A Senate Commerce subcommittee held what was billed as an oversight hearing on the CPSC and toy safety in conjunction with the holiday gift-giving season. It was pretty mundane affair, with just a little useful discussion of Rep. Henry Waxman’s proposal for a “functional exclusion” for products from the inflexible mandates of the Consumer Product Safety Improvement Act. The proposal is a diversion from fixing the CPSIA’s many substantive flaws.

Surprisingly, the issue of the just-finalized rules for the product safety complaint database (see below) was just mentioned and not discussed.

Commissioner Anne Northup, however, provided a good review of the provision’s harmful approach in her prepared testimony. (We’ve split the paragraph up for readability):

A prime example of wasted taxpayer resources—$29 million worth in fact—will be the consumer database that the Commission is tasked with implementing early next year. The CPSIA requires that the Commission establish and maintain a database on the safety of consumer products that is publicly available and searchable on the Commission’s website.

Unfortunately, the majority of the Commission adopted a rule just last week that will make the database useless or worse. Among other problems, the rule defines consumers to include just about everyone, so that reports of harm can be submitted by people with ulterior motives rather than just the actual consumers who suffered harm and have firsthand information about the consumer product. (continue reading…)

The Washington Post today picks up an earlier Chicago Tribune story on the Consumer Product Safety Commission’s rules to create the product safety complaint database, a straightforward, tit-for-tat journalistic accounting of the disagreements. We could grouse about the major media covering the excesses of the Consumer Product Safety Improvement Act after only the damage is done, but at least there’s journalism being committed.

Today’s article mentions an issue that the National Association of Manufacturers has emphasized: The CPSC’s definition of the “reporters” who can submit recognized complaints to the database is much broader than the definition Congress established.

In what could yet develop into an obstacle for the new system, a Republican congressman who is in line to become the chairman of the committee that spawned the database legislation said the rules for the database were tilted against business.

“Several provisions of the staff-proposed final rule run contrary to the intent of Congress and the clear and unambiguous language of the act,” Rep. Joe L. Barton (R-Tex.) said in a letter to Tenenbaum.

Barton is seeking to become the chairman of the House Energy and Commerce Committee, which under Chairman Henry Waxman (D-CA) cheered on the rigid, expensive and unworkable rules that have driven ATVs and bikes out of the market, clothes out of thrift stores, children’s book out of libraries, and home-based businesses out of existence. The committee never engaged in serious oversight of the agency and the Consumer Product Safety Improvement Act during the 111th Congress, and we expect that to change no matter who the new chairman is.

Barton’s letter is available here.

Twenty-seven trade associations yesterday sent a letter to the House Energy and Commerce Committee’s chairman, Rep. Henry Waxman (D-CA), and ranking member, Rep. Joe Barton (R-TX), expressing strong disagreement with provisions of H.R. 2868, the Chemical Facility Anti-Terrorism Act of 2009. (Waxman is a cosponsor.)

The National Association of Manufacturers was one of the signers of the letter, which is available here. The letter was sent in anticipation of Thursday’s subcommittee hearing on the bill.

The context is this:

Our industries recognize and take seriously the need to protect our nation’s chemical plants, storage facilities, and infrastructure against security threats and potential terrorist attacks. Since 2006, businesses have spent approximately $4 billion to enhance the security of our own chemical facilities and systems. Given the importance of these safety issues, we generally have supported the federal government’s efforts to develop and implement reasonable risk-based and performance-oriented security standards that focus on facilities posing the greatest risk to our workers, communities, and national security interests. To that end, we have worked constructively with the U.S. Department of Homeland Security (DHS) in providing valuable input for the Chemical Facility Anti-Terrorism Standards (CFATS) program and are actively working to implement these new standards.

But there are provisions that are actually detrimental to effective security, complicating the implementation of safety measures and adding major new liabilities (that is, costs).

First, Section 2109 is anti-preemption language, meaning it allows states and local governments to create more stringent — or different — standards than federal law. This is a proposed anti-terrorism statute, in great part, so a single national standard should apply; uniformity brings predictable rules, enforcement and costs.  (The letter doesn’t raise this specter, but history suggests we’d also see grandstanding politicians ginning up public fears for political gain.)

