On Ports, Commissioners Disagree on Meaning of 90% Coverage Goal

There is disagreement among commissioners about a congressional goal for CPSC ports activity. Much of the debate at a decisional meeting on midyear spending updates (see related story) involved terms like cover vs. screen. The language used in the FY2021 funding act (PSL, 1/4/21) expressed concern about pandemic-caused deficiencies in CPSC's handling of imports. Behind commissioners' debate was the directive that for the rest of the declared heath emergency:

"[T]he Commission shall ensure, to the maximum extent feasible, that investigators are stationed at ports of entry to protect the public against unreasonable risk of injury from consumer products, with the goal of covering no fewer than 90 percent of all consumer products entering the United States that are risk-scored in the Risk Assessment Methodology system."

Beyond the wiggle room allowed by the phrase "to the maximum extent feasible," the debate centers on whether the goal is to have staff at ports that account for 90% of such products or whether it more aggressively targets actions – like screening – related to 90% of such products. In other words, presence at ports versus actions towards products.

In any event, agency staff are using the presence at ports interpretation. In preliminary discussion at an April 14 decisional meeting on spending updates, commissioners heard that percent coverage of ports identified as pertinent is in the low 80s and is expected to be in the high 80s by the end of FY2021. Thus, coverage will approach 90%, arguably compliant with the "maximum extent feasible" allowance.

Pushback came primarily from Commissioner Peter Feldman. Commissioner Dana Baiocco voiced sympathy with his position but did not support on procedural grounds his failed proposed amendment to require staff reporting on progress towards screening 90% of qualifying products.

Commissioner Elliot Kaye expressed satisfaction with the approach without Feldman's amendment. Acting Chairman Bob Adler did most of the arguing against the amendment. He was especially adamant in asserting that Feldman was omitting "critical words" in interpreting lawmakers' intent.

This is the wording (bit.ly/3soACoK) of Feldman's proposal:

"If, by September 30, 2021, the percentage of consumer products entering the United States that are risk-scored in the Risk Assessment Methodology system that are screened at import for possible violations of CPSC mandatory rules and/or voluntary standards does not meet or exceed 90 percent, staff shall immediately hire, train, and assign up to 10 additional full-time equivalent personnel to be stationed at the highest volume ports of entry in order to achieve the 90 percent screening objective."