[Senate Hearing 114-184]
[From the U.S. Government Publishing Office]
S. Hrg. 114-184
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CONSUMER PROTECTION,
PRODUCT SAFETY, INSURANCE,
AND DATA SECURITY
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 17, 2015
__________
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 FOURTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
MARCO RUBIO, Florida CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin TOM UDALL, New Mexico
DEAN HELLER, Nevada JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado GARY PETERS, Michigan
STEVE DAINES, Montana
David Schwietert, Staff Director
Nick Rossi, Deputy Staff Director
Rebecca Seidel, General Counsel
Jason Van Beek, Deputy General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Clint Odom, Democratic General Counsel and Policy Director
------
SUBCOMMITTEE ON CONSUMER PROTECTION, PRODUCT SAFETY, INSURANCE, AND
DATA SECURITY
JERRY MORAN, Kansas, Chairman RICHARD BLUMENTHAL, Connecticut,
ROY BLUNT, Missouri Ranking
TED CRUZ, Texas CLAIRE McCASKILL, Missouri
DEB FISCHER, Nebraska AMY KLOBUCHAR, Minnesota
DEAN HELLER, Nevada EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado CORY BOOKER, New Jersey
STEVE DAINES, Montana TOM UDALL, New Mexico
C O N T E N T S
----------
Page
Hearing held on June 17, 2015.................................... 1
Statement of Senator Moran....................................... 1
Statement of Senator Blumenthal.................................. 3
Article dated April 30, 2015 from WSB-TV/Channel 2 Action
News--Atlanta, entitled ``CPSC no longer stands by safety
of artificial turf'' by Rachel Stockman.................... 48
Statement of Senator Daines...................................... 32
Statement of Senator Heller...................................... 34
Statement of Senator Booker...................................... 37
Statement of Senator Udall....................................... 39
Statement of Senator Markey...................................... 41
Statement of Senator Klobuchar................................... 43
Statement of Senator Nelson...................................... 45
Witnesses
Hon. Elliot F. Kaye, Chairman, U.S. Consumer Product Safety
Commission..................................................... 4
Prepared statement........................................... 6
Hon. Robert S. Adler, Commissioner, U.S. Consumer Product Safety
Commission..................................................... 8
Prepared statement........................................... 9
Hon. Ann Marie Buerkle, Commissioner, U.S. Consumer Product
Safety Commission.............................................. 11
Prepared statement........................................... 12
Hon. Joseph P. Mohorovic, Commissioner, U.S. Consumer Product
Safety Commission.............................................. 15
Prepared statement........................................... 16
Hon. Marietta S. Robinson, Commissioner, U.S. Consumer Product
Safety Commission.............................................. 19
Prepared statement........................................... 20
Appendix
Letter dated June 19, 2015 to Chairman Jerry Moran and Hon.
Richard Blumenthal from Stuart Gosswein, Sr. Director, Federal
Government Affairs, Specialty Equipment Market Association
(SEMA)......................................................... 55
Letter dated July 27, 2015 to Hon. Bill Nelson from John
Addington, Portable Generator Manufacturers' Association (PGMA) 56
Response to written questions submitted to Hon. Elliot F. Kaye
by:
Hon. John Thune.............................................. 58
Hon. Jerry Moran............................................. 67
Hon. Deb Fischer............................................. 72
Hon. Amy Klobuchar........................................... 73
Hon. Joe Manchin............................................. 75
Response to written questions submitted to Hon. Robert S. Adler
by:
Hon. Amy Klobuchar........................................... 75
Hon. Joe Manchin............................................. 76
Response to written questions submitted to Hon. Ann Marie Buerkle
by:
Hon. Jerry Moran............................................. 77
Hon. Deb Fischer............................................. 77
Hon. Amy Klobuchar........................................... 78
Hon. Joe Manchin............................................. 78
Response to written questions submitted to Hon. Joseph P.
Mohorovic by:
Hon. Amy Klobuchar........................................... 79
Hon. Tom Udall............................................... 79
Hon. Joe Manchin............................................. 80
Response to written questions submitted to Hon. Marietta S.
Robinson by:
Hon. Amy Klobuchar........................................... 80
Hon. Joe Manchin............................................. 81
Hon. Tom Udall............................................... 82
OVERSIGHT OF THE
CONSUMER PRODUCT SAFETY COMMISSION
----------
WEDNESDAY, JUNE 17, 2015
U.S. Senate,
Subcommittee on Consumer Protection, Product
Safety, Insurance, and Data Security,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:02 a.m. in
room SR-253, Russell Senate Office Building, Hon. Jerry Moran,
Chairman of the Subcommittee, presiding.
Present: Senators Moran [presiding], Heller, Daines,
Blumenthal, Booker, Udall, Markey, Klobuchar, and Nelson.
OPENING STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. I call our Subcommittee hearing to order,
and welcome our witnesses and our guests and my colleagues here
on the panel.
This is one of what I think will be a series of hearings
over a period of time in which we examine consumer protection
and other issues within the Subcommittee's jurisdiction, and I
am particularly pleased to welcome all the members of the
Consumer Product Safety Commission, including Chairman Elliot
Kaye, Commissioner Bob Adler, Commissioner Buerkle,
Commissioner Mohorovic, and Commissioner Robinson.
I just visited with them moments ago and they all seem to
be smiling, and I am going to work on developing a reputation
in which they are fearful of being here instead of so happy.
Actually, I look forward to developing a good, close
working relationship with you as we pursue the goal of making
certain to the degree that we can consumers are safer with the
products they buy in the United States.
I think Senator Blumenthal would agree that protecting
Americans from harmful produce is a top priority for our
subcommittee. This is a significant part of our jurisdiction,
and we will take this task seriously.
This hearing will examine the Commission's 2016 performance
budget request, its current rulemaking agenda, and issues
identified in recent reports by the CPSC Inspector General.
This agency is a small but in many ways very powerful
agency with influence felt across our economy. It touches in
one way or another over 15,000 product categories and is
trusted with prioritizing and addressing the most significant
threats to consumer safety.
I want to hear from the Commission about their critical
issues and priorities, and hopefully discuss issues of user fee
authority and cybersecurity as they relate to the agency's
budget in Fiscal Year 2016.
I also serve as a member of the Appropriations Subcommittee
on FSGG, including your agency, and part of what I learn today
will be useful as we develop budget and appropriation issues in
regard to CPSC.
I have heard in my new role as this subcommittee chair a
wide range of conversations with importers, with manufacturers,
with retailers, consumer advocacy groups, all the stakeholders
who care about consumer safety and many issues on your
rulemaking agenda.
I am pleased to hear that in many instances there has been
productive dialogue between stakeholders and the agency and
real progress demonstrated in improving consumer safety. In
fact, the majority of work undertaken by the Commission is
accomplished through consensus of the five Commissioners.
Some of the agency's work, however, is more controversial,
particularly where proposed Commission activity is not, in
everyone's opinion, supported by sound data, stakeholder
engagement, or would create additional burdens without
corresponding safety benefits.
On May 20, 2015, the full Senate Commerce Committee passed
S. 1040, the ROV In-Depth Examination Act of 2015, known as
``RIDE.'' This was bipartisan legislation introduced by many of
my colleagues on the Commerce Committee. This bill would
postpone the Commission's proposed rulemaking on recreational
off-highway vehicles until further study on the rule's safety
effects is completed by the National Academy of Sciences.
I have supported this legislation but I commend the agency
for what I understand has been meaningful and positive
conversations with interested parties toward a workable
solution since the Committee's passage of that bill a month
ago.
With regard to other open agenda items before the CPSC, I
would appreciate an update on the status of revisions to the
voluntary recall and 6(b) rules, as well as additional insight
from the agency on how it is administering the increased
penalties authorized by Congress under the Consumer Product
Safety Improvement Act.
Furthermore, I am interested in exploring the agency's
approach to rulemaking on phthalates. I believe in order for
this subcommittee to properly oversee the agency, a good place
to start is to examine whether the agency is using current data
and sound scientific methodology to complete its mission.
Unfortunately, work in this area has stalled, and in part
because the Commission was prepared in my view to complete its
rulemaking based on outdated datasets.
I am happy to hear the Commission's staff is now evaluating
the correct data, which reflects current exposure levels to
plasticizers, and the Commission has agreed to allow the public
an additional opportunity to provide comments on its new
results.
I would note that on Monday of this week I received a
formal response from Chairman Kaye, which I very much
appreciate, concerning issues raised on this matter. I
appreciate your response and look forward to discussing the
contents of your letter today.
We share a common goal of protecting consumers and doing
what we can to prevent tragic injuries and fatalities from
consumer products. The Consumer Product Safety Commission led
by the five Commissioners before us this morning has a
challenging but essential task of protecting the American
public against unreasonable risks of injuries from consumer
products, and I thank you all for your service.
I would turn to the Ranking Member.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thanks, Mr. Chairman, and thank you for
having this hearing on an issue of paramount importance. In
fact, I would venture to say nothing is more important than
consumer protection and the work that you do. Consumer
protection should be, has been, and will be a bipartisan issue.
I think it brings us together on a bipartisan basis because of
its effect on families.
The Consumer Product Safety Commission is a small agency
with an even smaller budget charged with work that matters in
the daily lives of countless American families.
It is responsible for ensuring the safety of over 15,000
kinds of product categories. It oversees products that touch
all of our lives, and new products that I hope we may be able
to explore, new products like laundry detergents in pods that
can be swallowed by children, liquid nicotine, which would have
been unthinkable just a few years ago, other kinds of products
that involve window coverings that have new impacts on
children's lives, and artificial turf, the ability for turf
fields to become hot, endangering lives, sources of friction,
even cancer, things that should concern us deeply.
This is the first time this year the World Cup is being
played on artificial turf. When the tournament kicked off two
weekends ago, the playing surface was reportedly 120 degrees
despite the 75 degree weather. That may not be a problem for
the athletes in that context, but for young teenagers playing
on artificial turf on high school fields around the country, it
might well be.
According to the most recent report released just
yesterday, there are now 153 cancer cases involving athletes
who have played for a number of years on synthetic turf, 124 of
these are soccer players, and 85 of them are soccer goalies.
I will be speaking about that issue more in the course of
this hearing but only to illustrate that the challenges are
changing, they are evolving, they require new funding in my
view and new expertise on the part of the agency.
These challenges are of absolutely critical importance to
the health and safety of our nation, and millions of mostly
imported toys and children's products had to be pulled from
store shelves because they contained lead paint and potentially
ingestible magnets.
Despite new challenges, there are the old ones as well.
Lead paint. Who would have thought that now years after lead
paint was first found to be a problem for children, we would
still be talking about it as a potential danger to our
children.
I believe strongly that we need a stronger system of
surveillance at our borders. I hope we will talk about that a
bit. I know it is a concern of all of you. The CPSC staff now
works onsite at ports, along side Customs and Border Patrol to
test and make sure products that do not meet U.S. standards
will not make it to the shelves of American consumers in the
first place.
This pilot program is currently operating at fewer than
five percent of United States' ports, but even then with this
limited pilot program, the program has already generated
enormous public health and safety benefits in the first half of
2013, six million violate or potentially hazardous consumer
products were stopped from entering commerce, almost 40 times
the number of units identified by the CPSC in 2007, before this
measure was enacted.
I look forward to hearing more about the success of this
program and others. Through the work of this subcommittee, I am
very hopeful that we can make progress together on making
consumers healthier and safer throughout the United States.
Thanks, Mr. Chairman.
Senator Moran. Thank you, Senator Blumenthal. You are my
favorite Ranking Member, despite you telling some other
Chairman he was your favorite Chairman.
[Laughter.]
Senator Blumenthal. Do I have a right to remain silent?
Senator Moran. I may invoke that clause later.
We welcome the Commission. Mr. Chairman, please begin your
testimony.
STATEMENT OF HON. ELLIOT F. KAYE, CHAIRMAN,
U.S. CONSUMER PRODUCT SAFETY COMMISSION
Mr. Kaye. Good morning, Chairman Moran, Ranking Member
Blumenthal, and the members of the Subcommittee. Thank you for
the invitation to come speak about the work of the United
States Consumer Product Safety Commission and our proposed
budget for Fiscal Year 2016.
I am pleased to be joined today by my friends and
colleagues from the Commission, Commissioners Adler, Buerkle,
Mohorovic, and Robinson, and we would like to believe we are
close, but this is probably about as close as we have all ever
been.
I am honored to work with my fellow Commissioners and the
CPSC staff. CPSC's vital health and safety mission touches all
of us in some way each and every day, from the parent of a baby
who gently moves his or her child throughout the day from crib
to baby bouncer to stroller and back again to crib, or the
self-employed millennial who on a warm spring day relies on a
room fan to stay cool and an extension cord to power a
computer, to the baby boomer who purchased adult bed rails to
help care for an aging parent who needed to move in, the
products in CPSC's jurisdiction are inseparable from our lives.
We believe we provide an excellent return on investment for
the American people. We run a lean operation, especially
considering the thousands of different consumer products that
are in our jurisdiction, and we cover them all with a budget in
the millions, not the billions.
We are very appreciative of the continued bipartisan
support for the Commission and our work. We saw this support in
the overwhelming, nearly unanimous vote to pass the Consumer
Product Safety Improvement Act of 2008, and as well in the near
unanimous passage of an update to that Act in 2011.
Your support has allowed our dedicated staff to drive
standards development to make children's products safer, to
increase our enforcement effectiveness, and to better educate
consumers about product-related hazards.
Our staff has also been hard at work trying to reduce the
costs associated with third party testing while assuring
compliance with the law. Congress' inclusion of $1 million as
part of our funding for this current Fiscal Year has certainly
enhanced those efforts.
I have emphasized prioritizing those actions most likely to
provide the greatest amount of relief, especially to small
businesses. We are set to consider at least three different
regulatory changes to provide relief this fiscal year with more
in the works, and while that work proceeds, our continuing
efforts to carry out and enforce CPSIA-driven enhancements to
consumer product safety are reflected in our proposed budget.
Unfortunately, not all of those priorities and requirements
are achievable at our current levels. For that reason, we're
pleased to see the President include in his budget two
important consumer product safety initiatives. Both, if funded,
will advance consumer safety and provide real value to those in
industry making or importing safe products.
First, we are seeking a permanent funding mechanism to
allow the agency to comply with the congressional charge in
Section 222 of the CPSIA. Section 222 called on the Commission
to work with Customs and Border Protection and develop a risk
assessment methodology to identify the consumer products likely
to violate any of the Acts we enforce out of all the consumer
products imported into the U.S.
To meet our mandate, in 2011, we created a small-scale
pilot that has been a success. However, the pilot alone does
not fulfill the direction of Congress, and without full
implementation, we will not be able to integrate CPSC into the
much larger U.S. Government-wide effort to create a single
window for import and export filing of all products.
If CPSC can be fully integrated into the single window, we
can transform Congress' vision of a national-scope, risk-based,
data-driven screening at the ports into a reality, a reality
that would mean faster entry for importers of compliant
products, especially for trusted traders, and safer products in
the hands of American consumers.
Our proposed budget also seeks to address critical emerging
health and safety questions associated with the rapidly growing
use of nanomaterials in consumer products.
In light of the questions raised in the scientific
community about the effect inhalation of nanoparticles has on
the lungs, especially those of children, we are seeking funding
to significantly advance the state of that science.
Finally, I would like to discuss an additional priority of
mine, one that is not reflected in dollars, but to me at least,
makes a lot of sense. How we at the CPSC do what we do is often
just as important as what we do. Since day one in this
position, I have worked daily to try to establish a certain
culture among the five of us at the Commission level.
The Commission and more importantly the American public are
far better served by an agency where we operate at the
Commission level in a culture of civility, collaboration, and
constructive dialogue.
Thank you again for the invitation to speak to you about
the CPSC and the work undertaken by our staff. I look forward
to answering any questions you may have.
[The prepared statement of Mr. Kaye follows:]
Prepared Statement of Hon. Elliot F. Kaye, Chairman,
U.S. Consumer Product Safety Commission
Good morning Chairman Moran, Ranking Member Blumenthal and the
members of the Subcommittee. Thank you for the invitation to come speak
about the work of the United States Consumer Product Safety Commission
today. I am pleased to be joined by my friends and colleagues from the
Commission: Commissioners Adler, Buerkle, Mohorovic, and Robinson. In
addition to a deeply dedicated and hard-working career staff in the
Federal Government, we have a special group of talented, passionate and
committed Commissioners, and I am honored to work with them at an
agency that's mission is to save lives.
CPSC's vital health and safety mission touches us all in some way,
each and every day. From the parent of the baby who gently moves his or
her child throughout the day from crib, to baby bouncer to stroller and
back again to the crib; or the self-employed millennial who, on a warm
spring day, relies on a room fan to stay cool and an extension cord to
power a computer; to the baby boomer who purchased adult bed rails to
help care for an aging parent who needed to move in, the products in
CPSC's jurisdiction are inseparable from our lives.
We believe we provide an excellent return on investment for the
American people. We run a lean operation, especially considering the
thousands of different product categories in our jurisdiction. And we
cover them all with a budget in the millions, not the billions.
We are very appreciative of the continued bipartisan support for
the Commission and our work. We saw this support in the overwhelming,
nearly unanimous vote to pass the Consumer Product Safety Improvement
Act of 2008 (CPSIA) and the near unanimous passage of an update to
CPSIA in 2011.
Your support has allowed our dedicated staff to drive standards
development to make children's products safer, to increase our
enforcement effectiveness and to better educate consumers about
product-related hazards, especially drowning prevention, poison
prevention, safe to sleep and TV/furniture tip-over prevention.
Our staff has also been hard at work trying to reduce costs
associated with third-party testing while assuring compliance with all
applicable rules, regulations, standards and bans. Congress' inclusion
of $1 million as part of our funding for this current Fiscal Year has
enhanced those efforts. Based on that funding, the Commission
unanimously approved an amendment I offered to our operating plan to
allocate that money toward a robust set of projects aimed at providing
more carve-outs of materials that would not have to be third-party
tested because they will not, nor would they ever likely, contain
violative levels of lead, other heavy metals or phthalates.
We chose this approach in response to overwhelming feedback we
received as a result of our sustained engagement with the stakeholders.
I have emphasized prioritizing those actions most likely to provide the
greatest amount of relief, especially to small businesses.
This is why, when I became Chairman, I detailed to my office one of
our leading toxicologists at the agency to drive this work. The
Commission is set to consider at least three different regulatory
changes to provide relief this year with more in the works.
While the burden reduction/assure compliance work proceeds, our
continuing efforts to carry out and enforce CPSIA-driven enhancements
to consumer product safety are reflected in our proposed budget.
Unfortunately, not all of those priorities and requirements are
achievable at our current appropriation levels. For that reason, we
were pleased to see the President include in his budget two important
consumer product safety initiatives. Both initiatives, if funded, will
advance consumer safety and provide real value to those in industry
making or importing safe products.
First, we are seeking a permanent funding mechanism to allow the
agency to comply with the Congressional charge in Section 222 of the
CPSIA. Section 222 called on the Commission to work with Customs and
Border Protection and develop a Risk Assessment Methodology to identify
the consumer products likely to violate any of the acts we enforce out
of all consumer products imported into the United States. To provide
some context, last year we estimate there were $741 billion worth of
consumer products imported into the US.
To meet our mandate, in 2011, we created a small-scale pilot that
has been a success. However, the pilot alone does not fulfill the
direction of Congress and without full implementation, we will not be
able to integrate CPSC into the much larger U.S. Government-wide effort
to create a ``Single Window'' for import and export filing of all
products. If CPSC can be fully integrated into the Single Window, we
can transform Congress' vision of a national-scope, risk-based, data-
driven screening at the ports into a reality--a reality that would mean
faster entry for importers of compliant products, especially for
trusted traders, and safer products in the hands of American consumers.
Our proposed budget also seeks to address critical emerging health
and safety questions associated with the rapidly growing use of
nanomaterials in consumer products. These materials offer many
benefits. However, while the Federal Government has invested billions
of dollars into driving research into the expansion of the use of
nanomaterials, there has been a significant lag in assessing possible
health effects of human exposure to nanomaterials in consumer products,
especially to vulnerable populations such as our children. In light of
the questions raised in the scientific community about the effect
inhalation of certain nanoparticles might have on human lungs--concerns
that center on identified similarities to asbestos exposure--we are
proposing to significantly advance the state of the science as it
relates to human exposure from nanomaterials in consumer products. In
the absence of CPSC driving this work as it relates to consumer
products, it will not be done by any other Federal agency. All
involved--companies already using the nanomaterials in the products
they make, and parents whose children are already using those
products--deserve to know sooner rather than later the answers to the
health questions posed.
Our nanotechnology request is modeled on collaboration, including
with industry. As Chairman, I have sought to enhance significantly our
working relationship with our stakeholder community. One example of our
success in this area was the recent decision of the Recreational Off-
Highway Vehicle (``ROV'') industry to reopen its voluntary standard for
ROVs to provide the appropriate forum for a productive dialogue with
the agency staff to improve substantially the ROV standard. We remain
open to working with all willing collaborators to address safety issues
in a mutually-acceptable manner.
Finally, I would like to discuss an additional priority of mine,
one that is not reflected in dollars but, to me at least, makes a lot
of sense. How we at the CPSC do what we do is often just as important
as what we do. Since day one in this position, I have worked daily to
try to establish a certain culture among the five of us at the
Commission level. The Commission, and more importantly the American
public, are far better served by an agency where we operate at the
Commission level in a culture of civility, collaboration and
constructive dialogue. Of course, for this to happen, it requires a
commitment by all five of us. I am pleased to say that I believe any
observer of our public meetings would agree such a positive and
productive culture exists at the CPSC. There is no doubt we have policy
differences, but we discuss them with respect and stay focused on
merit-based policymaking.
Thank you again for the invitation to speak to you about the CPSC
and the life-saving work undertaken by our staff. I look forward to
answering questions you may have.
Senator Moran. Chairman, thank you very much. Commissioner
Adler? Welcome.
STATEMENT OF HON. ROBERT S. ADLER, COMMISSIONER,
U.S. CONSUMER PRODUCT SAFETY COMMISSION
Mr. Adler. Good morning, Chairman Moran, Ranking Member
Blumenthal, and the members of the Subcommittee. Thank you so
much for the opportunity to appear along with my fellow
Commissioners today. I am pleased to be here to testify about
an agency that I have been associated with in some fashion
since its establishment over 40 years ago.
At the outset, I would point out as both Senator Blumenthal
and Senator Moran noted, we are far and away the smallest
Federal health and safety agency with a current funding level
of $123 million and a staff of roughly 560 FTEs.
I want to put our budget in perspective. I note that for
Fiscal Year 2016, we have asked for an appropriation of $129
million, which is an increase of roughly $6 million. By way of
comparison, our sister agency, FDA, has asked for roughly $4.9
billion in Fiscal Year 2016, with an increase sought of $148
million. To put it more succinctly, FDA has asked for an
increase that is larger than our entire budget.
Notwithstanding this modest budget, our jurisdictional
scope as noted is extremely wide, encompassing roughly 15,000
categories of consumer products that are found in homes,
stores, schools, and recreational settings. Given this broad
jurisdiction, the agency has adopted a thoughtful data-based
approach using its highly skilled technical staff to figure out
which products present the greatest risks, and we address them
using our regulatory and educational tools in a way designed to
minimize market disruption while always making consumer safety
our top priority.
We do not operate alone when it comes to product safety. We
have always sought to make our various stakeholders partners in
our quest to reduce or eliminate unreasonable risk. Included in
this group are our friends in the business and consumer
communities, as well as the various standards development
bodies that work closely with the agency.
While I would note that much remains to be done, I would
point out that an enormous amount has been accomplished. For
example, there has been an estimated 30 percent decline in the
rate of deaths and injuries associated with consumer products
over the last 40 years.
I particularly note the dramatic drop in deaths and
injuries to children. We have seen an 83 percent drop in
childhood poisoning. We have seen a 73 percent drop in crib
deaths. We have seen an 86 percent reduction in baby walker
injuries and an almost complete elimination of childhood
suffocations in refrigerators.
I would also like to mention the tremendous strides the
Commission has taken to implement the Consumer Product Safety
Act, which as Chairman Kaye noted, was passed almost
unanimously by both houses of Congress and signed by President
Bush in 2008.
Among the many actions taken by the agency, we have
enforced stringent limits on lead and phthalates in children's
products. We have promulgated the strongest safety standard for
cribs in the world. We have made mandatory a comprehensive
voluntary toy standard, ASTM F963, and we have written and
continued to write a series of standards for durable infant
products like play yards and strollers.
As you may know, the Commission has recently experienced a
significant turnover among its members. In fact, you are
looking at the last Commissioner standing from 2009. I
certainly miss my former colleagues, but I am pleased to
welcome as new colleagues Chairman Kaye, Commissioners
Robinson, Buerkle, and Mohorovic. They have brought new
perspectives and insights that constantly freshen and sharpen
my thinking on issues, and they have done so in a way that has
brought a new era of civility to the agency.
We certainly disagree vigorously on occasion, but we also
listen to and trust one another in ways that I have not seen at
this agency for many years.
Finally, Mr. Chairman, I would like to reiterate my concern
about a set of issues surrounding a critical demographic that I
do not think has received enough attention over the past number
of years, senior citizens, a group of which I am a proud
member.
CPSC data show the second most vulnerable population after
kids is adults over 65, and we are a rapidly growing group due
to the aging of the baby boomers and the greater longevity of
our citizens.
Here is an interesting statistic. There are more of us in
the over 65 age group in the United States than there are
citizens in Canada, but what is particularly troubling to me is
that seniors, while comprising only 13 percent of the U.S.
population, account for 65 percent of consumer product related
deaths. By 2030, they, we, will be 20 percent of the U.S.
population.
Given my concerns in that brief period when I was acting
chairman of the agency, I worked with our staff to create a
senior safety initiative at CPSC. This initiative focuses on
identifying the products that harm seniors disproportionately
and seeking ways to provide extra warnings and protections for
older Americans.
As I continue to look for useful approaches to help seniors
with product hazards, I hope this committee will take note of
this issue and support the Commission's efforts in this regard.
Thank you so much for your time and I look forward to your
questions.
[The prepared statement of Mr. Adler follows:]
Prepared Statement of Hon. Robert S. Adler, Commissioner,
U.S. Consumer Product Safety Commission
Good morning Chairman Moran, Ranking Member Blumenthal, and the
members of the Subcommittee. Thank you for the opportunity to appear
along with my fellow CPSC Commissioners today. I am pleased to be here
to testify about an agency that I have been associated with in some
fashion since its establishment over forty years ago.
At the outset, I would point out that we are far and away the
smallest of the Federal health and safety agencies, with a current
funding level of $123 million and a staff of roughly 560 FTEs. To put
our budget in perspective, I note that for FY 2016, we have asked for
an appropriation of $129 million--an increase of roughly $6 million. By
way of comparison, our sister agency, FDA, has asked for roughly $4.9
billion in FY 2016, an increase of $148 million. Or to put it more
succinctly, FDA has asked for an increase that is larger than CPSC's
entire budget.
Notwithstanding CPSC's modest budget, our jurisdictional scope is
extremely wide, encompassing roughly 15,000 categories of consumer
products found in homes, stores, schools and recreational settings.
Given this broad jurisdiction, the agency has adopted a thoughtful,
data-based approach using its highly-skilled technical staff to figure
out which products present the greatest risk. And, we address them
using our regulatory and educational tools in a way designed to
minimize market disruption while always making consumer safety our top
priority.
Of course, the CPSC does not operate alone on product safety. We
have always sought to make our various stakeholders partners in our
quest to reduce or eliminate unreasonable risks. Included in this group
are our friends in the business and consumer communities as well as the
various standards development bodies that work closely with the agency.
So, while I would note that much remains to be done, I would also
point out that an enormous amount has been accomplished. For example,
there has been an estimated 30 percent decline in the rate of deaths
and injuries associated with consumer products over the last 40 years.
And, I particularly note the dramatic drop in death and injuries to
children. We have seen:
An 83 percent drop in childhood poisoning,
A 73 percent drop in crib deaths,
An 86 percent reduction in baby walker injuries, and
An almost complete elimination of childhood suffocations in
refrigerators.
Additionally, on a broader front, we have seen improvements such as
92 percent reduction in fatal electrocutions and a 52 percent reduction
in residential fire deaths in the past 40 years. By our calculation,
this drop in deaths and injuries has resulted in over $16 billion in
reduced societal costs--producing benefits that dramatically outweigh
the pennies per citizen cost of operating the CPSC.
I would also like to mention the tremendous strides the agency has
taken to implement the Consumer Product Safety Improvement Act (CPSIA)
approved by the House on July 30, 2008 by a vote of 424-1 and signed by
President Bush on August 14, 2008. Among the actions taken by the
agency in enforcing this law:
Enforced stringent limits on lead and phthalates in
children's products,
Promulgated the strongest safety standard for cribs in the
world,
Developed implementing rules for the new CPSIA requirement
that firms have independent laboratories do third party testing
of children's products before introducing them into the U.S.
market,
Made mandatory a comprehensive voluntary toy standard, ASTM
F963,
Written, and continue to write, a series of standards for
durable infant products like play yards and strollers,
Drafted and enforced new guidelines on civil penalties and
set broader limits on consumer product recalls, and
Developed new approaches to catching dangerous imported
products, which we hope to expand.
As you may know, the Commission has recently experienced a
significant turnover among its members. Although I miss my former
colleagues, I am pleased to welcome as new colleagues, Chairman Elliot
Kaye, and Commissioners Robinson, Buerkle and Mohorovic. Simply put,
they are a joy to work with. They have brought new perspectives and
insights that have freshened and sharpened my thinking on issues. And,
they have done so in a way that has brought a new era of civility to
the agency. We certainly disagree--vigorously--on some issues, but we
also listen to and trust one another in ways that I have not seen for
many years at the agency.
Mr. Chairman, I realize that there are a number of issues that
concern you and the other members of the Subcommittee, and I join my
colleagues in looking to answer any questions you may have regarding
the agency's activities in the past years. Before doing so, I would
like to reiterate my concern about a set of issues surrounding a
critical demographic that I believe has not received enough attention
over the past number of years: senior citizens--a group of which I am a
proud member. CPSC data show that the second most vulnerable population
after kids is adults over 65. And, I note that this is a rapidly
growing group due to the aging of the baby boomers and the greater
longevity of our citizens. In fact, there are more of us in the over-65
age group than there are citizens in Canada. What is particularly
troubling to me, however, is that seniors, while comprising only 13
percent of the U.S. population, account for 65 percent of our consumer
product-related deaths. And, by 2020, they--we--will be 20 percent of
the U.S. population.
So, given my concerns, while I was Acting Chairman of the agency, I
worked with our staff to create a Senior Safety Initiative at CPSC.
This initiative focuses on identifying the products that harm seniors
disproportionately and seeking ways to provide extra warnings and
protections for older Americans. And, I continue to look for useful
approaches to help seniors with product hazards, and I hope that this
committee will take note of this issue and support the Commission's
efforts in this regard.
