriation.
    The agency's budget has not kept up with inflation, has not 
kept up with its deteriorating infrastructure, has not kept up 
with increasing data collection needs, has not kept up with the 
fast-paced changes occurring in consumer product development, 
and has not kept up with the vast increase in the number of 
consumer products on the market. CPSC's staff has suffered 
severe and repeated cuts during the last two decades, falling 
from a high of 978 employees in 1980 to just 401 for this next 
fiscal year, a loss of almost 60 percent. This is so 
significant because 90 percent of the agency's costs cover 
staff expenses.
    There are vast consequences to this budget. The CPSC's 
laboratory, as we discussed, is old and outdated. However, the 
2008 performance budget does not request any funds at all to 
improve this laboratory which serves a crucial role in CPSC's 
compliance investigations and safety activities. Further, 
sophisticated, high-tech products such as the Segway device, 
lithium batteries, and those with nanotechnology, pose 
particularly resource-intensive challenges. The 2008 
performance budget does not provide any funds or an opportunity 
for CPSC staff to adequately study emerging technologies in the 
consumer products market.
    To deal with imported products, along with their work with 
Customs, CPSC seeks to sign Memorandums of Understanding with 
other countries. We hope that these lead to concrete efforts to 
prevent unsafe products from entering the United States. To 
achieve this, the CPSC must work to prohibit the export of 
products that don't meet voluntary or mandatory safety 
guidelines.
    We have a number of substantive issue areas of concern. CFA 
is profoundly dissatisfied with CPSC's current rulemaking on 
all-terrain vehicles. Serious injuries requiring emergency room 
treatment increased to 136,700 in 2006, and deaths in 2005 
reached an estimated 767. CPSC's rule changes the way ATVs have 
been categorized by engine size to a system based upon speed. 
CPSC staff admitted that speed-limiting devices, upon which 
these categories depend, fail consistently.
    This categorization failed to take weight of the ATVs into 
consideration. And, further, while 45 percent of ATV incidences 
involve an ATV tipping over, CPSC has not conducted stability 
tests or research because CPSC staff has not had the resources 
to perform the necessary tests.
    The ability of CPSC to conduct effective recalls of unsafe 
products is critical to protecting the public from risks 
associated with unsafe consumer products. However, the 2008 
budget appropriates no funds for this purpose.
    An emerging hazard necessitating CPSC action involves toy 
manufacturers' use of strong, small magnets in toys. The 
ingestion of more than one of these magnets poses serious risks 
of death or injury to children. CPSC has conducted four recalls 
of these products. However, given the seriousness of the 
consequences of ingestion of these magnets, some of these 
recalls were not even called recalls, and another triggered 
action only after the magnet already came out of the toy.
    CPSC's budget does not include a number of important 
programs or activities that it has in the past. For example, 
the commission has no plans for in-depth studies on playgrounds 
or ATVs, and no longer includes child drowning deaths as one of 
its strategic goals, even though it's a leading cause of death 
among children.
    While we have grave concerns about numerous issues before 
the commission, there are aspects worthy of praise which we 
would like to articulate. First, CFA has a deep respect for 
CPSC staff, who have continued to work diligently and 
effectively throughout the commission's budget cuts, loss of 
experienced senior level staff, and loss of a quorum. Second, 
CPSC's National Electronic Injury Surveillance System is 
working effectively.
    We have concerns about the loss of a quorum. We also have a 
number of suggestions about improvements to CPSC statutes: 
First, to increase the cap on civil penalties, which is 
currently capped at $1.825 million. Second, eliminating Section 
6(b), which we feel handicaps the agency and ties their hands 
to provide information to the public. And, third, to improve 
recall effectiveness.
    In conclusion, this Subcommittee must make sure that the 
Federal Government lives up to the commitment it made to 
protect consumers from product-related deaths and injuries when 
it created the Commission. CFA urges more funds to be 
appropriated to the Commission, and amendments to its statute, 
so that the Commission can grow to incorporate a changing and 
more complex marketplace.
    [The prepared statement of Ms. Weintraub follows:]

Prepared Statement of Rachel Weintraub, Director of Product Safety and 
             Senior Counsel, Consumer Federation of America

    Chairman Inouye, and members of the Subcommittee, I am Rachel 
Weintraub, Director of Product Safety and Senior Counsel for Consumer 
Federation of America (CFA). CFA is a non-profit association of 
approximately 300 pro-consumer groups, with a combined membership of 50 
million people that was founded in 1968 to advance the consumer 
interest through advocacy and education. Thank you for the opportunity 
to speak today.

I. Introduction
    CPSC's mission, as set forth in the Consumer Product Safety Act, 
CPSC's authorizing statute, is to ``protect the public against 
unreasonable risks of injury associated with consumer products.'' \1\ 
CPSC is charged with protecting the public from hazards associated with 
over 15,000 different consumer products. Its statutes give the 
Commission the authority to set safety standards, require labeling, 
order recalls, ban products, collect death and injury data, inform the 
public about consumer product safety, and contribute to the voluntary 
standards setting process.
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    \1\ Consumer Product Safety Act, 15 U.S.C. 2051, section 2(b)(1).
---------------------------------------------------------------------------
    The Consumer Product Safety Commission (CPSC) plays an extremely 
critical role in protecting American consumers from product hazards 
found in the home, in schools and during recreation. CPSC saves $700 
billion in societal costs each year.\2\ We know from past experience, 
from survey data, and from consumers who contact us, that safety is an 
issue that consumers care deeply about and that CPSC is an agency that 
consumers support and depend upon to protect them and their families.
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    \2\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page 72. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
    While Consumer Federation does not always agree that the CPSC is 
acting in the best interest of consumers, indeed CPSC has denied 
several petitions CFA has filed to better protect the public and CFA 
has opposed numerous aspects of CPSC's rulemakings and inaction on 
other issues, CFA still believes that a stronger CPSC, one with more 
funds and more staff, can better serve the public than a less robust 
one struggling to re-set and limit its priorities. In addition, CFA has 
deep respect for CPSC staff: they are dedicated and hardworking and 
have worked diligently while weathering the storms of budget cuts and a 
lack of quorum.

II. CPSC Budget
    With jurisdiction over many different products, this small agency 
has a monstrous task. This challenge is heightened by the fact that, 
over the past two decades, CPSC has suffered the deepest cuts to its 
budget and staff of any health and safety agency.\3\
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    \3\ See Appendix 1, at the end of this document.
---------------------------------------------------------------------------
    In 1974, when CPSC was created, the agency was appropriated $34.7 
million and 786 FTEs. Now 32 years later, the agency's budget has not 
kept up with inflation, has not kept up with its deteriorating 
infrastructure, has not kept up with increasing data collection needs, 
has not kept up with the fast paced changes occurring in consumer 
product development, and has not kept pace with the vast increase in 
the number of consumer products on the market. CPSC's staff has 
suffered severe and repeated cuts during the last two decades, falling 
from a high of 978 employees in 1980 to just 401 for this next fiscal 
year. This is a loss of almost 60 percent.
    While every year an estimated 27,100 Americans die from consumer 
product related causes, and an additional 33.1 million suffer injuries 
related to consumer products under the jurisdiction of the CPSC, this 
agency, with its reduced staff and inadequate funds, is limited in what 
it can do to protect consumers. Due to these constraints, CPSC cannot 
even maintain its current level of safety programs, let alone invest in 
its infrastructure to improve its work in the future.
    Because of this historically bleak resource picture, CFA is 
extremely concerned about the agency's ability to operate effectively 
to reduce consumer deaths and injuries from unsafe products. It is for 
this reason that CFA believes that one of the most important things 
that can be done to protect consumers, including children, from unsafe 
products is to assure that CPSC has sufficient funding. CPSC's current 
budget, staff, and equipment are stretched to the point of breaking. 
CPSC salaries and rent currently consume almost 90 percent of the 
agency's appropriation. The remaining 10 percent of the agency's budget 
pays for other functions (such as supplies, communications and utility 
charges, operation and maintenance of facilities and equipment) that 
merely allow CPSC to keep its doors open for business each day.

III. 2008 Budget Numbers
    In September of 2006, Acting Chairman Nord and Commissioner Moore 
voted unanimously to approve the Executive Director's recommendations 
as proposed in her memorandum.\4\ The memorandum included a budget 
request of $66,838,000 which is a $4,468,000 increase over the 
President's 2007 budget request. This request would maintain current 
staff levels at 420 FTE and cover the costs of information technology. 
Both the staffing and information technology are necessary to maintain 
CPSC's current level of program activities.\5\
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    \4\ This document is not publicly available.
    \5\ Record of Commission Action, Commissioners Voting by Ballot, 
Fiscal Year 2008 Performance Budget Request, September 7, 2006. 
Available on the web at http://www.cpsc.gov/LIBRARY/FOIA/ballot/
ballot06/FY08.pdf.
---------------------------------------------------------------------------
    However, this budget request was rejected by the Administration. 
The President's 2008 budget would fund only 401 full time employees 
(``FTE''), the fewest number of FTEs in the agency's over 30 year 
history, and provide only $63,250,000 to operate the agency. This is a 
reduction of 19 FTEs and a small increase of $880,000 from the 2007 
appropriation. This increase does not provide for inflation, will not 
allow the CPSC to maintain its current programming, and will not allow 
for the CPSC to invest in its research resources and infrastructure.
    Funding for the CPSC has remained essentially flat for the past 2 
years, forcing staff decreases of 31 FTEs in 2006 and 20 FTEs in 2007. 
Since 2000, the CPSC has lost 79 FTEs, a loss of 16 percent. This loss 
in staff is particularly significant because ``CPSC is a staff 
intensive organization with nearly 90 percent of its recent funding 
absorbed by staff compensation and staff related space rental costs.'' 
\6\ CPSC estimates that to maintain its current staffing level of 420 
FTEs, which already requires limiting CPSC's programs; CPSC would need 
an additional $2,167,000. CPSC is required by various Federal rules to 
increase costs for staff such as a projected 3 percent Federal pay 
raise, increased Federal Employee Retirement System contributions and 
two additional paid work days.
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    \6\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page v. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
    CPSC faces additional cost increases of $50,000 for rental space, 
though it is off-setting that by saving $500,000 in returning unused 
space, as a result of the reduced number of staff, which is currently 
causing a lot of commotion at the agency. In addition, ``annual costs 
for service contracts are growing faster than CPSC is able to find off-
setting savings.'' \7\ These costs include required system enhancements 
for payroll and accounting that cost $250,000.
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    \7\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page v. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
    CPSC estimates that it needs an addition $1,000,000 to update 
CPSC's operating systems but admits that this amount is a minimum 
amount that will not allow them to implement new software systems. 
Improvements in the CPSC's information technology are critical. The 
Commission has requested funds for improving their information systems 
for many years and the needs are growing exponentially. Especially with 
such reduced staffing, CPSC needs mechanisms to increase efficiency at 
every level and IT is the best way to facilitate those efficiencies. IT 
is critical to what staff at CPSC do every day. In practically every 
aspect of CPSC's work, ``CPSC relies on IT in our related technical, 
compliance, outreach and operational areas.'' \8\
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    \8\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page vi. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
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IV. Consequences of the 2008 Budget Request
    ``CPSC has maximized staff efficiencies and cannot absorb further 
reductions without having an impact on its product safety activities.'' 
\9\ Below are just a few examples of how this limited budget affects 
CPSC.
---------------------------------------------------------------------------
    \9\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page vi. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
A. Laboratory Will Not Be Modernized
    Much of CPSC's equipment, particularly at the Commission's 
laboratory, is old and outdated. However, the 2008 performance Budget 
document does not even request any funds to improve the laboratory. 
This exemplifies how limited this budget is. CPSC's testing laboratory 
serves a crucial role in CPSC's compliance investigations and safety 
standards activities. In spite of the laboratory's critical importance, 
no major improvements have been made in the past 32 years. Rather, CPSC 
and GSA have made only slight modifications to its infrastructure, 
which was originally designed for military use not laboratory use. 
Currently, CPSC staff working at the lab are working under merely 
adequate conditions. If the laboratory were to be modernized, the CPSC 
would increase productivity and efficiency. For example, each time the 
CPSC must conduct a test on a baby walker, due to a compliance 
investigation such as a recall or a standard setting activity, the 
specialized equipment must be rebuilt due to limited space and limited 
existing equipment. Therefore, each test takes up more time than it 
would if the equipment existed permanently and prevents CPSC engineers 
from working on other projects. Moreover, with increasingly more 
complex products under CPSC's jurisdiction, the facilities at the 
laboratory are becoming more outdated every year.

B. CPSC Will Not Be Able To Regulate Effectively
    CPSC's funding directly affects its ability to regulate 
effectively. Most of the recalls brought about by the agency are the 
result of voluntary agreements reached between CPSC and manufacturers 
and/or distributors. However, in every recall matter it considers, the 
Commission must be prepared with research evidence to convince the 
company of the need for action. In cases where the agency must file a 
complaint and litigate the matter, the agency may require even more 
extensive testing and research data for use as evidence at trial. This 
testing and research, whether leading to a recall or trial, may need to 
be contracted out and is very costly. This contingency is one with 
enormous ramifications. In effect, not having sufficient resources puts 
the CPSC in a terrible position as an enforcement agency. It can't put 
its money where its mouth is--so to speak--because it can't be sure it 
will have the money needed to follow through on its enforcement 
actions.

C. Changing Consumer Product Market--New Products and More Imports
    This concern is further exacerbated as new products and new 
technologies come on to the market. Sophisticated, high tech products, 
such as Segway devices, which CPSC engineers may have never seen, much 
less have expertise with, pose particularly resource intensive 
challenges. Products such as computer lithium batteries that have 
recently been subject to recall as well as products involving 
nanotechnology challenge the Commission's limited resources. For the 
CPSC to live up to its safety mandate, it must be able to keep pace 
with the ever-changing development of technology. The 2008 Performance 
Budget does not seem to provide funds or an opportunity for CPSC staff 
to adequately study these and other emerging technologies in the 
consumer product market.
    Another aspect of the changing consumer product market is that 
every year, more and more consumer products are imported into the 
United States. According to CPSC, two thirds of all recalls involved 
products manufactured overseas. CPSC has two programs dealing 
specifically with this issue. The first is its program with the U.S. 
Customs and Border Protection. In 2006, CPSC field staff and U.S. 
Customs staff prevented about 2.9 million noncompliant cigarette 
lighters and fireworks from entering the United States \10\ and also 
prevented 434,000 units of toys and other children's products from 
entering the country.\11\ The 2008 Performance Budget includes a goal 
of import surveillance for one product for which fire safety standards 
are in effect and one product for which safety standards are in effect. 
These are limited goals due to limited resources.
---------------------------------------------------------------------------
    \10\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page 21. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
    \11\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page 36. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
    The second is the relatively new Office of International Programs 
and Governmental Affairs which seeks to have signed Memorandums of 
Understanding with seventeen countries by the end of 2008. These 
memoranda establish closer working relationships and set up frameworks 
for exchanging safety information with CPSC's counterparts in other 
countries. CFA hopes that these memoranda lead to concrete efforts to 
prevent unsafe products from entering the United States and we believe 
that to achieve this, the CPSC must work with other countries to 
prohibit the export of products that don't meet voluntary or mandatory 
safety guidelines. Specifically, compliance with safety standards 
should be made a necessary condition of receiving an export license for 
certain products which have had pervasive safety problems. Further, 
products should be required to be tested/certified by an independent 
third party laboratory to determine if products meet safety standards. 
If they do not, products cannot be exported to United States. This 
protects the marketplace before products enter the stream of commerce. 
Critically, this will not rely on the customs program which has many 
other competing homeland security priorities. Ultimately the 
responsibility falls on the manufacturers, many of which are not based 
in the United States and they must be more fully engaged in policing 
their products.

D. Freedom of Information Act
    CPSC had an internal policy of responding to Freedom of Information 
Act (FOIA) requests within 20 days. Recently, there has been a large 
backlog and many responses now take considerably longer than 20 days. 
This is due in large part to the staff allocated to work on FOIA 
requests. At the end of 2004, CPSC had 15 FTEs devoted to responding to 
FOIA requests. As of March of 2006, CPSC had 8 FTEs devoted to the same 
efforts. These staff reductions like many in the Commission were 
achieved through attrition and retirement buy-outs. As of December 31, 
2005, the FOIA backlog was 145 requests. At that time the commission 
anticipated that it would have a backlog of 90 requests at the end of 
2006.\12\ A recent Associated Press article included a telling example:
---------------------------------------------------------------------------
    \12\ See http://www.cpsc.gov/library/foia/foia061406.pdf.

        Tom Curley, President and CEO of The Associated Press and a 
        member of the Sunshine in Government Initiative, a media 
        coalition, related how it took a year for an AP reporter to get 
        lab reports on lead levels in lunch boxes that the Consumer 
        Product Safety Commission had deemed safe. The tests revealed 
        that one lunch box in five contained lead levels that some 
        medical experts considered unsafe. ``Why did it take a year for 
        the commission to respond to a relatively simple request that 
        FOIA says it was supposed to answer in 20 working days?'' 
        Curley said.\13\
---------------------------------------------------------------------------
    \13\ Associated Press, ``Democrats push for open government agenda: 
`Sunshine Week' bills in Congress to counter Bush administration 
secrecy,'' March 14, 2007. available on the web at: http://
www.msnbc.msn.com/id/11203718/.

    Responding to requests for information from the public is a 
critically important function of the agency and one that ultimately 
leads to improved products and a safer public, yet under this budget 
proposal CPSC is limited in how they can respond and fulfill the 
public's request for information.

V. Substantive Issue Areas of Concern

A. All-Terrain Vehicles (ATVs)
    One of CFA's priority issues before CPSC is all-terrain vehicle 
safety. It is no secret that CFA is extremely dissatisfied with CPSC's 
current rulemaking on ATVs. Serious injuries requiring emergency room 
treatment increased to 136,700 in 2005. Since 2001, there has been a 
statistically significant 24 percent increase in serious injuries from 
ATVs. The estimated number of ATV-related fatalities increased to 767 
in 2004. Children under 16 suffered 40,400 serious injuries in 2005. 
Since 2001, there has been a statistically significant increase of 18 
percent in the number of children under 16 seriously injured by ATVs. 
Children made up 30 percent of all injuries. In 2005, ATVs killed at 
least 120 children younger than 16 accounting for 26 percent of all 
fatalities. Between 1985 and 2005, children under 16 accounted for 36 
percent of all injuries and 31 percent of all deaths.
    One of our biggest concerns with CPSC's proposed rule is that it 
will change the way ATVs are categorized. CPSC is seeking to change the 
way ATVs have been traditionally categorized--by engine size to a 
system based upon speed. Since the late 1980s, adult size ATVs have 
been defined as an ATV with an engine size of over 90cc's. The CPSC 
proposes to alter the age/size guidelines by creating a system that 
limits the maximum speeds of ATVs intended for children under the age 
of 16.
    The Commission's rule proposes Teen ATVs, intended for children 
between 12-15 years old, with a maximum speed of 30 mph; Pre-teen ATVs, 
intended for children between 9-11 years old, with a maximum speed of 
15 mph; and Junior ATVs, intended for children between 6-8 years old, 
with a maximum speed of 10 mph. We are not satisfied that the 
Commission has adequate evidence to support this rule. CPSC staff 
admitted that speed limiting devices upon which the above outlined 
categories depend, do not work consistently. This categorization fails 
to take weight of the ATV into consideration, which significantly 
impacts the consequence of a crash or tip over. Further, we are vastly 
concerned that the Commission has neglected researching critical 
aspects of this issue, partly because it simply cannot afford to do so.
    For example, 45 percent of ATV incidents involve an ATV tipping 
over, thus raising the issue of an ATVs inherent stability. However, 
CPSC has not conducted stability tests or research. When Commissioner 
Moore asked CPSC staff about this lack of information, CPSC staff 
responded, ``CPSC staff has not had the resources to perform the 
necessary tests and evaluations to develop a comparative analysis of 
the current market of ATVs for steering, pitch stability, lateral 
stability, braking, and other handling features.'' \14\
---------------------------------------------------------------------------
    \14\ CPSC Staff Response Regarding Follow Up Questions from 
Commissioner Moore after June 15, 2006, ATV Safety Briefing, July 11, 
2006.
---------------------------------------------------------------------------
    This is unfathomable--the factors that staff are not studying 
comprise those aspects of ATVs that are most involved in ATV incidents 
leading to death and injury. Failures of these systems are critical to 
ATV crashes and tip-overs. However, the Commission is moving forward on 
an ill-advised rule without studying these issues due, at least to a 
significant degree, to a lack of resources. We fear that not only will 
this rule not save lives, but that it may lead to younger children 
riding larger, faster and potentially more dangerous machines.

B. Recall Effectiveness
    The ability of the CPSC to conduct effective recalls of unsafe 
products is critical to protecting the public from unreasonable risks 
associated with consumer products. However, the 2008 Performance Budget 
does not describe any efforts to improve recall effectiveness. In 2001, 
CFA filed a petition with CPSC urging them, among other things, to 
issue a rule that would require that manufacturers (or distributors, 
retailers, or importers) of products intended for children provide 
along with every product a Consumer Safety Registration Card that 
allows the purchaser to register information, through the mail or 
electronically. Such information will allow the manufacturer to contact 
the purchaser in the event of a recall or potential product safety 
hazard.
    The Commission denied CFA's petition in March of 2003 and has not 
undertaken any concrete efforts to broadly increase recall 
effectiveness other than the creation of a website dedicated to 
recalls. Unfortunately, the website requires a consumer to take 
proactive steps to obtain recall information, even though research 
indicated that direct-to-consumer notification is the best method for 
informing consumers about recalls. Direct ways to inform consumers who 
purchased the recalled product exist and would be more effective than 
the current approach which relies upon the media to convey the news of 
the recall.
    When consumers do not hear of product recalls, their lack of 
information can lead to tragic consequences, including death or injury. 
By relying solely upon the media and manufacturers to broadly 
communicate notification of recalls to the public, CPSC and the 
companies involved are missing an opportunity to communicate with the 
most critical population--those who purchased the potentially dangerous 
product. Product registration cards or a similar electronic system 
provide consumers the opportunity to send manufacturers their contact 
information enabling manufacturers to directly notify consumers about a 
product recall. The 2008 budget does not provide any funds for the 
Commission to study this issue or to consider better more effective 
alternatives.

