Mr. ECKHARDT. Now we have as witnesses Chairman Byington, Vice Chairman Barbara Hackman Franklin, Commissioner R. David Pittle, Michael A. Brown, Executive Director, and Theodore Garrish, General Counsel, from the Commission. You may proceed in the manner you see fit, Mr. Byington.

STATEMENTS OF S. JOHN BYINGTON, CHAIRMAN, CONSUMER PRODUCT SAFETY COMMISSION; BARBARA HACKMAN FRANKLIN, VICE CHAIRMAN; AND R. DAVID PITTLE, COMMISSIONER, ACCOMPANIED BY MICHAEL A. BROWN, EXECUTIVE DIRECTOR, AND THEODORE GARRISH, GENERAL COUNSEL

Mr. BYINGTON. We have already submitted our extensive testimony, and we would be pleased to summarize in the interest of time. Mr. ECKHARDT. Without objection, you may do so.

Mr. BYINGTON. I am proud to be here, Mr. Chairman, at this time, on the basis of our emerging record of regulatory action in the past 12 to 18 months, which we believe lends credibility to CPSC as an independent regulatory agency.

As I indicated, we have submitted our full and extensive testimony on the status of projects, litigation, the reduction of petition backlog, and other items of interest to the committee. So, in the interest of time I would like to confine my remarks as Chairman of this Commission to three primary subjects before the subcommittee at this time-our authorization, the offeror process, and the insulation legislation.

In terms of authorization, we believe at this point in time the agency is at a crossroads. One of the things we really need to do is to come to some agreement with our various committees and other constituencies as to the true role and mission of the Consumer Product Safety Commission. We hope that the Senate will act soon on the nominations of two new Commissioners so we will have a full statutory complement of Commissioners for the first time in 2 years.

Now we need, as I indicated, a consensus on the role and mission of the Consumer Product Safety Commission. We have been discussing possible criteria for evaluating this agency's performance in the last couple of days with our House Appropriations Committee. Personally, I do not believe we should be judged on how many mandatory standards we issue, nor do I believe we should be judged exclusively on injury reduction. I do believe we should be judged on the actions we have taken to protect consumers from unreasonable risk by eliminating specific hazards.

Therefore, we strongly support a 3-year authorization for the Consumer Product Safety Commission at the levels we have recommended-$55 million, $60 million, and $65 million. Personally, Mr. Chairman, I believe we are faced with a major public policy question as we proceed with this authorization, and that is, what is the role of the Consumer Product Safety Commission to be in the area of chronic hazards?

I think an argument could be made that we should have no role at all, and that we ought to defer to the other agencies, particularly the Environmental Protection Agency and its use of the Toxic Substances Control Act. Another argument could be made that the Commission

should continue on the basis on which we presently operate, that is, cooperation, but without the resources to get extensively involved ourselves.

A third argument could be made that because of our interest in consumer products, we ought to have some independent capability to operate in a major way in the whole area of regulating chronic hazards. If that is the decision that Congress makes, an extensive resource commitment will have to be made to this agency. I do not believe we are at all prepared, given our present resources or present responsibilities in the area of acute hazards, to deal in any kind of major way with chronic hazards.

I would suggest, on the basis of staff papers done to date, that the opening bid would probably be in the area of 50 people and $5 million over the next 18 months. This is what it would take for us to be able to do anything of major significance in the chronic hazards area.

So, I think that is the kind of question we are going to have to face as we move along. Right now, however, we are participating in the IRLG. We are very proud to be part of the interagency regulatory liaison group, which consists of EPA, FDA, OSHA, and the Consumer Product Safety Commission. We are also proceeding with the development of our carcinogen policy which we anticipate will be published in the Federal Register by the end of March.

Second, with regard to the offeror process, Mr. Chairman, I have prepared and submitted to the subcommittee an extensive paper dealing with my position and thoughts on the the offeror process. I prepared this in an effort to put the whole process in perspective, and I ask that that paper be made a part of the record.

Mr. ECKHARDT. Without objection, it will be so ordered [see p. 19]. Mr. BYINGTON. Therefore, I would summarize for only about 1 minute what that lengthy paper says.

