[Senate Report 108-128]
[From the U.S. Government Publishing Office]
Calendar No. 252
108th Congress Report
SENATE
1st Session 108-128
_______________________________________________________________________
THE CONSUMER PRODUCT SAFETY COMMISSION REAUTHORIZATION ACT OF 2003
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1261
August 26, 2003.--Ordered to be printed
Filed, under authority of the order of the Senate of July 29
(legislative day, July 21), 2003
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eighth congress
first session
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
FRANK LAUTENBERG, New Jersey
Jeanne Bumpus, Staff Director and General Counsel
Ann Begeman, Deputy Staff Director
Robert W. Chamberlin, Chief Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
Gregg Elias, Democratic General Counsel
Calendar No. 252
108th Congress Report
SENATE
1st Session 108-128
======================================================================
THE CONSUMER PRODUCT SAFETY COMMISSION REAUTHORIZATION ACT OF 2003
_______
August 26, 2003.--Ordered to be printed
Filed, under authority of the order of the Senate of July 29
(legislative day, July 21), 2003
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 1261]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1261) ``A Bill To reauthorize
the Consumer Product Safety Commission, and for other
purposes'', having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill (as amended) do pass.
Purpose of the Bill
S. 1261 would amend the Consumer Product Safety Act (CPSA)
(15 U.S.C. 41 et seq.) and authorize appropriations for the
Consumer Product Safety Commission (CPSC) for Fiscal Years 2004
through 2007. In addition, S. 1261 would increase the
Commission's statutory civil penalties cap and enable the CPSC
to provide recall notification to consumers regarding certain
hazardous products in the event that the Commission determines
that a manufacturer is unable to do so.
Background and Needs
The CPSC is an independent regulatory agency that was created
in 1972 under the CPSA, which became effective in 1973. While
the CPSC is authorized to have five commissioners under the
CPSA, Congress has only appropriated funding for three
commissioners since 1987. All commissioners are appointed by
the President for staggered seven-year terms with the consent
and approval of the Senate. The chairman of the Commission is
designated by the President. Currently, the Commission is
comprised of two Republican commissioners, Chairman Hal
Stratton and Commissioner Mary Sheila Gall, and one Democrat,
Commissioner Thomas Moore.
The CPSC has jurisdiction over more than 15,000 consumer
products (e.g., household products, sporting goods) and is
charged under the CPSA with the duty to protect consumers
``against unreasonable risks of injuries associated with
consumer products.'' The Commission fulfills its statutory
responsibilities by developing voluntary standards with
industry, issuing mandatory standards, researching potential
product hazards, banning products, obtaining recalls of
products or ensuring their repair, and informing and educating
consumers. The Commission administers four statutes: the CPSA,
the Federal Hazardous Substances Act (FHSA),\1\ the Poison
Prevention Packaging Act,\2\ and the Flammable Fabrics Act
(FFA).\3\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 1261 et seq.
\2\ 15 U.S.C. 1471 et seq.
\3\ 15 U.S.C. 1191 et seq.
---------------------------------------------------------------------------
The CPSC employs approximately 471 full-time employees. Most
are located at the Commission's headquarters in Bethesda, MD.
There are about 130 CPSC investigators, compliance officers,
and consumer information specialists throughout the country.
Six offices report directly to the Chairman, including:
Congressional Affairs, Equal Employment and Minority
Enterprise, General Counsel, Inspector General, Secretary, and
Executive Director. The Executive Director directs and oversees
Commission policy and administration, which are implemented by
the offices that report to the Executive Director: Compliance,
Hazard Identification and Reduction, Field Operations,
Administration, Budget, Human Resources, Information and Public
Affairs, Information Services, and Planning and Evaluation.
S. 1261 would authorize funding for the Commission to carry
out its functions, powers, and duties in amounts not to exceed
$60,000,000 for fiscal year 2004, $66,800,000 for fiscal year
2005, $70,000,000 for fiscal year 2006, and $73,600,000 for
fiscal year 2007. The bill would allow the Commission to
maintain its current staffing level of up to 471 throughout the
authorization period.