C. Mattress Rule--Preemption
    The Commission promulgated a rule on mattress flammability on March 
15, 2006 that purports to preempt state common law remedies. According 
to CPSC's own data, annual national fire loss estimates for 1999-2002 
indicate that mattresses or mattress bedding were the first item to 
ignite in 15,300 residential fires resulting in property loss of $295 
million, and causing 350 deaths and 1,750 injuries. Mattress 
flammability poses a significant threat to lives and property and 
compels a Federal response to eliminate these injuries. However, 
insofar as the new CPSC Rule seeks to preempt a consumers' ability to 
hold mattress manufacturers accountable in state court, the Rule could 
undermine public safety and consumers' right of redress for harms 
caused by unreasonably dangerous products in state courts.
    First, the proposed preemption of state common law remedies by a 
CPSC final rule is unprecedented. Second, state common law claims 
resulting from dangerous products compensate consumers who have been 
harmed by the negligence of others. Third, while CPSC rules sometimes 
include preemption of state safety standards, the language in the Draft 
Final Rule would also, for the first time, claim to preempt state 
common law tort claims. Finally, the preemption language was added to 
the rule's preamble after the notice and comment period closed, 
providing no opportunity for review or evaluation by the public.
    The U.S. Consumer Product Safety Commission's main duty to Congress 
and the public is to protect the public from unreasonable risks of 
injury associated with consumer products. Since liability law enhances 
safety by providing continual incentives to improve product design, the 
inclusion of a preemption provision in a final rule would violate the 
CPSC's core mission.

D. Magnet Toy Recalls
    A recent emerging hazard necessitating CPSC action involves 
numerous toy manufacturers' use of strong, small magnets in toys. The 
ingestion of more than one of these magnets poses serious risks of 
death or injury to children. The magnets can link together and siphon 
off the intestines, creating a deadly blockage. According to a December 
2006 Centers for Disease Control article, since 2003, CPSC staff 
members have identified one death resulting from ingestion of these 
magnets and 19 other cases of injuries requiring gastrointestinal 
surgery.\15\ CPSC has conducted four recalls \16\ of these products; 
however, given the seriousness of the consequences of the ingestion of 
these products, some of these recalls were questionable and 
unacceptably weak.
---------------------------------------------------------------------------
    \15\ J Midgett, Ph.D., Div of Human Factors; S Inkster, Ph.D., Div 
of Health Sciences; R. Rauchschwalbe, MS, M. Gillice, Office of 
Compliance, Consumer Product Safety Commission. J. Gilchrist, MD, Div. 
of Unintentional Injury Prevention, National Center for Injury 
Prevention and Control, CDC. ``Gastrointestinal Injuries from Magnet 
Ingestion in Children--United States, 2003-2006,'' MMWR, December 8, 
2006/55 (48); 1296-1300, available on the web at www.cdc.gov/mmwr/
preview/mmwrhtml/mm5548a3.htm.
    \16\ These recalls include: Rose Art Industries, Magnetix, March 
31, 2006, http://www.cpsc.gov/CPSCPUB/PREREL/prhtml06/06127.html; 
Mattel, Polly Pockets, November 21, 2006, http://www.cpsc.gov/CPSCPUB/
PREREL/prhtml07/07039.html; Geometix International LLC 
MagneBlocksTM Toys, January 18, 2007, http://www.cpsc.gov/
CPSCPUB/PREREL/prhtml07/07085.html; and Jazwares Inc., Link-N-
LitesTM Magnetic Puzzles, February 15, 2007, http://
www.cpsc.gov/CPSCPUB/PREREL/prhtml07/07106.html.
---------------------------------------------------------------------------
    In March 2006, Rose Art Industries conducted a ``Replacement 
Program'' for their Magnetix Magnetic Building Sets. The term 
``replacement program'' is ambiguous to consumers and fails to alert 
them to the seriousness of this issue. Further, it was never made clear 
that products put back on the shelf after the recall were substantively 
different from the recalled products, thus not necessarily reducing the 
risk. In addition, a January 18, 2007 recall of Geometix International 
LLC's MagneBlocksTM Toys, included a surprisingly weak 
recommendation for what consumers should do. The press release stated 
that, ``CPSC recommends children under 6 years of age not play with 
toys containing magnets. If a magnet comes out of one of the blocks in 
these sets, immediately remove the block from the set and send it to 
Geometix International for a free replacement block.'' \17\
---------------------------------------------------------------------------
    \17\  See Geometix press release at http://www.cpsc.gov/CPSCPUB/
PREREL/prhtml07/07085.htm.
---------------------------------------------------------------------------
    Thus, only after it is visibly clear that the harm may have 
occurred should action be taken to protect a child. Recalls are already 
a response to the knowledge of a potential risk. This recall is doubly 
weak because it does not give consumers the opportunity to prevent a 
documented likely harm. Sadly, the response by some in the toy industry 
has been to shift responsibility from manufacturers to parents. 
However, it is clear, that magnets come out so frequently from some of 
these toys and are so small, that no amount of parental supervision 
could have prevented many of these incidents. We urge this Committee to 
look into why some of these recalls have been so weak.

E. Changes to Section 15(b) of the Consumer Product Safety Act
    On July 13, 2006, the Commission issued Final Interpretative 
Guidance on section 15(b) of the Consumer Product Safety Act. Section 
15(b) requires that every manufacturer, distributor, or retailer must 
immediately inform the CPSC if it ``obtains information that reasonably 
supports the conclusion that its product either: (1) fails to comply 
with an applicable consumer product safety rule or with a voluntary 
consumer product safety standard . . .; (2) contains a defect which 
could create a substantial product hazard . . .; or (3) creates an 
unreasonable risk of serious injury or death.'' \18\ The CPSC guidance 
purported to clarify the current law by adding factors to be considered 
when evaluating the duty to report: the definition of defect will be 
amended to include the role of consumer misuse, adequacy of warnings, 
and obviousness of the risk; the number of defective products on the 
market will be considered; and compliance with product safety standards 
will be evaluated. We fear that these factors could cloud the 
interpretation of the law and the obligation to report under this 
section.
---------------------------------------------------------------------------
    \18\ 15 U.S.C.  2064(b)(1), (b)(2), and (b)(3).
---------------------------------------------------------------------------
    We are also troubled that these proposed changes will shift the 
burden of weighing relevant factors in reporting under section 15(b) 
from the CPSC to businesses as well as create a safe harbor for non-
reporting. Further we are alarmed about reliance on factors such as the 
number of defective products in use as well as compliance with product 
safety standards to determine whether hazards are reportable. We fear 
that this guidance may jeopardize the Commission's ability to receive 
important product safety information that is critical for CPSC's 
consumer protection function.

F. Other Areas No Longer Addressed
    CPSC's Performance Budget Document does not include a number of 
incredibly important programs or activities that it has had in the 
past. For example, the Commission has no plans for in-depth studies on 
playgrounds or ATVs. These in-depth studies provide incredibly 
important information about the way injuries and deaths occur. These 
studies are invaluable to people working on solutions to prevent these 
incidents.
    Significantly, the Commission no longer includes reducing child 
drowning deaths as one of its results-oriented hazard reduction 
strategic goals. The Commission, in the 2008 Performance Budget 
document states, ``We continue our work in reducing child drowning 
deaths at the annual project level including expanding our public 
information efforts. Staff, however, proposes that we no longer address 
this area at the level of a strategic goal because of resource 
limitations and the limited ability to develop further technical 
remedies to address the behavioral aspects of child drowning.'' \19\ 
Drowning continues to be the second leading cause of accidental injury-
related death among children ages one to fourteen and the leading cause 
of accidental injury-related death among children one to four. Thus, 
even though a leading cause of death among children, the Commission can 
no longer prioritize its work on reducing child drowning as a result of 
reduced funding.
---------------------------------------------------------------------------
    \19\ U.S. Consumer Product Safety Commission, 2008 Performance 
Budget Request, submitted to Congress, February 2007, page 8. On the 
web at http://www.cpsc.gov/CPSCPUB/PUBS/REPORTS/2008plan.pdf.
---------------------------------------------------------------------------
VI. Positive Commission Activity
    While we have grave concerns about numerous issues before the 
Commission, there are also some activities worthy of praise. First, as 
I already mentioned, CFA has deep respect for CPSC staff who have 
continued to work effectively and diligently throughout the 
Commission's budget cuts, loss of experienced senior level staff, and 
loss of a quorum. It is due to their commitment to product safety that 
the Commission is able to uphold its mission.
    Second, CPSC's National Electronic Injury Surveillance System 
(NEISS) is working effectively. NEISS is a national probability sample 
of hospitals in the United States. Patient information is collected 
from approximately 100 NEISS hospitals for every emergency visit 
involving an injury associated with consumer products. From this 
sample, the total number of product-related injuries treated in 
hospital emergency rooms nationwide can be estimated.\20\ In this era 
of significant patient privacy concerns, it can be extremely difficult 
and expensive to recruit a hospital for participation in the NEISS 
sample. Yet the Directorate for Epidemiology has not only maintained 
the NEISS sample of hospitals but has also ensured the statistical 
integrity of CPSC's estimates of product-related injuries. This is 
critical for CPSC to produce trends from year to year. It is the 
ability to produce trends that is most fragile in a political, budget-
driven environment, since one party's budget can destroy another 
party's trend. NEISS must remain unaffected by the tumultuousness of 
the budget process, and in recent years, the Directorate for 
Epidemiology has successfully shielded it from that in part by entering 
into inter-agency agreements with other government agencies that use 
NEISS data, including the Centers for Disease Control, the National 
Institute for Occupational Safety and Health, and the Food and Drug 
Administration. While CPSC's Directorate for Epidemiology has not been 
completely unaffected by the changes at CPSC they have managed to keep 
the NEISS system running.
---------------------------------------------------------------------------
    \20\ http://www.cpsc.gov/LIBRARY/neiss.html.
---------------------------------------------------------------------------
VII. Lack of a Quorum
    Section 4(d) of the Consumer Product Safety Act provides that three 
members serving at the Commission constitute a quorum, which is 
necessary for the transaction of business. If there are only two 
Commissioners because of a vacancy, two members shall constitute a 
quorum for 6 months after the vacancy was created.\21\ Chairman 
Stratton left the CPSC in July and thus, the quorum expired in January. 
The ability of the Commission to transact business is thwarted 
significantly: the Commission can not conduct any business requiring a 
vote including voting on rulemakings or civil or criminal penalties. 
The Commission cannot have public hearings. While the Commission staff 
can continue to work on programs, even those related to rulemakings or 
penalties, no final action can be taken. The lack of a quorum is 
severely hindering the Commission's ability to protect the public from 
unreasonable risks associated with consumer products and signals to all 
of the industries that CPSC regulates, that it does not have its full 
power. This must affect CPSC's bargaining power as well as manufacturer 
or retailer decisions regarding CPSC compliance, rulemakings and other 
issues before the Commission. Significantly, this lack of a quorum as 
well as the limited CPSC budget indicates that the Administration does 
not place a high priority on product safety or the work of the 
Commission. CFA supports legislative efforts to extend the quorum.
---------------------------------------------------------------------------
    \21\ Consumer Product Safety Act, 15 U.S.C. 2051, section 4(d).
---------------------------------------------------------------------------
VIII. Improvements to CPSC's Statutes
    CFA believes that CPSC could be an even more effective agency if a 
number of changes were made to the statutes over which CPSC has 
jurisdiction.
    First, CFA suggests that Congress eliminate the cap on the amount 
of civil penalties that CPSC can assess, as spelled out in section 
20(a) of the Consumer Product Safety Act (CPSA), against an entity in 
knowing violation of CPSC's statutes. The current civil penalty is 
capped at $7,000 for each violation up to $1.83 million. A ``knowing 
violation'' occurs when the manufacturer, distributor or retailer has 
actual knowledge or is presumed to have knowledge deemed to be 
possessed by a reasonable person who acts in the circumstances, 
including knowledge obtainable upon the exercise of due care to 
ascertain the truth of representations. Knowing violations often 
involve a company's awareness of serious injury or death associated 
with their product. Eliminating the cap will encourage manufactures to 
recall products faster and comply with CPSC's statutes in a more 
aggressive way. Importantly, the elimination of the cap will act as a 
deterrent to noncompliance with CPSC's regulations. Eliminating the cap 
will also strengthen CPSC's bargaining power when negotiating with many 
companies to take a particular action.
    Second, CFA urges Congress to eliminate section 6(b) of the CPSA. 
This section of the Act prohibits CPSC, at the insistence of industry, 
to withhold safety information from the public. This provision, to 
which no other health and safety regulatory agency must adhere, 
requires that CPSC must check with the relevant industry before it can 
disclose the information to the public. It serves to hold CPSC captive 
to the very industry it regulates. If the industry denies access to the 
information, CPSC must evaluate their response and may just drop the 
issue and deny access of the information to consumers. This has the 
effect of delaying or denying access of important information to 
consumers.
    Third, to improve recall effectiveness, CFA recommends that section 
15 of CPSA be amended to require manufacturers to provide a means of 
directly communicating information of recalls to consumers--either 
through a registration card, electronically or other means of 
technology. Manufacturers, retailers or importers should be required to 
report the existence of the recall to retailers and all commercial 
customers within 24 hours after issuing the recall or warning. All 
entities within the stream of commerce should be required to post the 
recall to websites, if in existence, within 24 hours of issuance of 
recall. We suggest that manufacturers, retailers, distributors or 
importers should be required to communicate notice of the recall with 
all known consumers. Retailers, after receiving notice of the recall, 
must remove the recalled product from their shelves and website within 
three business days and retailers must post notice of the recall in 
their stores for 120 days after issuance of the recall.
    Fourth, CFA encourages Congress to restore CPSC's authority over 
fixed-site amusement parks. According to the CPSC, as of 2003, serious 
injuries on theme park rides have soared 96 percent in the last 5 
years. Federal oversight is crucial to the prevention of any future 
deaths and injuries associated with fixed-site amusement parks due to 
the vast variation in state laws and the absence of any regulation in 
some states. CPSC has illustrated its ability to identify and prevent 
injuries from many consumer products, including mobile amusement park 
rides. CPSC should be granted the same scope of authority to protect 
against unreasonable risks of harm on fixed-site rides that it 
currently retains for carnival rides that are moved from site to site. 
However, with this additional authority, CPSC should be authorized more 
money to take on this important role.
    Fifth, we ask Congress to require businesses selling toys on the 
Internet to provide on their website the same cautionary labeling that 
is required on toy packaging. Currently, Section 24 of the Federal 
Hazardous Substances Act (FHSA) requires cautionary labeling on small 
balls, marbles and toys that contain small parts for children 3 years 
of age and younger. This labeling must be apparent to consumers at the 
point of purchase so consumers are able to make informed decisions 
about potential safety hazards associated with the toys. Online 
retailers should be required to post the cautionary warnings on their 
website so that consumers could be aware of the potential safety issues 
before actually purchasing the product.

IX. Conclusion
    In conclusion, this Subcommittee must make sure that the Federal 
Government lives up to the commitment it made to protect consumers from 
product-related deaths and injuries when it created the Consumer 
Product Safety Commission. CFA urges more funds to be appropriated to 
the Consumer Product Safety Commission so that the Commission can grow 
to incorporate a changing and more complex marketplace. Sadly, this 
2008 Budget Proposal fails to give the Commission's that opportunity. 
Thank you.
                               Appendix 1

                             CPSC Resources
------------------------------------------------------------------------
         Year                 Budget Authority              FTEs *
------------------------------------------------------------------------
1974                                    $34,776,000                 786
1975                                    $36,954,000                 890
1976                                    $39,564,000                 890
1977                                    $39,759,000                 914
1978                                    $40,461,000                 900
1979                                    $42,940,000                 881
1980                                    $41,350,000                 978
1981                                    $42,140,000                 891
1982                                    $32,164,000                 649
1983                                    $34,038,000                 636
1984                                    $35,250,000                 595
1985                                    $36,500,000                 587
1986                                    $34,452,000                 568
1987                                    $34,600,000                 527
1988                                    $32,696,000                 513
1989                                    $34,500,000                 529
1990                                    $35,147,000                 526
1991                                    $37,109,000                 514
1992                                    $40,200,000                 515
1993                                    $48,400,000                 515
1994                                    $42,286,000                 518
1995                                    $42,431,000                 487
1996                                    $39,947,000                 487
1997                                    $42,500,000                 480
1998                                    $45,000,000                 480
1999                                    $46,949,000                 480
2000                                    $48,814,000                 480
2001                                    $52,384,000                 480
2002                                    $55,200,000                 480
2003                                    $56,767,000                 471
2004                                    $59,604,000                 471
2005                                    $62,149,000                 471
2006                                    $62,370,000                 446
2007                                    $62,370,000                 420
2008 (proposed)                         $63,250,000                 401
------------------------------------------------------------------------
* This column represents the staffing ceiling established for the agency
  in each year. The term FTE or full time employee has been used since
  1980. From 1974-1979 the figures in this column represent positions or
  people. One FTE is equivalent to 2,080 hours per year.

    Senator Pryor. Thank you.
    Mr. Dean?

 STATEMENT OF JOHN C. DEAN, PRESIDENT, NATIONAL ASSOCIATION OF 
                      STATE FIRE MARSHALS

    Mr. Dean. Mr. Chairman, Senator McCaskill, my name is John 
Dean. I am the current President of the National Association of 
State Fire Marshals, and have served as the Fire Marshal for 
the State of Maine since 1998. I have served as a fire chief, a 
firefighter, and an EMT for most of the past three decades.
    Thank you for the opportunity to appear before the 
Subcommittee this morning to share the views of NASFM on the 
U.S. Consumer Product Safety Commission. I would like to convey 
a sense of urgency about the current state of the CPSC and the 
need for immediate action to address both short-term and long-
term needs.
    Many of the ills of the commission have been documented and 
are well known to this Committee: The budget that has not even 
kept up with inflation, the attrition of long-time experienced 
staff, a topheavy management structure, and a lack of quorum 
that has contributed to paralysis on many issues. We have even 
heard that the commission is making plans to consolidate 
offices to save on rent, throwing out active records because 
there is no room to store them.
    To use an analogy from the emergency responder community, 
the CPSC has been hemorrhaging to the point where it is now in 
critical condition. It moves slowly at best, but in most cases 
it is completely paralyzed. We believe the patient can be 
saved, but immediate and decisive action is needed by Congress 
to address both the short-term survival and the long-term 
viability of the agency.
    We recommend a two-part approach. First, a short-term 
infusion of additional funding above the current services to 
get the patient's heart beating and the blood flowing. We 
realize that the Commerce Committee does not appropriate funds, 
but we believe you can influence those who are responsible to 
give this matter serious consideration.
    How much more should the CPSC be given to do its job? We 
would respectfully suggest a starting point of $75 million for 
the coming year, which is $12 million above the Fiscal Year 
2008 budget request, and would amount to spending only about 25 
cents per person in the United States. This relatively small 
additional expenditure now and similar modest increases over 
the next few years would help the agency rebuild and train the 
staff, pay for office and storage space, and complete work on 
projects that have been languishing for years.
    Second, it is time for Congress to ask the Government 
Accountability Office to determine how the CPSC can best 
continue to fulfill its mission to consumers. A GAO study might 
consider whether the Commission has the resources to fulfill 
its mission. The Commission's budget request for Fiscal Year 
2008 is about $63 million. That is $63 million and about 400 
full-time employees, to prevent $700 billion annually in losses 
from incidents involving consumer products within the agency's 
jurisdiction.
    A GAO study might compare the Commission's funding and 
staffing levels to those of other Federal agencies with the 
same mission such as the Food and Drug Administration. The CPSC 
has less than \1/20\ the number of employees of the FDA, with a 
budget about \1/29\ as large as FDA, to oversee products in its 
jurisdiction whose economic losses equal 70 percent of the 
retail value of the FDA products.
    A GAO report might consider how the Commission and other 
agencies manage the same function, product recalls. The FDA, 
Federal Aviation Administration, National Highway Traffic 
Safety Administration, Department of Justice, and U.S. 
Environmental Protection Agency have broad powers to ensure 
public safety. Does the Commission have sufficient authority 
and resources to properly research, test, and deal with the 
manufacturers of products that have been designed and 
constructed in an inherently dangerous way?
    A GAO study might address the question of whether it is 
time for the CPSC to be transformed from a commission structure 
to an agency headed by a single administrator, like all the 
other government agencies I mentioned in this statement.
    Firefighters care deeply about public safety. Our view of 
the commission is that if it is to continue to exist, and we 
strongly believe that it should, it must have the authority and 
resources to protect human life and property from consumer 
products within its jurisdiction. It must have leadership 
committed to public safety and unwilling to accept constant 
erosion of the agency's human and physical resources. We urge 
the Subcommittee to ask the GAO to take a hard look, because a 
hard look is what is needed now.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dean follows:]

Prepared Statement of John C. Dean, President, National Association of 
                          State Fire Marshals