First of all, I think we are making a mistake if we only look at section 7 of the Consumer Product Safety Act in terms of regulatory activity. If you look at mandatory standards only and include everything presently being done under section 7 of the Consumer Product Safety Act and section 8 of the Consumer Product Safety Act, which covers the bans, I think you will find that we have eight final mandatory standards: swimming pool slides, matchbooks, architectural glazing, and pacifiers under section 7; unstable refuse bins, extremely flammable contact adhesives, lead in paint, and certain asbestos-containing products under section 8.

Also, we have modified one standard, the children's sleepwear standard, and we have six additional mandatory standards in process under other acts. At the moment, I do not see anyone elsewhere operating more swiftly, efficiently, openly, or less expensively with any other system in setting mandatory standards. As I indicated in my paper, my conclusion is that standards development requires stable and comprehensive guidelines. Operational procedures must allow participation by all necessary parties, industry, private groups, consumers, and Government.

Regardless of what the process is called, or who chairs it, or how it is paid for, or what arbitrary or reasonable timetables are set, some form of decisionmaking mechanism must exist and be subject to appropriate review, if any worthwhile standard is to emerge.

Personally, I believe that Government must adhere to five basic restrictions. First, it should not arbitrarily proceed to develop standards in-house. Undue costs are extracted in the form of demands and accompanying drain on agency budget and resources. Federal agencies operating under current personnel management procedures are incapable of acquiring expertise in a timely manner and on an "asneeded" basis, especially as a regular method of doing business.

Second, I do not think a Government agency should normally chair a standards development process, since the agency must ultimately sit in judgment of the final standard. The staff, ideally, should participate in the review of the standards development without the burden of pride imposed by authorship, as might be the case in a standard developed in-house. The staff should be free to function at any juncture as a separate analytical support unit.

Third, I believe care must be exercised to apply the most effective regulatory strategy, no matter how severe outside competing pressures

are.

Fourth, regular technical review of all regulation, completed or developing, must be embodied in normal operating procedures.

Finally, an agency must be inflexible in its determination to undertake regular self-evaluation. Further, it must be prepared to admit its errors when circumstances demand it, and not be penalized in the future for mistakes of the past without regard for significant modifications affecting the present.

The full paper, which you have graciously indicated will be accepted for the record, discusses these points in much greater detail.

The last item to address today is the matter of insulation legislation. Mr. Chairman, I have supported from the beginning the use of legislation as a route to deal with the problem of cellulose insulation flammability. We have provided the committee with extensive general comments and specific comments on various parts of the legislation relating to corrosion, flame spread, and the effect of a metal screen on the standard tunnel, our ability to amend the standard, judicial review, discretion in issuing final standards, and the definition of cellulose insulation versus cellulose home insulation.

All of the specific comments that we have submitted are aimed at improving our ability to implement Congressional intent. Therefore, I would only make a few additional comments.

One, I would look separately at the mandatory standard and the study required by the bills. They are two different issues. If the Congress determines that the study is a proper and appropriate thing to to do at this time, then I believe that the option that was prepared by our staff and submitted to the subcommittee staff outlines a number of possibilities.

The Commission believes that a 1-year study can be done at a cost of approximately 20 people and $2.5 million. If, however, you want a "complete and thorough" study, indicated by the legislation, it would require 3-years with about 40 people and $5 million in the first year, and about $13 million total.

I personally believe, though, that the study is a separate situation from the standard itself and should be addressed separately.

As to the mandatory standard, I think the problem we are faced with together is, what are we really going to have in what kind of

period of time and how much will it cost us to get there? I think it frankly depends, Mr. Chairman, on the route the responsible person or organization is required to take to developing and implement that standard.

If the Consumer Product Safety Commission is required to utilize the procedures and requirements of section 7 and section 9 of the Consumer Product Safety Act, we estimate it will take approximately 11⁄2 to years, and will cost about $2 million to $3 million by the time we would have a standard out there with an effective date. Where in that range we will come out depends on the technical problems we run into, on whether or not we have to use an offeror and so on.

If, however, we have a statutory interim standard, and if we are provided with informal rulemaking capability, the time and costs could be less. We now understand that the GSA procurement specification will be ready in May. This is, of course, about the third time the deadline for this has slipped. I think you are going to have to make some decisions about what you want us to do.

Do you want us only to come out with a reproducible test method and not give any regard at all to the economics or any of the other real-life testing parts of the standards? If our only responsibility is to come up with a reproducible test method, we can do that for no significant cost, and we can do that within 6 months after the time that the GSA has completed their work.