S. 1261 also would authorize an increase in the Commission's
current statutory cap on civil penalties from $1,250,000 to
$20,000,000, and it would provide authority for the CPSC to
notify consumers of defects of hazardous products in the event
that the Commission determines that the manufacturer of such
products is not able to perform its statutory obligation to
provide recall notification.
Legislative History
The CPSC was last reauthorized in the Consumer Product Safety
Improvement Act of 1990 (1990 Act) (P.L. 101-608), which
authorized funding for Fiscal Years 1991 ($42,000,000) and 1992
($45,000,000). Since the expiration of that authorization, the
CPSC's funding has increased by approximately five to six
percent each year through appropriations acts.
In the 1990 Act, Congress amended the CPSA to: (1) require,
among other things, that the President consider individuals
with consumer product safety backgrounds when making
appointments to the Commission; (2) allow a three-member
Commission to constitute a quorum; (3) revise and add to the
list of personnel to be appointed exclusively by the Chairman;
and (4) direct the Commission to establish an agenda and
priorities for its actions prior to each fiscal year.
The 1990 Act also amended the CPSA, the FHSA, and the FFA to
require the Commission to devise procedures to monitor
compliance with certain voluntary safety standards, and to
prohibit the termination of proceedings to promulgate a
consumer product safety rule when a voluntary standard has been
first approved by the Commission.
In addition, the 1990 Act amended the CPSA to obligate a
manufacturer to provide notice to the Commission when: (1) the
manufacturer becomes aware of its failure to comply with a
voluntary standard; (2) the manufacturer becomes aware of its
creation of an unreasonable risk of serious injury or death; or
(3) the manufacturer becomes party to certain civil actions for
death or grievous bodily injury. These were in addition to
then-existing triggers for providing notice to the CPSC. The
1990 Act declared that the reporting of a civil action shall
not constitute an admission of liability under any statute or
common law and prohibited the Commission from disclosing
information about a civil action, including under legal
process, except if requested by specified congressional
committees.
On June 17, 2003, the Consumer Affairs and Product Safety
Subcommittee held a reauthorization hearing to examine possible
changes to the CPSA, and to discuss key issues before the CPSC.
Senator Fitzgerald presided. The hearing witnesses were: CPSC
Chairman Hal Stratton and CPSC Commissioners Mary Sheila Gall
and Thomas Moore; Dr. R. David Pittle, Senior Vice President,
Technical Operations, Consumers Union; Ms. Rachel Weintraub,
Assistant General Counsel, Consumer Federation of America; Mr.
Alan Korn, Director of Public Policy, National SAFE Kids; Mr.
Stephen Gold, Vice President, National Association of
Manufacturers; and Mr. Gary Kline, Senior Vice President,
Government Legal and Regulatory Affairs, Toy Industry
Association. Senators McCain and Fitzgerald introduced S. 1261,
the Consumer Product Safety Commission Reauthorization Act of
2003, on June 13, 2003.
On June 19, 2003, the Committee met in open executive session
to consider an amendment in the nature of a substitute to S.
1261 offered by Senators McCain and Hollings. The substitute
amendment contained the authorization provisions regarding both
the civil penalty increase and CPSC recall notification when a
manufacturer is unable to meet its recall responsibilities.
Estimated Costs
In compliance with subsection (a)(3) of paragraph 11 of rule
XXVI of the Standing Rules of the Senate, the Committee states
that, in its opinion, it is necessary to dispense with the
requirements of paragraphs (1) and (2) of that subsection in
order to expedite the business of the Senate.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The legislation would make no material change to the number
of persons as already affected by the Commission's authority.
ECONOMIC IMPACT
The economic impact of this legislation would be minimal.
PRIVACY
The impact on the personal privacy of the persons covered by
this legislation is expected to be minimal.
PAPERWORK
The impact on paperwork is expected to be minimal.
Section-by-Section Analysis
Section 1. Short Title
This section would designate the legislation as the
``Consumer Product Safety Commission Reauthorization Act of
2003.''
