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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-501
======================================================================
CONSUMER PRODUCT SAFETY MODERNIZATION ACT
_______
December 19, 2007.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Dingell, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 4040]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 4040) to establish consumer product safety
standards and other safety requirements for children's products
and to reauthorize and modernize the Consumer Product Safety
Commission, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
Amendment........................................................ 1
Purpose and Summary.............................................. 17
Background and Need for Legislation.............................. 18
Hearings......................................................... 21
Committee Consideration.......................................... 22
Committee Votes.................................................. 22
Committee Oversight Findings..................................... 27
Statement of General Performance Goals and Objectives............ 27
New Budget Authority, Entitlement Authority, and Tax Expenditures 27
Earmarks and Tax and Tariff Benefits............................. 27
Committee Cost Estimate.......................................... 27
Congressional Budget Office Estimate............................. 27
Federal Mandates Statement....................................... 27
Advisory Committee Statement..................................... 27
Constitutional Authority Statement............................... 27
Applicability to Legislative Branch.............................. 28
Section-by-Section Analysis of the Legislation................... 28
Special Issues................................................... 46
AMENDMENT
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Consumer Product
Safety Modernization Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. References.
Sec. 3. Authority to issue implementing regulations.
TITLE I--CHILDREN'S PRODUCT SAFETY
Sec. 101. Ban on children's products containing lead; lead paint rule.
Sec. 102. Mandatory third-party testing for certain children's
products.
Sec. 103. Tracking labels for children's products.
Sec. 104. Standards and consumer registration of durable nursery
products.
Sec. 105. Labeling requirement for certain internet and catalogue
advertising of toys and games.
Sec. 106. Study of preventable injuries and deaths in minority children
related to consumer products.
Sec. 107. Review of generally-applicable standards for toys.
TITLE II--CONSUMER PRODUCT SAFETY COMMISSION REFORM
Sec. 201. Reauthorization of the Commission.
Sec. 202. Structure and quorum.
Sec. 203. Submission of copy of certain documents to Congress.
Sec. 204. Expedited rulemaking.
Sec. 205. Public disclosure of information.
Sec. 206. Publicly available information on incidents involving injury
or death.
Sec. 207. Prohibition on stockpiling under other Commission-enforced
statutes.
Sec. 208. Notification of noncompliance with any Commission-enforced
statute.
Sec. 209. Enhanced recall authority and corrective action plans.
Sec. 210. Website notice, notice to third party internet sellers, and
radio and television notice.
Sec. 211. Inspection of certified proprietary laboratories.
Sec. 212. Identification of manufacturer, importers, retailers, and
distributors.
Sec. 213. Export of recalled and non-conforming products.
Sec. 214. Prohibition on sale of recalled products.
Sec. 215. Increased civil penalty.
Sec. 216. Criminal penalties to include asset forfeiture.
Sec. 217. Enforcement by State attorneys general.
Sec. 218. Effect of rules on preemption.
Sec. 219. Sharing of information with Federal, State, local, and
foreign government agencies.
Sec. 220. Inspector General authority and accessibility.
Sec. 221. Repeal.
Sec. 222. Industry-sponsored travel ban.
Sec. 223. Annual reporting requirement.
Sec. 224. Study on the effectiveness of authority relating to imported
products.
SEC. 2. REFERENCES.
(a) Commission.--As used in this Act, the term ``Commission'' means
the Consumer Product Safety Commission.
(b) Consumer Product Safety Act.--Except as otherwise expressly
provided, whenever in this Act an amendment is expressed as an
amendment to a section or other provision, the reference shall be
considered to be made to a section or other provision of the Consumer
Product Safety Act (15 U.S.C. 2051 et seq.).
(c) Rule.--In this Act and the amendments made by this Act, a
reference to any rule under any Act enforced by the Commission shall be
considered a reference to any rule, standard, ban, or order under any
such Act.
SEC. 3. AUTHORITY TO ISSUE IMPLEMENTING REGULATIONS.
The Commission may issue regulations, as necessary, to implement this
Act and the amendments made by this Act.
TITLE I--CHILDREN'S PRODUCT SAFETY
SEC. 101. BAN ON CHILDREN'S PRODUCTS CONTAINING LEAD; LEAD PAINT RULE.
(a) Children's Products Containing Lead.--
(1) Banned hazardous substance.--Effective 180 days after the
date of enactment of this Act, any children's product
containing more than the amounts of lead set forth in paragraph
(2) shall be a banned hazardous substance within the meaning of
section 2(q)(1) of the Federal Hazardous Substances Act (15
U.S.C. 1261(q)(1)).
(2) Standard for amount of lead.--The amounts of lead
referred to in paragraph (1) shall be--
(A) 600 parts per million total lead content by
weight for any part of the product;
(B) 300 parts per million total lead content by
weight for any part of the product, effective 2 years
after the date of enactment of this Act; and
(C) 100 parts per million total lead content by
weight for any part of the product, effective 4 years
after the date of enactment of this Act, unless the
Commission determines, after notice and a hearing, that
a standard of 100 parts per million is not feasible, in
which case the Commission shall require the lowest
amount of lead that the Commission determines is
feasible to achieve.
(3) Commission revision to more protective standard.--
(A) More protective standard.--The Commission may, by
rule, revise the standard set forth in paragraph (2)(C)
for any class of children's products to any level and
form that the Commission determines is--
(i) more protective of human health; and
(ii) feasible to achieve.
(B) Periodic review.--The Commission shall, based on
the best available scientific and technical
information, periodically review and revise the
standard set forth in this section to require the
lowest amount of lead that the Commission determines is
feasible to achieve.
(4) Commission authority to exclude certain materials.--The
Commission may, by rule, exclude certain products and materials
from the prohibition in paragraph (1) if the Commission
determines that the lead content in such products and materials
will not result in the absorption of lead in the human body or
does not have any adverse impact on public health or safety.
(5) Definition of children's product.--
(A) In general.--As used in this subsection, the term
``children's product'' means a consumer product as
defined in section 3(1) of the Consumer Product Safety
Act (15 U.S.C. 2052(1)) designed or intended primarily
for children 12 years of age or younger.
(B) Factors to be considered.--In determining whether
a product is primarily intended for a child 12 years of
age or younger, the following factors shall be
considered:
(i) A statement by a manufacturer about the
intended use of such product, including a label
on such product if such statement is
reasonable.
(ii) Whether the product is represented in
its packaging, display or advertising as
appropriate for use by children 12 years of age
or younger.
(iii) Whether the product is commonly
recognized by consumers as being intended for
use by child 12 years of age or younger.
(iv) The Age Determination Guidelines issued
by the Commission staff in September 2002, and
any successor thereto.
(6) Exception for inaccessible component parts.--The
standards established under paragraph (2) shall not apply to
any component part of a children's product that is not
accessible to a child through normal and reasonably foreseeable
use and abuse of such product, as determined by the Commission.
A component part is not accessible under this paragraph if such
component part is not physically exposed by reason of a sealed
covering or casing and does not become physically exposed
through reasonably foreseeable use and abuse of the product.
The Commission may require that certain electronic devices be
equipped with a child-resistant cover or casing that prevents
exposure of and accessibility to the parts of the product
containing lead if the Commission determines that it is not
feasible for such products to otherwise meet such standards.
(b) Paint Standard.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Commission shall modify section
1303.1 of title 16, Code of Federal Regulations, to--
(A) reduce the standard applicable to lead paint by
substituting ``0.009 percent'' for ``0.06 percent'' in
subsection (a) of that section;
(B) apply the standard to all children's products as
defined in subsection (a)(5); and
(C) reduce the standard for paint and other surface
coating on children's products and furniture to 0.009
milligrams per centimeter squared.
(2) More protective standard.--Not later than 3 years after
the date of enactment of this Act, the Commission shall, by
rule, revise the standard established under paragraph (1)(C) to
a more protective standard if the Commission determines such a
standard to be feasible.
(c) Authority to Extend Implementation Periods.--The Commission may
extend, by rule, the effective dates in subsections (a) and (b) by an
additional period not to exceed 180 days if the Commission determines
that--
(1) there is no impact on public health or safety from
extending the implementation period; and
(2)(A) the complete implementation of the new standards by
manufacturers subject to such standards is not feasible within
180 days;
(B) the cost of such implementation, particularly on small
and medium sized enterprises, is excessive; or
(C) the Commission requires additional time to implement such
standards and determine the required testing methodologies and
appropriate exceptions in order to enforce such standards.
SEC. 102. MANDATORY THIRD-PARTY TESTING FOR CERTAIN CHILDREN'S
PRODUCTS.
(a) Mandatory and Third-Party Testing.--Section 14(a) (15 U.S.C.
2063(a)) is amended--
(1) in paragraph (1)--
(A) by striking ``Every manufacturer'' and inserting
``Except as provided in paragraph (2), every
manufacturer''; and
(B) by striking ``standard under this Act'' and
inserting ``rule under this Act or similar rule under
any other Act enforced by the Commission'';
(2) by redesignating paragraph (2) as paragraph (3) and
inserting after paragraph (1) the following:
``(2) Effective 1 year after the date of enactment of the
Consumer Product Safety Modernization Act, every manufacturer
of a children's product (and the private labeler of such
children's product if such product bears a private label) which
is subject to a consumer product safety rule under this Act or
a similar rule or standard under any other Act enforced by the
Commission, shall--
``(A) have the product tested by a independent third
party qualified to perform such tests or a proprietary
laboratory certified by the Commission under subsection
(e) ; and
``(B) issue a certificate which shall--
``(i) certify that such product conforms to
such standards or rules; and
``(ii) specify the applicable consumer
product safety standards or other similar
rules.''; and
(3) in paragraph (3) (as so redesignated)--
(A) by striking ``required by paragraph (1) of this
subsection'' and inserting ``required by paragraph (1)
or (2) (as the case may be)''; and
(B) by striking ``requirement under paragraph (1)''
and inserting ``requirement under paragraph (1) or (2)
(as the case may be)''.
(b) Definition of Children's Products and Independent Third Party.--
Section 14 (15 U.S.C. 2063) is amended by adding at the end the
following:
``(d) Definitions.--In this section, the following definitions apply:
``(1) The term `children's product' means a consumer product
designed or intended primarily for children 12 years of age or
younger. In determining whether a product is primarily intended
for a child 12 years of age or younger, the following factors
shall be considered:
``(A) A statement by a manufacturer about the
intended use of such product, including a label on such
product if such statement is reasonable.
``(B) Whether the product is represented in its
packaging, display or advertising as appropriate for
use by children 12 years of age or younger.
``(C) Whether the product is commonly recognized by
consumers as being intended for use by child 12 years
of age or younger.
``(D) The Age Determination Guidelines issued by the
Commission staff in September 2002, and any successor
thereto.
``(2) The term `independent third party', means an
independent testing entity that is not owned, managed,
controlled, or directed by such manufacturer or private
labeler, and that is accredited in accordance with an
accreditation process established or recognized by the
Commission. In the case of certification of art material or art
material products required under this section or under
regulations issued under the Federal Hazardous Substances Act,
such term includes a certifying organization, as such term is
defined in appendix A to section 1500.14(b)(8) of title 16,
Code of Federal Regulations.''.
(c) Certification of Proprietary Laboratories.--Section 14 (15 U.S.C.
2063) is further amended by adding at the end the following:
``(e) Certification of Proprietary Laboratories for Mandatory
Testing.--
``(1) Certification.--Upon request, the Commission, or an
independent standard-setting organization to which the
Commission has delegated such authority, may certify a
laboratory that is owned, managed, controlled, or directed by
the manufacturer or private labeler for purposes of testing
required under this section if the Commission determines that--
``(A) certification of the laboratory would provide
equal or greater consumer safety protection than the
manufacturer's use of an independent third party
laboratory;
``(B) the laboratory has established procedures to
ensure that the laboratory is protected from undue
influence, including pressure to modify or hide test
results, by the manufacturer or private labeler; and
``(C) the laboratory has established procedures for
confidential reporting of allegations of undue
influence to the Commission.
``(2) Decertification.--The Commission, or an independent
standard-setting organization to which the Commission has
delegated such authority, may decertify any laboratory
certified under paragraph (1) if the Commission finds, after
notice and investigation, that a manufacturer or private
labeler has exerted undue influence on the laboratory.''.
(d) Conforming Amendments.--Section 14(b) (15 U.S.C. 2063(b)) is
amended--
(1) by striking ``standards under this Act'' and inserting
``rules under this Act or similar rules under any other Act
enforced by the Commission''; and
(2) by striking ``, at the option of the person required to
certify the product,'' and inserting ``be required by the
Commission to''.
SEC. 103. TRACKING LABELS FOR CHILDREN'S PRODUCTS.
Section 14(a) (15 U.S.C. 2063(a)) is further amended by adding at the
end the following:
``(4) Effective 1 year after the date of enactment of the
Consumer Product Safety Modernization Act, the manufacturer of
a children's product shall, to the extent feasible, place
distinguishing marks on the product and its packaging that will
enable the manufacturer and the ultimate purchaser to ascertain
the location and date of production of the product, and any
other information determined by the manufacturer to facilitate
ascertaining the specific source of the product by reference to
those marks.''.
SEC. 104. STANDARDS AND CONSUMER REGISTRATION OF DURABLE NURSERY
PRODUCTS.
(a) Short Title.--This section may be cited as the ``Danny Keysar
Child Product Safety Notification Act''.
(b) Safety Standards.--
(1) In general.--The Commission shall--
(A) in consultation with representatives of consumer
groups, juvenile product manufacturers, and independent
child product engineers and experts, examine and assess
the effectiveness of any voluntary consumer product
safety standards for durable infant or toddler product;
and
(B) in accordance with section 553 of title 5, United
States Code, promulgate consumer product safety rules
that--
(i) are substantially the same as such
voluntary standards; or
(ii) are more stringent than such voluntary
standards, if the Commission determines that
more stringent standards would further reduce
the risk of injury associated with such
products.
(2) Timetable for rulemaking.--Not later than 1 year after
the date of enactment of this Act, the Commission shall
commence the rulemaking required under paragraph (1) and shall
promulgate rules for no fewer than 2 categories of durable
nursery products every 6 months thereafter, beginning with the
product categories that the Commission determines to be of
highest priority, until the Commission has promulgated
standards for all such product categories. Thereafter, the
Commission shall periodically review and revise the rules set
forth under this subsection to ensure that such rules provide
the highest level of safety for such products that is feasible.
(c) Consumer Registration Requirement.--
(1) Rulemaking.--Not later than 1 year after the date of
enactment of this Act, the Commission shall, pursuant to its
authority under section 16(b) of the Consumer Product Safety
Act (15 U.S.C. 2065(b)), promulgate a final consumer product
safety rule to require manufacturers of durable infant or
toddler products--
(A) to provide consumers with a postage-paid consumer
registration form with each such product;
(B) to maintain a record of the names, addresses,
email addresses, and other contact information of
consumers who register their ownership of such products
with the manufacturer in order to improve the
effectiveness of manufacturer campaigns to recall such
products; and
(C) to permanently place the manufacturer name and
contact information, model name and number, and the
date of manufacture on each durable infant or toddler
product.