Thank you for your time, and I look forward to your questions.
Senator Moran. Thank you very much. Commissioner Buerkle?
STATEMENT OF HON. ANN MARIE BUERKLE, COMMISSIONER,
U.S. CONSUMER PRODUCT SAFETY COMMISSION
Ms. Buerkle. Thank you and good morning, Chairman Moran,
Ranking Member Blumenthal, and distinguished members of this
committee. Thank you for holding today's hearing on the
Consumer Product Safety Commission.
I had the honor of serving in the House of Representatives,
and I am very glad to be back on Capitol Hill in my capacity as
a commissioner at CSPC.
My full statement exceeds 5 minutes, so I will only touch
upon a few highlights. Number one, it is crucial to our mission
that CSPC build strong, productive relationships with all
stakeholders, especially the regulated community. Inspiring
cooperation rather than hostility will yield quicker
introduction of safer designs, as well as timely removal of
defective products, all of which ultimately benefit the
consumer.
That is one reason why I am deeply troubled by the recent
pronouncements that the Commission will seek higher civil
penalties, make changes to an important program known as the
Retailer Reporting Program, as well as the ill considered
proposals that would undercut our successful voluntary recall
program and 6(b) rules, and last, the constant threat of
mandatory standards. Without question, these initiatives
undermine any engagement in collaborative efforts.
One of the most important CPSC activities, as has already
been mentioned, is import surveillance. While CPSC has improved
import surveillance significantly over the last decade, I have
concerns about our current direction.
In my judgment, it makes no sense to seek funding for a RAM
expansion before we decide what that expansion should include,
nor can I go along with the so-called ``user fee'' that would
impose additional costs on imports and our economy without
providing any benefit to the user. Such a fee is unfair and of
doubtful constitutionality.
I also find it mystifying that we would evaluate the e-
filing certificates through a pilot program using virtually the
same approach that was criticized when the rule was first
promulgated more than a year ago.
One of my highest priorities at the Commission has been to
reduce testing burdens faced by manufacturers. I was a member
of Congress when we passed Public Law 112-28, which relieved
testing burdens directly in several ways, and directed the
Commission to find other ways. When I joined the Commission, I
was surprised to see how little progress had been made.
At my constant urging, CPSC is taking the matter more
seriously. I am grateful to Chairman Thune for his personal
attention to this matter and to this entire committee and the
Congress for dedicating $1 million to the effort in CPSC's
Fiscal Year 2015 appropriations.
Another significant activity at the Commission is the
rulemaking prescribed by CPSIA in Section 108, which relates to
the use of phthalates in certain toys and child care articles.
Unfortunately, the Commission did not allow public comment
on the science of the CHAP report before formulating and
promulgating the proposed regulation. Citing the time table set
forth in Section 108, the Commission majority decided it must
move ahead despite the known defects of the CHAP report.
Particularly glaring was the CHAP's decision to rely on the
exposure data from 2005/2006 and earlier when more recent data
was readily available. The CHAP's fundamental mistake of using
old data is only one of my concerns that I have with this
rulemaking.
I also question banning chemicals based on a cumulative
risk assessment to which they contribute little or no risk. I
object to banning chemicals in toys when the exposure from toys
are dwarfed by exposures in food, cosmetics, and other sources
from outside of our jurisdiction, and I oppose banning
chemicals that have been in use for many years and whose risks
have been studied for a very long time when we know very little
about the alternatives that will instead be used.
Another priority before the Commission is window coverings.
The reality is this, there are approximately one billion window
covering products already in the United States of America. To
address this hazard, we need a comprehensive educational
campaign. A serious commitment to such a program would do more
to save lives than a mandatory standard, which must be limited
to newly manufactured products.
As a Federal agency, we are stewards of the American
taxpayers' dollars, and we must ensure that the regulations we
promulgate are reasonable, balanced, and address a significant
safety issue.
The cost of regulation and compliance has been estimated at
about $2 trillion annually in our country, and studies indicate
that those costs fall disproportionately on small businesses.
While regulation is a necessary function of government, the
solutions we seek should be balanced and address a serious
problem.
Consumers should be protected from an unreasonable risk
while the regulated community is protected from arbitrary
government.
The common goal among all of us, Congress, CPSC, industry,
and consumers is safety. We are all people. We all have kids
and families for whom we want safe products. I have six
children and 16 grandchildren, one of whom arrived earlier this
week. I do not want dangerous products hurting them or anyone
else. However, the United States Government cannot and should
not try to create a zero risk society.
I thank you for this time today and I look forward to
answering your questions.
[The prepared statement of Ms. Buerkle follows:]
Prepared Statement of Hon. Ann Marie Buerkle, Commissioner,
U.S. Consumer Product Safety Commission
Chairman Moran, Ranking Member Blumenthal, and distinguished
Members of the Committee: thank you for holding today's hearing on the
Consumer Product Safety Commission. I had the honor of serving in the
House of Representatives, and I am glad to be back on Capitol Hill in
my capacity as a Commissioner at CPSC. I hope that today's hearing will
strengthen our partnership to keep consumers safe from unreasonable
risks of injury.
I have been a Commissioner at the agency since July of 2013.
Throughout that time, what has continued to impress me is the
dedication of CPSC's staff. The mission of safety is taken very
seriously. I am also thankful for the tone set by our Chairman and
joined by my colleagues. We often differ significantly on matters of
policy, but those differences are discussed in a mutually respectful
manner.
The regulated community has also impressed me, not only with their
eagerness to understand and comply with our regulations, but also with
their entrepreneurial drive to innovate and advance safety. It is
crucial to our mission that CPSC builds strong, productive
relationships with all stakeholders, especially the regulated
community. Inspiring cooperation rather than hostility will yield
quicker introduction of safer designs as well as more timely removal of
defective products, all of which ultimately benefit the consumer. That
is one reason why I am deeply troubled by recent pronouncements that
the Commission will seek higher civil penalties, changes to an
important program known as retailer reporting, and the ill-considered
proposals that would undercut our successful voluntary recall program
and 6(b) rules. Without question, these initiatives undermine any
engagement and collaborative efforts.
Consumer safety is our top priority, but safety can be achieved in
a balanced, reasonable way that does not unnecessarily burden the
regulated community, deprive consumers of products they prefer, or
insert government into the market where it does not belong.
One of the most important CPSC activities is import surveillance.
Stopping unsafe products at the ports is a critical strategy--it
prevents harm to consumers. Recalls are nowhere near as effective, and
they impose much larger costs on everyone involved.
CPSC's import surveillance has improved significantly over the last
decade. CPSC has developed a Risk Assessment Methodology (RAM),
fulfilling the requirement of Section 222 of the Consumer Product
Safety Improvement Act (CPSIA), and is using it to target shipments
that pose greater risks. CPSC now has employees who are located
fulltime at the busiest ports of entry, and it has field investigators
located throughout the Nation who can reach many other ports. CPSC also
has developed a strong partnership with Customs and Border Protection
(CBP). Just last month, the Commission unanimously agreed to spend $3
million (available as a result of hiring shortfalls) this Fiscal Year
to enhance our in-house control over the existing RAM system.
The President's budget request for FY 2016 seeks authority for CPSC
to impose a so-called ``user fee'' on imported consumer products so it
can finance an expansion of the RAM system as well as boost the number
of staff working on import surveillance. While import surveillance is
an extremely important part of our mission, I do not agree with the
current approach. Import safety is a complex issue and its components
should be examined individually as well as work together collectively.
First, before any amount of funding is requested, let alone
appropriated, the ``requirements analysis'' that the agency is planning
to conduct should be completed. This study is to identify what
capabilities an expanded RAM system should have. Until there is a
consensus on what is required to expand the RAM, and a timetable to do
so, any request for additional funding is premature.
Second, even when we know what is required for an expanded RAM, I
do not believe that a user fee is the appropriate way to pay for it. A
fee that is not matched by any benefit is unfair and of doubtful
constitutionality. In any case, we should think long and hard before
imposing even greater costs on American businesses, especially smaller
ones.
Another piece of this complex issue is the proposed regulation
requiring electronic filing of information documenting compliance with
our mandatory standards. That proposal, which the Commission launched
in 2013 prior to my arrival, was developed with minimal stakeholder
engagement, and drew strenuous opposition. At my urging, CPSC has taken
steps to engage the trade community and develop a pilot of an
electronic filing program before proceeding with a final rule. While I
am pleased to see the efforts at engagement, it was my hope that
stakeholder feedback on the proposed rule would guide the development
of the pilot. Instead, the pilot currently being discussed retains many
features of the proposed rule that met with such opposition in the
first place.
I see no reason to be wed to the original proposal. CPSC is an
independent agency, so we are not bound by Executive Order 13659 nor is
there any statutory requirement for CPSC to move to electronic filing.
In my judgment, it would be better to proceed incrementally with a
series of smaller pilots rather than a kitchen sink, try-everything-at-
once approach. Let's see if we can operate smoothly in simple cases
before adding more complex scenarios.
Moving to electronic filing, streamlining the import process, and
enhancing our targeting abilities are all worthy goals, but there are
many additional steps that must be taken before we move ahead with a
major expansion of our import surveillance system. I want to see us do
it right rather than in haste.
One of my highest priorities at the Commission has been to reduce
testing burdens faced by manufacturers. I was a Member of Congress when
we passed Public Law 112-28, which relieved testing burdens directly in
several ways and directed the Commission to find other ways. When I
joined the Commission, I was surprised to see how little progress had
been made. At my constant urgings, CPSC is taking the matter more
seriously. I am grateful to Chairman Thune for his personal attention
to this matter and to the entire Congress for dedicating $1 million to
the effort in CPSC's Fiscal Year 2015 appropriation. In April of this
year, I sent a memorandum to the leaders of this subcommittee and
others describing CPSC's efforts in some detail. Since that time, the
Commission has voted to fund another promising research project
identified by our Small-Business Ombudsman and the Commission is
anticipating a small burden reduction package to come before us this
summer. Nevertheless, nearly four years after passage of Public Law No.
112-28, stakeholders have received virtually no relief in response to
its mandate. Meanwhile, the promulgation of additional mandatory
standards, pursuant to CPSIA section 104, has added to these third-
party testing burdens. In addition, the agency has failed to act on the
separate statutory mandate to report to Congress on opportunities for
burden reduction that require new legal authority. The CPSC staff
recommended a substantial opportunity of this sort to the Commission
over two years ago, and others have been identified more recently. We
should be more engaged with Congress on this issue and many others.
Another significant activity at the Commission is the rulemaking
prescribed by CPSIA section 108, which relates to the use of phthalates
in certain toys and childcare articles. Congress directed CPSC to begin
this process by forming a Chronic Hazard Advisory Panel (CHAP) to
develop a scientific report on phthalates and potential substitutes.
The CHAP's report was transmitted to the Commission in July 2014.
Unfortunately, the Commission did not allow public comment on the
science of the CHAP report before formulating and promulgating its
proposed regulation. Citing the timetable set forth in section 108, the
Commission majority decided it must move ahead despite the known
defects in the CHAP's report. Particularly glaring was the CHAP's
decision to rely on exposure data from 2005-2006 and earlier when more
recent data was readily available. We should always respect
Congressional deadlines as much as we possibly can. However, Congress
also said that the CHAP should consider ``likely exposures'' and the
``most recent, best available'' scientific data. Can anyone imagine us
proposing a new standard for ATVs or toys based solely on injury data
that is 8 or 9 years old?
I am pleased that the Chairman directed staff to analyze more
recent data and strongly believe that analysis, as well as staff's
interpretation of how it will impact the final rule, should be
available for public comment. It must be emphasized, however, that this
approach does not cure the original problem--the decision to forego
public comment on the science of the CHAP report before formulating the
proposed rule. The CHAP's fundamental mistake of using old data is only
one of many concerns that I have with this rulemaking. I question
banning chemicals based on a cumulative risk assessment to which they
contribute little or no risk. I am troubled by the idea of banning the
use of chemicals in toys when the exposures from toys are dwarfed by
the exposures in food, cosmetics and other sources outside our
jurisdiction. And I am greatly concerned that we have proposed to ban
chemicals that have been in use for many years, and whose risks have
been studied for a long time, when we know very little about the
alternatives that would be needed.
Another priority issue before the Commission is window coverings. I
supported the decision to proceed with an Advance Notice of Proposed
Rulemaking because I believe CPSC needs to gather more information
about these products before we determine how to proceed. I am anxious
to understand how the vulnerable populations of individuals with
disabilities and senior citizens could be adversely affected by any
changes to the functionality and operability of corded window
coverings.
The reality is this: There are approximately one billion window
covering products already in U.S. households. To address that hazard,
we need a comprehensive educational campaign, which reaches parents,
child caretakers, and healthcare professionals; increases awareness of
the potential hazard of corded window coverings; and informs of safer
alternatives that are already available. A serious commitment to such a
program would do more to save lives than a mandatory standard, which
must be limited to newly manufactured products.
No matter the issue, we must always ask ourselves: what is the
problem we are trying to fix and most importantly, is our proposed
solution the least burdensome way to solve the problem? As a Federal
agency we are stewards of the American taxpayers' dollars and we must
ensure the regulations we promulgate are reasonable, balanced, and
address a significant safety issue.
Based on Federal Government data, past reports, and contemporary
studies, the costs of regulation have been estimated at about $2
trillion annually. The costs of regulation and compliance are
staggering and unfortunately, all studies indicate that the compliance
costs fall disproportionately on small businesses.
Regulation is a necessary function of government, but I believe
that CPSIA has forced too much regulation without regard to risk, let
alone cost benefit. As a result we are unnecessarily burdening
businesses, especially small businesses, and are further stifling an
already stagnant economy. The solutions we seek should be balanced and
address a serious problem. Consumers should be protected from
unreasonable risks while the regulated community is protected from an
arbitrary government.
The common goal among us all--Congress, CPSC, industry, and
consumers--is safety; we are all people who have families for whom we
want safe products. I have six children and sixteen grandchildren. I do
not want dangerous products hurting them or anyone; however, the U.S.
Government cannot and should not try to create a zero-risk society.
Thank you for this time today and I look forward to answering any
questions that you may have.
Senator Moran. Thank you very much. Commissioner Mohorovic?
STATEMENT OF HON. JOSEPH P. MOHOROVIC,
COMMISSIONER, U.S. CONSUMER PRODUCT SAFETY COMMISSION
Mr. Mohorovic. Thank you, Mr. Chairman, Ranking Member
Blumenthal. I would like to touch on just one area of CPSC
developing policy but it is the area that I believe the CPSC
has the opportunity to achieve the greatest safety risk on
investment of the taxpayer dollar, and that is the enhancement
of our techniques at our ports to identify and interdict
harmful products.
A quick look at the statistics will reveal the enormity of
the challenge as well as the need to direct our compliance
efforts at our ports. We have a quarter of a million importers
that are bringing in $700 billion in consumer goods under our
jurisdiction on an annual basis, and they are coming in through
14 million individual shipments to 330 ports.
We also know that in 80 percent of our recalls they involve
imported goods. The goal is and needs to continue to be
identifying harmful products at our ports of entry, but to do
so in such a way that will not needlessly inhibit legitimate
trade. That is going to be the tricky part and the part we need
to focus on.
I would like to identify three areas of policy with regard
to our imports. First, you have before you a proposal from
CPSC, what has been a very successful targeting program we call
our RAM, our risk assessment methodology. We are asking for
$200 million over the course of 6 years and we are asking the
trade to pay for it in the form of user fees.
I have been in leadership positions overseeing governance
programs of this size and of this scale, and while I may have
some concerns about the user fees as a payment mechanism and
how we propose to spend all that money, I am committed to the
fact that the time is now to nationalize our RAM program.
The second area I would like to address is rulemaking. We
have an 1110 rule which is an overhaul of our Certificates of
Compliance, and in this area, we are proposing to mandate that
certificates be filed with the CPSC in an electronic registry
in advance of importation. We have a pilot project underway to
test that concept.
Be sure that this would have an enormous burden on the
trade. We are asking for this data because we think this data
provided in advance will better inform our targeting to
identify unsafe products, and that is an argument that appeals
to me greatly, but this is the area where we have to be very
careful not to stifle legitimate trade in the United States.
Before we ask for this mountains of data, I think it is
important for the CPSC to more concretely prove how that data
will better inform targeting beyond the data that is already
available to us today.
The third area I would like to touch upon is the Trusted
Trader concept. As we are enhancing our abilities at the Border
to identify unsafe products, I believe we should be partnering
with importers who want to subject their processes to strict
scrutiny by the CPSC in hopes that the CPSC can qualify them as
low risk trusted traders.
Membership should have its benefits. If they can
consistently prove an ability to bring in compliant products,
they should have benefits in the form of lower administrative
burdens, lower surveillance rates, as well as quicker and more
predictable time to market.
In conclusion, I believe our situation at our ports
provides us an excellent opportunity to better protect the
American consumer, but it also comes with a very significant
risk of needlessly inhibiting legitimate trade.
With a nationalized RAM targeting program, I believe we can
better and more likely identify the non-compliant goods and
keep them out of the American stream of commerce, and with the
robust Trusted Trader program, I think we can better likely
identify the compliant product and get that to market faster so
that the American consumer can enjoy them more cheaply, more
quickly, and most importantly, more safely.
Thank you very much.
[The prepared statement of Mr. Mohorovic follows:]
Prepared Statement of Hon. Joseph P. Mohorovic, Commissioner,
U.S. Consumer Product Safety Commission
Chairman Thune, Ranking Member Nelson, Chairman Moran, Ranking
Member Blumenthal, and distinguished members of the Subcommittee, I
sincerely appreciate the opportunity to speak with you today. As many
of you are aware, I am the only MBA--and the only non-lawyer--on the
Commission, so I bring a bit of a different perspective. Having managed
a global business line for one of the world's leading consumer product
testing firms, the notion of Return on Investment is second nature for
me. In the past, I used it to maximize profit. In the new role in which
I have the honor of serving, the ``profit'' I'm looking for is the
shared gain of fewer Americans suffering injuries and deaths from
consumer products, so I'm thinking more in terms of Safety Return on
Investment--SROI.
I would like to focus on the area where CPSC can realize the
highest SROI, and that is at our ports and borders. CPSC's jurisdiction
is huge--over 15,000 product categories--and imports are a very large
portion of that--about half. More than 235,000 importers bring in about
14 million shipments annually worth over $700 billion. In some
categories--like toys--more than 90 percent of products we regulate are
imported.
Some of those products are bound to be violative or unsafe. In
fact, 80 percent of our recalls involve imported goods. Stopping
products at the ports is more effective than recalling them, which is
expensive and has limited effectiveness. To do that, however, requires
vigorous inspection efforts. For any agency our size, vigorous
inspection requires sophisticated targeting and prioritization. Every
false positive--every shipment stopped that ultimately proves
compliant--is not only an unnecessary interruption in commerce, but
also a wasted opportunity to find and reject non-compliant products.
I am delighted that so many members of your staffs have been able
to see firsthand the enormous challenge our small agency faces at the
ports, and I would like to talk about three keys to meeting that
challenge in the 21st century economy: How we target, how we surveil,
and how we maximize our scarce resources.
RAM Scale-Up & User Fees
One key to enhancing our protection is to do more of one thing we
are already doing well. As directed by the CPSIA, the Commission has
developed a pilot Risk Assessment Methodology (or RAM), allowing us to
focus more of our import inspections on products more likely to be
violative. Our Fiscal Year 2016 Budget Request includes a request for
authorization for a user fee to help fund the $180 million we plan to
spend in the next six years to expand to a full-scale RAM.
I have some reservations about the user fee mechanism. I also have
some open questions about the details of our spending plans--
particularly about the IT component and missed opportunities for
economies of scale I would expect from an operational build-up of this
size. However, I wholeheartedly support the notion of nationalizing our
pilot targeting program. We have a successful proof of concept, and, at
full-scale, RAM will enable us to better-target high-risk products and
importers. More importantly, RAM will allow us to prioritize more
significant threats to consumer safety over paperwork violations that,
while unacceptable, are less likely to injure anyone.
Certificates of Compliance Rule (1110)
Along with the RAM scale-up, we are also overhauling how we bring
information in through our proposed changes to our Certificates of
Compliance rule, the so-called 1110 Rule. In those revisions, we
propose to require electronic filing of certificates prior to
importation. Currently, importers of products that require certificates
generally only have to make them available upon demand. I am concerned
about the details of our proposal, its size, and the extent to which
this strategy contributes to better targeting.
Our proposed Rule requires significantly more information in a
certificate than what was required by Congress in the CPSIA. And by
requiring certificates for exempt products, the sheer volume of the
certificates we envision collecting is enormous. But we don't even have
a good handle on what this total scope is. I hope you ask that question
directly of us today.
In 2013, we wrote that we expected to see over 7.5 million
certificates a year filed through an electronic registry--I suspect
that is an astonishing underestimate. Not only is the volume of work
staggering--and maybe an undercount--but it is inconsistent with
President Obama's Executive Order on creating a single import window.
Maintaining a separate, CPSC-specific process is, if not two full
windows, at least a window and a mail slot, and it undercuts the
efficiency goals of the Executive Order.
But the most important concern about our certificate proposal is:
how is this in the public interest? How, exactly, are all these pieces
of information contributing to better targeting and, as a result, fewer
unsafe products? Moreover, we have not done enough to explain why we
need all of the information the proposed rule identifies. The notion
seems to have been that we should get all the information we can and
then figure out what to do with it. While I understand the impulse to
leave no stone unturned, I believe we need to make every effort to
ensure that we get what we need while not demanding any more than that.
One effort we can and should make is to subject this proposed rule
to some form of cost-benefit analysis. When the agency issued its
current rule, it did so through a direct-final rule that was
promulgated without cost-benefit analysis or notice-and-comment. This
decision was a pragmatic one: In addition to the certificate rule, the
CPSIA required dozens of other rules and other agency actions across a
wide swath of its jurisdiction, and there was simply too much to do to
give every part of it the consideration it would otherwise have
deserved.
Now, nearly seven years later, we do not have the same time
pressure. We have done almost all of the work the CPSIA required, and,
as a result, we have both the time to get this sweeping rule right and
a better understanding of how it fits in our regulatory puzzle.
We are not required to perform any cost-benefit analysis of the
certificate rule, let alone the robust examination reflected in Section
7 of the Consumer Product Safety Act.\1\ The fact that there is no law
telling us we must look at the costs and benefits of this proposed
rule, however, does not mean we should not choose to do so. One of our
basic obligations as Federal officers is to ensure that we are not
wasting taxpayers' money. When we write a check on the people's behalf,
we need to make sure they get something of similar value in return.
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\1\ That analysis is required for any mandatory consumer product
safety standard we wish to implement, but the certificate rule is not
such a standard.
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In the case of the certificate rule, my strong suspicion is that
even a rudimentary cost-benefit analysis will show that the costs we
would impose on the economy in collecting tens of millions of
certificates and perhaps billions of data points would dwarf the safety
benefits consumers would see from that information. Done properly, our
analysis could help us understand which data elements help us target
unsafe products and which do not, allowing us to make a conscious
choice about exactly how much burden we will impose for exactly how
much benefit we will receive in return.
Trusted Trader
Even if they are better-defined, user fees and certificate pre-
filing will impose considerable burdens on importers. We should look
for ways to offset those. One such offset I have advocated for is to
make the import process simpler and faster for the demonstrated good
actors in our regulated community through a Trusted Trader program.
Our partner agencies--including CBP and TSA, and soon FDA--have
created programs through which their regulated entities subject
themselves to greater advance scrutiny in exchange for reduced
regulatory supervision. The agencies, in turn, benefit from more
insight and the opportunity to redirect scarce inspection resources,
and they cannot sign up volunteers fast enough. CPSC should emulate
that model with a robust, sophisticated Trusted Trader program.
As I mentioned earlier, RAM is a valuable tool and one we need to
maximize. However, its focus is on finding the needles in our import
haystack. Trusted Trader shrinks the stack. It allows us to spare the
agency and importers the waste of inspecting goods we could have
already determined to be low-risk.
To reach the level of confidence necessary for that determination,
CPSC program administrators should not only put the applicant under a
microscope, but pull back the curtains on its suppliers, as well. To
interest companies in this poking and prodding, we should offer
significant benefits, primarily in fewer inspections, lower
administrative burdens and faster, more predictable, time-to-market.
My priority is strengthening our safety efforts. While Trusted
Traders would enjoy real benefits, those would come only after CPSC has
developed empirical evidence of the competency of their supply chains.
The bar should be reachable, but high. Of course, if we learned of a
Trusted Trader falling short of its responsibilities, the response
would be strong and swift.
President Reagan espoused the principle that we should ``trust, but
verify.'' In an evolved CPSC import surveillance system, we would
verify, then trust--and continue to verify. By doing so, we reduce the
enormity of the out-sized challenge and make the mission a more
achievable one.
Conclusion
The ports are a natural bottleneck in the stream of commerce. That
creates both a great opportunity for protecting consumers and a high
risk of stifling legitimate trade. With a robust RAM program, we can
more readily identify likely violative products and keep them out of
the stream of American commerce. With a robust Trusted Trader program,
we can more readily identify likely compliant products and rapidly get
them to market so that consumers can enjoy them more cheaply, more
quickly, and more safely.
Senator Moran. Thank you very much. Commissioner Robinson?
STATEMENT OF HON. MARIETTA S. ROBINSON,
COMMISSIONER, U.S. CONSUMER PRODUCT SAFETY COMMISSION
Ms. Robinson. Thank you, Chairman Moran, Ranking Member
Blumenthal, members of the Subcommittee.
I have had the privilege of serving as a CPSC Commissioner
for almost 2 years now and I am absolutely delighted to have
this hearing and to be able to testify before you today.
I must start by saying what an honor it is to work with the
incredible group of professionals that we have at the CPSC. I
am constantly amazed at how much we do with such a limited
budget and so few people. Our professionals are extraordinarily
committed to our mission as am I.
There are two areas in my more expansive written testimony
that I wish to highlight in my few minutes. First is how
critical it is that the CPSC modernize how we gather, analyze,
and share our data. We are the only statistical source of
product related injury data in the world.
It took me only a few short weeks in this job to realize
that virtually all product related safety decisions being made
by incredibly diverse entities both in this country and beyond
with respect to the products under our jurisdiction are based
on CPSC data. We are it.
Presently, our data consists of our statistical data that
is generated through our national electronic injury
surveillance system or NEISS, which has been in place for over
30 years. We basically take information from 100 emergency
rooms and from that our epidemiologists extrapolate to
formulate a national estimate annually of over 14 million
product related injuries.
We have our non-statistical data which are news media
reports, consumer complaints to the CPSC hotline, and to our
website, SaferProducts.gov, and a limited number of death
certificates, trade information, and the Medical Examiners and
Coroners Alerts Project.
At the CPSC, our data on consumer product related injuries,
incidents and deaths are the starting point for identifying
trends that tell us a product is unsafe and are critical
throughout our rulemaking process, particularly when we perform
our requisite cost/benefit analyses.
Outside of the CPSC, our data are used by other Government
agencies, CDC, FDA, NHTSA, industry, manufacturers, retailers,
trade associations, consumer groups, researchers and academics,
and the media.
For most of my time on the Commission, my staff and I have
been very focused on improving our data sources, improving the
formatting of the data to make it more accessible, and
improving access to that data by all segments of our society.
In this era of big data, we need to find ways to improve
the CPSC data and how we use it. I am delighted that the Fiscal
Year 2016 budget includes funding for some of the important
data sources and programs, and I am pleased that we will be
holding our first ever data hearing on June 24.
I very much look forward to hearing from a diverse panel,
including government, industry, and consumer advocates about
the uses they have found for our data and how we may modernize
and enhance our data practices.
The second area I would like to address briefly is our rare
mandatory rulemaking on ROVs. One of the most heart breaking
and frustrating things about this job is watching week after
week the number of people of all ages who are killed or
seriously injured as a result of ROV incidents, primarily from
rollovers.
While some of the dangers of the ROVs are apparent, others
are very much hidden from consumers, and it is those hidden
hazards with which I am most concerned. We cannot afford to
delay addressing this.
Between January 1, 2003 and April 5, 2013, ROV accidents
caused at least 335 deaths and at least 506 injuries, some very
severe, including amputations, head and spinal injuries, and
they just keep happening.
A short ride on an ROV as I took in our lab recently made
me understand the passion. They are really fun, but really made
me understand the dangerous propensities even with a driver who
was very much trying to make sure he did not mess up a
Commissioner.
I highly recommend such a visit to our lab to any of you
who are involved in this issue.
CPSC has tried for many, many years to get the ROV industry
to incorporate simple affordable fixes to address the major
hazards of ROVs in a voluntary standard but to no avail. Since
the CPSC proposed a mandatory rule, things have finally
changed.
Recently, industry and the CPSC have been working closely
to discuss ways to make the ROVs safer, and on June 2 the CPSC
was delighted to learn from industry that they had finally
voted to reopen the voluntary standard.
Respectfully, the RIDE Act causes me great concern. I am
sorry to see it came out of this committee. I believe it will
cause unnecessary delays, that there is unnecessary expenditure
of taxpayer money by asking the CPSC to pay the National
Academy of Sciences to conduct tests that we have either
already done or will be doing as part of the rulemaking
process.
Of most concern is I believe it will remove the incentive
for industry to seriously address the unreasonable risks that
are posed by the ROVs.
Thank you again Chairman Moran, Ranking Member Blumenthal,
and members of this committee. I look forward to your
questions.
[The prepared statement of Ms. Robinson follows:]
Prepared Statement of Hon. Marietta S. Robinson, Commissioner,
U.S. Consumer Product Safety Commission
I want to thank Chairman Moran, Ranking Member Blumenthal and
Members of the Subcommittee on Consumer Protection, Product Safety,
Insurance, and Data Security for providing the U.S. Consumer Product
Safety Commission (CPSC) with this opportunity to appear at a public
hearing and submit testimony. I have had the privilege of serving as
Commissioner at the U.S. Consumer Product Safety Commission since July
2013.
I am delighted to have the opportunity to submit this testimony
concerning ``Overseeing the Consumer Product Safety Commission'' and to
give you a brief update on some of my priorities which are very much
aligned with our FY16 budget request to Congress.
It is an honor to work with Chairman Kaye, my fellow Commissioners
and with the amazing group of professionals who comprise the CPSC
staff. Our small staff includes scientists, engineers, lawyers,
compliance and communications professionals, field investigators,
economists, epidemiologists, and import surveillance, operations and
administrative staff. I am constantly amazed at how much we do with
such a limited budget and staff. Our professionals are extraordinarily
talented and have abundant career opportunities elsewhere. However,
they stay at the CPSC because they know they are making a difference
and believe in our mission of protecting the public and, particularly,
our children, from unreasonably dangerous products. I very much share
this mission.
