S 2663
Calendar No. 582
110th CONGRESS
2d Session
S. 2663
To reform the Consumer Product Safety Commission to provide
greater protection for children's products, to improve the screening
of noncompliant consumer products, to improve the effectiveness of consumer
product recall programs, and for other purposes.
IN THE SENATE OF THE UNITED STATES
February 25, 2008
Mr. PRYOR (for himself, Mr. STEVENS, Mr. INOUYE, Ms. COLLINS, Mr. NELSON
of Florida, Ms. KLOBUCHAR, Mr. DURBIN, and Mr. SCHUMER) introduced the
following bill; which was read the first time
February 26, 2008
Read the second time and placed on the calendar
A BILL
To reform the Consumer Product Safety Commission to provide
greater protection for children's products, to improve the screening
of noncompliant consumer products, to improve the effectiveness of consumer
product recall programs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `CPSC Reform Act'.
(b) TABLE OF CONTENTS- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Amendment of Consumer Product Safety Act.
Sec. 5. Full Commission requirement; interim quorum.
Sec. 6. Submission of copy of certain documents to congress.
Sec. 7. Public disclosure of information.
Sec. 9. Prohibition on stockpiling under other Commission-enforced
statutes.
Sec. 10. Third party certification of children's products.
Sec. 11. Tracking labels for products for children.
Sec. 12. Substantial product hazard reporting requirement.
Sec. 13. Corrective action plans.
Sec. 14. Identification of manufacturer by importers, retailers, and
distributors.
Sec. 15. Prohibited acts.
Sec. 18. Sharing of information with Federal, State, local, and foreign
government agencies.
Sec. 19. Financial responsibility.
Sec. 20. Enforcement by State attorneys general.
Sec. 21. Whistleblower protections.
Sec. 22. Ban on children's products containing lead; lead paint rule.
Sec. 23. Alternative measures of lead content.
Sec. 24. Study of preventable injuries and deaths of minority children
related to certain consumer products.
Sec. 25. Cost-benefit analysis under the Poison Prevention Packaging
Act of 1970.
Sec. 26. Inspector general reports.
Sec. 27. Public internet website links.
Sec. 28. Child-resistant portable gasoline containers.
Sec. 29. Toy safety standard.
Sec. 30. All-terrain vehicle safety standard.
Sec. 31. Garage door opener standard.
Sec. 32. Reducing deaths and injuries from carbon monoxide poisoning.
Sec. 33. Completion of cigarette lighter rulemaking.
Sec. 34. Consumer product registration forms.
Sec. 36. Consumer Product Safety Commission presence at National Targeting
Center of U.S. Customs and Border Protection.
Sec. 37. Development of risk assessment methodology to identify shipments
of consumer products that are likely to contain consumer products
in violation of safety standards.
Sec. 38. Seizure and destruction of imported products in violation
of consumer product safety standards.
Sec. 39. Database of manufacturing facilities and suppliers involved
in violations of consumer product safety standards..AEMD23AF
SEC. 2. AMENDMENT OF CONSUMER PRODUCT SAFETY ACT.
Except as otherwise expressly provided, whenever in this Act an amendment
or repeal is expressed in terms of an amendment to, or repeal of, 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.).
SEC. 3. REAUTHORIZATION.
(a) IN GENERAL- Section 32 (15 U.S.C. 2081) is amended--
(1) by redesignating subsection (c) as subsection (e); and
(2) by striking subsections (a) and (b) and inserting the following:
`(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) $88,500,000 for fiscal year 2009;
`(2) $96,800,000 for fiscal year 2010;
`(3) $106,480,000 for fiscal year 2011;
`(4) $117,128,000 for fiscal year 2012;
`(5) $128,841,000 for fiscal year 2013;
`(6) $141,725,000 for fiscal year 2014; and
`(7) $155,900,000 for fiscal year 2015.
`(b) There are authorized to be appropriated to the Commission for the
Office of Inspector General--
`(1) $1,600,000 for fiscal year 2009;
`(2) $1,770,000 for fiscal year 2010;
`(3) $1,936,000 for fiscal year 2011;
`(4) $2,129,600 for fiscal year 2012;
`(5) $2,342,560 for fiscal year 2013;
`(6) $2,576,820 for fiscal year 2014; and
`(7) $2,834,500 for fiscal year 2015.
`(c) There are authorized to be appropriated to the Commission for the
purpose of renovation, repair, construction, 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),
$40,000,000 for fiscal years 2009 and 2010.
`(d) There are authorized to be appropriated to the Commission for research,
in cooperation with the National Institute of Science and Technology,
the Food and Drug Administration, and other relevant Federal agencies
into safety issues related to the use of nanotechnology in consumer
products, $1,000,000 for fiscal years 2009 and 2010.'.
SEC. 4. PERSONNEL.
(1) IN GENERAL- The Consumer Product Safety Commission shall increase
the number of fulltime personnel employed by the Commission to at
least 500 by October 1, 2013, subject to the availability of appropriations.
(2) PORTS OF ENTRY; OVERSEAS INSPECTORS- The Consumer Product Safety
Commission shall hire at least 50 additional personnel to be assigned
to duty stations at United States ports of entry, or to inspect overseas
production facilities, by October 1, 2010, subject to the availability
of appropriations.
(b) PROFESSIONAL CAREER PATH- The Commission shall develop and implement
a professional career development program for professional staff to
encourage retention of career personnel and provide professional development
opportunities for Commission employees.
SEC. 5. FULL COMMISSION REQUIREMENT; INTERIM QUORUM.
(a) Number of Commissioners-
(1) IN GENERAL- The Congress finds that it is necessary, in order
for the Consumer Product Safety Commission to function effectively
and carry out the purposes for which the Consumer Product Safety Act
was enacted, for the full complement of 5 members of the Commission
to serve and participate in the business of the Commission and urges
the President to nominate members to fill any vacancy in the membership
of the Commission as expeditiously as practicable.
(2) REPEAL OF LIMITATION- Title III of Public Law 102-389 is amended
by striking the first proviso in the item captioned `CONSUMER PRODUCT
SAFETY COMMISSION, SALARIES AND EXPENSES' (15 U.S.C. 2053 note).