(2) Requirements for registration form.--The registration
form required to be provided to consumers under subsection (a)
shall--
(A) include spaces for a consumer to provide their
name, address, telephone number, and email address;
(B) include space sufficiently large to permit easy,
legible recording of all desired information;
(C) be attached to the surface of each durable infant
or toddler product so that, as a practical matter, the
consumer must notice and handle the form after
purchasing the product;
(D) include the manufacturer's name, model name and
number for the product, and the date of manufacture;
(E) include a message explaining the purpose of the
registration and designed to encourage consumers to
complete the registration;
(F) include an option for consumers to register
through the Internet; and
(G) include a statement that information provided by
the consumer shall not be used for any purpose other
than to facilitate a recall of or safety alert
regarding that product.
In issuing regulations under this section, the Commission may
prescribe the exact text and format of the required
registration form.
(3) Record keeping and notification requirements.--The
standard required under this section shall require each
manufacturer of a durable infant or toddler product to maintain
a record of registrants for each product manufactured that
includes all of the information provided by each consumer
registered, and to use such information to notify such
consumers in the event of a voluntary or involuntary recall of
or safety alert regarding such product. Each manufacturer shall
maintain such a record for a period of not less than 6 years
after the date of manufacture of the product. Consumer
information collected by a manufacturer under this Act may not
be used by the manufacturer, nor disseminated by such
manufacturer to any other party, for any purpose other than
notification to such consumer in the event of a product recall
or safety alert.
(4) Study.--The Commission shall conduct a study at such time
as it considers appropriate on the effectiveness of the
consumer registration forms in facilitating product recalls and
whether such registration forms should be required for other
children's products. Not later than 4 years after the date of
enactment of this Act, the Commission shall report its findings
to Congress.
(d) Definition of Durable Infant or Toddler Product.--As used in this
section, the term ``durable infant or toddler product''--
(1) means a durable product intended for use, or that may be
reasonably expected to be used, by children under the age of 5
years; and
(2) shall include--
(A) full-size cribs and nonfull-size cribs;
(B) toddler beds;
(C) high chairs, booster chairs, and hook-on chairs;
(D) bath seats;
(E) gates and other enclosures for confining a child;
(F) play yards;
(G) stationary activity centers;
(H) infant carriers;
(I) strollers;
(J) walkers;
(K) swings; and
(L) bassinets and cradles.
SEC. 105. LABELING REQUIREMENT FOR CERTAIN INTERNET AND CATALOGUE
ADVERTISING OF TOYS AND GAMES.
Section 24 of the Federal Hazardous Substances Act (15 U.S.C. 1278)
is amended--
(1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively;
(2) by inserting after subsection (b) the following:
``(c) Internet, Catalogue, and Other Advertising.--
``(1) Requirement.--Effective 180 days after the Consumer
Product Safety Modernization Act, any advertisement of a
retailer, manufacturer, importer, distributor, private labeler,
or licensor that provides a direct means for the purchase or
ordering of any toy, game, balloon, small ball, or marble that
requires a cautionary statement under subsections (a) and (b),
including advertisement on Internet websites or in catalogues
or other distributed materials, shall include the appropriate
cautionary statement required under such subsections in its
entirety displayed on or immediately adjacent to such
advertisement. Such cautionary statement shall be displayed in
the language that is primarily used in the advertisement,
catalogue, or Internet website, and in a clear and conspicuous
manner consistent with part 1500 of title 16, Code of Federal
Regulations (or a successor regulation thereto).
``(2) Enforcement.--The requirement in paragraph (1) shall be
treated as a consumer product safety rule promulgated under
section 7 of the Consumer Product Safety Act (15 U.S.C. 2056)
and the publication or distribution of any advertisement that
is not in compliance with the requirements of paragraph (1)
shall be treated as a prohibited act under section 19 of such
Act (15 U.S.C. 2068).
``(3) Rulemaking.--Not later than 180 days after the date of
enactment of Consumer Product Safety Modernization Act, the
Commission shall, by rule, modify the requirement under
paragraph (1) with regard to catalogues or other printed
materials concerning the size and placement of the cautionary
statement required under such paragraph as appropriate relative
to the size and placement of the advertisements in such printed
materials. The Commission may, under such rule, provide a grace
period for catalogues and printed materials printed prior to
the effective date in paragraph (1) during which time
distribution of such printed materials shall not be considered
a violation of such paragraph.''.
SEC. 106. STUDY OF PREVENTABLE INJURIES AND DEATHS IN MINORITY CHILDREN
RELATED TO CONSUMER PRODUCTS.
(a) In General.--Not later than 90 days after the date of the
enactment of this Act, the Comptroller General shall initiate a study
to assess disparities in the risks and incidence of preventable
injuries and deaths among children of minority populations, including
Black, Hispanic, American Indian, Alaskan native, and Asian/Pacific
Islander children in the United States. The Comptroller General shall
consult with the Commission as necessary.
(b) Requirements.--The study shall examine the racial disparities of
the rates of preventable injuries and deaths related to suffocation,
poisonings, and drownings associated with the use of cribs, mattresses
and bedding materials, swimming pools and spas, and toys and other
products intended for use by children.
(c) Report.--Not later than 1 year after the date of the enactment of
this Act, the Comptroller General shall report the findings to the
Committee on Energy and Commerce of the House of Representatives and
the Committee on Commerce, Science, and Transportation of the Senate.
The report shall include--
(1) the Comptroller General's findings on the incidence of
preventable risks of injuries and deaths among children of
minority populations and recommendations for minimizing such
risks;
(2) recommendations for public outreach, awareness, and
prevention campaigns specifically aimed at racial minority
populations; and
(3) recommendations for education initiatives that may reduce
statistical disparities.
SEC. 107. REVIEW OF GENERALLY-APPLICABLE STANDARDS FOR TOYS.
(a) Assessment.--The Commission shall examine and assess the
effectiveness of the safety standard for toys, ASTM-International
standard F963-07, or its successor standard, to determine--
(1) the scope of such standards, including the number and
type of toys to which such standards apply;
(2) the degree of adherence to such standards on the part of
manufacturers; and
(3) the adequacy of such standards in protecting children
from safety hazards.
(b) Special Focus on Magnets.--In conducting the assessment required
under subsection (a), the Commission shall first examine the
effectiveness of the F963-07 standard as it relates to intestinal
blockage and perforation hazards caused by ingestion of magnets. If the
Commission determines based on the review that there is substantial
noncompliance with such standard that creates an unreasonable risk of
injury or hazard to children, the Commission shall expedite a
rulemaking to consider the adoption, as a consumer product safety rule,
of the voluntary safety standards contained within the ASTM F963-07, or
its successor standard, that relate to intestinal blockage and
perforation hazards caused by ingestion of magnets.
(c) Report.--Not later than 2 years after the date of enactment of
this Act, the Commission shall report to Congress the findings of the
study conducted pursuant to subsection (a). Such report shall include
the Commission's opinion regarding--
(1) the feasibility of requiring manufacturer testing of all
toys to such standards; and
(2) whether promulgating consumer product safety rules that
are substantially similar or more stringent than the standards
described in such subsection would be beneficial to public
health and safety.
TITLE II--CONSUMER PRODUCT SAFETY COMMISSION REFORM
SEC. 201. REAUTHORIZATION OF THE COMMISSION.
(a) Authorization of Appropriations.--Subsections (a) and (b) of
section 32 (15 U.S.C. 2081) are amended to read as follows:
``(a) There are authorized to be appropriated to the Commission for
the purpose of carrying out the provisions of this Act and any other
provision of law the Commission is authorized or directed to carry
out--
``(1) $80,000,000 for fiscal year 2009;
``(2) $90,000,000 for fiscal year 2010; and
``(3) $100,000,000 for fiscal year 2011.
``(b) In addition to the amounts specified in subsection (a), there
are authorized to be appropriated $20,000,000 to the Commission for
fiscal years 2009 through 2011, for the purpose of renovation, repair,
reconstruction, re-equipping, and making other necessary capital
improvements to the Commission's research, development, and testing
facility (including bringing the facility into compliance with
applicable environmental, safety, and accessibility standards).''.
(b) Report to Congress.--Not later than 180 days after the date of
enactment of this Act, the Commission shall transmit to Congress a
report of its plans to allocate the funding authorized by subsection
(a). Such report shall include--
(1) the number of full-time inspectors and other full-time
equivalents the Commission intends to employ;
(2) the plan of the Commission for risk assessment and
inspection of imported consumer products;
(3) an assessment of the feasibility of mandating bonds for
serious hazards and repeat offenders and Commission inspection
and certification of foreign third-party and proprietary
testing facilities; and
(4) the efforts of the Commission to reach and educate
retailers of second-hand products and informal sellers, such as
thrift shops and yard sales, concerning consumer product safety
standards and product recalls, especially those relating to
durable nursery products, in order to prevent the resale of any
products that have been recalled, including the development of
educational materials for distribution not later than 1 year
after the date of enactment of this Act.
SEC. 202. STRUCTURE AND QUORUM.
(a) Extension of Temporary Quorum.--Notwithstanding section 4(d) of
the Consumer Product Safety Act (15 U.S.C. 2053(d)), 2 members of the
Commission, if they are not affiliated with the same political party,
shall constitute a quorum for the transaction of business for the
period beginning on the date of enactment of this Act through--
(1) August 3, 2008, if the President nominates a person to
fill a vacancy on the Commission prior to such date; or
(2) the earlier of--
(A) 3 months after the date on which the President
nominates a person to fill a vacancy on the Commission
after such date; or
(B) February 3, 2009.
(b) Repeal of Limitation.--The first proviso in the account under the
heading ``Consumer Product Safety Commission, Salaries and Expenses''
in title III of Public Law 102-389 (15 U.S.C. 2053 note) shall cease to
be in effect after fiscal year 2010.
SEC. 203. SUBMISSION OF COPY OF CERTAIN DOCUMENTS TO CONGRESS.
(a) In General.--Notwithstanding any rule, regulation, or order to
the contrary, the Commission shall comply with the requirements of
section 27(k) of the Consumer Product Safety Act (15 U.S.C. 2076) with
respect to budget recommendations, legislative recommendations,
testimony, and comments on legislation submitted by the Commission to
the President or the Office of Management and Budget after the date of
enactment of this Act.
(b) Reinstatement of Requirement.--Section 3003(d) of Public Law 104-
66 (31 U.S.C. 1113 note) is amended--
(1) by striking ``or'' after the semicolon in paragraph (31);
(2) by redesignating paragraph (32) as (33); and
(3) by inserting after paragraph (31) the following:
``(32) section 27(k) of the Consumer Product Safety Act (15
U.S.C. 2076(k)); or''.
SEC. 204. EXPEDITED RULEMAKING.
(a) Rulemaking Under the Consumer Product Safety Act.--
(1) Advance notice of proposed rulemaking requirement.--
Section 9 (15 U.S.C. 2058) is amended--
(A) by striking ``shall be commenced'' in subsection
(a) and inserting ``may be commenced'';
(B) by striking ``in the notice'' in subsection (b)
and inserting ``in a notice'';
(C) by striking ``unless, not less than 60 days after
publication of the notice required in subsection (a),
the'' in subsection (c) and inserting ``unless the'';
(D) by inserting ``or notice of proposed rulemaking''
after ``advance notice of proposed rulemaking'' in
subsection (c); and
(E) by striking ``an advance notice of proposed
rulemaking under subsection (a) relating to the product
involved,'' in the third sentence of subsection (c) and
inserting ``the notice''.
(2) Conforming amendment.--Section 5(a)(3) (15 U.S.C.
2054(a)(3)) is amended by striking ``an advance notice of
proposed rulemaking or''.
(b) Rulemaking Under Federal Hazardous Substances Act.--
(1) In general.--Section 3(a)(1) of the Federal Hazardous
Substances Act (15 U.S.C. 1262(a)(1)) is amended to read as
follows:
``(1) Whenever in the judgment of the Commission such action will
promote the objectives of this Act by avoiding or resolving uncertainty
as to its application, the Commission may by regulation declare to be a
hazardous substance, for the purposes of this Act, any substance or
mixture of substances, which the Commission finds meets the
requirements section 2(f)(1)(A).''.
(2) Procedure.--
(A) Section 2(q)(2) of the Federal Hazardous
Substances Act (15 U.S.C. 1261(q)(2)) is amended by
striking ``Proceedings for the issuance, amendment, or
repeal of regulations pursuant to clause (B) of
subparagraph (1) of this paragraph shall be governed by
the provisions of sections 701(e), (f), and (g) of the
Federal Food, Drug, and Cosmetic Act: Provided, That
if'' and inserting ``Proceedings for the issuance,
amendment, or repeal of regulations pursuant to clause
(B) of subparagraph (1) of this paragraph shall be
governed by the provisions of subsections (f) through
(i) of section 3 of this Act, except that if''.
(B) Section 3(a)(2) of the Federal Hazardous
Substances Act (15 U.S.C. 1262(a)(2)) is amended to
read as follows:
``(2) Proceedings for the issuance, amendment, or repeal of
regulations under this subsection and the admissibility of the record
of such proceedings in other proceedings, shall be governed by the
provisions of subsections (f) through (i) of this section.''.
(3) Advance notice of proposed rulemaking requirement.--
Section 3 of the Federal Hazardous Substances Act (15 U.S.C.
1262) is amended--
(A) by striking ``shall be commenced'' in subsection
(f) and inserting ``may be commenced'';
(B) by striking ``in the notice'' in subsection
(g)(1) and inserting ``in a notice''; and
(C) by striking ``unless, not less than 60 days after
publication of the notice required in subsection (f),
the'' in subsection (h) and inserting ``unless the''.
(4) Conforming amendments.--The Federal Hazardous Substances
Act (15 U.S.C. 1261 et seq.) is amended--
(A) by striking subsection (d) of section 2 and
inserting the following:
``(d) The term `Commission' means the Consumer Product Safety
Commission.'';
(B) by striking ``Secretary'' each place it appears
and inserting ``Commission'' except--
(i) in section 10(b) (15 U.S.C. 1269(b));
(ii) in section 14 (15 U.S.C. 1273); and
(iii) in section 21(a) (15 U.S.C. 1276(a));
(C) by striking ``Department'' each place it appears,
except in section 14(b), and inserting ``Commission'';
(D) by striking ``he'' and ``his'' each place they
appear in reference to the Secretary and inserting
``it'' and ``its'', respectively;
(E) by striking ``Secretary of Health, Education, and
Welfare'' each place it appears in section 10(b) (15
U.S.C. 1269(b)) and inserting ``Commission'';
(F) by striking ``Secretary of Health, Education, and
Welfare'' each place it appears in section 14 (15
U.S.C. 1273) and inserting ``Commission'';
(G) by striking ``Department of Health, Education,
and Welfare'' in section 14(b) (15 U.S.C. 1273(b)) and
inserting ``Commission'';
(H) by striking ``Consumer Product Safety
Commission'' each place it appears and inserting
``Commission''; and
(I) by striking ``(hereinafter in this section
referred to as the `Commission')'' in section 20(a)(1)
(15 U.S.C. 1275(a)(1)).
(c) Rulemaking Under the Flammable Fabrics Act.--
(1) In general.--Section 4 of the Flammable Fabrics Act (15
U.S.C. 1193) is amended--
(A) by striking ``shall be commenced'' and inserting
``may be commenced by a notice of proposed rulemaking
or'';
(B) in subsection (i), by striking ``unless, not less
than 60 days after publication of the notice required
in subsection (g), the'' and inserting ``unless the''.