I recently sat on a plane next to a woman from India who, when she
learned where I work, told me she was very familiar with the CPSC and
she had tears in her eyes as she said how lucky the children and
parents in the U.S. are to be protected by our agency. I wholeheartedly
agree with her!
Priorities
It is important to me that my priorities and the CPSC priorities
are aligned. It is also important to me that my fellow Commissioners
and I work together to do our parts in implementing the CPSC's agenda.
There are five key areas in which the CPSC must continue to engage
and which must be funded at the appropriate levels. In order for the
CPSC to carry out its critical public health and safety mission, it
must be able to:
Gather and analyze the most appropriate data on consumer
product-related injuries and deaths;
Inform and educate all populations across our diverse
country concerning the real and often hidden hazards of certain
products or situations;
Effectively and efficiently monitor our ports for violative
consumer products;
Research and monitor the potential hazards to consumers of
new emerging technologies being used in various consumer
products; and
Review current rules and regulations to ensure they are not
overly burdensome on industry or inappropriate as a result of
technological or other industry advances.
I would like to further explain these five areas and, in so doing,
highlight the work my personal staff and I are doing to further support
the CPSC's FY16 budget and public health mission.
(1) Gather and Analyze the Data
Within days of being sworn in as a Commissioner, I started meeting
with various groups that had issues before the agency, including
consumer groups, trade associations, standards development
organizations, and representatives from small and large companies.
Multiple times each week, I would hear arguments either for or against
additional consumer safety rules, standards or initiatives. Inevitably,
the data cited in support of the arguments were generated by the CPSC.
Additionally, I learned that most of our work here at the CPSC
begins with an analysis of our data on consumer product-related
incidents, injuries, and deaths and these data continue to be used
throughout the rulemaking process. I quickly realized how vital our
data are to virtually all product-safety decisions in this country and
around the world. As a result, I am committed to ensuring that the CPSC
gathers the best and most appropriate data possible and am constantly
searching for new ideas to improve these data. My staff and I have been
actively learning about the newest developments relating to data
innovation. We have been attending events such as Health Datapalooza,
Fedscoop summits, and similar conferences. We have also been talking
with many of our counterparts at other government entities to learn how
they have modernized the collection and utilization of their data to
better serve the public.
I am pleased to note that my fellow Commissioners and our senior
management also believe that data must be a high priority for the CPSC.
To that end, we will be holding our first-ever public hearing on Data
Sources and Consumer-Product Incident Information next week, on June
24, 2015, right after our annual Priorities Hearing. We have already
received many enthusiastic responses to our announcement of the
hearing, and we hope to hear from a diverse panel of representatives
who will help us build on and improve our current data practices and
capabilities.
As many of you know, the CPSC collects consumer product-related
incident data in a number of ways. The CPSC's statistically
representative data are collected through the National Electronic
Injury Surveillance System (NEISS). The NEISS was created over 30 years
ago by CPSC epidemiologists. It is comprised of approximately 100
hospital emergency departments specifically selected to allow
statistical extrapolation of consumer product-related injuries to the
national level and assess injuries over time. The NEISS collects
approximately 400,000 product-related injury reports annually from
participating hospitals that represent a national estimate of over 14
million product-related injuries treated in hospital emergency
departments.
The CPSC's non-statistical data are collected in several different
ways. The sources of our non-statistical data have for many years
included news media reports, consumer complaints to the CPSC Hotline, a
limited number of death certificates, trade information, and the
Medical Examiners and Coroners Alert Project.
In May 2011, the CPSC launched our searchable database, available
at www.SaferProducts.gov. This database allows anyone to submit a
report of harm or risk of harm related to the use of consumer products
or substances within CPSC's jurisdiction. To date, there are
approximately 23,300 publicly available reports on
www.SaferProducts.gov, primarily received from consumers. CPSC staff
begins their analysis of this data immediately upon receipt to identify
potential emerging hazards.
As I noted earlier, I have been very focused on trying to identify
ways in which we may improve our data sources as well as the public's
use of it. To that end, I am pleased that the FY16 budget includes:\1\
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\1\ CPSC FY16 Budget Submitted to Congress, p.15.
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$2.2 million for the NEISS;
$2.7 million for our Consumer Product Risk Management System
(CPRMS), the CPSC's internal system that includes:
www.SaferProducts.gov, the publicly searchable incident
reporting portal; the business portal; an internal application
for CPSC staff to analyze and triage incident reports; and a
case management system for CPSC to respond to incidents; and
$900,000 for our CPSC hotline.
These funds are absolutely essential to ensure that the CPSC may do
the hard work required to protect consumers from hazardous and
dangerous products. At its core, the CPSC is a data-driven agency. For
those who seek to reduce burdens of unnecessary regulation, providing
the critical, supporting data is a necessary first step towards that
end.
(2) Inform and Educate all Populations of Hazards
The CPSC FY16 budget states that one of the most cost-effective
methods of reducing incidents, injuries and deaths related to consumer
products is by effectively, efficiently and quickly ``[c]ommunicating
safety responsibilities to industry and educating the public on the
best safety practices and recalled products.'' \2\ The CPSC has
committed $8 million to ``raise public awareness through timely and
targeted information about consumer product safety issues'' \3\
including notifying consumers about recalls as well as ongoing hidden
hazards. I fully support this commitment of CPSC's precious resources
to this critical priority.
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\2\ Id. at 9.
\3\ CPSC FY16 Budget Submitted to Congress, p. 21.
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Our ability to collect and share the best data is central to our
efforts to inform and educate the public about consumer product-related
hazards. We recently completed a project formatting our recall data to
make them more usable. We have already seen young innovative developers
use these enhancements to create apps that can help keep the public
informed of product recalls. I am pleased that the Commission voted
unanimously to support my amendment to our Midyear to elevate the
priority of a similar project that will make consumer reports on
saferproducts.gov more accessible and useful.
a. Improving Recall Effectiveness
Because I believe one of the greatest ways of ensuring safety is to
remove hazardous products from the marketplace, I am personally
committed to figuring out ways to improve overall recall effectiveness
of consumer products as a way to support the CPSC's larger goal of
``Raising Awareness.'' \4\
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\4\ Id.
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Many of you have read the Kids In Danger Report: A Decade of Data:
An In-depth Look at 2014 and a Ten-Year Retrospective on Children's
Product Recalls.\5\ I found the report both very encouraging and
somewhat discouraging. It was encouraging to see that stronger
standards and oversight by regulatory agencies such as the CPSC have
had a measurable effect on product safety and there have been
significant decreases in the past decade in incidents, injuries and
deaths related to consumer products. However, it was very discouraging
to read that ``the majority of recalled children's products continue to
remain in consumer hands (79.79 percent).'' \6\ And that ``[o]nly 14
percent of all 2013 recalled children's products were destroyed or
fixed.'' \7\
---------------------------------------------------------------------------
\5\ http://www.kidsindanger.org/docs/research/
2015_KID_Recall_Report.pdf.
\6\ Id. at 2.
\7\ Id.
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The Kids In Danger Report concludes that companies need to devote
their social media to publicizing recalls as effectively as they do
marketing products. Currently, ``less than a quarter of companies with
a Facebook presence use it to share recall information.'' \8\ Companies
using Facebook, Twitter, Instagram, or other social networking
platforms to market toys should also use those social media tools when
they have a product recall. Doing so is good for both consumers and
business. One recent study showed that companies using certain types of
social media in connection with their recall announcements experienced
lower stock price reductions than those companies not using social
media.\9\ Perhaps research such as this will encourage companies to be
more creative in using social media to get dangerous products off the
market. I have spoken to and intend to continue to speak to industry
about this issue as much as possible. Consumers deserve the same
respect for their safety as companies give to their purchasing dollars.
---------------------------------------------------------------------------
\8\ http://www.kidsindanger.org/docs/research/
2015_KID_Recall_Report.pdf, pps. 14-16 and 31.
\9\ The Role of Social Media in the Capital Market: Evidence from
Consumer Product Recalls, Journal of Accounting Research, Lian Fen Lee,
Amy Hutton and Susan Shu, Accepted manuscript online: 3 FEB 2015
01:03AM EST, DOI: 10:1111/1475-679X.12075, p. 33. (``First, we find
that corporate social media, in general, attenuates the negative price
reaction to product recall announcements. This finding is consistent
with social media increasing the effectiveness of the recall process
itself including limiting harm, as well mitigating the repercussions of
the recall for the firm's brand equity and reputation.'').
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b. Hidden Hazard: TV and Furniture Tip Overs
Another one of my priorities is increasing awareness of the dangers
associated with the hidden hazards of TV and furniture tip overs. There
were 430 tragic and preventable deaths between 2000 and 2013 involving
young children trapped or crushed after a dresser, TV, bookcase, table,
appliance, or other large item fell on them.\10\ Our statistics show
that a child dies every two weeks from a piece of furniture, a TV, or a
piece of furniture and a TV falling onto him or her and every 24
minutes, a child is taken to an Emergency Department due to a tip-over
incident.\11\
---------------------------------------------------------------------------
\10\ Product Instability or Tip Over Injuries Associated with
Televisions, Furniture and Appliances: 2014, CPSC August 2014, p. 2.
\11\ http://www.cpsc.gov/en/Safety-Education/Safety-Education-
Centers/Tipover-Information-Center/
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I am delighted that Commissioner Mohorovic is also committed to
this issue. Together, we can leverage our positions as Commissioners to
bring more awareness to this issue. We met with major retailors of both
furniture and electronics at the International Consumer Product Health
and Safety Organization Annual Conference in February to brainstorm
ideas beyond just education, and we will be following up on these to
try to make some real progress in this area.
Just earlier this month, CPSC launched its ``Anchor It!'' campaign
to reach all consumers and educate them on the serious dangers of TV
and furniture tip overs. This national campaign encourages everyone to
anchor TVs and furniture appropriately to avoid these completely
preventable serious injuries and deaths. The campaign includes a public
service announcement, a comprehensive website: www.anchorit.gov, and
partnerships with safety advocates and other stakeholders. Going
forward in FY16, education and outreach on TV and furniture tip overs
will continue to be one of the areas the CPSC's Communications
department works on as part of the $8 million allocated to them.
(3) Monitor our Ports
During calendar year 2013 alone, more than 235,000 importers
brought approximately $723 billion of consumer products under the
CPSC's jurisdiction into the country.\12\ That averages nearly $2
billion per day in imports of consumer products under the CPSC's
jurisdiction.\13\ Since 2008, four out of five product recalls in the
United States have involved an imported product.\14\
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\12\ CPSC FY16 Budget Request to Congress, p. 9.
\13\ Id.
\14\ Id.
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As you know, the Consumer Product Safety Improvement Act of 2008
(CPSIA) was enacted, in part, because of a wave of noncompliant
imported children's products.\15\ As part of the CPSIA, the CPSC was
required to develop a risk assessment methodology (RAM) and work with
U.S. Customs and Border Protection (CBP) to address the influx of
noncompliant children's products and to date, on a pilot basis, our
Office of Import Surveillance has done so.\16\
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\15\ Id.
\16\ Id.
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The CPSC's FY16 budget prioritizes scaling up the pilot import
surveillance program nationwide. The FY16 budget further requests
Congress to authorize a product safety user fee in FY16 with
collections beginning in FY17 in order to fund the expansion of the
surveillance program to meet the requirements of the SAFE Port Act of
2006 and Section 222 of the CPSIA.
I have made it one of my priorities to understand the CPSC's
critical import issues since I began as a Commissioner. To that end, I
visited our port in Los Angeles and Long Beach and discussed these
issues with CPSC's import surveillance staff at headquarters and in the
field. I also toured the National Commercial Targeting and Analysis
Center, and earlier this Fiscal Year, I met with CBP and Consulate
staffs in Guangzhou and Hong Kong to discuss many of the complicated
safety and import issues that result from a large percentage of this
country's manufactured goods coming from abroad. In addition, I have
been discussing the expansion of the RAM program, the requested user
fees, the comments to our proposed rule on Certificates of Compliance
designed to comply with the spirit of Presidential Executive Order
13659 requiring electronic ``single window entry,'' and the development
of our pilot program on e-filing with our stakeholders and sister
agencies. All of these issues are interconnected, necessary, and
critically important to a comprehensive and well-grounded consumer
product safety import surveillance program.
I am also pleased to note the CPSC's efforts in working with our
stakeholders to better understand their concerns regarding e-filing.
Chairman Kaye has taken the extraordinary step of holding two closed
meetings with the Advisory Committee on Commercial Operations
(``COAC'') and the Commission has also held an open meeting to discuss
the e-filing pilot. Our staff has taken our stakeholders' comments
seriously and I look forward to the upcoming announcement of our e-
filing pilot program.
It is for these reasons that I fully support our proposal for
imports in CPSC's FY16 budget.
(4) Research New Emerging Hazards
CPSC is responsible for researching new and emerging hazards. The
earlier the CPSC identifies trends in incidents or injuries from
unreasonably dangerous products, the more quickly we may move to
eliminate those dangers.
The CPSC Directorate of Epidemiology dedicates much of its time to
analyzing the data that I described earlier to identify these types of
trends. However, this ``early trend identification and analysis'' has
limitations when we are dealing with a chronic hazard.
Another approach to identifying new and emerging hazards is to
focus on key materials or products in which advances in technology and
new technical discoveries have created opportunities for industry to
make products with these new materials or new product prototypes. The
CPSC's continuing work on nanotechnology is just that.
Nanotechnology ``enables scientists to produce a wide array of
materials in the size range of 1 to 100 nanometers (nm), with unique
physical and chemical properties that can be incorporated into products
to improve performance in areas such as greater strength, flexibility,
stain resistance, or cleaning ability.'' \17\
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\17\ CPSC FY16 Budget Request to Congress, p. 12.
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The National Science Foundation estimates that over $3 trillion
will be spent around the world on incorporating nanotechnology into
finished consumer products by the year 2020.\18\ Nanotechnology will
become increasingly prevalent in all consumer products over time, yet
not much is known about the safety of these new and innovative
materials when they are included in consumer products. There are
potentially dangerous implications for using these nanomaterials in
consumer products.
---------------------------------------------------------------------------
\18\ Id.
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The CPSC has followed the lead of other Federal Government agencies
as well as the National Nanotechnology Initiative (NNI) in conducting
specific research on nanotechnology and the commercialization of
products containing nanomaterials. The CPSC has been a part of the NNI
since 2003 and during the past 12 years, the CPSC has committed an
average of just under $1 million per year to studying the question of
human exposure to nanotechnology in consumer products. However, due to
the complexities of nanotechnology and the rapidly evolving technology
of developing nanomaterials, the CPSC does not yet have the appropriate
testing methods for characterizing and quantifying nanomaterials; the
capability to identify, characterize and readily quantify consumer
exposures to nanomaterials in consumer products; the capability to
assess the potential health risks of exposure to nanomaterials in
consumer products, or the ability to obtain reliable data on
identifying new products containing nanomaterials or information on
consumer use and interaction with these products once they are
introduced into the marketplace.
For these reasons, I support the major investment of an additional
$5 million for the creation of the Center for Consumer Product
Applications and Safety Implications of Nanotechnology (CPASION) in the
CPSC FY16 budget. This allocation is necessary to adequately fund
research on nanomaterials and the development of technology to test,
quantify and analyze nanomaterials and our exposures to those same
nanomaterials in consumer products and most importantly to determine
what, if any, hazards result from such exposures.
(5) Rule Review
Sometimes, government overlooks outdated regulation when it is
clear that new information, data, or technology provides a better
solution to a historical problem. The CPSC should regularly revisit its
regulations, especially when it is clear that certain rules are
potentially unduly burdensome to various stakeholders. Presidential
Executive Orders 13563 Improving Regulation and Regulatory Review,
13579 Regulation and Independent Regulatory Agencies, and 13610
Identifying and Reducing Regulatory Burdens state the same principles.
I proposed an amendment to the FY15 operational plan that was
accepted and that directs staff to review the more than 40-year-old
fireworks rule in light of current fireworks technology and provide the
Commission with a briefing package on options to possibly revise this
rule. After visiting fireworks manufacturing, production and testing
facilities in Liuyang, China several months ago, and understanding the
burdens on manufacturing and testing to the current CPSC standard, I
was convinced this standard needed to be reviewed. I look forward to
receiving a recommendation from our technical staff on this issue in
FY15 and to the notice of proposed rulemaking included in the CPSC FY16
budget. I also voted in favor of Chairman Kaye's mid-year amendment
instructing staff to draft a CPSC Retrospective Review Plan for the
Commission's consideration. I look forward to reviewing their proposal.
Another issue with which I have become intimately familiar is the
desire of many of the CPSC's key stakeholders, as well as all five
Commissioners, to reduce certain third party testing burdens for
children's products while assuring compliance with all applicable
rules, bans, regulations, and standards. It is my understanding that
many of you on this Subcommittee are deeply concerned with CPSIA's
potentially burdensome third party testing requirements for children's
products as well. I recently partnered with Commissioner Buerkle to
elevate the priority of a burden reduction-related project as part of
our mid-year funding cycle, and was pleased that the Commission voted
unanimously in favor of this change. I am also pleased that we voted as
a Commission to release three upcoming burden reduction rule proposals
as ``direct to final'' rules, which should expedite the implementation
of our burden reduction efforts.
In FY15, Congress provided the CPSC with $1 million to conduct work
targeted at meaningful reduction of third party testing costs of
children's products consistent with assuring compliance with all
applicable rules, regulations, bans, and standards. I have spent much
time on this issue since I arrived at the CPSC. I have had detailed
discussions with staff and many stakeholders, visited toy manufacturers
and testing facilities both in the U.S. and China, attended the CPSC
Workshop on this issue, and reviewed stakeholder comments. I know that
all five Commissioners are deeply committed to this issue and I am
hopeful that we are going to see real, concrete change soon. I expect
to receive a recommendation from staff by the end of the FY15 and
hopefully, as is directed in the FY16 budget, receive a recommendation
for a final rule next year.
Ensuring the Safety of Recreational Off-Highway Vehicles
One area that has been receiving a great deal of attention both at
the CPSC and in Congress is our proposed mandatory rule to make
recreational off-highway vehicles (``ROVs'') safer.
On October 29, 2014, the CPSC voted to publish a notice of proposed
rulemaking (``NPR'') proposing a mandatory standard for ROVs. I was
proud to vote in favor of this important first step in addressing the
unreasonable risk of injury and death posed by ROVs. Many ROVs, as
currently designed, are unreasonably dangerous. Among the hazards
associated with these dangerous ROVs are their high propensity to roll
over, and the fact that they exhibit unpredictable handling, which
contributes to rollover risk. CPSC's data show that in the vast
majority of ROV incidents involving injury and death, the ROV rolled
over.
For many years before the NPR, CPSC engineers and representatives
of the Recreational Off-Highway Vehicle Association (``ROHVA'') and its
members had ongoing communications concerning a proper safety and
testing standard for ROVs. ROHVA developed a voluntary standard in 2011
and, again, in 2014 through an American National Standards Institute
(``ANSI'') process known as the canvass process, which it led and
dominated. As part of that process, the CPSC engineers informed ROHVA
repeatedly that, based on CPSC testing and accident data, they did not
believe either of the ROHVA/ANSI voluntary standards went far enough in
making ROVs safer for consumers, particularly with respect to vehicle
stability, handling, and occupant protection. Further, based on CPSC's
experience with the Yamaha Rhino repair program, CPSC engineers
informed ROHVA that the changes that would be required to meet the
safety requirements advocated by the CPSC are relatively easy and
inexpensive to make.
When the CPSC concerns were not addressed in the draft that became
the 2014 ROHVA/ANSI standard, CPSC staff proposed a mandatory standard
that included the safety measures they had repeatedly and
unsuccessfully asked ROHVA to incorporate in the voluntary standard.
CPSC's proposals in this NPR included a thorough analysis of the draft
2014 voluntary standard, which was identical in all key respects to
what became the final voluntary standard. CPSC engineers are confident
that compliance with the proposed mandatory standard would make ROVs
much safer than compliance with the ROHVA/ANSI voluntary standard
would. Their position is based on CPSC's thorough accident and testing
data.
Since CPSC published its NPR, CPSC has dedicated significant staff
time and resources meeting with industry representatives. CPSC staff
has been listening with an open mind to industry's comments on the
proposed rule. Industry finally appears to be willing to rethink the
inadequate 2014 voluntary standard. On June 2, 2015, ROHVA informed
CPSC's staffs that its board has decided to reopen the voluntary
standard. ROHVA also expressed its hope that CPSC would be engaged in
the voluntary standard process, as it has been throughout. This is very
encouraging news, and is exactly what CPSC has been urging industry to
do. Only industry has the power to revise the voluntary standard. Some
of my fellow Commissioners and I have repeatedly urged industry to
improve the voluntary standards so that a mandatory standard will not
be needed. We are pleased to see that they have taken a first step in
that direction.
The pace of industry's progress on improving the safety of their
products has increased exponentially since the CPSC published its NPR.
It is clear that the threat of a mandatory standard was the catalyst
for these positive developments. CPSC and industry have been working
closely together to address these safety concerns over the last several
months. The unreasonable risk to life and limb posed by ROVs compels
CPSC to continue working towards completing a mandatory standard, but,
as we have stated repeatedly throughout this process, we would like
nothing more than to see industry develop a robust voluntary standard
that would obviate the need for such a mandatory standard.
Unfortunately, all this progress may be put to an end if the
pending ROV In-Depth Examination Act (``RIDE Act'') becomes law. The
RIDE Act is a misguided piece of legislation. The RIDE Act would delay,
if not derail, improvements in ROV safety, and thus result in
unnecessary deaths and injuries. The RIDE Act would essentially halt
CPSC's current rulemaking, thus removing the very incentive that has
finally spurred industry action to curb the risks posed by ROVs.
Second, requiring CPSC to contract with the National Academy of
Sciences (``NAS'') to study CPSC's proposed standard would be a waste
of taxpayer money. CPSC would have to pay NAS hundreds of thousands of
dollars to carry out tests that CPSC is already undertaking as part of
the development of the final rule. Third, diverting scarce CPSC
resources to a contract with NAS would prevent CPSC from fully engaging
in the newly reopened voluntary standard process. Finally, the NAS
study would require an examination of the impact of the proposed rule
on ROVs for military use. Nothing in our proposed rule effects military
vehicles, nor is it within our purview.
The comment period on the proposed rule is still open. CPSC is
actively testing and analyzing the current proposal as part of the
development of the final rule. CPSC and industry are actively and
productively engaged in discussions on the best way to make ROVs safer.
Industry has also heeded CPSC's call and reopened the voluntary
standards. It would be tragic if the RIDE Act derailed these lifesaving
developments.
Conclusion
Finally, this is my first job in government and I continue to learn
many new things every day. This is one of the most rewarding positions
I have held in my career. As I said before, I am grateful for this
opportunity to be a Commissioner at the CPSC and to testify before you
here today about these extremely important and mission-critical issues.
Nevertheless, there are some discouraging things about this job,
most prominently the length of time it takes to get a mandatory
standard passed when industry refuses to pass an appropriate voluntary
standard that adequately reduces the risks of death or injury. While I
understand the process takes time, it is frustrating that consumers
continue to be unnecessarily at risk and harmed.
I have learned much about Sections 7 and 9 of the Consumer Product
Safety Act (CPSA) that are unique to the CPSC. These provisions require
the CPSC to not only do a cost/benefit analysis of the regulatory
choice we have made--a requirement of all regulatory agencies under
Section 553 of the Administrative Procedure Act which I very much
support--but also of each and every regulatory choice we rejected. This
is extremely burdensome and time consuming and results in needless
delay in passing safety standards that are truly needed to properly
protect the public.
When Congress relieves the CPSC of the unique requirements of
Sections 7 and 9, the rulemaking process moves forward more effectively
and efficiently--as it did when a bipartisan Congress tasked the CPSC
with passing drywall safety rules, and with mandatory rulemaking under
CPSIA on durable infant products. Since the passage of CPSIA seven
years ago, the CPSC has issued 14 final rules on durable nursery
products. Compare that with a total number of 10 rules completed since
1981 when Congress amended Sections 7 and 9 of the CPSA. History shows
us that when Congress wants effective, efficient, and timely
rulemaking, Congress directs CPSC to use APA Section 553 rulemaking.
The APA Section 553 process is the most appropriate process to use for
critical consumer product safety rules. I am hopeful that Congress will
provide the CPSC with many more opportunities to address unreasonable
consumer product hazards by conducting rulemaking under APA Section 553
in the future.
I want to end on a positive note and say that that I am proud of
having been a part of the CPSC's work since 2013. One example of
government working at its best was our rulemaking on small rare earth
magnets sets.
In 2012, pediatric gastroenterologists came to the CPSC when they
found a precipitous increase in young children being severely injured
from swallowing these tiny magnets with eight times the magnetic force
as is allowed in children's products. When more than one was swallowed,
the child's intestines would clamp together from the magnetic force
causing blood flow to be cut off and, because the parents often did not
know the child had swallowed magnets and the first symptom was
vomiting, the diagnosis was frequently delayed until permanent
intestinal damage had been done. The CPSC worked with various industry
members including retailors and others to educate people on the hazard,
do recalls and, ultimately, prepare the mandatory standard that
requires magnets sold in magnet sets to either be the much-weaker
strength allowed in children's products or be large enough that a child
cannot swallow them. The CPSC worked with interested parties and
stakeholders to get this right. I am proud that I was able to be a part
of this process.
Thank you again Chairman Moran, Ranking Member Blumenthal, and the
Members of the Subcommittee on Consumer Protection, Product Safety,
Insurance, and Data Security, for this opportunity to submit this
statement for the record.
Senator Moran. Commissioner, thank you. Thank you all for
your testimony. Commissioner Mohorovic indicated in his
testimony--I think this is what you were saying, 80 percent of
the recalls are associated with imported products.
Chairman Kaye, tell me how that statistic fits into the way
the Commission operates, where its focus is, and how it
establishes priorities to address that statistic, if that
statistic is true, and then tell me how the RAM pilot program
is designed to address that issue.
Mr. Kaye. Thank you, Mr. Chairman. That is an accurate
figure, Commissioner Mohorovic is absolutely right. I think
that data is from around 2008 through the present.
We do try to focus our efforts, and this is why we made the
proposal that we have, to try to build out our import work
because we feel it is far more efficient and far more effective
to be interdicting these products at the ports before they get
into our markets.
It is just not as efficient as a government agency at that
point once they have been disbursed to try to capture them once
they have hit store shelves and pull them off, and we also know
that when they are in consumers' hands, it becomes that much
more challenging.
We feel like, and this is why we made the proposal we did,
and I think this is why Congress included Section 222 in the
CPSIA, that it is a far more effective system for our efforts
to be located at the ports, and I thought Commissioner
Mohorovic in particular did an excellent job in focusing his
testimony on the value of this system.
The way we imagine the full blown system working is that we
would have better targeting data. We would be able to cover
many more entries that come in. Right now, we are only looking
at about 200 of the harmonized tariff codes that apply in a
product area, and we would expand that to tens of thousands of
harmonized tariff codes on products within our jurisdiction.
We would have a far greater reach to be able to detect
those non-compliant and dangerous products that are coming in,
and importantly, get them before they get to the ports and
certainly before they pass through the ports and get into
consumers' hands.
Senator Moran. Chairman, tell me about the relationship
between this full build out of RAM and the 1110 rule on e-
filings and how they fit together. Is one a necessary
ingredient of the other?
Mr. Kaye. Correct. I think the most important contextual
piece to all this is the President's Executive Order from a
year ago February which requires by December of 2016 that 47
Government agencies, of which CPSC is one, with presence and
authorities at the ports, create a single window for entry and
exports, so for an entry--we are focused on entry, obviously
not export--for an entry entity, instead of having to work
agency by agency to deal with those agencies and to understand
the issues, everything would go into a single portal, and
importantly, on the back end what would happen is that would
get transmitted electronically to all the other agencies that
have jurisdiction over those products, and then there would be
an important messaging communication capability.
What you have right now, when a product is stopped at the
ports, usually it is only Customs and Border Protection that
the entity has visibility with, but it may have been the FDA,
it may have been us, it may have been EPA, another agency that
may have put the hold on that product for very legitimate
reasons, but the company does not know that.
There is no visibility of that. They do not know why it was
held, they do not know who held it, and they do not know
importantly when it is going to get released. We appreciate the
fact that first of all it is frustrating for them not to know
that, but there are real dollars associated with any delays
involved in that process.
The single window envisions having a two way messaging so
there would be instant communications with the importers so
they understand who is holding it, why they are holding it, and
importantly when it will be released.
That single window is the larger concept in which all this
fits. Our 1110 rule or so-called 1110 rule would require
electronic filing as the CPSIA allowed so that we would be able
to participate in the single window, and I think that is a
critical component.
It does not make sense to have a 46 plus 1 system,
especially when you consider the vast jurisdiction of CPSC's
areas.
Senator Moran. In this particular area, you seem to be
concerned about the cost to the importer, to the business.
Commissioner Buerkle in particular pointed out the associated
costs, the regulatory environment, the increased expense of
doing business with this program.
How do you expect to address those concerns, the ones
raised by Commissioner Buerkle? Is there a cost/benefit
analysis? I know you are not required to do the benefit side.
You are required to do the cost side. I assume you are
interested in the consequences of this pilot program and the e-
filings and what it would mean to the cost of doing business in
the United States.
Mr. Kaye. We are. I think all of those questions are viewed
in the process that we are undertaking. We have actually moved
in an incredibly slow and methodical way, and we have had,
really I would imagine from my perspective in almost 5 years at
the agency, almost an unprecedented amount of consultation with
the trade.
We set up a working advisory committee group with the trade
to make sure we were getting that kind of feedback. We have had
a number of meetings, both closed, to consider some of the
proprietary information, as well as open meetings. We are now
moving to another step with Customs and Border Protection where
that dialogue will continue.
At each stage, we are trying to take into consideration
what is the right balance to strike to make sure we are
focusing on those folks that we should be focusing on, and
those who are following the rules are moving their stuff
through more quickly as the system would envision.
I think it is important to point out that is why we asked
for a user fee, because a user fee, unlike general
appropriations, gives us the flexibility to make sure,
hopefully downward, that we are adjusting that fee based on
real life circumstances as opposed to just taking a set sum of
money and trying to make that solve the problem.
Senator Moran. Commissioner Buerkle, any response to either
my questions or what the Chairman indicated?
Ms. Buerkle. Thank you. Any of my comments that I am going
to make really should not be construed as being opposed to
import surveillance and increasing our presence at the ports. I
think that is all very good. My concern is that number one it
is an extremely complex issue, as pointed out by my colleagues.
We are looking at it like this and we should be looking at it
as the components are separate.
If we talk about the existing RAM, in our mid-year ops
plan, we had some excess money, we made an allocation of $3
million so we could purchase the software of the current RAM
system and then we can have more control over the parameters
and the rulemaking for that system. I think that will allow us
right now to enhance the current RAM program.
We also are in the process of getting a requirements
analysis done to expand the RAM. That is going to cost the
agency about $1 million.