Section 2. Authorization of Appropriations
This section would amend section 32(a) of the CPSA to
authorize appropriations for the CPSC not to exceed $60,000,000
for fiscal year 2004, $66,800,000 for fiscal year 2005,
$70,000,000 for fiscal year 2006, and $73,600,000 for fiscal
year 2007.
Section 3. FTE Staffing Levels
This section would amend section 4(g) of the CPSA to
authorize the Commission to hire and maintain a full-time
equivalent staff of 471 persons throughout the reauthorization
period.
Section 4. Executive Director and Officers
This section would amend section 4(g) of the CPSA to conform
the Commission's employee position titles that currently exist
but that have not been formally authorized. No staff title
changes entail the re-designation of career staff as political
staff, or vice versa.
Section 5. Substantial Product Hazard Recalls
This section would amend section 15 of the CPSA to authorize
the Commission to conduct defective product recall notification
otherwise required of a manufacturer, retailer, or distributor
under the CPSA. Pursuant to this section, in the event that the
Commission makes a preliminary hazard determination that there
exists a Class A or B product hazard (as defined in the CPSC
handbook), and the Commission finds that the manufacturer,
retailer, or distributor is financially unable to provide
adequate notification to the consumers of the product as
required by the CPSA and that such notification is the public
interest, then the Commission may provide notification. This
section would require that within 120 days of enactment, the
Commission prescribe strict standards for determining when a
manufacturer is financially unable to effect adequate
notifications required by the CPSA.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
CONSUMER PRODUCT SAFETY ACT
SEC. 4. CONSUMER PRODUCT SAFETY COMMISSION.
[15 U.S.C. 2053]
(a) Establishment; Chairman.--An independent regulatory
commission is hereby established, to be known as the Consumer
Product Safety Commission, consisting of five Commissioners who
shall be appointed by the President, by and with the advice and
consent of the Senate. In making such appointments, the
President shall consider individuals who, by reason of their
background and expertise in areas related to consumer products
and protection of the public from risks to safety, are
qualified to serve as members of the Commission. The Chairman
shall be appointed by the President, by and with the advice and
consent of the Senate, from among the members of the
Commission. An individual may be appointed as a member of the
Commission and as Chairman at the same time. Any member of the
Commission may be removed by the President for neglect of duty
or malfeasance in office but for no other cause.
(b) Term; Vacancies.--
(1) Except as provided in paragraph (2), (A) the
Commissioners first appointed under this section shall
be appointed for terms ending three, four, five, six,
and seven years, respectively, after the date of the
enactment of this Act, the term of each to be
designated by the President at the time of nomination;
and (B) each of their successors shall be appointed for
a term of seven years from the date of the expiration
of the term for which his predecessor was appointed.
(2) Any Commissioner appointed to fill a vacancy
occuring prior to the expiration of the term for which
his predecessor was appointed shall be appointed only
for the remainder of such term. A Commissioner may
continue to serve after the expiration of his term
until his successor has taken office, except that he
may not so continue to serve more than one year after
the date on which his term would otherwise expire under
this subsection.
(c) Restrictions on Commissioner's Outside Activities.--Not
more than three of the Commissioners shall be affiliated with
the same political party. No individual (1) in the employ of,
or holding any official relation to, any person engaged in
selling or manufacturing consumer products, or (2) owning stock
or bonds of substantial value in a person so engaged, or (3)
who is in any other manner pecuniarily interested in such a
person, or in a substantial supplier of such a person, shall
hold the office of Commissioner. A Commissioner may not engage
in any other business, vocation, or employment.
(d) Quorum; Seal; Vice Chairman.--No vacancy in the
Commission shall impair the right of the remaining
Commissioners to exercise all the powers of the Commission, but
three members of the Commission shall constitute a quorum for
the transaction of business, except that if there are only
three members serving on the Commission because of vacancies in
the Commission, two members of the Commission shall constitute
a quorum for the transaction of business, and if there are only
two members serving on the Commission because of vacancies in
the Commission, two members shall constitute a quorum for the
six month period beginning on the date of the vacancy which
caused the number of Commission members to decline to two. The
Commission shall have an official seal of which judicial notice
shall be taken. The Commission shall annually elect a Vice
Chairman to act in the absence or disability of the Chairman or
in case of a vacancy in the office of the Chairman.