(2) Other conforming amendments.--The Flammable Fabrics Act
(15 U.S.C. 1193 et seq.) is further amended--
(A) by striking subsection (i) of section 2 and
inserting the following:
``(i) The term `Commission' means the Consumer Product Safety
Commission.'';
(B) by striking ``Secretary of Commerce'' each place
it appears and inserting ``the Commission'';
(C) by striking ``Secretary'' each place it appears,
except in sections 9 and 14, and inserting
``Commission'';
(D) by striking ``he'' and ``his'' each place either
term appears in reference to the secretary and insert
``it'' and ``its'', respectively;
(E) in section 4(e), by striking paragraph (5) and
redesignating paragraph (6) as paragraph (5);
(F) in section 15, by striking ``Consumer Product
Safety Commission (hereinafter referred to as the
`Commission')'' and inserting ``Commission'';
(G) by striking section 16(d) and inserting the
following:
``(d) In this section, a reference to a flammability standard or
other regulation for a fabric, related materials, or product in effect
under this Act includes a standard of flammability continued in effect
by section 11 of the Act of December 14, 1967 (Public Law 90-189).'';
and
(H) in section 17, by striking ``Consumer Product
Safety Commission'' and inserting ``Commission''.
SEC. 205. PUBLIC DISCLOSURE OF INFORMATION.
Section 6(b) (15 U.S.C. 2055(b)) is amended--
(1) in paragraph (1)--
(A) by striking ``30 days'' and inserting ``15
days'';
(B) by striking ``finds that the public'' and
inserting ``publishes a finding that the public''; and
(C) by striking ``and publishes such a finding in the
Federal Register'';
(2) in paragraph (2)--
(A) by striking ``10 days'' and inserting ``5 days'';
(B) by striking ``finds that the public'' and
inserting ``publishes a finding that the public''; and
(C) by striking ``and publishes such a finding in the
Federal Register'';
(3) in paragraph (4), by striking ``section 19 (related to
prohibited acts)'' and inserting ``any consumer product safety
rule under or provision of this Act or similar rule under or
provision of any other Act administered by the Commission'';
and
(4) in paragraph (5)--
(A) in subparagraph (B), by striking ``; or'' and
inserting a semicolon;
(B) in subparagraph (C), by striking the period and
inserting ``; or'';
(C) by adding at the end the following:
``(D) the Commission publishes a finding that the public
health and safety require public disclosure with a lesser
period of notice than is required under paragraph (1).''; and
(D) in the matter following such subparagraph (as
added by subparagraph (C)), by striking ``section
19(a)'' and inserting ``any consumer product safety
rule under this Act or similar rule under or provision
of any other Act administered by the Commission''.
SEC. 206. PUBLICLY AVAILABLE INFORMATION ON INCIDENTS INVOLVING INJURY
OR DEATH.
(a) Evaluation.--The Commission shall examine and assess the efficacy
of the Injury Information Clearinghouse maintained by the Commission
pursuant to section 5(a) of the Consumer Product Safety Act (15 U.S.C.
2054(a)). The Commission shall determine the volume and types of
publicly available information on incidents involving consumer products
that result in injury, illness, or death and the ease and manner in
which consumers can access such information.
(b) Improvement Plan.--As a result of the study conducted under
subsection (a), the Commission shall transmit to Congress, not later
than 180 days after the date of enactment of this Act, a detailed plan
for maintaining and categorizing such information on a searchable
Internet database to make the information more easily available and
beneficial to consumers, with due regard for the protection of personal
information. Such plan shall include the views of the Commission
regarding whether additional information, such as consumer complaints,
hospital or other medical reports, and warranty claims, should be
included in the database. The plan submitted under this subsection
shall include a detailed implementation schedule for the database,
recommendations for any necessary legislation, and plans for a public
awareness campaign to be conducted by the Commission to increase
consumer awareness of the database.
SEC. 207. PROHIBITION ON STOCKPILING UNDER OTHER COMMISSION-ENFORCED
STATUTES.
Section 9(g)(2) (15 U.S.C. 2058(g)(2)) is amended--
(1) by inserting ``or to which a rule under any other law
enforced by the Commission applies,'' after ``applies,''; and
(2) by striking ``consumer product safety'' the second,
third, and fourth places it appears.
SEC. 208. NOTIFICATION OF NONCOMPLIANCE WITH ANY COMMISSION-ENFORCED
STATUTE.
Section 15(b) (15 U.S.C. 2064(b)) is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs (3)
and (4), respectively;
(2) by inserting after paragraph (1) the following:
``(2) fails to comply with any other rule affecting health
and safety promulgated by the Commission under the Federal
Hazardous Substances Act, the Flammable Fabrics Act, or the
Poison Prevention Packaging Act;''; and
(3) by adding at the end the following sentence: ``A report
provided under this paragraph (2) may not be used as the basis
for criminal prosecution under section 5 of the Federal
Hazardous Substances Act (15 U.S.C. 1264), except for offenses
which require a showing of intent to defraud or mislead.''.
SEC. 209. ENHANCED RECALL AUTHORITY AND CORRECTIVE ACTION PLANS.
(a) Enhanced Recall Authority.--Section 15 (15 U.S.C. 2064) is
amended--
(1) in subjection (c)--
(A) by striking ``if the Commission'' and inserting
``(1) If the Commission'';
(B) by inserting ``or if the Commission, after
notifying the manufacturer, determines a product to be
an imminently hazardous consumer product and has filed
an action under section 12,'' after ``from such
substantial product hazard,'';
(C) by redesignating paragraphs (1) through (3) as
subparagraphs (D) through (F), respectively;
(D) by inserting after ``the following actions:'' the
following:
``(A) To cease distribution of the product.
``(B) To notify all persons that transport, store,
distribute, or otherwise handle the product, or to which the
product has been transported, sold, distributed, or otherwise
handled, to cease immediately distribution of the product.
``(C) To notify appropriate State and local public health
officials.''; and
(E) by adding at the end the following:
``(2) If a district court determines, in an action filed under
section 12, that the product that is the subject of such action is not
an imminently hazardous consumer product, the Commission shall rescind
any order issued under this subsection with respect to such product.''.
(2) in subsection (f)--
(A) by striking ``An order'' and inserting ``(1)
Except as provided in paragraph (2), an order''; and
(B) by inserting at the end the following:
``(2) The requirement for a hearing in paragraph (1) shall
not apply to an order issued under subsection (c) relating to
an imminently hazardous consumer product with regard to which
the Commission has filed an action under section 12.''.
(b) Corrective Action Plans.--Section 15(d) (15 U.S.C. 2064(d)) is
amended--
(1) by inserting ``(1)'' after the subsection designation;
(2) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C);
(3) by striking ``more (A)'' in subparagraph (C), as
redesignated, and inserting ``more (i)'';
(4) by striking ``or (B)'' in subparagraph (C), as
redesignated, and inserting ``or (ii)'';
(5) by striking ``An order under this subsection may'' and
inserting:
``(2) An order under this subsection shall'';
(6) by striking ``, satisfactory to the Commission,'' and
inserting ``, as promptly as practicable under the
circumstances, as determined by the Commission, for approval by
the Commission,''; and
(7) by adding at the end the following:
``(3)(A) If the Commission approves an action plan, it shall indicate
its approval in writing.
``(B) If the Commission finds that an approved action plan is not
effective or appropriate under the circumstances, or that the
manufacturer, retailer, or distributor is not executing an approved
action plan effectively, the Commission may, by order, amend, or
require amendment of, the action plan. In determining whether an
approved plan is effective or appropriate under the circumstances, the
Commission shall consider whether a repair or replacement changes the
intended functionality of the product.
``(C) If the Commission determines, after notice and opportunity for
comment, that a manufacturer, retailer, or distributor has failed to
comply substantially with its obligations under its action plan, the
Commission may revoke its approval of the action plan.''.
(c) Content of Notice.--Section 15 is further amended by adding at
the end the following:
``(i) Not later than 180 days after the date of enactment of this
Act, the Commission shall, by rule, establish guidelines setting forth
a uniform class of information to be included in any notice required
under an order under subsection (c) or (d) of this section or under
section 12. Such guidelines shall include any information that the
Commission determines would be helpful to consumers in--
``(1) identifying the specific product that is subject to
such an order;
``(2) understanding the hazard that has been identified with
such product (including information regarding incidents or
injuries known to have occurred involving such product); and
``(3) understanding what remedy, if any, is available to a
consumer who has purchased the product.''.
SEC. 210. WEBSITE NOTICE, NOTICE TO THIRD PARTY INTERNET SELLERS, AND
RADIO AND TELEVISION NOTICE.
Section 15(c)(1) (15 U.S.C. 2064(c)(1)) is amended by inserting ``,
including posting clear and conspicuous notice on its Internet website,
providing notice to any third party Internet website on which such
manufacturer, retailer, or distributor has placed the product for sale,
and announcements in languages other than English and on radio and
television where the Commission determines that a substantial number of
consumers to whom the recall is directed may not be reached by other
notice'' after ``comply''.
SEC. 211. INSPECTION OF CERTIFIED PROPRIETARY LABORATORIES.
Section 16(a)(1) is amended by striking ``or (B)'' and inserting
``(B) any proprietary laboratories certified under section 14(e), or
(C)''.
SEC. 212. IDENTIFICATION OF MANUFACTURER, IMPORTERS, RETAILERS, AND
DISTRIBUTORS.
(a) In General.--Section 16 (15 U.S.C. 2065) is further amended by
adding at the end thereof the following:
``(c) Upon request by an officer or employee duly designated by the
Commission--
``(1) every importer, retailer, or distributor of a consumer
product (or other product or substance over which the
Commission has jurisdiction under this or any other Act) shall
identify the manufacturer of that product by name, address, or
such other identifying information as the officer or employee
may request, to the extent that such information is in the
possession of the importer, retailer, or distributor; and
``(2) every manufacturer shall identify by name, address, or
such other identifying information as the officer or employee
may request--
``(A) each retailer or distributor to which the
manufacturer directly supplied a given consumer product
(or other product or substance over which the
Commission has jurisdiction under this or any other
Act);
``(B) each subcontractor involved in the production
or fabrication or such product or substance; and
``(C) each subcontractor from which the manufacturer
obtained a component thereof.''.
(b) Compliance Required for Importation.--Section 17 (15 U.S.C. 2066)
is amended--
(1) in subsection (g), by striking ``may'' and inserting
``shall''; and
(2) in subsection (h)(2), by striking ``may'' and inserting
``shall, consistent with section 6,''.
SEC. 213. EXPORT OF RECALLED AND NON-CONFORMING PRODUCTS.
(a) In General.--Section 18 (15 U.S.C. 2067) is amended by adding at
the end the following:
``(c) Notwithstanding any other provision of this section, the
Commission may prohibit, by order, a person from exporting from the
United States for purpose of sale any consumer product, or other
product or substance that is regulated under any Act enforced by the
Commission, that the Commission determines, after notice to the
manufacturer--
``(1) is not in conformity with an applicable consumer
product safety rule under this Act or a similar rule under any
such other Act;
``(2) is subject to an order issued under section 12 or 15 of
this Act or designated as a banned hazardous substance under
the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.);
or
``(3) is subject to a voluntary corrective action taken by
the manufacturer, in consultation with the Commission, of which
action the Commission has notified the public and that would
have been subject to a mandatory corrective action under this
or another Act enforced by the Commission if voluntary action
had not been taken by the manufacturer,
unless the importing country has notified the Commission that such
country accepts the importation of such product, provided that if the
importing country has not so notified the Commission within 30 days
after the Commission has provided notice to the importing country of
the impending shipment, the Commission may take such action as is
appropriate with respect to the disposition of the product under the
circumstances.''.
(b) Prohibited Act.--Section 19(a)(10) (15 U.S.C. 2068(a)(10)) is
amended by striking the period at the end and inserting `` or violate
an order of the Commission issued under section 18(c); or''.
(c) Conforming Amendments to Other Acts.--
(1) Federal hazardous substances act.--Section 5(b)(3) of the
Federal Hazardous Substances Act (15 U.S.C. 1264(b)(3)) is
amended by striking ``substance presents an unreasonable risk
of injury to persons residing in the United States'' and
inserting ``substance is prohibited under section 18(c) of the
Consumer Product Safety Act,''.
(2) Flammable fabrics act.--Section 15 of the Flammable
Fabrics Act (15 U.S.C. 1202) is amended by adding at the end
the following:
``(d) Notwithstanding any other provision of this section, the
Consumer Product Safety Commission may prohibit, by order, a person
from exporting from the United States for purpose of sale any fabric,
related material, or product that the Commission determines, after
notice to the manufacturer--
``(1) is not in conformity with an applicable consumer
product safety rule under the Consumer Product Safety Act or
with a rule under this Act;
``(2) is subject to an order issued under section 12 or 15 of
the Consumer Product Safety Act or designated as a banned
hazardous substance under the Federal Hazardous Substances Act
(15 U.S.C. 1261 et seq.); or
``(3) is subject to a voluntary corrective action taken by
the manufacturer, in consultation with the Commission, of which
action the Commission has notified the public and that would
have been subject to a mandatory corrective action under this
or another Act enforced by the Commission if voluntary action
had not been taken by the manufacturer,
unless the importing country has notified the Commission that such
country accepts the importation of such product, provided that if the
importing country has not so notified the Commission within 30 days
after the Commission has provided notice to the importing country of
the impending shipment, the Commission may take such action as is
appropriate with respect to the disposition of the product under the
circumstances.''.
SEC. 214. PROHIBITION ON SALE OF RECALLED PRODUCTS.
Section 19(a) (as amended by section 210) (15 U.S.C. 2068(a)) is
further amended--
(1) by striking paragraph (1) and inserting the following:
``(1) sell, offer for sale, manufacture for sale, distribute
in commerce, or import into the United States any consumer
product, or other product or substance that is regulated under
any other Act enforced by the Commission, that is--
``(A) not in conformity with an applicable consumer
product safety standard under this Act, or any similar
rule under any such other Act;
``(B) subject to voluntary corrective action taken by
the manufacturer, in consultation with the Commission,
of which action the Commission has notified the public;
``(C) subject to an order issued under section 12 or
15 of this Act; or
``(D) designated a banned hazardous substance under
the Federal Hazardous Substances Act (15 U.S.C. 1261 et
seq.);'';
(2) by striking ``or'' after the semicolon in paragraph (7);
(3) by striking ``and'' after the semicolon in paragraph (8);
and
(4) by striking ``insulation).'' in paragraph (9) and
inserting ``insulation);''.
SEC. 215. INCREASED CIVIL PENALTY.
(a) Maximum Civil Penalties of the Consumer Product Safety
Commission.--
(1) Initial increase in maximum civil penalties.--
(A) Temporary increase.--Notwithstanding the dollar
amounts specified for maximum civil penalties specified
in section 20(a)(1) of the Consumer Product Safety Act
(15 U.S.C. 2069(a)(1)), section 5(c)(1) of the Federal
Hazardous Substances Act, and section 5(e)(1) of the
Flammable Fabrics Act (15 U.S.C. 1194(e)(1)), the
maximum civil penalties for any violation specified in
such sections shall be $5,000,000, beginning on the
date that is the earlier of the date on which final
regulations are issued under section 3(b) or 360 days
after the date of enactment of this Act.
