Lapas attēli
PDF
ePub

Mr. ELKIND. Certainly not; providing there is an acknowledgment that the citizen has a standing in court.

Senator Cook. Absolutely.

Thank you very much.

Senator Moss. Thank you again, Mr. Elkind, and Dr. Hill. We appreciate it very much.

Mr. ELKIND. It is very heart warming to see the familiarity of the committee with the proposed legislation.

Senator Moss. We are in recess until Wednesday morning at 9:30. (Whereupon, at 2 p.m., the hearing was recessed to resume at 9:30 a.m., Wednesday, July 21, 1971.)

(The following information was subsequently received for the record :)

Hon. MARLOW W. COOK,

Old Senate Office Building,
Washington, D.C.

ARNOLD B. ELKIND, New York, N.Y., July 20, 1971.

DEAR SENATOR COOK: At yesterday's hearing on consumer product safety legis lation you expressed concern regarding the provision in S. 983 that informal rulemaking administrative procedures (5 U.S.C. 553) should apply to all proceedings for the purpose of establishing, amending or revoking a consumer product safety standard or other regulation pursuant to the Act.

You questions stimulated me to examine the Report of the President's Advisory Council on Executive Organization to determine that Commission's observa. tions on the usefulness of formal administrative procedures.

I would expect the Administration to rely heavily on the conclusions of this distinguished panel but its teachings are not reflected in S. 1797, which opts for formal procedures.

The Ash Commission came down strongly in favor of utilizing informal procedures and seems convinced that much of the ineptitude found in the regulatory process can be traced to the over-judicialization of agency processes. The rationale is summarized at page 52, wherein the Ash Commission Report states: "The discharge of this quasi-legislative function can be impeded by undue deference to judicialization. Resolution of policy matters requires a type of flexibility that is unknown in our traditional common law judicial setting. Adminis trative agencies were established for the very purpose of placing technical expertise in a single forum and channeling to it problems which require that expertise for resolution. The judiciary, by design, does not share this characteristic with administrative agencies. Thus it is appropriate to apply considerably more stringent evidentiary rules in judicial than in administrative proceedings because care must be taken to protect jurors from matters which have not been subjected to the rigors of cross-examination and expert opinion. Administrative agencies, however, enjoy a degree of technical competence in their areas of expertise which permits them to receive and evaluate submissions that have not been subjected to protective common law procedures. Indeed, such regulatory objectives as encouraging the broadest possible public participation and the expeditious resolution of issues can seriously be frustrated if agencies are overly concerned with rigorous judicial procedures and attitudes."

Nor is this an obscure reference in the Report. You will find the same theme restated at pages 21, 22, 34, 35 and 49. The Ash Commission found that a formal proceeding deciding an issue on an ad hoc basis generally does not provide a precedent and hence there is no anticipatory value to the formalized operation. A regulatory agency must be enabled to anticipate problems without the need for, and long before, the culmination of protracted proceedings.

You, as a former Judge, and I, as a trial lawyer, are troubled by this problem but the Ash Report gives me philosophical comfort that the trade-off of procedural safeguard involved is worthwhile-particularly when lives and health are at stake.

Respectfully yours,

ARNOLD B. ELKIND.

CONSUMER PRODUCT SAFETY ACT OF 1971

WEDNESDAY, JULY 21, 1971

UNITED STATES SENATE,
COMMITTEE ON COMMERCE,
Washington, D.C.

The committee met, pursuant to recess, at 9:30 a.m., in room 1202, New Senate Office Building, Hon. Frank E. Moss, presiding. Present: Senators Moss, Hatfield, and Stevens.

Senator Moss. The hearing will come to order.

Today we resume hearings on product safety legislation. Secretary Richardson, Mrs. Knauer and Dr. Edwards spoke in behalf of the administration bill, S. 1797, and proposed the reorganization of the Food and Drug Administration. Under that plan, a new Consumer Safety Administration would be established composed of an Office of Drug Regulation, an Office of Food Regulation, and an Office of Product Safety Regulation, The Secretary indicated that the final authority for standard promulgation would be delegated to the administrator of the new unit.

Mr. Arnold Elkind, chairman of the National Commission on Product Safety, spoke on behalf of the Commission bill, S. 983. Mr. Elkind underscored the importance of establishing an independent agency with clear channels of accountability and visibility, an independent budget and commissioners with fixed terms of office. He also criticized the administration bill for lacking a provision for a consumer safety advocate and for creating burdensome guidelines on the release of information obtained under the act.

As a result of our session on Monday, this committee is in a better position to resolve differences between the two bills to try to come up with a strong Federal product safety program that would guarantee independent accountability. I look forward to receiving the views of other witnesses who will help us to resolve the remaining issues before the committee.

We have several very important witnesses to hear this morning, and we will try to proceed with as much speed as possible. The Senate will be in session early this morning, and there is always the possibility of interruption. So we would like to move along as rapidly as we can.

Our first witness will be Dr. Lewis Branscomb, Director of the National Bureau of Standards, and we'll ask Dr. Branscomb if he will come forward and introduce his associates that are accompanying him to the stand this morning.