Second, the bill’s “citizen suit” provision (Section 2116), allows any person – even those who have not suffered any harm – to sue the facilities or the Department of Homeland Security to enforce the law. As the letter states, allowing laypersons rather than DHS security specialists to challenge a facility’s selection of security measures does nothing to enhance security. There’s also the real possibility that the discovery process in federal litigation could lead to the disclosure of classified or sensitive information to terrorists. Previous versions of the bill have never had this provision: Why is it being added now?

And, “Finally, we strongly oppose the bill’s provision (Section 2111) requiring all covered chemical facilities to assess so-called “inherently safer technologies” (ISTs) and mandating that chemical facilities assigned to “tier 1” or “tier 2” actually implement ISTs, if so ordered by DHS. This provision essentially provides DHS the authority to implement manufacturing process changes, an action that is unnecessary and potentially very disruptive to many chemical facilities.”

The associations are reaffirming the points that the NAM made in a September 11 letter to the committee (available here). Other coverage:

• Oil & Gas Journal, “Business groups ask House panel to modify chemical plant bill,” noting opposition from seven oil and gas industry association.
• Congress Daily, “House Panel Becomes Flash Point For Chemical Bill.”
• Point of Law, “Chemical facility security not aided by ‘citizen suits’“

Earlier Shopfloor.org posts.

Time to catch up with the crash-and-trade legislation being worked out behind closed doors on the House side.

CQ Politics, “Waxman Reaches Deal on Emissions“:

Leaders of the House Energy and Commerce Committee have agreed to soften their short-term targets for reducing greenhouse gas emissions as they work to write a bill that can move to the House floor.

Chairman Henry A. Waxman , D-Calif., said Tuesday evening that Democrats have resolved most of the core issues that were in dispute over draft legislation he released several weeks ago. He plans to release the text of the bill Thursday, begin a markup on May 18 and get committee approval by the end of next week.

Joint Statement From Greenpeace, FOE, and Public Citizen on the House Energy and Commerce Committee Climate and Energy Bill:

We are extremely troubled by the reports coming out of the Energy and Commerce Committee last night on additional compromises to the already flawed American Clean Energy & Security Act. The world needs real leadership from Congress and the Administration to address global warming – action that will enable us to transform our economy with clean, renewable energy technology, new green jobs and show leadership internationally. If reports are true, the compromises being struck on the bill undermine these goals.

Reuters, “Republicans push changes to U.S. climate bill“:

WASHINGTON (Reuters) – Republicans in the U.S. House of Representatives on Wednesday vowed to push for major changes to a climate change bill that could move through a key committee next week, including a proposal to count nuclear power as a clean energy alternative….

Representative Joe Barton, the senior Republican on the House panel, predicted he would prevail with an amendment to include nuclear power and “clean coal” as alternative sources of energy that will have to be used more by electric utilities under the bill.

Rep. Joe Barton (R-TX), the ranking member of the House Energy and Commerce Committee, spoke today at the Amend the CPSIA Rally on Capitol Hill and cited a bill introduced Tuesday to make “technical corrections” — his term — to the Consumer Product Safety Improvement Act.

The bill is H.R. 1815. Barton explained at the rally:

It gives the CPSC the flexibility to grant some exception for small businesses and children’s books and things like this, for certain products that have a small amount of lead in them. It doesn’t change the lead standard. It doesn’t change the phthalate standard….It just gives flexibility to the commision and in certain cases it clarifies definitions.

So this is not, “We’re stepping away from children’s safety or we’re trying to gut the act” or anything like that. It is purely on point to what you’re here in Washington D.C. about today.

I’m going to try to get Chairman Waxman and subcommittee Chairman Bobby Rush to hold a hearing on the bill, to let poeple like yourself come in and testify (applause), and I’m very confident that is going to happen.

Barton then explained in a very fact-of-the-matter way that the Democratic majority had more votes, and “for us to succeed, we can’t throw brickbats.” The Democrats, too, want to do what’s right, he observed.

We don’t want this to be a partisan issue. We want this to be what’s right and wrong — what’s good for America, good for your businesses, good for our children, good for the safety of America. And if we frame it that way, we’ll get this done, and we should be able to get it done this year.

The .mp3 soundfile of his remarks, about 5:30: barton-at-cpsia-rally