Mark Pryor

Mr. PRYOR

Mr. PRYOR. Mr. President, I think we have some colleagues who may be on their way to the floor shortly. I would encourage our Senate colleagues to come to the floor and offer amendments if they have amendments or offer constructive suggestions if they have those or even if they just want to come down and speak. We would really like to get this legislation wrapped up this week. So far, the cooperation has been excellent on both sides. Again, I wish to commend Senator DeMint and Senator Cornyn for coming down and offering and addressing amendments that are germane. One of the concerns I had is that we might see the floodgates open up on this legislation and come in with all kinds of nongermane amendments. So I thank colleagues on both sides of the aisle for keeping the amendments germane and on point. Mr. President, I note the absence of a quorum.

Mr. PRYOR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. PRYOR

Mr. PRYOR. I suggest the absence of a quorum.

Mr. PRYOR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. PRYOR. Mr. President, let me start our conversation this afternoon about the consumer product safety bill with a chart. I will come back to it in a few minutes, but as the camera focuses on this chart, these are the toys that were recalled in the last year. You can see it starts in March of 2007 and goes to February of 2008. Represented on this calendar are the record number of recalls that we saw last year. I am sure members of the public recall over the summer months--May, June, July, August, and even into September--there were a series of newspaper articles, news magazine stories, television, radio, in addition to Internet stories about the excessive number of recalls. Really, this matter came to the public's attention through the toy recall issue. Now, of course the Consumer Product Safety Commission deals with a lot more than just toys. Toys are very important, and it is a big piece of what they do, but the CPSC does a lot more than toys. But this chart shows the toys, to give a sense of how many recalls we are looking at every year. And what we have done is, we have picked one item that would represent that recall every month. You can see that most months it is four or five recalls in that given month. So the CPSC has been very busy. Unfortunately, that is part of the problem. They are overwhelmed with the marketplace today, and it has been very difficult for the CPSC to keep up with the tremendous number of imports. By the way, every single toy on this calendar is from China--every single toy. I didn't come here to pick on China today, but facts are facts. Last year, in 2007, every toy recall was from China. One of the things we are trying to accomplish in this legislation is to make sure imported toys meet our safety standards. This is a very basic function of Government; that is, to provide for the health and safety and the general welfare of the people. The Consumer Product Safety Commission is on the front line of doing that. Now, I want to talk about this again in a few moments, so I will leave it up and allow people to look at it if they want. But before I do, I want to talk about another provision in the legislation that some have found to be controversial. To be honest with you, some of this controversy is because people have looked at the previous version of the bill. In the previous version of the bill, we had an attorney general enforcement provision that was very aggressive and somewhat open, and people were very concerned that the attorneys general might go wild, so to speak, and start to initiate litigation and bring lawsuits that the CPSC was reluctant to bring. Regardless of how the committee bill was drafted, that has changed in this legislation. I want to be very clear for my colleagues and, again, for staff members who are watching in their offices on Capitol Hill, that has changed dramatically. I want to go through those changes, if I may, very quickly. First, when we talk about adding State attorneys general to this enforcement mechanism for the CPSC, we are talking about putting more cops on the beat or, as someone said the other day, ``more feet on the street.'' You can call it what you want, but the idea is that we have a choice to make. If we want to enforce CPSC decisions, we can do it one of two ways: We can hire more people at CPSC and maybe the Justice Department and pay another $5 million, $10 million, $20 million, $50 million, or whatever it may be for enforcement personnel, who are Federal employees, or we can turn this responsibility over to the States and allow the States a piece of this so if there are problems in their home States, they can go after their problems with no Federal taxpayer expense. And that is the route we have chosen in S. 2663. I know there are some, especially in the business community, who fear the attorney general. When I say that, I mean the State attorney general. They have seen what happened in the