(B) Effective date.--Paragraph (1) shall cease to be
in effect on the date on which the amendments made by
subsection (b)(1) shall take effect.
(2) Permanent increase in maximum civil penalties.--
(A) Amendments.--
(i) Consumer product safety act.--Section
20(a)(1) (15 U.S.C. 2069(a)(1)) is amended by
striking ``$1,250,000'' both places it appears
and inserting ``$10,000,000''.
(ii) Federal hazardous substances act.--
Section 5(c)(1) of the Federal Hazardous
Substances Act (15 U.S.C. 1264(c)(1)) is
amended by striking ``$1,250,000'' both places
it appears and inserting ``$10,000,000''.
(iii) Flammable fabrics act.--Section 5(e)(1)
of the Flammable Fabrics Act (15 U.S.C.
1194(e)(1)) is amended by striking
``$1,250,000'' and inserting ``$10,000,000''.
(B) Effective date.--The amendments made by paragraph
(1) shall take effect on the date that is 1 year after
the earlier of--
(i) the date on which final regulations are
issued pursuant to section 3(b); or
(ii) 360 days after the date of enactment of
this Act.
(b) Determination of Penalties by the Consumer Product Safety
Commission.--
(1) Factors to be considered.--
(A) Consumer product safety act.--Section 20(b) (15
U.S.C. 2069(b)) is amended--
(i) by inserting ``the nature, circumstances,
extent, and gravity of the violation,
including'' after ``shall consider'';
(ii) by striking ``products distributed,
and'' and inserting ``products distributed,'';
and
(iii) by inserting ``, and such other factors
as appropriate'' before the period.
(B) Federal hazardous substances act.--Section
5(c)(3) of the Federal Hazardous Substances Act (15
U.S.C. 1264(c)(3)) is amended--
(i) by inserting ``the nature, circumstances,
extent ,and gravity of the violation,
including'' after ``shall consider'';
(ii) by striking ``substance distributed,
and'' and inserting ``substance distributed,'';
and
(iii) by inserting ``, and such other factors
as appropriate'' before the period.
(C) Flammable fabrics act.--Section 5(e)(2) of the
Flammable Fabrics Act (15 U.S.C. 1194(e)(2)) is
amended--
(i) by striking ``nature and number'' and
inserting ``nature, circumstances, extent, and
gravity'';
(ii) by striking ``absence of injury, and''
and inserting ``absence of injury,''; and
(iii) by inserting ``, and such other factors
as appropriate'' before the period.
(2) Regulations.--Not later than 1 year after the date of
enactment of this Act, and in accordance with the procedures of
section 553 of title 5, United States Code, the Commission
shall issue a final regulation providing its interpretation of
the penalty factors described in section 20(b) of the Consumer
Product Safety Act (15 U.S.C. 2069(b)), section 5(c)(3) of the
Federal Hazardous Substances Act (15 U.S.C. 1264(c)(3)), and
section 5(e)(2) of the Flammable Fabrics Act (15 U.S.C.
1194(e)(2)), as amended by subsection (a).
SEC. 216. CRIMINAL PENALTIES TO INCLUDE ASSET FORFEITURE.
Section 21 (15 U.S.C. 2070) is amended by adding at the end thereof
the following:
``(c)(1) In addition to the penalty provided by subsection (a), the
penalty for a criminal violation of this Act or any other Act enforced
by the Commission may include the forfeiture of assets associated with
the violation.
``(2) In this subsection, the term `criminal violation' means a
violation of this Act of any other Act enforced by the Commission for
which the violator is sentenced under this section, section 5(a) of the
Federal hazardous Substances Act (15 U.S.C. 2064(a)), or section 7 of
the Flammable Fabrics Act (15 U.S.C. 1196).''.
SEC. 217. ENFORCEMENT BY STATE ATTORNEYS GENERAL.
Section 24 (15 U.S.C. 2073) is amended--
(1) in the section heading, by striking ``private'' and
inserting ``additional'';
(2) by striking ``Any interested person'' and inserting ``(a)
Any interested person''; and
(3) by striking ``No separate suit'' and all that follows and
inserting the following:
``(b)(1) The attorney general of a State, alleging a violation of
section 19(a) that affects or may affect such State or its residents
may bring an action on behalf of the residents of the State in any
United States district court for the district in which the defendant is
found or transacts business to enforce a consumer product safety rule
or an order under section 15, and to obtain appropriate injunctive
relief.
``(2) Not less than thirty days prior to the commencement of such
action, the attorney general shall give notice by registered mail to
the Commission, to the Attorney General, and to the person against whom
such action is directed. Such notice shall state the nature of the
alleged violation of any such standard or order, the relief to be
requested, and the court in which the action will be brought. The
Commission shall have the right--
``(A) to intervene in the action;
``(B) upon so intervening, to be heard on all matters arising
therein;
``(C) and to file petitions for appeal.
``(c) No separate suit shall be brought under this section if at the
time the suit is brought the same alleged violation is the subject of a
pending civil or criminal action by the United States under this Act.
In any action under this section the court may in the interest of
justice award the costs of suit, including reasonable attorneys' fees
(determined in accordance with section 11(f)) and reasonable expert
witnesses' fees.''.
SEC. 218. EFFECT OF RULES ON PREEMPTION.
In issuing any rule or regulation in accordance with its statutory
authority, the Commission shall not seek to expand or contract the
scope, or limit, modify, interpret, or extend the application of
sections 25 and 26 of the Consumer Products Safety Act (15 U.S.C. 2074
and 2075, respectively), section 18 of the Federal Hazardous Substances
Act (15 U.S.C. 1261), section 7 of the Poison Prevention Packaging Act
(15 U.S.C. 1476), or section 16 of the Flammable Fabrics Act (15 U.S.C.
1203) with regard to the extent to which each such Act preempts,
limits, or otherwise affects any other Federal, State, or local law, or
limits or otherwise affects any cause of action under State or local
law.
SEC. 219. SHARING OF INFORMATION WITH FEDERAL, STATE, LOCAL, AND
FOREIGN GOVERNMENT AGENCIES.
Section 29 (15 U.S.C. 2078) is amended by adding at the end the
following:
``(f)(1) The Commission may make information obtained by the
Commission under this Act available (consistent with the requirements
of section 6) to any Federal, State, local, or foreign government
agency upon the prior certification of an appropriate official of any
such agency, either by a prior agreement or memorandum of understanding
with the Commission or by other written certification, that such
material will be maintained in confidence and will be used only for
official law enforcement or consumer protection purposes, if--
``(A) the agency has set forth a bona fide legal basis for
its authority to maintain the material in confidence;
``(B) the materials are to be used for purposes of
investigating, or engaging in enforcement proceedings related
to, possible violations of--
``(i) laws regulating the manufacture, importation,
distribution, or sale of defective or unsafe consumer
products, or other practices substantially similar to
practices prohibited by any law administered by the
Commission;
``(ii) a law administered by the Commission, if
disclosure of the material would further a Commission
investigation or enforcement proceeding; or
``(iii) with respect to a foreign law enforcement
agency, with the approval of the Attorney General,
other foreign criminal laws, if such foreign criminal
laws are offenses defined in or covered by a criminal
mutual legal assistance treaty in force between the
government of the United States and the foreign law
enforcement agency's government; and
``(C) in the case of a foreign government agency, such agency
is not from a foreign state that the Secretary of State has
determined, in accordance with section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j)), has
repeatedly provided support for acts of international
terrorism, unless and until such determination is rescinded
pursuant to section 6(j)(4) of that Act (50 U.S.C. App.
2405(j)(4)).
``(2) The Commission may abrogate any agreement or memorandum
of understanding entered into under paragraph (1) if the
Commission determines that the agency with which such agreement
or memorandum of understanding was entered into has failed to
maintain in confidence any information provided under such
agreement or memorandum of understanding, or has used any such
information for purposes other than those set forth in such
agreement or memorandum of understanding.
``(3)(A) Except as provided in subparagraph (B) of this
paragraph, the Commission shall not be required to disclose
under section 552 of title 5, United States Code, or any other
provision of law--
``(i) any material obtained from a foreign government
agency, if the foreign government agency has requested
confidential treatment, or has precluded such
disclosure under other use limitations, as a condition
of providing the material;
``(ii) any material reflecting a consumer complaint
obtained from any other foreign source, if that foreign
source supplying the material has requested
confidential treatment as a condition of providing the
material; or
``(iii) any material reflecting a consumer complaint
submitted to a Commission reporting mechanism sponsored
in part by foreign government agencies.
``(B) Nothing in this subsection shall authorize the
Commission to withhold information from the Congress or prevent
the Commission from complying with an order of a court of the
United States in an action commenced by the United States or
the Commission.
``(4) In this subsection, the term `foreign government agency'
means--
``(A) any agency or judicial authority of a foreign
government, including a foreign state, a political subdivision
of a foreign state, or a multinational organization constituted
by and comprised of foreign states, that is vested with law
enforcement or investigative authority in civil, criminal, or
administrative matters; and
``(B) any multinational organization, to the extent that it
is acting on behalf of an entity described in subparagraph (A).
``(g) Whenever the Commission is notified of any voluntary recall of
any consumer product self-initiated by a manufacturer (or a retailer in
the case of a retailer selling a product under its own label), or
issues an order under section 15(c) or (d) with respect to any product,
the Commission shall notify each State's health department or other
agency designated by the State of the recall or order.''.
SEC. 220. INSPECTOR GENERAL AUTHORITY AND ACCESSIBILITY.
(a) Report.--Not later than 60 days after the date of the enactment
of this Act, the Inspector General of the Commission shall transmit a
report to Congress on the activities of the Inspector General, any
structural barriers which prevent the Inspector General from providing
robust oversight of the activities of the Commission, and any
additional authority or resources that would facilitate more effective
oversight.
(b) Employee Complaints.--
(1) In general.--The Inspector General of the Commission
shall conduct a review of--
(A) complaints received by the Inspector General from
employees of the Commission about violations of rules,
regulations, or the provisions of any Act enforced by
the Commission; and
(B) the process by which corrective action plans are
negotiated with such employees by the Commission,
including an assessment of the length of time for these
negotiations and the effectiveness of the plans.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Inspector General shall transmit a
report to the Commission and to Congress setting forth the
Inspector General's findings, conclusions, actions taken in
response to employee complaints, and recommendations.
(c) Complaint Procedure.--Not later than 30 days after the date of
enactment of this Act the Commission shall establish and maintain on
the homepage of the Commission's Internet website a mechanism by which
individuals may anonymously report incidents of waste, fraud, or abuse
with respect to the Commission.
SEC. 221. REPEAL.
Section 30 (15 U.S.C. 2079) is amended by striking subsection (d) and
redesignating subsections (e) and (f) as subsections (d) and (e),
respectively.
SEC. 222. INDUSTRY-SPONSORED TRAVEL BAN.
The Consumer Product Safety Act (15 U.S.C. 1251 et seq.) is amended
by adding at the end the following new section:
``SEC. 38. PROHIBITION ON INDUSTRY-SPONSORED TRAVEL.
``(a) Prohibition.--Notwithstanding section 1353 of title 31, United
States Code, no Commissioner or employee of the Commission shall accept
travel, subsistence, and related expenses with respect to attendance by
a Commissioner or employee at any meeting or similar function relating
to official duties of a Commissioner or an employee, from a person--
``(1) seeking official action from, doing business with, or
conducting activities regulated by, the Commission; or
``(2) whose interests may be substantially affected by the
performance or nonperformance of the Commissioner's or
employee's official duties.
``(b) Authorization of Appropriations for Official Travel.--There are
authorized to be appropriated, for each of fiscal years 2009 through
2011, $1,200,000 to the Commission for certain travel and lodging
expenses necessary in furtherance of the official duties of
Commissioners and employees.''.
SEC. 223. ANNUAL REPORTING REQUIREMENT.
Section 27(j) (15 U.S.C. 2076(j)) is amended--
(1) in the matter preceding paragraph (1), by striking ``The
Commission'' and inserting ``Notwithstanding section 3003 of
the Federal Reports Elimination and Sunset Act of 1995 (31
U.S.C. 1113 note), the Commission''; and
(2) by redesignating paragraphs (5) through (11) as
paragraphs (6) through (12), respectively and inserting after
paragraph (4) the following:
``(5) the number and summary of recall orders issued under
section 12 or 15 during such year and a summary of voluntary
actions taken by manufacturers of which the Commission has
notified the public, and an assessment of such orders and
actions;''.
SEC. 224. STUDY ON THE EFFECTIVENESS OF AUTHORITY RELATING TO IMPORTED
PRODUCTS.
The Commission shall study the effectiveness of section 17(a) of the
Consumer Product Safety Act (15 U.S.C. 2066(a)), specifically
paragraphs (3) and (4) of such section, to determine a specific
strategy to increase the effectiveness of the Commission's ability to
stop unsafe products from entering the United States. The Commission
shall submit a report to Congress not later than 9 months after
enactment of this Act, which shall include recommendations regarding
additional authority the Commission needs to implement such strategy,
including any necessary legislation.
PURPOSE AND SUMMARY
H.R. 4040, the Consumer Product Safety Modernization Act,
is comprehensive bipartisan legislation to strengthen and
modernize the consumer product safety system in the United
States. The legislation places special emphasis on improving
the safety of products designed or intended for children.
Title I, ``Children's Product Safety,'' contains provisions
to ensure the greater safety of toys, nursery equipment, and
other children's products that are sold in or imported into
interstate commerce. It includes provisions that establish or
toughen Federal standards to ban lead in children's products
beyond minute amounts; require pretesting and certification of
certain children's products, including nursery equipment;
mandate identifying and cautionary labeling; require a study by
the Comptroller General of whether there is a disproportionate
rate of death or injury from consumer products for minority
children; and require an assessment of voluntary standards
governing the safety of toys, with special attention to
products or toys containing powerful magnets.
Title II, ``Consumer Product Safety Commission Reform,''
reauthorizes the Consumer Product Safety Commission (CPSC), the
Government agency charged with overseeing and regulating the
safety of the Nation's consumer products. Most importantly,
this title authorizes significantly increased resources for
fiscal years 2009 to 2011, providing for approximately 10
percent real growth on top of increases intended to meet
inflation and other increased costs. It also restores the
agency to its full panel of five Commissioners at the end of
fiscal year 2010. Other provisions enable the agency to inform
the public immediately about unsafe products when health and
safety so require, to provide better information to consumers
about recalled products and the available remedies, and to
exert more control to stop the importation of unsafe consumer
products. The bill also mandates that the agency work with
Congress to develop a comprehensive user-friendly database
containing information on product-related deaths and serious
injuries. In total, H.R. 4040 will provide new resources and
tools to the CPSC to empower it to protect consumers more
effectively in an increasingly more complex and global
marketplace.
