Ijoined in the vote today to revoke the CPSC mandatory standard requiring an oxygen depletion sensor (ODS) on unvented gas-fired space heaters. In no way should this action be seen as a lessening of protection for consumers. Were there any evidence of that, I would have voted otherwise. The mandatory standard has served its purpose in stimulating industry to act on its own; but it is no longer necessary to reduce the unreasonable risk of carbon monoxide poisoning from this source. This is so because the voluntary industry standard which is substantively the same -- even more comprehensive in some respects -- is now addressing the hazard. And because it has greater flexibility to recognize new technological strides, it can better protect for the future. Specifically -

• There is now substantial compliance (95% to 100%) with the voluntary standard for unvented gas space heaters. This industry has been exceedingly responsible in promoting compliance, and its unique and highly effective certification program will assure that result.



• While the voluntary standard does not address LP gas cabinet heaters, market data indicate that such heaters are no longer being imported into the U.S., because of likely seizure by CPSC and because industry's National Fire Protection Code prohibits use of such LP gas cylinders in a residential setting. 48 states have adopted this code, effectively banning these heaters. Moreover, when such heaters were sold in the U.S., all were equipped with an ODS.



• The Commission retains powers under Section 15 of the CPSA to remove from the market any unvented LP or natural gas-fired heaters not equipped with an ODS device or equivalent means to curtail the asphyxiation risk.



• Revocation of the standard will eliminate confusion in States and localities over possible Federal preemption of their own restrictions, bans or use-requirements. If they believe the voluntary standard is not a sufficient safeguard, States and cities may now regulate the use of unvented gas space heaters as they best see fit without having their hands tied by the existence of a Federal rule. The effect on interstate commerce should be negligible, since markets which first opened up as a result of Federal preemption of local laws do not account for a significant percentage of unvented heater sales.



• The door to innovation is opened wide by removing the design-restrictive specifications for an ODS device in the mandatory standard. Fast-emerging sensing devices were literally unheard of just a year or two ago. One which would directly measure carbon monoxide levels may prove to be a more accurate and more timely means to detect the presence of CO instead of -- as now -- merely the absence of oxygen. The mandatory standard did not set a performance level, but rigidly said that an ODS must be used and nothing else. With it in force, emerging devices for directly measuring CO would be stifled. Both improved safety and lower cost to American consumers would be sacrificed were the mandatory standard to remain intact.

Our action today -- to defer to a highly successful voluntary standard of proven worth -- is an indication of the cooperative efforts of the gas industry and this Commission to protect the safety of consumers. The Commission will rigorously monitor the marketplace and the efforts of this industry so as to further reduce instances of carbon monoxide poisoning from these heaters.

August 14, 1984

In voting with the majority to revoke the mandatory standard today for unvented gas-fired space heaters, I have considered two primary issues:

As required by the Consumer Product Safety Act, this Commission may revoke a rule "only if it determines that the rule is not reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product." [CPSA, Sec. 9(h)]. From the record and public meetings, three points are particularly significant.

Hence, the voluntary standard will be as effective as the mandatory standard in assuring that unvented gas-fired space heaters are equipped with an ODS device and are properly labeled. It follows that the mandatory standard is not reasonably necessary to insure the safety of this product.

Many local jurisdictions have indicated a desire to address risks in addition to those addressed by the CPSC standard and have adopted more stringent restrictions. Such a position is found in a letter received last summer from the City of Baltimore. As was pointed out, Baltimore's ordinance -- a ban on residential use -- was based upon "fire and burn, as well as asphyxiation risks." If the mandatory standard is revoked, local bans of or other restrictions on unvented gas-fired space heaters would not be precluded.

It is my view that the CPSC should not needlessly preempt such local restrictions and autonomy. Revocation of the mandatory standard should result in increased consumer safety on the local level as well.

I firmly believe that the Safety Standard for Unvented Gas-Fired Space Heaters should be retained. Today, I am voting against revocation of the mandatory standard as a reaffirmation of a position I have expressed each time this issue has come before the Commission.

My reasons for voting to keep the current mandatory standard remain unchanged.

1. Revocation would give unscrupulous foreign and domestic manufacturers the opportunity to place inferior, unsafe products in the marketplace. This is particularly perilous for consumers who might erroneously assume that they are still protected by the existing mandatory standard.

2. Without a Federal mandatory standard, the only consumer protection left will be a patchwork of largely unenforceable state and local restrictions. In effect, the consumer will be left unprotected.

3. Representatives of the manufacturing, distributing and importing segments of this industry have stated flatly that revocation will have an adverse economic effect both on the industry and the consumer. Varying requirements from state to state will complicate distribution and increase costs ultimately borne by the consumer.

4. Lifting of the CPSC's mandatory standard will stimulate promulgation of new standards in even more states and other jurisdictions, creating more numerous and, possibly more divergent, restrictions 'across the nation.

In conclusion, allow me to stress that my first preference is for voluntary standards. However, this is an occasion which is an exception to that rule. The mandatory standard for unvented gas-fired space heaters has worked. To revoke it may very well mean the undoing of substantial progress we have made in this critical area of consumer safety.

In considering the administrative record underlying the recommendation to revoke the mandatory standard for unvented gas-fired space heaters (16 CFR 5 1212), I have determined that there is insufficient substantive evidence to support my determination that the rule "is not reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product" as required by section 9(h) of the Consumer Product Safety Act (CPSA) (15 U.S.C. § 2058). While the staff has recently provided more information to form a basis for the Commission's deliberations, too many arguments have been advanced which are nevertheless based largely upon speculation. I believe that it is essential that a precedent-setting decision such as revocation of the mandatory standard for unvented gas-fired space heaters not be based solely upon "gut reactions," "best guesses," and "good faith" assurances.

I am not confident that the implications and consequences of withdrawing the mandatory standard vis-a-vis the consumer, retailers, and manufacturers have been fully explored. In this instance, in which substantial time and Commission resources have been invested in the development and implementation of a safety rule to provide a maximum level of protection to consumers against the risk of carbon monoxide poisoning, I am not inclined to precipitously abandon the federal regulation, which appears to be working, for a "grab-bag" of uncertainties. Consequently, for a variety of reasons, I am voting against revocation of the mandatory standard for unvented gas-fired space heaters.

According to the Commission staff, the major benefit of revocation would be elimination of the need for the staff to process, and the Commission to consider, the petitions from state and local jurisdictions for exemption from the preemptive effects of the mandatory federal regulation. This "benefit" arises from the apparent state of confusion within the Commission concerning the reach of preemption in this situation. It appears, therefore, that implementation of Office of General Counsel advisory opinions that state that local-state requirements restricting use and/or location of heaters are not encompassed within section 26 of the CPSA (15 U.S.C. § 2075) and, therefore, are not preempted by the mandatory regulation would alleviate much of the confusion and perceived administrative burden. Nevertheless, relief from a possible administrative burden, in my estimation, does not constitute adequate justification for reversal of a decision which the Commission, just. two and a half years ago, felt was imperative to protect the American public from unreasonable risk of injury.

A detailed statement on my vote in this matter will be filed with the Office of the Secretary.