tobacco case several years ago. They have seen what has happened in a few other cases since then, and they fear what the attorney general can do, and will do, given the opportunity. Well, let me say a couple of things about that. First, I was the attorney general of my State, and I know how that office works and I know how attorneys general think and the approach they take to problem solving. I would say that most attorneys general have resource issues like everybody else. They are strained in terms of how much time and attention they can devote to certain matters. Most AGs--not all but most AGs--have the consumer protection ability in their State offices right now. There are very few who don't. The other thing that is very important about the attorney general is, in the States, the attorney general position is a very respected position. If you take a poll around the country and ask various people in their States, they have a high degree of respect for the attorney general because, by and large, these men and women have done a great public service for their States. In fact, we have to remember, as Members of the Senate, these attorneys general are elected by the very same people we are. I think it is 44 States--I can't remember the exact number--where the attorney general is popularly elected. There are a few that are not. I think Tennessee has the State supreme court appoint the attorney general. But, regardless, most State AGs are elected by the people, and the people trust them. The other thing I wanted to say about attorneys general is, in general, the reason the State attorneys general act is because Congress fails to act. We saw that in the tobacco case. Several years ago-- again, this has been about 10 years ago now or a little more--there was a bill in Congress to regulate tobacco and to fundamentally change Federal tobacco law and the national tobacco policy. Again, I don't remember exactly what year this was--it was sometime in the mid-1990s, I don't remember exactly, but that bill got bogged down. That bill did not make it out of the Congress, and it never became law. That was the triggering mechanism for the States' tobacco litigation to rev up. I think it had existed before that, but once the Congress failed to act, once people here in Washington couldn't address and couldn't resolve one of the Nation's great problems, the States acted. And that is the nature of it. So one thing I encourage my colleagues to think about is to think about our acting and our taking care of the Consumer Product Safety Commission so we don't see that patchwork out in the many States, where State legislators come in with these great ideas about consumer product safety legislation, where State AGs don't try to get creative and come up with some sort of master plan for litigation. Let's avoid that. Let's pass this S. 2663, the CPSC Reform Act. Let's pass this and allow the State AGs some enforcement responsibility but also keep this in the Federal purview. Let me talk briefly about that. S. 2663 would authorize the State attorneys general to bring a civil action to seek--and this is very important--injunctive relief only for clear violations of the statute or clear violations of orders by the CPSC. So I need to be very clear. What we are talking about is enforcement only. We are talking about injunctive relief only. That means no money damages. That is what we are talking about. We are talking about the States watching the CPSC, maybe the best example, maybe doing a recall somewhere in the State. They find that product is still on the shelves; it should not be. Maybe it is showing up in Dollar Stores, maybe some retailers like small guys or whatever ignoring it. The State attorney general can step in and get those products off the shelf. You all know as well as I do the way that is going to work in the real world is the minute the attorney general shows up at that store, they are going to get those products off the shelves. That is the way it works. It is like a friend of mine told me--one time I called him up and I was the attorney general. He said: Oh, man, my worst nightmare is to have the attorney general call me at my office because you never know what the AG is going to do. It is like having ``60 Minutes'' show up in your front lobby or something. But, nonetheless, that is the way it is going to work. The mere fact that the States have this authority gives a local hammer to the CPSC that they do not have right now. Right now, what we have to do is rely on the Justice Department or we have to rely on CPSC employees to turn around and try to enforce those out in the various States; try to track down all of these products wherever they may be. It is hurting enforcement. The States and the State attorneys general are naturally in a better position to know what is going on in their State, and they are in a better position to enforce the CSPC orders in their State. That is the way it is. Let me say a few more things. I want