(b) TEMPORARY QUORUM- Notwithstanding section 4(d) of the Consumer Product
Safety Act (15 U.S.C. 2053(d)), 2 members of the Consumer Product Safety
Commission, if they are not affiliated with the same political party,
shall constitute a quorum for the transaction of business for the 9-month
period beginning on the date of enactment of this Act.
SEC. 6. 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(k)) 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. 7. PUBLIC DISCLOSURE OF INFORMATION.
Section 6 (15 U.S.C. 2055) is amended--
(1) by inserting `A manufacturer or private labeler shall submit any
such mark within 15 calendar days after the date on which it receives
the Commission's offer.' after `paragraph (2).' in subsection (a)(3);
(2) by striking `30 days' in subsection (b)(1) and inserting `15 days';
(3) by striking `finds that the public' in subsection (b)(1) and inserting
`publishes a finding that the public';
(4) by striking `notice and publishes such a finding in the Federal
Register),' in subsection (b)(1) and inserting `notice),';
(5) by striking `10 days' in subsection (b)(2) and inserting `5 days';
(6) by striking `finds that the public' in subsection (b)(2) and inserting
`publishes a finding that the public';
(7) by striking `notice and publishes such a finding in the Federal
Register.' in subsection (b)(2) and inserting `notice.';
(A) by striking `(3)' and inserting `(3)(A)'; and
(B) by adding at the end thereof the following:
`(B) If the Commission determines that the public health and safety
requires expedited consideration of an action brought under subparagraph
(A), the Commission may file a request with the District Court for such
expedited consideration. If the Commission files such a request, the
District Court shall--
`(i) assign the matter for hearing at the earliest possible date;
`(ii) give precedence to the matter, to the greatest extent practicable,
over all other matters pending on the docket of the court at the time;
`(iii) expedite consideration of the matter to the greatest extent
practicable; and
`(iv) grant or deny the requested injunction within 30 days after
the date on which the Commission's request was filed with the court.';
(9) by striking `section 19 (related to prohibited acts);' in subsection
(b)(4) and inserting `any consumer product safety rule or provision
of this Act or similar rule or provision of any other Act enforced
by the Commission;';
(10) by striking `or' after the semicolon in subsection (b)(5)(B);
(11) by striking `disclosure.' in subsection (b)(5)(C) and inserting
`disclosure; or';
(12) by inserting in subsection (b)(5) after subparagraph (C) the
following:
`(D) the Commission publishes a finding that the public health and
safety requires public disclosure with a lesser period of notice than
is required under paragraph (1).';
(13) in the matter following subparagraph (D) of subsection (b)(5)
(as added by paragraph (12) of this section), by striking `section
19(a),' and inserting `any consumer product safety rule or provision
under this Act or similar rule or provision of any other Act enforced
by the Commission,'; and
(14) by adding at the end of subsection (b) the following:
`(9) PUBLICLY AVAILABLE DATABASE OF REPORTED DEATHS, INJURIES, ILLNESS,
AND RISK OF SUCH INCIDENTS-
`(A) IN GENERAL- Not later than 1 year after the date of enactment
of the CPSC Reform Act, the Commission shall establish and maintain
a publicly available searchable database accessible on the Commission's
web site. The database shall include any reports of injuries, illness,
death, or risk of such injury, illness, or death related to the use
of consumer products received by the Commission from--
`(ii) local, State, or Federal government agencies;
`(iii) health care professionals, including physicians, hospitals,
and coroners;
`(iv) child service providers;
`(v) public safety entities, including police and fire fighters;
and
`(vi) other non-governmental sources, other than information provided
to the Commission by retailers, manufacturers, or private labelers
pursuant to a voluntary or required submission under section 15
or other mandatory or voluntary program.
`(B) ADDITIONAL CONTENTS- In addition to the reports described in
subparagraph (A), the Commission may include in the database any additional
information it determines to be in the public interest.
`(C) ORGANIZATION OF DATABASE- The Commission shall categorize the
information available on the database by date, product, manufacturer,
the model of the product, and any other category the Commission determines
to be in the public interest.
`(D) TIMING- The Commission shall make such reports available on the
Commission website no later than 15 days after the date on which they
are received.
`(E) REMOVAL OF INACCURATE OR INCORRECT INFORMATION- If the Commission
determines, after investigation, that information made available on
the database is incorrect the Commission shall promptly remove it
from the database.
`(F) MANUFACTURER COMMENTS- A manufacturer, private labeler, or retailer
shall be given an opportunity to comment on any information involving
a product manufactured by that manufacturer, or distributed by that
private labeler or retailer, as the case may be. Any such comments
may be included in the database alongside the information involving
such product if requested by the manufacturer, private labeler, or
retailer.
`(G) DISCLOSURE- The Commission may not disclose the names or addresses
of consumers pursuant to its authority under this subsection.
`(H) APPLICATION WITH OTHER PROVISIONS- Subsection (a) and the preceding
paragraphs of this subsection do not apply to the public disclosure
of information received by the Commission under subparagraph (A) of
this paragraph.'.
SEC. 8. RULEMAKING.
(1) IN GENERAL- 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 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,'; and
(E) by striking `Register.' in the matter following paragraph (4)
of subsection (c) and inserting `Register. Nothing in this subsection
shall preclude any person from submitting an existing standard or
portion of a standard as a proposed consumer product safety standard.'.
(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) of the Federal Hazardous Substances Act
(15 U.S.C. 1262(a)) is amended to read as follows:
`(1) IN GENERAL- 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 it finds meets the requirements of
section 2(f)(1)(A).
`(2) PROCEDURE- 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.'.
(2) PROCEDURE- 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'.
(3) ANPR 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) OTHER CONFORMING AMENDMENTS- The Federal Hazardous Substances
Act (15 U.S.C. 1261 et seq.) is amended--
(A) by striking paragraphs (c) and (d) of section 2 and inserting
the following:
`(c) 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 sections
5(c)(6)(D)(i) and 14(b) (15 U.S.C. 1264(c)(6)(D)(i) and 1273(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';
(I) by striking `(hereinafter in this section referred to as the
`Commission')' in section 14(d) (15 U.S.C. 1273(d)) and section
20(a)(1) (15 U.S.C. 1275(a)(1)); and
(J) by striking paragraph (5) of section 18(b) (15 U.S.C. 1261 note).