(e) Offices.--The Commission shall maintain a principal
office and such field offices as it deems necessary and may
meet and exercise any of its powers at any other place.
(f) Functions of Chairman; Request for Appropriations.--
(1) The Chairman of the Commission shall be the
principal executive officer of the Commission, and he
shall exercise all of the executive and administrative
functions of the Commission, including functions of the
Commission with respect to (A) the appointment and
supervision of personnel employed under the Commission
(other than personnel employed regularly and full time
in the immediate offices of commissioners other than
the Chairman), (B) the distribution of business among
personnel appointed and supervised by the Chairman and
among administrative units of the Commission, and (C)
the use and expenditure of funds.
(2) In carrying out any of his functions under the
provisions of this subsection the Chairman shall be
governed by general policies of the Commission and by
such regulatory decisions, findings, and determinations
as the Commission may by law be authorized to make.
(3) Requests or estimates for regular, supplemental,
or deficiency appropriations on behalf of the
Commission may not be submitted by the Chairman without
the prior approval of the Commission.
[(g) Executive Director; Officers and Employees.--(1)(A) The
Chairman, subject to the approval of the Commission, shall
appoint as officers of the Commission an Executive Director, a
General Counsel, an Associate Executive Director for
Engineering Sciences, an Associate Executive Director for
Epidemiology, an Associate Executive Director for Compliance
and Administrative Litigation, an Associate Executive Director
for Health Sciences, an Associate Executive Director for
Economic Analysis, an Associate Executive Director for
Administration, an Associate Executive Director for Field
Operations, a Director for Office of Program, Management, and
Budget, and a Director for Office of Information and Public
Affairs. Any other individual appointed to a position
designated as an Associate Executive Director shall be
appointed by the Chairman, subject to the approval of the
Commission. The Chairman may only appoint an attorney to the
position of Associate Executive Director of Compliance and
Administrative Litigation except the position of acting
Associate Executive Director of Compliance and Administrative
Litigation.]
(g) Executive Director; Officers and Employees.--(1)(A)The
Chairman, subject to the approval of the Commission, shall
appoint as officers of the Commission an Executive Director, a
General Counsel, an Associate Executive Director for
Engineering Sciences, an Associate Executive Director for
Laboratory Sciences, an Associate Executive Director for
Epidemiology, an Associate Executive Director for Health
Sciences, an Assistant Executive Director for Compliance, an
Associate Executive Director for Economic Analysis, an
Associate Executive Director for Administration, an Associate
Executive Director for Field Operations, an Assistant Executive
Director for Office of hazard Identification and Reduction, an
Assistant Executive Director for Information Services, and a
Director for Office of Information and Public Affairs. Any
other individual appointed to a position designated as an
Assistant or Associate Executive Director shall be appointed by
the Chairman, subject to the approval of the Commission. The
Chairman may only appoint an attorney to the position of
Assistant Executive Director for Compliance, but this
restriction does not apply to the position of Acting Assistant
Executive Director for Compliance.
(B)(i) No individual may be appointed to such a position on
an acting basis for a period longer than 90 days unless such
appointment is approved by the Commission.
(ii) The Chairman, with the approval of the Commission, may
remove any individual serving in a position appointed under
subparagraph (A).
(C) Subparagraph (A) shall not be construed to prohibit
appropriate reorganizations or changes in classification.
(2) The Chairman, subject to subsection (f)(2), may employ
such other officers and employees (including attorneys) as are
necessary in the execution of the Commission's functions.
(3) In addition to the number of positions authorized by
section 5108(a) of title 5, United States Code, the Chairman,
subject to the approval of the Commission, and subject to the
standards and procedures prescribed by chapter 51 of title 5,
United States Code, may place a total of twelve positions in
grades GS-16, GS-17, and GS-18.