    My name is John Dean. I am the current President of the National 
Association of State Fire Marshals, and have served as the Fire Marshal 
for the State of Maine since 1998. I have served as a fire chief, a 
firefighter and an EMT for most of the past three decades. Thank you 
for the opportunity to appear before the Subcommittee this morning to 
share the views of NASFM on the U.S. Consumer Product Safety 
Commission.
    With all due respect, an oversight hearing lasting a few hours is 
not adequate to cover this morning's topic. But I would like to convey 
our sense of urgency about the current state of the CPSC and the need 
for immediate action to address both short-term and long-term needs. We 
have many safety issues before the Commission, but rather than 
bemoaning the lack of progress in each, we think it would be more 
useful to approach this hearing from a broader perspective and address 
the Commission's basic ability to fulfill its mission.
    Before there even was a United States of America, Scottish moral 
philosopher and political economist Adam Smith wrote, ``The chief 
purpose of government is to preserve justice. The object of justice is 
security from injury.'' \1\ Security from injury is the mission of the 
Consumer Product Safety Commission, and we believe that it is an 
appropriate function of good government.
---------------------------------------------------------------------------
    \1\ Lectures on Jurisprudence, originally delivered at the 
University of Glasgow in 1762-1763. http://oll.libertyfund.org/Home3/
Book.php?recordID=0141.06.
---------------------------------------------------------------------------
    However, many of the ills of the Commission have been documented 
and are well known to this Committee: the budget that has not even kept 
up with inflation, much less been increased on the basis of the work 
that needs to be done; the attrition of long-time experienced staff, 
leaving a skeleton crew of capable but junior technical employees to do 
most of the work without guidance, expertise, historical memory or the 
means to acquire these necessary resources; a management top-heavy with 
Senior Executive Service employees; a lack of quorum that has 
contributed to paralysis on many issues. We have even heard that the 
Commission is making plans to consolidate offices to save on rent, 
cramming the staff into ever-smaller spaces and, in the process, 
throwing out active records because there is no room to store them.
    To use an analogy from the emergency responder community, the CPSC 
over the past several years has been hemorrhaging to the point where it 
is now in critical condition: The resources and leadership no longer 
exist to allow the Commission to fulfill its very important mission, 
and it is no longer functioning. It moves slowly at its best, but in 
most cases is completely paralyzed.
    We believe the patient can be saved, but immediate and decisive 
action is needed by Congress to address both the short-term survival 
and the long-term viability of the Agency. We know that the Congress is 
already considering legislation to extend the Commission's quorum until 
such time that a new chairman is in place.
    For the other concerns, we recommend a two-part approach.
    First, we suggest a short-term infusion of additional funding above 
current services to get the patient's heart beating and the blood 
flowing. We realize that the Commerce Committee does not appropriate 
funds, but we believe that it is appropriate for you to ask that this 
be given serious consideration by those who are responsible. The 
current CPSC budget breaks out to only about 21 cents per person in the 
United States. This is entirely inadequate for an agency charged with 
assuring the safety of products in America's homes. It is certainly not 
a bargain for consumers.
    So how much more should the CPSC be given to do its job? This could 
and probably should be done incrementally over the next several years. 
But we would respectfully suggest a starting point of $75 million for 
the coming Fiscal Year--which is $12 million above the FY08 budget 
request and would amount to spending only about 25 cents per person in 
the U.S. This relatively small additional expenditure now--and similar 
modest increases over the next few years--would result in several 
benefits: It would help the Agency get back on track to rebuilding and 
training the staff so that they can, in time, develop the expertise to 
become the product safety leaders they should be. It would allow the 
Agency to pay for office space for staff and storage space for working 
records. It would allow them to complete work on projects that have 
been languishing for years, and to do a proper job of the projects they 
are addressing.
    Second, we believe it is time for the Congress to ask the 
Government Accountability Office (GAO) to conduct a head-to-toe 
examination of the Agency to determine how the CPSC can best continue 
to fulfill its mission to consumers and recover the viability and the 
relevance it had in the early days of its existence.
    A GAO study must consider whether the Commission has the resources 
to fulfill its mission. According to the Commission, deaths, injuries 
and property damage from consumer product incidents cost the Nation 
more than $700 billion annually. The Commission clearly lacks the 
authority and resources to address losses of this magnitude. The 
Commission's budget request for Fiscal Year 2008 is about $63 million. 
Again, that's $63 million and about 400 full-time employees to prevent 
$700 billion annually in losses from incidents involving consumer 
products within the Agency's jurisdiction.\2\
---------------------------------------------------------------------------
    \2\ http://www.cpsc.gov/about/about.html and http://www.cpsc.gov/
cpscpub/prerel/prhtml07/07118.html.
---------------------------------------------------------------------------
    A GAO study might compare the Commission's funding and staffing 
levels to those of other Federal agencies with the same mission. For 
example, the GAO might look at the Food and Drug Administration, which 
has 9,000 employees and a budget of over $1.8 billion to oversee 
products in its jurisdiction that total about $1 trillion a year in 
retail sales.\3\ The CPSC has less than \1/20\ the number of employees 
of FDA, with a budget about \1/29\ as large as FDA's, to oversee 
products in its jurisdiction whose economic losses alone equal 70 
percent of the retail value of FDA's products.
---------------------------------------------------------------------------
    \3\ http://www.fda.gov/oc/history/historyoffda/default.htm.
---------------------------------------------------------------------------
    A GAO report might consider how well other government agencies are 
supporting the Commission's mission. If preventing injury is a 
legitimate role of government, the GAO might question why the USDA was 
given $16.7 million to promote the sale of cotton--when the Commission 
lacks the funds to properly review its 1953 general wearing apparel 
flammability standard, which was recently tweaked only to update some 
definitions and laundering procedures. Meanwhile, we continue to see 
many fires, horrific burns and tragic deaths involving everyday 
clothing, much of it made of cotton, especially among children and the 
elderly. The standard is so weak, newspaper and facial tissue can pass 
it.
    A GAO report might consider how the Commission and other agencies 
manage the same function: product recalls, as well as the Commission's 
ability to compel recalls. Again, comparisons may be useful. The FDA, 
Federal Aviation Administration, National Highway Traffic Safety 
Administration, Department of Justice and U.S. Environmental Protection 
Agency have broad powers to ensure public safety. Does the Commission 
have sufficient authority and the resources to properly research, test 
and deal with manufacturers of products that have been designed and 
constructed in an inherently dangerous way?
    A GAO study could address the question of whether it is time for 
the CPSC to be transformed from a commission structure to an agency 
headed by a single administrator--like all of the other government 
agencies I have mentioned in this statement.
    And, finally, a GAO study could answer the basic question: should 
there even be a U.S. Consumer Product Safety Commission, or should we 
rely entirely on litigation to address the $700 billion in losses from 
incidents involving consumer products?
    Firefighters care deeply about public safety. Our view of the 
Commission is that if it is to continue to exist--and we strongly 
believe that it should--it must have the authority and resources to 
protect human life and property from consumer products within its 
jurisdiction. It must have leadership committed to public safety and 
unwilling to accept constant erosion of the Agency's human and physical 
resources. We urge the Subcommittee to ask GAO to take a hard look, 
because a hard look is what is needed now.
    I earlier quoted Adam Smith and will conclude, with apologies to 
the Majority, by quoting Ronald Reagan, who said, ``Don't be afraid to 
see what you see.'' Thank you, Mr. Chairman.

    Senator Pryor. Thank you.
    And last, Mr. Locker.

          STATEMENT OF FREDERICK LOCKER, ESQ., GENERAL

           COUNSEL, TOY INDUSTRY ASSOCIATION AND THE

          JUVENILE PRODUCTS MANUFACTURERS ASSOCIATION

    Mr. Locker. Thank you, Mr. Chairman and members of the 
Committee. I am Frederick Locker. I am General Counsel of the 
Toy Industry Association and the Juvenile Products 
Manufacturers Association. These are both not-for-profit trade 
association members of the Council of Manufacturing 
Associations of the National Association of Manufacturers. And 
I'm a member of a coalition which is a CPSC coalition and part 
of NAM. Thank you for providing this opportunity to testify 
today.
    I want to be clear that our coalition represents more than 
65 product manufacturers and, importantly, trade associations. 
We have functioned for many decades as a forum to address 
common issues related to the operation of the commission and 
policies initiated pursuant to the Consumer Product Safety Act 
and those related acts we call the sister acts. The mission of 
our coalition is to promote product safety in a fair, balanced, 
and effective manner.
    The theme I think from today is that more is not always 
better; better is better. And we'll touch on that. The 
coalition does not involve itself in pending product-specific 
regulatory or adjudicative matters. Similar to every witness on 
this panel and the commission members that you have heard from, 
we support the important and essential mission of the 
commission.
    CPSC's mission is vital. It protects children and families 
against unreasonable risk of injury and death from more than 
15,000 types of consumer products, and it governs a wide range 
of hazards. Their work is vital in addressing consumer hazards 
through a framework of mandatory product standards, engagement 
in these consensus standard-setting processes that you have 
heard something about, compilation of important data upon which 
to base decisions to engage in rulemaking, issuance of safety 
guidelines, implementation of information and education 
programs in an effort to proactively avoid injuries, and 
product recalls and corrective actions when necessary.
    The agency is operating on a relatively modest budget. We 
have all agreed that the $63.25 million allocated for 2008 
should certainly be granted, and in your discretion and subject 
to negotiation with the administration, we would favor 
significant increases earmarked for retention of staff, 
upgrades to their testing laboratory, increased coordination 
with other countries regarding not only the effectiveness of 
standards but also better inspection and enforcement 
coordination. We ask this Committee to act thoughtfully in its 
review of the regulatory structure, however, that has been in 
place and served the American public for more than 30 years.
    These are no doubt exceedingly difficult economic times. A 
vibrant, healthy manufacturing sector in our Nation is 
necessary for our Nation's prosperity. U.S. manufacturers in 
the consumer product industry presently face increasing global 
competition. It's more intense than it has ever been before. 
You know that as members of this Committee.
    In such an economic environment, the U.S. manufacturer 
should not be disadvantaged by unnecessarily intrusive and 
inefficient domestic regulatory regimes. More is not always 
better. More efficient, leveraged use of resources is what we 
seek and what we aim for.
    Now we have noted there has been marked improvement in the 
openness of the commission, and we have specific 
recommendations that we've come here to talk about. We support 
dynamic new partnerships between stakeholders and the 
commission to promote safety and safe practices with consumers.
    Consumer information and education we understand is not a 
substitute for the essential responsibility that is ours as 
manufacturers to provide absolutely safe products, but it can 
help with that percentage of accidents due to improper, 
irresponsible conduct or lack of supervision of minors. You've 
touched on that today in terms of the complex issues related to 
ATV use. The commission is fully authorized to embark on such 
programs. They do not need greater authority. They can act now, 
and encouragement from Congress should be provided.
    Next, we support, strenuously support the Commission's 
involvement in those private consensus standard-setting 
activities that people talked about. These standards are 
essential, whether it's UL or ASTM or ANSI or ISO or other 
standard-setting bodies, commission engagement is important in 
providing comments, proposals, and the involvement of their 
staff is essential. And with a process that leads to 10 times 
as many standards being enacted, revised, reviewed, and changed 
on a constant, dynamic basis in that regard as compared to 
mandatory standards, it is essential.
    And, finally, a few other areas. We need to have them 
engage in outreach, and engage that portion of the population 
of our country that is the small manufacturer and small 
businesses, which comprise in many cases more than 60 or 70 
percent of our manufacturing trade associations. You write the 
laws, but these companies and businesses need better guidance, 
and they need to understand what those laws mean, and they need 
the help of the agencies in this government to understand that 
so they can engage constructively in business and the economy 
can grow.
    The CPSC has a strong role in setting and enforcing these 
standards. In a global economy, we note that this agency is 
important, and their international engagement is important not 
just to ensure import compliance with our safety standards, but 
to seek to harmonize standards globally in a global economy, to 
promote export opportunities for American businesses, to 
eliminate nontariff trade barriers which may act as a barrier 
of entry to U.S.-produced or designed goods.
    The existing regulatory framework is clearly effective. 
However, as everyone has acknowledged today, more resources are 
needed. We agree with you in the Senate and every other panel 
member, that the CPSC really doesn't lack the requisite 
authority to implement its congressional mandate to protect the 
public against unreasonable risks of injury associated with 
consumer products. They need greater resources to implement it 
effectively, and they need to leverage those resources with 
other agencies within the government to do so.
    Thank you for providing me this opportunity.
    [The prepared statement of Mr. Locker follows:]

  Prepared Statement of Frederick Locker, Esq., General Counsel, Toy 
     Industry Association and the Juvenile Products Manufacturers 
                              Association

    Mr. Chairman and members of the Committee, I'm Frederick Locker, 
General Counsel to the Toy Industry Association and Juvenile Products 
Manufacturers Association, not-for-profit trade Association members of 
the Council of Manufacturing Associations of the National Association 
of Manufacturers (NAM), and a member of the NAM CPSC Coalition. Thank 
you for providing me the opportunity to testify on the reauthorization 
of the U.S. Consumer Product Safety Commission (``Commission''). Our 
Coalition represents approximately 65 consumer product manufacturers 
and manufacturing associations. It has functioned for many decades as a 
forum to address common issues related to the operation of the 
Commission and policies initiated pursuant to the Consumer Product 
Safety Act and related sister acts. The mission of the Coalition is to 
promote product safety policy in a fair, balanced and effective manner. 
The Coalition does not involve itself in pending product specific 
regulatory or adjudicative matters. Similar to the other witnesses on 
this panel, we support the important and essential mission of the 
Commission.

CPSC Performs a Vital Function
    CPSC's mission is to protect children and families against an 
unreasonable risk of injury and death from more than 15,000 types of 
consumer products from a wide range of product hazards. Their work is 
vital in that it addresses consumer product hazards through a framework 
of mandatory product safety standards; engagement in the voluntary or 
consensus standard-setting process; compilation of consumer injury 
data; issuance of safety guidelines; implementation of information and 
education programs in an effort to proactively avoid injuries; and 
product recalls and corrective actions when necessary. The agency is 
operating on a relatively modest budget, with a request of $63,250,000 
for Fiscal Year 2008. We believe that their budget request should be 
granted with increases earmarked for retention of staff, upgrades to 
their testing laboratory and support of increased coordination with 
other countries regarding harmonization of standards with better 
inspection and enforcement coordination.
    With respect to reauthorization of the Commission, we ask this 
Committee to act thoughtfully in any review of a regulatory structure 
that has served the American public well for more than 30 years. In 
these exceedingly difficult economic times a vibrant healthy 
manufacturing sector is critical to our Nation's prosperity. U.S. 
manufacturers in the consumer product industry presently face 
increasing global competition that is more intense than ever before. In 
such an economic environment, U.S. manufacturers should not be 
disadvantaged by an unnecessarily intrusive and inefficient domestic 
regulatory regime.\1\
---------------------------------------------------------------------------
    \1\ It is interesting to note that the European Union recently 
announced that it wants to boost trade between EU countries by making 
it more difficult for member states to block imports of specific 
products on the basis that they do not meet a national product safety 
standard. The EU wants member states to bear the cost and burden of 
demonstrating that a product is unsafe if they wish to remove it from 
their market. Procedures Relating to the Application of Certain 
National Technical Rules to Products Lawfully Marketed in Another 
Member State and Repealing Decision 3052/95/EC.
---------------------------------------------------------------------------
CPSC Has Effectively Marshaled Resources
    The Commission works well with and understands the needs of 
manufacturers, retailers and the consumers. Whenever appropriate, they 
have encouraged voluntary collaborative actions among stakeholders to 
address safety requirements. During the past decade, they have worked 
cooperatively with industry to conduct more than 5,000 recalls and 
needed to resort to litigation to compel recalls only several times. In 
2006, CPSC completed 471 product recalls involving nearly 124 million 
product units that either violated mandatory standards or presented a 
potential risk of injury to the public and negotiated civil penalties 
of approximately $2.3 million. In addition, the CPSC compliance staff 
has continued to refine its Retailer Reporting Model implemented in 
2005 and used by two of the Nation's largest retailers. This provides 
additional trending complaint data for evaluation by the staff, which 
supplements manufacturer and consumer reporting. With shrinking 
resources, leveraged collaborative action is preferable to mandatory 
regulations provided it can be implemented in a timely fashion and 
adequately addresses an unreasonable risk of injury.\2\
---------------------------------------------------------------------------
    \2\ An excellent example is their work with industry to revise the 
ASTM consensus baby walker safety standard to address injuries from 
stair falls. New walkers with safety features are now on the market. 
There has been a decrease in injuries of over 84 percent since 1995, 
likely due in large part to the effectiveness of such standard 
requirements. The commission projected societal costs decreased by 
about $600 million annually from this one action. Similarly, there was 
an 89 percent reduction in crib-related deaths from an estimated 200 in 
1973 and an 82 percent reduction in poisoning deaths of children 
younger than 5 from drugs and household chemicals from 216 in 1972.
---------------------------------------------------------------------------
    Today's U.S. economy is consumer-driven. An enormous number and 
variety of consumer products are designed, manufactured, imported and 
sold in the United States. With that in mind, industry, standards 
organizations and internal safety requirements developed in cooperation 
with manufacturers result in some of the best hazard-based standards 
that ensure that American consumers may be comfortably secure in the 
safe use of their consumer products. Many companies also increasingly 
recognize the value of taking responsible corrective action to address 
patterns of injuries or misuse that may indicate a problem with their 
product. This accounts for the vast majority of product recalls 
conducted in cooperation with the Commission. Of course, there are 
still occasions where the Commission justifiably acts to remove unsafe 
products from the marketplace and to set standards where private 
standards either do not exist or are clearly inadequate. Consumer 
product manufacturers are committed to working with the Commission to 
achieve these objectives. We have consistently supported Commission 
efforts, along with the U.S. Customs Service, to monitor imported 
products to ensure that they meet mandatory Federal safety standards. 
We recognize that this has been an efficient leveraging of resources to 
enhance enforcement related to product imports. In addition, we note 
that the Commission has played an increasingly significant role in 
educating consumers about safety concerns and practices.

CPSC Has Shown Marked Improvement in Its Openness
    U.S. industry has made no secret of its discomfort with certain 
past Commission practices, policies and procedures over the years. We 
have expressed concern in the past when cooperation with industry was 
minimized while a public-relations campaign to tarnish a company was 
launched in the media. We have objected in the past to proposed 
mandates when education, research and innovative private initiatives 
were not encouraged or leveraged. We have expressed concern when due 
process has not been accorded companies.
    We have also lauded the Commissions efforts at affording public 
comment, of all interested parties without predisposition on important 
matters. We appreciate the Commission hearings and outreach workshops 
to improve recall efficiency. This affords experts from a variety of 
disciplines to share information. In particular we have noted and 
applaud the Commission's growing emphasis on sound hazard research and 
data, including its focus on more rigorous risk-benefit analyses, as 
the basis for regulatory action. We note that they employ capable high-
level and well-experienced epidemiologists, toxicologists, 
physiologists, chemists, engineers, statisticians, and economists to 
inform their decisionmaking. They have performed well in OMB 
assessments of their overall regulatory policies.
    Along those lines, we believe that there are ways to make the 
Commission more effective and at the same time more efficient. As I 
noted, in these difficult economic times complexities and confusion in 
the regulatory process are an unnecessary burden on consumer product 
companies. Allow me to share a few proposals on ways the Commission can 
increase its effectiveness in protecting consumers while minimizing 
burdens on the manufacturing sector of this country.

Recommendations
Collaborative Information and Education Programs
    First, we support dynamic new partnerships between stakeholders and 
the Commission to promote safety and safe consumer practices. Consumer 
information and education does not substitute for the essential 
responsibility of manufacturers to provide safe products, but it can 
help with a large percentage of accidents due to improper or 
irresponsible conduct or lack of supervision of minors. The Commission 
is fully authorized to embark on such programs, but encouragement from 
Congress should be provided.\3\
---------------------------------------------------------------------------
    \3\ CPSC has been increasingly effective at using electronic media 
and websites. The creation of www.recalls.gov and enhancements to their 
website has resulted in a rapid growth from 200,000 visits in 1997 to 
what is expected to be almost 25 million visits by the end of the year. 
Product safety information is increasingly available in Spanish and 
other languages. In addition, outreach activities such as the 
Neighborhood Safety Network; collaborative efforts with FEMA and public 
information education initiatives with NGO's and industries have 
resulted in increasingly effective communication about fire and carbon 
monoxide hazards, disaster preparedness, hazards associated with 
recreational vehicles, proactive holiday safety messaging, poison 
prevention, pool drowning risks and back to school safety programs.
---------------------------------------------------------------------------
Continued Involvement in Consensus Safety Standards and Activities
    Second, we are supportive of the Commission's involvement in 
private standards activities as authorized in the current statute. 
These standards are the bulwark of our national and even international 
safety system, and the Commission plays an important role in providing 
comments and proposals.\4\ However, we believe the Commission needs to 
better manage and supervise its internal process, particularly staff 
input to standards organizations, to ensure an opportunity for public 
comment and to prevent proposals which lack technical merit or 
otherwise cannot be justified as Federal standards. This is why we 
support the Commission's stated strategic goal to improve the quality 
of CPSC's data collection through 2009 by improving the accuracy, 
consistency and completeness of the data. For an agency such as the 
CPSC, it is essential to maintain and use accurate data as a valuable 
tool to allocate staff time and resources to address emerging real 
world hazards.
---------------------------------------------------------------------------
    \4\ CPSC has worked with stakeholders to develop effective 
consensus standards completing approximately 10 times as many voluntary 
standards as mandatory standards (CPSC assisted in completing and 
developing 352 voluntary safety standards while issuing 36 mandatory 
standards from 1990 through 2006).
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Continued Efforts to Engage and Educate Small Manufacturers
    Third, there is a need for better guidance and education from the 
Commission on the implementation of the Section 15 Substantial Product 
Hazard Reporting provisions. Manufacturers with defective products that 
could create substantial product hazards are obliged to report to the 
Commission and, if needed, to take corrective action including recalls. 
However, the law and implementing regulations are vague and ambiguous. 
It is difficult for manufacturers, especially small businesses, to 
determine when reporting and corrective action is necessary. Likewise, 
it is difficult for them to comprehend how the penalty for the failure 
to report in a timely fashion is justified by the agency. We support 
the Commission's efforts to clarify guidance on reporting and penalty 
computation by issuance of guidelines, which were subject to prior 
publication, comment and review prior to adoption.\5\
---------------------------------------------------------------------------
    \5\ Federal Register, Vol. 71, No. 142, pages 42028-42031 and 
proposed interpretive rule, Federal Register, Vol. 71, No. 133, pages 
39248-39249.
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A Strong Role in Setting and Enforcing Safety Standards in a Global 
        Economy
    Fourth, in a global economy, we note the importance of the agency's 
international engagement to ensure greater import compliance with U.S. 
safety standards and harmonization of standards to promote export 
opportunities for American businesses and the elimination of non-tariff 
trade barriers. CPSC has entered into Memorandums of Understanding 
(MOU) with a number of foreign governments to provide for a greater 
exchange of information regarding consumer product safety. We note by 
the end of 2008, CPSC expects to have MOUs with 17 countries. These 
activities are becoming increasingly important in helping to ensure 
consistent hazard-based, harmonized global safety standards.

Existing Regulatory Framework is Effective, But More Resources are 
        Needed
    Finally, we believe that the existing authority granted to the 
Commission under the Consumer Product Safety Act and related Acts, 
together with existing implementing regulations, are sufficient for the 
CPSC to execute its mission in an effective manner. The CPSC does not 
lack the requisite authority to implement fully its congressional 
mandate ``to protect the public against unreasonable risks of injury 
associated with consumer products.'' However, it requires greater 
resources to implement such authority.
    Thank you for providing me the opportunity to testify. The 
Commission is an important agency and we fully support its mission. It 
can and should, have the funding and resources it needs to effectively 
function and we look forward to working with the Commission and the 
Committee to this end.