(c) RULEMAKING UNDER 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' in subsection (g) and inserting
`may be commenced by a notice of proposed rulemaking or'; and
(B) by striking `unless, not less than 60 days after publication
of the notice required in subsection (g), the' in subsection (i)
and inserting `unless the'.
(2) OTHER CONFORMING AMENDMENTS- The Flammable Fabrics Act (15 U.S.C.
1193) is amended--
(A) by striking paragraph (i) of section 2 (15 U.S.C. 1191(i)) 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 `Commission';
(C) by striking `Secretary' each place it appears and inserting
`Commission', except in sections 9 and 14 (15 U.S.C. 1198 and 1201);
(D) by striking `he' and `his' each place they appear in reference
to the Secretary and inserting `it' and `its', respectively;
(E) by striking paragraph (5) of section 4(e) (15 U.S.C. 1193(e))
and redesignating paragraph (6) as paragraph (5);
(F) by striking `Consumer Product Safety Commission (hereinafter
in this section referred to as the `Commission')' in section 15
(15 U.S.C. 1202) and inserting `Commission';
(G) by striking section 16(d) (15 U.S.C. 1203(d)) and inserting
the following:
`(d) In this section, a reference to a flammability standard or other
regulation for a fabric, related material, 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) by striking `Consumer Product Safety Commission' in section
17 (15 U.S.C. 1204) and inserting `Commission'.
SEC. 9. 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. 10. THIRD PARTY CERTIFICATION OF CHILDREN'S PRODUCTS.
(a) IN GENERAL- Section 14(a) (15 U.S.C. 2063(a)) is amended--
(1) by redesignating paragraph (2) as paragraph (5);
(2) by striking `Every manufacturer' in paragraph (1) and inserting
`Except as provided in paragraph (2), every manufacturer';
(3) by designating the second and third sentences of subsection (a)
as paragraphs (3) and (4), respectively;
(4) by inserting after paragraph (1) the following:
`(2) Beginning 60 days after the date on which the Commission publishes
notice of an interim procedure designated under subsection (d)(2) of
this section, every manufacturer, or its designee, of a children's product
(and the private labeler, or its designee, of such product if it bears
a private label) manufactured or imported after such 60th day that is
subject to a children's product safety standard shall--
`(A) have the product tested by a third party laboratory qualified
to perform such tests or testing programs; and
`(B) issue a certification which shall--
`(i) certify that such product meets that standard; and
`(ii) specify the applicable children's product safety standard.';
(5) by striking `Such certificate shall' in paragraph (3) as redesignated
by paragraph (1) and inserting `A certificate required under this
subsection shall'; and
(6) in paragraph (5), as redesignated by paragraph (1)--
(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) TESTING PROGRAMS- Section 14(b) (15 U.S.C. 2063(b)) is amended--
(1) by inserting `(1)' before the first sentence;
(2) by designating the second sentence as paragraph (2); and
(3) in paragraph (2), as so designated, by striking `Any test or'
and inserting `Except as provided in subsection (a)(2), any test or'.
(c) Children's Products; Testing by Independent Third Laboratories;
Certification- Section 14 (15 U.S.C. 2063) is amended by adding at the
end the following:
`(d) Application to Other Consumer Products; Certifier Standards; Audit-
`(1) IN GENERAL- The Commission--
`(A) within 1 year after the date of enactment of the CPSC Reform
Act shall by rule--
`(i) establish protocols and standards--
`(I) for acceptance of certification or continuing guarantees
of compliance by manufacturers under this section; and
`(II) for verifying that products tested by third party laboratories
comply with applicable standards under this Act and other Acts
enforced by the Commission;
`(ii) prescribe standards for accreditation of third party laboratories,
either by the Commission or by 1 or more independent standard-setting
organizations to which the Commission delegates authority, to
engage in certifying compliance under subsection (a)(2) for children's
products or products to which the Commission extends the certification
requirements of that subsection;
`(iii) establish requirements, or delegate authority to 1 or more
independent standard-setting organizations, for third party laboratory
testing, as the Commission determines to be necessary to ensure
compliance with any applicable rule or order, of random samples
of products certified under this section to determine whether
they meet the requirements for certification;
`(iv) establish requirements for periodic audits of third party
laboratories by an independent standard-setting organization as
a condition for accreditation of such laboratories under this
section; and
`(v) establish a program by which manufacturers may label products
as compliant with the certification requirements of subsection
(a)(2); and
`(B) may by rule extend the certification requirements of subsection
(a)(2) to other consumer products or to classes or categories of
consumer products.
`(2) INTERIM PROCEDURE- Within 30 days after the date of enactment
of the CPSC Reform Act, the Commission shall--
`(A) consider existing laboratory testing certification procedures
established by independent standard-setting organizations; and
`(B) designate an existing procedure, or existing procedures, for
manufacturers of children's products to follow until the Commission
issues a final rule under paragraph (1)(A).
`(e) Definitions- In this section:
`(1) CHILDREN'S PRODUCT- The term `children's product' means a product
(other than a medication, drug, or food) designed or intended for
use by, or care of, a child 7 years of age or younger that is introduced
into the interstate stream of commerce. In determining whether a product
is intended for use by a child 7 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,
promotion, or advertising as appropriate for children 7 years of
age or younger.
`(C) Whether the product is commonly recognized by consumers as
being intended for use by a child 7 years of age or younger.
`(D) The Age Determination Guidelines issued by the Commission in
September 2002 and any subsequent version of such Guideline.
`(2) CHILDREN'S PRODUCT SAFETY STANDARD- The term `children's product
safety standard' means a consumer product safety rule or standard
under this Act or any other Act enforced by the Commission, or a rule
or classification under this Act or any other Act enforced by the
Commission declaring a consumer product to be a banned hazardous product
or substance.
`(3) THIRD PARTY LABORATORY-
`(A) IN GENERAL- The term `third party laboratory' means a testing
entity that--
`(i) is designated by the Commission, or by an independent standard-setting
organization to which the Commission qualifies as capable of making
such a designation, as a testing laboratory that is competent
to test products for compliance with applicable safety standards
under this Act and other Acts enforced by the Commission; and
`(ii) except as provided in subparagraph (C), is a non-governmental
entity that is not owned, managed, or controlled by the manufacturer
or private labeler.