(4) The appointment of any officer (other than a
Commissioner) or employee of the Commission shall not be
subject, directly or indirectly, to review or approval by any
officer or entity within the Executive Office of the President.
(5) The Commission is authorized to hire and maintain a full
time equivalent staff of 471 persons in each of fiscal years
2004 through 2007.
(h) [Omitted]
(i) Civil Action Against the United States.--Subsections (a)
and (h) of section 2680 of title 28, United States Code, do not
prohibit the bringing of a civil action on a claim against the
United States which--
(1) is based upon--
(A) misrepresentation or deceit on the part
of the Commission or any employee thereof, or
(B) any exercise or performance, or failure
to exercise or perform, a discretionary
function on the part of the Commission or any
employee thereof, which exercise, performance,
or failure was grossly negligent; and
(2) is not made with respect to any agency action (as
defined in section 551(13) of title 5, United States
Code. In the case of a civil action on a claim based
upon the exercise or performance of, or failure to
exercise or perform, a discretionary function, no
judgment may be entered against the United States
unless the court in which such action was brought
determines (based upon consideration of all the
relevant circumstances, including the statutory
responsibility of the Commission and the public
interest in encouraging rather than inhibiting the
exercise of discretion) that such exercise,
performance, or failure to exercise or perform was
unreasonable.
(j) Agenda and Priorities; Establishment and Comments.--At
least 30 days before the beginning of each fiscal year, the
Commission shall establish an agenda for Commission action
under the Acts under its jurisdiction and, to the extent
feasible, shall establish priorities for such actions. Before
establishing such agenda and priorities, the Commission shall
conduct a public hearing on the agenda and priorities and shall
provide reasonable opportunity for the submission of comments.
SEC. 15. SUBSTANTIAL PRODUCT HAZARDS.
[15 U.S.C. 2064]
(a) ``Substantial Product Hazard'' Defined.--For purposes of
this section, the term ``substantial product hazard'' means--
(1) a failure to comply with an applicable consumer
product safety rule which creates a substantial risk of
injury to the public, or
(2) a product defect which (because of the pattern of
defect, the number of defective products distributed in
commerce, the severity of the risk, or otherwise)
creates a substantial risk of injury to the public.
(b) Noncompliance With Applicable Consumer Product Safety
Rules; Product Defects; Notice to Commission by Manufacturer,
Distributor, or Retailer.--Every manufacturer of a consumer
product distributed in commerce, and every distributor and
retailer of such product, who obtains information which
reasonably supports the conclusion that such product--
(1) fails to comply with an applicable consumer
product safety rule or with a voluntary consumer
product safety standard upon which the Commission has
relied under section 9;
(2) contains a defect which could create a
substantial product hazard described in subsection
(a)(2); or
(3) creates unreasonable risk of serious injury or
death, shall immediately inform the Commission of such
failure to comply, of such defect, or of such risk,
unless such manufacturer, distributor, or retailer has
actual knowledge that the Commission has been
adequately informed of such defect, failure to comply,
or such risk.
(c) Public Notice of Defect or Failure To Comply; Mail
Notice.--If the Commission determines (after affording
interested persons, including consumers and consumer
organizations, an opportunity for a hearing in accordance with
subsection (f) of this section) that a product distributed in
commerce presents a substantial product hazard and that
notification is required in order to adequately protect the
public from such substantial product hazard, the Commission may
order the manufacturer or any distributor or retailer of the
product to take any one or more of the following actions:
(1) To give public notice of the defect or failure to
comply.
(2) To mail notice to each person who is a
manufacturer, distributor, or retailer of such product.
(3) To mail notice to every person to whom the person
required to give notice knows such product was
delivered or sold. Any such order shall specify the
form and content of any notice required to be given
under such order.