to get back to this chart. The Consumer Product Safety Commission bill we are talking about now not only limits the attorneys general in the two ways I have mentioned, they have to follow the CPSC, and it has to be for injunctive relief only, but also this requires that the State would serve written notice on the Commission 60 days prior to them filing. So they have to actually notify the Commission. The fourth thing, the fourth out of five safeguards that are built into this legislation, is that the Commission, if they so choose for whatever reason, can intervene in that litigation. The last thing is that if the Commission has a pending action going, the States cannot get in that action. Here again, we want to make sure that the CPSC remains in the driver's seat. One of the myths about this legislation that I have heard--and, quite frankly, it has been mostly on this side of the aisle and this is in the business community--is if we pass my bill, what is going to happen is there are going to be 51 different standards out there, there is going to be litigation coming everywhere. That is not the case. Again, because of Senator Stevens' work that he did to make this bill a bipartisan bill, what we are left with is these very tight controls on the attorneys general. Nonetheless, I think there is value, good value in the States having that enforcement mechanism on a State level. The other thing I wanted to say before I turn to this chart is this is not a new approach. This is not a new approach. In fact, for over a decade State attorneys general have been able to seek injunctive relief under the Federal Hazardous Substance Act, a statute enforced by the CPSC. This authority has not resulted in varying interpretations of law that have been a concern--if we give the States some authority, we are going to have all of these 51 jurisdictions out there doing all of these different things. That is not the case. We have a 10-year track record with the Hazardous Substances Act and the States have not abused it. They have not abused it. So we know the States can play a very important role with the CPSC and with the Federal Government. And, by the way, there are lots of other examples--I do not have to get into all of those right now, but lots of other examples where there is a Federal component and a State component to something where the States are allowed to do some enforcement or play a State role, an important State role. I think that is what this has as well. Let me go to this ``toxic toy'' calendar again. Here again you see these toys that look very familiar, like Thomas up here. Here is the ``Evil Eye'' up here in June of 2007. If I am not mistaken, this is one where they actually had kerosene in the eyeballs. Can you imagine that? They sell these little rubbery or plastic eyeballs that actually had kerosene in those. And this was a children's toy. It is hard to believe. But you see tops, you see Sesame Street characters, you see little things such as building blocks, you see little scooters, dart boards, a wagon, you see all kinds of things. Some of these might have had lead paint, some of these may present choking hazards. But you can see how busy the Consumer Product Safety Commission is. Again, part of our legislation is to give them the resources they need in order to do these recalls. But you can imagine with all these recalls and how busy they are--you know, they are over here in September of 2007. They do these toy recalls. Well, suddenly it is October, and they are working on five more. They do not have time to go back to the State of Arkansas or the State of Delaware or Wyoming or wherever it may be in order to go back and enforce what they had been doing in the previous month. They do not have time for that or have the resources for that. Again, I think the way we have this structured is very positive. Let me give a few examples of what we are talking about here. Let's start with this first month, March of 2007. See this airplane right here? The batteries can overheat in this airplane and cause a fire. This animal farm, this little farm right here, these little pieces can fall off and they become a choking hazard. This keyboard can catch fire. This easel has lead in it. Then we go over here to April. We see on the infant bouncer, which is right here, this little infant chair, a falling hazard out of the seat. There may have been something in the design or construction that made children susceptible to falling out of this. This puzzle has a choking hazard. Again, maybe these knobs come off or something will break off, I am not quite sure, but a choking hazard; this activities chart, a choking hazard; the bracelets that you see here, lead poisoning. Again, you can go down this list. This infant swing right here is an entrapment hazard. I am going to tell you, these entrapment hazards are terrible stories. I have talked to those families before. We had a case in Arkansas a few years ago. It was not with an