`(B) TESTING AND CERTIFICATION OF ART MATERIALS AND PRODUCTS- A
certifying organization (as defined in appendix A to section 1500.14(b)(8)
of title 16, Code of Federal Regulations) meets the requirements
of subparagraph (A)(ii) with respect to the certification of art
material and art products required under this section or by regulations
issued under the Federal Hazardous Substances Act.
`(C) FIREWALLED PROPRIETARY LABORATORIES- Upon request, the Commission
may certify a laboratory that is owned, managed, or controlled by
the manufacturer or private labeler as a third party laboratory
if the Commission--
`(i) finds that certification of the laboratory would provide
equal or greater consumer safety protection than the manufacturer's
use of an independent third party laboratory;
`(ii) establishes 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
`(iii) establishes procedures for confidential reporting of allegations
of undue influence to the Commission.
`(D) Provisional certification-
`(i) IN GENERAL- Upon application made to the Commission less
than 1 year after the date of enactment of the CPSC Reform Act,
the Commission may provide provisional certification of a laboratory
described in subparagraph (C) of this paragraph, or a laboratory
described in subparagraph (A) of this paragraph, upon a showing
that the laboratory--
`(I) is certified under laboratory testing certification procedures
established by an independent standard-setting organization;
or
`(II) provides consumer safety protection that is equal to or
greater than that which would be provided by use of an independent
third party laboratory.
`(ii) DEADLINE- The Commission shall grant or deny any such application
within 45 days after receiving the completed application.
`(iii) EXPIRATION- Any such certification shall expire 90 days
after the date on which the Commission publishes final rules under
subsections (a)(2) and (d).
`(iv) ANTI-GAP PROVISION- Within 45 days after receiving a complete
application for certification under the final rule prescribed
under subsections (a)(2) and (d) of this section from a laboratory
provisionally certified under this subparagraph, the Commission
shall grant or deny the application if the application is received
by the Commission no later than 45 days after the date on which
the Commission publishes such final rule.
`(E) DECERTIFICATION- The Commission, or an independent standard-setting
organization to which the Commission has delegated such authority,
may decertify a third party laboratory (including a laboratory certified
as a third party laboratory under subparagraph (B) of this paragraph)
if it 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 `consumer products which are subject to consumer product
safety standards' and inserting `a consumer product that is subject
to a consumer product safety standard, a children's product that is
subject to a children's product safety standard, or either such product
that is subject to any other rule under this Act (or a similar rule
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'.
(e) Label and Certification- Not later than 1 year after the date of
enactment of this Act, the Consumer Product Safety Commission shall
prescribe a rule in accordance with section 14(a)(5) and (d) of the
Consumer Product Safety Act (15 U.S.C. 2063(a)(5) and (d)) for children's
products (as defined in subsection (e) of such section).
(f) PROHIBITION ON IMPORTS OF CHILDREN'S PRODUCTS WITHOUT THIRD PARTY
TESTING CERTIFICATION- Section 17(a) (15 U.S.C. 2066(a)) is amended--
(1) by striking `or' at the end of paragraph (4);
(2) by striking `(g).' in paragraph (5) and inserting a `(g); or';
and
(3) by adding at the end the following:
`(6) is a children's product, as that term is defined in section 14(e),
or a product for which the Commission, under section 14(d)(1), has
required certification under section 14(a)(2), that is not accompanied
by a certificate from a third party as required by section 14(a)(2).'.
(g) CPSC CONSIDERATION OF EXISTING REQUIREMENTS- In establishing standards
for laboratories certified to perform testing under section 14 of the
Consumer Product Safety Act, as amended by this section, the Consumer
Product Safety Commission may consider standards and protocols for certification
of such laboratories by independent standard-setting organizations that
are in effect on the date of enactment of this Act, but shall ensure
that the final rule prescribed under subsections (a)(2) and (d) of that
section incorporates, as the standard for certification, the most current
scientific and technological standards and techniques available.
SEC. 11. TRACKING LABELS FOR PRODUCTS FOR CHILDREN.
(a) Labeling Requirement for Internet and Catalogue Advertising of Certain
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; and
(2) by inserting after subsection (b) the following:
`(c) Internet, Catalogue, and Other Advertising-
`(A) CAUTIONARY STATEMENT- Any advertisement posted by a manufacturer,
retailer, distributor, private labeler, or licensor for any toy,
game, balloon, small ball, or marble that requires a cautionary
statement under subsections (a) and (b), including any 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. A manufacturer, distributor, private labeler,
or licensor that uses a retailer to advertise a product shall inform
the retailer of any cautionary statement that may apply to such
products in any communication to the retailer that contains information
about the products to be advertised. The requirement imposed by
the preceding sentence shall only apply to advertisements by the
retailer if the manufacturer, importer, distributor, private labeler,
or licensor affirmatively informs the retailer that such cautionary
statement is required for the product.
`(B) DISPLAY- The cautionary statement described in subparagraph
(A) shall be prominently displayed--
`(i) in the primary language used in the advertisement, catalogue,
or Internet website;
`(ii) in conspicuous and legible type in contrast by typography,
layout, or color with other material printed or displayed in such
advertisement; and
`(iii) in a manner consistent with part 1500 of title 16, Code
of Federal Regulations.
`(C) DEFINITIONS- In this paragraph, the terms `manufacturer, retailer,
distributor, private labeler, and licensor'--
`(i) mean any individual who, by such individual's occupation
holds himself or herself out as having knowledge or skill peculiar
to consumer products, including any person who is in the business
of manufacturing, selling, distributing, labeling, licensing,
or otherwise placing in the stream of commerce consumer products;
but
`(ii) do not include an individual whose selling activity is intermittent
and does not constitute a trade or business.
`(2) ENFORCEMENT- The requirement under paragraph (1) shall be treated
as a consumer product safety standard promulgated under section 7
of the Consumer Product Safety Act (15 U.S.C. 2056). The publication
or distribution of any advertisement that is not in compliance with
paragraph (1) shall be treated as a prohibited act under section 19
of such Act (15 U.S.C. 2068).'.
