CONSUMER SAFETY ACT OF 1972 FRIDAY, APRIL 21, 1972 U.S. SENATE, SUBCOMMITTEE ON EXECUTIVE REORGANIZATION AND GOVERNMENT RESEARCH, COMMITTEE ON GOVERNMENT OPERATIONS, Washington, D.C. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 3302, New Senate Office Building, Senator Fred R. Harris presiding. Present: Senator Harris. Also present: Robert Wager, staff director and general counsel; Mark E. Greenwold, assistant general counsel; Gerry Simons, special counsel; and Pamela Gell, chief clerk. Senator HARRIS. The hearing will come to order. HEARINGS RESUMED This is the second day of hearings on titles I and II of S. 3419, the Consumer Safety Act. We will hear from three witnesses today and then the hearings will be recessed until May 2 and 3, at which time the committee will hear from Secretary Richardson and from representatives of DBS. Our first witness this morning is Mr. J. Edward Day of the Sidley & Austin law firm, special counsel for consumer electronics group of the Electronic Industries Association. Mr. Day, we are glad you are here and pleased to hear from you at this time. TESTIMONY OF J. EDWARD DAY, ESQ., PARTNER, SIDLEY & AUSTIN LAW FIRM, SPECIAL COUNSEL, CONSUMER ELECTRONICS GROUP, ELECTRONIC INDUSTRIES ASSOCIATION Mr. DAY. Thank you, sir. Mr. Chairman, this will be a somewhat different part of the subject this morning than was covered yesterday. I am special counsel for the consumer electronics group of the Electronic Industries Association and I appear here representing manufacturers of consumer electronic products consisting of television, radios, phonographs, and tape equipment. We favor a Federal Government presence in developing and enforcing product safety standards. Development and improvement of safety standards has been a continuing top priority concern of the individual companies in our industry and by our consumer electronics group. We feel that even one pre ventable injury from a consumer product is one too many. Therefore, to the extent that Federal participation in this area can make safety standards even more effective, we favor such participation. We have, however, a number of important objections to the bill before you. I realized that this subcommittee is principally concerned with the organizational, coverage and administrative aspects of the bill. Therefore, I will concentrate my comments on just a few important points having to do with the Government organization and admininistrative feasibility aspects. Our general objections, which we have explained in details at previous hearings, are available in the reports of those hearings. Our first point has to do with the specific reference to electronic products in the first subsection of the first section of the bill on definitions. This subsection (1) of section 101 follows: I will not read but it refers to consumer products as including electronic products and specifically mentions electronic products in that first paragraph of the definition. Then in paragraph (4) of the definition section there has been picked up from the language of the Radiation Act a definition of electronic product, and in section 5 there is a definition also picked up from the Radiation Act of electronic product radiation. Senator HARRIS. Without objection, we will put those in the record at this point. (The information follows:) (1) "Consumer product" means a product produced or distributed for sale to an individual for his personal use, consumption, or enjoyment in or around a household or residence, a school, in recreation, or otherwise, and an electronic product as defined in paragraph (3) [should be (4)] of this section. Paragraph (4) of Section 101 is as follows: (4) "Electronic product" means (A) any manufactured or assembled product which, when in operation, (i) contains or acts as part of an electronic circuit and (ii) emits (or in the absence of effective shielding or other controls would emit) electronic product radiation, or (B) any manufactured or assembled article which is intended for use as a component, part, or accessory of a product described in clause (A) and which when in operation emits (or in the absence of effective shielding or other controls would emit) such radiation. "Electronic product radiation" is then defined in paragraph (5). ELECTRONIC PRODUCTS Mr. DAY. This reference to electronic products in the definition section was not in the original form of S. 983, as drafted by the National Commission on Product Safety, and on which Senate Commerce Committee hearings were held. It was not in committee print No. 1 of S. 983, as released by the Senate Commerce Committee last fall. The inclusion of electronic products in the definition appeared for the first time in committee print No. 2 of the Senate Commerce Committee. We feel that this singling out in the bill of electronic products as the only specific type of product pinpointed in the general definition section, would carry for the public a strong implication that there is something particularly suspect or dangerous about our products. It tends to highlight us and to make it seem that we are, in some way, the particular bad boys of the product safety problem. The fact is that just the opposite is true. We cooperated with the National Commission on Product Safety when it was in existence and we feel that any product safety problems there may have been in relation to consumer electronic products were limited to begin with and have now been cleared up. Our response to the National Commission on Product Safety, in connection with color television receivers, was referred to by Senator Percy in the Congressional Record of March 2 this year as "responsible." We understand that the reason for singling us out to have the spotlight put on us in the definition is because the draftsman of a revision of the bill wished to repeal the Radiation Control for Health and Safety Act and, after such repeal, wanted to pick up, as within the jurisdiction of the new proposed Consumer Safety Agency, all products, whether consumer products or not, which are now covered by the Radiation Act. We feel this attempted explanation by no means solves the problem. In the first place, we all know that when there is a damaging statement and a separate explanation, the explanation often gets lost or overlooked. Moreover, we think the method that has been adopted to achieve the asserted purpose is highly undesirable and discriminatory. We suggest it would be much preferable to leave on the books the Řadiation Act, which was the subject of extensive hearings and drafting and redrafting only 4 years ago and, if a new Consumer Safety Agency is to be created, to provide that the functions and duties of the Secretary of Health, Education, and Welfare, under the Radiation Act, are transferred to the agency. TRANSFER OF FUNCTIONS This could be done by a brief addition to section 201 on "Transfer of Functions." There is such a provision-section 33(a)—in H.R. 8157, the House version of the original product safety bill recommended by the National Commission on Product Safety. As it is, under S. 3419 as now drafted, the effort to preserve for the new agency the present product coverage of the Radiation Act, goes much further and on its face creates a wholly unjustified discrimination against