Why are we talking about and asking for more money or even
discussing a user fee until we know what the needs are and what
the costs will be of that expanded RAM?
That is the next piece of it. Then the 1110 rule, and I
want to agree with the Chairman, there has been unprecedented
engagement on that issue, but my concern is when the rule came
out, there was a tremendous amount of opposition to that
proposed rule, and we have had all of this engagement, but now
close to 2 years later, we are going to put out a rule, we are
going to conduct a pilot, and basically we are using the exact
same elements and components of that proposed rule.
Again, we had those engagements but we have not implemented
the concerns, and my hope is that the agency would take on this
pilot and they can have several small pilots, but pilots that
are small enough, manageable enough that we do not bring trade
to its knees, and that we get an understanding of simple, and
as we begin to develop it, we can get to the more complicated
scenarios, but the pilot would be incremental rather than one
size fits all, move ahead full speed.
Senator Moran. Thank you very much. I know a number of
questions will follow on this topic, perhaps from Senator
Blumenthal.
Senator Blumenthal. Yes, I do have a number of questions,
but I am hoping also we will have a second round where we can
explore some of the other issues as well.
There is no question in my mind and I hear no dissent on
the issue here that import surveillance is of tremendous
benefit to consumers, but also frankly to American businesses
that play by the rules and do not put lead paint in their
products, do not produce defective tires, as the Chinese have
done, stopping defective or dangerous products at our Borders
is a benefit to American business as well as consumers.
I support the expansion, and I hear differences in our
panel only as to how quickly it is done, and what the
methodology should be.
Chairman Kaye, let me ask you to respond to the point made
by Commissioner Buerkle. What would be the cost? Do you have a
cost estimate for a full scale national program?
Mr. Kaye. So, there are three different components,
Senator, and we had made an estimate based probably at this
point on outdated information, but the best we had at the time
back in 2011 when we reported to the Congress on the status of
the pilot, and there is an IT component, a personnel component,
and then there is also a lab capacity component, to make sure
that at every stage we can handle the increased volume.
We need more folks at the ports if we get this funding
mechanism. We certainly need an enhanced IT system to be able
to build out, and then we need the capacity to be able to
handle all the samples that come from pulling these potentially
violative products and to test them in a timely fashion.
My recollection is the IT component was probably about $60
million. I think what we are looking at overall is about $36
million per year of an import program. It is currently funded
at $17 million a year, so we are talking about increasing it by
$19 million.
I do think it is important to address the point of the
timing of it. If Congress, and we hope Congress does, but if
Congress were to approve a user fee authority, it does not go
into effect immediately. It would still take years of notice
and comment rulemaking and working with the trade and trying to
refine the proposal, and frankly, working with this committee
and working with Congress to make sure we got that number
right.
I do not think we can move much more slowly at this point,
and I think there is a real risk as I mentioned when 2016 hits
that if we are not part of that single window, that is going to
slow things down.
Senator Blumenthal. Just one Senator's opinion, I hope you
will move more quickly. I have no question, none, about the
constitutionality of this system. It is of obvious benefit. A
user fee is well precedented in our experience as a means of
paying for this kind of program. I think it will help save
lives. I hope you will move as quickly and expeditiously as
possible.
As important as import surveillance is, because it keeps
dangerous products off the shelves, before they reach the homes
of consumers, I am also concerned about more robust mechanisms
to recall products once they have entered the market.
There is a report, you may have seen it, Kids in Danger, a
non-profit organization dedicated to protecting children by
improving product safety, issued a report in February showing
what strikes me as truly dismal recall effectiveness
statistics.
This is a really urgent and important problem. According to
the report, the vast majority of consumers who own a recalled
product never find out about it, about the recall. Nearly 80
percent of all recalled children's products are still in the
hands of those children as opposed to the manufacturer, the
retailer or distributor, and of those recalled products that
had reached consumers, only four percent are returned,
destroyed, or fixed. Only four percent of all those dangerous
products are returned, recalled, or fixed.
The question I have for you, Chairman Kaye, is what
additional enforcement tools do you think are necessary to make
sure that manufacturers do their part to ensure that consumers
promptly remove potentially hazardous products from their
homes.
And specifically in 2013, as you know, the CPSC issued a
Notice of Proposed Rulemaking which would make a manufacturer's
corrective action plan legally binding. What is the status of
that rulemaking?
Mr. Kaye. Senator, thank you for raising the issue of
recall effectiveness. It is one of those topics where I feel it
cannot get enough attention because of the frustration that we
face and really all Federal agencies with recall-related
authorities have faced for decades.
I note, for instance, NHTSA recently had a forum on recall
effectiveness, and if folks are having a hard time or not
paying attention to taking their automobiles in when there is a
recall, then I think that gives you a sense of the problem.
We have certainly looked at this a number of times in a
number of different ways, and we are very grateful for the Kids
in Danger report for putting it in relief how stark the numbers
can be. I have had discussions with our compliance staff about
trying to figure out what more we can do once a recall is
announced to make sure we are really following up on certain
recalls, those of the highest priority, to try to get
consumers' attention to take more action.
All recalls are not alike. There are some recalls that I
think it is good to issue them, but in terms of really devoting
the resources, there are other recalls that have much more of a
life saving aspect to them, and I would like to see our staff,
and this is a discussion we have had, I would like to see them
really dedicate more resources to discerning better between the
two different types of recalls and focusing more post-recall
announcement effort on those recalls that really need the work.
Senator Blumenthal. What about the rulemaking on the
corrective action plan?
Mr. Kaye. This was a proposal that came up a couple of
years ago when there was a different configuration of the
Commission, and the staff has proposed a template basically for
how voluntary recalls should be processed.
When it got to the Commission level, there were a series of
amendments that certainly made the rule more controversial.
When I took over this position about a year ago, I made it
very clear then and I have said it on a number of occasions,
that with such limited resources, I wanted to make sure the
agency was focusing on those rules that were addressing
persistent long term hazards, ROVs, window coverings, those
types of issues where lives were being lost on a regular basis
because of those products, and if we were able to turn our
attention to items like the voluntary recall notice rule, it
would be great if we could.
There is certainly value to it, having more of a systemized
process. I know some of the other Commissioners, Commissioner
Robinson in particular, feels very strongly about it. My hope
is that we can figure out as a commission a way working
together as a group to come up with a compromise that we feel
like will further consumer safety and accelerate the process.
Senator Blumenthal. Thank you. My time has expired. I want
to come back to this issue. I think you have answered it well,
particularly in light of Commissioner Robinson's very important
testimony about gathering and analyzing data and the need for
more transparency and facts when we view and evaluate the
effectiveness of a recall.
Thanks, Mr. Chairman.
Senator Moran. Thank you. Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman. I want to talk
about this issue of voluntary standards, and particularly as it
relates to recreational off highway vehicles.
Last month this committee passed the Recreational Off
Highway Vehicle bill, which I co-sponsored, postponing the
Commission's controversial ROV rulemaking. Mr. Russ Ehnes is a
gentleman from Montana. He is executive director of the
National Off Highway Vehicle Conservation Council located in
Great Falls.
He says at best when describing the benefit and safety
aspects of ROVs for farmers, for ranchers, for sportsmen, and I
quote, he says ``There is no doubt that we are seeing
increasing numbers of vehicles as riders transition from ATVs
and 4x4s to ROVs. More and more Montanans are realizing the
benefits of the latest ROVs. They are very comfortable. They
are inexpensive to operate and maintain. They are practical.
They provide access to places that Montanans want to go, and
most of all, they are safe when used responsibly.
The manufacturers themselves will tell you these vehicles
were not designed to be operated on streets and on highways.
They are not safe when used at high speeds on asphalt surfaces.
The CPSC statutory authority requires it to rely on
voluntary standards rather than issue mandatory standards
whenever compliance with a voluntary standard would eliminate
or adequately reduce the risk of injury identified and there is
likely there will be substantial compliance with the voluntary
standard.
I was struck by the term Commissioner Buerkle used around
trying to ``inspire'' cooperation. Contrasting that perhaps
with inspiring conflict. As somebody who spent 28 years in the
private sector in businesses prior to coming to Congress, I
would hope the former versus the latter would be the culture we
try to continue to incentivize.
For the Chairman, why did the CPSC rush to issue the Notice
of Proposed Rulemaking on ROVs when further testing was
necessary and the industry was already developing new voluntary
standards?
Mr. Kaye. Thank you, Senator. I am really glad you raised
this issue because I think, especially considering where we are
in the current status of the discussions between staff and the
ROV industry, it is a great example potentially of how this
process should work with all parties playing their parts.
I would respectfully disagree that we rushed, considering
that the ANPR, the Advanced Notice of Proposed Rulemaking,
preceded the Notice of Proposed Rulemaking by about 5 years, so
a lot of work, a lot of study, a lot of testing had already
gone into it over those years to try to refine a proposal that
the staff felt like would maintain the utility and
functionality of ROVs but would also address some of the
unnecessary features that were leading to an unreasonable risk
of injury and death, which we still continue to see--75 or so
deaths per year associated with those products.
The Commission definitely did not move quickly, and at the
time the Commission proposed the NPR, what industry has told us
was they had just updated their standard, our staff had
evaluated that, had participated actually in the process of
getting to the point of when that standard was finalized, had
continually weighed in and expressed its concerns about where
there were perceived shortcomings.
When the industry told us they were done updating their
standard, I felt it was time for the Commission to move ahead
on the Notice of Proposed Rulemaking.
Senator Daines. Was there any particular data that really
compelled you to take action now?
Mr. Kaye. Yes, I think the yearly death totals and the fact
that children continue to be harmed, maimed, injured severely
by these products.
Senator Daines. Of course, on these products, there is
always a choice. I guess as somebody who grew up in Montana--
there is inherent risks certainly, and we want to reduce the
injuries, but if you are not in an ROV, there are other choices
that can be more hazardous as well, the bottom line on this.
I grew up around horses. That is an alternative. There is a
lot of risk in taking a horse up in the back country as well.
I want to ask Commissioner Buerkle and perhaps Mr.
Mohorovic, do you agree with that assessment, and what specific
steps should the CPSC have taken and cooperatively worked with
stakeholders to ensure the actual safety of ROVs? Commissioner
Buerkle?
Ms. Buerkle. Thank you, Senator. I can only speak to the
period of time I have been at CPSC, which is almost two years.
When I arrived there, the ANPR was in place, as the Chairman
mentioned, but then the NPR, we had to vote on the NPR, we
received the package as we always do for the rule, and I must
respectfully disagree with the Chairman because it was my
admonitions and my concerns because we had bipartisan letters
from the Senate saying do not go forward with a mandatory
standard, try to find a solution with a voluntary standard,
that is a better way to go.
To the Chairman's credit, we did have a technical meeting
in September, and that was really the first time there was real
engagement with our technical staff and the industry's
technical staff, and that was very fruitful, and what it
revealed was there was a willingness on both sides to work to a
voluntary standard and reach reasonable agreement.
That was even more of an impetus to delay, to stop the
rulemaking and to get back to the voluntary standard, and that
has been my position right along, and now we are at a point
where I personally think that the rule should be withdrawn.
We are at a place where industry and our staff are working
together to get to a place and an agreement with a voluntary
standard. That is a goal we should inspire, we should really
aspire to, because that is the best outcome. That is a win-win
for everybody.
Senator Daines. I am out of time. Mr. Chairman, thank you.
Senator Moran. Thank you. Senator Heller?
STATEMENT OF HON. DEAN HELLER,
U.S. SENATOR FROM NEVADA
Senator Heller. Thank you, Mr. Chairman. I want to continue
on what my friend from Montana was questioning about, on these
ROVs, but I want to thank you and the Ranking Member for
today's hearing. I appreciate it. I think these oversight
hearings are critical in ensuring product safety and consumer
safety.
I, too, would like to discuss the Commission's proposal
that would impose a mandatory safety standard focused on the
lateral stability and the vehicle handling and other related
issues for recreational off highway vehicles.
As the Committee is well aware of, I have had long concerns
over this rulemaking, and I have strong concerns that these
proposed standards will actually make the vehicles much less
safe and much more dangerous. That is where we are today. Your
ideas, your direction, is going to make vehicles less safe and
more dangerous.
We have a commission that is treating these ROVs like road
vehicles and not the vehicles that were intended for, and that
is for rugged terrain. I was pleased to know that Commissioner
Robinson finally sat in one. Long overdue probably for someone
who has to make these rules. Unfortunately, it was done in a
test case in a facility that I am sure had them on asphalt, did
not have them on rugged terrain, but on some testing facility
that is supposed to guarantee to show they are not safe, and
that is unfortunate that is where we are.
Last year, a bipartisan group of Senators including myself,
Manchin, Klobuchar, McCaskill, Blunt, Ayotte, Fischer, and
Wicker all sent letters, and you mentioned that, urging the
Commission to abandon its proposed mandatory standards in favor
of a voluntary consensus standard. Unfortunately, things have
not progressed as we had hoped as Senators and that is why
Manchin and I introduce the SAFE Act--the RIDE Act.
Our bill, which passed this committee on May 20 by a strong
bipartisan vote, would help seek to answer technical questions
surrounding this particular mandate. It would put the brakes on
the CPSC's proposal until the National Academy of Sciences
completes a technical study on the proposed requirements.
I think we can all agree it is important we get to the
engineering and technical issues right, ensuring that any
mandate, voluntary or mandatory, actually contribute to an
overall increase in safety, making these vehicles safer, which
I believe is everyone's goal.
Mr. Chairman, do you believe the industry's goals are to
make these vehicles safer?
Mr. Kaye. I believe, Senator, that the industry certainly
does not want to have the consumers of their products
experience an unreasonable risk of injury. I just think they
might have a different risk tolerance or definition of what
``unreasonable'' would be than we might.
Senator Heller. What is the difference between your risk
tolerance and theirs?
Mr. Kaye. I think from my perspective, and this is just me
speaking, I am not speaking for any of the commissioners or the
Commission itself, my sense of it is that because our statutory
obligations require us to consider foreseeable misuse, meaning
if somebody chooses not to wear a seatbelt, which many people
we know choose not to do, or somebody chooses not to wear a
helmet, as many people choose not to do, statutorily, we are
still obligated to consider those factors as part of what is
unreasonable or not.
Whereas, I think industry, understandably, I get it from
their perspective, they view anybody who chooses not to wear a
helmet or not to wear a seatbelt as assuming risk and having to
deal with the consequences of that, and that might not be the
first group of consumers that they are trying to take care of.
Senator Heller. Do you believe every driver or passenger of
an ROV should wear a seatbelt or helmet?
Mr. Kaye. I do.
Senator Heller. Under any circumstances regardless of what
terrain they may be on?
Mr. Kaye. Well, you are talking to somebody who has two
young boys who is trying to reinforce a message especially when
you are in a moving vehicle of that nature or on some type of
bike or playing a sport, where you should take care of your
head, and head injuries and brain injuries has been a
particularly important area for me, so certainly I am going to
say a helmet, absolutely.
Senator Heller. Right.
Mr. Kaye. In terms of a seatbelt, if you are going five
miles an hour and you are jumping on and off the vehicle, I can
understand from the utility perspective where that might not
make as much sense.
Senator Heller. Do you own an ROV?
Mr. Kaye. I do not, but I do not think I would be allowed
to where I live.
Senator Heller. Have you driven or rode on an ROV?
Mr. Kaye. I have sat on them but not while they were
moving.
Senator Heller. That does concern me. You said in a hearing
recently that an adequate voluntary standard is the preferred
solution. Do you still feel that way?
Mr. Kaye. Absolutely.
Senator Heller. You had a recent meeting with the off road
industry. I understand there were productive discussions. Is
that accurate?
Mr. Kaye. Yes, I believe that is accurate.
Senator Heller. Do you think you are nearing an agreement
on voluntary standards?
Mr. Kaye. That is the report I have been getting and I have
to admit I have been surprised by that because you are talking
about years of an industry and agency staff that have not had a
lot of trust, but in the last six or so months, I would say
something significant has happened, and we are in a much
different place, so I really hope that is where we get.
Senator Heller. Would you anticipate extending rulemaking
at this point or at a minimum extending the public comment
section on this issue?
Mr. Kaye. We have already extended the public comment
section by a long period of time. I think at this point it is
closed, that we received a significant number of comments.
I am concerned about if we keep extending the comment
period and folks keep submitting comments, that is going to
take CPSC staff off the productive dialogue that is going on. I
am hesitant to get in the middle of that and do anything that
is going to change the dynamics because I really do think this
is in a unique place and we all have our fingers crossed that
this is going to result in a win-win.
Senator Heller. Thank you. Mr. Chairman, my time has run
out.
Senator Moran. Thank you. Senator Booker?
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. I have ridden one.
Senator Heller. So have I, by the way.
Senator Booker. Somebody should have stopped me because I
was kind of reckless on the one I rode.
Senator Heller. Were you wearing a seatbelt?
Senator Booker. I did not use my seatbelt, and I cannot
confirm or deny what I did on that ROV.
From the ground, I would like to go to the sky. It seems
stunning to me that we have this slant that goes sort of away,
that the system is so skewed against when it comes to drones
and UAS technology, it is slanted against universities and
reputable U.S. businesses, when it comes to using drone
technology. Other countries shooting out way ahead of us,
saving money, doing things quicker in time, saving lives.
Here in the United States we have a regulatory regime that
to me is outrageous and restrictive when it comes to drone
technology, but when it comes to the other side of that, when
it comes to recreational users, there are virtually no limits
really put on users, although now they cannot fly around the
White House. I just think something is wrong with that.
Often what gives the commercial efforts a bad name is all
the problems we are having with recreational users.
Do you agree that these products could use the expertise of
CPSC to ensure the safety of the use of these devices, and is
it time now, is this an area where we should have voluntary
standards for our drone technology? Anybody can take that if
they would like.
Mr. Kaye. I will jump in because I am sure I will get no
objection from----
Senator Booker. Have you ever used a drone yourself. No, I
am joking.
[Laughter.]
Mr. Kaye. Certainly not while riding an ROV. I do not want
to get in the way of our sister agency, the FAA, but my sense
of it is they have primary jurisdiction. I think that is
something we will have to explore more fully. On the larger
picture of voluntary standards, absolutely. We always
encourage, as early as possible, voluntary standards to try to
get ahead of these issues, and I will just quickly talk about a
couple of other emerging technologies, 3D printers, wearable
technologies, and also remote control devices like remote-
controlled home appliances, all those are areas that we are
trying to work with industry partners similar to drones to try
to get ahead of the issues and provide a playing field and
ground rules that everybody can live by and take advantage of
those technologies.
Senator Booker. That is encouraging. I will just add you
gave me a perfect transition when you said ``playing field.''
Senator Heller and I both used to wear football helmets, we
stopped last week. No. I mean when we played football in
college. Obviously, concussions is a big, big problem.
I am wondering if you could sort of update me on where your
thoughts are, how big a priority is this for you. It is
actually a very, very serious reality going on for athletes. I
know back in my days playing, I am a guy that got knocked
unconscious, you just get yourself right back out there.
Obviously, the helmets themselves, especially some that are
being advertised now as stopping concussions, it is just not
the case. I am curious where you all are.
Mr. Kaye. Thank you, and I have a feeling Senator Udall is
going to ask about this topic as well, so I might have more
time than I think.
I cannot do justice to this topic in just five or ten
minutes, there is no doubt about that. There is no issue that I
have spent more time on as a single issue since I have been at
the Commission than brain injuries in youth sports, bar none.
My take on it is we absolutely want kids playing sports,
let's just make that very clear and put that out there.
Everyone agrees, I think, we want kids to play sports. They
offer tremendous benefits, whether you are playing an
individual sport or a team sport.
The issue is how do you play those sports, how do they
engage in those sports in a way that do not impact their brains
long term. As frustrating as it might be for an athlete and as
career-devastating as it could be to deal with an ankle, a
knee, a shoulder, an elbow, what have you, you cannot function
in your life if you have a degenerative brain condition,
especially one that continues over time and erodes your
executive function and takes away all of your abilities to make
decisions.
Sadly, that is what we have seen. I believe the answer to
this while we wait to see if a product, and I say ``if,'' if a
product is the solution, is culture change. I will liken it to
this bottle. When many of us grew up, we did not recycle these
because that did not exist. Now, if I try to throw this bottle
out, I would not, but if I tried to throw this bottle in the
garbage, my 10-year-old son would call the police on me, and
that is the kind of culture change I think we need in youth
sports.
We need kids that when their coach tells them in an
uninformed way go out and do this, tackle this way, they say I
cannot do that, I have to take care of my brain. We have been
working very closely with the five professional sports leagues
to try to get them to drive the message much more strongly and
in a coordinated fashion to the youth levels and to parents to
make sure kids are taking care of their brains.
There is a limit to what you can expect from a product. I
think DeSean Jackson, before he was cut by the Eagles a few
years ago, he took a hit against the Falcons going over the
middle and he got hit in the shoulder. His head was not engaged
whatsoever, so there was nothing for a helmet to do, and he
ended up with a concussion.
There is only so much you can ask of a helmet, and if you
consider that a helmet is like an egg with your brain, if you
take an egg and you wrap it in bubble wrap as much as you want,
you could probably drop that egg and not crack it, but the yolk
is still going to bounce around in the inside, and it is the
same thing with the helmet.
You can wrap your head in whatever you want to wrap it in
and bang your head against the wall and not get a skull
fracture or brain bleeding, but you are likely to have your
brain banging around in the inside, and we do not know enough.
There is so little science to understand what those injury
mechanisms are, what is the dose-response for the acute
concussion issue and the long-term CTE issue from a chronic
nature to understand that.
We are trying to drive culture change to minimize the hits
to the head as what we see as the best solution at this point.
Senator Booker. Thank you, Mr. Chairman.
Senator Moran. Senator Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Mr. Chairman. Thank you, Senator
Booker, for your questions on that. I think it is tremendously
important and knowing you two guys were knocking heads, that
explains a lot of things.
[Laughter.]
Senator Udall. Chairman Kaye, thank you for that very good
explanation there. I know you have a passion for this. There is
absolutely no doubt that parents want their kids to play
sports, sports are a healthy activity, and I think it clearly
outweighs the risk.
As a result of that, you know I have worked on this issue
for a while, and in the 113th Congress, this committee approved
my Youth Sports Concussion Act, which deals with product safety
standards and misleading advertising claims.
Since 2010, I have been urging this entity here, the CPSC,
to ensure football helmets meet a safety standard that
addresses concussion risk and reflect the state-of-the-art in
helmet technology.
I can just say I am alarmed by the lack of progress by
NOCSAE, and I think you all know what NOCSAE is, in updating
its voluntary industry helmet standards.
To make a couple of points here on NOCSAE, NOCSAE does not
meet the requirement of the American National Standards
Institute for Standard Developers. This is a code of good
practice. It helps ensure balance of the interests. There is no
youth specific football helmet standard. There is no NOCSAE
requirement that all helmets be reconditioned on a regular
basis.
Chairman Kaye, I have a yes or no question for you, are you
satisfied with how NOCSAE develops and maintains the current
voluntary industry standards for football helmets?
Mr. Kaye. No.
Senator Udall. Tell me why.
Mr. Kaye. You touched on a lot of it, Senator. They
obviously do not even follow the ANSI process, so there are
certain aspects to their process that we do not have a window
to because they are not as transparent.
When the issue broke, and thank you for your leadership
because you have really been the biggest champion in the U.S.
Congress in both the Senate and the House on this issue.
When this issue broke, as you well know, in October 2010,
at that point we really had no access at all to the NOCSAE
process, and we had to negotiate with them to allow us to
participate just as observers, because we cannot participate,
the Commission staff cannot participate unless it is an open
meeting, they had to open up, and they only opened up just a
portion of their meetings so we could be there, and then they
closed the rest of it.
There is a lack of transparency. From having worked with
the NOCSAE staff and gotten to know them, I do not think it is
their staff that is the issue there. I think there is a larger
organizational issue that is going on and a lot of pressures
that are brought to bear on them.
I do think there is a lot more they can do to be more open,
more transparent, and move more quickly. The last thing I will
add is from my perspective, again, I am not speaking for my
colleagues here or the Commission, there is a better process
even than the ANSI process, and that is the ASTM process. That
is the process when I see an industry is approaching ASTM and
working through the ASTM process, that is the area I feel has
the best process in place to ensure the best outcome, the most
open and transparent, involves the most consensus building, and
really gives me the most confidence that everybody has been
heard and the right solution has been reached.
Senator Udall. Yes. Thank you very much. There are these
youth products that are being put out. A good example, and I
think my staff is going to show you some posters here, we have
a DonJoy head protector, and we also have this Full 90 high
performance head guard.
The representations that these folks make on these products
are pretty astounding. Unequal head bands, which you are going
to see up here, they say unequal head bands predict a
significantly lower risk of concussions. The full performance
head gear says it reduces impact forces by 50 percent.
These are the kinds of claims that really I think do not
hold any water. The DonJoy head band, the advertising for this
says it prevents the young person from being injured. You can
see it shows him with a head protector, and the kid without
one, he is getting hurt. You are really encouraging more
impact.
My question, and I know I am running over time, I see a
role for the CPSC. Given the real risk of brain injury, could
the CPSC require product warning labels for soccer head bands
in order to assist parents, coaches, and players in evaluating
the safety of these products?
Mr. Kaye. We certainly have the authority under the
Consumer Product Safety Act to impose labeling requirements,
and since your staff raised this with us in the last couple of
days, we are going to look into that.
Unfortunately, that is not a quick process because of our
regulatory requirements. When I saw the slides, thanks to Kevin
Cummins of your staff, I did immediately share those with the
Federal Trade Commission because I do think issues like this do
need to be addressed, and they have the ability, it is within
their jurisdiction for potential false advertisement, they have
the ability to act quickly to try to get these products removed
or to get this type of potentially misleading information off
the market.
I have to say as a parent again of two young children, I am
deeply concerned by marketing concerns that might mislead
parents into thinking they have a level of protection that they
do not, and I think what it probably does is gives folks a
false sense of security, and kids are more likely to do
something more dangerous than they would without having
something on their heads at all.
I am really glad you raised this, and I look forward to
working with you on this going forward.
Senator Udall. Thank you. I am sorry I have already run
over my time. I wanted some of your other commissioners to be
able to comment. Mr. Chairman, thank you. If we have a second
round, I may stay here so they can also comment on this.
Appreciate your courtesies. Thank you.
Senator Moran. I am reluctant to announce a second round in
the hopes that some of you leave.
[Laughter.]
Senator Udall. Mr. Chairman, do not do that to us.
Senator Moran. Senator Markey?
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman, very much. When
Congress last reauthorized the Consumer Product Safety
Commission in 2008, my language to create a public consumer
product safety database was included. It was true then and
remains true today parents should not have to play toy box
roulette, wondering if the toys they buy for their children for
birthdays and holidays might kill them, make them sick, or
injure them because they contain dangerous levels of toxins,
like lead, asbestos, or contain choking hazards.
Chairman Kaye, how many consumers have reported potentially
defective products to the SaferProducts.gov database?
Mr. Kaye. Thank you, Senator, for raising the database. Of
course, thank you for the incredible work you did to create the
database. I would say it is one of the biggest success stories
of what is otherwise also a very large success story as an Act.
In the time since the database went live in 2011, I believe
it was spring of 2011, we have had 70,000 plus reports of harm
that have been sent into the database.
Not all those reports go up live immediately because there
is a process in place to make sure all the critical elements
have been included, and about 25,000 or 26,000 of those have
gone through that, they had all the required elements, and
those have made it to the public side, and the remaining 45,000
or so, we still use those.
Senator Markey. How many consumers have gone to the website
to find out if there are dangerous products that could affect
their families?
Mr. Kaye. I would have to get back to you, but it is a
gigantic number.
Senator Markey. What is a gigantic number?
Mr. Kaye. I do not want to guess. I remember seeing the
number recently.
Senator Markey. Is it in the millions?
Mr. Kaye. Yes, absolutely it is in the millions.
Senator Markey. Millions of Americans have gone to the
website?
Mr. Kaye. I believe, but please do not hold me to that, I
want to make sure we give you the right numbers.
Senator Markey. That is helpful. Thank you. Could you tell
us how the information reported by consumers have been helpful
to the CPSC in providing an early warning system?
Mr. Kaye. It is a critical source of data, one of our
critical sources of data that we use that we feed to an
integrated team of experts that review this data in relatively
real time as it comes in, and are able to adjust both our
enforcement priorities as well as our hazard identification and
reduction priorities, based on the data that we collect.
It would be a detriment to that if we did not have the
availability of the public database information that is
submitted.
Senator Markey. There are many in the industry who are
afraid that there would be filing of fraudulent complaints
about their competitor's products or inaccurate consumer
complaints that would damage corporate profits unfairly. It
would kill jobs, undermine investment in new products.
What have you found as you examined the database and its
impact on investment and new jobs?
Mr. Kaye. I have not seen any of those concerns bear out.
Senator Markey. Thank you. In 2000, asbestos was found to
have been inadvertently added to children's crayons. The CPSC
recommended reformulation of the crayons to eliminate the
asbestos, and American companies voluntarily agreed to do that.
Unfortunately, we sometimes see recurrences in problems
like this. For example, earlier this year, reports surfaced of
dangerously high levels of formaldehyde in laminate flooring
products imported from China. The same problem was reported in
2013 and 2014.
Now with formaldehyde, CPSC has published guidance that
explains to consumers what formaldehyde is, where it may be
found, how exposure affects a person's health, and informing
consumers what safe, normal levels of formaldehyde are.
There is not any guidance for asbestos. How could CPSC go
about establishing an asbestos regulation if it found more
children's toys contained it?
Mr. Kaye. Under our authorities, we would have to not only
have evidence of the basic toxicity associated with it. I think
in the case of asbestos, that is pretty clear. We would have to
also have established paths of exposure.
It is not good enough, and this is not a public policy
comment on my part, this is just the way the law is written, it
is not good enough that a crayon, for instance, might be
entirely filled with asbestos. If there is no path of exposure
for a child, we would not be permitted to regulate under the
Federal Hazardous Substances Act.
We would need to undertake a product by product and
exposure path by exposure path regime to see what was actually
coming out.
Senator Markey. Quickly, do you need more funding, more
authority to deal with nanotechnologies as they are
increasingly inserting themselves into consumer products across
the country and potentially endangering children in our
society?
Mr. Kaye. Absolutely. It was part of our budget request. We
are seeking significant funds to address a lag in the
scientific area of looking at exposure for consumer products.
It has been identified as a potential health hazard similar to
asbestos where it might get embedded in the lungs.
Nanotechnology is phenomenal. We want it to expand, but we
also want to protect children.
Senator Markey. I agree with you. I think it is the new
frontier for doing good but it is also the new frontier for
potentially endangering Americans, especially children, and we
have to do a lot more about it.
Thank you, Mr. Chairman.
Senator Moran. You are welcome. Senator Klobuchar?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you, Mr. Chairman. Thank you,
Commissioners. I think you know I have done a lot of work in
this area and we have had some success together with lead in
toys as well as the safe pools, going way back. I really
appreciate your work.