item here, but it was with a crib type playpen. I am going to tell you, it collapsed on the child and choked the child. It was terrible. Unfortunately, we see that all over the country. This ``Evil Eye'' eyeball, they are ``evil eyes'' because they are full of kerosene. It is hard to believe. Seriously. Think about that. It is hard to believe that any company with any sense at all--I mean, unbelievable--would actually put kerosene in the little toys. Think about it. I do not know why in the world they would ever do that. But that is exactly what they did. Again, we can go down a long list of what can go wrong with these toys. But this is why the marketplace needs some supervision. The marketplace needs something such as the CPSC and someone on a State level, such as the State attorneys general, to make sure these toys are not present in the stream of commerce in the various States. Again, the attorneys general provision of this proposed bill has been a little bit controversial, but it should not be anymore because we have built in the safeguards. We have tried to find the consumer protections. We have tried to make the right policy but at the same time make sure that the attorneys general have the right parameters on them and also keep the CPSC in the driver's seat and to make sure that the State AGs can only seek injunctive relief. That is a very important point, that injunctive relief, because what that means is there are no money damages with an injunction. They are going out there to force someone to do something such as pull something off the shelf or stop selling something or whatever the case may be. That is a very positive development. I have heard from a few groups in the last several days on this concern about contingencies: We should not have any contingent fees. Well, realistically, as a practical matter, I do not think you are going to see any contingent fees with injunctive cases. It is very rare to find injunctive cases with a contingency fee. I guess it can happen. I have seen one example where some lawyers tried to do that. The other thing about the State AGs, given the nature of these claims, I do not think you are going to see very many States use outside counsel. Usually the States bring in outside counsel when there is something very complicated, where there are a lot of costs, or it is a long-term piece of litigation that is going to take years and maybe millions of dollars to repair, very complicated. Again, this is not one of those types of cases. This type of case is you see a CPSC finding, for example, they say the evil eyeballs, kerosene-filled eyeballs cannot be sold in the United States. Some AG is out, they look around, they see it being sold in a Dollar Store, they see it being sold in some discount store somewhere, and they can go after that store and make them get them off the shelves. Again, I think what you will see here is probably very little litigation. I think once that attorney general tells them, we are about to come after you, in my experience as attorney general, most people will respond to that and respond to that very quickly. They do not want the publicity, they do not want the hassle of selling something such as that. The last thing I was going to say on the contingent fees is contingent fees, of course, are used in lots of different types of litigation. But if you think about it with injunctive relief cases, there is no money to base a contingent fee on. So if you are going to pull a bunch of ``Evil Eye'' eyeballs off the shelf, how does the contingent fee work? I think more often than not, much more often than not, you will not see any contingent fee cases. I do not think they apply. The last thing I was going to say on the outside counsel, most States have a process you have to go through to get outside counsel. In fact, when I was attorney general of Arkansas, we never went through the process. We knew about the process; we never went through it. But you actually had to get approval of the State legislature and have the Governor sign off on it. They did that before I became AG. I do not think they ever did that when I was there. I do not think they have done it since. Everyone has a different process, but usually the States will have to go through an RFP type process that can take months. Again, we already have a provision in here where they have to send notice to the CPSC for 60 days. So I would be surprised if you see the States want to stretch out this timeframe, because usually what they have done is they have found a dangerous product in their State, and they are trying to get rid of it. We have worked very hard to listen to everyone's concerns about the State AGs. We have tried to meet these concerns. We have tried to make sure the concerns are valid. We have tried to meet those and tried to make sure we can keep this bill bipartisan, and hopefully get the 50 votes on this bill as it is written right now. Mr. President, I suggest the absence of a quorum.