BACKGROUND AND NEED FOR LEGISLATION
At the beginning of the 110th Congress in January 2007, the
Chairman of the Subcommittee on Commerce, Trade, and Consumer
Protection of the Committee on Energy and Commerce announced
that the Subcommittee would concentrate its attention on the
consumer product safety system in the United States and the
record of the CPSC to perform its mission to ``protect the
public against unreasonable risks associated with consumer
products.'' A relatively new independent Federal agency, the
CPSC was established by legislation in 1972 and began
operations a year later. The agency's responsibilities cover
all consumer products in interstate commerce in the United
States, excluding food, drugs, cosmetics, tobacco, firearms,
alcohol, automobiles and other on-road vehicles, boats, tires,
pesticides, and medical devices. The CPSC and commentators have
for years referred to the agency's responsibility as covering
more than ``15,000 different product categories,'' but given
technological advances, the growth in demand for consumer
products, and the increasing diversification and globalization
of the market, that number probably is now significantly
understated.
The record from the first consumer product safety hearing
held by the Subcommittee on May 6, 2007, amply demonstrates
that the CPSC for many years has lacked the necessary resources
or authority to protect Americans adequately--much less
robustly--from unsafe consumer products. Starting in the 1980s,
the agency's resources have been steadily eroded. Staffing
levels at the agency dropped from a high number of almost 1,000
employees in the early 1980s to fewer than 400 employees today.
In addition, starting in 1986 and continuing to the present, an
appropriations rider has limited CPSC funding to only three
Commissioners, instead of the five Commissioners provided for
under section 4(a) of the Consumer Product Safety Act, thereby
depriving the agency of diversity in its leadership and
decision making and diminishing its stature relative to other
independent agencies. Even worse, the limit to three
Commissioners has caused the CPSC to lack the necessary quorum
to issue decisions or promulgate rules when any one Commission
seat is vacant and is not filled within six months through the
normal Presidential nomination and Senate confirmation process.
The CPSC has not been reauthorized since 1990, nor has Congress
undertaken any other systematic review of its performance and
operating statutes in that time period.
The Committee's attention to the safety of children's
products accelerated after the numerous product recalls that
occurred this past summer. From June to September of 2007, the
CPSC recalled more than four million children's toys and items
of jewelry due to excessive lead. Lead is a known neurotoxin
that can enter a child's system in a number of ways--children
touch and handle toys with lead paint and then put their hands
in their mouths, or they mouth or chew on toys and small
objects, and even swallow them. Public health and other
officials for years have warned about the devastating effect of
lead on children's brains. Because of the cumulative effect of
lead on the developing nervous system, exposure over time can
lead to attention problems, learning disabilities, mental
retardation, antisocial and delinquent behavior, and lower
intellectual ability, measured as loss in IQ points.
Two of the toy recalls that gained the most media attention
were for Thomas the Tank Engine, a wooden train set modeled
after the character in a popular children's TV show, and for
several toys made by Mattel, Inc., the nation's largest toy
manufacturer, including a ``Sarge'' car, Barbie doll
accessories, and Dora the Explorer characters. The lead-paint-
toy recalls in turn focused attention on more than 50 recalls
over the past several years involving more than 170 million
items of children's jewelry manufactured with excessive, even
dangerous, levels of lead. In the worst case, a four-year-old
child from Minnesota swallowed a charm given away as a premium
with adult athletic shoes and died three days later from acute
lead poisoning. The charm removed from his digestive system was
found to contain 99 percent lead.
The overwhelming majority of children's products, both toys
and jewelry, recalled for excessive lead in the past few years
were imported from China. In 2006, 86 percent of all toys sold
in the United States were made in China. Excessive lead in
these products has raised questions about quality control
practices and the integrity of the manufacturing process for
consumer goods outsourced by U.S. companies. Questions also
have been raised about how to comply with and enforce U.S.
standards when goods are manufactured in a developing nation
that does not have the same culture of compliance found in the
United States. To get answers to these questions, Subcommittee
Chairman Rush and Ranking Member Cliff Stearns wrote letters in
August 2007 to 19 manufacturers or importers of recalled lead-
tainted toys and jewelry. In September, they pursued their
questions further in follow-up letters to four of these
companies that had provided less than complete answers.
The failure of manufacturers to comply with safety
standards on lead is an especially difficult problem for
parents, because there is no way to look at a toy and know that
either the paint or the underlying metal content is limited to
safe or lawful amounts of lead. Nor are signs of neurological
damage to children from cumulative exposure to lead evident
without medical testing.
Moreover, efforts by the CPSC to protect consumers against
excessive levels of lead in the content of children's products
are complicated by the fact that there is no current Federal
standard quantifying the permissible amount of lead content in
a product. To protect children from lead in jewelry and other
products, the CPSC must proceed under section 2(q)(1) of the
Federal Hazardous Substance Act, 15 U.S.C. 1261(q)(1), to
determine that a product is a ``banned hazardous substance'' if
the lead is ``susceptible of access by a child to whom it is
entrusted.'' Although CPSC staff in January 2005 published
guidelines, ``Interim Enforcement Policy for Children's Metal
Jewelry Containing Lead,'' stating that it will seek corrective
action for any children's jewelry that tests above 600 parts
per million (ppm), or .06 percent of total weight, these
guidelines do not have the force of law. In contrast, there is
a clear Federal standard limiting the amount of lead in paint
to 600 ppm. 16 C.F.R. Sec. 1303.
Lead was not the only problem with toys during last
summer's recalls. Roughly half the toys recalled were for
design defects: problems originating with the U.S. manufacturer
or importer and not the foreign (overwhelmingly Chinese)
companies that assembled or actually ``manufactured'' the toy.
Design defects in children's toys or other products leading to
recalls were for loose and powerful magnets, or for burn,
laceration, choking, or strangulation hazards.
To deal with the problem of unsafe toys and other products
imported from China, the CPSC has been in direct contact with
the Government of China over the past three years. In September
2007, the CPSC signed a Joint Statement with the Chinese
Administration of Quality, Supervision, Inspection, and
Quarantine (ASQIQ) to improve the quality and safety of four
categories of consumer products, including toys. In particular,
the Joint Statement provides that ASQIQ proposes ``a
comprehensive plan to eliminate the use of lead paint on
Chinese manufactured toys exported to the United States.''
Beyond these cooperative actions, the CPSC needs to take
considerably more aggressive action if it is to protect
American consumers and children from unsafe toys and other
products in the marketplace, whether manufactured at home or
abroad. Stakeholders agreed that the single most important
thing Congress can do to improve consumer product safety is to
provide the CPSC with the significantly greater level of
resources that it needs to perform its mission. The CPSC must
grow at a quick but workable pace that will allow it to hire
and train staff with the necessary expertise to regulate
product safety and enforce the law in a global marketplace with
such an expansive array of products. In addition, the
limitation to three Commissioners puts the agency in constant
jeopardy of losing its quorum when just one Commissioner
resigns and is not replaced within six months. Without a
quorum, the CPSC cannot promulgate rules or bring mandatory
recall actions.
Testimony also indicated that the CPSC needs enhanced
authority and more streamlined processes. The agency needs to
have clearer authority to warn the public about unsafe products
quickly, and when public safety from dangerous products hangs
in the balance. The CPSC needs more power to negotiate and
order appropriate remedies after unsafe or defective products
have been recalled and then to notify the public effectively
about the scope of a recall and the available remedies. The
CPSC also needs better enforcement tools, including the power
to impose higher penalties, so that the penalty for
manufacturing or selling an unsafe product will act as a real
deterrent to wrongdoing and not be simply dismissed as a cost
of doing business. The agency must be able to promulgate
regulations more quickly, and it must not be required to engage
in three-part rulemaking in all instances, even when the
proposed rule is merely technical in nature. Finally,
consistent with obligations under various international trade
agreements, the CPSC must have more authority to deal with
unsafe consumer products manufactured and imported from abroad.
To address these important concerns, the Committee has
crafted this comprehensive and carefully balanced legislation,
and made reporting it unanimously to the House a high priority.
HEARINGS
The Subcommittee on Commerce, Trade, and Consumer
Protection held a hearing on Tuesday, May 15, 2007, entitled
``Protecting Our Children: Current Issues in Consumer Product
Safety.'' The hearing examined the performance of the CPSC in
safeguarding consumers, particularly children, from hazardous
products. Testimony was received from the Honorable Nancy A.
Nord, Acting CPSC Chairman; Mr. Alan Korn, Public Policy
Director and General Counsel, Safe Kids Worldwide; Ms. Rachel
Weintraub, Director of Product Safety and Senior Counsel,
Consumer Federation of America; Mr. Frederick Locker, General
Counsel, Toy Industry Association; Ms. Marla Felcher, Adjunct
Lecturer, Kennedy School of Government, Harvard University; Mr.
James A. Thomas, President, ASTM International; and Ms. Nancy
A. Cowles, Executive Director, Kids in Danger.
The Subcommittee also held a legislative hearing on
Wednesday, June 6, 2007, entitled ``Legislation to Improve
Consumer Product Safety for Children: H.R. 2474, H.R. 1699,
H.R. 814, and H.R. 1721.'' Testimony was received from Mr.
Edmund Mierzwinski, Consumer Program Director, United States
Public Interest Research Group, and Ms. Sally Greenberg, Senior
Product Safety Counsel, Consumers Union.
On Wednesday September 19, 2007, and Thursday September 20,
2007 the Subcommittee held a hearing entitled ``Protecting
Children from Lead-Tainted Imports.'' Testimony was received on
September 19th from the Honorable Nancy A. Nord, Acting CPSC
Chairman; the Honorable Thomas H. Moore, CPSC Commissioner; and
Robert A. Eckert, Chairman and CEO, Mattel Inc. Testimony was
received on September 20th from Dr. Dana Best, M.D., M.P.H.,
F.A.A.P., American Academy of Pediatrics; Ms. Olivia D. Farrow,
Esq., R.S., Assistant Commissioner, Division of Environmental
Health, Baltimore City Health Department; Mr. Michael Green,
Executive Director, Center for Environmental Health; Ms. Lori
Wallach, Director, Global Trade Watch; Ms. Mary Teagarden,
Professor of Global Strategy, Thunderbird School of Global
Management; Mr. Carter Keithley, President, Toy Industry
Association, Inc.; Mr. Allen Thompson, Vice President, Global
Supply Chain Policy, Retail Industry Leaders Association; Mr.
Michael Gale, Fashion Jewelry Trade Association; Mr. Gary E.
Knell, CEO and President, Sesame Workshop; and Ms. Kathie
Morgan, Vice President, Technical, Committee Operations, ATSM
International.
The Subcommittee held a legislative hearing on Tuesday,
November 6, 2007 entitled ``Comprehensive Children's Product
Safety and Consumer Product Safety Commission Reform
Legislation.'' Testimony was received from the Honorable Nancy
A. Nord, Acting CPSC Chairman; the Honorable Thomas H. Moore,
CPSC Commissioner; Ms. Kathrin Belliveau, Director of Public
Safety and Regulatory Affairs, Hasbro, Inc.; Dr. Dana Best,
M.D., M.P.H., F.A.A.P., American Academy of Pediatrics; Mr.
Lane Hallenbeck, Vice President, Accreditation Services,
American National Standards Institute (ANSI); Mr. Alan Korn,
Public Policy Director and General Counsel, Safe Kids
Worldwide; Mr. Joseph McGuire, President, Association of Home
Appliance Manufacturers; and Ms. Rachel Weintraub, Director of
Product Safety and Senior Counsel, Consumer Federation of
America.
COMMITTEE CONSIDERATION
On Thursday, November 15, 2007, the Subcommittee on
Commerce, Trade and Consumer Protection met in open markup
session and favorably forwarded H.R. 4040, amended, to the full
Committee for consideration, by a voice vote. On Thursday,
December 13, 2007, the full Committee met in open markup
session and considered H.R. 4040. The Committee reconvened on
Tuesday, December 18, 2007, to continue consideration of H.R.
4040. The Committee ordered H.R. 4040 favorably reported to the
House, amended, by a recorded vote of 51-0.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Dingell to order H.R. 4040 favorably reported to
the House, amended, was agreed to by a recorded vote of 51 yeas
and 0 nays. The following are the recorded votes taken on the
motion and amendments thereto, including the names of those
Members voting for and against.
COMMITTEE OVERSIGHT FINDINGS
Regarding clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the oversight findings of the
Committee regarding H.R. 4040 are reflected in this report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
The purposes of H.R. 4040 are to improve the safety of
products designed and sold for children and to reform and
modernize consumer product safety regulation in the United
States.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
Regarding compliance with clause 3(c)(2) of rule XIII of
the Rules of the House of Representatives, the Committee will
adopt as its own the estimate of budget authority and revenues
regarding H.R. 4040 prepared by the Director of the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974. The Committee finds that H.R.
4040 would result in no new or increased entitlement authority
or tax expenditures.
EARMARKS AND TAX AND TARIFF BENEFITS
Regarding compliance with clause 9 of rule XXI of the Rules
of the House of Representatives, H.R. 4040 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
COMMITTEE COST ESTIMATE
The Committee will adopt as its own the cost estimate on
H.R. 4040 prepared by the Director of the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Regarding clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, a cost estimate on H.R. 4040 by the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not available when the
Committee filed this report.
FEDERAL MANDATES STATEMENT
The Committee will adopt as its own the estimate of Federal
mandates regarding H.R. 4040 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
4040.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian Tribes, and in the provisions of
Article I, section 8, clause 1, that relate to expending funds
to provide for the general welfare of the United States.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act of 1995.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title; table of content
Section 1 states that the short title of this Act is the
``Consumer Product Safety Modernization Act of 2007'' and also
includes the table of contents.
Section 2. References
Section 2 states that all references to the ``Commission''
mean the Consumer Product Safety Commission (CPSC) and that all
references to ``Act'' mean the Consumer Product Safety Act.
Section 3. Authority to issue implementing regulations
Section 3 provides general authority to the CPSC to
promulgate regulations that may be necessary to implement the
legislation.
Title I--Children's Product Safety
Section 101. Ban on children's products containing lead; lead paint
rule
Section 101 establishes a Federal ban on lead in children's
products beyond specified minute amounts. It establishes clear
Federal standards, phased in over four years, on the amounts of
lead content and lead paint that are permitted in children's
products. Once these lead standards are fully implemented, they
will be the most health protective standards in the world, more
protective than those currently established under any State or
local law or in the European Union. Thereafter, the legislation
requires that the CPSC, through rulemaking, review these
standards to determine whether they may feasibly be reduced
further to ensure they are as protective of human health as
possible. Thus, the Committee intends that the statutory
standards established under this legislation serve as a minimum
level of protection, and this Act provides the CPSC with
ongoing responsibility and authority to review advances in
science and technology to determine if such standards may be
revised and reduced further.
Section 101(a) addresses lead content in children's
products. Paragraph (1) declares that, effective 180 days after
enactment, any children's product containing more than the
amount of lead set forth in paragraph (2) shall be a banned
hazardous substance within the meaning of section 2(q)(1) of
the Federal Hazardous Substances Act, 15 U.S.C. 1261(q)(1).
Although section 2(q)(1) refers to hazardous substances
``susceptible of access'' to children, the legislation makes
children's products with lead levels greater than the standards
set forth in paragraph (2) banned hazard substances regardless
of accessibility.