One of the newest things I am looking at are these laundry
pods. I was just so surprised at how many cases we have had
coming out of Minnesota, 350 cases of accidental poisonings in
one state in 2014. Even though there is starting to be more
education, which I think is going to be key here, we are still
seeing young toddlers--we had a toddler who was in intensive
care for a week. She was in an apartment building.
People say, oh, why not put these up on the top shelve.
Well, it is not always that easy sometimes if people are in
apartment buildings or kids can open up things.
The key, and I know the industry is working hard on trying
to make it so it does not taste good, trying to come up with
better ways to seal the containers they are in, and I wondered,
Mr. Kaye--of course, Senator Nelson has worked a lot on this,
this is his pod, which I am going to throw to him right now.
[Laughter.]
Senator Klobuchar. Senator Nelson and Senator Durbin have
worked on this extensively. Do you want to give me an update on
what is happening and what the CPSC is doing?
Mr. Kaye. I do. Thank you, Senator, and as you mentioned,
you have been an incredible supporter of the agency and so many
of the key initiatives we have undertaken originated with you
and your efforts.
This issue emerged a couple of years ago. At that point
under the prior chairman, Chairman Tenenbaum, strongly urged
the industry to come together and create a voluntary standards
process, which it did do. CPSC has a robust participation in
that. We provide a lot of the data and a lot of the technical
support to try to move industry forward.
There was a period of time where unfortunately it was
lagging and I thought some of the areas that the industry was
proposing really were not going to get to the heart of it. We
always prefer to get as close to the hazard as possible.
You mentioned some of the packaging ideas and warnings and
labels, which are all well and good, but we really wanted more
work done on the hazard itself.
If Senator Nelson could just hold that pod up one more
time, please, that film that is on the outside of that from our
perspective is too permeable. It is too easily punctured. One
of the critical breakthroughs in this was the willingness of
industry to adopt a much firmer film, to make sure that as
children are exposed to these products, whether it is saliva or
pinching or squeezing, that the film does not burst sooner than
it should.
We understand it needs to function when it is put into a
laundry machine, and it is exposed to water, but it was a
critical breakthrough, and I think we are now at a point where
we have had developed in the last few weeks a voluntary
standard that is soon going to go to ballot, that we believe
actually will be effective.
Senator Klobuchar. Thank you very much. The other question
I have, as you know, I worked hard on a bill with Senator Crapo
that we passed on formaldehyde, and it has continued to be an
issue right now, the Wood Products Act, the Standards Act.
I know again Ranking Member Nelson has also requested the
CPSC independently investigate the presence of formaldehyde in
wood products from China.
What is happening with those efforts with formaldehyde? It
has been a long time in waiting where Senator Crapo and I
passed our bill.
Mr. Kaye. We have not gotten involved in the implementation
by EPA of its reg.
Senator Klobuchar. I know that. I did not mean to imply you
guys were behind.
Mr. Kaye. Thank you, I appreciate that. As soon as the news
story broke, we immediately had convened a group the next
morning to obtain samples and to develop test methods to make
sure we were looking at this issue in real life exposure
scenarios.
We went out and bought a significant number of materials
that would range from the periods of concern over the last 2
years up until the present day, and from different sources and
different manufacturers, to try to make sure we had a full
picture.
We developed test methods and then contracted that out
because it is faster to do it that way to labs that have that
experience. They have engaged in that testing, not all the
results are back, but a number of them are back.
In the meantime, our health sciences staff, our
toxicologists, have had weekly consultation with our sister
agencies, EPA, ATSDR, CDC, to make sure we are gathering all
the Federal resources necessary, and what we are going to do is
take that test data and run it through the exposure scenarios
against the known harmful levels of formaldehyde, and try to
reach some preliminary risk analysis conclusions from both an
acute and chronic standpoint.
We are going to need more help from our Federal partners.
They know that. They have more expertise on the chronic side.
Things are moving along. I promise you that you will know when
we know.
Senator Klobuchar. OK. Very good. Carbon monoxide. I am out
of time. I introduced a bill, the Nicholas and Zachary Burt
Memorial Carbon Monoxide Poisoning Act. We are just continuing
to see more and more of these cases across the country. I hope
you will continue to work on this issue with me and do whatever
we can. I think we will probably do a letter or question for
the record on that.
I know some of my colleagues have raised the issue of ROVs,
and I understand the comments on the rule are due this Friday.
As I stated in our last markup, I strongly urge both industry
and the agency to come together on strong voluntary standards
that will protect people and also work for consumers.
I know the meetings from the industry's standpoint, given
that I have two of the manufacturers in Minnesota, the biggest
domestic manufacturers, seem to be going well, and I hope the
issue can be resolved.
Thank you very much.
Mr. Kaye. Thank you.
Senator Moran. Senator, thank you. I will now call on the
Ranking Member of the Full Committee, Senator Nelson.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Thank you, Mr. Chairman. Thank you very
much. I will just hold this pod up again. It feels so nice. You
can imagine for an infant, put it on their little tender skin,
it feels so nice and it smells so nice. As a matter of fact,
this one does not smell like grapes, but I have smelled those
that have grapes.
Is it any wonder for an infant that it ends up in their
mouth. Because it is so easy to break this seal, that liquid
gets in. Of course, we have had a number of children poisoned
like that.
I came in in the middle of Senator Klobuchar's questioning.
Do you all clearly have jurisdiction to go after this?
Mr. Kaye. Yes, sir.
Senator Nelson. Unfortunately, you do not have jurisdiction
to go after this?
Mr. Kaye. No, sir.
Senator Nelson. This is liquid nicotine. Of course, the
same thing happens. Senator Klobuchar, this is Juicy Juice. I
have seen them other than this, they have all kinds of pictures
of fruit on it. It is very attractive. They have all kinds of--
the names are very appealing. Therefore, the labels that go on
them have all kinds of pretty pictures.
What you do with this apparently for people who want to get
nicotine by inhaling it in less concentrated form than a
cigarette, they put it in these little devices that are
electronic cigarettes. I do not know why they would want to do
that, but they do. It brings this committee to be concerned
when these things are not childproof and when children can open
them up.
The problem is you all do not have the jurisdiction, the
FDA does. We have the jurisdiction in part on the FDA in this
committee and share that with the health committee. We are
pushing that.
Another one that you do have jurisdiction on is the carbon
monoxide poisoning that we are finding on these generators, and
unfortunately, it is hurricane season, and people have
generators. If they are the old generators and they do not have
the automatic cutoff when they have some detection of the
carbon monoxide--would you bring us up to date on what is
happening there?
Mr. Kaye. Absolutely. I want to thank you for your recent
letter on this issue that was addressed to me as well as the
voluntary standards bodies associated with this effort.
Senator Nelson. It is not just recent. I have been at this
for about 5 years.
Mr. Kaye. I should say your most recent, how about that. It
is moving on two tracks. There is the voluntary standards
capacity, and I apologize, this might get a little bit
detailed. There are two different voluntary standards bodies,
as you noted in your letter. There is UL and then there is
PGMA, the Portable Generators Manufacturers Association. That
is not a helpful aspect that there are two different bodies to
deal with.
The bottom line has been UL has been a much more receptive
avenue to try to have a performance standard that would
significantly reduce the amount of emissions of carbon
monoxide, which is really where our staff has been going.
The theory that they have developed, and I think this is a
sound theory, is the more time consumers have to recognize
symptoms and to depart the premises, the more likely they are
to survive.
They had done a Proof of Concept with the University of
Alabama a couple of years ago on taking a certain generator and
changing its configuration, an electronic fuel injected
generator, adding a catalyst to it in a way that would allow it
to both take care of EPA related emissions, which are
important, as well as carbon monoxide.
It showed a drastic increase in the amount of time that
somebody would have to escape in the normal hazard scenarios
where somebody either runs it in their basement, inside their
house, they run it in a garage.
What the staff has been trying to do is to turn that into
performance requirements as part of the Notice of Proposed
Rulemaking. I anticipate that coming up early next Fiscal Year.
The staff certainly knows how I feel about it. They know this
is an area as you mentioned and that you have mentioned for a
long time, that these are preventable deaths and we need to do
something about it.
Back to quickly the voluntary standards body, ultimately we
do need movement, and that would be the faster mechanism to
have UL in particular adopt part of these technologies in the
next version of its standards, but it has been slow going.
There have been productive conversations, but it has been slow
going.
I am hopeful that your letter will help light a fire.
Senator Nelson. I want to thank all of you. You are much
more professional as the CPSC than was the case about 10 years
ago. The way I got into this was through the Chinese drywall,
which after those hurricanes of 2004 and 2005, and there was
such a need for building materials, this contaminated drywall
is being supplied. People could not live in their homes. The
bank would not help them on their mortgages. The insurance
company says it is not covered. They are stuck in their homes
and they cannot breathe and their children are getting sick.
The CPSC to begin with was just pitiful. Its research
department was a cardboard table with stuff put out on it. You
all have professionalized it a lot more, so I want you to know
my personal appreciation.
Mr. Kaye. Thank you.
Senator Nelson. Thank you.
Senator Moran. Thank you, Senator Nelson, for joining us.
Senator Blumenthal?
Senator Blumenthal. Thank you. Just a few quick questions.
First of all, on laundry detergent pods, Senators Durbin,
Ranking Member Nelson and I introduced the Detergent Packs Act
of 2015, which would require the CPSC to set standards to make
detergent pods less attractive to children.
I am heartened to hear that you may be moving toward a
voluntary set of standards. Is that what I heard earlier?
Mr. Kaye. Yes, Senator, that is correct.
Senator Blumenthal. What would those standards do?
Mr. Kaye. It would have basically three components, so it
would have strengthened packaging. It would strengthen the
film, as I mentioned when Senator Nelson kindly held up the
pod, it would strengthen the film around that, which is a
critical component, and it would also increase the warnings and
labels associated with them.
Senator Blumenthal. Would it affect at all the coloring or
the smell that all too often makes these very attractive?
Mr. Kaye. We have been having those discussions
individually with a lot of the companies to try to have them
dial back the marketing and the way they are doing that. I
think some of them are more receptive than others.
I do not think the current version would do that because I
just do not think from a technical perspective they are able to
tackle that, but they have already committed, and I have made
it very clear to them, that I expect them to continue at this.
This may be the first version of the standard that they are
ready to put out, but that might not be good enough.
Senator Blumenthal. These first standards may be followed
by others. I am still troubled when we talk about voluntary
standards regarding enforceability. If those voluntary
standards are violated, your enforcement mechanisms are
severely limited; correct?
Mr. Kaye. Yes, there is a slight exception to that under
Section 15(j) of the Consumer Product Safety Act, which is if
there is a voluntary standard that is effective and it is
substantially complied with----
Senator Blumenthal. The problem with these voluntary
standards is that they are like children who lack teeth. They
are fine as long as companies follow them, but there is no real
deterrent, no real hook, no real hammer that your agency can
use to protect the public if an outlier or the industry as a
whole decides hey, I do not really care about making these
detergent pods unattractive to children, and those voluntary
standards are just not to my liking.
Mr. Kaye. So, we do have that on occasion. We have to
pursue that under a defect theory. It is just a lot harder of a
case to make, as you can appreciate from your background as an
AG for five terms, to go case by case is far less efficient and
effective than to have an industry wide standard.
Senator Blumenthal. Exactly. I want to come back to
artificial turf because as much as we pursue the consumer
danger de jour, liquid nicotine, detergent pods, artificial
turf has been around for a long time. In fact, in 2008, well
before you were in your present position--by the way, just as a
parenthetical I thank all of you for your very rigorous and
dedicated service on the subject of consumer safety.
As much as we may seem to be critical, it is the system
really that is lacking, and I know you are doing your best
within the system.
Back when I was attorney general, I called on the CSPC to
remove and revise a 2008 report on its website that ``Synthetic
turf fields OK to install, OK to play on.'' An article that
really deceptively misled many into thinking artificial turf
had been proven safe, deceptive information or misinformation
that was the CPSC's responsibility.
In a 2015 article--I am going to ask that all these
articles be entered into the record, Mr. Chairman.
Senator Moran. Without objection.
[The information referred to follows:]
WSB-TV/Channel 2 Action News--Atlanta
CPSC no longer stands by safety of artificial turf
Updated: 7:21 a.m. Thursday, April 30, 2015/Posted: 11:29 p.m.
Wednesday, April 29, 2015
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
By Rachel Stockman
ATLANTA-- The Consumer Product Safety Commission is no longer
standing by the safety of crumb rubber used in artificial turf and
playgrounds.
In 2008, the agency posted an article called: ``CPSC Staff Finds
Synthetic Turf Fields OK to Install, OK to Play On.'' However, the
agency appears to be re-evaluating its position.
``Chairman Elliot Kaye has deep concerns with the (2008) press
release and it is not the agency's current position,'' Scott Wolfson,
the Communications Director for the Consumer Product Safety Commission,
told Channel 2's Rachel Stockman. ``What was done in 2008 was not good
enough to make a claim either way as to the safety of those fields.''
The Federal agency is not investigating further because they don't
have the resources at the present time, Wolfson said.
``You've got your kids out here playing sports, you want them to be
safe and healthy but if there is stuff that's not healthy. You don't
want your kids around that,'' said parent Marticia Woodward. ``Money
shouldn't be an issue when it comes to safety--not just for our kids
(but) for anybody.''
Jeff Ruch, an attorney for the nonprofit organization Public
Employees for Environmental Responsibility, has been pushing the
Federal agency to further investigate the safety of tire crumbturf.
``The (turf) industry has been very active in lobbying the
commission but the commission has not appeared to have taken any action
to protect children,'' Ruch said.
Ruch's organization acquired public records which he says show the
turf lobbyists' influence on Federal officials.
``They are supposed to protecting the consumer not the industry and
if they are letting the industry tell the commission what is in these
products, what level there is for children, they aren't getting the
straight story,'' Ruch said.
``There is no visible sign we have been influenced one way or the
other,'' Wolfson said.
The Artificial Turf Council, located in the Atlanta area, sent
Stockman a statement saying:
``The Synthetic Turf Council met with CPSC in 2008. As a result of
its independent study, the CPSC issued a news release on July 30, 2008
saying that `young children are not at risk from exposure to lead in
these [synthetic turf] fields.'
``Since 2008, the STC provided the CPSC with the 50 independent,
science-based studies and reports that have been published in the last
20 years. All have validated that there is no elevated human health or
environmental risk from synthetic turf with crumb rubber infill.
``PEER, serving its own interests and biased agenda, chooses to
ignore these persuasive studies, all of which are easily obtained from
the Synthetic Turf Council website, www.syntheticturfcouncil.org.''
(http://www.wsbtv.com/news/news/local/cpsc-says-they-no-longer-think-
crumb-rubber-artifi/nk6Ch/#__federated=1)
Senator Blumenthal. I am very pleased that you have
acknowledged that CPSC report does not represent the agency's
current position. I am still troubled that the spokesperson in
that article says your agency ``Is not investigating further
because they do not have the resources.''
I mentioned earlier 153 reported cases of cancer linked to
play on synthetic turf. Given the number of children exposed,
do you not think that health and safety requires the CPSC
should be prioritizing this issue?
Mr. Kaye. I actually agree with you, and this is why I
detailed to my office when I became Chairman, a toxicologist
from our career staff because I do care very deeply about the
lack of certainty that parents face with regard to chemical
exposure, and you hit on one of the critical areas.
One of the things that I have tried to do, recognizing that
we do have limited resources and other agencies have
overlapping jurisdictions and significantly more resources, is
to try to reinvigorate cross agency collaboration on the
critical chemical areas of concern.
I have spent time with the leadership of EPA, CDC, ATSDR,
of the National Toxicology Program in the National Institutes
of Health Sciences, and I am due to see soon the Acting
Commissioner of the FDA. My pitch to all of them has been the
public is owed a lot more, we can do a lot more working
together. Putting aside TSCA reform and the understandable
issues associated with that, we have current authorities and
resources that, pulled together, can go a long way to trying to
address some of this uncertainty, and crumb rubber and
artificial turf was at the top of that list.
There is more to come on this, and I promise you as long as
I am in this position, it will continue to be a critical area.
Senator Blumenthal. I very much appreciate that commitment.
My time has expired for the second time this morning. I want to
thank our magnificently tolerant Chairman of this subcommittee,
my favorite Chairman.
[Laughter.]
Senator Blumenthal. Of any Subcommittee in the United
States Senate. I very seriously want to thank members of the
CPSC who are with us today for your public service. Thank you
very much, Mr. Chairman.
Senator Moran. I finally got what I thought I was seeking
from you until you said that the remainder of what you were
saying was serious, suggesting the earlier part of your
conversation was not.
Senator Blumenthal. It is all serious.
Senator Moran. Senator Udall?
Senator Udall. Chairman Moran, I also thank you and thank
you for your patience. You have some pretty persistent
questioners here. We appreciate your patience on that.
I would like to follow up on my earlier questions on youth
sports equipment, safety standards, and product labeling. Could
I ask each commissioner if they support Chairman Kaye's focus
on improving brain safety in youth sports? Mr. Adler, why not
start with you?
Mr. Adler. Yes.
Senator Udall. Would you want to elaborate?
Mr. Adler. I will elaborate in the following sense. I was
Acting Chair when Chairman Kaye was the Executive Director of
the agency. One of the things I was most impressed by was how
he had taken it upon himself both while he was the Executive
Director and while he was the Chief of Staff to former Chairman
Tenenbaum to get involved in this issue. It is a passion of
his. It is inspirational to me.
I think the work he has done has been absolutely terrific,
so I fully support what he has been doing. I thank you also for
all the work you have done.
Senator Udall. Thank you. Ms. Buerkle?
Ms. Buerkle. Thank you, Senator. Yes, I do support those
efforts. To the Chairman's credit, this has been a passion of
his and he is strongly committed to it. He mentioned changing
culture earlier in his previous comments, and I think in this
instance, education and changing culture through education will
be extremely helpful in raising awareness about these issues.
Thank you.
Senator Udall. Thank you. Mr. Mohorovic?
Mr. Mohorovic. Thank you, Senator Udall. First, if you do
not mind, I would like to applaud your leadership with regard
to chemical safety in the United States. We also have under our
mission the need to provide a uniform set of standards, to be
able to minimize conflicting state, local, and municipal
regulations and standards on consumer products.
We recognize our abilities and where our shortcomings are
and we very much appreciate your efforts. I do support those
that you mentioned and those of Chairman Kaye. He has exercised
tremendous leadership in this area.
As a former football coach for the Sandia Matadors for four
years and a member of the Apple Board of Directors, I
appreciate the fact that the Chairman has taken a real holistic
view of this while I think he appropriately identifies that a
product solution would be the best. It is a matter of culture
and a cultural change, and that goes down to coaching and
education.
For those ways, I appreciate and support his leadership.
Senator Udall. Thank you very much. Commissioner Robinson?
Ms. Robinson. Thank you, Senator. We first discussed this
before my Senate confirmation hearing. I applaud your efforts
along these lines. I very much support the Chairman in these
efforts.
Having represented a former offensive lineman at the
University of Michigan football team many years ago, I am very,
very aware of the injuries that we unreasonably inflict on our
children as they are playing sports, and I very much support
these efforts.
Senator Udall. Thank you. Thank you, Chairman Moran, really
appreciate your courtesy.
Senator Moran. Thank you, Senator Udall. I am told Senator
Nelson has no follow-up questions. Now that almost everyone is
gone, I can do my second round.
Let me start with a conversation that Senator Blumenthal
had with the Chairman about recalls. My question would be
phrased like this, what is an example of a recall that worked
well and what is the example of a recall that worked poorly,
and what are the factors that determine the difference?
Mr. Kaye. I do not want to get into company specific
issues, but I can talk about the factors probably. The recalls
that work best, not surprisingly, are where you have the fewest
amount of products and you have a mechanism where there were
direct sales to consumers, especially in recent years, where
you will have an e-mail trail, or some ability to reach
consumers directly.
We actually call those ``recall alerts,'' because there is
a certain percentage, about 90 percent of the consumers, that
we know from the company, they have the ability to reach
automatically in a direct fashion. We do not need to issue--we
do usually just for the record, but we do not need to issue a
news release to get the public's attention. Companies can reach
directly to the consumers, and those are the most effective
recalls.
Senator Moran. How common is that circumstance?
Mr. Kaye. It just is not that common in part because
consumers, of course, are not required to submit their e-mail
or there is no mechanism that has come from a manufacturer
through a retailer to a consumer, so there is not that ability
for the manufacturer to reach them in that direct way.
We would like to see them take on more efforts,
particularly in social media, and the last bit is from our
perspective, companies have very sophisticated marketing teams
and personnel. They spend a lot of money trying to figure out,
especially for children's products, how to capture the
attention of very busy parents to get them to buy their
product.
All we are asking them to do is take that same creativity,
that same energy, that same team and pull the resources and
focus that on trying to get that same parent's attention when
there is a recall. We do not see that same level of commitment,
and I think that would go a long way.
Senator Moran. Thank you. Let me turn to a topic that I
raised with Commissioner Adler, than acting chairman, more than
a year ago. Fourth of July is around the corner. Fireworks is a
product that you are responsible for. It is an important aspect
of what you do.
When was the last time the CSPC updated its mandatory
fireworks standards?
Mr. Kaye. It has been a number of years, and we actually
have in the works, thanks to Commissioner Robinson as part of
our current Fiscal Year operating plan, an amendment to do a
complete review on it. I am hopeful we will see an improvement.
I do want to quickly add that this is one of those areas,
and Congress was clearly thinking about it in the most recent
Appropriations Act, asking us to provide examples where the
voluntary standards have exceeded from a safety perspective the
mandatory standards, but because the mandatory standards are in
place and the testing requirement is to the mandatory standard,
companies are not testing to the higher quality standard or the
higher safety level, they are testing to a lower one.
Fireworks is a good example of that. We will be submitting
today a report in response to that request by Congress. I think
that is the type of authority that it would be good for us to
have to be able to more quickly adopt a voluntary standard that
has surpassed from a safety perspective our mandatory standard.
Senator Moran. The issue I raised with Commissioner Adler,
I think it was back in January of last year, dealt with the
audible standard. My understanding is there is no more clarity
today for a person in the business of fireworks to know how to
comply with the standard than there was when I raised this
topic a year and a half ago.
The audible standard by its nature, and I think this is a
fact, is subjective. You hear things differently. The test, as
I understand it, is based upon someone listening to a device
being exploded.
What is it that prevents us from moving toward a more
objective science based standard on the topic of audible?
Mr. Kaye. Unfortunately, I think it has been the science
that has prevented that from happening. I know the staff in the
last few years has spent a lot of time trying to find an
enhanced method for that particular part of the testing
protocol, and to measure, for instance, force, and to see if
there is some correlation between force and the propensity for
consumer fireworks for what would be an injury that we would
find to be unreasonable.
I do hope, as I mentioned earlier, with this rule review
underway, that staff will have identified working with industry
and really looking at the voluntary standards that exist--I
think there might be two out there--see and spend more time on
those provisions that relate to this in those standards to see
if that is a better model or if there is some way of taking
that model and enhancing it.
I think there is work underway on this. My staff will be in
touch with yours as we have something to report.
Senator Moran. That would be useful. My understanding, my
impression from the response I received previously was that
effort was put on hold, with nothing really happening toward
trying to change the ear test as the methodology.
Mr. Kaye. When Acting Chairman Adler was in to see you, he
spoke accurately about the state at the time, and what happened
in the interim, as I mentioned, was Commissioner Robinson's
efforts as part of our operating plan to have a holistic rule
review of the fireworks standard, including this issue, and
that is where this more recent update comes in.
Senator Moran. What kind of time-frame do you think you are
on in this regard?
Mr. Kaye. The staff is due to provide us with a briefing
package, giving us the options and telling us where they are
from a technical standpoint by the end of the Fiscal Year.
Again, we will certainly share that with you when that comes
up.
Senator Moran. Let me go to Senator Nelson.
Senator Nelson. I just want to point out again on this
liquid nicotine, it is absolutely ridiculous that you, the
CPSC, are prevented from requiring the childproofing of a
container like this that poisons children and has killed
several of them when they ingested it. That is ridiculous.
There is an exemption for any tobacco product, and
therefore, what we have done, Mr. Chairman, with both Senator
Ayotte and Senator Grassley co-sponsoring the bill, and trying
to get it passed, and we are actually trying to pre-conference
with the House, something that is so common sense to get it
done.
If for some reason it does not happen, and I wish you all
would keep pushing your general counsel since you have the
statutory responsibility of making things safe, like
childproofing containers, even though you are exempted from
anything being a tobacco product.
I hope I do not have to come back to you about that, if we
can pass this legislation. Thank you.
Senator Moran. Senator Nelson, thank you. Let me just
follow up on our earlier conversation about fireworks, and then
conclude this hearing.
First of all, I would appreciate the information that you
indicate will be forthcoming, and we would be very interested
in receiving that. Thank you for that.
Are you continuing to enforce the rule related to audible
testing and seeking penalties for its violation? If that is the
case, how can a manufacturer or importer meet those
specifications without really knowing what the standard is? Is
that a good use of Commission resources?
Mr. Kaye. I think this might end up being a fuller
conversation that we might have to have in a different setting,
just because it does involve specific compliance actions.
I can say we still stand behind the entire fireworks
regulation. You made the point that July 4 is coming up. It is
the deadliest month every year and the worse month every year
around July 4 associated with fireworks' injuries.
There are many aspects of this standard, even above and
beyond this particular provision, that we think make a
difference and saves lives and prevents injuries.
We still stand behind it. We still have active cases. As
you also mentioned, it is not a new standard. The fact there is
now this issue is something again that we may have to discuss
in a different forum on a particular compliance case, but
industry has for a long time been aware of the issues
associated with this, and we continue to work with them, we
continue to work with the trade association to try to have a
better dialogue.
I feel like we have certainly heard each other, and
hopefully the work that is being done at the technical level
that I am assuming has included industry or will include
industry as we do notice and comment, will get to a place where
everybody can feel better about it.
Senator Moran. Mr. Chairman and Commissioners, thank you
very much for your time today. Thank you for your testimony and
the conversation that I hope my committee found valuable. I
did. I hope you will take into account the messages that
Members of Congress deliver in these settings.
I have been in these hearings before in which all the
Commissioners were present, and it did not seem quite as civil
as you are seem to each other today. That was refreshing.
The hearing record will remain open for 2 weeks. During
this time, Senators are asked to submit any questions for the
record. Upon receipt, the witnesses are requested to submit
their written responses to the Committee as soon as possible.
With that, I adjourn the Subcommittee hearing.
[Whereupon, at 11:59 a.m., the hearing was adjourned.]
A P P E N D I X
Specialty Equipment Market Association (SEMA)
Washington, DC, June 19, 2015
Hon. Jerry Moran,
Chairman,
Committee on Commerce, Subcommittee on Consumer Protection, Product
Safety, Insurance, and Data Security,
United States Senate,
Washington, DC.
Hon. Richard B1umentha1,
Ranking Member,
Committee on Commerce, Subcommittee on Consumer Protection, Product
Safety, Insurance, and Data Security,
United States Senate,
Washington, DC.
Re: June 17, 2015 Hearing, ``Oversight of the Consumer
Product Safety Commission''
Dear Chairman Moran and Ranking Member Blumenthal:
On behalf of the Specialty Equipment Market Association (SEMA), I
thank the Subcommittee for conducting an oversight hearing of the
Consumer Product Safety Commission (CPSC). SEMA is concerned about the
CPSC's pending rulemaking that would establish a mandatory safety
standard for recreational off-highway vehicles (ROVs). SEMA supports S.
1040, the ``ROV In-Depth Examination Act,'' to prohibit adoption of the
rule pending a closer examination of its potential impact. We
respectfully request that you include this letter in the record of the
Subcommittee's June 17, 2015 hearing.
SEMA represents the $33 billion specialty automotive aftermarket
industry. Our trade association is made up of about 6,800 mostly small
businesses nationwide that design, manufacture, distribute and retail
specialty parts and accessories for motor vehicles. The industry
employs over 1 million Americans and produces performance, functional,
restoration and styling enhancement parts for use on passenger cars,
trucks and collector vehicles along with ROVs and other off-highway
vehicles (OHVs). ROVs and related equipment represent an important
segment of products manufactured by SEMA members.
ROVs are a popular form of recreational transportation on
backcountry roads and trails. They can attain speeds greater than 30
miles-per-hour and are configured differently than all-terrain vehicles
(ATVs). ROVs generally accommodate a side-by-side driver and passenger
in a compartment equipped with roll bars. They also include automotive-
type controls for steering, throttle and braking.
ROVs are currently subject to a nationally-recognized industry
standard developed by the American National Standards Institute (ANSI)
and the Recreational Off-Highway Vehicle Association (ROHVA), which has
been effective at protecting OHV riders. The ANSI-approved standard
(ANSl/ROHVA 1-2014) is based on 2014 data and is the result of many
years of cooperative efforts by industry and the CPSC to develop a
voluntary approach to regulating these vehicles.
Despite the industry standard's success, the CPSC announced in
November 2014 that it would pursue a rulemaking to establish a
mandatory ROV safety standard. The Commission cited safety as its
reason for promulgating the standard. However, it is not clear that a
CPSC standard would reduce accidents beyond the reductions achieved
under the ANSI standard. In fact, with respect to the dynamic lateral
stability and vehicle handling requirements, the CPSC acknowledges that
it does not ``have sufficient data to estimate the injury rates of
models that already meet the requirements and models that do not meet
the requirements. Thus, we cannot estimate the potential effectiveness
of the dynamic lateral stability and vehicle handling requirements in
preventing injuries'' (79 Fed. Reg. 69004 (2014)).
SEMA questions whether the CPSC has sufficient basis for abandoning
the current industry standard since the law directs the Commission to
pursue a voluntary consumer product safety standard whenever possible.
15 U.S.C. Sec. 2056 directs the CPSC to ``rely upon voluntary consumer
product safety standards rather than promulgate a consumer product
safety standard prescribing requirements described in subsection (a) of
this section whenever compliance with such voluntary standards would
eliminate or adequately reduce the risk of injury addressed and it is
likely that there will be substantial compliance with such voluntary
standards.'' Given the unambiguous wording of the law and the lack of
evidence that a rulemaking would result in increased safety, CPSC's
basis for abandoning the current industry standard is without merit.
SEMA joined with ROHVA and a number of other organizations and
companies in voicing concerns about the proposed ROV mandate at the
CPSC's public meeting (January 7, 2015). Many attendees at the hearing,
including SEMA, noted that the CPSC's proposed rule is based on test
data from 2010 and largely reflects the outdated 2011 version of the
ANSVROHV A rule. As a result, the Commission 's proposed rule would
have the unintended effect of imposing design restrictions and stifling
future safety innovations . The proposal also includes restrictive
lateral stability and vehicle handling requirements that could
potentially limit vehicle use.