Mr. PRYOR. Mr. President, I suggest the absence of a quorum.

Mr. PRYOR. Mr. President, I thank the Senator from South Carolina for his gracious allotment of time and tell him how much I appreciate his spirit of cooperation and trying to come together and find as much common ground as we can on not just his amendment that is pending but other amendments and other matters. He has been a true gentleman in how he has conducted himself, and I appreciate that. I wish to say a few words about the DeMint amendment. Really, all the DeMint amendment does is it cedes us to the House version of the bill. It is significantly different. As I said before, the House, during their process, basically took about half, maybe a little more of the Senate committee bill and basically cut and pasted it into their legislation. So we have a little bit of, I guess you can say pride of authorship in the House version. There are a lot of good provisions in the bill. The House version is different in several material ways. I went through some of those before, but let me touch on about 8 or 10 more items right now. And I can do this very quickly. First, the Senate bill gives a financial responsibility in the sense that it requires, under certain circumstances, manufacturers to put funds in escrow or to get insurance in the event of a recall. It is not automatic, but it allows the CPSC to do that under cases that might warrant that action. The DeMint amendment takes that away. The Senate bill has a specific provision on portable gasoline containers and makes it clear that there will be a national standard. Again, the DeMint amendment takes that away. The Senate bill has several provisions on all-terrain vehicle safety. It sets a national standard. It sets all kinds of benchmarks that need to be met, and it makes the Federal law very clear about ATV safety standards in this country. Unfortunately, the DeMint amendment takes that away. The Senate bill also contains a garage door opener standard. We all know how dangerous garage door openers can be. They do not have to be. There is technology available. We set a national standard which is a good belt-and-suspenders type of standard. Again, we are talking about garage doors that have a track record of causing injury, in some cases death, not just to children but mostly to children. The DeMint amendment takes that standard away. The Senate bill also contains a provision on carbon monoxide poisoning, specifically with generators. Again, this has been a problem, not just with Katrina and Rita and other situations such as those but just generally for people who use these generators in various contexts. There has been a carbon monoxide poisoning problem. The Senate bill takes care of that problem. Unfortunately, the DeMint amendment takes that away. The completion of a cigarette lighter rulemaking is something that has been pending with the CPSC for quite some time. We clarify that there will be a national standard. We set that standard. We pretty much tell the CPSC what needs to happen with this issue. Unfortunately, the DeMint amendment takes that away. The last point I want to make--there are several other points I could make, but the last one I want to mention is under certain circumstances, the Senate bill provides for the destruction of imported products that violate our safety standards. This is important because if we do not destroy those products, somehow, some way, oftentimes they end up in the U.S. market even though they are not supposed to, but also we see the dumping of these products in Third World countries. If we do not take a principled stand on this issue, we are just going to be dumping our problems on other countries. Unfortunately, the DeMint amendment takes that away. I am certainly not critical of Senator DeMint or critical of the House. The House came together in a bipartisan way. The bottom line is, we just have a stronger bill in the Senate. It is a bill of which we can be proud. It is a bill people in our home States would love to see us pass. I tell you, most people in Arkansas, most people around the country in the other 49 States probably could not tell you what CPSC stands for, but they could tell you they want stronger and tougher protections when it comes to imported products. They want to make sure someone is watching to make sure the toys they buy for their children and grandchildren are safe. They want to make sure that someone in the Federal Government is watching to make sure products, such as lighters, are safe and products as simple as gasoline cans are safe and that when you use a portable generator, you do not get carbon monoxide poisoning. People in our country expect those kinds of standards, and that is exactly what the Senate bill does. It is good not just for the CPSC, but it is good for this country. As I have said before, we have several specific differences I have just articulated, differences between the House version and the DeMint amendment, which is basically the House version. The bottom line is, the Senate bill has more transparency, more enforcement, and more comprehensive reform. This bill is something of which we can all be proud. Not that we go home and brag to people in our home States about getting something right up here, but this will give every Senator in this Chamber an opportunity to go to their home State and talk about something good the Senate is doing for this country, something that is nonpolitical, something that is bipartisan, something that is good public policy, and that is the Senate bill. Again, the House bill is good. It is OK. It is an improvement over current law. I do not have any criticism of our House colleagues for doing what they did, I really do not, especially considering that about half of that bill is really the Senate committee bill. Regardless of that, I do not have any criticism of them, and I do not want anything I have said to be interpreted as criticism. But the Senate bill is stronger, it is better, it is more comprehensive, it is better for the American people, and I think it will, over time, lessen the amount of litigation, and I think over time you will see fewer recalls and you will see consumer confidence in products they buy go up. Overall, this is a very good bill for the people of this country. I encourage my colleagues to vote no on the DeMint amendment, and on final passage of the Senate bill, whenever that happens--tomorrow or the next day--I encourage all my colleagues to vote yes. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. PRYOR. Mr. President, I move to reconsider the vote and move to lay that motion on the table. The motion to lay on the table was agreed to. Change of Vote