If, however, we are to take a look at the economic implications and the impact of this on small business, on supply, on price, and if we are to look at the real-life aspects of the testing, then, I believe, we are looking at approximately 1 year from the time instead of 6 months when GSA is done, and something under $1 million.

The fact of the matter is, though, that none of that has been looked at yet. GSA, to the best of our knowledge, has given no consideration to the implications of 515 (d) for small business, to its effects on supply or price, or to its relationship to real life testing.

In terms of immediate action today, we believe that we have the authority to operate under section 15 or even section 12, imminent hazard, if we find totally untreated cellulose insulation in the marketplace.

I don't think, however, that we can stop there. Once you have treated cellulose insulation, you must then begin to look at whether or not it is adequately treated, how it's been treated, whether it's corrosive, and then you are into a quality control problem, and then you are into standards.

In conclusion, I think there is one other point that needs to be raised here, and that is the question of whether the Consumer Product Safety Commission's jurisdiction over insulation should be transferred to the Department of Energy. I am unalterably opposed to that switch in jurisdiction, for five reasons.

First, I believe the Department of Energy's emphasis and mission is on the basis of energy conservation and production, not in the area of health and safety, as is the responsibility of the Consumer Product Safety Commission.

Second, the possibility that DOE might develop a standard that CPSC would then enforce is not an attractive one. I think we all learned a lesson with the Flammable Fabrics Act. HEW at one time

had the responsibility for the research and development, and the Department of Commerce had the responsibility for actually developing the standard, and the Federal Trade Commission had the responsibility for enforcing it. The fact of the matter is that this system did not work. This committee and other Members of Congress agreed with that, and that is one of the reasons why standards development and enforcement responsibilities were consolidated in this agency. I don't think we need to start down that same track with cellulose insulation.

Third, the Department of Energy simply does not have experience, personnel, and established systems for standards development, and we do.

Fourth, as I said when I started, I don't see anybody doing anything any faster, more efficiently, openly, and less expensively than us, given the same rules. If the Department of Energy could develop a standard using our section 7 or our section 9 faster than we can, then you would save something to compare us against.

On the other hand, if the standard is going to be done under informal rulemaking, then you can give the informal rulemaking authority to the Consumer Product Safety Commission just as easily as you can give it to the Department of Energy.

Lastly, I think it would be a very unfortunate procedent if particular consumer products having particular problems are distributed on a product-by-product basis around the Federal Government. I think that the Consumer Product Safety Commission's emerging record of achievement shows that we can do the job. If you believe we cannot, then you ought to be dealing with us and our problems. You should not, however, start to spread the responsibility for standards for consumer products around the Federal Government.

Thank you very much for the opportunity to express our views, and I look forward to the opportunity of answering any questions you may have.

[Testimony resumes on p. 49.]

[Mr. Byington's prepared statement and attachments follow:]

STATEMENT OF S. JOHN BYINGTON, CHAIRMAN, CONSUMER PRODUCT SAFETY

COMMISSION

Mr. Chairman, my fellow Commissioners and I are pleased to appear before the Consumer Protection and Finance Subcommittee to discuss the future of the Consumer Product Safety Commission. For, as you know, we are again at a critical point in the Commission's history. Our authorization expires at the end of this fiscal year, and Congress will again be reexamining the kind and quality of product safety to be afforded the American consumer.

Mr. Chairman, the Commission has received its share of criticism during its five years of existence. Organized consumer groups have criticized what they see as inordinate delays and lack of responsiveness to the needs and concerns of the consumer. Business, too, has been concerned, often accusing the Commission of overreaction, but just as often objecting to delays which increase their uncertainty and make the conduct of business difficult. The Congress and the press have focused both on the internal management problems of the agency as well as on specific products on an ad hoc basis. Yet I believe that the controversy has often obscured the real accomplishment of this agency.

We are truly at a crossroads. Soon, we hope, we will have two new members, bringing the Commission to full strength, with some expectation of stability, for the first time in almost two years. And soon, too, we will have a new Chairman. As we look to the future, I think it is appropriate to briefly review the past. I believe that this agency, understaffed and underfinanced compared to almost any other Federal regulatory agency, has made, by any objective standard, impressive