(d) Repair; Replacement; Refunds; Action Plan.--If the
Commission determines (after affording interested parties,
including consumers and consumer organizations, an opportunity
for a hearing in accordance with subsection (f)) that a product
distributed in commerce presents a substantial product hazard
and that action under this subsection is in the public
interest, it may order the manufacturer or any distributor or
retailer of such product to take whichever of the following
actions the person to whom the order is directed elects:
(1) To bring such product into conformity with the
requirements of the applicable consumer product safety
rule or to repair the defect in such product.
(2) To replace such product with a like or equivalent
product which complies with the applicable consumer
product safety rule or which does not contain the
defect.
(3) To refund the purchase price of such product
(less a reasonable allowance for use, if such product
has been in the possession of a consumer for one year
or more (A) at the time of public notice under
subsection (c), or (B) at the time the consumer
receives actual notice of the defect or noncompliance,
whichever first occurs). An order under this subsection
may also require the person to whom it applies to
submit a plan, satisfactory to the Commission, for
taking action under whichever of the preceding
paragraphs of this subsection under which such person
has elected to act. The Commission shall specify in the
order the persons to whom refunds must be made if the
person to whom the order is directed elects to take the
action described in paragraph (3). If an order under
this subsection is directed to more than one person,
the Commission shall specify which person has the
election under this subsection. An order under this
subsection may prohibit the person to whom it applies
from manufacturing for sale, offering for sale,
distributing in commerce, or importing into the customs
territory of the United States (as defined in general
note 2 of the Harmonized Tariff Schedule of the United
States), or from doing any combination of such actions,
the product with respect to which the order was issued.
(e) Reimbursement.--
(1) No charge shall be made to any person (other than
a manufacturer, distributor, or retailer) who avails
himself of any remedy provided under an order issued
under subsection (d), and the person subject to the
order shall reimburse each person (other than a
manufacturer, distributor, or retailer) who is entitled
to such a remedy for any reasonable and foreseeable
expenses incurred by such person in availing himself of
such remedy.
(2) An order issued under subsection (c) or (d) with
respect to a product may require any person who is a
manufacturer, distributor, or retailer of the product
to reimburse any other person who is a manufacturer,
distributor, or retailer of such product for such other
person's expenses in connection with carrying out the
order, if the Commission determines such reimbursement
to be in the public interest.
(f) Hearing.--An order under subsection (c) or (d) may be
issued only after an opportunity for a hearing in accordance
with section 554 of title 5, United States Code, except that,
if the Commission determines that any person who wishes to
participate in such hearing is a part of a class of
participants who share an identity of interest, the Commission
may limit such person's participation in such hearing to
participation through a single representative designated by
such class (or by the Commission if such class fails to
designate such a representative). Any settlement offer which is
submitted to the presiding officer at a hearing under this
subsection shall be transmitted by the officer to the
Commission for its consideration unless the settlement offer is
clearly frivolous or duplicative of offers previously made.
(g) Preliminary Injunction.--
(1) If the Commission has initiated a proceeding
under this section for the issuance of an order under
subsection (d) with respect to a product which the
Commission has reason to believe presents a substantial
product hazard, the Commission (without regard to
section 27(b)(7)) or the Attorney General may, in
accordance with section 12(d)(1), apply to a district
court of the United States for the issuance of a
preliminary injunction to restrain the distribution in
commerce of such product pending the completion of such
proceeding. If such a preliminary injunction has been
issued, the Commission (or the Attorney General if the
preliminary injunction was issued upon an application
of Attorney General) may apply to the issuing court for
extensions of such preliminary injunction.
(2) Any preliminary injunction, and any extension of
a preliminary injunction, issued under this subsection
with respect to a product shall be in effect for such
period as the issuing court prescribes not to exceed a
period which extends beyond the thirtieth day from the
date of the issuance of the preliminary injunction (or,
in the case of a preliminary injunction which has been
extended, the date of its extension) or the date of the
completion or termination of the proceeding under this
section respecting such product, whichever date occurs
first.
(3) The amount in controversy requirement of section
1331 of title 28, United States Code, does not apply
with respect to the jurisdiction of a district court of
the United States to issue or exend a preliminary
injunction under this subsection.