(b) Tracking Labels for Products for Children- Section 14(a) of the
Consumer Product Safety Act (15 U.S.C. 2063(a)), as amended by section
10(a) of this Act, is further amended by adding at the end thereof the
following:
`(6) Effective 1 year after the date of enactment of the CPSC Reform
Act, the manufacturer of a children's product or other consumer product
(as may be required by the Commission in its discretion after a rulemaking
proceeding) shall place distinguishing marks on the product and its
packaging, to the extent practicable, that will enable the ultimate
purchaser to ascertain the manufacturer, production time period, and
cohort (including the batch, run number, or other identifying characteristic)
of production of the product by reference to those marks.'.
(c) ADVERTISING, LABELING, AND PACKAGING REPRESENTATION- Section 14(c)
(15 U.S.C. 2063(c)) is amended--
(1) by striking `(c) The' and inserting `(c)(1) The';
(2) by striking `rule)--' and inserting `rule):';
(3) by redesignating paragraphs (1), (2), and (3) as subparagraphs
(A), (B), and (C), respectively;
(4) by indenting the sentence beginning `Such labels' and inserting
`(2)' before `Such labels'; and
(5) by adding at the end thereof the following:
`(4) If an advertisement, label, or package contains a reference to
a consumer product safety standard, a statement with respect to whether
the product meets all applicable requirements of that standard.'.
SEC. 12. SUBSTANTIAL PRODUCT HAZARD REPORTING REQUIREMENT.
Section 15(b) (15 U.S.C. 2064(b)) is amended--
(1) by striking `consumer product distributed in commerce,' and inserting
`consumer product (or other product or substance over which the Commission
has jurisdiction under this or any other Act) distributed in commerce,';
(2) by redesignating paragraphs (2) and (3) as paragraphs (3) and
(4), respectively; and
(3) by inserting after paragraph (1) the following:
`(2) fails to comply with any rule or standard promulgated by the
Commission under this or any other Act;'.
SEC. 13. CORRECTIVE ACTION PLANS.
Section 15(d) (15 U.S.C. 2064(d)) is amended--
(1) by inserting `(1)' after `(d)';
(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 `whichever of the following actions the person to
whom the order is directed elects:' and inserting `any one or more
of the following actions it determines to be in the public interest:';
(6) by indenting the sentence beginning `An order' and inserting `(2)'
before `An order';
(7) by striking `satisfactory to the Commission,' and inserting `for
approval by the Commission,';
(8) by striking `described in paragraph (3).' and inserting `described
in paragraph (1)(C).'; and
(9) 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 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.
`(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. The manufacturer,
retailer, or distributor to which the action plan applies may not distribute
the product to which the action plan relates in commerce after receipt
of notice of a revocation of the action plan.'.
SEC. 14. IDENTIFICATION OF MANUFACTURER BY IMPORTERS, RETAILERS, AND
DISTRIBUTORS.
Section 16 (15 U.S.C. 2065) is 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 the information
is known, or can be determined, by 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 it 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
of such product or substance; and
`(C) each subcontractor from which it obtained a component thereof.'.
SEC. 15. PROHIBITED ACTS.
(a) SALE OF RECALLED PRODUCTS- Section 19(a) (15 U.S.C. 2068(a)) is
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 this Act or 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, but only if the seller, distributor, or
manufacturer knew or should have known of such voluntary corrective
action; or
`(C) subject to an order issued under section 12 or 15 of this Act,
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);
(4) by striking `insulation).' in paragraph (9) and inserting `insulation);';
and
(5) by striking `18(b).' in paragraph (10) and inserting `18(b); or'.
(b) Export of Recalled Products-
(1) IN GENERAL- Section 18 (15 U.S.C. 2067) is amended by adding at
the end thereof the following:
`(c) Notwithstanding any other provision of law, the Commission may
prohibit a person from exporting from the United States for purpose
of sale any consumer product, or other product or substance that is
regulated under this Act of any other 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
standard under this Act or with a similar rule under any such other
Act and does not violate applicable safety standards established by
the importing country;
`(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 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 mandatory
corrective action under this Act or any other Act enforced by the
Commission if voluntary corrective action had not been taken by the
manufacturer, except that the Commission may permit such a product
to be exported if it meets applicable safety standards established
by the importing country.'.
(2) PENALTY- Section 19(a) (15 U.S.C. 2068(a)), as amended by subsection
(a) of this section, is further amended--
(A) by striking `or' after the semicolon in paragraph (10);
(B) by striking `37.' in paragraph (11) and inserting `37; or';
and
(C) by adding at the end thereof the following:
`(12) violate an order of the Commission under section 18(c).'.
(3) CONFORMING AMENDMENTS TO OTHER ACTS-
(A) 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,'.
(B) FLAMMABLE FABRICS ACT- Section 15 of the Flammable Fabrics Act
(15 U.S.C. 1202) is amended by adding at the end thereof the following:
`(d)(1) Notwithstanding any other provision of law, except as provided
in paragraph (2), the Consumer Product Safety Commission may prohibit
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--
`(A) is not in conformity with an applicable consumer product safety
standard under the Consumer Product Safety Act or with a rule under
this Act;
`(B) 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
`(C) is subject to 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 mandatory
corrective action under this or another Act enforced by the Commission
if voluntary corrective action had not been taken by the manufacturer.
`(2) The Commmission may permit the exportation of a fabric, related
material, or product described in paragraph (1) if it meets applicable
safety standards of the country to which it is being exported.'.
(c) FALSE CERTIFICATION OF COMPLIANCE WITH TESTING LABORATORY STANDARD-
Section 19(a) (15 U.S.C. 2068(a)), as amended by subsection (b)(2) of
this section, is further amended--
(1) by striking `or' after the semicolon in paragraph (11);
(2) by striking `18(c).' in paragraph (12) and inserting `18(c); or';
and
(3) by adding at the end thereof the following:
`(13) sell, offer for sale, distribute in commerce, or import into
the United States any consumer product bearing a registered safety
certification mark owned by an accredited conformity assessment body,
which mark is known, or should have been known, by such person to
be used in a manner unauthorized by the owner of that certification
mark.'.
