Kaye and Mohorovic Both Tell Senate Imports Are a Priority; Await Approval

Elliot Kaye and Joe Mohorovic April 11, at the PSL deadline, awaited Senate votes on their nominations to join CPSC. Kaye also is nominated as chairman (PSL, 3/31/14, extra). The Senate is in recess April 12-27. Kaye and Mohorovic’s April 8 hearing before the Commerce, Science, and Transportation Committee to Committee did not reveal opposition to either.

The session involved numerous issues frequently seen as critical in CPSC discussions. For example, both separately told the panel that import surveillance would be a top concern if they join the commission. Kaye explained that he would like to work with Congress in funding the full scale-up of CPSC’s import risk assessment methodology (RAM). He was referring to the to the agency’s recent budget proposal (PSL, 3/17/14, p. 1) that seeks to double the funding of import surveillance – including possible introduction of user fees in fiscal 2016 – to support the RAM expansion.

That program involves CPSC working with Customs and Border Protection (CBP) to target inspection at shipments most likely to be problematic. Kaye told the senators that “compliant trade is better served by us focusing on those companies not following the rules.”

Meanwhile, Mohorovic similarly noted his desire to “further integrate current import surveillance with those of [CBP].” He added that he favors the program’s evolving to have a preclearance mechanism “for those importers willing to subject their compliance processes to greater scrutiny.” He compared the idea to the TSA Pre program by which the Transportation Security Administration (TSA) pre-clears low-risk travelers.

He also suggested his private sector experience, at Intertek, would allow him to bring understanding of “the latest targeting techniques used by the world’s most sophisticated supply chains.”

Other issues raised by Kaye in his testimony were efforts to address emerging and hidden hazards and to reduce third-party testing burdens. He further touched on concerns like carbon monoxide, window cords, adult bedrails, and football helmets. The last is an area where he took a leadership role at CPSC.

Mohorovic, in his testimony, also pointed to TV tip-overs and tapping into the expertise of product safety stakeholders. He pointed to the value of the latter, which he said CPSC can “use to leverage [its] limited resources.”

Partisanship: Sen. Claire McCaskill (D-Mo.) opened the hearing calling for an end to what she termed “partisan squabbling” on the commission. She acknowledged that the Senate is more prone to such occurrences and quipped that the situation was one of “do as I say.” Later in the hearing, Sen. John Thune (R-S.D.) echoed her sentiment and humor.

Third-Party Testing: Thune expressed concern about the agency’s efforts to reduce costs and other burdens, pointing to provisions in the 2011 CPSIA amendments directing CPSC to take related action. He called on both to pledge that they would provide the committee with outlines of their plans for burden reduction within 60 days of taking office. Both did so.

Long Rulemakings: McCaskill, as well as Sens. Kelly Ayotte (R-N.H.) and Amy Klobuchar (D-Minn.), expressed concern about a long-pending rulemaking for recreational off-road vehicles (ROVs). Kaye explained CPSC’s rulemaking requirements, including the need to defer to voluntary standards, and pointed to implementation of the CPSIA in recent years as diverting resources.

With McCaskill, Kaye used the criticism to promote Congress again giving CPSC “express rulemaking” powers to avoid the “elongated process” under the agency’s “unique cost-benefit” requirements. The agency had such power temporarily in implementing the CPSIA, giving it the option to skip advance notices of proposed rulemaking (ANPRs).

Mohorovic addressed the ROV issue specifically, saying he would seek to find out from staff if the voluntary standards process was working and then move on from there.

Recalls: Thune pointed to the assertion made by some CPSC stakeholders in recent years that recall negotiations have become significantly longer. He mentioned fast-track recalls, leading Kaye to distinguish between them and normal voluntary recalls. Kaye said the former generally go quickly but that agency staff sometimes, for example, has concerns with a proposed remedy, adding time. He added that there can be tension in recalls among three issues – speed, sufficient remedy, and effective communication – and that sometimes balancing them is necessary. In CPSC’s recent review of its fiscal 2013 goals (PSL, 3/31/14, p. 1), it said it accepted 88% of corrective action plans within 60 days, a figure better than its goal of 80%.

Kaye also wondered if some concerns that Thune was hearing involved the in-the-works interpretive rule on voluntary recalls. Top concerns with that proposal include legally-binding corrective actions, mandated elements of notices, admissions of fault, and compliance programs demanded by the commission in corrective action agreements (PSL, 2/10/14, p. 1).

Resources: McCaskill asked the two about prioritizing use of the agency’s small budget. Kaye said CPSC first must give attention to issues mandated by Congress and then staff next prioritizes areas based on hazard assessment. He explained this approach leads to a ranking of projects with some falling above or below a can/cannot-do line. This dilemma was prominent last fall in discussions of CPSC’s operating plan (PSL, 11/4/13, p. 1) with worry that work on testing burdens would fall below that line because product risks ranked higher.

McCaskill urged letting the committee have “a glance at the line to help us get you more resources.” She suggested, “It would be shocking to most people” to see what activity CPSC must defer.

Meanwhile, Mohorovic said CPSC must use a risk-based approach that first identifies hazards, second assesses if they can be addressed, and third weighs costs.

Download Kaye’s and Mohorovic’s prepared testimonies at www.commerce.senate.gov. In the Hearing Schedule calendar on the right side of the page, click on April 8.