Paragraph (2) reduces the small amounts of lead permitted
in children's products in stages. Lead standards are expressed
as total lead content by weight, not as the amount of soluble
lead. Within 180 days after enactment, the permitted amount is
600 parts per million (ppm) total lead content by weight for
any part of a product. Two years later, the permitted amount is
reduced to 300 ppm, and 4 years later, the amount is reduced to
100 ppm. The CPSC may, however, after a hearing make a
determination as to whether the 100 ppm standard is feasible to
achieve. If the CPSC determines that 100 ppm is not feasible,
it must set the standard at the lowest level between 300 ppm
and 100 ppm that is feasible to achieve.
When assessing whether a standard is ``feasible,'' the
Committee intends that CPSC focus on the scientific advances
and the technical ability of manufacturers to achieve that
standard. The CPSC also should focus on its own ability to
detect violations of the standard and to enforce it. Increased
cost of manufacturing is not a sufficient consideration to
render a standard infeasible. The Committee assumes that the
cost to produce children's products to meet these reduced lead
standards will increase but believes that the greater cost is
necessary to protect the health of children, which is the
primary focus of this section and this title.
Paragraph (3) expressly requires the CPSC to review the 100
ppm standard as it applies to any class of children's products
to determine if it is feasible to set it at a lower level that
is more protective of human health. The CPSC may at any time
require that any class of children's products be manufactured
with even lower levels of lead--including 0 ppm--and establish
an appropriate standard. The Committee expects the CPSC to
consider the different materials and products made for
children, as well the way children interact with these
materials and products, and to work with industry and the
public to reduce the amount of lead in various children's
products to the greatest extent possible.
Paragraph (3) further mandates that the CPSC conduct
periodic reviews of scientific and technical information on an
ongoing basis to determine if it is feasible to reduce whatever
lead standard applies at the time. The Committee intends that
the CPSC conduct such reviews every several years.
Paragraph (4) authorizes the CPSC, in very narrow
circumstances, to exclude, by rule, certain materials and
products from the total lead weight limits. The lead content in
these materials must be in a form that will not result in
absorption of any lead whatsoever into the human body or have
any adverse effect on public health or safety. The Committee
understands that one such material may be lead crystal because
of its molecular structure, but the CPSC must make that
determination by rule. The CPSC also would have to determine if
other materials meet this strict standard, including for
example, certain gemstones. Paragraph (4) does not, however,
authorize the CPSC to exclude children's metal jewelry items
that exceed total lead weight standards but have been
electroplated. The Committee believes that electroplating is
capable of being breached through normal use and abuse, which
would allow lead to leach out and be absorbed by the human body
if ingested. Accordingly, items of children's jewelry must meet
the lead standards set forth in paragraph (2) or otherwise are
banned hazardous substances.
Paragraph (5) defines ``children's products'' as used in
this Act. It includes all consumer products as defined in
section 3(a)(1) of the Consumer Product Safety Act designed or
intended primarily for children 12 years of age or younger. By
``primarily intended'', the Committee wishes to exclude common
household products that may be used by children but are not
intended primarily for children and would not reasonably be
considered children's products. Examples would include door
knobs, metal bed posts on full-size beds, and metal clothes
hangers. Paragraph (5) lists specific factors to be considered
when determining whether a product is primarily intended for
the age group, including the manufacturer's statement of
intended use, marketing and packaging of the product, and which
products consumers would commonly recognize as intended for
children in that age group. Manufacturers also are directed to
consult the Age Determination Guidelines issued by CPSC staff
in 2002.
Paragraph (6) sets forth an exception to the lead standards
in paragraph (2) for inaccessible component parts that are
contained in sealed coverings and casings, and thus will not be
exposed or accessible to children through normal use and abuse.
The CPSC may determine which such component parts may be
excepted from the lead limits. This exception is intended
primarily for sealed electronic devices. It is not intended to
apply to items of children's jewelry that have been
electroplated, as electroplating is not the sealed covering or
casing that this paragraph contemplates. As stated, it is the
Committee's view that electroplating can be breached by normal
use and abuse. The Committee expects the Commission to develop
a rigorous standard that will ensure that any product granted
an exception has no meaningful ability to expose a child to
lead in such a way that could raise blood lead level.
Finally, nothing in section 101 or this legislation is
intended to interfere with the ability of any State to require
warnings about a risk of illness or injury associated with lead
in a children's product. The Committee recognizes that some
States currently impose such warning requirements and does not
intend to preempt those requirements in any way.
Subsection (b) applies to lead paint on children's
products. Not later than 180 days after enactment, the CPSC
must modify the existing regulations on lead paint at 16 C.F.R.
1303.1, reducing the standard from ``0.06 percent'' to ``0.009
percent'' of total lead content by weight. Stated in equivalent
terms to the lead content standard in section 101(a)(2), this
translates to a reduction from 600 ppm to 90 ppm.
Paragraph (1)(C) directs the CPSC also to set the lead
paint standard at .0009 milligrams per centimeter squared, an
alternative measurement expressed as the amount of lead mass in
a given surface area. This alternative measurement permits
testing of paint on children's products with x-ray fluorescence
spectroscopy (XRF) technology, which is both quick and
portable. XRF technology can be used outside laboratories
onsite at ports or in stores to test the level of lead in
paint. XRF technology can greatly aid the CPSC's efforts to
inspect and enforce the paint levels on a vast array of toys
and other children's products.
Paragraph (2) directs that the CPSC must review the
standard in paragraph (1)(C) not later than three years after
enactment to determine whether it is feasible to revise it to
make it more protective. The Committee is aware that XRF
technology is advancing and wants to ensure that it can and
will be used to detect even lower levels of lead as soon as it
is feasible to do so.
Subsection (c) gives the CPSC authority to extend, by rule,
the implementation period for the new lead standards in both
subsections (a) and (b) for an additional 180 days. To grant an
extension, the CPSC must determine that there would be no
impact on public health and safety, and also that
implementation within 180 days would not be feasible, would be
excessively costly, or that the agency would require additional
time to implement standards and acquire the technology
necessary to test and to enforce the new standards.
This provision provides a mechanism for the CPSC, by rule,
to grant limited exceptions for items that may, due to
extenuating circumstances, be unable to reach the lead standard
by the stated deadline. The Commission must determine that
there will be no affect on health or safety from extending the
implantation period. The Committee does not intend for CPSC to
be able to establish blanket extensions for broad categories of
products or for all products made by a manufacturer. This
section is intended only to provide a modest time extension for
manufacturers encountering unexpected challenges by the
technical or technological issues for complying with the lead
standard. The Committee expects that manufacturers will apply
for waivers on a product-by-product or class-by-class basis,
and that CPSC will evaluate each application individually to
ensure that any extension will have no health or safety impact.
Section 102. Mandatory third-party testing for certain children's
products
Section 102 amends section 14 of the Consumer Product
Safety Act to establish requirements for third-party testing
and certification of certain children's products.
Subsection (a) establishes a new subsection under section
14 to require that within a year of enactment, every
manufacturer of a children's product subject to a rule or a
safety standard under any of the acts enforced by the CPSC must
have the product tested and certify that it conforms to the
rule or standard. The testing requirement applies only to
mandatory standards or rules. It does not apply to voluntary
standards. Testing must be performed by either qualified
independent third-party laboratories or certain proprietary
laboratories that have been certified by the CPSC.
Subsection (b) defines ``children's product'' and
``independent third party'' as used in this section. The
meaning of ``children's product'' is identical to the meaning
in section 101 for determining the application of that
section's lead limits. The term ``independent third party''
means a testing entity that is not owned, managed, directed, or
controlled by the manufacturer of the product. Further, the
independent testing facility must be accredited through a
process established or recognized by the CPSC. The definition
recognizes the certifying organization that currently certifies
art material products, as required under the Federal Hazardous
Substances Act.
Subsection (c) amends section 14 to set forth the process
and standards for certifying proprietary laboratories to permit
them to perform the mandatory testing and certification
required under this section. The CPSC, or an organization to
which the CPSC has delegated such authority, may certify such a
laboratory to test and certify children's products under
certain conditions. One condition is that certification of the
proprietary laboratory must provide equal or greater consumer
safety protection. It is critical that the laboratory also must
have established procedures to protect the integrity of test
results and for confidential reporting of any undue influence,
which might jeopardize the integrity of test results. The CPSC,
or an organization to which the CPSC has delegated such
authority, may decertify a proprietary laboratory if it finds,
after an investigation, that a manufacturer or private labeler
has exerted any undue influence on the laboratory or test
results. The Committee intends that the CPSC and any designated
organization should be vigilant in its oversight of proprietary
laboratories and ensure that the laboratories and all personnel
strictly adhere to the highest ethical standards. When the CPSC
finds violations, the Committee expects the CPSC to investigate
and decertify the proprietary laboratory.
Subsection (d) makes technical changes to ensure that all
rules and standards enforced by the CPSC under any of the acts
the agency enforces are covered by the testing requirement.
Section 103. Tracking labels for children's products
Section 103 amends section 14(a) of the Consumer Product
Safety Act to require manufacturers to place distinguishing
marks, to the extent feasible, on both children's products and
their packaging that specify the location and date of
production of such products. In several instances of children's
product recalls during the summer of 2007, the Committee
determined that certain manufacturers could not quickly
ascertain the locations at which recalled products were
manufactured. The Committee intends that section 103 will
impose more stringent standards of responsibility upon
manufacturers concerning their production processes and thereby
aid in determining the origin of the product and the cause of
the recall.
In determining the feasibility of placing distinguishing
marks on products--as opposed to their packaging--the Committee
expects that manufacturers will give primary consideration to
the product's size. For example, the Committee would require a
tracking label on the container for children's building blocks,
but not on the building blocks themselves. Similarly, for a
board game, the manufacturer should put labels on the box and
the board, but usually not on all the small pieces or cards
that are part of the game. In contrast, the Committee expects
that a manufacturer would place a tracking label on both the
packaging for a crib and the crib itself.
Section 104. Standards and consumer registration of durable nursery
products
Section 104 establishes safety standards and registration
requirements for 12 defined ``durable infant or toddler
products,'' such as cribs, high chairs, and strollers--products
that parents buy specifically to protect and care for infants
and toddlers.
Subsection (a) states that this section of the Act may be
cited as the ``Danny Keysar Child Product Safety Notification
Act'' to commemorate a 16-month-old child who died after
becoming entrapped in a portable crib that had been recalled
several years earlier for a safety hazard.
Subsection (b) requires the CPSC to assess the
effectiveness of existing voluntary safety standards that cover
these products, which are defined and specified in subsection
(d), and then to promulgate mandatory product safety standards
for these products that are substantially the same or more
stringent than the voluntary standards. In making this
assessment, the CPSC is directed to consult with
representatives of consumer groups, juvenile product
manufacturers, and independent child product engineers.
Paragraph (2) sets forth the timetable for conducting the
rulemaking. The CPSC must begin the rulemaking within one year
of the date of enactment. Thereafter, it must complete the
rulemaking and promulgate a mandatory safety standard for at
least 2 of the 12 products every 6 months. The Committee leaves
to the CPSC's discretion the priority for promulgating the 12
mandatory standards. Once these rulemakings are completed, the
CPSC must review them periodically to ensure that they provide
the highest levels of safety feasible for these products.
Subsection (c) requires that within one year of enactment,
the CPSC must promulgate a consumer product safety rule
pursuant to section 16(b) of the Consumer Product Safety Act
(15 U.S.C. 2065(b)) on recordkeeping requirements to enhance
the effectiveness of recalls. The rule promulgated by the CPSC
must require manufacturers of durable infant or toddler
products to:
Provide a postage-paid registration form
with each product;
Maintain a record of the names, addresses,
e-mail addresses, and other contact information for the
consumers who register their ownership of the products;
and
Place permanently on each product the
manufacturer name and contact information, model name
and number, and the date of manufacture.
Subparagraph (2) provides that the card must include the
manufacturer's name, the model name and number of the product,
and space for the consumer to provide name, mailing address,
telephone number, and e-mail address. The space provided for
recording this information must be sufficiently large to permit
easy, legible writing. The card also must provide an option for
consumers to register through the Internet. The cards must be
attached to the product in an obvious place and include a
statement of the purpose (e.g., to aid in recalls) to encourage
consumers to complete the registration process. Finally, the
cards must include a statement that the information that the
consumer provides will not be used for any other purpose except
to facilitate a recall or safety alert involving the specific
product.
Subparagraph (3) requires manufacturers to maintain, for a
period of six years after the date of manufacture of a product,
a record of all information provided by registrants of that
product, and to use the information to notify registrants in
the event of a voluntary or mandatory recall or a safety alert.
Maintaining an ongoing business relationship with consumers
through marketing and other uses of information has shown to be
an effective way to keep up-to-date contact information.
Manufacturers may not, however, use the information provided on
registration cards--or disseminate it to any other party--for
any other purpose than to alert consumers to recalls and
product alerts.
Subparagraph (4) requires the CPSC, no later than four
years after the date of enactment of this legislation, to
conduct a study on the effectiveness of the registration cards
and whether such registration forms should be required for
other children's products to report its findings to Congress.
Paragraph (d) sets forth the definition of ``durable infant
or toddler product''. This term means a durable product
intended for use by, or reasonably expected to be used by,
children under the age of five years. The definition
specifically applies to 12 enumerated products:
full-size or non-full-size cribs
toddler beds
high chairs, booster chairs, or hook-on
chairs
bath seats
gates and other enclosures for confining a
child
play yards
stationary activity centers
infant carriers
strollers
walkers
swings
bassinets and cradles
Section 105. Labeling requirement for certain Internet and catalogue
advertising of toys and games
Section 105 amends section 24 of the Federal Hazardous
Substances Act to require manufacturers of specified children's
products to include clear and conspicuous warnings about such
products on or adjacent to advertisements in catalogues and on
Internet sites that provide for a direct means for their sale.
Further, the publication or distribution or any advertisement
not in compliance with this requirement is a prohibited act
under section 19 of the Consumer Product Safety Act.
Within 180 days of enactment, the CPSC must, by rule,
modify the size and placement requirements for cautionary
statements in printed catalogues. When promulgating this rule,
the Committee expects that the CPSC will take into account the
relative sizes of the warnings and advertisements,
respectively, and consider the possibility of permitting a
general warning to be printed at the top of a catalogue's page,
(as opposed to specific warnings adjacent to individual product
advertisements). For example, if a catalogue page contains only
advertisements for hazardous children's products (within the
meaning of section 24 of the Federal Hazardous Substances Act),
the CPSC may allow a single warning at the top of that page.
Finally, under the rulemaking described above, the CPSC may
also grant a grace period from the labeling requirement for
catalogues printed prior to the effective date of this
legislation. The Committee would consider an exemption period
of one year prior to enactment the maximum reasonable limit for
this period.
Section 106. Study of preventable injuries and deaths in minority
children related to consumer products
Section 106 directs the Comptroller General to complete a
study to assess disparities of preventable injuries and deaths
among minority children related to consumer products intended
for children's use. The Committee expects that the Comptroller
General will make use of whatever data has been collected
already by the CPSC on this matter. Moreover, section 106
directs that this study begin within 90 days of enactment and
submitted to this Committee and the Senate Committee on
Commerce, Science, and Transportation not later than one year
after enactment. The Committee expects that this report will
include recommendations for public outreach, awareness, and
prevention campaigns directed specifically at minority
populations, as well as make recommendations for education
initiatives that may reduce disparities in injury rates.