Mr. PRYOR. Mr. President, I suggest the absence of a quorum.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that the Senate stand in recess until 2:15.

Mr. PRYOR

Mr. PRYOR. Mr. President, before my dear colleague from Florida leaves the floor, I would like to acknowledge his work on this legislation. He has been a real go-to guy on these toy issues. In fact, he had filed a bill--before we even filed our bill that became the committee bill, he filed a bill that basically--I don't want to say we took verbatim, but we took large pieces of it and all the concepts of it and incorporated his legislation, and it really became the bedrock piece of the committee bill, which has now been amended and substituted, and now it is the bipartisan bill the Senate is working on. So Senator Bill Nelson of Florida really deserves a lot of credit for helping to get the ball rolling and getting things moving in the right direction. In fact, we have so many colleagues who have helped in this process, and I will thank them more as the week goes on. But I think of Susan Collins of Maine, who came in probably, I don't know, several months ago--I don't remember exactly when--and she had a very important role. Of course, Senator Stevens really worked hard to make this bipartisan. Both of them are Republican cosponsors. Again, for all of the Senators who are listening, I would love to talk to more Republican Senators about maybe possibly becoming cosponsors in the next day or two because, as we saw from the vote tonight, this bill does have broad-based bipartisan support. I appreciate the effort all of our colleagues have done, but I did want to single out Senator Bill Nelson, who has been so instrumental in moving this forward. Mr. President, if there is no one else who is planning on speaking, I suggest the absence of a quorum.

Mr. PRYOR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. PRYOR. Mr. President, it looks as if we are at the close of our business today. Tomorrow, I look forward to returning to the consideration of S. 2663, the Consumer Product Safety Commission Reform Act.

Mr. PRYOR

Mr. PRYOR. I ask unanimous consent that the Senate proceed to a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. PRYOR. I suggest the absence of a quorum.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent, notwithstanding rule XXVI, paragraph 7, of the Standing Rules of the Senate and rule III of the Senate Budget Committee rules, that any member of the committee be permitted to vote by proxy, with the concurrence of the chair and ranking member of the committee, at the meeting of the Senate Budget Committee on March 6, 2008, and that any vote cast on behalf of that member by proxy in the Budget Committee on that date be treated by the committee as if that member were physically present but the proxy not count for the purposes of establishing a quorum present; and that if the Budget Committee orders reported a concurrent resolution on the budget for fiscal year 2009 on that date, such measure be deemed to have been ordered reported in compliance with rule XXVI, paragraph 7, of the Standing Rules of the Senate and the rules of the Senate Budget Committee.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. Res. 467 and the Senate proceed to its immediate consideration.

Mr. PRYOR. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed, the motions to reconsider be laid upon the table, with no intervening action or debate, and that any statements relating to the resolution be printed in the Record.

Mr. PRYOR

Mr. PRYOR. If there is no further business to come before the Senate, I ask unanimous consent it stand adjourned under the previous order.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 9:30 a.m., Wednesday, March 5; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and that the Senate proceed to a period of morning business for up to 1 hour, with Senators permitted to speak therein for up to 10 minutes each with the time equally divided and controlled between the two leaders or their designees, with the Republicans controlling the first half and the majority controlling the final half; further, I ask that following morning business the Senate resume consideration of S. 2663, a bill to reform the Consumer Product Safety Commission.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motions to reconsider be laid upon the table.

Mr. PRYOR. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 471, which was submitted earlier today.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table with no intervening action or debate, and any statements be printed in the Record.

Mr. PRYOR. Mr. President, I ask unanimous consent the Senate proceed to the immediate consideration of S. Res. 472 submitted earlier today by Senator Lieberman.

Mr. PRYOR

Mr. PRYOR. Mr. President, I ask unanimous consent that the Ad Hoc Subcommittee on Disaster Recovery and the Ad Hoc Subcommittee on State, Local, and Private Sector Preparedness and Integration of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on Tuesday, March 4, 2007, at 10 a.m. in order to conduct a joint hearing entitled, ``Is Housing Too Much To Hope For?: FEMA's Disaster Housing Strategy.''