(d) MISREPRESENTATION OF INFORMATION IN INVESTIGATION- Section 19(a)
(15 U.S.C. 2068(a)), as amended by subsection (c) of this section, is
further amended--
(1) by striking `or' after the semicolon in paragraph (12);
(2) by striking `false.' in paragraph (13) and inserting `false; or';
and
(3) by adding at the end thereof the following:
`(14) misrepresent to any officer or employee of the Commission the
scope of consumer products subject to an action required under section
12 or 15, or to make a material misrepresentation to such an officer
or employee in the course of an investigation under this Act or any
other Act enforced by the Commission.'.
(e) CERTIFICATES OF COMPLIANCE WITH MANDATORY STANDARDS- Section 19(a)(6)
(15 U.S.C. 2068(a)(6)) is amended to read as follows:
`(6) fail to furnish a certificate required by this Act or any other
Act enforced by the Commission, or to issue a false certificate if
such person in the exercise of due care has reason to know that the
certificate is false or misleading in any material respect; or to
fail to comply with any rule under section 14(c);'.
(f) UNDUE INFLUENCE ON THIRD PARTY LABORATORIES- Section 19(a) (15 U.S.C.
2068(a)), as amended by subsection (d) of this section, is further amended--
(1) by striking `or' after the semicolon in paragraph (13);
(2) by striking `Commission.' in paragraph (14) and inserting `Commission;
or'; and
(3) by adding at the end thereof the following:
`(15) exercise, or attempt to exercise, undue influence on a third
party laboratory (as defined in section 14(e)(2)) with respect to
the testing, or reporting of the results of testing, of any product
for compliance with a standard under this Act or any other Act enforced
by the Commission.'.
SEC. 16. PENALTIES.
(1) IN GENERAL- Section 20(a) (15 U.S.C. 2069(a)) is amended--
(A) by striking `$5,000' and inserting `$250,000';
(B) by striking `$1,250,000' each place it appears and inserting
`$20,000,000'; and
(C) by striking `December 1, 1994,' in paragraph (3)(B) and inserting
`December 1, 2011,'.
(2) FEDERAL HAZARDOUS SUBSTANCES ACT- Section 5(c) of the Federal
Hazardous Substances Act (15 U.S.C. 1264(c)) is amended--
(A) by striking `$5,000' in paragraph (1) and inserting `$250,000';
(B) by striking `$1,250,000' each place it appears in paragraph
(1) and inserting `$20,000,000'; and
(C) by striking `December 1, 1994,' in paragraph (6)(B) and inserting
`December 1, 2011,'.
(3) FLAMMABLE FABRICS ACT- Section 5(e) of the Flammable Fabrics Act
(15 U.S.C. 1194(e)) is amended--
(A) by striking `$5,000' in paragraph (1) and inserting `$250,000';
(B) by striking `$1,250,000' in paragraph (1) and inserting `$20,000,000';
and
(C) by striking `December 1, 1994,' in paragraph (5)(B) and inserting
`December 1, 2011,'.
(4) MAXIMUM PENALTY FOR CERTAIN VIOLATIONS- Section 20(a)(1) (15 U.S.C.
2069(a)), section 5(c)(1) of the Federal Hazardous Substances Act
(15 U.S.C. 1264(c)), and section 5(e)(1) of the Flammable Fabrics
Act (15 U.S.C. 1194(e)) are each amended by inserting `The Commission
shall impose civil penalties exceeding $10,000,000 under this paragraph
only when issuing a finding of aggravated circumstances.' after `violations.'.
(1) IN GENERAL- Section 21(a) (15 U.S.C. 2070(a)) is amended to read
as follows:
`(a) Violation of section 19 of this Act is punishable by--
`(1) imprisonment for not more than 5 years for a knowing and willful
violation of that section;
`(2) a fine determined under section 3571 of title 18, United States
Code; or
(2) DIRECTORS, OFFICERS, AND AGENTS- Section 21(b) (15 U.S.C. 2070(b))
is amended by striking `19, and who has knowledge of notice of noncompliance
received by the corporation from the Commission,' and inserting `19'.
(3) UNDER THE FEDERAL HAZARDOUS SUBSTANCES ACT- Section 5(a) of the
Federal Hazardous Substances Act (15 U.S.C. 1264(a)) is amended by
striking `one year, or a fine of not more than $3,000, or both such
imprisonment and fine.' and inserting `5 years, a fine determined
under section 3571 of title 18, United States Code, or both.'.
(4) UNDER THE FLAMMABLE FABRICS ACT- Section 7 of the Flammable Fabrics
Act (15 U.S.C. 1196) is amended to read as follows:
`PENALTIES
`SEC. 7. Violation of section 3 or 8(b) of this Act, or failure to comply
with section 15(c) of this Act, is punishable by--
`(1) imprisonment for not more than 5 years for a knowing and willful
violation of that section;
`(2) a fine determined under section 3571 of title 18, United States
Code; or
(c) CIVIL PENALTY CRITERIA- Within 1 year after the date of enactment
of this Act, the Consumer Product Safety Commission shall initiate a
rulemaking in accordance with section 553 of title 5, United States
Code, to establish criteria for the imposition of civil penalties under
section 20 of the Consumer Product Safety Act (15 U.S.C. 2069) and any
other Act enforced by the Commission, including factors to be considered
in establishing the amount of such penalties, such as repeat violations,
the precedential value of prior adjudicated penalties, the factors described
in section 20(b) of the Consumer Product Safety Act (15 U.S.C. 2069(b)),
and other circumstances.
(d) 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 penalties 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 or any other Act enforced by the Commission for which the
violator is sentenced to pay a fine, be imprisoned, or both.'.
SEC. 17. PREEMPTION.
The provisions of sections 25 and 26 of the Consumer Product Safety
Act (15 U.S.C. 2074 and 2075, respectively)), section 18 of the Federal
Hazardous Substances Act (15 U.S.C. 1261 note), section 16 of the Flammable
Fabrics Act (15 U.S.C. 1203), and section 7 of the Poison Packaging
Prevention Act of 1970 (15 U.S.C. 1476) establishing the extent to which
those Acts preempt, limit, or otherwise affect any other Federal, State,
or local law, any rule, procedure, or regulation, or any cause of action
under State or local law may not be expanded or contracted in scope,
or limited, modified or extended in application, by any rule or regulation
thereunder, or by reference in any preamble, statement of policy, executive
branch statements, or other matter associated with the publication of
any such rule or regulation.