Conversely, the industry standard recognizes that there are a wide
variety of uses and terrains for which ROVs are constructed, from
utility to recreation. ANSVROHVA standards, which reflect collaboration
with the CPSC, are also much easier to update than a Federal standard,
which requires a lengthy rulemaking process.
The CPSC has not yet indicated if it will withdraw its mandatory
rule and adopt the industry standard. Given this circumstance, SEMA
supports S. 1040, the ``ROV In-Depth Examination Act,'' and thanks the
Committee for advancing this important piece of legislation. The bill
would ensure that the CPSC's rulemaking, if pursued, is based on sound
science and examines whether it would actually undermine ROV
capabilities and intended uses.
Thank you for your consideration. Please feel free to contact me if
you have any questions.
Sincerely,
Stuart Gosswein,
Sr. Director, Federal Government Affairs.
______
Portable Generator Manufacturers' Association (PGMA)
Cleveland, OH, July 27, 2015
Hon. Bill Nelson,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.
Via E-Mail
SUBJECT: Reply to Your Letter Dated June 15, 2015
Dear Senator Nelson:
Thank you for your letter dated June 15, 2015.
The Portable Generator Manufacturers' Association (PGMA) shares
your concern regarding the safe use of portable generators.
Portable generators are safe when used properly and offer many
benefits to society. The benefits range from saving lives and helping
families and communities quickly regain normalcy during the aftermath
of severe weather to enhancing recreational activities such as camping
or tailgating.
In September 2012, CPSC released a report detailing the development
a prototype low CO emission portable generator in conjunction with the
University of Alabama. Analysis of this prototype demonstrated
substantial issues regarding reliability and performance. As part of
this project, a second prototype portable generator was developed that
would attempt to sense when the portable generator was operating in an
enclosed space and respond by automatically shutting off the engine.
The CPSC report stated that the second prototype with the shutoff
feature suffered from reliability issues. It is our understanding that
CPSC subsequently chose not to pursue the automatic shutoff technology
further. Instead, CPSC has been pursuing a strategy of reducing CO
emissions in portable generators.
Nevertheless, PGMA members continue to work collaboratively with
other stakeholders to identify viable solutions that address portable
generator CO issues through the UL CO Task Group. This Task Group
consists of over 30 representatives including CPSC staff, health and
safety professionals, medical professionals, and industry. While PGMA
has actively participated in the Task Group, we have reservations about
the current direction of the Group. We request that since PGMA
successfully led consensus of the only ANSI recognized portable
generator safety standard (G300), that PGMA lead and direct the Task
Group.
Regarding the use of low CO emission technology in portable
generators, in a press release (#12-278) on September 14, 2012, the
CPSC stated:
``The CPSC continues to urge consumers to never run their
portable generators in their attached garages, in or even near
their houses, including avoiding placement near windows or
vents. Generators should only be used outside, far away from
homes. CPSC cautions that even if portable gasoline powered
generators were to incorporate this technology, they would
still need to be used outside, far from the home. The
technology does not make them safe for indoor use.''
According to CPSC data, for cases where the location of the
portable generator was known, 96 percent of carbon monoxide deaths
associated with portable generators occurred as a result of using a
portable generator inside a home or garage. We believe that two
critical components for addressing this overwhelming statistic are the
increased use of carbon monoxide detectors in homes as well as expanded
public information and education campaigns that inform the public to
never use portable generators indoors.
Additionally, regarding the use of carbon monoxide detectors, CPSC
stated the following in their September 14, 2012 press release:
``Another important line of defense against CO poisoning is
having CO alarms on each level of the home and outside sleeping
areas. Based on available alarm data, 93 percent of CO-related
deaths involving generators take place in homes with no CO
alarms. Much like smoke alarms designed to alert consumers
about smoke or fires, CO alarms are designed to alert consumers
to dangerous CO levels and give them time to get out of the
house before becoming incapacitated.''
States and local communities throughout the United States have
recognized the role carbon monoxide detectors play in protecting
consumers from the multiple sources of CO present in everyday life--
furnaces, space heaters, and charcoal grills to name a few. As of
January 2015, 29 states have enacted laws regarding the use of carbon
monoxide detectors.
We believe strongly in the effectiveness of public information and
education campaigns. PGMA developed Safety First, safety awareness
information that can be downloaded from the PGMA Website. In mid-2014
PGMA began a media relations campaign to promote the safe use of
portable generators. Through the use of targeted news releases, PGMA
was able to garner more than 2600 media placements, building awareness
of the preventative measures relating to carbon monoxide safety.
In 2015, PGMA has expanded its media relations program with a
significant marketing campaign to broaden the reach of efforts in the
areas where the use of portable generators is high. PGMA is continuing
the media relations efforts and this new safety awareness campaign will
include a website, social media, PSAs, fact sheets, and partnerships
with utility companies to better educate consumers on the safe use of
portable generators. As the program develops we would be happy to share
this information with you.
In addition, we were pleased to learn of a recent proposal from
CPSC Commissioner Joseph Mohorovic for a CPSC branded carbon monoxide
information and education campaign focused on preventing CO deaths
associated with portable generators. Although the proposal was not
accepted by the Commission, it is our hope that CPSC will reconsider
the need for this campaign in the future.
In other efforts related to portable generator safety, we would
like to report that the ANSI/PGMA G300 standard, Safety and Performance
of Portable Generators has been published. The standard obtained
recognition as an American National Standard in June after achieving
consensus and acceptance from a wide range of interests including
government, users, producers, and other bodies such as test labs,
consultants, and safety professionals.
In closing, PGMA remains committed to promoting the safe use of
portable generators and will continue to work in good faith to achieve
this important goal.
Sincerely,
John Addington.
JHA/SO/JH/jlb
pgma
cc: Elliot F. Kaye, Chairman, CPSC
John Thune, Chairman, Senate Committee on Commerce, Science,
and Transportation
Robert S. Adler, Commissioner, CPSC
Ann Marie Buerkle, Commissioner, CPSC
Joseph P. Mohorovic, Commissioner, CPSC
Marietta S. Robinson, Commissioner, CPSC
______
Response to Written Questions Submitted by Hon. John Thune to
Hon. Elliot F. Kaye
Question 1. In July, the House appropriations bill to fund the CPSC
for FY 2015 included an amendment that would direct $1 million to be
used by the CPSC to proceed with regulations that would decrease the
costs associated with third party testing. Additionally, the Commission
amended its FY 2015 Operating Plan to spend the money allocated to it
by Congress to find ways to reduce testing burdens. How, specifically,
does the Commission intend to spend these funds? Please identify any
specific deliverables and deadlines that the Commission has established
in its work to provide third party testing relief.
Answer. Below please find a chart in response to your question
regarding ongoing work to potentially reduce the costs of third party
testing while assuring compliance with all applicable rules, bans,
standards and regulations.
----------------------------------------------------------------------------------------------------------------
FY 2015
Item Description Estimated Deliverable (FY)
Expenditures
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Activities related to Component Part $35,000 Notice of Proposed Rulemaking
Plan 4.1 Testing Update--Heavy Metals in (FY 2015)
Toys
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Activities in support of $75,000 COMPLETED IN FY 2015: Direct Final
Plan 4.2 Determinations Expansion--Heavy Rule/Notice of Proposed Rulemaking
Metals in Toys
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Additional work on Determinations $250,000 Contractor report (FY 2016)
Plan 4.3 Expansion--Phthalates in Additional
Plastics
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Research and Development effort for $510,000 Report from Award Recipients
Plan 4.4 FTIR Study Expansion--Phthalates (FY 2016)
Testing
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Work in support of Determinations $163,000 Contractor report (FY 2016)
Plan 4.5 Expansion--Lead in manufactured
woods
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Work in support of Determinations $10,000 Notice of Proposed Rulemaking
Plan 4.6 Clarification--Textiles dyes/prints (FY 2015)
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Supporting work on Equivalency--Toy N/A Ongoing
Plan 4.7 Standards (Chairman's office)
----------------------------------------------------------------------------------------------------------------
FY 2015 Midyear Work in support of Determinations $100,000 Contractor Report (FY 2016)
Clarification--Regulated chemicals
(Lead, phthalates, ASTM elements)
in manufactured fibers
----------------------------------------------------------------------------------------------------------------
Total $1,143,000
----------------------------------------------------------------------------------------------------------------
Question 2. What outreach has the CPSC done to the regulated
community in order to better understand how best to fulfill the
Commission's third party testing burden reduction directive under
current law?
Answer. Engaging with the regulated community has been a priority
for the Commission. Regarding the issue of test burden reduction
consistent with assuring compliance, even beyond the numerous
conversations we have continued to have with stakeholders on this
matter, the Commission has specifically requested data and information
in the following notices:
Request for Comments: Application of Third Party Testing
Requirements; Reducing Third Party Testing Burdens. 76 FR
69596; 11/8/11.
Request for Information Regarding Third Party Testing for
Lead Content, Phthalate Content, and the Solubility of the
Eight Elements Listed in ASTM F963-11. 78 FR 22518; 4/16/13.
Announcement of Meeting and Request for Comments: CPSC
Workshop on Potential Ways to Reduce Third Party Testing Costs
Through Determinations Consistent with Assuring Compliance. 79
FR 11088; 2/27/14.
Each notice, supplementary information, and the comments are
available at: www.regulations.gov, in CPSC Docket No. CPSC-2011-0081.
Additionally, since I have been Chairman, I have made it a priority
to improve significantly the lines of communication with our
stakeholders in all areas. To that end, I have met with industry groups
when they have visited the Washington area, as well as meeting them on
their own turf, whether it is at an association's annual conference or
at an individual company's manufacturing facilities. As long as I am
Chairman, we will continue to welcome comments and input from all of
our stakeholders and continue to find ways to maintain a productive
dialogue.
Question 3. In your September 16, 2014 letter, you, along with
Commissioner Joe Mohorovic, highlighted three policies that, in your
opinion, ``would provide a substantial amount of third party testing
relief.'' These policies included: CPSC determinations with respect to
seven of the eight heavy elements currently regulated in ASTM 5963-11;
a Commission finding that compliance with internationally recognized
standards is equivalent to the ASTM Toy Standard; and creation of a de
minimis third party testing exemption for materials in children's
products where the total amount of material in or on the children's
product is less than 10 mg. What is the timeline for implementing these
three policies?
Answer.
A Direct Final Rule/Notice of Proposed Rulemaking on
Determinations regarding the ASTM elements in certain untreated
wood was published in the Federal Register on July 16, 2015.
My staff, which includes a nationally-recognized expert in
toy safety and standards, has explored the concept of whether
compiling an alternative standard composed of the most rigorous
test methods from each alternative standard might allow
multinational marketing of toys with a single test protocol. In
discussions with the regulated community about this strategy on
burden reduction consistent with assuring compliance, several
challenges have been identified, making the likelihood that
this strategy could actually provide meaningful benefits
questionable. In addition to this effort, agency staff
considered whether the statutory framework for certification
might permit broader application of testing among standards and
concluded that allowing certification to foreign standards
would run counter to the intent of the law. My staff and I have
repeatedly put out a call to industry to provide us with their
thoughts on how to best address this issue in furtherance of
consumer product safety. We will eagerly pursue any promising
information or leads we receive.
The timeline for any de minimis determinations work has not
yet been established.
Question 4. In addition to the three policies you identified in
your September 16, 2014 letter, has the Commission contemplated moving
forward on any of the other recommendations for reducing third party
testing burdens as put forth by CPSC staff, such as developing a list
of materials determined not to contain prohibited Phthalates or
allowing a de minimis testing exemption for phthalates in certain
products?
Answer. The Commission has awarded contract task orders to study
the presence of phthalates, lead, and the ASTM elements in specified
plastics, manufactured woods, and manufactured fibers (e.g., polyester,
rayon). The Commission will receive the earliest of these contractor
reports in late FY 2015, with the other reports due in FY 2016.
Thereafter, staff would use these reports to inform its recommendation
about whether the Commission could determine that certain plastics and/
or manufactured woods and/or manufactured fibers do not require third
party testing to assure compliance. In addition, CPSC staff is working
closely with ASTM, industry, and other stakeholders to develop
alternate lead and heavy metal testing methods for toys and children's
products using HD XRF. The Commission has not yet determined a timeline
for any de minimis determinations work.
Question 5. In October 2012, the CPSC voted to direct staff to
proceed with nine of the staff recommendations, which included:
international standards equivalency to Children's product safety rules;
determinations regarding heavy metals; determinations regarding
phthalates; the use of Fourier Transform Infrared Spectroscopy (FTIR)
technology; determinations regarding adhesives in manufactured woods;
determinations regarding synthetic food additives; guidance regarding
periodic testing and periodic testing plans; accreditation of certain
certification bodies; and staff findings regarding production volume
and periodic testing. What is the status of this work?
Answer.
On the issue of equivalency, as previously mentioned, my
staff, which includes a nationally-recognized expert in toy
safety and standards, has explored the concept of whether
compiling an alternative standard composed of the most rigorous
test methods from each alternative standard might allow
multinational marketing of toys with a single test protocol. In
discussions with the regulated community about this strategy on
burden reduction consistent with assuring compliance, several
challenges have been identified, making the likelihood that
this strategy could actually provide meaningful benefits
questionable. In addition to this effort, agency staff
considered whether the statutory framework for certification
might permit broader application of testing among standards and
concluded that allowing certification to foreign standards
would run counter to the intent of the law. My staff and I have
repeatedly put out a call to industry to provide us with their
thoughts on how to best address this issue in furtherance of
consumer product safety. We will eagerly pursue any promising
information or leads we receive.
A Direct Final Rule/Notice of Proposed Rulemaking,
determining that wood from tree trunks does not require third
party testing to assure compliance with the ASTM element
solubility limits was published in the Federal Register on July
16, 2015.
Two contract task orders have been awarded to study the
potential presence of phthalates in specified plastics and
classes of plastics. The first of these contractor reports is
due in late FY 2015, with the other contractor report due in FY
2016.
CPSC is soliciting grant proposals to develop FTIR
technology capable of detecting the prohibited phthalates at
1,000 ppm, as an alternative testing/screening technology to
the wet chemistry methods currently used. CPSC expects to award
Phase I grants during FY 2015.
CPSC awarded a contract task order to study the presence of
phthalates in manufactured woods. The contractor's report is
due in FY 2016.
The guidance regarding periodic testing and periodic testing
plans was published July 18, 2015, on our website at
www.cpsc.gov/testing.
Question 6. During your confirmation hearing, you highlighted a
track record of reaching out ``to a wide coalition of stakeholders to
try to find safety solutions.'' You continued by stating, ``[i]f
confirmed, I would look forward to working across the agency and
hopefully with our stakeholders to find solutions.'' At the same
hearing, Commissioner Mohorovic also highlighted the need to leverage
the expertise of stakeholders.
a. How would you characterize the current relationship between the
CPSC and key stakeholders, particularly manufacturers, retailers and
importers?
Answer. I believe our relationship with those members of the
stakeholder community who wish to engage with us in good faith and in a
collaborative and constructive fashion is strong. I have made a
concerted effort since I became Chairman to enhance significantly those
relationships, and I believe those efforts have paid off. CPSC takes
its mission to provide guidance and advice about our requirements
seriously. To reach a large number of relevant stakeholders, we attend
large industry trade shows, like the Toy Fair, the Hong Kong Toys &
Games Fair, the All Baby & Child (ABC) Expo, and smaller, specialized
trade shows, like the American Specialty Toy Retailers Association
(ASTRA) Marketplace & Academy and others, to provide presentations and
question and answer sessions. We also provide webinars in specific
topic areas upon the request of industry groups, such as a webinar
requested this Fiscal Year by RadTech, the association for ultraviolet
and electron beam technologies. In June 2015, we conducted training on
regulatory requirements for toys in a joint presentation with our North
American colleagues at Health Canada and over 400 people registered to
attend. We also initiated a product safety buyer training program for
sourcing professionals based in China who export to the United States.
Our staff in the Office of Compliance and our Small Business
Ombudsman is also very accessible and assist with thousands of
individual safety and compliance-related questions every year, through
our website at www.cpsc.gov/smallbiz/contact and via e-mail at
[email protected].
We work closely with industry and other stakeholders on voluntary
standards committees and in other meetings to find solutions to unique
and emerging safety issues, often identified through CPSC's own data
systems. Where possible, we elect to rely on the substantial compliance
of an industry with robust voluntary standards. One hopefully promising
area, for instance, appears to be our recent work with the recreational
off-highway vehicle (ROV) industry. We have had extensive engagement
with stakeholders form that industry and continue to place a priority
on working with the industry to develop a standard that provides the
needed safety improvements without undue burden. We have had numerous
meetings and sent many detailed letters to industry and the two
standards development organizations. Staff has also broadly shared
technical work with the industry, making all technical reports and
letters publicly available.
CPSC staff also has a positive relationship with importers and
brokers. We respond to concerns from the import community, and we stay
current with U.S. Customs and Border Protection (CBP) changes to inform
risk-targeting strategies to alleviate the burden of stopping cargo
unnecessarily. We have received praise from the brokerage community on
allowing the electronic filing of critical targeting data to give the
trade significant time to work with us and test as a pilot rather than
forcing finalization of a mandatory rule before the December 2016
deadline to comply with filing in the Automated Commercial Environment
(ACE).
b. You have sought to prioritize import surveillance under your
Chairmanship. How has the CPSC engaged stakeholders on this important
issue?
Answer. I believe a very recent news release from the Retail
Industry Leaders Association (RILA) best reflects the state of our
sustained and extensive dialogue with stakeholders on this critical
consumer safety issue. In the subheading of that news release, RILA
stated ``[r]etailers applaud CPSC for incorporating industry input''
into the agency's development of our import-related e-filing alpha
pilot program as (The RILA news release is available at http://
www.rila.org/news/topnews/Pages/Retailers-React-to-CPSC-e-Filing-
Decision.aspx.) The release also requested that the agency continue to
collaborate with our stakeholders which we will certainly continue to
do. Moreover, the Office of Import Surveillance has been actively
involved for many years with the Advisory Committee on Commercial
Operations (COAC) within CBP to reach out to members in the trade
community about imported product safety solutions. CPSC staff also
participates in all three of the Border Interagency Executive Committee
(BIEC) groups, including the External Engagement Committee, which
frequently meets with participating government agencies and members of
the trade community involved in the integration with ACE. Staff has
also been actively engaging stakeholders through numerous webinars,
more than 10 in-person port meetings with hundreds of representatives
from the trade community, and other public workshops to solicit input
from various stakeholder groups. I have also personally met with
numerous members of the trade community, including holding three long
sessions with them during the past few months, to assist in informed
decision-making.
c. What are your plans to work with the trade community--
manufacturers, retailers and importers--as you work to develop and
nationalize the Risk Assessment Methodology (RAM)?
Answer. CPSC plans to work through the Trade Support Network (TSN)
and trade associations, such as the American Association of Exporters
and Importers (AAEI) and the National Customs Brokers & Forwarders
Association of America (NCBFAA), to think creatively about solving
problems regarding improving, and hopefully, nationalizing a full-
production RAM. Until funding is secured, CPSC will not be able to
support moving to a full national program. For Fiscal Year 2016, the
Commission has requested that Congress authorize a CPSC product safety
user fee to fund the agency's import surveillance activities in lieu of
additional appropriations. A number of agencies across the Federal
Government fund their import processing activities with a user fee paid
by the importer. The CPSC estimates that a modest user fee of about 7
cents per every thousand dollars of import value could fully fund the
import surveillance program without the need for additional
appropriations.
d. Will you be creating a formal advisory committee, as industry
has requested on multiple occasions?
Answer. CPSC has no plans at this time to create a formal advisory
committee. The Federal Advisory Committee Act (FACA) imposes
significant and time consuming obligations on formal advisory
committees. In the interest of efficiency, CPSC has leveraged the COAC
structure, which is operated as a formal advisory committee and which
already meets FACA requirements. The COAC advises the Secretaries of
the Department of the Treasury and the Department of Homeland Security
(DHS) on the commercial operations of CBP and related DHS and Treasury
functions. By relying on access to stakeholders provided by COAC task
forces/work groups, CPSC has secured valuable input, without the time
delay that a new formal FACA advisory body would require, and without
incurring the associated costs. For example, the TSN provides a forum
for the discussion of significant modernization and automation efforts
with the trade community. The TSN creates an environment where various
stakeholders can provide input for both CBP and CPSC to consider.
Creating and maintaining such an advisory committee takes a great deal
of resources to operate. CBP is better positioned to manage the
operation and maintenance of a formal advisory committee and our
leveraging of the CBP advisory group has been extremely helpful.
Moreover, as mentioned, I have been directly engaged with a large and
representative group of members of the trade community and plan to
continue to engage with them going forward as needs arise.
e. Is the CPSC a member of the Customs and Border Patrol Advisory
Committee on Commercial Operations (known as the COAC)?
Answer. Since the COAC is limited to members of the trade
community, government agencies are not actual members of the COAC.
However, CPSC has participated in specific workgroups within COAC to
align the 1 USG (1 U.S. Government at the Border) approach to
importation issues for many health and safety concerns. We also
participate in the COAC quarterly meetings and provide updates on
product safety import changes to the COAC and the trade community.
Question 7. Congress established a clear preference that the
Commission defer to a voluntary standard that adequately addresses a
risk of harm and is widely followed by industry where one exists.
Uniformity is encouraged, and the Commission's own rules (16 C.F.R.
Sec. 1031.7(a)(7)) provide that it may encourage state and local
governments to reference or incorporate the provisions of a voluntary
standard in their regulations or ordinances. There are a number of
voluntary standards regarding chemical restrictions that apply to toys,
apparel, children's jewelry and other products, most recently adopted
by a local ordinance in the City of Albany.
a. What specific steps has the Commission taken to notify state and
local governments of its support for standards like the toy safety
standard (ASTM F963), the children's jewelry standard (ASTM F2923) and
others?
Answer. Upon the request of trade associations, my office has
attempted to engage jurisdictions about these issues. To date, we have
not found jurisdictions to be receptive to our initiation of that
engagement. When asked by states and localities, the Commission staff
provides technical assistance regarding technical position or views of
safety standards and will continue to do so.
b. If you haven't communicated with state and local bodies to relay
the Commission's support for these standards, why not?
Answer. Please see my answer to the previous question.
Question 8. While it is my understanding that the CPSC Inspector
General and the Commission share a good working relationship, other
Inspectors General have mentioned issues concerning access and
independence. Will you commit to providing the CPSC Office of Inspector
General with complete and timely access to all agency information and
materials?
Answer. As you mentioned, we enjoy a good working relationship with
our Inspector General. As I strongly believe that Inspectors General
serve a vital role, as long as I am in this position we will continue
to provide the CPSC's Office of the Inspector General with any relevant
agency information and materials in a timely manner.
Question 9. According to the Consumer Product Safety Commission
Inspector General, almost 200 of his recommendations remain open.
a. Will you commit to working with the OIG and this Committee to
address these outstanding recommendations?
Answer. Yes. A number of months ago I directed staff to work with
the OIG to address the 181 open and unimplemented recommendations
identified in OIG's March 23, 2015 report. Since that time, significant
progress has been made to address the outstanding recommendations. The
OIG's June 12, 2015 report reflects a change from 181 to 127 open and
unimplemented recommendations. We will continue to address these
outstanding recommendations.
b. What is the current plan for CPSC to address these open
recommendations?
Answer. CPSC management plans to have 80 percent of the outstanding
audit/report recommendations implemented during FY 2015. The remaining
items deal with outstanding IT security recommendations that are
planned to be implemented by FY 2017, subject to adequate funding.
c. The majority of the open recommendations involve the
Commission's compliance with the Federal Information Security
Management Act (FISMA). According to the Office of Management and
Budget's annual report to Congress on FY 2014 FISMA compliance, CPSC's
score is one of the lowest of all micro agencies for its FISMA
compliance. Especially in light of the many recent, high profile data
breaches, particularly of government agencies, what is CPSC doing to
prioritize addressing the identified deficiencies in its FISMA
compliance?
Answer. CPSC contracted with a security vendor to review all open
FISMA findings and to provide a risk-based priority for each open
finding. Using the results of this analysis, we have created a high-
level plan that addresses each of the open IG findings by the end of FY
2017. In a review of the findings, we determined that additional
resources would be required to remediate successfully some of the
findings. Therefore, IT has added additional security staff and has
submitted funding requests for additional support--specifically to
address FISMA findings. It is anticipated that ongoing annual funding
will be required specifically to ``maintain'' FISMA compliance, once
acceptable levels of compliance have been achieved.
Question 10. On May 15, 2015, Inspector General Dentel submitted
the Improper Payments Elimination and Recovery Act (IPERA) review to
the Commission. While the independent certified public accounting firm,
Kearney & Company, found that CPSC was not compliant with IPERA, as
amended by IPERIA, and OMB-M-15-02, the CPSC management did not concur
with that finding.
a. Why did the Commission staff disagree with the findings of the
independent certified public accounting firm?
Answer. The CPSC conducted a quantitative risk assessment for
improper payments and reported the results of that assessment in its FY
2014 Agency Financial Report. The risk assessment results showed that
the agency was not at-risk of ``significant improper payments,'' as
defined in the Improper Payments and Elimination and Recovery Act and
in OMB's implementing guidance (M-15-02); the independent auditor
acknowledged the agency's robust statistical analysis procedure in the
audit report. The auditor and management disagreed as to whether the
audit documentation describing the agency's policies and procedures was
consistent with OMB's implementing guidance, and whether certain OMB
notifications were triggered. Management's technical analysis of the
audit finding was provided to the IG and published in the final report.
Although management disagreed with the auditor's conclusion, the agency
acknowledges that the documentation provided was unclear to the
auditor. Management implemented a remediation plan, which was submitted
to this Committee on August 13, 2015, and is actively working to revise
those procedures before the FY 2015 review. In addition, management has
consulted with OMB to clarify the notification requirements.
b. What is the current state of discussions with the Inspector
General and the accounting firm to resolve this disagreement?
Answer. The IG has published the FY 2014 IPERIA Review and
concluded audit work. The IG will reassess the program as part of the
required FY 2015 review, and at that time, the IG will formally assess
the documentation improvements management is implementing. As an
interim measure, management has shared the remediation plan with the IG
and plans to share its revised policies and procedures under that
remediation plan later this calendar year and before the FY 2015
review.
c. As required under OMB M-15-02, agencies that are not compliant
with IPERA must submit a plan to certain congressional committees
describing the actions that the agency must take to become compliant.
Please provide a copy of that report to me and the Senate Commerce
Committee, as soon as possible, but no later than August 15, 2015.
Answer. CPSC transmitted the report on August 12, 2015, and is also
submitting a copy for the record here.
Consumer Product Safety Commission
Bethesda, MD, August 12, 2015
Hon. Ron H. Johnson,
Chairman,
Committee on Homeland Security and Governmental Affairs,
United States Senate,
Washington, DC.
Hon. Thomas R. Carper,
Ranking Member,
Committee on Homeland Security and Governmental Affairs,
United States Senate,
Washington, DC.
Dear Chairman Johnson and Ranking Member Carper:
This letter reports the U.S. Consumer Product Safety Commission's
(``CPSC'') progress in meeting the requirements of the Improper
Payments Elimination and Recovery Act (``IPERA'') of 2010, further
amended by the Improper Payments Elimination and Recovery Improvement
Act of 2012 (``IPERIA'').
The CPSC conducted a quantitative improper payment risk assessment
in Fiscal Year 2013, and again in Fiscal Year 2014. I am pleased to
report that the risk assessments have demonstrated that the CPSC is at
low risk for significant improper payments, defined as 1.5 percent of
program outlays and $10,000,000 of all program or activity payments
made during the fiscal years reported.
The Office of the Inspector General (``OIG''), through the services
of Kearney & Company, an independent accounting firm, conducted a
Fiscal Year 2014 IPERIA program review (``review''). The review noted
several improvements to the CPSC's processes from the prior year,
specifically complimenting the agency's robust statistical sampling of
all payment activities, the centralized documentation supporting the
review, and the enhanced description in the agency's year-end financial
report.
The review identified two findings: (1) noncompliant audit
documentation; and (2) failure to make Office of Management and Budget
(``OMB'') required disclosures. The agency management did not agree
with finding (1) and did agree with finding (2). The agency management
acknowledges the need to have clear, understandable audit documentation
and to provide the needed disclosures; therefore, we have implemented a
remediation plan with measurable milestones. I have designated CPSC's
Executive Director as the senior official accountable for ensuring that
the plan is executed successfully to meet the requirements for
compliance. In addition, the agency has established an accountability
mechanism by adding the remediation plan as a performance requirement
under the SES Performance Management System, Executive Performance
Agreement for the Executive Director.
The attached remediation plan addresses the statutory requirements
to comply with IPERIA 2012 and OMB M-15-02.
Sincerely,
Elliot F. Kaye,
Chairman.
Enclosure
cc: Christopher Dentel, CPSC Inspector General
Patricia H. Adkins, CPSC Executive Director
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Question 11. On September 30, 2014, the CPSC Inspector General
issued an evaluation of the CPSC's efforts to ensure its employees are
satisfying their obligations for Federal, state, and local taxes. The
Inspector General identified deficiencies in the CPSC's oversight
procedures over wage garnishments related to tax deficiencies.
a. Please explain why CPSC management did not concur with the
Inspector General's findings.
Answer. Management receives and monitors employee debts and
garnishments through regular payroll reports and through the background
investigation and reinvestigation processes, which include a credit
check. Appropriate corrective actions are taken, as necessary. These
procedures have been in place and are expected to improve tax
compliance among CPSC employees. Management concurred that there were
no written procedures for monitoring and processing wage garnishments
and subsequently has developed those written procedures.
b. What steps has the CPSC taken to address the Inspector General's
recommendations issued in this report?
Answer. As recommended by the Inspector General, the CPSC has
developed a Standard Operating Procedure on the reporting and
processing of employee garnishments through our payroll provider.
Management receives reports from our payroll provider to actively
monitor garnishments and implement corrective actions, as necessary.
Our payroll provider performs an annual review and audit of garnishment
processing.
c. Has the CPSC taken any action with regard to the 20 CPSC
civilian employees that may owe back taxes?
Answer. Twenty CPSC employees were identified in the 2011 IRS
Federal Employee/Retiree Delinquency Initiative report as owing Federal
taxes. Currently, CPSC has 6 employees that owe Federal taxes and have
tax garnishments. CPSC is monitoring payroll reports to ensure these
garnishments are processed and takes corrective/adverse action, where
appropriate.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Elliot F. Kaye
Fireworks
Question 1. In regards to 16 C.F.R. Sec. 1500.17(a)(3), please
state the objective performance specifications used in the ``Ear
Test'', and describe the protocol employed to make the threshold
determination that a fireworks device is intended to produce an audible
effect.