    Senator Pryor. Thank you. Now Senator McCaskill has a 
conflict that has developed, so she is going to ask the first 
questions.
    Senator McCaskill. Thank you very much, Mr. Chairman.
    I would ask you first, Mr. Locker, do you support making 
the effectiveness of the recalls that CPSC has done public 
information?
    Mr. Locker. It depends on how you define ``effectiveness.''
    Senator McCaskill. Well, I'll make it simple. Would you 
support it being public how many of the products that have been 
recalled actually have been returned? Do you support making 
that public?
    Mr. Locker. We have no problem with that information being 
publicly available. However, I think we need to talk about this 
in the context of what is an effective recall.
    Think about it in your own terms. That toy that you may 
have bought for your child 10 years ago that cost $5 and may 
have had a 6-month useful life is not likely to be around. We 
look at recall effectiveness the same way perhaps that the Food 
and Drug Administration does, or the National Highway Traffic 
Safety Administration, as getting the message out. You can 
bring the proverbial horse to the water trough but you cannot 
necessarily make it drink.
    So effectiveness is getting the message out, not 
necessarily a body count of what you get back. Certainly we 
expect to see 100 percent back of any products that are on the 
retail shelf. In the hands of the consumer, over time, it's a 
complicated factor. There's no simple answer to that issue of 
what should be the number. We know that in studies, that 
average consumer return rates over 15 years among a variety of 
consumer products, different from automobiles, has been 
approximately 4.5 to 5 percent.
    Senator McCaskill. Well, you know, I guess maybe I have 
shopped more garage sales than you have, for items for my 
children. I don't think I ever had a car seat at a certain 
point in time in my life that hadn't been purchased from 
someone else.
    And so I think knowing whether or not products have been 
returned and to what extent they have been returned, is very 
important information for the public. And now, with the advent 
of the technology and websites, this would be something that 
would be easily obtainable by a mother who was trying to figure 
out if that high chair or if that crib--I had a lot of anxiety 
about crib purchase when I was purchasing for my infants.
    Do you agree that the cap on civil penalties for a knowing 
violation is extraordinarily low in some circumstances, where 
you're looking at companies that have a net revenue in the 
hundreds of millions of dollars? Do you agree that a knowing 
violation with a civil penalty capped at less than $2 million 
seems extraordinarily low?
    Mr. Locker. Sure, I'd like to answer that, and I will. But 
with regard to your last comment, I would say one thing. We 
have applauded the use of technology for outreach programs on 
products, on heirloom and used products, on products in the 
thrift store milieu, products that may be put away in attics. 
And that's why we have welcomed, and many of our members and 
associations all lead to this great new concept of recalls.gov, 
or the concept that the Chairman talked about and how it had 
been implemented in Arkansas. We are clearly in favor of that.
    Now, with respect to penalty caps, I want to note something 
in terms of knowing violation. If you look at the statute, 
knowledge is not actual knowledge; it can be imputed knowledge 
also. So I think we need a definition and a better framework of 
what that really means.
    Senator McCaskill. Well, having been in a courtroom, it's a 
very high burden. Whether it's imputed or whether it's actual, 
it is a very high burden to meet knowledge.
    Mr. Locker. Right. Now most of these cases of course never 
wind up in the courtroom, and those that have, courts have 
actually imposed lower civil penalties, even under the limits 
that you have now, than the CPSC has. And in terms of the 
historical perspective, you have to understand that you already 
have a mechanism in place, and have since 1990.
    So the old recalls of $2,000 per product and up to a cap of 
$500,000 that existed in 1990 have actually been subject to 
escalation provisions built into the enabling statutes, and 
you've now reached up to $8,000 and in excess of $1.8 million, 
and within 2 years those will go up.
    And if we look at it in terms of historical perspective, 
since 1990 the maximum amount of a civil penalty collected has 
never exceeded the existing caps. So if you're going to create 
that mechanism, just put a cap, you know, just make it more, it 
isn't necessarily better.
    If that means allocating staff resources and having this 
agency hire 100 lawyers to just go out and enforce penalties, I 
wouldn't necessarily be in favor of that. I'd like to see them 
go out and hire those engineers and toxicologists and 
epidemiologists that track that and can focus on, as we have 
talked about, preventing those products from ever reaching the 
marketplace.
    Senator McCaskill. The last fact that I noticed in some of 
the testimony and some of the information we were given is, I 
think, fascinating. That is, two-thirds of the recalls came 
from imported manufacturers.
    Now it seems to me that if I were manufacturing a toy in 
the United States of America, and I realized that two-thirds of 
what was recalled was coming from our competitors in other 
countries that don't have the kind of standards we have in the 
United States--and I understand it's a cost factor for exports 
for American manufacturers--but it seems to me right now, when 
we are working so hard at the trade balance issue and working 
so hard in terms of a global economy, it seems to me--and 
maybe, Ms. Greenberg, or Ms. Weintraub, or Mr. Dean, if you 
would want to briefly comment on this--it seems to me that 
starving this agency when we are, I think, at the beginning 
stages of a global explosion in terms of manufactured goods 
being produced with much lower labor costs, much less 
regulation, much less environmental standards, with those goods 
coming into our country, that the American manufacturers would 
want us to pump up this agency because they are doing a great 
job in terms of the recalls that are occurring, calling out 
your competitors for production of products that simply aren't 
safe by our standards.
    Mr. Locker. And that's one of the reasons we're here today 
saying we fully, completely support the vital mission of this 
agency and would like to see them have more resources, so we 
couldn't agree more with that. But as you look to those 
numbers, you have to realize that the fact that two-thirds of 
the recalls involved imported products and two-thirds of those 
were from China, that's more likely to be a reflection of the 
nature of the global economy and how many goods are coming in 
as imports, unfortunately, into the United States, rather than 
the particular issues related to manufacturers in overseas 
markets.
    And we clearly support every effort to reach overseas. 
That's why, if you look at our comments on the record, we want 
this agency engaged with overseas governments not only to 
buttress the product safety standards, improve enforcement, but 
also to create harmonized standards that reduce nontariff trade 
barriers.
    Senator McCaskill. I don't have any other questions, unless 
any of you would like to comment on that.
    Ms. Weintraub. I would just like to make one comment. We 
agree, obviously, that the commission needs many more resources 
to deal with these growing and complicated problems. One issue 
that I just don't want to let fall through the cracks is that 
of the two-thirds of the two-thirds of the products that are 
made in China, I'm not sure what percentage of them but a 
sizable percentage are actually made by American manufacturers 
who have produced their products in China. So in addition to 
working very diligently to prevent products that don't meet 
mandatory or voluntary standards from being exported into the 
United States, we need to do a lot of work with our American 
manufacturers to make sure that they use the same standards and 
the same standard of care that they do in the United States 
when they're making their products, just as they do when 
they're making their products overseas.
    Senator McCaskill. Thank you, Mr. Chairman.
    Senator Pryor. Thank you.
    Mr. Locker, since Senator McCaskill has you in the hot 
seat, I'll just keep you there for a few minutes.
    Mr. Locker. I'm used to being there, Senator.
    Senator Pryor. Me, too, sometimes. But let me ask about 
recall reform. You guys are for recall reform?
    Mr. Locker. Absolutely.
    Senator Pryor. And give me, before we get into this, give 
me a specific recall, that you disagree about. What product is 
there that should not have been recalled?
    Mr. Locker. As I said, I don't want to get into specific--
--
    Senator Pryor. No, I want you to, though. I want you to 
give me an example so we can work on that.
    Mr. Locker. You want an example of a product?
    Senator Pryor. That got recalled that you think should not 
have been recalled.
    Mr. Locker. Let's take a step back. The fact of the matter 
is, as you have heard, 100 percent of the products that have 
been subject to corrective action were entered into on a 
voluntary basis with those companies, so I'm not here to second 
guess what companies have done. The fact that companies have 
decided to engage in corrective action, whether we call it a 
recall or something else, and done it collaboratively with the 
CPSC, should be approved. I am not against recalls.
    The process, however, by which you get there needs to be 
clearer, as I have said, for manufacturers. They need to 
understand their obligations in terms of reporting. They need 
to have a balanced consideration, and a staff in place at the 
agency that is familiar with the particular category of product 
that they're dealing with, to be able to engage in discussions 
about that, to be able to engage in discussions with the staff 
to determine whether the product itself is actually defective 
to begin with, or whether the recall was done proactively 
because of a concern that the product may be even unreasonably 
misused in the marketplace.
    So at the end of the day it's really about putting people 
with knowledge and efficient capabilities together so that they 
can get to that end result. And I'm not so sure that that end 
result has always been achieved in the most efficient, 
effective, or fair manner. But the fact of the matter is, the 
recalls that have taken place, since they are 100 percent 
voluntary with industry, have done so with the consent of that 
industry.
    Senator Pryor. So, in other words, your concern is more of 
a process concern. In other words, in some ways you're making 
my argument that I was trying to make earlier with the Chairman 
of the Commission: the Commission needs more people and needs 
more resources.
    Mr. Locker. Yes, as long as they're not lawyers, sir.
    Senator Pryor. Now, tell me why you say that?
    Mr. Locker. That was just a joke, but actually I do think 
that the legal staff does a fine job at the agency. I think the 
resources and the types of people that this agency needs are 
the people that are electrical engineers, engineers, 
scientists, chemists that are familiar with these emerging 
technologies that we've all talked about that are finding their 
way into products, so that if there is an issue that comes up, 
people can engage in a dialogue. The last thing you want from a 
government regulator is for them to know so much--or their 
people dealing with issues that, as technology expands, that 
don't have any proficiency in that technology.
    Senator Pryor. Let me ask this question: If the recalls are 
100 percent voluntary, and one of your companies decides not to 
recall a product that CPSC thinks is a choking hazard, your 
company disagrees, what happens then?
    Mr. Locker. Then the CPSC has the option of commencing an 
adjudication.
    Senator Pryor. And does that happen sometimes?
    Mr. Locker. It does happen, and it has happened rarely. It 
actually happened with a company from your state, in Arkansas, 
Daisy Manufacturing. And it does happen occasionally.
    The power of the CPSC, however, is in the power of their 
bully pulpit. There are so many different streams of 
distribution and channels, that even if the agency doesn't get 
the manufacturer necessarily to agree to go along with the 
recall, they can act on their own to deal with other 
distributors of that product.
    And no one has talked about the role of retailers in 
today's economy. There has been enormous consolidation in 
retailing. And so if a retailer, for example, engages in that 
recall, it almost doesn't matter today what the manufacturer 
wants to do.
    Senator Pryor. We can talk about that when we have more 
time because that's more of a philosophical question, but let 
me ask you, is it fair to say that from the standpoint of your 
industry, and your members, you feel like there is an 
adversarial relationship with the CPSC?
    Mr. Locker. Like any relationship, like any between people, 
there are good times and there are bad times, and for the most 
part I would actually not say it's adversarial. I would say 
it's literally a discussion over how best to leverage resources 
to get safety information and education out to the public and 
to deal with product safety issues when they arise, and that's 
a discussion we welcome every day.
    Senator Pryor. All right. Let me ask that, because you 
mentioned leveraging resources a number of times in your 
testimony and in your answers here. When you say ``leverage 
resources,'' what do you mean by that?
    Mr. Locker. Well, let's take the important role of the U.S. 
Customs Service in border protection and their interaction with 
the agency. Historically that has been and proved to be an 
extremely effective program, whether it's applied to toys or 
appliances or fireworks or bicycles.
    It is effective because it interdicts and deals with 
products at the point of entry, prior to having to deal with 
them when the products are in the hands of consumers or on 
store shelves. And I think everyone favors earlier interdiction 
if there is a problem with products.
    The way that is leveraged, those people who have the 
authority are Customs officers. They have the authority to 
detain those products and conduct those inspections, in 
conjunction with the expertise provided by the CPSC staff.
    Senator Pryor. Are you saying that's not being done?
    Mr. Locker. No, I'm saying it is being done, but more of it 
can be done and it can be done more efficiently. And you have 
to realize that when I'm talking about leveraging, it is being 
done in an interagency manner with the staff of another agency 
in the government that is funded and does have border 
protection agents. So it's a question of allocation of those 
agents to this mission, and that's a difficult balancing act 
because they face many demands in this post-9/11 era, as well.
    Senator Pryor. OK. Let me, if I may, switch to Mr. Dean 
very quickly. The CPSC and I think the firefighters have been 
working for several years to try to get the upholstered 
furniture standard approved, and that is kind of at a 
standstill as I understand. What has been the problem in 
promulgating this rule?
    Mr. Dean. Well, I think the problem may be just in the 
willingness to move forward.
    Senator Pryor. Is it from the agency's standpoint?
    Mr. Dean. No, I think it's more from the industry itself. 
We know that it can be done, the technology is there. We know 
that California has had a standard for some time, and since 
they instituted theirs, they have had a 25 percent reduction in 
fatal fires involving upholstered furniture, so we know it can 
be done and is manufactured there. We also see in Great Britain 
similar results, and they rarely have a fatal fire from 
upholstered furniture.
    So we know it can be done. I think it's just a willingness 
to agree to some of the details of how to go about doing it, 
and I think that's always the stickler, is in the details.
    Senator Pryor. OK. Let me ask the two consumer groups, if I 
may, you all heard me a few moments ago ask about the lead in 
the lunchboxes, and you heard Chairman Nord's explanation of 
that. Do you agree with what she said?
    Ms. Greenberg. Consumers Union believes that children's 
products shouldn't have lead in them. The problem with lead is, 
it builds up--it's cumulative.
    So there is exposure from a variety of sources, and even 
though the exposure that CPSC found was very small--and the 
bioavailability I think is what she was referring to in terms 
of kids and lunchboxes--the fact is that there is lead from a 
number of sources that children are exposed to in their homes, 
at school, in various products that they use. And the 
cumulative effects are such that it can be very dangerous and 
have serious impacts on kids.
    Senator Pryor. So, in other words, you would like to see 
lead banned from all----
    Ms. Greenberg. We think that, yes, manufacturers and CPSC 
should take the steps to get lead out of the lunchboxes, 
because kids put their sandwiches in them, and they are just 
exposed to too much lead in their daily lives. So, yes, we 
would take issue with that position.
    Senator Pryor. Ms. Weintraub, do you have anything to add 
to that?
    Ms. Weintraub. We would agree. Recently CFA, along with 
Consumers Union, sent in comments to the CPSC on their 
rulemaking which the comment deadline just ended on, lead in 
children's jewelry. And in that comment we stated together that 
we see no reason for lead to be in children's products unless 
there is some essential use, and it still remains to be seen 
what an essential use would be that cannot be replaced with 
something that does not pose the same type of hazard in any 
children's product, especially one in contact with children's 
food, as well as toys that can be mouthed.
    Senator Pryor. And their food 5 days a week in many cases. 
OK. Ms. Weintraub, while I'm talking to you, what about the ATV 
standard? As I understand it, your organization has been 
critical of this proposed ATV rule because apparently it takes 
into consideration speed and engine size but does not recognize 
weight. Is that fair to say?
    Ms. Weintraub. Sir, what has occurred is that from sort of 
the beginning of time with ATVs, ATVs have been categorized by 
the cubic centimeters of their engine, the cc's, as it's known. 
And it was a 90cc threshold that has been in effect since the 
1980s as determining what is an adult size ATV and what is a 
youth model ATV.
    What the Commission rulemaking proposes, and what also 
industry's voluntary standards propose, is to move away from 
this engine size, instead going to a system based on speed. The 
industry standard and CPSC standard differ in the mile-per-hour 
limits. We are opposed to both because we fear that there has 
not been enough evidence, enough studies conducted to determine 
whether, for example, a 14-year-old child could operate a 30 
mile-per-hour ATV in a safe manner.
    Also, if I may, speed is entirely one-dimensional. It does 
not take into account the weight of the machine, and there are 
many serious injuries, devastating deaths which occur when very 
heavy ATVs fall on children and crush them and they die. The 
concern is, with the speed limitation, how does that involve 
the weight of the ATV? As the commission rule reads now, and 
also as the ANSI proposed draft rule is now, there is no 
consideration of weight either.
    Senator Pryor. OK. Let me close with this last question for 
the two consumer groups. I think you both have said in your 
statements that you think the CPSC needs more funding. Do you 
have any studies or any evidence that shows that as the funding 
levels and as the staffing levels of the CPSC are going down, 
that the number of consumer products that are violating CPSC 
standards are growing, or that injuries or deaths are growing? 
Is there a correlation to the budget or the size or the 
effectiveness of the CPSC to the numbers going in the wrong 
direction, is what I'm asking.
    Ms. Greenberg. I can start out. You know, when we were 
talking earlier about the number of recalls, I know Chairman 
Nord said that they were at a record level of recalls, and when 
we look back over the history of recalls it appears to us to 
depend on the aggressiveness of the leadership of the CPSC, 
because if you look back in 1980, there were upwards of over 
500 recalls. Chairman Nord is talking about record level 
recalls. I only know what the recall level was for 2006, and 
that was 318 products. Under Chairman Ann Brown, the recalls 
were in the 400s during her first year.
    So it really depends on what the staff is doing and it 
depends on who is in charge and what their sort of level of 
focus is on the need to recall products. It makes it very 
difficult to tell if there are more dangerous products as a 
result of CPSC's understaffing situation right now, but 
certainly for our purposes we see way too many kids being 
exposed to recalled products. I've already talked about that.
    And, Mr. Chairman, if I may just comment on one of the 
things that Mr. Locker has said twice now, about the issue of 
product misuse, and this is a perennial issue between industry 
and consumer groups. I think it's very important to point out 
that when the CPSC was created, it was established to address 
issues that include foreseeable misuse.
    And I'm quoting here from a letter that was written by 
Robert Adler, a business professor in North Carolina, who 
worked as a lawyer for the CPSC for a number of years. His law 
review article, notes that ``While contributory negligence may 
diminish the impact of a product liability suit, Congress 
wanted no such limitations with respect to product safety 
regulation. The operative test in determining whether CPSC 
should take action has relatively little to do with whether or 
not a consumer acted carelessly. Rather, the agency is supposed 
to look at and weigh the severity and frequency of the harm, 
whether the fix can be done inexpensively, and whether a 
product fix would interfere with the product's utility.''
    So I think it's very important that we understand what the 
mission and the charge of this commission is, and it's not 
about not acting when consumers have exposed children to a 
dangerous situation. That's a misperception that we hear over 
and over again, and it's something that disturbs us, and we 
want to make sure it is clear on the record.
    So I've given you my answer on the number of products.
    Senator Pryor. You all have been very patient, and these 
panels have gone a little bit longer than I think we all had 
anticipated, but it has been informative and helpful. We're 
going to keep the record open here for 2 weeks, to allow 
Senators to ask questions, and we're going to submit that FDA 
letter that we mentioned earlier for the record. There may be 
other Senators who want to submit items for the record. Your 
testimony will be made part of the record. And with that, we'll 
adjourn the hearing, and we'll see you soon.
    Mr. Locker. Senator Pryor, could I just ask you to 
recognize that this is National Poison Prevention Week?
    Senator Pryor. Sure. This is National Poison Prevention 
Week. Thank you for bringing that up. Thank you.
    [Whereupon, at 12:35 p.m., the hearing was adjourned.]

                            A P P E N D I X

                                       Brooklyn, NY, March 28, 2007
Hon. Daniel K. Inouye, 
Chairman,
Senate Committee on Commerce, Science, and Transportation,
Washington, DC.
                Re: U.S. Consumer Product Safety Commission
Dear Senator Inouye:

    Please consider adding my comments to the record of the March 21, 
2007 oversight hearing on the U.S. Consumer Product Safety Commission.
    The Commission can be one of the most effective agencies of the 
Federal Government. Over the past thirty years its work contributed 
significantly to a thirty percent decline in the rate of deaths and 
injuries associated with consumer products. Unfortunately its 
management has not always been effective. This has been especially true 
under the current Administration. I believe that deaths and injuries 
will increase if the Administration succeeds in further disabling CPSC.
    While working for the U.S. Food and Drug Administration (FDA, 1968-
1973) I played a key part in identifying hazards (lead paint on toys, 
asbestos in fabric and noise in caps). I was responsible for 
identifying four of the first twelve toys banned by FDA. I transferred 
to CPSC in 1973 and retired as a GS-12 Compliance Officer in its 
Eastern (New York) Regional office in 2002. In addition to my assigned 
work within the Commission, I played a key part in identifying the need 
for voluntary standards for fuel containers and window guards (as noted 
below). Thus, I can give you a perspective on where CPSC has failed and 
how it can be improved.
    CPSC is charged with protecting the public from unreasonable risks 
of death and serious injury from fire, electrical, chemical and 
mechanical hazards. It regulates 15,000 types of consumer products 
including art materials, chemicals, cigarette lighters, cribs, electric 
devices, extension cords, fireworks, flammable fabrics, furniture, 
household gadgets, jewelry, lead paint, mattresses, pacifiers and toys. 
Deaths, injuries and property damage from these regulated consumer 
product incidents cost the Nation more than $700 billion.
    The Commission's budget has always been insignificant compared to 
the cost of the accidents it prevents. In 1975 its budget was 
$36,954,000. It is now only $62,370,000, which is a tremendous decrease 
when inflation is factored in. This compares with $254 million that the 
Bush administration spent on public relations contracts in 4 years. 
(The New York Times, March 13, 2005, pages 1 and 34.)
    CPSC's original fourteen regional offices have been reduced to 
two--San Francisco and Chicago. Field laboratories no longer exist, so 
samples have to be shipped to the headquarters laboratory which can 
delay analyses.
    CPSC's full-time equivalent staff has decreased from 890 in 1975 to 
440 in 2006. The cuts have been hardest on the field. The original 
(1973) New York metropolitan area staff included twenty investigators, 
six inspectors, six chemists and a support staff. I understand that 
only one investigator is currently stationed in New York City--and she 
works out of her house at the southern tip of Staten Island. Three 
other investigators cover northern New Jersey, Long Island and 
Westchester/Connecticut.
    The Commission has not had an investigator stationed in Puerto Rico 
for about twenty-five years. Years ago I concluded that many of the 
products sold in Puerto Rico violate the Commission's regulations and 
standards.
    The Administration has placed a new priority on timeliness and 
quantity of in-depth accident investigations. There is no way that the 
field staff can conduct these accident investigations and the cover 
even a fraction of the importers, manufacturers and distributors of the 
above listed products. This is especially true in New York City.
    Some areas where I have personal knowledge of hazards that should 
be addressed are discussed below.
    A few weeks ago ten people died in New York City in a fire believed 
to have been caused by either an electric heater or an extension cord. 
I worked on both hazards prior to my retirement. Initial information on 
oil filled heaters came to me from the NYC Fire Department. Cheap 
extension cords were a major problem that the staff had to deal with. 
They often bear counterfeit UL listings.
    A recent news article discussed a man whose eye was knocked out by 
the hook of a bungee cord. I previously studied this product/hazard and 
accumulated incident data showing that the design is faulty and that 
safer devices are on the market. An American Society of Mechanical 
Engineering report on Portable Luggage Cart Safety (11/17/95) pointed 
out that ``Most current designs adopt the bungee cord for rapidly 
securing and unfastening the load. This `rubberband like' restraining 
element has been identified by the . . . (CPSC) as the primary source 
of luggage cart injuries because of its propensity for producing impact 
hazards that strike the eye. Countermeasures for controlling the impact 
hazard randomly appear throughout the family of luggage carts.'' 
However, since the product does not violate an existing regulation, the 
hazard is not caused by a defect and there were other priorities I was 
not able to get CPSC to take action.
    Aluminum bats. The New York City Council recently enacted a ban on 
the use of aluminum bats in high school baseball games. These bats have 
been responsible for the deaths of a number of ball players. A 
Republican city councilman stated that ``Where the overseeing bodies 
have failed to live up to their responsibility to protect these kids, 
it falls into our laps.'' I presume that he meant that since CPSC has 
failed to take action New York City will.
    Window fall accidents. My memo to Ann Brown dated April 4, 1994 
documented 227 preventable deaths from window falls. As a result CPSC 
initiated work to establish a ``voluntary'' (ASTM PS 112-98) standard 
for window guards. The Commission has taken no recent action to prevent 
such falls. All that would be required is to issue yearly press 
releases reminding parents to place guards in windows that are 
accessible to children.
    Gasoline containers. Congressman Moore is sponsoring the 
``Children's Gasoline Burn Prevention Act.'' The current ASTM standards 
for gasoline and fuel containers and their labeling were instituted as 
a direct result of my 1978 petition (CP 78-17) to the U.S. Consumer 
Product Safety Commission. See the Federal Register (45 F.R. 59376), 
which lists me by name, but does not indicate that I was then an 
employee of the Commission. The standards (now F22234-03) should be 
reviewed to address Congressman Moore's concerns.
    Nose rings with hazardous magnets. The magnets used in this jewelry 
are the subject of a proposed revision to the ASTM standard for 
children's toys (now F963-03). However, the standard does not cover the 
magnets when used in jewelry worn in the nose by pre-teens. This 
jewelry poses a similar hazard when aspirated into the lungs.
    Cigarette lighters. This is a case where responsible industry will 
cooperate in enforcement. A survey that I conducted in 2001 revealed 
that non-complying lighters were being imported from China and openly 
distributed in New York City. I still see them on display. Them is just 
no field staff to enforce this standard.
    Mattresses. The Commission's standard has been revised twice. 
However, almost no inspections were conducted to enforce the standard 
that was effective from 1984 to 2006. With the current staff; it is not 
likely that the revised standard will be enforced. Reconditioned used 
mattresses pose a serious fire hazard that can be eliminated with 
appropriate manpower.
    Mercury. The use of metallic mercury in voodoo rites threatens 
public health and the housing stock. It may turn out to be as great a 
threat as lead paint. However, CPSC has done very little in regard to 
regulating retail sale of metallic mercury. This was true even in the 
1990s when the staff was larger. There are long term implications to 
this matter, which has low priority at this time.
    Chemical hazards under the Federal Hazardous Substances Act (FHSA). 
The original New York staff consisted of twenty investigators who had 
degrees in the sciences or engineering. This staff was deliberately 
eliminated during the 1980s reduction-in-force. Over the years local 
management hired and promoted a number of individuals who had never 
even taken a college science or chemistry course. These individuals 
could, thus, not perform a basic part of their job (chemical 
inspections under the FHSA).
    It is most discouraging when competent productive workers see 
management hire and promotes unqualified inexperienced individuals to 
the GS-12 level! There should be a minimum education level for CPSC 
investigators. Similarly the Commissioners should be individuals who 
``by reason of their background and expertise in areas related to 
consumer products and protection of the public from risks to safety are 
qualified to serve as members of the Commission.'' (See section 4(a) of 
the Consumer Product Safety Act).
    The Consumer Product Safety Commission can not function without an 
adequate, competent, dedicated and inquisitive staff--from the Chairman 
down to the investigator level. Fully staffing the agency's field with 
competent employees will more than pay for itself in increasing public 
safety and decreasing the cost of government programs such as Medicare 
and Medicaid.
            Sincerely,
                                         Martin B. Bennett.
cc: Senator Mark Pryor, Chairman, Subcommittee on Consumer Affairs, 
            Insurance, and Automotive Safety
Mr. Alex Hoehn-Saric, Committee Counselor
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Bill Nelson to 
                           Hon. Nancy A. Nord

    Question 1. The Commission's final rule in the Portable Generator 
Labeling proceeding (72 Federal Register 1443, January 12, 2007) stated 
that the issue of ``integrated CO monitors'' would be addressed in the 
context of the Portable Generator Performance Standard Advance Notice 
of Proposed Rulemaking (71 Federal Register 74472, December 12, 2006) 
(hereinafter ``Generator Performance ANPR''). The comment period for 
the Generator Performance ANPR ended on February 12, 2007. What is the 
Commission's current timeline for issuance of a specific Notice of 
Proposed Rulemaking (``NPRM'') regarding interlocked carbon monoxide 
detection devices on new portable generators?
    Answer. CPSC staff is investigating potential technical approaches 
to reducing the hazard of carbon monoxide (CO) poisoning from portable 
generators. In FY 2006, the CPSC's staff successfully demonstrated the 
feasibility of shutting down a generator when elevated levels of CO are 
detected, using CO detectors located in the home and in the vicinity of 
an operating generator. Additional developmental work would be 
necessary to address technical and human factors issues that were 
identified during this concept demonstration. CPSC staff believes that 
protecting the consumer from the CO hazard by way of an interlocking or 
auto shut-off device is a complementary yet secondary approach that 
should be pursued if the CO emission rate cannot be sufficiently 
reduced. The staff is currently considering additional research on 
auto-shutdown techniques in conjunction with the low-CO engine 
contract, using the same engine control technologies that are being 
used in that effort. This research will be completed in FY 2008.
    The staff's current emphasis is on developing a prototype portable 
generator that emits significantly reduced levels of CO, using 
available technologies such as exhaust catalysts and electronic fuel 
injection. If successful, this would provide a margin of safety to help 
protect consumers against exposure to CO in the event they improperly 
operate a generator in an enclosed space or near an open window.
    The Commission awarded a contract to the University of Alabama in 
September 2006 to develop and demonstrate a prototype low-CO emission 
generator with a goal of achieving reductions in the CO emission rate 
on the order of 90%-95%. CPSC staff predicts that this level of 
reduction will significantly improve survivability when a generator is 
operated in an improper location. This effort is ongoing and will be 
completed in FY 2008.
    The public comment period for the advance notice of proposed 
rulemaking (ANPR) closed on February 12, 2007. The Commission received 
detailed and complex comments which CPSC staff is currently evaluating. 
Additionally, CPSC staff is assessing technologies and researching 
performance testing methods that would be required if the Commission 
voted to proceed to issue a notice of proposed rulemaking (which is the 
next step in the Commission's mandated three-step rulemaking process) 
on all or part of the issues raised in the ANPR. When these steps are 
completed, the staff will prepare a briefing package (publicly 
available) and provide it to the Commission for its consideration. 
Since rulemaking is necessarily driven by scientific assessments and 
conclusions, no hard date can be set at this time for the completion of 
that briefing package.

    Question 2. Last year, the Commission completed approximately 471 
cooperative recalls of consumer products. It is my understanding that 
all of these were completely voluntary. Does the Commission have 
adequate resources to order a mandatory recall--if necessary?
    Answer. Yes. For a number of reasons, the Commission rarely must 
litigate to obtain recalls. On those occasions when such litigation has 
been required, adequate resources have always been provided for staff 
to proceed.

    Question 3. Commissioner Thomas has mentioned nanotechnology as one 
``emerging technology'' that the Commission will have to address in the 
near future. Do you see any other emerging technologies that the 
Commission may have to deal with in the near future? If so, how should 
the Commission deal with them?
    Answer. Addressing the safety challenges that can arise from new 
and emerging technologies has been an integral part of the agency's 
mission since its inception. Working with stakeholders, consumers and 
other government agencies, CPSC staff continuously monitors new 
exposures, patterns, and trends in an effort to quantify risks and 
identify potential hazards from these evolving technologies. While the 
list below is by no means exhaustive, some examples are discussed.
    Newer battery technologies, such as lithium-ion rechargeable cells 
used in cell phones and laptop computers, offer a significant increase 
in energy in smaller enclosures compared to older technologies. Such 
battery technologies provide more operating power for longer periods of 
time for consumer electronic devices. However, these types of batteries 
have been the subject of numerous recalls due to the potential thermal 
burn or fire hazard, and staff has worked with industry to develop new 
safety standards to address these hazards. CPSC staff continues to work 
with other government agencies and industry to develop standard and 
certification programs for their safe use.
    In the future, CPSC staff expects that newer technologies such as 
fuel cells will likely provide high energy density power sources for 
consumer applications. The chemical energy can be derived from various 
fuels such as natural gas, propane or compressed hydrogen. Reductions 
in fuel cell production costs have made them increasingly attractive 
for commercialization. Potential consumer applications include 
stationary residential power generation, portable power generation, and 
replacements for battery-operated devices.
    Another area is the use of sensor technologies to address consumer 
product hazards. Sensor technologies are applied in the automotive 
industry to reduce the risk of collision and theft and have been 
utilized in the defense, space and security industries for many years. 
Recent national initiatives in the research and development community 
promise to increase the sophistication and utility of sensor 
technologies. The emergence and routine application of sensor 
technologies raises the prospect that there may be opportunities for 
detecting and averting various hazard scenarios in many consumer 
products. While there is extensive research and development underway in 
sensor technologies and applications, and a few applications have been 
introduced into the marketplace, hazard avoidance applications have not 
yet been explored in depth within the consumer product manufacturing or 
safety assurance communities. Of particular interest to the CPSC are 
potential hazard scenarios that could be detected using the appropriate 
sensors and signal processing techniques and their application in 
specific consumer products that have been involved in hazards or in 
which hazards could be anticipated.
    Addressing issues associated with emerging technologies is often 
resource intensive. As new technologies enter the marketplace, CPSC 
staff must identify the products that contain these technologies and 
assess the effect on consumers. CPSC staff will need to develop 
technical information that can be used to support new performance 
requirements in product standards, if necessary. Staff will need to 
collect and analyze data and scenarios, develop subject matter 
expertise needed for product testing and evaluation, become familiar 
with laboratory equipment to conduct product testing, and develop 
appropriate test methods and performance requirements.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                           Hon. Nancy A. Nord

    Question 1. As you know, last December western Washington 
experienced a severe windstorm that knocked out power to millions of 
residents. It took eleven days for electric service to be restored to 
all customers in western Washington. Eight people died and more than 
300 were treated for carbon monoxide poisoning as a result of burning 
charcoal or running portable generators indoors.
    First, I want to thank the Commission for issuing its final rule on 
labeling requirements on portable generators this past January. I 
believe it is an important step to improving public safety.
    The Commission has opened an Advanced Notice of Proposed Rulemaking 
on Portable Generators that looks into several of the issues addressed 
in the ``Portable Generator Safety Act'', which I co-sponsored with 
Senator Bill Nelson in the 109th Congress. I know you cannot comment on 
an open proceeding, but I believe as a minimum, portable generators 
should be weatherized with ground fault interruption so that users are 
not afraid to operate them outdoors in the rain and that the Commission 
should establish carbon monoxide emission standards to reduce exposure 
risk when they are improperly used indoors. What is the status of the 
advanced rulemaking? Can you provide me with a date when you anticipate 
that the advanced rulemaking will be completed?
    Answer. CPSC staff was very active in delivering safety messages 
before, during and after the severe storms that were experienced in 
western Washington. CPSC staff tracked weather reports in advance of 
the storm and provided radio and television outlets with our safety 
alerts in the event of a power outage, including alerts on the proper 
use of portable generators and warnings against the use of gas stoves 
for heat. Following the storm CPSC staff continued to communicate our 
safety messages on the radio and in the print media. CPSC staff also 
reached out to Washington's Governor and state health officials with 
our carbon monoxide (CO) safety messages.
    CPSC staff agrees that portable generator weatherization features, 
including ground fault protection, are an important part of enabling 
and encouraging consumers to safely operate their generators outdoors 
as a means to help reduce the CO poisoning hazard. In February 2007, 
Underwriters Laboratories (UL) announced its intention to develop a 
voluntary standard for portable generators. The preliminary draft of UL 
Standard 2201, Portable Engine Generator Assemblies, includes 
requirements for features that would permit safe use of portable 
generators outdoors in wet conditions, including a requirement for 
ground fault protection on the electrical circuits. The status of this 
voluntary standard effort will be taken into consideration by CPSC 
staff in the course of its ongoing rulemaking proceedings.
    CPSC staff is investigating potential technical approaches to 
reducing the hazard of carbon monoxide (CO) poisoning from portable 
generators. In FY 2006, CPSC staff successfully demonstrated the 
feasibility of shutting down a generator when elevated levels of CO are 
detected, using CO detectors located in the home and in the vicinity of 
an operating generator. Additional developmental work would be 
necessary to address technical and human factors issues that were 
identified during this concept demonstration. CPSC staff believes that 
protecting the consumer from the CO hazard by way of an interlocking or 
auto shut-off device is a complementary yet secondary approach that 
should be pursued if the CO emission rate cannot be sufficiently 
reduced by available technologies. The staff is currently considering 
additional research on auto-shutdown techniques in conjunction with the 
low-CO engine contract, using the same engine control technologies that 
are being used in that effort. This research will be completed in FY 
2008.
    The staff's current emphasis is on developing a prototype portable 
generator that emits significantly reduced levels of CO, using 
available technologies such as exhaust catalysts and electronic fuel 
injection. If successful, this would provide a margin of safety to help 
protect consumers against exposure to CO in the event they improperly 
operate a generator in an enclosed space or near an open window.
    The Commission awarded a contract to the University of Alabama in 
September 2006 to develop and demonstrate a prototype low-CO emission 
generator with a goal of achieving reductions in the CO emission rate 
on the order of 90-95 percent. CPSC staff predicts that this level of 
reduction will significantly improve survivability when a generator is 
operated in an improper location. This effort is ongoing and will be 
completed in FY 2008.
    The public comment period for the advance notice of proposed 
rulemaking (ANPR) closed on February 12, 2007. The Commission received 
detailed and complex comments which CPSC staff is currently evaluating. 
Additionally, CPSC staff is assessing technologies and researching 
performance testing methods that would be required if the Commission 
voted to proceed to issue a notice of proposed rulemaking (which is the 
next step in the Commission's mandated three-step rulemaking process) 
on all or part of the issues raised in the ANPR. When these steps are 
completed, the staff will prepare a briefing package (publicly 
available) and provide it to the Commission for its consideration. 
Since rulemaking is necessarily driven by scientific assessments and 
conclusions, no hard date can be set at this time for the completion of 
that briefing package.

    Question 2. Anecdotally, hundreds of people die in the United 
States each year from accidental carbon monoxide poisoning related to 
consumer products. My understanding is that the Commission compiles 
this data in a report entitled, ``Non-Fire Carbon Monoxide Deaths and 
Injuries Associated with the Use of Consumer Products''. How current is 
the data collected?
    Answer. CPSC staff receives reports of product related incidents on 
a daily basis. Some of the sources for these reports are: hospitals in 
the CPSC's National Electronic Injury Surveillance System (NEISS); CPSC 
staff field investigations; and reports from consumers, hotline 
complaints, newspaper clippings, and medical examiner reports. 
Additionally, CPSC augments these incident reports by purchasing 
selected death certificates from all states, New York City, and the 
District of Columbia. Death certificates are purchased according to 
specified external ``cause of death'' codes as systematized by the 
World Health Organization's International Classification of Diseases. 
Data from all of these reports are housed in CPSC's Epidemiological 
Databases which are updated on an ongoing basis.
    The primary source of data for CPSC staff estimates of carbon 
monoxide fatalities is purchased death certificates. Because of 
differing reporting procedures among states, the time lag between when 
a death occurs and when CPSC staff receives the death certificate 
varies. Based on CPSC staff records from 1990 through 2003, 
approximately 50 percent of the death certificates were received within 
a year after the fatality. About 10 percent of the death certificates 
were not received until more than 2 years after the fatality occurred. 
Less than 2 percent of outstanding death certificates lag 3 years or 
more beyond the actual date of death.
    After the October 2000 release of 1997 annual estimates of non-fire 
related carbon monoxide fatalities and injuries associated with 
consumer products, CPSC staff discontinued production of injury (non-
fatal carbon monoxide incident) estimates because of concerns about the 
scientific soundness of these estimates. Previously, CPSC staff 
generated national injury estimates using NEISS data collected from a 
probability based sample of emergency rooms. However, after considering 
a scientific assessment of physiological factors and exposure 
scenarios, CPSC staff concluded that data in NEISS records are often 
insufficient to identify carbon monoxide injury incidents. The symptoms 
of carbon monoxide poisoning (fatigue, headache, nausea, dizziness, 
shortness of breath) mimic those of the flu or a cold. The short 
narrative associated with NEISS records makes it difficult to discern 
whether cold or flu has been misdiagnosed as a carbon monoxide incident 
or vice versa. Further information, such as carboxyhemoglobin (COHb) 
blood levels and description of the exposure scenarios, is necessary to 
distinguish carbon monoxide injury incidents from other incidents. The 
distinction of these incidents is integral to the production of 
scientifically sound and reliable national estimates on non-fire carbon 
monoxide injuries. CPSC staff has recently sought to enhance data 
quality by requesting that COHb measurements be included in NEISS 
records whenever possible and has implemented a detailed special 
follow-up survey to support better characterization of exposures.
    In summary, CPSC staff collects incident data on an ongoing basis. 
However, product associated fatality estimates are performed 
periodically and yearly fatality estimates often lag due to lags in the 
receipt of death certificates. Current data sources--both CPSC and 
external sources--are insufficient to support production of non-fatal 
carbon monoxide injury estimates.

    Question 2a. Has the Commission reported any of its compiled data 
since its 2001 estimates?
    Answer. CPSC staff reported 2002 annual estimates along with 
updated fatality estimates for the years 1999 through 2001 in a July 
2005 report entitled ``Non-Fire Carbon Monoxide Deaths Associated with 
the Use of Consumer Products: 2002 Annual Estimates.'' This report is 
available at http://www.cpsc.gov/library/data.html. Staff is preparing 
estimates of 2003 and 2004 fatalities for a report scheduled to be 
completed this fall.

    Question 2b. If the 2001 data on carbon monoxide poisonings is the 
most recent data published, why has there not been more recent data on 
carbon monoxide poisonings published?
    Answer. CPSC staff reported 2002 annual fatality estimates in July 
of 2005. During 2006, CPSC's staff resources were focused on analyses 
supporting rulemaking activities related to portable generators. These 
analyses, reported as ``Non-fire Carbon Monoxide Fatalities Associated 
with Engine-Driven Generators and Other Engine-Driven Tools in 2002 
through 2005'' in an August 2006 memorandum, are posted on CPSC's 
website at http://www.cpsc.gov/library/data.html. Staff is currently 
preparing 2003 and 2004 annual estimates of non-fire carbon monoxide 
fatalities associated with consumer products. As mentioned above, the 
lag time between the date of non-fire carbon monoxide fatalities and 
when CPSC staff receives the death certificates is the most significant 
factor in the offset between the current year and the year of the 
estimates report. In order to provide meaningful estimates, CPSC staff 
must use as complete a database as is practical. Therefore, there is an 
unavoidable lag between the date the estimate report is published and 
the latest year covered in the report.

    Question 3. To date, the Commission's approach to prevention of 
carbon monoxide poisoning from consumer products has emphasized warning 
labels. The label on bags of charcoal briquettes was modified in 1997. 
What impact did this have on charcoal related carbon monoxide deaths 
and injuries? Is there evidence that this approach is effective?
    Answer. Although it is difficult to assign a direct cause and 
effect to any single action such as a labeling modification, CPSC staff 
estimates show that the average annual number of charcoal-related CO 
poisoning fatalities from 1990 through 1997 was about 21. From 1998 
through 2002, the average was down to around 13 per year.

    Question 3a. As you know in last December's epidemic of carbon 
monoxide poisoning in Washington State, the predominant source of 
carbon monoxide was charcoal briquettes. Anecdotally, a 
disproportionate number of those treated for carbon monoxide poisoning 
were from immigrant populations. Even if the current warning label on 
bags of charcoal briquettes is shown to be reducing morbidity and 
mortality, does the label need to be revisited for possible improvement 
in light of my state's recent experience?
    Answer. The label currently required on bags of charcoal briquettes 
was developed as a result of considerable evaluation and research. The 
primary objective in developing and selecting the label design was to 
maximize the effectiveness of the prohibition to never burn charcoal 
inside a house, tent, or vehicle. Potential pictograms were assessed 
using a sample of at-risk charcoal users. The methodology used was 
consistent with the requirements in the nationally recognized standard, 
American National Standard Criteria for Safety Symbols (ANSI) Z535.3. 
The objective of the testing was to ensure that the label communicated 
the hazard to the populations at the greatest risk. Fifty percent of 
the subjects were Hispanics who did not read English. The researchers 
used open-ended testing as opposed to multiple-choice, as open-ended 
testing is the most demanding assessment for measuring label 
comprehension. The results of the testing indicated that the label was 
correctly interpreted by a large number of the subjects, with no 
``critical confusions'' (misinterpretations that would increase the 
risk).
    We are continuing to investigate every product-related carbon 
monoxide poisoning death we become aware of to learn about the products 
and circumstances involved in the incidents. In addition, our Human 
Factors experts continue to review and evaluate studies related to 
warning label design and effectiveness. At this time, CPSC staff is not 
aware of any new information about the hazard or in the labeling 
literature that indicates that changes to the label would increase its 
effectiveness in warning consumers about the hazard.