Section 107. Review of generally-applicable standards for toys
Children's toys must be as safe as possible. Section 107(a)
directs the CPSC to examine the effectiveness of the current
voluntary standard--ASTM-International standard F963-07--that
governs a wide range of hazards, including strangulation,
burns, and choking, that could be presented by toys. The CPSC
must determine the scope, adherence to, and adequacy of the
voluntary standard in protecting children from safety
standards.
Subsection (b) provides for a special focus on that
standard as it relates to magnets included in toys, and a
determination of whether that standard is effective to prevent
intestinal blockages and perforation hazards cause by ingestion
of magnets that are parts of toys. The Committee notes that
toys with powerful magnets have caused serious injuries to
several children over the past few years and even caused the
death of one child. Since these incidents, the industry has
adopted a voluntary standard covering magnets in toys. If the
CPSC determines that there is substantial noncompliance with
the voluntary standard on magnets, it must expedite a
rulemaking to consider the adoption of a mandatory standard
covering the related hazards.
Finally, subsection (c) requires the CPSC within two years
after enactment to report to Congress on the results of the
agency's assessment of compliance with, and the effectiveness
of, the voluntary standard covering all toy hazards, and the
feasibility of requiring manufacturers to pre-test and certify
toys to it or more stringent standards.
Title II--Consumer Product Safety Commission Reform
Section 201. Reauthorization of the Commission
Section 201 reauthorizes the CPSC for fiscal years 2009
through 2011. Subsection (a) amends section 32(a) of the
Consumer Product Safety Act to authorize appropriations for the
CPSC in the amounts of $80 million, $90 million, and $100
million for fiscal years 2009, 2010, and 2011, respectively.
Similarly, it amends section 32(b) to authorize $20 million to
the CPSC for fiscal years 2009 through 2011 for making
necessary capital improvements to the CPSC's research,
development, and testing facility.
These authorization levels are designed to allow the CPSC
to grow quickly but prudently and hire new staff both to meet
its new responsibilities under this legislation and generally
to perform the mission of the agency. To attract talented and
experienced personnel, the Committee encourages the CPSC, as
appropriate, to take advantage of available Federal employment
authorities under Title 5, such as recruitment and retention
bonuses and relocation costs.
Subsection (b) requires the CPSC to submit a report to
Congress within 180 days of enactment concerning its plans to
allocate the funding authorized by section 201(a). The report
must address specifically:
the number of full-time inspectors and other
``full time equivalents'' that the CPSC intends to
employ;
the CPSC's plan for risk assessment and
inspection of imported consumer products;
an assessment of the feasibility of
mandating bonds for serious hazards and repeat
offenders, as well as CPSC inspection and certification
of foreign third-party and proprietary testing
facilities; and
the efforts of the Commission to reach and
educate second-hand retailers and informal sellers
about consumer product safety standards and product
recalls, especially those relating to durable nursery
products, such as cribs and strollers.
The Committee intends to use this report as the basis for
oversight hearings in the future, which, among other issues,
will examine how best to improve the CPSC's regulatory
authority over imported consumer products.
Section 202. Structure and quorum
Section 202(a) extends the CPSC's temporary quorum and
permits two members of the Commission to constitute a quorum,
provided they are not from the same political party. If the
President nominates a Commissioner prior to August 3, 2008, the
temporary quorum will continue through that date. If the
President nominates a Commissioner after August 3, 2008, the
temporary quorum would extend for an additional three months
after the date of the nomination (giving the Senate time to
act), or until February 3, 2009, whichever is earlier.
Subsection (b) repeals the first proviso in the account
under the heading ``Consumer Product Safety Commission,
Salaries and Expenses'' in title III of Public Law 102-389,
effective after fiscal year 2010. This provision thereby
repeals the three-Commissioner restriction under which the CPSC
has been operating since the 1980s.
Section 203. Submission of copy of certain documents to Congress
Section 203 requires the CPSC to comply with requirements
under section 27(k) of the Consumer Product Safety Act and
provide to Congress all of its budget submissions. It also
directs the agency to submit to this Committee budget
recommendations, legislative recommendations, testimony, and
comments on legislation submitted by the Commission to the
President or the Office of Management and Budget.
Subsection (b) amends section 3003(d) of Public Law 104-66
to reinstate the section 27(k) of the Consumer Product Safety
Act, which had ceased to be effective in 1999 with respect to
providing such materials to Congress.
Section 204. Expedited rulemaking
Section 204 grants the Commission the discretion to
promulgate rules through a two-step process. Currently, the
Commission must employ a three-step rulemaking process in all
instances. This flexibility allows the Commission to expedite
the promulgation of rules to enforce more efficiently the
statutes under its jurisdiction. Subsection (a) covers the
Consumer Product Safety Act, subsection (b) covers the Federal
hazardous Substances Act, and subsection (c) covers the
Flammable Fabrics Act.
The Committee expects that the CPSC will use its discretion
to continue to employ three-part rulemaking and begin the
process with an Advanced Notice of Proposed Rulemaking when it
is dealing with complex or novel issues. The Committee expects,
however, that the CPSC will make use of two-part rulemaking
when dealing with technical or relatively straightforward
matters.
Section 205. Public disclosure of information
Section 205 of the bill amends section 6(b) of the Consumer
Product Safety Act, which governs how the Commission discloses
information about consumer products to the public. The general
purpose of Section 6(b) is to ensure the accuracy and fairness
of this information through a consultation process with the
affected company.
Section 205 amends section 6(b)(1) by shortening the time
from 30 to 15 days by which a manufacturer or private labeler
must respond to the Commission's notification that information
about the company's product will be released to the public.
This original 30-day notice and comment period was established
in the early 1970s, well before the advent of modern
telecommunications and electronic mail. The shortened timeframe
ensures that the CPSC may disclose relevant information to the
public more quickly. Moreover, section 205 further amends
section 6(b)(1) to allow the Commission, in the case of a
public health or safety hazard posed by a product, to simply
publish its finding (presumably on the Commission's Web site)
before disclosing the relevant information to the public.
Currently, section 6(b)(1) requires the Commission to publish
its finding in the Federal Register, which can needlessly delay
the process for as long as five additional days.
When publicly disclosing information furnished to the
Commission under section 15(b) of the CPSA, which requires
manufacturers, distributors, and retailers to inform the
Commission of defective products that violate safety rules or
otherwise pose a serious risk to the public, the Commission is
governed by the cumbersome requirements of section 6(b)(5).
Section 205 amends section 6(b)(5) by adding a ``public health
and safety'' exception that permits immediate disclosure of
information to the public. This new provision greatly enhances
the Commission's ability to protect the public by granting the
agency authority to overcome statutory obstacles that have
hampered past efforts to inform the public about hazardous
products. It is important to note that section 6(b)(3) of CPSA,
which allows the affected company to seek an injunction against
the release of information in Federal court, does not apply to
section 6(b)(5) and the new health and safety exception.
The Committee expects the CPSC to use this new disclosure
authority fully to protect the public from health and safety
hazards. With regard to disclosure of information pursuant to
formal requests under the Freedom of Information Act, the
Committee expects the Commission to respond to these requests
promptly, especially once it has hired sufficient staff with
the additional funding authorized under this legislation.
Section 6(b) of the CPSA should not pose insurmountable
obstacles to timely disclosure of accurate information on
commercial products to the public, and past delays are
unacceptable. Section 205 reflects the Committee's concerns
over these delays. The Committee expects the Commission to
exercise this new disclosure authority and utilize these new
resources in a manner that aggressively serves the well-being
of consumers.
Section 206. Publicly available information on incidents involving
death or injury
Section 206 gives the CPSC 180 days after the date of
enactment to devise a detailed plan, complete with an
implementation schedule and recommendations for any necessary
legislation, for providing consumers with a user-friendly
database containing information on incidents involving death
and serious injury caused by consumer products. The database
would build on the current Injury Information Clearinghouse
maintained by the CPSC pursuant to section 5(a) and could
include additional information, such as consumer complaints,
hospital and medical reports, and warranty information. The
database must take into account the protection of personal
information. The plan also must include provision for a public
awareness campaign to educate consumers about the database.
The intent of this Committee is to not only examine how to
make the National Injury Information Clearinghouse database
more useful and accessible to consumers, including the goal of
providing information that specifies the manufacturer and model
of product, but to consider how to expand existing data sources
to improve consumer accessibility. The goal of the CPSC should
be to devise a database that can rapidly provide consumers with
`early warning' information about specific products that could
pose serious safety hazards. Similar databases or resources
already exist at the National Highway Traffic Safety
Administration, the Food and Drug Administration and the
Department of Transportation, and the Committee suggests that
the Commission examine these and other Agency efforts, if
applicable, when designing its own database.
Section 207. Prohibition on stockpiling under other Commission-enforced
statutes
Section 207 amends section 9(g) of the CPSA to make it
clear that companies are prohibited from stockpiling products
that do not conform to new safety standards prior to their
effective dates under all rules or standards promulgated under
any of the statutes enforced by the Commission. The Committee
believes that companies found to be in violation of this
section (and thus, section 19 of the CPSA) should be penalized
harshly, particularly given the possible extension of the 180-
day compliance period for lead standards for certain products,
as provided under section 101(c) of this legislation.
Section 208. Notification of noncompliance with any Commission-enforced
statute
Section 208 amends section 15(b) of the CPSA to add a
sentence that limits the use of a report filed under section
15(b)(2) as the basis for a criminal prosecution in certain,
narrow circumstances. The report may not be used as the sole
basis for criminal prosecution under section 5 of the Federal
Hazardous Substances Act, except for offenses which require a
showing of intent to defraud or mislead. This provision is
intended to provide assurances that the report itself would not
be used as the sole basis for criminal prosecution under the
part of section 5 that provides for strict liability for
criminal enforcement without regard to any requirement of
knowledge, intent, or willfulness. That part of section 5(a)
providing for strict criminal liability states that ``any
person who violates one of the provisions of section 4 shall be
guilty of a misdemeanor and shall on conviction thereof be
subject to a fine of not more than $500 or to imprisonment for
not more than ninety days, or both.'' The Committee's intent is
to promote the timely, accurate, and complete disclosure of
information that is necessary to protect public health and
safety.
Section 209. Enhanced recall authority and corrective action plan
Section 209 enhances the CPSC's authority in cases of
mandatory recalls and also strengthens the agency's ability to
tailor corrective action plans that meet consumer needs.
Subsection (a) amends section 15(c) of the Consumer Product
Safety Act to increase the number of required actions that the
Commission may order a manufacturer, retailer, or distributor
to take in the event of a mandatory recall. Should the
Commission determine that a product presents a substantial
product hazard (after a public hearing) or concurrently declare
a product an imminently hazardous consumer product, notify the
manufacturer, and file an action under section 12 of the
Consumer Product Safety Act, section 209(a) of H.R. 4040
permits the Commission to require one or more of the following
actions of a manufacturer, retailer, or distributor in addition
to those which already exist under section 15(c):
cease distribution of the product;
notify all persons that transport, store,
distribute, or otherwise handle the product, or to
which the product has been transported, sold,
distributed, or otherwise handled, to cease immediately
distribution of the product; and
notify appropriate State and local public
health officials.
Furthermore, subsection (a) specifies that the Commission must
rescind such an order if a district court determines that the
product subject to the order is not an imminently hazardous
consumer product. Lastly, the rescission of such a Commission
order is not subject to a hearing under 5 U.S.C. 554.
Subsection (b) amends Section 15(d) to require companies to
submit a corrective action plan as promptly as practicable and
subject the plan to the approval of the Commission. The
Commission must evaluate the plan's appropriateness under the
circumstances and, in turn, may order the company to amend the
plan to render it more appropriate and effective. For example,
a repair to a crib that immobilizes the drop-side feature would
not be an appropriate remedy because it changes the crib's
functionality. The Committee believes that these new provisions
will ensure that repairs or other remedies offered after a
recall meet the needs of consumers and continue to provide the
functionality that consumers expected when initially purchasing
a product. If the product cannot be repaired to maintain its
original functionality, then the only appropriate remedy might
be to offer refunds to consumers. Subsection (a) authorizes the
Commission to revoke the approval of a corrective action plan
altogether if the Commission determines that a manufacturer,
distributor, or retailer is not complying with the terms of the
plan.
Subsection (c) further amends Section 15 by adding a new
subsection (i) requiring the CPSC by rule to set guidelines on
a uniform class of information in mandatory recall notices
under subsection (c) or (d) or under section 12 of the CPSA.
The guidelines should include information helpful to consumers
in identifying the specific product, understanding the hazard,
and understanding the available remedy. The Committee expects
that similar information will be provided, as applicable and to
the greatest extent possible, in the notices issued in
voluntary recalls.
Section 210. Website notice, notice to third party internet sellers,
and radio and television notice
Section 210 amends section 15(c)(1) of the Consumer Product
Safety Act to authorize the CPSC to require a company to
provide notices of recalled products on Web sites and, when
appropriate, to issue public announcements of such recalls on
radio and television. Moreover, the CPSC may require the
company to make such announcements in languages other than
English if the agency determines that such an accommodation is
necessary, given the targeted population. The Committee
recognizes that underserved communities often have large
immigrant populations that may not have access to the Internet.
Such communities often receive information primarily from radio
and television. Consequently, if the CPSC determines that such
vulnerable populations are particularly at risk from a recalled
product, the agency may order announcements over the public
airwaves or other relevant media platforms to promote awareness
and safety.
Section 211. Inspection of certain proprietary laboratories
Section 211 amends section 16(a)(1) of the Consumer Product
Safety Act to authorize the CPSC personnel to enter and inspect
any proprietary laboratories certified under section 14(e) of
the Consumer Product Safety Act. The Committee makes clear that
the Commission has the same right to inspect proprietary
laboratories that it has to inspect factories, warehouses, or
other establishments in order to implement and enforce statutes
under its jurisdiction.
Section 212. Identification of manufacturer, importers, retailers, and
distributors
Section 212(a) amends section 16 of the Consumer Product
Safety Act by adding subsection (c), which requires, upon the
request of the Commission, every importer, retailer, or
distributor of a consumer product or component thereof (over
which the Commission has jurisdiction) to provide identifying
information (including, but not limited to, the name and
address) for the manufacturer of that product or component, to
the extent that such information is available.
Subsection (a) further amends section 16 of the Consumer
Product Safety Act to require, upon the request of the
Commission, every manufacturer of the products and components
listed above to supply identifying information (including, but
not limited to, the name and address) for each retailer or
distributor to which the manufacturer supplied the product or
applicable component thereof, each subcontractor involved in
the production of such products and their components, as well
as each subcontractor from which the manufacturer obtained
components for an applicable consumer product. It is the intent
of the Committee that the Commission will have the authority to
request the information in sections 212(a) and 212(b) in order
that it may investigate more thoroughly the source or sources
of consumer product recalls.
Subsection (b) amends section 17(g) of the Consumer Product
Safety Act by requiring the Commission, by rule, to condition
the importation of a consumer product on CPSC's recordkeeping
and inspection requirements under the Act. Section 212(b) also
amends section 17(h)(2) to require the Commission to share
information, data, violator lists, test results, and other
support guidance and documents with Federal agencies with which
it cooperates under the auspices of the permanent product
surveillance program mandated under section 17(h)(1). Section
212(b) further amends section 17(h)(2) of the Consumer Product
Safety Act to condition the sharing of this information upon
the confidentiality requirements described in section 6 of the
Act.