Answer. The regulation at 16 C.F.R. Sec. 1500.17(a)(3) limits
devices intended to produce an audible effect to not more than 2 grains
(130 mg) of pyrotechnic composition, which is easily measurable. If the
manufacturer, or importer, labels the device as ``shoots flaming balls
and reports,'' for example, then the pyrotechnic composition is
measured to see if the objective regulatory limit of more than 2 grains
is exceeded. In upholding the regulation, one Federal court referred to
this particular test as ``the amount test,'' accurately reflecting the
objective character of the standard. See United States v. Shelton
Wholesale, Inc., 34 F. Supp. 2d 1147 (W.D. Mo. 1999), aff'd 277 F.3d
998 (8th Cir. 2002), cert. denied, 123 S.Ct. 514 (2002). Whether
fireworks subject to the standard ultimately ``pass'' or ``fail'' is
entirely dependent on the amount of pyrotechnic composition.
CPSC testing procedures are public. Fireworks devices are field
tested per the ``Consumer Fireworks Testing Manual'' (https://
www.cpsc.gov/PageFiles/121068/testfireworks.pdf). If the devices show
indications of being designed to produce an audible effect, then in
accordance with the Consumer Fireworks Testing Manual IV (A)(11)(b-e),
the pyrotechnic composition is measured to ascertain whether the
regulatory standard is met. Through field testing observations, if
there is an indication that the device is designed to produce an
audible effect, then the weight of the pyrotechnic composition is
measured using a calibrated scale in a controlled laboratory
environment. Significantly, fireworks that are designed to produce an
audible effect will not be found to be noncompliant unless the
objective regulatory limit on pyrotechnic composition is exceeded.
Question 2. How are these objective performance specifications
communicated to manufacturers and importers of aerial fireworks to
enable them to determine if their product is intended to create an
audible effect?
Answer. The Consumer Fireworks Test Manual has been publicly
available for more than 20 years (https://www.cpsc.gov/PageFiles/
121068/testfireworks.pdf) and has been a valuable resource for the
fireworks industry for reference and for training. CPSC Compliance
staff continues to inform industry members on the mandatory regulations
by meeting with firms and by actively participating in industry
conferences. The letters of advice sent to firms for products that fail
to comply with the mandatory standards explain the regulatory violation
and the options that firms have to address their concerns with staff.
Question 3. Understanding the agency's limited budget and
resources, please comment on the validity of continued enforcement of
16 C.F.R. Section 1500.17(a)(3) when ``compliance determinations can be
made only after a subjective determination of intent to produce an
audible effect'' [CPSC Fireworks Safety Standards Development Project
FY 2013 Status Report, October 2013].
While I am disappointed that efforts to resolve the Ear Test issue
first and foremost were put on hold in the agency's FY 2015 Operating
Plan, I am encouraged by Chairman Kaye's stated intent to engage
industry stakeholders as the CPSC continues its holistic review of
fireworks standards. I look forward to any updates the agency can
provide my staff throughout this process.
Answer. Fireworks continue to cause death and injuries every year,
including to children. Based on the incident numbers as well as the
trends, I am not comfortable choosing not to enforce this standard. The
regulation, 16 C.F.R. Sec. 1500.17(a)(3), has been in place since the
CPSC was created and explicitly has been upheld by the Federal courts
after legal challenge. See United States v. Shelton Wholesale, Inc., 34
F. Supp. 2d 1147 (W.D. Mo. 1999), aff'd 277 F.3d 998 (8th Cir. 2002),
cert. denied, 123 S.Ct. 514 (2002). Further, the standard is properly
characterized as a limit on ``amount,'' rather than as dependent on a
subjective evaluation. See Shelton Wholesale, Inc., 34 F. Supp. 2d
1147. No firework intended to produce audible effects will ``fail''
unless the amount of pyrotechnic composition, which is easily
measurable, exceeds 2 grains (130 mg).
CPSC staff has many decades of experience in applying the standard.
As previously noted, fireworks devices are field tested in accordance
with the ``Consumer Fireworks Testing Manual'' (https://www.cpsc.gov/
PageFiles/121068/testfire
works.pdf). The current testing structure continues to provide
enforcement staff with an adequate identification method for audible
effects in aerial devices. Staff's experience is that a majority of
aerial devices tested that were found to be ``intended to produce
audible effects'' in fact had pyrotechnic composition over the 2 grain
limit. In many instances, the products tested have been found to
contain grossly overloaded pyrotechnic composition, creating especially
severe hazards. Staff's identification of such devices at the ports and
continued testing has prevented such products from reaching U.S.
commerce.
As part of its approval of the CPSC's FY15 Operating Plan, the
Commission directed the staff to conduct a complete review of the
agency's fireworks regulations. Staff's effort includes a review of
consensus standards, such as the American Pyrotechnics Association
``Standard for Construction and Approval for Transportation of
Fireworks, Novelties, and Theatrical Pyrotechnics'' (APA 87-1) and
standards that have been developed by the American Fireworks Standards
Laboratory. Staff is preparing a briefing package to the Commission,
recommending whether to maintain, revise, clarify, or update the
regulations per Commission direction and will deliver it to the
Commission in FY 2015. I have directed my staff to be certain to
provide a copy to your office when it is available.
Liquid Laundry Packets
Question 4. My understanding is that your agency is working closely
with manufacturers of liquid laundry packets, consumer groups and other
stakeholders to develop an industry standard for the packaging and
labeling of these products. Please update me on the progress of the
American Society for Testing and Materials International (ASTM)
standard for these products, and when you expect the standard will be
finalized.
Answer. CPSC staff is very active in the ASTM voluntary standards
process for liquid laundry packets, which relies heavily on input from
all stakeholders, including consumer advocate groups. To keep the
process moving, CPSC has hosted a number of subcommittee meetings. The
subcommittee has twice balloted for approval a voluntary standard, and
is working to resolve issues related to: (1) whether all packaging must
meet the Poison Prevention Packaging Act protocol; (2) whether the
packet compression test must be changed; and (3) whether additional
requirements to reduce packet attractiveness are needed. CPSC staff
believes a consensus can be reached after one more round of balloting,
with the standard approved and published before the end of the calendar
year. The subcommittee and CPSC plan to closely monitor the incidents
after publication to measure the effectiveness of the standard. If the
voluntary standard is ineffective in reducing injuries, I believe that
formula changes, individually wrapping each laundry packet, and child-
resistant packaging should be vigorously pursued by all interested
parties. I have directed my staff to continue to monitor this issue
very closely and to keep my updated on its progress or lack thereof.
Portable Gas Cans
Question 5. In a statement provided to WISH TV for their November
13, 2014, story titled ``Could small change stop gas can explosions?''
I understand that the CPSC Communications Director provided the
following statement: ``If a consumer was to see a gas can at a retail
that contained a flame arrestor system, we would encourage them to
select such a model, as it provides a vital layer of fire protection.''
What information, studies, or other relevant scientific research or
testing data was relied upon by the CPSC to conclude that gas can
models containing a flame arrestor system provide better safety?
Answer. CPSC staff has long been dedicated to protecting children
and adults from a life of pain and suffering from gasoline-related burn
injuries due to flashback fires or explosions. Manufacturers of
portable gas cans must comply with the Children's Gasoline Burn
Prevention Act, which CPSC implemented in January 2009. To prevent
children younger than 5 from accessing, ingesting, or spilling
gasoline, all portable gas cans must include a child-resistant cap.
CPSC is proud of the role we played in encouraging the residential
gas water heater industry to develop a consensus safety standard that
incorporated flame arrestor technology into their products and safety
standard. Residential gas water heaters sold in stores today have
built-in flame arrestors that prevent flashback fires, and CPSC staff
believes that this technology also should be included in gasoline
containers.
Flame arrestors are intended to keep flames that are external to
the gasoline container from passing into the container. CPSC staff
continues to call on the industry and voluntary standards organizations
to incorporate a flame-arrestor system into their designs and
applicable safety standards for gas cans.
Worcester Polytechnic Institute engineers have shown that flammable
mixtures of air and gasoline vapors can exist inside portable gasoline
containers, especially when there are small amounts of liquid gasoline
in a large container. Under certain circumstances, the gasoline vapors
can ignite, causing the container to explode in the presence of a flame
or heat source outside of the container. This research was published in
the Fire Science Journal (http://www.sciencedirect.com/science/article/
pii/S0379711213000143) in May 2013.
Manufacturers, retailers, researchers, voluntary standards
organizations, safety advocates, and CPSC staff should continue to work
together to address foreseeable risks and solutions that will make gas
cans as safe as possible. The Communication Director's statement to a
television station in Indiana was taken out of context. He was
indicating that if an individual manufacturer or ASTM International
were to support the potentially life-saving incorporation of flame-
arrestor technology in consumer models of portable gas cans, then that
would be a product that CPSC would encourage consumers to buy.
Question 6. If CPSC indeed believes that flame arrestor systems
should be included in portable consumer fuel containers, why has the
CPSC not undertaken steps to promulgate a rule mandating the inclusion
of such technology in gas cans?
Answer. CPSC staff has focused its efforts on actively
participating in the ASTM Subcommittee F15.10 on flame arrestors for
gas cans, working with ASTM members representing industry, consumer
groups, and other stakeholders to improve the safety of portable
consumer fuel containers.
Third Party Testing Burden Reduction
Question 7. I am pleased that an amendment was included in the
agency's FY 2015 Operating Plan accounting for the $1 million Congress
has directed to be used for third party testing relief. What is your
plan for spending these funds to reduce testing burdens? Can you submit
in writing a plan with concrete deadlines and deliverables?
Answer. Below please find a chart in response to your question
regarding ongoing work to potentially reduce the costs of third party
testing while assuring compliance with all applicable rules, bans,
standards and regulations.
----------------------------------------------------------------------------------------------------------------
Fiscal Year
2015
Item Description Estimated Deliverable (FY)
Expenditures
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Activities related to Component Part $35,000 Notice of Proposed Rulemaking
Plan 4.1 Testing Update--Heavy Metals in (FY 2015)
Toys
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Activities in support of $75,000 COMPLETED IN FY 2015: Direct Final
Plan 4.2 Determinations Expansion--Heavy Rule/Notice of Proposed Rulemaking
Metals in Toys
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Additional work on Determinations $250,000 Contractor report (FY 2016)
Plan 4.3 Expansion--Phthalates in Additional
Plastics
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Research and Development effort for $510,000 Report from Award Recipients
Plan 4.4 FTIR Study Expansion--Phthalates (FY 2016)
Testing
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Work in support of Determinations $163,000 Contractor report (FY 2016)
Plan 4.5 Expansion--Lead in manufactured
woods
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Work in support of Determinations $10,000 Notice of Proposed Rulemaking
Plan 4.6 Clarification--Textiles dyes/prints (FY 2015)
----------------------------------------------------------------------------------------------------------------
FY 2015 Operating Supporting work on Equivalency--Toy N/A Ongoing
Plan 4.7 Standards (Chairman's office)
----------------------------------------------------------------------------------------------------------------
FY 2015 Midyear Work in support of Determinations $100,000 Contractor Report (FY 2016)
Clarification--Regulated chemicals
(Lead, phthalates, ASTM elements)
in manufactured fibers
----------------------------------------------------------------------------------------------------------------
Total $1,143,000
----------------------------------------------------------------------------------------------------------------
Phthalates
Question 8. Mr. Chairman, it appears the CHAP recommendations to
continue the temporary ban relied solely on the basis of a cumulative
risk assessment, and it recommended that any chemical that contributed
in ``any degree'' to the risk should be banned.
I understand that cumulative risk assessment has not been a basis
for regulating the use of chemicals in consumer products to date. I
also understand that EPA is still in the process of reviewing how, and
if, cumulative risk assessment can be used to regulate chemicals. Have
you considered that the use of cumulative risk assessment as a
regulatory tool has not been fully vetted or reviewed and is still in
its formative stages for use in the Federal regulatory process?
Answer. The Congress in the Consumer Product Safety Improvement Act
(CPSIA) explicitly directed the CHAP to ``consider the potential health
effects of each of these [specified] phthalates both in isolation and
in combination with other phthalates,'' and to ``consider the
cumulative effect of total exposure to phthalates, both from children's
products and from other sources, such as personal care products.''
CPSIA, Sec. 108(b)(2)(B)(ii) and (iv). Moreover, according to CSPC
technical and scientific staff, the methods that the CHAP used to
assess cumulative risk are consistent with the recommendations of the
National Research Council, which issued a report on the cumulative risk
assessment of phthalates in 2008 (http://www.nap.edu/catalog/12528/
phthalates-and-cumulative-risk-assessment-the-task-ahead). Methods for
assessing the effects of chemical mixtures have been available for many
years. The Environmental Protection Agency (``EPA'') Office of
Pesticide Programs uses cumulative risk methodology to assess the risks
from pesticides, consistent with the Food Quality Protection Act of
1996. For example, EPA applies cumulative risk assessment methods to
five classes of pesticides: organophosphates, carbamates, triazines,
chloracetanilides, and pyrethrins (http://www.epa.gov/pesticides/
cumulative/). The Agency for Toxic Substances and Disease Registry
(ATSDR) uses a similar methodology for assessing chemical mixtures
found in hazardous waste sites (http://www.atsdr.cdc.gov/mixtures/).
EPA (http://www.epa.gov/oppfead1/trac/science/cumulative guidance.pdf),
ATSDR (http://www.atsdr.cdc.gov/interactionprofiles/IP-ga/ipga.pdf),
and the International Program on Chemical Safety (http://www.who.int/
ipcs/methods/harmonization/areas/workshopreportdocument7.pdf) have
issued cumulative risk assessment (i.e., chemical mixtures) guidelines.
Question 9. Mr. Chairman, the CHAP seemed to ignore its charge to
make recommendations on whether phthalates or alternatives should be
``banned hazardous substances''--that is, they did not analyze whether
the chemicals met the statutory definition of a banned hazardous
substance. They instead relied on the standard that any chemical that
contributed to ``any degree'' of a cumulative risk should be banned.
Your charge is to determine whether the interim prohibition on
phthalates should continue to provide a ``reasonable certainty of no
harm'' to susceptible groups.
Given the CHAP's failure to follow its specific charge, do you feel
the CHAP report reliably provides what you need to make your
determination of whether there is a reasonable certainty of no harm and
declare any children's product containing any phthalates to be a banned
hazardous product under section 8 of the CPSA?
Answer. CPSC staff believes the CHAP report provides the Commission
with the information necessary to make the determination required by
section 108(b)(3). The staff believes the CHAP followed its charge in
section 108(b)(2)(B) to, among other things, ``consider the potential
health effects of each of these phthalates both in isolation and in
combination with other phthalates.''
Question 10. Mr. Chairman, I am concerned that the peer review
process for the CHAP's draft report was conducted in secret and that
those peer review comments were not subject to peer or public review
and comment, as OMB's guidelines require. I am also concerned that
despite the fact that there were a number of public CHAP meetings in
the first several years, there had not apparently been any public
meetings for at least two years prior to the report being issued, in
apparent violation of the Federal Advisory Committee Act and the
agency's own regulations and policies requiring public notice and
openness of such meetings.
How does this meet the agency's commitment to full openness,
transparency and public scrutiny of the CHAP process given the
importance of the issue and rulemaking? Do you know why the public
meetings of the CHAP apparently ceased during the latter (and in many
respects the most critical) phase of the CHAP's activities, including
when it finalized its report, and can you please explain to the
Committee why the CHAP ceased public meetings over such a long duration
of time?
Answer. The CHAP requested peer review of their draft report, and
my predecessor, Chairman Tenenbaum, made the decision to support that
request, a decision which I believe was correct. Peer reviewers were
nominated by the National Academy of Sciences and met the same conflict
of interest requirements as CHAP members. CPSC took the additional step
of posting on CPSC's website the CHAP draft report submitted to peer
review, the peer reviewer's identities, and the peer review comments at
the same time as the CHAP provided its final report to CPSC.
During the preparation of its draft report, the CHAP held seven
public meetings and six public conference calls. The CHAP sought input
from interested members of the public and invited scientific experts on
topics relevant to the CHAP report. The CHAP also heard oral
presentations and received numerous written comments from interested
parties, all of which are posted on the CPSC website at http://
www.cpsc.gov/CHAP. The last CHAP public meeting was February 2012. Due
to the peer review process, the final report was not delivered to the
Commission until July 2014.
Question 11. Mr. Chairman, there has been some controversy with the
recommendations made in the CHAP report on phthalates and whether or
not it complies with the legal standards that it was intended to comply
with. We understand that the CPSC General Counsel provided guidance in
this regard in a memo to the CHAP panel and to CPSC staff. Will you
please provide the Committee with a copy of that memo, and do you
concur that the CHAP complied with the legal standards enunciated by
the CPSC General Counsel in their recommendations to your agency in
their report?
Answer. This question appears to refer to a December 20, 2011 e-
mail from Cheryl Falvey, General Counsel for CPSC at that time, to the
members of the CHAP and CPSC staff. The e-mail is available on the
portion of the CPSC website that contains CHAP-related documents and
information. See http://www.cpsc.gov/PageFiles/125699/
cfalvey12202011.pdf. The Falvey e-mail provided the CHAP and CPSC staff
members with guidance regarding the charge to the CHAP and procedures
as set forth in section 108 of the CPSIA. The Falvey e-mail did not
enunciate any legal standards. The Commission's notice of proposed
rulemaking (``NPR''), ``Prohibition of Children's Toys and Child Care
Articles Containing Specified Phthalates,'' explained the legal
requirements for the CHAP and the phthalates rulemaking. 79 Fed.
Reg.78324 -26 (December 30, 2014); available at: http://www.gpo.gov/
fdsys/pkg/FR-2014-12-30/pdf/2014-29967.pdf. We believe that the CHAP
complied with the legal requirements as specified in section 108 of the
CPSIA and explained in the NPR.
______
Response to Written Questions Submitted by Hon. Deb Fischer to
Hon. Elliot F. Kaye
Question 1. Chairman Kaye, you said in your testimony regarding
nanomaterials that ``in the absence of CPSC driving this work as it
relates to consumer products, it will not be done by any other Federal
agency.'' Are there Federal agencies you believe are spending resources
on nanotechnology research that aren't leading in developing sound
science and data? What kind of work does CPSC currently perform on
nanotechnology research today that's providing a better return on
investment than the work being done by the FDA, EPA, and other
agencies? What is the justification for the CPSC to become more
involved in this area and what would an additional $5 million for a
proposed interagency Center for Consumer Product Applications and
Safety Implications of Nanotechnology provide?
Answer. CPSC is the sole regulatory authority over thousands of
consumer products that may contain nanomaterials, including children's
products. For example, CPSC-supported research has found that
nanosilver is used in children's clothing and toys, and carbon
nanotubes in anti-ballistic backpacks intended for children's use. The
backpacks are commercially available due to increasing concerns over
shooting in schools. However, the efficacy and safety of using
nanomaterials in this product that involves direct handling by
children, is unknown. CPSC is sponsoring studies on (1) the
effectiveness of these backpacks as ``safety'' products to reduce the
potential for a bullet penetration; and (2) determining if there are
any exposure concerns from the nano-carbon materials over time while
the backpack is in use by children. Other Federal agencies do not
conduct such studies of consumer products under CPSC's jurisdiction,
unless CPSC provides funding and a research strategy, thus the
potential hazards associated with products such as the backpacks and
toys will not be addressed otherwise. The research currently sponsored
by CPSC meets critical data gaps on exposure and risk, trains the next
generation of scientists, and provides robust methods that
manufacturers can use to test their products.
The CPSC and National Nanotechnology Initiative (NNI) co-sponsored
an international workshop Quantifying Exposure to Engineered
Nanomaterials (QEEN) http://www.nano.gov/node/1327. The consensus was
that there is an urgent need for more information on nanomaterial use
and risk in consumer products. The absence of significant and
coordinated research on nanomaterial exposure due to consumer products
has been identified as a critical gap by the NNI. The NNI has involved
considerable interagency collaboration to develop this emerging
technology. An important component of this initiative includes the
development of strategic plans and other documents that outline
research needs and data gaps that must be addressed to develop this
technology responsibly. Each Federal agency participating in the NNI is
tasked with identifying the research needed to support its research or
regulatory mission. CPSC, as an NNI participant, identified the
nanotechnology center to address data gaps specific to CPSC's
regulatory mission. This proposal was vetted with the National Science
Foundation, the EPA, and the White House Office of Science and
Technology Policy. CPSC's current funding levels do not allow for the
development of robust test methodologies to answer questions regarding
how exposure to a consumer product could be measured or how any
potential identified risks can be addressed. Although CPSC staff
possesses knowledge of consumer product use, human factors, testing
requirements, and regulatory approaches for chemicals, this proposal
would be an effective and efficient way to conduct the necessary
research into exposure from consumer products containing nanomaterials.
We are requesting funding to: (1) develop robust test methods to
determine and characterize human exposure to nanomaterials from
consumer products; (2) characterize and understand consumer use of
products containing nanomaterials; and (3) provide support to
manufacturers, especially small businesses, with approaches to testing
their products for the release of, and potential exposure to
nanomaterials. All of these efforts are critical to ensuring the
responsible commercialization of nanotechnology. In addition, these
efforts will assist CPSC in assessing nanomaterials in products; assure
consumers of the safety of these materials; and provide manufacturers
with a robust and reliable means to test and assess these materials
when used in products. In terms of return on investment, I believe it
is far more prudent for Congress to allocate funds for us to address
this critical knowledge gap now as opposed to waiting to address any
health effects, especially to children, in the future.
Question 2. Chairman Kaye, in your testimony you mentioned that
there are three regulatory changes the Commission is going to consider
that would reduce the costs for small businesses associated with third-
party testing. When can small businesses expect to see results on these
changes and what other relief measures is the CPSC considering?
Answer. The first regulatory change, Direct Final Rule (DFR)/NPR on
Determinations with respect to the ASTM elements was published in the
Federal Register on July 16, 2015. Before the end of FY 2015, staff
will bring to the Commission the other two proposed regulatory changes,
an NPR on component part testing for heavy metals in toys and an NPR or
DFR as appropriate on determinations clarification on textile dyes and
prints.
Question 3. Chairman Kaye, as you know, industry stakeholders have
been working collaboratively with the American Society for Testing and
Materials International to develop standards for packaging, education
and a labeling of liquid laundry packets. The voluntary standards for
safe use and storage of these products are expected to be released
later this year. Do you agree that we should allow industry to see this
process through before moving forward with onerous regulations and
mandates? Can you provide an update on CPSC's engagement on this issue
and its interaction and collaboration with industry leaders to develop
these standards?
Answer. CPSC staff is very active in the ASTM voluntary standards
process for liquid laundry packets, which relies heavily on input from
all stakeholders, including consumer advocate groups. To keep the
process moving, CPSC has hosted a number of subcommittee meetings. The
subcommittee has twice balloted for approval a voluntary standard, and
is working to resolve issues related to: (1) whether all packaging must
meet the Poison Prevention Packaging Act protocol; (2) whether the
packet compression test must be changed; and (3) whether additional
requirements to reduce packet attractiveness are needed. CPSC staff
believes a consensus can be reached after one more round of balloting,
with the standard approved and published before the end of the calendar
year. The subcommittee and CPSC plan to closely monitor the incidents
after publication to measure the effectiveness of the standard. If the
voluntary standard is ineffective in reducing injuries, I believe that
formula changes, individually wrapping each laundry packet, and child-
resistant packaging should be vigorously pursued by all interested
parties. I have directed my staff to continue to monitor this issue
very closely and to keep my updated on its progress or lack thereof.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Hon. Elliot F. Kaye
Question 1. Carbon monoxide is a silent, odorless killer that can
strike at a moment's notice if the proper safeguards aren't put in
place. According to the Center for Disease Control, there are over 400
deaths and approximately 15,000 emergency room visits as a result of CO
poisoning each year. Just this winter in Minnesota a father and his 11
year-old daughter died of carbon monoxide poisoning because they didn't
have carbon monoxide detectors installed in their home. That is why I
introduced the Nicholas and Zachary Burt Memorial Carbon Monoxide
Poisoning Prevention Act, which is named for two young brothers of
Kimball, Minnesota who died from CO poisoning. This legislation would
allow the CPSC to provide support for public safety education and to
encourage installment of safe and reliable carbon monoxide detectors.
Will you support my bill and commit to working with me to help reduce
the number of deaths from carbon monoxide poisoning each year?
Answer. Working on preventing carbon monoxide (``CO'') poisoning
has been, and will continue to be, a priority as long as I am Chairman.
The latest CPSC data indicates there were 160 non-fire CO poisoning
deaths (in 2011) associated with consumer products, and more than 400
deaths per year from all products (according to the Centers for Disease
Control and Prevention). The silent and unseen nature of this hazard
makes the need to warn consumers even more pressing.
CPSC staff published a report in 2013 studying non-fire CO
incidents and deaths associated with engine-driven generators and other
engine-driven tools from 1999 to 2012. This report indicated that where
alarm presence (or not) was known, over 90 percent of CO incidents and
deaths occurred where there was no CO alarm. Accordingly, I support
your continued efforts, including the Nicholas and Zachary Burt
Memorial Carbon Monoxide Poisoning Prevention Act, to achieve greater
installation and use of working carbon monoxide alarms in U.S. homes.
My staff has spoken to the Burt family in the past, and we do not want
any other family to suffer as they did after the loss of their two
sons. If the Act is enacted and funded, CPSC will work closely with
your office to make sure steps are taken to ensure its effective
implementation.
Question 2.. Chairman Kaye, do you agree it is important to ensure
that every home has access to a reliable carbon monoxide detector? What
more can be done to ensure that all Americans have access to a reliable
carbon monoxide detector? In your opinion, how aware is the public
about the dangers of carbon monoxide poisoning and proper use of carbon
monoxide detectors? Do you believe we should be doing more to increase
awareness?
Answer. CPSC believes in the life-saving value of carbon monoxide
(``CO'') alarms in homes. As I noted above, when studying incidents and
deaths associated with CO poisoning, where alarm presence (or not) was
known, over 90 percent of CO incidents and deaths occurs where there is
no CO alarm present. Because this issue is so important, CPSC takes a
multi-faceted approach to educating the public:
Information center: The agency has a CO information center
on its website (at: CPSC CO Education Center) and regularly
puts out a variety of educational materials intended to reach
diverse audiences on the need for a CO alarm on every level of
every home and outside each sleeping area.
Outreach to middle school students: As part of our safety
campaign, we have twice sponsored a CO poster contest for
middle school students across the United States. The aim is to
educate young people about the dangers of this invisible killer
and leverage their knowledge, passion and posters to inform the
population more broadly. The contest materials encourage
science teachers and schools generally to educate their
students about the dangers of CO poisoning and to communicate
that message more broadly. The posters created by the students
help educate their fellow Americans. This outreach effort has
been successful. On May 13, 2015, CPSC announced the 10 winners
of the contest out of a record 700 entries. Complete details,
including the winning poster entries, can be found here: CPSC
Carbon Monoxide Poster Contest Winners Announced.
Timely Press Releases/Blogs: Twice every year, coinciding
with the beginning and end of Daylight Savings Time, CPSC
issues media and consumer alerts recommending that consumers
change the batteries in their CO and smoke alarms when they
change their clocks. These communications also provide an
opportunity for the agency to remind consumers about the need
for CO alarms.
Death and incident data: Annually CPSC releases two reports
relating to incidents and deaths associated with CO poisoning.
One analyzes the non-fire CO deaths associated with the use of
consumer products in order to help educate the public, the
media, and all related stakeholders about the seriousness of
the hazard. The most recent report can be found here: Non-Fire
Carbon Monoxide Deaths Associated with the Use of Consumer
Products 2011 Annual Estimates--released January 2015.
Unfortunately, the data show that the number of non-fire CO
deaths in 2011 was 160, which was an increase from previous
years. The next version of this report is due to be completed
this Fiscal Year.
The second report is focused specifically on generators and engine-
driven tools, because those products represent the largest
percentage of incidents and deaths related to CO poisoning from
consumer products. The next version of this report is also due
to be released this fiscal year.
Rule development: As noted, the largest percentage of
consumer product-related CO deaths are associated with engine-
driven tools such as portable generators. It is for this reason
that I have continued to support CPSC staff's work on the
mandatory portable generator standard. In the interest of
inter-agency collaboration and in order to further this
important effort I have personally traveled to the National
Institute for Standards and Technology (NIST) and met with my
counterpart, Director Willie E. May, to further the work of
both agencies in this area that will be vital to our final
rule. In addition, CPSC staff continues to work with
manufacturers and other stakeholders to improve the existing
voluntary standards for portable generators to reduce or
eliminate the exposure to CO that consumers face when using
these products--particularly after a disaster such as a storm
or hurricane that results in power outages.
In addition, CPSC is continuing to work on voluntary standards in
the areas of CO sensors for gas furnaces. Currently, there is a
proposal in development with one of the voluntary standards
organizations to augment the existing requirements of the
standard to require the furnace to shut itself down should
excess CO be emitted. Our mid-year budget adjustment included
additional resources to research and evaluate this technology.
There is no question that more can be done to increase public
awareness of the dangers of CO poisoning and proper use of CO
detectors. As revealed in the U.S. Census Department American Housing
Survey in 2011, only 42 percent of all U.S. households reported having
working CO detectors and for those living below the poverty line, the
percentages dropped to 31 percent. We look forward to working with you
and your office to help support these important efforts to increase the
use of this safety device to help protect American families from the
dangers of this invisible killer.
______
Response to Written Questions Submitted by Hon. Joe Manchin to
Hon. Elliot F. Kaye
Question 1. I appreciate the hard work of the men and women at the
Consumer Product Safety Commission, and I thank you for your commitment
to protecting children, pregnant women and all Americans from unsafe
products on our shelves. I have recently begun hearing a lot about
phthalates, chemicals used to soften plastic and make it more durable.
Advocates say that it can be a very useful additive for children's toys
and other plastic products that are heavily used and could, without
them, become brittle and more susceptible to cracking and breaking.
While I agree that we do not want our children's toys disintegrating
into plastic shrapnel that could become a choking hazard, I remain
somewhat confused about the CPSC's perspective on phthalates. From my
understanding, the Chronic Hazard Advisory Panel on phthalates and
phthalate alternatives recommended a continuation of the current
temporary ban because of the ``cumulative risk'' posed by phthalates.
Question 1a. Cumulative risk is a pretty general term. Please
explain the specific dangers that phthalates pose in this cumulative
risk assessment.
Answer. Section 108 of the Consumer Product Safety Improvement Act
stated that the Chronic Hazard Advisory Panel (CHAP) ``shall . . .
consider the cumulative effects of total exposure from phthalates, both
from children's products and from other sources, such as personal care
products.'' The CHAP based its cumulative risk assessment on male
developmental reproductive effects, also known as the ``phthalate
syndrome.'' Research has shown that prenatal exposure to certain
phthalates (including DEHP and DINP) leads to undescended testes,
malformations of the penis (hypospadias), anatomical variations
(reduced anogenital distance), and reduced fertility in adulthood.
