Commission had held a public meeting on the flammability problem associated with cellulose home insulation in August, 1977, as of September, 1977, cellulose insulation still was not included on the CPSC Federal Register notice of priority rankings of consumer products requiring Commission attention. Considering that window bars and rust removers were included in that priority list, the exclusion of cellulose insulation indicates either bad judgment or bad management. Similarly, CPSC staff preparation of guidelines on toxic substance chronic hazards appears to have resulted only because of Congressional and public pressure.10 Indeed, since the CPSC's inception, it has not been properly staffed to deal with chronic hazards." This situation clearly is due to inadequate management. All of these and the many other considerations regarding the CPSC's nonfeasance of duty tend to show not that a Consumer Product Safety Commission is unneeded but, rather that the Commission has not had the qualified managerial leadership which it must have in order to function effectively. What is necessary now is for President Carter to appoint a Chairperson to succeed Mr. Byington on July 1, 1978, who is dedicated to accomplishment of the goals of the Consumer Product Safety Act through effective organizational management of the agency. A one-year reauthorization of appropriations, which will be effective through September 30, 1979, will give the new Chairperson time to take significant steps toward reordering the Commission's direction-or lack thereof-so that CPSC can begin to fulfill its obligation to consumers and to meet the expectations written into the law by Congress. The renewed authorization level for FY 1979 provided by H.R. 10819, $55 million, represents a substantial cut from that of FY 1978. Since the amount actually appropriated to the Commission always has remained substantially below the authorized level, this $13 million reduction should not hamper efforts to breathe life into the CPSC. At the same time, it serves as a symbolic vote of no-confidence by the Congress, and serves notice on the new Chairperson and the Commissioners of the CPSC that significantly better performance is required of the Commission. AMENDMENTS TO THE OFFEROR PROCESS REQUIREMENTS We agree with the proposed provision in H.R. 10819, authorizing CPSC development of a proposed consumer product safety standard under certain limited conditions, without use of the offeror process normally required under the Act. This will permit expedited development of product standards where there is a need for greater speed in developing a particular standard, as well as where there is no particular benefit to development of the standard by an outside offeror. At the same time, we believe that, in order to prevent routine use of this provision in place of the offeror process, the standards in proposed Section 7(b) (2) (A) should be revised and clarified, and additional safeguards should be included. The intent of the Congress in establishing an offeror process in the original Act was to assure maximum participation in safety standards development. H.R. 10819 should not diminish public participation in the development process except in those limited circumstances where some need is shown. It is for this reason that we believe that such additional safeguards in H.R. 10819 are necessary. First, it should be required that before the Commission actually invokes proposed Section 7(b) (2), it publish in the Federal Register notice of its intent to develop a standard for the specific product involved, and that it provide no less than fifteen days within which interested persons may comment as to whether it is appropriate for the Commission to proceed under Section 7(b) (2) in the circumstances involved. This will asure that any party which believes it or another party would be a likely and appropriate offeror with respect to development of a standard for the product involved will have the opportunity to inform the CPSC of the basis for its belief. Thus, the Commission would, where such was the case, have specific, relevant information which it would be required to consider in making final determination that invoking Section 7(b) (2) is appropriate. 42 Fed. Reg. 47859 (Sept. 22, 1977). 10 See April Senate Oversight Hearing, supra, testimony of Robert Harris, Environmental Defense Fund at pp. 2-13. Linda Hudak, Consumer Federation of America at pp. 31-38, and colloquy between Sen. Durkin and CPSC Commissioners at pp. 172–177. 11 October Senate Oversight Hearings, supra, p. 8. Second, the findings which would be required in order for CPSC to invoke Section 7(b) (2) are less than clear and, in some respects, incomplete. As they now read, these provisions may not require of CPSC findings sufficiently specific to admit of meaningful judicial review." Clauses (i) and (ii) of Section 7(b) (2) (A) appear to be directed at the situation where it is in the public interest for CPSC to develop the proposed product safety standard because it has existing expertise with respect to the risk of injury involved, which makes it likely to be the most qualified party to develop the standard. The language should be clarified to so provide, and should include the additional requirement of a finding that the Commission is likely to be more qualified to develop the standard, based upon this expertise, than any likely offeror. The Commission can utilize the public comment period, which we recommend to be included in the requirement for utilizing Section 7(b) (2), as a means of determining whether there are likely offerors with greater expertise than the Commission with respect to the specific risks of injury involved. Section 7(b) (2) (A) (iii) is partially subsumed in clause (iv). To the extent it is not, it should be eliminated. The Commission presently has no expertise in developing consumer product safety standards. This basis could not be used as grounds for use of Section 7(b) (2) until the Commission has utilized this new Section on other grounds often enough to claim such expertise. And, after the Commission had utilized the new provision sufficiently to claim such expertise, this subsection would appear to justify the Commission's use thereof in any even every-proposed standards development, without even a showing of any special need to do so. The argument for CPSC development of a proposed standard based upon its expertise in the standards development process is really one of expeditiousness. That is provided for in clause (iv). The apparent purpose of the proposed new Section is to permit CPSC to develop the proposed standard upon a showing of exceptional circumstances. Proposed clause (iii), once the Commission has had sufficient experience in developing standards, would authorize the Commission to develop standards without regard to the existence of exceptional circumstances. Thus, the provision should be eliminated. Clause (iv) should require not only the proposed finding that it is necessary to expedite development of the proposed standard but, also, that it is likely that the Commission can do so more expeditiously than any proposed offeror. This requirement, also, can be met in part by use of the suggested brief notice and public comment period to determine which outside parties would be likely offerors if Section 7(b) (2) were not to be invoked. The Commission could then assess whether any likely offerors were likely to develop the proposed standard as rapidly or more so than the Commission itself. Given the Commission's resources— and assuming better management than it has had to date-it may well be that in most cases the Commission could perform more quickly than an outside offeror, given the commitment to do so. However, it is not possible to foresee all circumstances. It is entirely conceivable that in some instance in the future an outside party may, at the crucial time, be substantially further along than the CPSC in developing a proposed standard and able to complete a proposed standard more rapidly than the Commission. The provision we propose should not foreclose that possibility, and the addition of a requirement to find that such is not the case should not prove so burdensome as to forego the option to preserve such an oportunity. Additionally, whether CPSC bases its determination to develop the proposed standard upon time considerations or considerations of its own expertise respecting the risk of injury involved, it should be required to find, based upon rational demonstration, that the difference between its own performance and the anticipated performance of a likely outside offeror is likely to be substantial. The offeror process should not be foregone where the public benefit is marginal. With these changes, we believe that the proposed standards development process can be substantially improved in situations where CPSC is better qualified than likely outside offerors to develop a proposed standard expeditiously or to apply its greater expertise to a specific risk of injury. 12 A party may have a cause of action, challenging CPSC action under the proposed Section 7(b) (2), on the grounds that the Commission allegedly has not made the requisite statutory finding and that plaintiff would have submitted an offer to develop a proposed standard, resting jusisdiction on 5 U.S.C. §§ 702-704. |