    Question 4. Washington State lawmakers are considering legislation 
to ban chemical flame retardants called polybrominated diphenyl ethers, 
or PBDEs. The ban focuses on the deca form of PBDEs. Production of two 
other forms, penta and octa, ceased voluntarily in 2004 over safety 
concerns. While flame retardants help save lives, they are of 
increasing concern to scientists and at least State regulatory agencies 
because of their ubiquitous presence in the environment and 
bioaccumulation in humans, wildlife and aquatic organisms. If the 
legislation becomes law, Washington State would be the first in the 
Nation to ban the use of PBDEs in a number of consumer items. For 
example, it would ban the manufacture and sale of mattresses containing 
deca by January 1, 2008 and would ban the manufacture and sale of TVs, 
computers and residential upholstered furniture containing deca by 
January 1, 2011, if a safer, technically feasible alternative is found.
    Before making a determination that deca could be used to meet the 
new standards on the flammability of mattresses and mattress pad, did 
the Commission take into consideration the following:

   Deca breaks down into more toxic compounds (penta and octa) 
        that have already banned in numerous states?

   Deca, when burned, generates dioxins and furans?

   Deca has the same neurotoxic effects as the penta and octa 
        forms of PBDE?

   The high levels of deca already found in house dust due to 
        its use in enclosures for electronics?

   The long term effects of these PBDEs on children and the 
        rapidly rising levels in people and the environment?

    Answer. The Commission has made no determinations regarding the use 
of deca to meet the new standards on the flammability of mattresses. 
While deca can be used to meet the flammability requirements for 
mattresses, manufacturers have several other options to consider. Most 
manufacturers use flame resistant barriers made of inherently flame-
resistant textiles. Few, if any, use barriers treated with deca.
    The staff of the Directorate for Health Sciences (HS) assessed the 
potential health risks to consumers from exposure to deca and other 
flame retardant (FR) treatments in mattresses. The staff concluded that 
deca would not present a hazard to consumers during ``reasonably 
foreseeable handling or use'' of mattresses treated with this FR 
chemical. This analysis addressed the direct exposure to deca from 
mattresses. If it is found that during consumer use of mattresses, deca 
can break down to more toxic congeners, then this information would be 
evaluated.
    We also note that the U.S. Environmental Protection Agency (EPA) 
has the authority under the Toxic Substances Control Act (TSCA) to 
regulate the environmental effects of FR chemicals, and so we do not 
typically investigate that aspect of their use.
    All combustion processes from natural wildfires to automobile 
exhaust to residential fires produce chlorinated (and un-chlorinated) 
dioxins and furans. Although brominated dioxins and furans are produced 
in residential fires, we are not aware of any studies comparing total 
dioxin and furan production in the presence of brominated FRs to such 
production in the absence of brominated FRs.
    CPSC staff reviewed the data on the possible neurotoxicity of deca 
but there were a number of study limitations. Thus, in 2005, CPSC staff 
asked the National Toxicology Program (NTP) to perform additional 
developmental neurotoxicity tests on deca. CPSC staff estimates direct 
exposure from deca in mattresses or upholstered furniture is low in 
comparison to the levels that cause the neurotoxic effects in animals.
    The presence of deca in residential settled dust is a relatively 
new finding. It appears to be related to the presence of electronic 
equipment. The significance of these dust levels to human health has 
not been evaluated. CPSC staff will monitor ongoing studies or other 
developments in this area.
    In assessing the potential health effects of deca, CPSC staff 
considered all of the available data. To the extent possible, the staff 
considered the chronic effects in children and adults. However, data on 
health effects in children, as compared to adults, are generally 
lacking.
    The staff also considered the levels of PBDE's in humans, animals, 
and the environment and the potential environmental impact of deca in 
mattresses. At the request of CPSC, the EPA has developed a draft 
Significant New Use Rule (SNUR) that could be used to obtain additional 
information of the potential risks of FR chemicals to consumers, 
workers, and the environment. In addition, the EPA has authority under 
TSCA to regulate the environmental effects of FR chemicals.
    Due to the scientific complexity of these issues, the CPSC would be 
pleased to have one of our technical staff come to your office to brief 
your staff and answer your questions directly at any time that is 
convenient for you.

    Question 5. What is the current status of the Commission's efforts 
to develop a national flammability standard for residential upholstered 
furniture?
    Answer. The Commission published an advance notice of proposed 
rulemaking (ANPR) in 2003. This ANPR expanded an existing regulatory 
proceeding to address ignitions of upholstered furniture by smoldering 
cigarettes as well as small open flame sources like lighters, matches 
and candles. CPSC staff developed a draft flammability performance 
standard for upholstery materials and presented the draft standard and 
regulatory alternatives to the Commission in 2006. In FY 2006 and 2007, 
the staff conducted additional technical work in support of a possible 
proposed rule and published two status reports for public review. The 
staff continues to work with government, industry and fire safety 
community stakeholders on a variety of technical issues.

    Question 5a. What are your plans to consider the long term health 
and environmental impacts of the chemicals that can be used to meet 
these standards?
    Answer. Throughout the agency's regulatory proceeding on 
upholstered furniture, the CPSC staff's major objective has been to 
achieve substantial fire safety benefits to consumers without imposing 
health or environmental risks. In addition to the 1999-2000 National 
Academy of Sciences' (NAS) study, CPSC staff performed two exposure and 
health risk assessments related to fabric and foam filling material FRs 
in upholstered furniture and another related to FRs in mattress 
barriers that could also be used in furniture. These assessments 
focused primarily on long term chronic health effects. Further, the 
staff prepared a preliminary environmental assessment, in accordance 
with the National Environmental Policy Act. The NAS study and the CPSC 
staff's fabric FR risk assessment and environmental assessment 
identified a number of chemicals that could be used without presenting 
health or environmental risks to consumers. Also, the staff modified 
its draft performance standard to minimize fabric FR usage and possible 
exposure. To provide additional information, CPSC staff nominated 
several FRs for study by the National Toxicology Program of the 
Department of Health and Human Services. The CPSC staff continues to 
monitor ongoing FR chemical studies to inform the standards development 
process. We note again that the U.S. Environmental Protection Agency 
(EPA) has the authority under the Toxic Substances Control Act (TSCA) 
to regulate the environmental effects of FR chemicals, and so we do not 
typically investigate that aspect of their use.

    Question 5b. What work is being done to consider non-chemical 
alternatives to meet the standards and is this a priority?
    Answer. The staff's draft standard contains a number of compliance 
options for manufacturers and importers. While the standard could be 
met by using FR materials, it would not prescribe the use of 
polybrominated diphenyl ethers (PBDEs) or any other particular FR. 
Complying furniture could use non-hazardous FRs or could use no FR 
treatments, for example, by using leather or wool cover materials or 
inherently fire-resistive barrier materials similar to some of those 
used to meet the Commission's new mattress rule. Ensuring the 
availability of non-chemical alternatives to meet a standard has 
consistently been, and remains, a priority in the rulemaking process.

    Question 6. As you know, in 2000, the National Research Council 
(NRC) released its study on the ``Toxicological Risks of Selected 
Flame-Retardant Chemicals'', a report that was required as part of the 
Commission's FY 1999 appropriations. In the report, the NRC examined 
the health risks posed by exposure to 16 chemicals (or chemical 
classes) of flame retardant that are likely to be used in residential 
upholstered furniture to meet a flammability standard that the 
Commission was considering. Much has been learned about the 
environmental and health impacts of certain flame retardants over the 
intervening years. Do you believe there would be value in having the 
National Research Council update its study?
    Answer. Much of the more recent research activities on flame 
retardant (FR) chemicals since the 2000 NRC report has focused on 
environmental fate and environmental effects. The 2000 NRC report 
attempted to address potential risk to consumers exposed to FR 
chemicals from the use of upholstered furniture containing FR 
chemicals. However, many information gaps existed. Since the NRC 
report, CPSC staff has worked to provide data on exposure and dermal 
absorption, which the NRC subcommittee lacked and viewed as a 
significant limitation. CPSC staff is also attempting to fill these 
gaps through additional testing by the National Toxicology Program 
(NTP), administered by HHS, but this will take several years to 
complete.
    As CPSC staff proceed in this rulemaking, any additional 
information, from any reliable source, on the potential human health 
effects of FR chemicals would be welcome.

    Question 7. Does the Commission have national flammability 
standards for consumer electronics products such as television 
enclosures and computer enclosures? If not, should the Commission 
pursue such standards or are the voluntary industry standards adequate?
    Answer. There are no mandatory national flammability standards for 
consumer electronics products such as television enclosures and 
computer enclosures. The industry voluntary safety standard for 
televisions is Underwriters Laboratories (UL) 60065, Audio, Video and 
Similar Electronic Apparatus--Safety Requirements. The industry 
voluntary safety standard for computer enclosures is UL 60950, Standard 
for Safety for Information Technology Equipment.
    In the 1970s, CPSC staff worked with industry to improve 
flammability requirements in voluntary standards for television 
enclosures. Since 1979, these products must meet improved requirements 
of UL 94, Test for Flammability of Plastic Materials for Parts in 
Devices and Appliances. In 2002, CPSC staff reviewed reports of fires 
and near-fires involving computers and printers. The staff did not find 
any field data suggesting the need for special action for computer 
products. In addition, staff is not aware of any recalls of televisions 
or computers due to hazards associated with flammability of the 
enclosures.
    With the potential exception of portable computing products, CPSC 
staff believes that the flammability requirements for television and 
computer enclosures in the voluntary standards are adequate to address 
the risk of fire from electrical sources within these products. The 
staff is considering the adequacy of flammability requirements for 
portable computer enclosures to protect against fire hazards associated 
with lithium-ion batteries as it addresses safety requirements for 
these batteries.
    CPSC staff has been in the forefront for upgrading the flammability 
requirements for plastics used for enclosures of portable electrical 
appliances. The staff worked with Underwriters Laboratories and the 
electrical appliance industry to develop new, more protective 
flammability requirements applicable to all portable electric 
appliances. These new requirements became effective in July 2004.

    Question 8. In your testimony, you mentioned that two-thirds of 
product recalls in FY 2006 were of imported products. How is the 
Commission monitoring imported consumer products to ensure compliance 
with U.S. safety standards?
    Answer. CPSC's Compliance staff monitors imported consumer products 
and enforces U.S. safety standards typically through surveillance and 
sampling of products both at ports of entry and at U.S. retail 
establishments. In recent years, Internet surveillance has played an 
increasingly significant role in our programs. Product samples 
collected at various locations are shipped to our Laboratory for 
testing and to CPSC Headquarters for other evaluations as appropriate. 
In the case of toy samples, for example, each product is age-graded by 
experts from CPSC's human factors staff. This process is generally 
necessary to determine the applicability of specific standards. Some 
ports have their own testing laboratories which may be capable of 
conducting tests for us. Additionally, CPSC works closely with U.S. 
Customs and Border Protection to identify and seize hazardous consumer 
products before they enter the American marketplace.

    Question 8a. How does the Commission identify which imported 
consumer products it checks for compliance?
    Answer. The Compliance staff uses a variety of different sampling 
methods to identify products for testing. One of the most sophisticated 
sampling methods applies to imported fireworks. The method takes into 
account such factors as whether the importer or shipper has had the 
fireworks tested by an independent third party; whether the importer 
and product are known to the staff; whether the importer has a good 
record of compliance with the regulations; and so on. Unlike some other 
products, such as cigarette lighters, fireworks tend to be used at 
certain times of the year and therefore have busy and slow importation 
seasons. As a result, sampling rates may change during different times 
of the year.

    Question 8b. Currently, how many countries has the Commission 
signed MOUs with? Typically, what agency is the Commission's foreign 
counterpart (please provide a few examples)? Can you describe the 
contents of a typical MOU the Commission signs with foreign 
governments. What does ``close consultation'' mean from the standpoint 
of implementation?
    Answer. CPSC currently has twelve signed and active MOUs: Canada, 
Chile, China, Costa Rica, India, Korea, Mexico, Israel, Taiwan, Peru, 
the European Commission and Japan. Also, CPSC is in current 
negotiations with Argentina, Brazil, Colombia, Thailand and Vietnam. We 
work with those foreign government agencies that have responsibility 
for consumer products. Some counterparts may be responsible for more 
than just consumer products. Additionally, in some countries there may 
be multiple agencies responsible for various responsibilities all 
encompassed in the United States within the jurisdiction of CPSC. For 
example, in Japan the Ministry of Economy, Trade and Industry is 
responsible for product safety and the National Institute of Technology 
and Evaluation is responsible for collecting injury data. Examples of 
other counterpart agencies are Health Canada, Profeco in Mexico, and 
Health and Consumer Protection Directorate-General (DG Sanco) of the 
European Commission.
    All the MOUs signed to date are non-binding and have been reviewed 
by the U.S. Trade Representative's Office as well as the Department of 
State. The MOUs begin by stating those laws that govern the CPSC and 
those laws that govern our counterpart agency. The MOUs then proceed to 
outline areas of and cooperation which center around three main topics 
and when combined, provide a working definition of ``close 
consultation'':

    1. Exchange information and documents relating to consumer product 
safety, consumer welfare and the awareness of consumers;

    2. Develop training programs for government officials and others 
dealing with the subject of consumer product safety; and

    3. Exchange officials, experts and professionals in the areas of 
consumer product safety to carry out specific programs of mutual 
cooperation.

    For the above areas of cooperation each country is responsible for 
their expenses related to carrying out the MOU. Also no confidential 
information is ever exchanged.

    Question 8c. What level of resources in terms of budget and FTE's 
is the Commission allocating for these activities on an annual basis?
    Answer. The CPSC budget does not distinguish between funds spent on 
domestic product recalls and those spent on imported product recalls. 
In FY 2007, the agency budgeted 150 FTEs and $17 million for the Office 
of Compliance which obtains recalls, a significant majority of which 
are of imported products. Additionally, the Commission established the 
Office of International Programs and Intergovernmental Affairs (OIPIA) 
to serve as the focal point of the agency's international efforts. That 
Office is budgeted at six FTEs, for an additional $642,000.

    Question 8d. At what U.S. ports of entry are there Commission 
personnel monitoring imported consumer products to ensure compliance 
with U.S. safety standards?
    Answer. CPSC investigators are not assigned to specific ports of 
entry as a permanent duty station. Instead, our investigators are 
located around the Nation and can interact with ports on an as-needed 
basis. During some periods, we have contingents of CPSC personnel who 
work at the ports on a daily basis.

    Question 8e. Is there Commission personnel stationed at overseas 
ports monitoring the safety standards of consumer products intended for 
export to the U.S.?
    Answer. No. Currently, there are no CPSC personnel stationed 
overseas.

    Question 8f. Is the relationship between the Commission and the 
Bureau of Customs and Border Protection memorialized in a Memorandum of 
Understanding or Memorandum of Agreement, or is it an informal 
arrangement? If it is an informal arrangement, does the Commission 
believe that Congress should statutorily require the Commission and the 
Bureau of Customs and Border Protection to develop a formalized 
relationship?
    Answer. The relationship between CPSC and the Bureau of Customs and 
Border Protection (CBP) is the subject of an interagency Memorandum of 
Understanding (MOU) that was signed on October 3, 2002. This MOU will 
likely be updated in the near future to reflect CPSC's participation in 
the International Trade Data System/Automated Commercial Environment, 
which is a new system for tracking imports being introduced by CBP. It 
would be the prerogative of Congress to direct a more formal 
relationship between CPSC and CBP; however, additional inspection 
resources and tools might also be considered.

    Question 8g. In your testimony you noted that most of the recalls 
of imported products originated in China. What specific steps is the 
Commission taking to remedy this problem?
    Answer. In Fiscal Year 2006, nearly 50 percent of CPSC recalls 
involved products that were manufactured in China, and CPSC recognizes 
the fact that the number of imported products will continue to grow in 
the coming years. To address this situation, CPSC staff is pursuing a 
multi-pronged approach.
    First, the Compliance staff conducts routine and targeted 
inspections at U.S. ports of entry;
    Second, as imports increase, it is essential that manufacturers 
abroad be educated about U.S. safety requirements. In recent years, the 
agency revised our Handbook for Manufacturers, which contains many 
valuable tips on manufacturing safe products and had it translated into 
Mandarin Chinese. CPSC safety experts also have conducted seminars for 
Chinese manufacturers on CPSC safety standards and requirements.
    Third, the agency has strengthened our cooperation with foreign 
governments and sought to develop coordinated strategies for improving 
the safety of products exported to the United States, particularly from 
China. In May 2007, CPSC Acting Chairman Nancy Nord and staff will meet 
with Chinese government officials in Beijing to negotiate specific 
actions in preparation for the Second U.S.-Sino Consumer Product Safety 
Summit, to be held in Bethesda, Maryland, in September 2007.
    Fourth, CPSC staff is working with U.S. Customs and Border 
Protection to strengthen our ability to prevent unsafe products from 
entering U.S. commerce. For example, the CPSC has recently become a 
participating agency in the International Trade Data System (ITDS) 
Automated Commercial Environment. This status will allow us to take 
advantage of the next generation of information technologies being 
developed by U.S. Customs.
    Fifth, most imports to this nation are sold by U.S. retailers. 
Therefore, CPSC staff has worked with retailers to heighten their 
safety consciousness and to underscore the need to address safety 
proactively in the case of imported as well as domestic products. We 
have developed a new reporting model that promotes more information 
flow between retailers and manufacturers, as well as with the CPSC.
    Sixth, when the CPSC knows the identity of the relevant 
manufacturer, the CPSC will provide the name of the manufacturer to 
AQSIQ, the Chinese government agency responsible for consumer product 
regulation. The CPSC will also provide AQSIQ with a copy of the public 
announcement or press release of the recall. The information will be 
transmitted and maintained under the terms of the Memorandum of 
Understanding and any addenda adopted by the CPSC and AQSIQ. Finally, 
if the CPSC knows the name and address of the Chinese manufacturer, the 
CPSC will provide it with notice of the voluntary recall.

    Question 8h. How does the Commission ensure that the steps it takes 
to ensure that imported consumer products meet U.S. safety standards 
are not viewed by foreign governments as a non-tariff barrier to trade?
    Answer. CPSC staff does not single out the products of any nation 
for disproportionate enforcement scrutiny. To our knowledge there has 
never been a complaint from the Chinese or others of selective 
enforcement. It is worth noting that while the number of recalls of 
products from China has increased in recent years, the number of 
recalls of products from the United States has not declined over the 
same period.
List of Attachments
    1. Statement of the Honorable Thomas H. Moore on the Proposed 
Reorganization, June 16, 2005
    2. Guidance for lead (Pb) in consumer products, January 1, 2004
    3. Guidance for hazardous liquid chemicals in children's products, 
January 1, 2004
    4. Statement of the Honorable Thomas H. Moore on the Final Rule and 
Preamble for the Flammability (Open-Flame) of Mattress Sets, February 
16, 2006
    5. Federal Register, May 21, 1998, Proposed technical changes to 
the Children's Sleepwear Standards
    6. Federal Register, January 19, 1999, Final technical changes to 
the Children's Sleepwear Standards
    7. Federal Register, March 17, 1999, Proposed amendments to the 
Mattress and Mattress Pad Flammability Standard
    8. Federal Register, March 10, 2000, Final amendments to the 
Mattress and Mattress Pad Flammability Standard
    9. Federal Register, March 17, 1999, Proposed amendments to 
laundering provisions of the Children's Sleepwear Standard
    10. Federal Register, March 10, 2000, Final amendments to the 
laundering provisions of the Children's Sleepwear Standards
    11. Federal Register, March 17, 1999, Proposed amendments to the 
Small Carpet and Rug Flammability Standard
    12. Federal Register, March 10, 2000, Final amendments to the Small 
Carpet and Rug Flammability Standard
    13. Federal Register, January 13, 2005, (front page and preamble 
language only), of, Proposed rule for Mattress and Mattress/Foundation 
Set Flammability Standard (Open-Flame)
    14. Vote sheet dated January 13, 2006 and attached page from public 
briefing package showing missing preemption language on the Final Rule 
for the Flammability (Open-Flame) of Mattress Sets
    15. Closing remarks of Commissioner Thomas H. Moore at the public 
briefing on the Final Rule for the Flammability of Mattress Sets, 
February 1, 2006
    16. Federal Register, November 13, 2006, Proposed technical 
amendment to the Carpet and Rug Flammability Standard
    17. Statement of the Honorable Thomas H. Moore With Regard to the 
``For Official Use Only'' Treatment of the Ballot on the Technical 
Amendment to the Flammability Standards for Carpets and Rugs, October 
31, 2006
    18. Federal Register, February 27, 2007, Proposed rule to amend the 
Clothing Textile Flammability Standard
    19. Federal Register, March 15, 2006, (front page and preamble 
language only), Final Rule for Mattress and Mattress/Foundation Set 
Flammability Standard (Open-Flame)
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Claire McCaskill to 
                           Hon. Nancy A. Nord

    Question 1. Has the General Counsel's office prepared memos in 
relation to other Commission proceedings that speak to the 
preemptibility of state standards or requirements? If so, please 
provide copies of these memos.

    Question 2. In addition to the mattress flammability rulemaking the 
Commission commenced in 2005, are there other rulemakings pursuant to 
the Flammable Fabrics Act in which the Commission has commented on the 
preemptibility of state standards or requirements? If so, please 
provide a list of these rulemakings and a copy of the Commission's 
statement with respect to preemptibility.
    Answer. Flammable Fabrics Act (FFA) Rulemakings with Executive 
Order 12988 or similar discussion (all attached):

   Standard for the Flammability of Children's Sleepwear: 65 
        Fed. Reg. 12924 (March 10, 2000).

   Standard for the Flammability of Mattresses and Mattress 
        Pads: 65 Fed. Reg. 12935 (March 10, 2000).

   Standard for the Surface Flammability of Carpets and Rugs: 
        65 Fed. Reg. 12929 (March 10, 2000).

   Standard for the Flammability of Clothing Textiles: 72 Fed. 
        Reg. 8844 (Feb. 27, 2007).

   Technical amendment to the Flammability Standards for 
        Carpets and Rugs: 71 Fed. Reg. 66145 (Nov. 13, 2006).

   Standard for the Flammability (Open Flame) of Mattresses and 
        Mattress/Foundation Sets, Proposed Rule: 70 Fed. Reg. 2470 
        (Jan. 13, 2005).