Although the male fetus is the most sensitive, infants, juveniles, and
adult males, and females are also affected. Laboratory studies
demonstrate that mixtures of certain phthalates are additive; that is,
they have cumulative effects. In addition, a growing number of studies
have found associations between phthalate exposure and adverse health
effects in humans, including infants and adults. Studies have indicated
that the health effects in humans are generally consistent with the
effects seen in animals.
Question 1b. Are cumulative risk assessments a proven and effective
means of regulating chemicals?
Answer. Cumulative risk assessment (CRA) and mixtures risk
assessment methods have been in development for many years. The U.S.
Environmental Protection Agency (EPA) began developing a cumulative
risk framework in the 1990s. The EPA's Office of Pesticide Programs
uses cumulative risk methodology to assess the risks from pesticides,
consistent with the Food Quality Protection Act (FQPA). The Agency for
Toxic Substances and Disease Registry (ATSDR) uses similar methodology
for chemical mixtures in the environment. EPA, ATSDR, and the
International Program on Chemical Safety have issued cumulative risk
assessment guidelines. The National Research Council, in 2008,
recommended male reproductive development as the appropriate health
endpoint for cumulative risk assessment of phthalates. After reviewing
all the available data, the CHAP reached a similar conclusion. The
methods that the CHAP used to assess cumulative risk are consistent
with the recommendations of the National Research Council.\1\
---------------------------------------------------------------------------
\1\ NRC, 2008. Phthalates and Cumulative Risk Assessment. The Task
Ahead., Committee on the Health Risks of Phthalates, National Research
Council, National Academy Press, Washington, DC.
---------------------------------------------------------------------------
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Hon. Robert S. Adler
Question. Carbon monoxide is a silent, odorless killer that can
strike at a moment's notice if the proper safeguards aren't put in
place. According to the Center for Disease Control, there are over 400
deaths and approximately 15,000 emergency room visits as a result of CO
poisoning each year. Just this winter in Minnesota a father and his 11
year-old daughter died of carbon monoxide poisoning because they didn't
have carbon monoxide detectors installed in their home. That is why I
introduced the Nicholas and Zachary Burt Memorial Carbon Monoxide
Poisoning Prevention Act, which is named for two young brothers of
Kimball, Minnesota who died from CO poisoning. This legislation would
allow the CPSC to provide support for public safety education and to
encourage installment of safe and reliable carbon monoxide detectors.
Will you support my bill and commit to working with me to help reduce
the number of deaths from carbon monoxide poisoning each year?
Answer. I share your concern about carbon monoxide (``CO''), and am
heartbroken by the lives this silent killer takes: over 400 consumers
each year. These deaths are made all the more tragic knowing that they
are preventable with the use of a properly functioning CO alarm. I
fully support your bill, the Nicholas and Zachary Burt Memorial Carbon
Monoxide Poisoning Prevention Act, and believe it could do much to
raise awareness of this critical public health issue. I assure you that
CPSC continues to dedicate significant resources to reducing the risk
of CO poisoning from consumer products, and our staff stands ready to
implement the grant program described in the bill if enacted and
funded.
I thank you for your efforts, and hope that you will call on me if
I can assist in any way with protecting consumers from this silent
killer. I encourage everyone to install working CO alarms in homes for
an early warning. I remind consumers to use precaution when operating
portable generators, and to get a professional inspection of all fuel-
burning appliances every year, including furnaces, chimneys and water
heaters to guard against CO leaks. We can work together to stop this
invisible killer from threatening the safety of our friends, family,
and community.
______
Response to Written Questions Submitted by Hon. Joe Manchin to
Hon. Robert S. Adler
Question 1. I appreciate the hard work of the men and women at the
Consumer Product Safety Commission, and I thank you for your commitment
to protecting children, pregnant women and all Americans from unsafe
products on our shelves. I have recently begun hearing a lot about
phthalates, chemicals used to soften plastic and make it more durable.
Advocates say that it can be a very useful additive for children's toys
and other plastic products that are heavily used and could, without
them, become brittle and more susceptible to cracking and breaking.
While I agree that we do not want our children's toys disintegrating
into plastic shrapnel that could become a choking hazard, I remain
somewhat confused about the CPSC's perspective on phthalates. From my
understanding, the Chronic Hazard Advisory Panel on phthalates and
phthalate alternatives recommended a continuation of the current
temporary ban because of the ``cumulative risk'' posed by phthalates.
Question 1a. Cumulative risk is a pretty general term. Please
explain the specific dangers that phthalates pose in this cumulative
risk assessment.
Answer. Senator, I appreciate your interest in phthalates. As the
process required by Section 108 of the Consumer Product Safety
Improvement Act (CPSIA) continues, I consult with CPSC's highly-trained
technical staff of scientists and engineers, who are best qualified to
quantify the risks phthalates pose to consumers. Section 108 of the
CPSIA stated that the Chronic Hazard Advisory Panel (CHAP) ``shall . .
. consider the cumulative effects of total exposure from phthalates,
both from children's products and from other sources, such as personal
care products.'' The CHAP based its cumulative risk assessment on male
developmental reproductive effects, also known as the ``phthalate
syndrome.'' Prenatal exposure to certain phthalates (including DEHP and
DINP) leads to undescended testes, malformations of the penis
(hypospadias), anatomical variations (reduced anogenital distance), and
reduced fertility in adulthood. Although the male fetus is the most
sensitive, infants, juveniles, and adult males, and females are also
affected. Laboratory studies demonstrate that mixtures of certain
phthalates are additive; that is, they have cumulative effects. In
addition, a growing number of studies have found associations between
phthalate exposure and adverse health effects in humans, including
infants and adults. The health effects in humans are generally
consistent with the effects seen in animals.
Question 1b. Are cumulative risk assessments a proven and effective
means of regulating chemicals?
Answer. According to CPSC's technical staff, cumulative risk
assessment (CRA) and mixtures risk assessment methods have been in
development for many years. The U.S. Environmental Protection Agency
(EPA) began developing a cumulative risk framework in the 1990s. The
EPA's Office of Pesticide Programs uses cumulative risk methodology to
assess the risks from pesticides, consistent with the Food Quality
Protection Act (FQPA). The Agency for Toxic Substances and Disease
Registry (ATSDR) uses similar methodology for chemical mixtures in the
environment. EPA, ATSDR, and the International Program on Chemical
Safety have issued cumulative risk assessment guidelines. The National
Research Council, in 2008, recommended male reproductive development as
the appropriate health endpoint for cumulative risk assessment of
phthalates. After reviewing all the available data, the CHAP reached a
similar conclusion. The methods that the CHAP used to assess cumulative
risk are consistent with the recommendations of the National Research
Council.\1\
---------------------------------------------------------------------------
\1\ NRC, 2008. Phthalates and Cumulative Risk Assessment. The Task
Ahead., Committee on the Health Risks of Phthalates, National Research
Council, National Academy Press, Washington, DC.
---------------------------------------------------------------------------
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Hon. Ann Marie Buerkle
Question 1. Commissioner Buerkle, when the Commission voted on the
NPR on Section 108 of the CPSIA, there was a lot of discussion
concerning the CPSIA's requirement for the Commission to make a
determination on whether to keep the interim bans in place ``based on''
the CHAP report.
If it shown that the CHAP analysis was scientifically flawed or is
now outdated, do you believe the Commission has the discretion to make
a determination that would contradict the recommendations of the CHAP
with respect to the interim bans in the final rule?
Answer. Yes, I believe the Commission has not only the discretion
but the duty to make our determination based on the best available
scientific evidence. Under Section 108 of the CPSIA, the Chronic Hazard
Advisory Panel (CHAP) was charged to make recommendations on which
phthalates should be banned and which interim bans should be continued.
The CHAP operated in an advisory capacity to the Commission. The CPSIA
also directed the Commission to provide an opportunity for public
comment. That would be an empty gesture if the Commission were
obligated to follow the CHAP's recommendations in spite of public
comment showing that those recommendations were not based on the best
available science.
Question 2. Commissioner Buerkle, the CHAP report on phthalates was
supposed to make recommendations on whether any phthalates or
alternatives were supposed to banned as hazardous substances--a term
defined by CPSC statute and regulation. Instead of making
recommendations on the basis of CPSC precedent on the safety of
chemicals, the CHAP recommended to ban chemicals based on the fact that
they could contribute, even if only in a marginal way, to a cumulative
risk.
In the same report, the CHAP indicated that they did not have any
data to evaluate the chemical safety of the alternatives that will
replace banned phthalates. Do you feel comfortable recommending a ban
of something that ``only very marginally contributes'' to a cumulative
risk, in favor of an untested alternative?
Answer. No, I am very uncomfortable with a ban under such
circumstances. If one chemical contributes only ``very marginally'' to
a cumulative risk--and more recent data suggest even that may be
overstated, then it is quite possible that an untested alternative
could pose a substantially greater risk to consumers. That cannot be
what Congress had in mind when it enacted CPSIA.
______
Response to Written Question Submitted by Hon. Debra Fischer to
Hon. Ann Marie Buerkle
Question. Commissioner Buerkle, you highlighted some of the issues
surrounding the Notice of Proposed Rulemaking regarding phthalates.
Specifically, you mentioned the use of data from 2005 and 2006 when
data from 2009 and 2010 was available, as well as a lack of
transparency in the peer review process. Additionally, there are
concerns CPSC relied on a risk assessment that is unproven and the
rulemaking did not address other issues. Have these concerns been
addressed? If not, why?
Answer. I have repeatedly expressed my strong concern that the
CHAP's cumulative risk assessment relied on outdated exposure data. The
CHAP used data from the 2005-2006 NHANES study to evaluate the exposure
of pregnant women and even older data from the 1999-2005 SFF study to
evaluate the exposure of children under 3. This was inappropriate
because CPSIA was enacted in 2008, restricting the use of several
phthalates included in the cumulative risk assessment.
In response to my concern, the CPSC Chairman asked the staff to
analyze the more recent exposure data. The staff's analysis appears to
me to vitiate the basis for the CHAP's original recommendation;
however, the staff offered no comment on how the latest analysis would
affect the proposed bans. While the Commission re-opened the comment
period to allow comment on the staff's analysis, I remain concerned
that the public should have had an opportunity to comment on the
science before the Commission formulated its proposal last fall.
As for the other concerns I have raised, I do not yet know whether
they will be addressed. The staff is reviewing public comments and
preparing its recommendations for a final rule, but I am not privy at
this point to their thinking. I remain extremely concerned that despite
the analysis of the more recent data, that the agency will continue to
accept the recommendation of the CHAP.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Hon. Ann Marie Buerkle
Question. Carbon monoxide is a silent, odorless killer that can
strike at a moment's notice if the proper safeguards aren't put in
place. According to the Center for Disease Control, there are over 400
deaths and approximately 15,000 emergency room visits as a result of CO
poisoning each year. Just this winter in Minnesota a father and his 11
year-old daughter died of carbon monoxide poisoning because they didn't
have carbon monoxide detectors installed in their home. That is why I
introduced the Nicholas and Zachary Burt Memorial Carbon Monoxide
Poisoning Prevention Act, which is named for two young brothers of
Kimball, Minnesota who died from CO poisoning. This legislation would
allow the CPSC to provide support for public safety education and to
encourage installment of safe and reliable carbon monoxide detectors.
Will you support my bill and commit to working with me to help reduce
the number of deaths from carbon monoxide poisoning each year?
Answer. I strongly support information and educational campaigns
that help consumers understand health and safety issues that fall
within the jurisdiction of Consumer Product Safety Commission.
______
Response to Written Questions Submitted by Hon. Joe Manchin to
Hon. Ann Marie Buerkle
Question 1. I appreciate the hard work of the men and women at the
Consumer Product Safety Commission, and I thank you for your commitment
to protecting children, pregnant women and all Americans from unsafe
products on our shelves. I have recently begun hearing a lot about
phthalates, chemicals used to soften plastic and make it more durable.
Advocates say that it can be a very useful additive for children's toys
and other plastic products that are heavily used and could, without
them, become brittle and more susceptible to cracking and breaking.
While I agree that we do not want our children's toys disintegrating
into plastic shrapnel that could become a choking hazard, I remain
somewhat confused about the CPSC's perspective on phthalates. From my
understanding, the Chronic Hazard Advisory Panel on phthalates and
phthalate alternatives recommended a continuation of the current
temporary ban because of the ``cumulative risk'' posed by phthalates.
Question 1a. Cumulative risk is a pretty general term. Please
explain the specific dangers that phthalates pose in this cumulative
risk assessment.
Answer. The Consumer Product Safety Improvement Act of 2008 (CPSIA)
directed that U.S. Consumer Product Safety Commission to convene a
Chronic Hazard Advisory Panel (CHAP) to study the effects of all
phthalates and phthalate alternative used in children's toys and child
care articles. The CHAP's recommendations depend on a cumulative risk
assessment incorporating five phthalates that, to varying degrees, are
associated with anti-androgenic effects. By far the strongest
contributor to the cumulative risk assessment was a phthalate (DEHP)
that has already been permanently banned by Congress in the CPSIA.
I have repeatedly expressed my strong concern that the CHAP's
cumulative risk assessment relied on outdated exposure data. The CHAP
used data from the 2005-2006 NHANES study to evaluate the exposure of
pregnant women and even older data from the 1999-2005 SFF study to
evaluate the exposure of children under 3. This was inappropriate
because CPSIA was enacted in 2008, restricting the use of several
phthalates used in the cumulative risk assessment.
Question 1b. Are cumulative risk assessments a proven and effective
means of regulating chemicals?
Answer. No. While Federal agencies have begun to grapple with the
problems of cumulative risk assessment, it is my understanding that no
U.S. agency has ever before banned a chemical based solely on a
cumulative risk assessment. The CPSIA did not require us to do so here.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Hon. Joseph P. Mohorovic
Question. Carbon monoxide is a silent, odorless killer that can
strike at a moment's notice if the proper safeguards aren't put in
place. According to the Center for Disease Control, there are over 400
deaths and approximately 15,000 emergency room visits as a result of CO
poisoning each year. Just this winter in Minnesota a father and his 11
year-old daughter died of carbon monoxide poisoning because they didn't
have carbon monoxide detectors installed in their home. That is why I
introduced the Nicholas and Zachary Burt Memorial Carbon Monoxide
Poisoning Prevention Act, which is named for two young brothers of
Kimball, Minnesota who died from CO poisoning. This legislation would
allow the CPSC to provide support for public safety education and to
encourage installment of safe and reliable carbon monoxide detectors.
Will you support my bill and commit to working with me to help reduce
the number of deaths from carbon monoxide poisoning each year?
Answer. I fully support raising awareness of the dangers of carbon
monoxide poisoning from portable generators and other sources. Indeed,
during debate on our Fiscal Year 2015 Midyear Operating Plan
Adjustments I asked my fellow Commissioners to dedicate $500,000 to
fund an expansion of a successful public information campaign our
Office of Communications has run that includes distributing CO warnings
in disaster-stricken areas. Portable generators are the leading cause
of CO deaths over the last decade,\1\ and disasters bring increases in
generator use and, unfortunately, generator-related CO deaths.
---------------------------------------------------------------------------
\1\ See Matthew Hnatov, U.S. Consumer Product Safety Commission,
Non-Fire Carbon Monoxide Deaths Associated with the Use of Consumer
Products, 3 (2014), available at http://www.cpsc.gov/en/Media/
Documents/Research--Statistics/Injury-Statistics/Non-Fire-Carbon-
Monoxide/Non-fire-Carbon-Monoxide-Deaths-Associated-with-the-Use-of-
Consumer-Products-2011
-Annual-Estimates/
?utm_source=rss&utm_medium=rss&utm_campaign=Carbon+Monoxide+
Injury+Statistics.
---------------------------------------------------------------------------
While I was unsuccessful in that request, I continue to believe
that CO from generators and other sources should be a priority of the
Commission. It is a latent hazard that is exactly the kind of risk
Congress envisioned the CPSC addressing. Even consumers who understand
CO is a risk of generator use may not appreciate the seriousness of the
risk. According to our staff's research, portable generator can emit
1500 times as much CO per hour as an automobile.\2\
---------------------------------------------------------------------------
\2\ Janet Buyer, U.S. Consumer Product Safety Commission, CPSC
Activities to Address CO Poisoning Hazard of Portable Generators, 17
(2014), available at http://www.cpsc.gov/Global/Research-and-
Statistics/Technical-Reports/Home/Portable-Generators/
PresentationonPortableGene
ratorProjectforNIOSHConstructionSectorCouncilMeeting.pdf.
---------------------------------------------------------------------------
While I support the spirit of the grant program envisioned by your
legislation, however, I am concerned that it not distract from the
Commission's efforts to more directly address the hazard through
standards development for portable generators. In conjunction with the
relevant voluntary standards bodies, we are working to develop
requirements that govern how much CO generators can produce and what
safety features they should incorporate to guard against toxic
environments. Despite my usual preference to educate consumers and
respect their educated choices, with this hazard--where we see deaths
of people who were clearly aware of the risk and tragically thought
that keeping the generator in an open garage would be sufficient--I
believe there may be a greater need for demanding safer performance
from this product.
______
Response to Written Question Submitted by Hon. Tom Udall to
Hon. Joseph P. Mohorovic
Question. Commissioner Mohorovic, could you expand on your idea of
improving import surveillance by implementing a ``trusted trader''
program for importers? For example, could you give more details about
what an importer would need to do to be certified as a ``trusted
trader'' and how you envision such an effort would be funded?
Answer. While the specifics would be developed by the Commission
and our staff through engagement with all stakeholders, the bedrock
principle of Trusted Trader status would be empirical evidence of
competence for and commitment to consumer safety throughout a company's
processes, including its supply chain.
In June of 2014, in conjunction with U.S. Customs and Border
Protection, we invited companies to participate in a test of the
trusted trader concept. The requirements for participation in that
program comprised a thorough desktop audit of an applicant's policies
and compliance history. The Trusted Trader program I envision would go
well beyond such an audit to include site visits and other
investigative tools designed to assure not only that a company's
products had been safe and compliant to that point, but that they would
continue to be safe and compliant because the sophistication of its
processes made any other result as unlikely as possible.
As for funding, I believe that, while a modest dedicated
appropriation may be necessary to create the program, its ongoing
operation can be accomplished through existing appropriations. Properly
structured, a Trusted Trader will in essence save money for importers
at the ports by obviating needless inspections of compliant companies'
products.
Incorporating the trusted trader program assists with shaping the
overall risk profile of the agencies import program. Having more
participants in this program reduces the overall volume of cargo that
both CBP and CPSC would be required to inspect. Operational costs to
effectively monitor such a program would continue year after year as
infrequent validations of trusted trader participants are required.
______
Response to Written Questions Submitted by Hon. Joe Manchin to
Hon. Joseph P. Mohorovic
Question 1. I appreciate the hard work of the men and women at the
Consumer Product Safety Commission, and I thank you for your commitment
to protecting children, pregnant women and all Americans from unsafe
products on our shelves. I have recently begun hearing a lot about
phthalates, chemicals used to soften plastic and make it more durable.
Advocates say that it can be a very useful additive for children's toys
and other plastic products that are heavily used and could, without
them, become brittle and more susceptible to cracking and breaking.
While I agree that we do not want our children's toys disintegrating
into plastic shrapnel that could become a choking hazard, I remain
somewhat confused about the CPSC's perspective on phthalates. From my
understanding, the Chronic Hazard Advisory Panel on phthalates and
phthalate alternatives recommended a continuation of the current
temporary ban because of the ``cumulative risk'' posed by phthalates.
Question 1a. Cumulative risk is a pretty general term. Please
explain the specific dangers that phthalates pose in this cumulative
risk assessment.
Answer. As you know, Section 108 of the Consumer Product Safety
Improvement Act required that the CHAP consider the cumulative effects
of phthalates. The premise behind that requirement seems to be that,
where various phthalates have similar effects, exposure to otherwise-
acceptable levels of all of them could yield an unacceptable total
exposure.
Question 1b. Are cumulative risk assessments a proven and effective
means of regulating chemicals?
Answer. Cumulative risk assessments of the kind the CHAP performed
are novel and, thus, not a proven and effective means of regulating
chemicals. Further, while the final CHAP report was circulated for a
closed peer review, the CHAP did not subject the methodology it used to
evaluate cumulative risk to separate, open peer review. This is
inconsistent with Federal scientific standards. ``More rigorous peer
review is necessary for information that is based on novel methods or
presents complex challenges for interpretation.'' \3\
---------------------------------------------------------------------------
\3\ Office of Management and Budget, Final Information Quality
Bulleting for Peer Review, 70 Fed. Reg. 2664 (Jan. 14, 2005).
---------------------------------------------------------------------------
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Hon. Marietta S. Robinson
Question. Carbon monoxide is a silent, odorless killer that can
strike at a moment's notice if the proper safeguards aren't put in
place. According to the Center for Disease Control, there are over 400
deaths and approximately 15,000 emergency room visits as a result of CO
poisoning each year. Just this winter in Minnesota a father and his 11
year-old daughter died of carbon monoxide poisoning because they didn't
have carbon monoxide detectors installed in their home. That is why I
introduced the Nicholas and Zachary Burt Memorial Carbon Monoxide
Poisoning Prevention Act, which is named for two young brothers of
Kimball, Minnesota who died from CO poisoning. This legislation would
allow the CPSC to provide support for public safety education and to
encourage installment of safe and reliable carbon monoxide detectors.
Will you support my bill and commit to working with me to help reduce
the number of deaths from carbon monoxide poisoning each year?
Answer. I am committed to reducing the number of deaths from carbon
monoxide (CO) poisoning which is why I support S. 1250: The Nicholas
and Zachary Burt Memorial Carbon Monoxide Poisoning Prevention Act, and
look forward to it being enacted and funded. CPSC has a longstanding
outreach campaign on the dangers of CO poisoning which includes press
releases, semi-annual reminders to consumers to check and change
batteries in CO alarms, several publications on our website, as well as
a national poster contest for middle school students aimed at educating
students and families about poisonous carbon monoxide.
According to our latest available data on CO incidents associated
with all engine-driven tools (EDTs), there were 931 fatalities from 725
incidents from 1999 through 2012.\1\ A CO alarm was reported to have
been present in only 21 of 279 incidents where alarm presence was
known, which accounted for 30 of 385 fatalities caused by CO from
EDTs.\2\ Additionally, the data show that in eleven of the incidents,
the CO alarm was inoperable due to batteries being installed improperly
or not having batteries at all, drained batteries, or lack of an
electric current.\3\
---------------------------------------------------------------------------
\1\ Incidents, Deaths, and In-Depth Investigations Associated with
Non-Fire Carbon Monoxide from Engine-Driven Generators and Other
Engine-Driven Tools, 1999-2012, August 2013, at 4, available at: http:/
/www.cpsc.gov/Global/Research-and-Statistics/Injury-Statistics/Carbon-
Mo
noxide-Posioning/GeneratorsAndOEDTFatalities2013FINAL.pdf pg. 4
\2\ Id. 5
\3\ Id. 5
---------------------------------------------------------------------------
I am encouraged by the growing number of state and local
requirements regarding the proper installation of CO detectors and it
is my hope that additional states and jurisdictions will adopt similar
requirements. I will continue to support public safety education
efforts on the importance of having properly installed carbon-monoxide
detectors, especially during winter months and hurricane season when
CO-related fatalities are more prevalent.\4\
---------------------------------------------------------------------------
\4\ Non-Fire Carbon Monoxide Deaths Associated with the Use of
Consumer Products, September 2014, at 5 and 10, available at: http://
www.cpsc.gov/Global/Research-and-Statistics/In
jury-Statistics/Carbon-Monoxide-Posioning/
NonFireCarbonMonoxideDeathsAssociatedwiththe
UseofConsumerProducts2011AnnualEstimatesSept2014.pdf
---------------------------------------------------------------------------
______
Response to Written Questions Submitted by Hon. Joe Manchin to
Hon. Marietta S. Robinson
Question 1. I appreciate the hard work of the men and women at the
Consumer Product Safety Commission, and I thank you for your commitment
to protecting children, pregnant women and all Americans from unsafe
products on our shelves. I have recently begun hearing a lot about
phthalates, chemicals used to soften plastic and make it more durable.
Advocates say that it can be a very useful additive for children's toys
and other plastic products that are heavily used and could, without
them, become brittle and more susceptible to cracking and breaking.
While I agree that we do not want our children's toys disintegrating
into plastic shrapnel that could become a choking hazard, I remain
somewhat confused about the CPSC's perspective on phthalates. From my
understanding, the Chronic Hazard Advisory Panel on phthalates and
phthalate alternatives recommended a continuation of the current
temporary ban because of the ``cumulative risk'' posed by phthalates.
Question 1a. Cumulative risk is a pretty general term. Please
explain the specific dangers that phthalates pose in this cumulative
risk assessment.
Answer. Section 108(b)(2) of the Consumer Product Safety
Improvement Act of 2008 (CPSIA) directed the Chronic Hazard Advisory
Panel (CHAP) to:
``complete an examination of the full range of phthalates that
are used in products for children and shall . . .
(iv) consider the cumulative effect of total exposure to
phthalates, both from children's products and from other
sources, such as personal care products''
As the CHAP report has shown, many of the phthalates to which we
are exposed can cause severe health problems such as liver toxicity,
cancer, and neurological and behavioral problems.\5\ Even more
troubling, cumulative exposure to some phthalates combines to increase
the risk of adverse effects.\6\ Therefore, if we are to effectively
address the hazard these phthalates pose, we must take into account our
total exposure to them as opposed to looking only at each phthalate in
isolation. As the CHAP has found, the most widely-studied of these
cumulative effects is antiandrogenicity, whereby these phthalates
disrupt the normal development of male fetuses.\7\ These effects can
cause debilitating lifelong physical deformities such as cryptorchidism
(undescended testes), hypospadias (a deformity of the penis), and
reduced anogenital distance, as well as reduced fertility and increased
risk of testicular cancer.\8\ For its cumulative risk assessment, the
CHAP studied the antiandrogenic effects of phthalates and found, using
bio-monitoring studies, that about ten percent of pregnant women and
five percent of children have a Hazard Index (HI) of over one for
active phthalates. The HI is an application of the dose-addition
principle and is widely used in cumulative risk assessments of chemical
mixtures. An HI greater than one indicates that the exposure exceeds
the acceptable exposure for the mixture.\9\ The CHAP's cumulative risk
assessment resulted in the recommendations for permanent bans on
phthalates with antiandrogenic effects, which were adopted by the CPSC
in its Notice of Proposed Rulemaking.
---------------------------------------------------------------------------
\5\ Chronic Advisory Panel on Phthalates and Phthalate
Alternatives, July 2014, at 13, 25, 31 available at https://
www.cpsc.gov/PageFiles/169876/CHAP-REPORT-FINAL.pdf
\6\ See Id. 26
\7\ Id.
\8\ Id. 28
\9\ Id. 26
Question 1b. Are cumulative risk assessments a proven and effective
means of regulating chemicals?
Answer. As the CHAP found, there is significant scientific
literature supporting the conclusion that antiandrogenic phthalates
have cumulative effects in terms of the risk they pose to human
health.\10\ The CHAP also considered how to assess these cumulative
effects and found that the phthalates act in a ``dose additive''
effect.\11\ The cumulative risk assessment was based on sound science
and followed recommendations of the National Research Council. The
cumulative risk methodology has also been used by other agencies, such
as the U.S. Environmental Protection Agency and the Agency for Toxic
Substances and Disease Registry. Given the serious health risks
associate with phthalates and exposure patterns, cumulative risk
assessment was necessary to properly address the real risks posed by
phthalates in children's toys and child-care articles.
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\10\ Id. 26
\11\ Id. 4
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______
Response to Written Question Submitted by Hon. Tom Udall to
Hon. Marietta S. Robinson
Question. Commissioner Robinson, I want to thank you again for
coming to Albuquerque two years ago to speak about toy safety. I would
like to follow up on this issue as it relates to import surveillance.
Congress and this Committee turned their attention to the issue of
children's toy safety in 2007 following an infamous ``Summer of
Recalls'' and problems with imported toys. Toys coated in lead paint.
Children being rushed to the emergency room after swallowing powerful
magnets that attached inside the body. Congress found that CPSC did not
have the resources to meet its mandate. Some imported toys did not meet
voluntary industry standards for safety. That's why I supported
landmark legislation, the 2008 Consumer Product Safety Improvement Act.
This new law set the strictest toy safety standards in the world. It
increased the CPSC's ability to keep unsafe imported toys from reaching
store shelves. Families can now report and search for product safety
hazards through an online CPSC database. As a result, parents today can
have more confidence this holiday season that their children's toys are
safe. Can you describe for me how CPSC can continue to build on its
positive record here in terms of improving consumer safety, especially
in terms of imported consumer products?
Answer. It was a pleasure to participate with Senator Udall at the
toy safety event at the Children's Hospital in New Mexico. I believe we
were able to deliver a powerful toy safety message at the peak of the
holiday shopping season.
Section 222 of the Consumer Product Safety Improvement Act of 2008
(CPSIA) requires CPSC to create an import surveillance Risk Assessment
Methodology (RAM) to identify products imported into the United States
that are most likely to violate consumer product safety statutes and
regulations. CPSC has been successfully operating a pilot RAM in a
limited number of areas and is now ready to fully implement it
nationwide.
CPSC's proposed RAM surveillance system will rely upon existing
data collected through Customs and Border Protection's (CBP's)
International Trade Data System (ITDS). When fully implemented, the RAM
surveillance system will analyze all incoming import product lines
under CPSC's jurisdiction and determine high-risk entries before they
arrive at U.S. ports. These entries will be inspected by CPSC and CBP
at the port with the goal of reducing the number of violative or
potentially hazardous consumer products from entering the U.S.
CPSC has requested authorization from Congress of a user fee to
fund the building of the information technology system to fully
implement the RAM. Additionally, CPSC will need additional inspectors
co-located with CBP at the ports of entry and lab scientists to review
entry samples. CPSC estimates the total cost of the RAM system to be
approximately $60M. CPSC proposes to collect $36M in user fees, which
is a small amount compared to the annual average of $723B in consumer
products under CPSC's jurisdiction that arrive in U.S. ports. CPSC
estimates the average fee will be about $1 for every $14,000 in import
value, resulting in a user fee payment of about $3-$5 for a typical
shipment.
Additionally, we are considering the electronic filing of
certificates of compliance as part of the single-window initiative, in
the spirit of Executive Order 13659, Streamlining the Export/Import
Process for America's Businesses.\12\ This would create a simpler, more
efficient trade process for importers by utilizing modernized
technology. Also, this would enhance the CPSC's ability to target high-
risk entries before they enter U.S. commerce. We have actively engaged
stakeholders in discussions on the technical aspects of electronic
filing of certificates and are encouraging stakeholders to participate
in the pilot program. Many other government agencies already have the
IT systems and funding necessary to update their current import
systems, processes and procedures to comply with the single-window
initiative.
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\12\ https://www.whitehouse.gov/the-press-office/2014/02/19/
executive-order-streamlining
-exportimport-process-america-s-businesses
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