STATEMENT OF HON. LEWIS M. BRANSCOMB, DIRECTOR, NATIONAL BUREAU OF STANDARDS; ACCOMPANIED BY MALCOLM JENSEN, DIRECTOR, BUREAU OF PRODUCT SAFETY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE; MEL PYERSON, CHIEF, PRODUCT EVALUATION TECHNOLOGY DIVISION, NATIONAL BUREAU OF STANDARDS; AND WILLIAM ANDRES, MANAGER, ENGINEERING STANDARDS

Dr. BRANSCOMB. Thank you, Mr. Chairman. With me on my right is Malcolm Jensen, Director of the Bureau of Product Safety in HEW; on my left, Dr. Mel Meyerson, Chief of the Product Evaluation Technology Division of NBS, and over here on my far right, Mr. William Andrus, who is the Manager for Engineering and Information Processing Standards at the NBS.

Senator Moss. Thank you. We welcome you gentlemen all to the table.

Dr. BRANSCOMB. Mr. Chairman, it is a privilege for me to appear before this committee in support of the Consumer Product Safety Act of 1971, S. 1797.

The President has expressed his deep concern over the multitude of problems being confronted by the consumer in the purchase and use of products of all kinds. The growing complexity and sophistication of many such products make it increasingly difficult for the untrained or uniformed consumer to evaluate and guard against hazards which may be present in a product or which may develop with use. Accordingly, the President has submitted proposals to the Congress aimed at establishing a buyer's bill of rights. S. 1797 is designed to respond to that portion of the overall bill of rights which deals with product safety. It would do so by giving the Secretary of Health, Education, and Welfare the authority to fix minimum safety standards for products and to ban from the marketplace those products that fail to meet those standards.

Our society is said to be affluent. The price in health and safety exacted by technology for our affluence may seem dwarfed by the extraordinary contributions of technology to general health and longevity. Nevertheless, we are told that in the United States an estimated 30,000 people die and perhaps 20 million people are injured in accidents in and around the home each year. The public is increasingly unwilling to accept injury and death from the products it uses, particularly when the hazard is concealed in a new or unfamiliar product or technology. On the other hand, the size of the accident toll itself may reflect a public reluctance to pay the full bill for safety. People still smoke cigarettes in spite of fateful warnings on the package. Others, and I am one of the most enthusiastic, buy skis for the deliberate purpose of an exhilarating experience that cannot be freed of all risk. No one expects all products to be foolproof. But the buyer has the right to assume that product design contains all of the economically feasible features that can be made to reduce hazards in use, and a right to know the nature of the hazards to which he may expose himself, his family, and his neighbors. The enactment of S. 1797 would provide a big step toward these goals.

It is not my purpose, nor do I feel qualified to discuss the many detailed features of the legislation that is before you. I would prefer to concentrate on two points which I believe should be fully understood in your consideration of any legislation that would authorize the establishment of mandatory consumer product safety standards. First is the need to recognize that the development of effective, yet economically feasible safety standards can be a very difficult technical endeavor which can make heavy demands on even the most talented scientists and engineers. Second is the importance of utilizing fully the reservoir of such talent that is potentially available through the numerous private organizations that produce voluntary standards in this country. In addition, I shall comment on the ways in which the National Bureau of Standards contributes to product safety in cooperation with other Federal agencies and with the private sector, and is preparing to expand its capability for this cooperation.

The technical sophistication required to produce a product standard is not obvious to those who are not engaged in standard production or use. I regret to say that even within the scientific community there are many who tend to underestimate the difficulty of good standards development. A brief description of a standard that is in the final stages of development through the Voluntary Product Standards Procedures of the Department of Commerce may serve to illustrate my point. The product being standardized is a polyethylene plastic container, commonly known as a jerry-can, used to carry gasoline or other petroleum products in the back of an automobile or boat, and for storage around the home. This appears to be a relatively simple product: yet the technology involved in its standardization is complex. Moreover, most of the critical characteristics of jerry-cans relate to safety because of the highly combustible nature of the petroleum products they normally contain.

The standard is a technical document that defines and explains in unambiguous terms the various requirements which the product should meet. A good standard, particularly one that ultimately may become mandatory, should be sufficiently precise in its language to withstand legel scrutiny and at the same time effectively communicate technical instructions which may be relatively complicated. The jerry-can standard includes requirements concerning the plastic material from which the container is made, its capacity and increments of size, stability to avoid tipping, conditions of the pour opening to permit easy pouring and positive sealing, handles that permit firm gripping and resist breaking under load, easily seen colors, high container strength, low permeability to petroleum products, resistance to chemical attack by petroleum, suitable and standardized markings, and proper labels in accordance with existing laws.

The standard also describes the inspection and test methods to be used by manufacturers and inspectors to establish conformance of the product. The formulation of these particular test methods required the skill and knowledge of plastics scientists and engineers, mechanical engineers and chemists. These people, drawn from industry as well as NBS, surveyed and considered test methods in existence to select any that would be appropriate for a particular characteristic. Where none existed, new test methods had to be developed. In all, this relatively

« iepriekšējāTurpināt »