nonconsumer type electronic products. Just as an accidental byproduct of including all electronic products consumer and nonconsumer-in the definition of products covered by S. 3419, nonconsumer electronic products would, under the language of the bill, be the only type of nonconsumer products swept in under the broad, general jurisdiction of the proposed Consumer Safety Agency. We realize that the report of the Senate Committee on Commerce says this is not the intention. However, few members of the rank and file public read congressional committee reports. Moreover, there is no assurance that some future administrators of the new agency would agree with this interpretation, particularly since legislative history is ordinarily considered pertinent only if a statute is unclear. There is no more logic in lumping complicated nonconsumer items such as television broadcast equipment or sophisticated industrial laser equipment in with consumer items than there would be to do the same for steam shovels and 747's. RADIATION SAFETY Our proposal is to leave the Radiation Act in force, as was recommended by the National Commission on Product Safety. Under this simple and direct approach, electronic products of all kinds, consumer and nonconsumer, including television receivers, would continue to be regulated as to radiation safety aspects under the provisions of the Radiation Act. Beyond that, only those electronic products which were consumer items would be regulated under the Product Safety Act. We emphasize that we would recommend the transfer of function for administering the Radiation Act only if the new Consumer Safety Agency is, in fact, to be created. We feel, however, that it would be a major mistake to set up this entirely new Federal agency to provide a Federal presence in the product safety area. A new Consumer Safety Agency, headed by presidential appointees, would inevitably end up being another constantly growing bureaucracy. It would be far preferable to assign Federal activity in this area to an existing Federal department or agency which might have some expertise or familiarity with this type of responsibility, as well as with the particular safety problems which might be involved. An existing agency could use its experience and trained personnel to do what was necessary as to product safety problems and then could move on to emphasis on other work once the really necessary product safety investigations and the establishment of safety standards had been completed. Experience has shown that once new commissions and agencies are established and staffed with people in higher paid jobs, such commissions and agencies are seldom terminated. A new agency confined to a specialized role, as proposed in S. 3419, could be motivated, in the course of time, to try to make work for itself by stirring up activity not really justified by public interest considerations. Even Mr. Arnold Elkind, who testified here vesterday, who served as chairman of the National Commission on Product Safety, has urged in congressional testimony that there should be a termination point in the life of a new commission or agency set up to administer product safety legislation. In his testimony on this type of legislation before a House subcommittee last November, Mr. Elkind-although he advocated a new, independent Product Safety Commission-said that the Federal product safety protectors "will have little to do after the first 4 or 5 years of work other than to conceal their uselessness." CONSUMER SAFETY ADVOCATE The problem created by an independent Agency would be compounded by including in the bill, as section 108 (d) of S. 3419 does, a provision for a specially appointed attorney to act, in effect, as a consumer safety advocate. It would seem that the safety advocate role is being proposed as a high level heckler and backseat driver for Federal Government product safety activities. No one individual or no individual with a staff of sensible size is capable of taking a constructive and objective part in the great variety of investigations and possible standard-setting activities which could be involved. The authorization of this type of an official seems to encourage a disorderly, haphazard and overly precipitous approach to what should be a deliberate and carefully worked out development of standards and regulations. For complicated products it is not realistic to assume that a new and better standard can be set overnight or that an amateur can make a contribution to achieving a sensible result. The lawyer safety advocate could, we believe, in practical effect, override action taken by the Agency-or the Secretary. He would not have a veto as such. But if he disagreed with an Agency action, even though that action were based on a well documented record, he could take his opinions to the news media. Experience shows that any rebuttal by the Agency, the Secretary, or the industry or company involved, might fall on deaf ears. Publicity pressure could force the taking of an action which the standard-setting authority otherwise properly considered to be unnecessary. The "in" thing these days seems to be to propose or establish by various names a consumer advocate. A bill is pending before this subcommittee to establish a consumer protection agency which would be an overall consumer advocate. The Postal Corporation has hired a postal ombudsman. If this continues at the present rate, we will soon need a super consumer advocate to oversee the work of all the consumer advocates. It seems clear to us that this committee can and will want to concern itself with aspects of the bill which bear upon feasibility and workability from a government administrative standpoint. It should be noted in the latter part of the bill that there is a wide sweep, perhaps unprecedented in scope, of enforcement powers. But then in section 111 there is authorization for an individual or class of individuals to bring suit against the agency for "mandamus-like" relief upon a purported showing that persons in the agency have exposed someone to products presenting unreasonable risks. Very possibly, such a suit could be brought because the agency decided not to pursue one or more of the variety of authorized enforcement actions. Such suits could well cause the agency to become bogged down and preoccupied with defending itself against actual or threatened lawsuits to the extent that it could not effectively and promptly go forward with setting and enforcing safety standards. We urge delegation of this provision for private lawsuits against the agency. Administrative workability would also be handicapped by the vast area of potential overlapping jurisdiction and attempted overlapping expertise with other Federal agencies presented by the exemption of products" subject to regulation" under other specified laws. SUBJECT TO REGULATION "Subject to regulation" is interpreted in the Commerce Committee report as meaning such products are, in fact, regulated and not merely could be regulated under the other law. This would create an open season for the new agency to nibble away at the jurisdiction of other agencies by second-guessing decisions of the other agencies as to priorities. This is bound to create a haphazard and inconsistent regulatory |