    Question 3. In its discussion of Executive Order 12988 in the 
January 2005 notice of proposed rulemaking on a standard for the 
flammability of mattresses and mattress/foundation sets, the Commission 
states that pursuant to 15 U.S.C.  1203(b), ``the Federal Government, 
or a State or local government, may establish and continue in effect a 
non-identical flammability standard or other regulation for the 
Federal, State or local government's own use if it provides a higher 
degree of protection than the FFA standard'' and says that this would 
be one exception to the preemption of non-identical state or local 
mattress flammability standards designed to protect against the same 
risk of the occurrence of fire. However, the Commission's discussion of 
preemptibility in the preamble of the final rule focuses on preemption 
of any non-identical state requirements, regardless of whether the 
state requirements offer a higher degree of protection than the FFA 
standard. 15 U.S.C.  1203(b) is not mentioned in the Commission's 
preemptibility analysis in the final rule. Did the Commission consider 
15 U.S.C.  1203(b) when evaluating the preemptibility of state 
requirements? If not, why not? If so, why did the Commission preempt 
all non-identical state requirements rather than only those non-
identical state requirements that do not provide a higher degree of 
protection from a fire risk than the Commission's standard? Why is 15 
U.S.C.  1203(b) discussed in the notice of proposed rulemaking but not 
in the preamble to the final rule?
    Answer. Section 16(a) of the FFA explains when an FFA flammability 
standard or other regulation preempts a State or local government's 
flammability standard or other regulation. Section 16(b), 15 U.S.C. 
1203(b), of the FFA provides an exception for certain Federal, State or 
local flammability standards or regulations. That section allows 
Federal, State or local governments to establish or continue in effect 
a flammability standard or other regulation if: (1) the standard or 
regulation is designed to protect against the same risk of fire as the 
FFA standard; (2) it applies to a fabric, related material, or product 
that is for the state's own use; and (3) the standard or regulation 
provides a higher degree of protection from fire than the FFA standard. 
Thus, the exception is only available if the non-FFA standard applies 
to items that are for the State, Federal or local government's own use, 
such as for use in correctional facilities and other state or local 
government owned institutions. This exception was noted in the preamble 
to the mattress flammability proposed rule published at 70 Fed. Reg. 
2492-93. This statute is very clear and the Commission's open flame 
mattress flammability Final Rule was not intended to affect the 
application or interpretation of this authority. Because no comments 
were received which discussed a state standard applicable to a consumer 
product intended ``for the state's own use,'' staff did not again 
discuss the issue in the preamble to the Final Rule.

    Question 4. In Section H.7. of the preamble to the Commission's 
mattress flammability rule, the Commission states that it received 
several comments concerning preemption, including one comment 
supporting preemption of both codified state rules and state common law 
claims and others asking the Commission to indicate that the standard 
would not preempt stricter state standards. Did the Commission consider 
the comments opposing preemption? If so, how did it weigh these 
comments and why did the Commission not clarify that the standard would 
not preempt stricter state standards?
    Answer. The Commission staff considered all comments received in 
response to the proposed rule in formulating the Final Rule text and 
preamble. The Commission's preamble to the Final Rule did, in fact, 
describe that a state may adopt a stricter standard under certain 
conditions: ``The statute also provides an application process for an 
exemption from Federal preemption for non-identical State or political 
subdivision flammability requirements. Thus in the absence of such an 
exemption, the Federal standard will preempt all non-identical state 
requirements.'' See 71 Fed. Reg. 13496 (March 15, 2006). To qualify for 
an exemption, a state is required to show, inter alia, that compliance 
with the proposed state standard would not be a violation of the 
Federal standard, that the state standard provides a significantly 
higher degree of protection from the risk of occurrence of fire than 
the Federal standard, and that the state regulations do not unduly 
burden interstate commerce. See 15 U.S.C.  1203(c)(1). As a result, a 
significantly higher state standard would not be preempted only if the 
state applied for, and was granted, an exemption from the preemption 
requirement of 15 U.S.C.  1203(a).
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Bill Nelson to 
                          Hon. Thomas H. Moore

    Question 1. The Commission's final rule in the Portable Generator 
Labeling proceeding (72 Federal Register 1443, January 12, 2007) stated 
that the issue of ``integrated CO monitors'' would be addressed in the 
context of the Portable Generator Performance Standard Advance Notice 
of Proposed Rulemaking (71 Federal Register 74472, December 12, 2006) 
(hereinafter ``Generator Performance ANPR''). The comment period for 
the Generator Performance ANPR ended on February 12, 2007. What is the 
Commission's current timeline for issuance of a specific Notice of 
Proposed Rulemaking (``NPRM'') regarding interlocked carbon monoxide 
detection devices on new portable generators?
    Answer. The Commission staff is investigating potential technical 
approaches to reducing the hazard of carbon monoxide (CO) poisoning 
from portable generators. In FY 2006, the Commission staff successfully 
demonstrated the feasibility of shutting down a generator when elevated 
levels of CO are detected, using CO detectors located in the home and 
in the vicinity of an operating generator. Additional developmental 
work would be necessary to address technical and human factors issues 
that were identified during this concept demonstration. The Commission 
staff believes that protecting the consumer from the CO hazard by way 
of an interlocking or auto shut-off device is a complementary yet 
secondary approach that should be pursued if the CO emission rate 
cannot be sufficiently reduced. The staff is currently considering 
additional research on auto-shutdown techniques in conjunction with the 
low-CO engine contract, using the same engine control technologies that 
are being used in that effort. This research will be completed in FY 
2008.
    The staff's current emphasis is on developing a prototype portable 
generator that emits significantly reduced levels of CO, using 
available technologies such as exhaust catalysts and electronic fuel 
injection. If successful, this would provide a margin of safety to help 
protect consumers against inadvertent exposure to CO in the event they 
improperly operate a generator in an enclosed space or near an open 
window.
    The Commission awarded a contract to the University of Alabama in 
September 2006 to develop and demonstrate a prototype low-CO emission 
generator with a goal of achieving reductions in the CO emission rate 
on the order of 90-95 percent. The Commission staff predicts that this 
level of reduction will significantly improve survivability when a 
generator is inadvertently operated in an improper location. This 
effort is ongoing and will be completed in FY 2008.
    The public comment period for the advance notice of proposed 
rulemaking (ANPR) closed on February 12, 2007. The Commission received 
detailed and complex comments which CPSC staff is currently evaluating. 
Additionally, CPSC staff is assessing technologies and researching 
performance testing methods that would be required if the Commission 
voted to proceed to issue a notice of proposed rulemaking (which is the 
next step in the Commission's mandated three-step rulemaking process) 
on all or part of the issues raised in the ANPR. When these steps are 
completed, the staff will prepare a briefing package (publicly 
available) and present it to the Commission for its consideration.

    Question 2. Last year, the Commission completed approximately 471 
cooperative recalls of consumer products. It is my understanding that 
all of these were completely voluntary. Does the Commission have 
adequate resources to order a mandatory recall--if necessary?
    Answer. For a number of reasons, the Commission has rarely 
litigated to obtain recalls. On those occasions when such litigation 
has been required, resources have been provided for staff to proceed. I 
anticipate that with respect to a future action to order a mandatory 
recall, such an action would be a priority and the necessary resources 
would also be provided even if it would mean shifting resources from 
other Commission activities.

    Question 3. Commissioner Thomas Moore has mentioned nanotechnology 
as one ``emerging technology'' that the Commission will have to address 
in the near future. Do you see any other emerging technologies that the 
Commission may have to deal with in the near future? If so, how should 
the Commission deal with them?
    Answer. As I indicated in my statement to the Subcommittee 
submitted for the March 21st hearing, the American consumer wants 
everything electronic to be smaller, faster, longer-lasting and more 
powerful. Nowhere is this more evident than in energy storage devices 
for cell phones, laptops, PDAs and other portable electronic devices. 
Newer battery technologies, such as lithium-ion rechargeable cells used 
in cell phones and laptop computers, offer a significant increase in 
energy in smaller enclosures compared to older technologies. Such 
battery technologies provide more operating power for longer periods of 
time for consumer electronic devices. However, these types of batteries 
have been the subject of numerous recalls due to the potential thermal 
burn or fire hazard, and staff has worked with industry to develop new 
safety standards to address these hazards. Commission staff continues 
to work with other government agencies and industry to develop standard 
and certification programs for their safe use.
    In the future, Commission staff expects that newer technologies 
such as fuel cells will likely provide high energy density power 
sources for consumer applications. The chemical energy can be derived 
from various fuels such as natural gas, propane or compressed hydrogen. 
Reductions in fuel cell production costs have made them increasingly 
attractive for commercialization. Potential consumer applications 
include stationary residential power generation, portable power 
generation, and replacements for battery-operated devices.
    Another area is the use of sensor technologies to address consumer 
product hazards. Sensor technologies are applied in the automotive 
industry to reduce the risk of collision and theft, and have been 
utilized in the defense, space and security industries for many years. 
Recent national initiatives in the research and development community 
promise to increase the sophistication and utility of sensor 
technologies. The emergence and routine application of sensor 
technologies raises the prospect that there may be opportunities for 
detecting and averting various hazard scenarios in many consumer 
products. While there is extensive research and development underway in 
sensor technologies and applications, and a few applications have been 
introduced into the marketplace, hazard avoidance applications have not 
yet been explored in depth within the consumer product manufacturing or 
safety assurance communities. Of particular interest to the CPSC staff 
are potential hazard scenarios that could be detected using the 
appropriate sensors and signal processing techniques, and their 
application in specific consumer products that have been involved in 
hazards or in which hazards could be anticipated.
    Addressing issues associated with emerging technologies is often 
resource intensive. As new technologies enter the marketplace, 
Commission staff must identify the products that contain these 
technologies and assess the effect on the consumers. Commission staff 
will need to develop technical information that can be used to support 
new performance requirements in product standards, if necessary. Staff 
will need to collect and analyze data and scenarios, develop subject 
matter expertise needed for product testing and evaluation, become 
familiar with laboratory equipment to conduct product testing, and 
develop appropriate test methods and performance requirements.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Mark Pryor to 
                          Hon. Thomas H. Moore

    Question 1. The Commission has been operating without a quorum 
since January 15. In anticipation of the inability to perform certain 
functions, the Commission provided certain delegations and completed a 
number of actions prior to the loss of the quorum. Now that 3 months 
have passed without a quorum, is the Commission coming to a critical 
period where its ability to function is now going to be severely 
curtailed or will actions taken in January continue to provide the 
Commission with the ability to carry out its duties?
    Answer. The agency functions normally during the first 6 months 
after one Commissioner departs, as two commissioners constitute a 
quorum during that period (whether it is the Chairman that leaves or 
another Commissioner). Once the quorum lapses, however, the agency 
loses much of its ability to act as a regulatory agency. Anything that 
requires a Commission vote, such as moving a rulemaking proceeding 
forward (from Advance Notice of Proposed Rulemaking, to Notice of 
Proposed Rulemaking and to the Final Rule stage), accepting negotiated 
civil penalties, issuing subpoenas and approving our budget, cannot be 
done. Even though it might be very tempting to ignore the fact that 
there is no quorum and continue to operate as normal, we cannot because 
that would be in violation of the laws that govern operations at the 
Commission. We did delegate certain limited functions to the staff 
before the quorum lapsed but it would have been inappropriate and, in 
the case of subpoenas impossible, to delegate to staff the basic powers 
of the Commission.
    The longer we are without a quorum, the more items will begin to 
accumulate that need Commission attention and which will have to be set 
aside until the Commission regains its quorum. We are close to signing 
certain Memoranda of Understanding with several foreign countries and 
these cannot be signed until the quorum is restored; there are a few 
rulemakings that will soon require Commission action that will have to 
wait. It is unclear what authority the ``Commission'' has to negotiate 
with foreign governments, such as China, during this period. Certainly 
no new Commission positions can be put forward. Companies who may be 
negotiating civil penalties know that even if they agree to a civil 
penalty amount it may be months before the Commission is able to vote 
on it and, therefore, months before they will have to pay the amount to 
the Federal Government. If a company refused to do a voluntary recall 
we would be powerless to act. This may make staff reluctant to press 
for an aggressive recall for fear the company will not take voluntary 
action. We are not a toothless tiger during this period, but that we 
should lose any of our powers when a majority of the Commission (as 
presently constituted) is still sitting, makes little sense to me.

    Question 2. Due to anticipated staff reductions, the Commission 
went through reorganization in 2005. What has been the overall affect 
of the reorganization on the Commission's ability to perform its 
mission?
    Answer. We were forced to go through a ``reorganization'' in order 
to get Voluntary Early Retirement Authority (VERA) and Voluntary 
Separation Incentive Payment (VSIP) authority from OPM. We needed these 
authorities to be able to provide buy-outs and early outs due to budget 
constraints that forced us to reduce our staff. We did not want to have 
to do a reduction in force (RIF) to accomplish the staff reductions 
and, having a number of older employees, we felt it was likely we would 
have enough employees willing to take advantage of VERA or VSIP to be 
able to avoid a RIF, which was in fact the case.
    From my own personal observations, little in the way of efficiency 
was gained by the reorganization. Additional layers of vertical 
management were added in several organizations actually resulting in 
less efficiency. The statement that I issued at the time of the 
reorganization, when I voted against it, can be found through the 
following link: http://search.cpsc.gov/
query.html?col=pubweb&qt=reorganization&x
=7&y=11 . The reorganization was a tool to achieve a necessary, if 
unpleasant goal. But employee input could have resulted in a smoother 
transition and in perhaps a somewhat different organizational 
structure. A major concern that I had with the reorganization, and this 
is a continuing problem at the agency, is the reluctance of CPSC 
management to include the employees in agency decisions that directly 
affect them. I think this is one reason why there is an expressed lack 
of confidence in the agency leadership as shown in the latest OPM Human 
Capital Survey. When the small agencies' scores in that survey were 
compared recently by the Partnership for Public Service and American 
University's Institute for the Study of Public Policy Implementation, 
the Commission ranked very near the bottom, 29th out of 31 small 
agencies, in terms of how the employees believed leadership at the 
agency generates motivation and commitment, encourages integrity, and 
manages people fairly. The 2007 score represented a nearly 9 percent 
decline from the 2005 score in which the agency ranked fifth from the 
bottom out of 26 agencies surveyed. I should note that responses to 
both surveys were provided by our employees prior to Commissioner Nord 
assuming the Acting Chairmanship role. While I have no executive or 
administrative powers, I am still part of the leadership and, to the 
extent our staff feels frustration about my lack of control over these 
kinds of agency decisions, this may be reflected in the survey results 
as well.
    The reorganization represented a consolidation, a collapsing of 
agency functions. We have fewer people because of budget cuts and we, 
of necessity, do less. We lost a lot of valuable people through the 
VERA and VSIP process whose knowledge will take years, if ever, to 
replicate. The staff reductions have severely wounded us. The 
reorganization did not, could not, salvage what has been lost.

    Question 3. The Commission's laboratory testing facilities are 
essential to its ability to make determinations about the safety of 
consumer products in our marketplace--and to its ability to develop 
safety standards. Some have expressed concern about the age of your 
equipment and the overall condition of your lab site. What is your 
assessment of your laboratory testing facilities with respect to the 
Commission's ability to adequately evaluate safety issues associated 
with emerging product technologies?
    Answer. We have been trying to obtain funds to modernize our lab 
since before I arrived at CPSC in 1995 yet we have never received any 
significant funding for that goal. We've been working with GSA on a 
modernization plan since at least 1999. There certainly has been a 
level of frustration associated with the process. We have been forced 
to accept a band-aid approach to fixing the lab, when what we really 
need is a major modernization commitment.
    I have seen other testing labs, such as those at Underwriters 
Laboratories, which are much more sophisticated, spacious and up-to-
date than our lab. Given that we are the Federal agency designated to 
protect consumers from product hazards and that our laboratory testing 
plays a key role in making hazard determinations, I think the state of 
our lab should concern everyone. However, whenever I go to our lab I am 
constantly amazed at the ingenuity of our lab staff in overcoming space 
and resource limitations. We often talk about the agency making do with 
what it has and nowhere can that be seen more strikingly than at the 
lab. I would like to see a real investment made in upgrading our lab so 
that we can do more testing in our own facility rather than having to 
contract the work out and so that tests don't stack up because of a 
lack of adequate space or other resources, which prevent us from doing 
simultaneous testing on various products.
    We are currently looking at different real estate solutions with 
GSA that would give us a better physical plant. However, these 
solutions may or may not allow us to function at the same capability we 
currently have and they would not include any modernization of 
equipment. The cost to truly modernize our lab, if we were to stay on 
the current site, would be somewhere around thirty million dollars. 
This would expand our capabilities, give us new equipment and a 
physical plant that is both energy efficient and an effective use of 
space. A modern facility would also put us in a better position to deal 
with emerging technologies, such as nanotechnology. It is difficult for 
us to even contemplate how we would assess potential product-related 
nanotechnology hazards when we struggle to provide the basic lab 
capabilities to meet our current needs.

    Question 4. In light of the Commission's continuing budgetary 
constraints, does the Commission have the necessary resources to police 
and monitor contemporary marketplaces such as the Internet for unsafe 
products?
    Answer. I believe that, in order to carry out our mission, we will 
certainly need to have additional resources to devote to monitoring 
Internet marketplaces. In recent years, our Compliance staff has 
devoted an increasing share of its resources to the Internet. We now 
routinely look for regulated products, such as pacifiers, on the 
Internet and sample them as part of our general market surveillance 
effort. We also look for unregulated products that may pose a risk to 
consumers, such as hooded sweatshirts with drawstrings. Virtually all 
business enterprises have a website; accordingly, when a firm conducts 
a recall in cooperation with the CPSC, we work with the firm to post an 
appropriate notice on the Internet. We also monitor the secondary 
(aftermarket) sites and third-party auctionsites to prevent sales of 
new or used products that have been recalled. Our staff anticipates 
that the Internet will continue to grow in importance for us over time. 
Therefore, the resources devoted to monitoring these marketplaces will 
also need to increase.

    Question 5. We have recently seen a number of issues arising out of 
the possibility that certain children's products contain high lead 
levels. Are there limitations in the Federal Hazardous Substances Act 
provisions with respect to the Commission's authority to fully address 
the hazards of children's products containing lead and other toxic 
substances?
    Answer. I wish the Commission had the authority to find it 
unacceptable for any amount of lead (or any other toxic substance) to 
be in children's product. However, our statute requires us to assess 
the accessibility of the lead (or other toxic substance) and that is 
the key measure under the Federal Hazardous Substances Act (FHSA) of 
whether or not a product can be deemed to contain a banned hazardous 
substance. The Commission did issue a guidance document back in January 
1998, which went so far as to urge manufacturers ``to eliminate lead in 
consumer products.'' The link to this guidance document follows as well 
as a similar one the Commission issued dealing with hazardous liquid 
chemicals in children's products. 
http://a257.g.akamaitech.net/7/257/2422/12feb20041500/
edocket.access.gpo.gov/cf
r_2004/janqtr/16cfr1500.230.htm; http://a257.g.akamaitech.net/7/257/
2422/12fe
b20041500/edocket.access.gpo.gov/cfr_2004/janqtr/16cfr1500.231.htm.
    Given the provisions of the FHSA, the Commission does not have the 
authority to enforce the total elimination of lead or other toxic 
substances from children's products, and the Commission went as far as 
it could in expressing its views on the subject. I would welcome 
congressional attention to this important issue.

    Question 6. With the recent reductions in Commission staff, the 
ability of the Commission to sufficiently address the mounting number 
of possibly unsafe imported products under the Commission's 
jurisdiction is a concern. Given your current budgetary picture what is 
the status of the Commission's ability to adequately address the 
concerns raised by the growing number of imported products?
    Answer. In Fiscal Year 2006, fully 75 percent of our recalls 
involved imported products. Nearly 50 percent of all recalls involved 
products of Chinese manufacture. To deal with the escalating number of 
unsafe consumer products being imported, we are devoting an ever 
increasing share of staff resources to the problem and we are trying to 
leverage those resources through other entities.
    First, CPSC staff is working with U.S. Customs and Border 
Protection to strengthen our ability to prevent unsafe consumer 
products from entering U.S. commerce. For example, the CPSC has 
recently become a participating agency in the International Trade Data 
System (ITDS) Automated Commercial Environment. This status will allow 
us to take advantage of the next generation of technologies being 
developed by U.S. Customs to identify and track incoming product 
shipments.
    Second, the agency has strengthened our cooperation with foreign 
governments and sought to develop coordinated strategies for improving 
the safety of products exported to the United States, particularly from 
China.
    Third, as imports increase, it is essential that manufacturers 
abroad be educated about U.S. safety requirements. In recent years, the 
agency revised our Handbook for Manufacturers, which contains many 
valuable tips on manufacturing safe products, and had it translated 
into Mandarin Chinese. CPSC safety experts also have conducted seminars 
for Chinese manufacturers on CPSC safety standards and requirements.
    Fourth, most imports to this Nation are sold by U.S. retailers. 
Therefore, CPSC staff has worked with retailers to heighten their 
safety consciousness and to underscore the need to address safety 
proactively in the case of imported as well as domestic products. Our 
staff has developed a new reporting model that promotes more 
information flow between certain major retailers and manufacturers, as 
well as with the CPSC.
    While these efforts can be successful, the dimensions of the 
problem are large and have continued to grow over the last several 
years. To keep pace, staff efforts and related resources will also have 
to significantly increase. This will be a major challenge.