SEC. 18. 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 thereof
the following:
`(f)(1) The Commission may make information obtained by the Commission
under section 6 available 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) the foreign government 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) Except as provided in paragraph (3) of this subsection, the Commission
shall not be required to disclose under section 552 of title 5, United
States Code, or any other provision of law--
`(A) 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;
`(B) any material reflecting a consumer complaint obtained from any
other foreign source, if the foreign source supplying the material
has requested confidential treatment as a condition of providing the
material; or
`(C) any material reflecting a consumer complaint submitted to a Commission
reporting mechanism sponsored in part by foreign government agencies.
`(3) 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) The Commission may terminate a memorandum of understanding or other
agreement with another agency if it determines that the other agency
has not handled information made available by the Commission under paragraph
(1) or has failed to maintain confidentiality with respect to the information.
`(5) 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).'.
SEC. 19. FINANCIAL RESPONSIBILITY.
(a) IN GENERAL- The Act (15 U.S.C. 2051 et seq.) is amended by adding
at the end thereof the following:
`FINANCIAL RESPONSIBILITY
`SEC. 39. (a) The Commission, in a rulemaking proceeding, may establish
procedures to require the posting of an escrow, proof of insurance,
or security acceptable to the Commission by--
`(1) a person that has committed multiple significant violations of
this Act or any rule or Act enforced by the Commission;
`(2) the manufacturer or distributor of a category or class of consumer
products; or
`(3) the manufacturer or distributor of any consumer product or any
product or substance regulated under any other Act enforced by the
Commission.
`(b) AMOUNT- The escrow, proof of insurance, or security required by
the Commission under subsection (a) shall be in an amount sufficient--
`(1) to cover the costs of an effective recall of the product or substance;
or
`(2) to cover the costs of holding the product and the destruction
of the product should such action be required by the Commission under
this Act or any other act enforced by the Commission.'.
(b) Conforming Amendments-
(1) The table of contents is amended by striking the item relating
to section 10 and inserting the following:
(2) The table of contents is amended by inserting after the item relating
to section 34 the following:
`Sec. 35. Interim cellulose insulation safety standard.
`Sec. 36. Congressional veto of consumer product safety rules.
`Sec. 37. Information reporting.
`Sec. 38. Low-speed electric bicycles.
`Sec. 39. Financial responsibility.'.
SEC. 20. ENFORCEMENT BY STATE ATTORNEYS GENERAL.
(a) IN GENERAL- The Act (15 U.S.C. 2051 et seq.) is amended by inserting
after section 26 the following:
`ENFORCEMENT BY STATE ATTORNEYS GENERAL
`SEC. 26A. (a) Except as provided in subsection (f), whenever the attorney
general of a State has reason to believe that the interests of the residents
of that State have been, or are being, threatened or adversely affected
by a violation of any consumer product safety rule, regulation, standard,
certification or labeling requirement, or order prescribed under this
Act or any other Act enforced by the Commission (including the sale
of a voluntarily or mandatorily recalled product or of a banned hazardous
substance or product), the State, as parens patriae, may bring
a civil action on behalf of its residents in an appropriate district
court of the United States to obtain injunctive relief provided under
such Act.
`(b) The State shall serve written notice to the Commission of any civil
action under subsection (a) at least 60 days prior to initiating such
civil action. The notice shall include a copy of the complaint to be
filed to initiate such civil action, except that if it is not feasible
for the State to provide such prior notice, the State shall provide
notice immediately upon instituting such civil action.
`(c) Upon receiving the notice required by subsection (b), the Commission
may intervene in such civil action and upon intervening--
`(1) be heard on all matters arising in such civil action; and
`(2) file petitions for appeal of a decision in such civil action.
`(d) Nothing in this section shall prevent the attorney general of a
State from exercising the powers conferred on the attorney general,
or other authorized State officer, by the laws of such State. Nothing
in this section shall prohibit the attorney general of a State, or other
authorized State officer, from proceeding in State or Federal court
on the basis of an alleged violation of any civil or criminal statute
of that State.
`(e) In a civil action brought under subsection (a)--
`(1) the venue shall be a judicial district in which--
`(A) the manufacturer, distributor, or retailer operates; or
`(B) the manufacturer, distributor, or retailer is authorized to
do business;
`(2) process may be served without regard to the territorial limits
of the district or of the State in which the civil action is instituted;
and
`(3) a person who participated with a manufacturer, distributor, or
retailer in an alleged violation that is being litigated in the civil
action may be joined in the civil action without regard to the residence
of the person.
`(f) If the Commission has instituted a civil action or an administrative
action for violation of this Act or any other Act enforced by the Commission,
no State attorney general, or other official or agency of a State, may
bring an action under this section during the pendency of that action
against any defendant named in the complaint of the Commission for any
violation of this Act alleged in the complaint.
`(g) If the attorney general of the State prevails in any civil action
under subsection (a), it can recover reasonable costs and attorney fees
from the manufacturer, distributor, or retailer.'.
(b) CONFORMING AMENDMENT- The table of contents is amended by inserting
after the item relating to section 26 the following:
`Sec. 26A. Enforcement by state attorneys general.'.
SEC. 21. WHISTLEBLOWER PROTECTIONS.
(a) IN GENERAL- The Act (15 U.S.C. 2051 et seq.), as amended by section
19, is further amended by adding at the end the following:
`WHISTLEBLOWER PROTECTION
`SEC. 40. (a) No manufacturer, private labeler, distributor, or retailer,
nor any Federal, State, or local government agency, may discharge an
employee or otherwise discriminate against an employee with respect
to compensation, terms, conditions, or privileges of employment because
the employee, whether at the employee's initiative or in the ordinary
course of the employee's duties (or any person acting pursuant to a
request of the employee)--
`(1) provided, caused to be provided, or is about to provide or cause
to be provided to the employer, the Federal Government, or the attorney
general of a State information relating to any violation of, or any
act or omission the employee reasonably believes to be a violation
of an order, regulation, rule, or other provision of this Act or any
other Act enforced by the Commission;
`(2) testified or is about to testify in a proceeding concerning such
violation;
`(3) assisted or participated or is about to assist or participate
in such a proceeding; or
`(4) objected to, or refused to participate in, any activity, policy,
practice, or assigned task that the employee (or other such person)
reasonably believed to be in violation of an order, regulation, rule,
or other provision of this Act or any other Act enforced by the Commission.