The Committee expects that the Commission will use the
authority under this section to monitor imports of consumer
products and control more effectively their entry into U.S.
commerce. The Committee intends to hold oversight hearings on
the Commission's activities to ensure that unsafe consumer
products are detected at ports of entry and denied entry into
the United States. Lastly, the Committee expects that the
Commission will terminate its agreement under section 17(h)(1)
of the Consumer Product Safety Act upon discovery that a
cooperating Federal agency violates the confidentiality
requirements under section 6 of the Act.
Section 213. Export of recalled and non-conforming products
Section 213(a) amends section 18 of the Consumer Product
Safety Act by adding subsection (c), which stipulates that a
person may not export products that are not in conformity with
U.S. consumer product safety rules, are subject to mandatory or
voluntary recalls, are designated an imminent hazard to public
health and safety, or are designated as a banned hazardous
substance. A person may export such products in the event that
the importing country notifies the Commission within 30 days
that it will accept the products. Thereafter, the Commission
has the authority to take such action as is appropriate for the
disposition of the product.
Subsection (b) amends section 19(a)(10) of the Consumer
Product Safety Act to make a violation of section 18(c) of the
Act a prohibited act. A knowing violation of this prohibition
would subject a person to civil penalties.
Subsection (c) makes conforming amendments to section
5(b)(3) of the Federal Hazardous Substances Act and section 15
of the Flammable Fabrics Act in order to harmonize them with
the export prohibition placed on certain products in section
213(a) of H.R. 4040.
The Committee intends that this section will curb export of
consumer products that violate U.S. law and expects the
Commission to exercise rigorous oversight in this area,
particularly as relates to the enforcement of penalties for
prohibited acts.
Section 214. Prohibition on sale of recalled products
Section 214 amends section 19(a) of the Consumer Product
Safety Act to prohibit the sale, resale, manufacture, or
importation of any consumer product that has been recalled, is
a banned hazardous substance, or does not conform to safety
standards. A knowing violation of this prohibition would
subject a person to civil penalties.
Section 215. Increased civil penalty
Section 215 increases the cap on civil penalties.
Subsection (a) increases the cap from $1.825 million to $10
million for violations of the Consumer Product Safety Act, the
Flammable Fabrics Act, and the Federal Hazardous Substances
Act. The increase is phased in over two years. Initially, the
cap rises to $5 million as soon as CPSC issues interpretive
guidance, or 360 days after enactment, whichever occurs first.
The cap will then rise to $10 million 1 year after the first
increase.
Subsection (b) gives the CPSC more flexibility in
determining the appropriate level of civil penalties that it
levies on manufacturers, distributors, and retailers that
violate the three statutes. Section 215(b) expands the factors
that the Commission must consider beyond the five specific
factors to which the CPSC is currently limited. Furthermore,
these factors are not exclusive. For example, while the CPSC
currently is not permitted to consider whether a violator is a
recidivist or a first-time offender, the amendments made by
this section will permit that important consideration in
assessing a penalty. Subsection (b) requires the Commission to
issue regulations providing its interpretation of these new,
restated penalty factors within one year of enactment.
Section 216. Criminal penalties to include asset forfeiture
Section 216 amends section 21 of the Consumer Product
Safety Act to provide that criminal penalties for violations of
any statute enforced by the Commission may include asset
forfeitures.
Section 217. Enforcement by State attorneys general
State attorneys general serve an important and useful role
as an enforcer of consumer product safety laws. Section 217
amends section 24 of the Consumer Product Safety Act to grant
State attorneys general the same injunction authority under
CPSA that they already have under the Federal Hazardous
Substances Act and the Flammable Fabrics Act. A State attorney
general may bring an action on behalf of the State's residents
to enforce a consumer product safety rule or an order under
section 15 of the CPSA. Section 217 requires the State attorney
general to provide notice to the CPSC, the Attorney General of
the United States, and the targeted defendant at least 30 days
prior to the commencement of an action. Section 217, however,
prohibits such State actions when a similar civil or criminal
action has been commenced by the CPSC or U.S. Department of
Justice. Section 217 provides that the courts may award the
costs of the action, including reasonable attorney fees and
expert witness fees.
Section 218. Effect of rules on preemption
Section 218 prevents the CPSC from expanding, contracting,
or otherwise modifying the scope or nature of the preemption
provisions under any of the statutes enforced by the agency.
This prohibition applies to any part of a rule or regulation
(including preambles) promulgated by the Commission. This
section addresses concerns that the CPSC in recent years has
attempted to circumvent Federal and State adjudication and
imply the preemption of State common law rights of action.
Specifically, in February of 2006, the CPSC issued a rule on
mattress flammability under the Flammable Fabrics Act (FFA). In
the rule's preamble, the CPSC declared that FFA's preemption
provisions affecting State ``standards and other regulations''
also affected all State ``legal requirements'' including common
law standards. Not only did this advisory opinion depart from
the plainly stated language of the statute, but it departed
from the CPSC's accepted standard practice of simply listing
the preemption provisions of the governing statute and leaving
the interpretation of those provisions to the courts. As such,
this preamble should not be afforded any deference by State or
Federal courts.
Tort actions based on negligence are predicated on
procedures and standards developed over hundreds of years of
American and English jurisprudence. The preemption provisions
of the statutes under the jurisdiction of the CPSC are clear,
and State common law actions and standards are not preempted.
The Committee does not believe it is proper for the CPSC to
issue advisory opinions (in regulatory preambles or otherwise)
that attempt to alter the scope of those provisions. Instead,
the Committee believes that such matters are best left with the
courts.
Section 219. Sharing of information with Federal, State, local, and
foreign government agencies
Section 219 amends section 29 of the Consumer Product
Safety Act to add a new subsection (f), which allows the CPSC,
consistent with requirements under section 6, to share
information obtained under the Act with other Federal, State,
local, and foreign agencies. The CPSC must have memoranda of
understanding or written certifications with these other
agencies to ensure that such information will be kept
confidential. The CPSC may share this information with other
agencies if:
the agency has legal authority to maintain
in confidence;
the materials will be used in the
investigations or enforcement proceedings concerning
possible violations of laws that are substantially
similar to those enforced by the CPSC; laws actually
administered by the CPSC; other foreign criminal laws,
with the approval of the Attorney General for a foreign
law enforcement agency; and
the foreign agency is not from a state that
has been determined to have provided repeated support
for acts of international terrorism, in accordance with
section 6(j) of the Export Administration Act of 1979.
Significantly, section 29, as amended by Section 219, will
allow the Commission to terminate agreements with other
domestic and foreign agencies if those agencies have failed to
keep shared information confidential or have used the
information for purposes other than those set out in written
agreements. It also provides that the CPSC will not be required
under provisions of the Freedom of Information Act to disclose
any material obtained from a foreign government agency if that
agency has requested that the information be kept confidential
or that the information reflects a consumer complaint submitted
to a Commission reporting mechanism that is sponsored in part
by foreign government agencies. The Commission, however, is not
authorized to withhold information from Congress or prevent the
Commission from complying with a U.S. court order in an action
commenced by the United States or the Commission.
Finally, section 219 requires that, in the event of
voluntary recalls or a Commission order pursuant to section
15(c) or (d) of the Consumer Product Safety Act, the Commission
shall notify each State's health department or other agency
designated by the State of the recall or order.
The Committee expects that the CPSC will work closely in
the future with State and local agencies to disseminate
information concerning product recalls and enforcement actions.
The Committee believes that cooperation with State and local
agencies is an effective means for meeting the Commission's
mission to protect the public health and safety. Moreover, and
in light of the large international market for consumer
products, the Committee believes that the CPSC would benefit
from further cooperation with foreign government agencies,
particularly those from the European Union and the People's
Republic of China. The Committee expects that the CPSC will
revisit and renegotiate, where necessary, existing memoranda of
understanding with foreign governments and negotiate new
agreements with other governments as necessary.
Section 220. Inspector General authority and accessibility
Section 220(a) is aimed at strengthening and improving the
resources available to the CPSC's Office of Inspector General
to ensure effective oversight of the CPSC as the agency
receives anticipated significant increases in funding, adds new
staff, and takes on new responsibilities. To this end, the
Committee intends to hold oversight hearings in the future
concerning the CPSC's Office of the Inspector General--with the
reports in section 220(a) and 220(b) as their basis--in order
to determine the role and functionality of that office within
the agency, as well as the additional authority or resources it
may need to function more effectively. The Committee believes
that effective oversight of waste, fraud, and abuse is critical
to an agency's ability to carry out its statutorily mandated
duties.
Subsection (a) requires that the Commission's Office of the
Inspector General, within 60 days of enactment, report to
Congress concerning the office's activities, any structural
barriers to its ability to complete its mission, and the
additional authority or resources--if any--necessary to
facilitate oversight.
Subsection (b) directs the Commission's Office of the
Inspector General to submit a report to Congress within one
year of enactment about its reviews of both the employee
complaint process and the way in which corrective action plans
are negotiated.
Finally, subsection (c) requires that the Commission's
Office of the Inspector General establish within 30 days of
enactment a link on the CPSC's Web site to facilitate the
filing of anonymous complaints (from either inside or outside
the agency) regarding any waste, fraud, or abuse involving CPSC
activities.
Section 221. Repeal
Section 221 repeals section 30(d), which requires the CPSC
to take action under the other statutes it enforces (the
Federal Hazardous Substances Act, the Flammable Fabrics Act,
and the Poison Prevention Packaging Act) unless it finds by
rule that it is in the public interest to proceed under the
CPSA instead. Because many of the new provisions require the
CPSC to act under the CPSA, the repeal of this section will
ensure that such activity will not be delayed by the necessity
of a threshold rulemaking.
Section 222. Industry-sponsored travel ban
Section 222 amends the Consumer Product Safety Act by
adding section 38, ``Prohibition on Industry-Sponsored
Travel.'' Section 222 bars Commissioners and staff from
accepting so-called gift travel. Specifically, this section
prohibits Commissioners and staff from accepting payment or
reimbursement for travel, subsistence, and related expenses
with respect to attendance at meetings or events relating to
their official duties from persons seeking official action
from, doing business with, or conducting activities regulated
by the Commission or whose interests may be substantially
affected by a Commissioner or employee's performance (or
nonperformance) of official duties.
Section 222 also includes an authorization of $1.2 million
for each of fiscal years 2009 through 2011 necessary for travel
and lodging expenses necessary in furtherance of the official
duties of Commissioners and employees.
Given recent press reports concerning industry-funded
travel of CPSC officials in the past, the Committee finds it
prudent to apply this ban on privately-funded travel upon the
Commission. But to ensure that Commissioners and employees have
sufficient funds to pay for travel pertaining to or required
for their duties, this section provides for a specific travel
authorization that should be sufficient to meet appropriate
travel needs.
Section 223. Annual reporting requirement
Section 223 amends section 27(j) to require the CPSC to
file an annual report on the number and summary of recall
orders under section 12 and 15 and a summary of the voluntary
recall actions, including an assessment of these orders and
actions. These reports are intended to help Congress,
stakeholders, and the CPSC itself to assess the effectiveness
of recall activities.
Section 224. Study on the effectiveness of authority relating to
imported products
Section 224 directs the Commission to submit to Congress
within nine months of enactment a study on the effectiveness of
section 17(a) of the Consumer Product Safety Act. This study
must include the Commission's recommendations about additional
authority it may need (and appropriate legislation to authorize
it) to stop unsafe consumer products from entering the United
States. This study will serve as background for future
Committee hearings on import safety.
SPECIAL ISSUES
This legislation contains no title relating to single-
product issues. The Committee believes that consumers are best
served by keeping this bill focused on the daunting task of
reforming the CPSC. Nevertheless, the Committee shares the
concern that certain single products require tighter
regulations and standards. Many of these issues were raised by
Members of the Committee in colloquys or discussions of
amendments that were offered and withdrawn.
In that regard, the Committee is concerned that the current
approach to all-terrain vehicle (ATV) safety is not working. In
2003, the CPSC issued the latest in a long line of studies
documenting the dramatic increase in ATV injuries and deaths.
The American Academy of Pediatricians advises that the
situation continues to worsen, particularly as to children.
Adding to this problem is the growing volume of imports, most
of which do not comply with key elements of the applicable
ANSI/SVIA voluntary standard. The record indicates that no
Chinese manufacturer has provided the CPSC with a voluntary
undertaking or action plan committing to provide standardized
CPSC-approved safety information or free training with
incentives, or to monitor retailers for compliance with ATV
age-related sales restrictions. This situation begs for
enforcement of a mandatory standard. The Committee therefore
directs the CPSC to proceed expeditiously to issue a final rule
in its proceeding entitled ``Standards for All-Terrain Vehicles
and Ban of Three-Wheeled All Terrain Vehicles.'' In developing
the final rule, the CPSC shall give special attention to a
categorization scheme that is most instructive to parents and
guardians in making a safe purchase, and that addresses the
ability of children of different ages to operate safely each
category of ATV suitable for operation by children.
The Committee also directs the CPSC to conduct a public
awareness campaign to educate consumers about the importance of
residential smoke alarms and improved smoke detector
technology, including the difference between ionization type
and photoelectric type alarms. The campaign shall include
recommendations for effective use and maintenance of smoke
alarms.
The Committee also directs the CPSC to issue a final rule
in its proceeding entitled ``Safety Standard for Cigarette
Lighters'' for which the Commission issued an advance notice of
proposed rulemaking on April 11, 2005 (70 Fed. Reg. 18339).
The Committee believes that the CPSC, in the course of
implementing the legislation's provisions related to lead,
should take the necessary steps to examine whether the CPSC
should issue a consumer product safety rule requiring any
ceramic product, such as a plate, dish, bowl or other
container, intended for use with food that contains any lead
bear a warning label stating ``THIS PRODUCT MAY CONTAIN LEAD.''
The Committee also directs the CPSC to examine its current
authority with respect to toys intended for use by household
pets, especially those that could become children's play
things. If the CPSC determines that it has the appropriate
authority to regulate such products, the Committee directs the
CPSC to undertake a rulemaking regarding the use of lead and
lead paint in household pet toys.
The Committee also has been informed of tipping dangers
presented by furniture, ovens and other large appliances, and
television sets. In order to help stem these preventable
accidents and injuries, the Committee directs the CPSC to look
into these matters, and, where appropriate, to require
stabilizing mechanisms such as braces, clear and conspicuous
warning labels, and to make available on its Internet Web site
recommendations on tipover prevention.
Lastly, the Committee requests that the CPSC conduct a
study of injuries and deaths related to toy guns, and consider
the adoption of a consumer product safety rule that provides
for distinctive marking of toy guns to distinguish them from
actual firearms.
The Committee intends for the CPSC to give priority to the
effective implementation of Title I and II of H.R. 4040.
Nonetheless, the Committee requests that these additional
matters also be given consideration, and notes that it intends
to check on their status at appropriate intervals to make sure
that they are accomplished with reasonable diligence.
The Committee also notes that it was made aware late in the
process of two other possible dangers regarding toxic toys,
phthalates and asbestos. It intends to address these important
issues in subsequent hearings and legislation.