    Question 7. Now that you have had the opportunity to deliberate, 
what is your reaction to a reinstatement of five Commissioners on the 
Commission? Would that eliminate the loss of quorum problem? What would 
be the cost to restore the two Commissioners' offices?
    Answer. Congress, in its wisdom, originally established a five-
member Commission. A five-member Commission provides for diversity of 
views and allows different combinations of alliances to be formed on 
various issues. In such an atmosphere, ideological views may become 
more important than political affiliations. Larger Commissions also 
make it more likely that an Independent could become a Commissioner, 
giving a less partisan flavor to decisions.
    The current three-member structure usually only allows for one 
alliance to be formed--by the majority political party at the 
Commission. The change voted by the Commission in January of 2006, 
which altered the Commission's former policy of annually rotating the 
Vice Chairmanship among all of the Commissioners, to one that can 
always give control of both the Chairmanship and the Vice Chairmanship 
to the same party, has further politicized the Commission. This is 
precisely how independent agencies are not supposed to work. With only 
three Commissioners, the Chair assumes greater significance than our 
statute contemplates. The ``executive and administrative functions,'' 
which should be the only authority that sets the Chair apart from his 
colleagues has morphed into control over policy matters. Now the Chair 
only has to secure one vote--that of his fellow party member--to 
control the Commission. If the Chair had to secure two votes, his 
ability to have unchecked say over policy matters would be lessened.
    Having two additional Commissioners might put more of a burden on 
staff in terms of private briefings, but the result might also be more 
public briefings, which have been exceedingly rare these last few 
years. The tendency has become for the majority in power to pre-
negotiate decisions that are then presented to the public as staff 
recommendations requiring Commission consideration.
    In 1976, the ``Government in the Sunshine Act'' was signed into 
law. Its purpose was to ensure that government agency decisions were 
made in the open, not behind closed doors. The Congress wanted the 
public to understand and see the decisionmaking process. Thus whenever 
a majority of the decisionmakers in an agency get together to discuss 
significant matters which are pending before their agency, that meeting 
must be announced a week in advance and must be open to the public 
(with a few exceptions). When you have an agency with seven or five 
members, the Sunshine Act does not hamper the normal dialogue that 
should go on in an agency because any member can still talk to any 
other member about agency business. But where you have only three 
Commissioners, the result is that no Commissioner should ever talk to 
another Commissioner about any matter of substance before the 
Commission except in an open meeting after public notice because two 
members constitute a quorum. Consequently, no thoughtful give and take 
can take place on issues except through intermediaries. Of course, much 
can get lost in the translation in those discussions.
    The inability of Commissioners to talk to each other about agency 
business can have other consequences. I believe it undermines the 
collegiality that should be the hallmark of an independent agency's way 
of doing business. Having to be constantly vigilant about not straying 
into areas of common concern at the agency makes the Commissioners 
hesitant to explore ideas with each other and makes it difficult to 
understand the reasoning behind a fellow Commissioner's decisions. We 
can read each others written decisions, but nothing takes the place of 
a conversation where questions can be asked and ideas are challenged. 
That breakdown in the collegial system can give the Chairman of the 
agency greater control of agency policy than would likely be the case 
if the Chairman was subject to having to justify or explain his actions 
privately to the other Commissioners.
    I estimate adding two additional Commissioners would cost about 
$1,000,000. The actual amount would depend upon what salary grade and 
step their staffs members were brought in at. This does not include the 
cost of recapturing the two Commissioners' office suites, which are 
currently occupied by offices of the Executive Director and Human 
Resources, and moving those employees to other offices.
    The Commission never should have lost two Commissioners, especially 
through the Appropriations process. As part of a comprehensive package 
to restore the staff and resources we have lost and to begin the 
process of rebuilding the agency, the restoration of the two unfunded 
Commissioners would send a strong signal that the Congress still 
believes in the agency's mission and in the importance of the agency 
being insulated as much as possible from political pressures. However, 
if such a comprehensive rebuilding were not contemplated then, because 
of the reductions in staff the Commission has suffered in recent years, 
if I had to choose between using a million dollars to restore the two 
Commissioners or putting that money toward hiring more statisticians, 
engineers and other scientists to help us do the work of protecting the 
American public, then I would choose the latter. Some of the anomalies, 
like the loss of quorum, that result from having only three 
Commissioners could be dealt with by changes to our statute.

    Question 8. One of the members of the second panel at the March 21 
hearing suggested that the Commission should be changed to a single 
Administrator. What are your views on that?
    Answer. I believe the public is better served when regulatory 
agencies are headed by multi-member Commissions that have some 
insulation from political pressure and where divergent philosophical 
views must temper each other to reach a consensus. The give-and-take, 
the checks and balances of a collegial body of independent 
Commissioners is a much more effective means of securing and 
maintaining a reasonable balance in the effective yet controlled use of 
Commission authority in the interest of reasonable public safety. You 
may not always get the strongest decision in such an environment, but 
there are built-in checks and balances that tend to keep the most 
extreme views of either side from prevailing.
    A single administrator is, in most cases, going to follow the lead 
of the Administration that appointed him. That one person's abilities, 
integrity and leadership skills will determine whether the agency 
fulfills its mission or fails the American public. A Commission is more 
likely to consider all sides of an issue, listen to the opinions of 
colleagues where each vote has the same weight, and think creatively to 
resolve differences.
    Commissions also provide a certain amount of continuity. We have 
been fortunate in the last 10 years or so to have Commissioners who, 
for the most part, wanted to serve on the Commission and sought 
reappointment to continue their work. This has been particularly 
important at a time when so much of the Commission's historical 
knowledge is being lost as seasoned employees leave either through 
retirements or transfers.
    When a new Chairman of an agency comes onboard, there is a period 
of adjustment and, depending on the makeup of the rest of the 
Commission, there can be changes in approach, but significant policy 
shifts usually only happen over a period of time. However, when a 
single administrator is replaced, there can be dramatic and immediate 
changes in agency policy. Consumers and businesses alike expect 
consistency from agencies that set national product safety standards 
and exercise broad enforcement powers.

    Question 9. One of the ways you are trying to address your 
budgetary constraints for Fiscal Year 2008 is surrendering office 
space. Can you provide us with a detailed account of what is being done 
in this regard and what avenues the Commission has to expand its space 
once again, if additional funds are provided for staff? Would 
additional space in the same building have to be rented at higher rates 
than the current rental agreement? Provide a detailed cost breakdown of 
what the office consolidation will cost in the current fiscal year, 
including disruption in staff productivity, man-hours spent moving/
packing/unpacking and any space reconfigurations that have or will have 
to be done.
    Answer. The last three budget cycles have forced the Commission to 
make some very difficult decisions with regard to reducing funding for 
the agency's operations. Because so much of our budget is devoted to 
salaries and space rental, when our budget is reduced significantly 
(and given our small budget, significant to us is anything over half a 
million dollars) salaries and rent are where we are forced to make 
cuts. For the fiscal 2008 budget we had to make a number of tradeoffs 
to accommodate the OMB pass-back figure which did not provide us with 
enough funds to maintain current services, given the cost increases we 
had to sustain for salaries, rent and other annual contractual 
obligations. As we had been forced to reduce our staff over the two 
preceding years, and were going to have to reduce staff again under the 
proposed 2008 budget, it made sense to see if we could consolidate 
office space in our headquarters building and return some space to GSA 
in return for reduced rent. We thus proposed a rent reduction of 
$500,000 which would allow us to retain four or five FTEs that we would 
otherwise have to lose (on top of the 19 we were already resigned to 
losing for that fiscal year).
    The challenge was to find a large enough block of contiguous space 
that would be acceptable to be returned under GSA requirements, and 
which would result in the needed savings. The space was found but at a 
cost in loss of morale, less desirable working conditions for some 
employees and short-term financial costs to the agency that have to be 
absorbed. The latter will be recouped through the rental savings, but 
the other two may take longer to recover from.
    To many employees, this reduction in our office space is just 
another indication of how little value is placed on our agency. We are 
shrinking at a time when our responsibilities are increasing. Some 
offices that had their own space were consolidated with employees from 
other offices. For example, we had to consolidate our Equal Opportunity 
Office with our Inspector General's Office. These are both offices 
where employees expect privacy in pursuing matters they may not want 
management (or certain other employees) to be aware of. Combining them 
was the best solution we could find, but we certainly would rather not 
have done anything that would risk reducing our employees' comfort 
level at pursuing their rights or reporting wrongdoing.
    We currently have 270 employees at headquarters. After the space 
consolidation is complete and we give back the space we are vacating, 
we could accommodate up to another 20 people, but given the nature of 
where pockets of office space would still exist, the likelihood of new 
employees being able to be situated in the office that hired them and 
being with their colleagues to be acclimated and mentored is small and, 
in some instances, we already know it will be impossible. There will be 
a cubicle here and there scattered throughout our space where we could 
put new hires but there will be no sizable contiguous space available. 
We can accommodate new hires in the Field without limit (as to office 
space) as they all telecommute.
    If we were to get funding for additional employees, and additional 
funding to increase our headquarters space, we would be able to rent 
any available space in our current building at our then current lease 
rates, through GSA. We would not be paying any more for the space than 
we would under our current lease. The longer we wait, though, the more 
likely it is that the space we give back will be rented by other 
entities and then we will have the additional security costs related to 
placing employees on floors other than those already occupied and 
secured by the Commission.
    I am told that we are trying to keep the cost of the consolidation 
to the amount of the cost savings that we will realize by giving the 
space back by June 30th of this year. This amounts to the approximately 
$120,000 in rent savings that will accrue for July through September. 
This amount does not allow for a number of build-outs that would make 
the reconfigured space much more comfortable and workable for the 
offices that were forced to move into new space. It is estimated that 
if all of the work was done that would provide the staff with the 
optimal space and configuration that we are able to accommodate in our 
reduced square footage, that the cost would be approximately $500,000, 
or one full year's rent savings. In addition to the materials and labor 
costs of moving, each office involved in a move (11) lost approximately 
2 days of productive work in packing and unpacking their offices, which 
equate to almost a month of lost productivity. The moves have been 
staged to reduce the disruption as much as possible, but it is a 
disconcerting process nonetheless.
    This space consolidation is predicated on the assumption that we 
will have to yet again reduce our FTEs by 19 in 2008. If we do not, or 
if we get funding for even more FTEs, then in addition to funding for 
that personnel, we may need additional funding to restore some or all 
of the space that is being given up this year.

    Question 10. Acting Chairman Nord indicated that the Commission's 
action with regard to adding new preemption language in the preamble of 
the Final Mattress Rule was dictated by a memo from your agency's 
Office of General Counsel. What is your position on that preemption 
language?
    Answer. I have attached and provided a link to my statement on the 
preemption language which provides my analysis of the Commission 
actions with respect to the language added to the preamble of the Final 
Mattress Rule. http://www.cpsc.gov/CPSCPUB/PREREL/prhtml06/06091.html.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Claire McCaskill to 
                          Hon. Thomas H. Moore

    Question 1. In addition to the mattress flammability rulemaking the 
Commission commenced in 2005, are there other rulemakings pursuant to 
the Flammable Fabrics Act in which the Commission has commented on the 
preemptibility of state standards or requirements? If so, please 
provide a list of these rulemakings and a copy of the Commission's 
statement with respect to preemptibility.
    Answer. The first instance under the Flammable Fabrics Act (FFA) in 
which the Commission spelled out the preemption language, pursuant to 
the 1996 Executive Order, was in proposed technical amendments to the 
Children's Sleepwear Standard, Sizes 7 through 14, published in the 
Federal Register on May 21, 1998. The Commission gave a brief summary 
of the statutory language and mentioned both subsections (b) and (c) of 
Section 16 of the FFA, which describe situations in which preemption 
might not apply to a non-identical Federal, State or local government 
standard or regulation. http://www.cpsc.gov/businfo/frnotices/fr98/
sleeptech.html The next action under the FFA is the finalization of 
those technical amendments, which appeared in the Federal Register on 
January 19, 1999. http://www.cpsc.gov/businfo/frnotices/fr99/tech.html 
While it again seeks to merely summarize the statutory language, for 
some reason, it only mentions subsection (c) of Section 16 and omits 
any reference to subsection (b). It may be that it was thought that a 
State or other government entity would be unlikely to adopt a 
children's sleepwear standard ``for its own use'' and, for that reason, 
the reference to subsection (b) of Section 16 was omitted. This was a 
change that was never brought to my attention. While the Commission 
cannot change the statutory provisions through language in the preamble 
to a regulation, the omission of any reference to subsection (b) of 
Section 16, after having referenced it in the proposed rule could lead 
to confusion and it should have been retained, however unlikely its use 
would be. This is an issue you raise in your second question with 
regard to the Mattress Flammability (Open Flame) Rule.
    The next time the preemption language appears is in proposed 
amendments to revise the laundering standards for mattress pads, 
published in the Federal Register on March 17, 1999. http://
www.cpsc.gov/businfo/frnotices/fr99/mattress.html. In an apparent 
attempt to shorten the preemption discussion, subsections (b) and (c) 
of Section 16 of the FFA are dispensed with in the language: ``With 
certain exceptions which are not applicable here. . . .'' Again, I have 
to assume that staff did not foresee higher Federal, State or local 
standards for mattress pads for the use of those entities, nor did they 
expect to receive any applications for exemption in that area. These 
were technical amendments to an existing standard, most of which 
remained unchanged, and that may also explain why a description of 
subsection (b) and (c) were omitted. These amendments were finalized on 
March 10, 2000, and the final preemption language is identical to the 
language in the proposal. http://www.cpsc.gov/businfo/frnotices/fr00/
matt.html.
    The next appearance of the preemption language is in proposed 
revisions to the laundering provisions to the children's sleepwear 
standards, also published in the Federal Register on March 17, 1999. 
http://www.cpsc.gov/businfo/frnotices/fr99/flammstd.html. It is 
identical to the language used in the mattress pad proposal. The 
language remains the same in the final amendments to these standards, 
which were published in the Federal Register on March 10, 2000. http://
www.cpsc.gov/businfo/frnotices/fr00/sleepwr.html.
    Also on March 17, 1999, the Commission published proposed 
amendments to the laundering procedures in the small carpet and rug 
standard. http://www.cpsc.gov/businfo/frnotices/fr99/carpet.html. The 
language is the same as the other proposed rules issued the same day. 
The final amendments, with the same language, were issued on March 10, 
2000. http://www.cpsc.gov/businfo/frnotices/fr00/rugs.html.
    It should be noted that in all of these recitations of the 
statutory preemption language the phrase ``standard or other 
regulation'' is used. This is taken directly from Section 16 where that 
language is used repeatedly--no less than 25 times in this fairly short 
provision. The word ``requirement'' is used only once, and then it is 
clearly referring back to one of the many ``standard or other 
regulation'' references. The word ``requirement'' is given new and 
unexpected meaning in the preamble to the Mattress Final Rule.
    On January 13, 2005, the proposed rule for the Flammability (Open 
Flame) of Mattresses and Mattress/Foundation Sets was published. http:/
/www.cpsc.gov/businfo/frnotices/fr05/openflame.html. The language 
tracks the language that had been used in rulemakings under the FFA 
since the issuance of the Executive Order and does reference the 
specific exception in subsection (b). The discussion then goes on to 
make specific reference to an existing California mattress flammability 
standard and an Advisory Opinion issued by our General Counsel on the 
preemptive effect of any new Federal standard on that California 
standard. It is this discussion that supposedly put the public on 
notice that the Commission was about to stake out new territory with 
regard to the preemptive effect Section 16 had on state court actions. 
This Advisory Opinion did not deal with a state court action and is 
merely advisory in nature, never having been adopted by the Commission. 
(See footnote 4 of my statement on the Final Mattress Rule for a 
discussion of this Advisory Opinion.) A year later in January of 2006, 
the Commission released the draft final rule to the public. 
Specifically omitted from the public document was the preemption 
language in the preamble. All that appears in the public document is 
the title of the section ``N. Executive Order 12988 (Preemption)'' and 
the words ``[TO BE INSERTED].'' http://www.cpsc.gov/businfo/frnotices/
fr05/openflame.html. This was actually the first public notice from the 
Commission that something different was about to be put forth with 
regard to the preemption language. The proposed preemption language was 
circulated to the Commissioners' offices, but not released to the 
public. On February 1, 2006, I publicly asked my colleagues to release 
the proposed preemption language so that the public would have an 
opportunity to comment on it. My statement of that date follows:
 Closing Remarks of Commissioner Thomas Hill Moore at the Briefing on 
 the Final Rule for the Flammability of Mattress Sets--February 1, 2006
    I will very shortly be submitting a few additional questions to the 
staff on the package, including some related to the new proposed 
language on the preemption effect that this regulation has on state 
common law remedies. Unfortunately our General Counsel's memo on this 
issue is not available to the public. It has an excellent analysis of 
this issue, which would be extremely helpful to the public in 
understanding the reasoning behind the proposed language.
    There is an analysis of the preemption issue in Comment Number 523, 
filed in this proceeding by representatives of the mattress industry. 
It can be found on our website at www.cpsc.gov under Library-Freedom of 
Information Act, 2005 FOIA Information, Public Comments. The preemption 
discussion in Comment 523 begins at page 79 of Part 14 and continues 
into Part 15 of those comments.
    It will be difficult for the public to properly analyze this issue 
without seeing the proposed preemption language, which was omitted from 
the draft Final Rule when that was made public. I think the entire rule 
should be made public before the Commission votes on it. There should 
be some time, however brief, for interested parties to comment on the 
preemption issue. I know it would be very beneficial to me to hear from 
all sides on this issue. I would like to ask my colleagues to join with 
me in directing the staff to make that language promptly and 
prominently available on the CPSC website.

    My colleagues agreed and the proposed preamble language was put on 
our website, but not, as I had requested, prominently, so my office had 
to make sure that groups that would normally want to comment on such 
matters were notified about the availability of the language in time to 
do so. The public had 2 weeks to comment on this language before the 
Commission voted. My request to make the General Counsel's memo, which 
was the underpinning for this new interpretation, public was not agreed 
to, so the rationale of the new interpretation was not available for 
public comment, other than what could be gleaned from the actual 
preemption language in the preamble.
    On November 13, 2006, technical amendments were proposed to the 
ignition source in the test methodology of the Flammability Standard 
for Carpets and Rugs. http://www.cpsc.gov/businfo/frnotices/fr07/
flammability.html. The preemption language is the same language that 
had been used prior to the Mattress Flammability Final Rule. In other 
words, no interpretation with regard to the preemptive effect on state 
court actions is described. When asked why, my staff was told there had 
been a mistake, that the interpretive language should have been 
included. Due to a new policy of not disclosing the draft proposed or 
final rule language to the public until after the Commission has voted 
to adopt it, and assuming the preemption language is changed in the 
final rule to reflect the new interpretive style of the mattress 
standard, there will be no public notice that such preemption language 
will appear in the Final Rule prior to its being voted upon by the 
Commission. I do not support this change in policy and am unclear how 
it can be ordered by one Commissioner without the support of the other. 
(See my statement of October 31, 2006, which accompanied my vote on 
this rulemaking. http://search.cpsc.gov/
query.html?col=pubweb&qt=carpet+and+rug&x=12&y=12).
    The final matter voted on by the Commission under the Flammable 
Fabrics Act is a proposed amendment to the Standard for the 
Flammability of Clothing Textiles. It was published in the Federal 
Register on February 27, 2007, although it was voted on by the 
Commission prior to the expiration of the quorum. http://www.cpsc.gov/
businfo/frnotices/fr07/clothingflammstd.html. When this proposal was 
before the Commission, we were down to just two Commissioners, and I 
was able to secure the agreement of Acting Chairman Nord to not include 
the interpretive language in the preamble at that time and to revert to 
the traditional Commission language which merely summarizes the 
statutory provisions.

    Question 2. In its discussion of Executive Order 12988 in the 
January 2005 notice of proposed rulemaking on a standard for the 
flammability of mattresses and mattress/foundation sets, the Commission 
states that pursuant to 15 U.S.C.  1203(b), ``the Federal Government, 
or a State or local government, may establish and continue in effect a 
non-identical flammability standard or other regulation for the 
Federal, State or local government's own use if it provides a higher 
degree of protection than the FFA standard'' and says that this would 
be one exception to the preemption of non-identical state or local 
mattress flammability standards designed to protect against the same 
risk of the occurrence of fire. However, the Commission's discussion of 
preemptibility in the preamble of the final rule focuses on preemption 
of any non-identical state requirements, regardless of whether the 
state requirements offer a higher degree of protection than the FFA 
standard. 15 U.S.C.  1203(b) is not mentioned in the Commission's 
preemptibility analysis in the final rule. Did the Commission consider 
15 U.S.C.  1203(b) when evaluating the preemptibility of state 
requirements? If not, why not? If so, why did the Commission preempt 
all non-identical state requirements rather than only those non-
identical state requirements that do not provide a higher degree of 
protection from a fire risk than the Commission's standard? Why is 15 
U.S.C.  1203(b) discussed in the notice of proposed rulemaking but not 
in the preamble to the final rule?
    Answer. The Commission cannot change the statutory language in the 
Flammable Fabrics Act with regard to preemption, which, as you know, 
does not preempt non-identical standards issued by Federal, State or 
local governments meant for their own use that provide a higher degree 
of protection than the Federal standard. While I did vote for the 
Mattress Flammability Final Rule--because I thought the mattress 
flammability standard was too important to vote against--I did not 
agree with the preemption language used in the preamble to the 
regulation and most of the statement that I issued with my vote was 
devoted to that issue. I discussed the point you raise on the first and 
second pages of my statement. http://www.cpsc.gov/businfo/frnotices/
fr07/clothingflammstd.html. I wanted to make it clear that the 
regulation did not (indeed could not) preempt such existing or future 
standards that applied to facilities such as state-run prisons or 
hospitals.
    I do not know why this was omitted from the preemption discussion 
in the preamble to the Final Rule, particularly as mattress 
flammability is an area where we know some states do have more 
stringent standards for certain state-run facilities. This rule is the 
first time that there had been any attempt to interpret the statutory 
preemption language in any of our statutes, as opposed to merely 
quoting or summarizing the statutory language. It may be that because 
the focus was more on staking out new ground with regard to the 
potential preemption of state civil court actions than in stating the 
statutory language, that this point was inadvertently omitted. I know 
from talking to the technical staff that they agree with my assessment 
that such standards are not preempted.

    Question 3. In Section H.7. of the preamble to the Commission's 
mattress flammability rule, the Commission states that it received 
several comments concerning preemption, including one comment 
supporting preemption of both codified state rules and state common law 
claims and others asking the Commission to indicate that the standard 
would not preempt stricter state standards. Did the Commission consider 
the comments opposing preemption? If so, how did it weigh these 
comments and why did the Commission not clarify that the standard would 
not preempt stricter state standards?
    Answer. I certainly considered the comments on preemption, both pro 
and con. I can understand why any industry would want to try to shield 
themselves from civil liability for injuries from a product which 
complies with a Federal standard. However, I saw no evidence that this 
was what Congress had intended and saw absolutely no reason to attempt 
to make a strained argument that this is what Congress had intended 
after 10 years of silence by the Commission on this point. My statement 
on the preemption issue is attached. As to why the preemption language 
did not give proper notice of the exception in the statute to higher 
standards issued by other government entities for their own use, please 
see my answer above.
    May I just add that it will be said that the preamble is not part 
of the regulation and will not appear in the Code of Federal 
Regulations and thus has no force or effect. A preamble is in the 
nature of legislative history. It explains, often in great detail, why 
the Commission took the action it did in any particular instance. The 
Commissioners pay as much attention to what is expressed in the 
preamble as they do to the actual language of the regulation itself. 
The preamble is the foundation upon which the regulation rests and a 
bad foundation can undermine the validity of the regulation. The 
preamble is referenced by stakeholders, and I often go back to look at 
earlier Commission precedents as expressed in the preamble of a 
regulation to find the basis for a Commission action. Clearly if the 
majority did not feel the preamble carried any weight they would not 
have used it to put interpretive gloss on the language of our statute.

                                  
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