`(b)(1) A person who believes that he or she has been discharged or
otherwise discriminated against by any person in violation of subsection
(a) may, not later than 180 days after the date on which such violation
occurs, file (or have any person file on his or her behalf) a complaint
with the Secretary of Labor alleging such discharge or discrimination
and identifying the person responsible for such act. Upon receipt of
such a complaint, the Secretary shall notify, in writing, the person
named in the complaint of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence supporting
the complaint, and of the opportunities that will be afforded to such
person under paragraph (2).
`(2)(A) Not later than 60 days after the date of receipt of a complaint
filed under paragraph (1) and after affording the complainant and the
person named in the complaint an opportunity to submit to the Secretary
a written response to the complaint and an opportunity to meet with
a representative of the Secretary to present statements from witnesses,
the Secretary shall initiate an investigation and determine whether
there is reasonable cause to believe that the complaint has merit and
notify, in writing, the complainant and the person alleged to have committed
a violation of subsection (a) of the Secretary's findings. If the Secretary
concludes that there is reasonable cause to believe that a violation
of subsection (a) has occurred, the Secretary shall accompany the Secretary's
findings with a preliminary order providing the relief prescribed by
paragraph (3)(B). Not later than 30 days after the date of notification
of findings under this paragraph, either the person alleged to have
committed the violation or the complainant may file objections to the
findings or preliminary order, or both, and request a hearing on the
record. The filing of such objections shall not operate to stay any
reinstatement remedy contained in the preliminary order. Any such hearing
shall be conducted expeditiously. If a hearing is not requested in such
30-day period, the preliminary order shall be deemed a final order that
is not subject to judicial review.
`(B)(i) The Secretary shall dismiss a complaint filed under this subsection
and shall not conduct an investigation otherwise required under subparagraph
(A) unless the complainant makes a prima facie showing that any behavior
described in paragraphs (1) through (4) of subsection (a) was a contributing
factor in the unfavorable personnel action alleged in the complaint.
`(ii) Notwithstanding a finding by the Secretary that the complainant
has made the showing required under clause (i), no investigation otherwise
required under subparagraph (A) shall be conducted if the employer demonstrates,
by clear and convincing evidence, that the employer would have taken
the same unfavorable personnel action in the absence of that behavior.
`(iii) The Secretary may determine that a violation of subsection (a)
has occurred only if the complainant demonstrates that any behavior
described in paragraphs (1) through (4) of subsection (a) was a contributing
factor in the unfavorable personnel action alleged in the complaint.
`(iv) Relief may not be ordered under subparagraph (A) if the employer
demonstrates by clear and convincing evidence that the employer would
have taken the same unfavorable personnel action in the absence of that
behavior.
`(3)(A) Not later than 120 days after the date of conclusion of any
hearing under paragraph (2), the Secretary shall issue a final order
providing the relief prescribed by this paragraph or denying the complaint.
At any time before issuance of a final order, a proceeding under this
subsection may be terminated on the basis of a settlement agreement
entered into by the Secretary, the complainant, and the person alleged
to have committed the violation.
`(B) If, in response to a complaint filed under paragraph (1), the Secretary
determines that a violation of subsection (a) has occurred, the Secretary
shall order the person who committed such violation--
`(i) to take affirmative action to abate the violation;
`(ii) to reinstate the complainant to his or her former position together
with compensation (including back pay) and restore the terms, conditions,
and privileges associated with his or her employment; and
`(iii) to provide compensatory damages to the complainant.
If such an order is issued under this paragraph, the Secretary, at the
request of the complainant, shall assess against the person against
whom the order is issued a sum equal to the aggregate amount of all
costs and expenses (including attorneys' and expert witness fees) reasonably
incurred, as determined by the Secretary, by the complainant for, or
in connection with, the bringing of the complaint upon which the order
was issued.
`(C) If the Secretary finds that a complaint under paragraph (1) is
frivolous or has been brought in bad faith, the Secretary may award
to the prevailing employer a reasonable attorneys' fee, not exceeding
$1,000, to be paid by the complainant.
`(4) If the Secretary has not issued a final decision within 210 days
after the filing of the complaint, or within 90 days after receiving
a written determination, the complainant may bring an action at law
or equity for review in the appropriate district court of the United
States with jurisdiction, which shall have jurisdiction over such an
action without regard to the amount in controversy, and which action
shall, at the request of either party to such action, be tried by the
court with a jury. The proceedings shall be governed by the same legal
burdens of proof specified in paragraph (2)(B). The court shall have
jurisdiction to grant all appropriate relief to the employee available
by law or equity, including injunctive relief, compensatory and consequential
damages, reasonable attorneys and expert witness fees, court costs,
and punitive damages up to $250,000.
`(5)(A) Any person adversely affected or aggrieved by a final order
issued under paragraph (3) may obtain review of the order in the United
States Court of Appeals for the circuit in which the violation, with
respect to which the order was issued, allegedly occurred or the circuit
in which the complainant resided on the date of such violation. The
petition for review must be filed not later than 60 days after the date
of the issuance of the final order of the Secretary. Review shall conform
to chapter 7 of title 5, United States Code. The commencement of proceedings
under this subparagraph shall not, unless ordered by the court, operate
as a stay of the order.
`(B) An order of the Secretary with respect to which review could have
been obtained under subparagraph (A) shall not be subject to judicial
review in any criminal or other civil proceeding.
`(6) Whenever any person has failed to comply with an order issued under
paragraph (3), the Secretary may file a civil action in the United States
district court for the district in which the violation was found to
occur, or in the United States district court for the District of Columbia,
to enforce such order. In actions brought under this paragraph, the
district courts shall have jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief and compensatory damages.
`(7)(A) A person on whose behalf an order was issued under paragraph
(3) may commence a civil action against the person to whom such order
was issued to require compliance with such order. The appropr