(h) Cost-Benefit Analysis of Notification or Other Action Not
Required.--Nothing in this section shall be construed to
require the Commission, in determining that a product
distributed in commerce presents a substantial product hazard
and that notification or other action under this section should
be taken, to prepare a comparison of the costs that would be
incurred in providing notification or taking other action under
this section with the benefits from such notification or
action.
(i) Commission-Financed Recalls.--
(1) In general.--The Commission may take the actions
otherwise required of a manufacturer, retailer, or
distributor under subsection (c)(1), (2), and (3) with
respect to a product if the Commission--
(A) staff makes a preliminary hazard
determination that a product presents a
substantial product hazard classified as a
Class A or B product hazard (as defined in the
Commission's Recall Handbook) or the Commission
makes a substantial product hazard
determination classified as a Class A or B
product hazard (as defined in the Commission's
Recall Handbook) with respect to such a
product; and
(B) finds that--
(i) notification of the hazard is in
the public interest; and
(ii) the manufacturer, retailer, or
distributor is financially unable to
provide adequate notification.
(2) Implementing regulations.--Not more than 120 days
after the date of enactment of the Consumer Product
Safety Commission Reauthorization Act of 2003, the
Commission shall prescribe regulations to implement
paragraph (1). In promulgating such regulations, the
Commission shall establish strict standards for
ensuring that Commission funding is expended only on
the product recall notifications of manufacturers,
retailers, or distributors that are financially unable
to effect adequate notifications required by this
section.
(3) Authorization of appropriations.--There are
authorized to be appropriated to the Commission for
each fiscal year $2,000,000 to carry out this
subsection.
SEC. 20. CIVIL PENALTIES.
[15 U.S.C. 2069]
(a) Amount of Penalty.--
(1) Any person who knowingly violates section 19 of
this Act shall be subject to a civil penalty not to
exceed $5,000 for each such violation. Subject to
paragraph (2), a violation of section 19(a)(1), (2),
(4), (5), (6), (7), (8), (9), (10), or (11) shall
constitute a separate offense with respect to each
consumer product involved, except that the maximum
civil penalty shall not exceed [$1,250,000] $20,000,000
for any related series of violations. A violation of
section 19(a)(3) shall constitute a separate violation
with respect to each failure or refusal to allow or
perform an act required thereby; and, if such violation
is a continuing one, each day of such violation shall
constitute a separate offense, except that the maximum
civil penalty shall not exceed [$1,250,000] $20,000,000
for any related series of violations.
(2) The second sentence of paragraph (1) of this
subsection shall not apply to violations of paragraph
(1) or (2) of section 19(a)--
(A) if the person who violated such
paragraphs is not the manufacturer or private
labeler or a distributor of the products
involved, and
(B) if such person did not have either (i)
actual knowledge that his distribution or sale
of the product violated such paragraphs or (ii)
notice from the Commission that such
distribution or sale would be a violation of
such paragraphs.
(3)(A) The maximum penalty amounts authorized in
paragraph (1) shall be adjusted for inflation as
provided in this paragraph.
(B) Not later than December 1, 1994, and December 1
of each fifth calendar year thereafter, the Commission
shall prescribe and publish in the Federal Register a
schedule of maximum authorized penalties that shall
apply for violations that occur after January 1 of the
year immediately following such publication.
(C) The schedule of maximum authorized penalties
shall be prescribed by increasing each of the amounts
referred to in paragraph (1) by the cost-of-living
adjustment for the preceding five years. Any increase
determined under the preceding sentence shall be
rounded to--
(i) in the case of penalties greater than
$1,000 but less than or equal to $10,000, the
nearest multiple of $1,000;
(ii) in the case of penalties greater than
$10,000 but less than or equal to $100,000, the
nearest multiple of $5,000;
(iii) in the case of penalties greater than
$100,000 but less than or equal to $200,000,
the nearest multiple of $10,000; and
(iv) in the case of penalties greater than
$200,000, the nearest multiple of $25,000.
(D) For purposes of this subsection:
(i) The term ``Consumer Price Index'' means
the Consumer Price Index for all-urban
consumers published by the Department of Labor.
(ii) The term ``cost-of-living adjustment for
the preceding five years'' means the percentage
by which--
(I) the Consumer Price Index for the
month of June of the calendar year
preceding the adjustment; exceeds
(II) the Consumer Price Index for the
month of June preceding the date on
which the maximum authorized penalty
was last adjusted.
(b) Relevant Factors in Determining Amount of Penalty.--In
determining the amount of any penalty to be sought upon
commencing an action seeking to assess a penalty for a
violation of section 19(a), the Commission shall consider the
nature of the product defect, the severity of the risk of
injury, the occurrence or absence of injury, the number of
defective products distributed, and the appropriateness of such
penalty in relation to the size of the business of the person
charged.
(c) Compromise of Penalty; Deductions From Penalty.--Any
civil penalty under this section may be compromised by the
Commission. In determining the amount of such penalty or
whether it should be remitted or mitigated and in what amount,
the Commission shall consider the appropriateness of such
penalty to the size of the business of the person charged, the
nature of the product defect, the severity of the risk of
injury, the occurrence or absence of injury, and the number of
defective products distributed. The amount of such penalty when
finally determined, or the amount agreed on compromise, may be
deducted from any sums owing by the United States to the person
charged.
(d) ``Knowingly'' Defined.--As used in the first sentence of
subsection (a)(1) of this section, the term ``knowingly'' means
(1) the having of actual knowledge, or (2) the presumed having
of knowledge deemed to be possessed by a reasonable man who
acts in the circumstances, including knowledge obtainable upon
the exercise of due care to ascertain the truth of
representations.
SEC. 32. AUTHORIZATION OF APPROPRIATIONS.
[15 U.S.C. 2081]
(a) There are authorized to be appropriated for the purposes
of carrying out the provisions of this Act (other than the
provisions of section 27(h) which authorize the planning and
construction of research, development, and testing facilities)
and for the purpose of carrying out the functions, powers, and
duties transferred to the Commission under section 30, not to
exceed--
[(1) $42,000,000 for fiscal year 1991, and
[(2) $45,000,000 for fiscal year 1992. For payment of
accumulated and accrued leave under section 5551 of
title 5, United States Code, severance pay under
section 5595 under such title, and any other expense
related to a reduction in force in the Commission,
there are authorized to be appropriated such sums as
may be necessary.]
(1) $60,000,000 for fiscal Year 2004;
(2) $66,800,000 for fiscal year 2005;
(3) $70,100,000 for fiscal year 2006; and
(4) $73,600,000 for fiscal year 2007.
(b)(1) There are authorized to be appropriated such sums as
may be necessary for the planning and construction of research,
development and testing facilities described in section 27(h);
except that no appropriation shall be made for any such
planning or construction involving an expenditure in excess of
$100,000 if such planning or construction has not been approved
by resolutions adopted in substantially the same form by the
Committee on Energy and Commerce of the House of
Representatives, and by the Committee on Commerce, Science, and
Transportation of the Senate. For the purpose of securing
consideration of such approval the Commission shall transmit to
Congress a prospectus of the proposed facility including (but
not limited to)--
(A) a brief description of the facility to be planned
or constructed;
(B) the location of the facility, and an estimate of
the maximum cost of the facility;
(C) a statement of those agencies, private and
public, which will use such facility, together with the
contribution to be made by each such agency toward the
cost of such facility; and
(D) a statement of justification of the need for such
facility.
(2) The estimated maximum cost of any facility approved under
this subsection as set forth in the prospectus may be increased
by the amount equal to the percentage increase, if any, as
determined by the Commission, in construction costs, from the
date of the transmittal of such prospectus to Congress, but in
no event shall the increase authorized by this paragraph exceed
10 per centum of such estimated maximum cost.
(c) No funds appropriated under subsection (a) may be used to
pay any claim described in section 4(i) whether pursuant to a
judgment of a court or under any award, compromise, or
settlement of such claim made under section 2672 of title 28,
United States Code, or under any other provision of law.