DPC | October 23, 2007

Senate Oversight Highlights Week of October 1, 2007

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents…” — Woodrow Wilson

Congress has the Constitutional responsibility to perform oversight of the Executive Branch and matters of public interest. This report summarizes highlights from each week’s Senate oversight hearings. 

 

Tuesday, October 2, 2007: Senate Committee on Health, Education, Labor, and Pensions

“Current Mine Safety Disasters: Issues and Challenges”

• Witnesses testified that despite the previous owner’s concerns, Murray Energy Corp. went forward with its mining plans and allegedly failed to meet conditions that may have raised a red flag at the Mine Safety and Health Administration. 
   
• Witnesses testified that after the collapse, the Mine Safety and Health Administration made matters worse by allowing the owner of Murray Energy to become the public face of the rescue effort. 
   
• Witnesses explained that significant attention and resources must be devoted to developing advanced technology to locate and communicate with trapped miners. 

Tuesday, October 2, 2007: Senate Judiciary Committee

“Preserving the Rule of Law in the Fight Against Terrorism”

• A former high-ranking Justice Department official acknowledged that the Bush Administration’s extreme view of executive power has been counter-productive to combating terrorism. 

·Witnesses testified that the insular and secretive nature of the Bush Administration’s legal team resulted in imprudent and, in some cases, unsound legal opinions on dealing with terrorism that did not withstand legal scrutiny. 

• Witnesses testified that given the Administration’s apparent willingness to disregard legislative intent and hostility toward the Foreign Intelligence Surveillance Act court, Congress should be careful in drafting language to not authorize more authority than intended. 

Tuesday, October 3, 2007: Senate Committee on Banking, Housing, and Urban Affairs

“Combating Genocide in Darfur”

• Witnesses testified that economic sanctions have increased pressure on Sudan, but chaos, destruction, and war still exist in the region.
• Senators and Administration officials agreed that sanctions are an important tool in helping to bring peace to Darfur.
• Witnesses testified that combating the situation in Sudan requires targeted Sudan divestment, along with increased multilateral pressure, and combined assertive and robust diplomacy.

 

Wednesday, October 3, 2007: Senate Environment and Public Works Committee

“The Nuclear Regulatory Commission’s Reactor Oversight Process”

·Senator Carper spoke about the ability of the Nuclear Regulatory Commission to prevent and correct reactor problems. 

·Senator Sanders submitted testimony on the need to provide greater oversight of safety inspections at nuclear power plants. 

·The Government Accounting Office submitted a report on current safety inspections at nuclear reactors. 

 

Wednesday, October 3: Senate Committee on Foreign Relations

“Hearing on Burma’s SaffranRevolution”

• Senator Boxer asked about the Administration’s efforts to address the loophole in the current sanctions regime for Burma. 

·Senator Kerry pressed Mr. Marciel on the Administration’s efforts to address the urgent humanitarian situation in Burma. 

·Experts called for a more comprehensive strategy to effectively address the situation in Burma. 

 

Thursday, October 4: Senate Armed Services Committee

“Hearing to consider the following nominations:

Honorable John J. Young, Jr. to be Under Secretary of Defense for

Acquisition, Technology, and Logistics

Douglas A. Brook to be Assistant Secretary of the Navy for

Financial Management and Comptroller

Robert L. Smolen to be Deputy Administrator for Defense Programs,

National Nuclear Security Administration”

• Mr. Young discussed initiatives he would take to ensure sufficient acquisition planning and contract oversight in the Department of Defense. 
   
• Mr. Young discussed Pentagon plans to improve contracting oversight and accountability. 
   
• Robert Smolen pledged to move forward with efforts to modernize and reduce the size of the nuclear weapons complex.
   

Thursday October 4, 2007: Senate Committee on Commerce, Science, and Transportation

“The Security of Our Nation’s Ports”

 ·Coast Guard Rear Admiral Pekoske gave a status report on the implementation of the Safe Port Act. 

·U.S. Customs and Border Protection Commissioner Winkowskitestified on the government’s ability to scan containers for nuclear and radiological materials in seaports worldwide. 

·The Government Accounting Office provided its analysis on the implementation of the SAFE Port Act. 

 

Thursday, October 4, 2007: Senate Commerce, Science and Transportation Committee, Subcommittee on Consumer Affairs, Insurance, and Automotive Safety

“S. 2045, TheCPSC Reform Act of 2007”

·Witnesses explained that the Consumer Product Safety Commission Reform Act of 2007 is an effective bill for providing consumers with greater product safety. 

·Witnesses described the danger, especially to children, of lead in consumer products. 

·Witnesses testified that stronger penalties for violations and recall practices are needed to provide greater consumer product safety.
 

Witnesses explained that despite last year’s landmark mine safety legislation, the Crandall Canyon mine disaster sent a strong reminder that there is still work to be done to fully implement the reforms passed in the MineImprovement and New Emergency Response Actof 2006. 

SEN. KENNEDY: The tragedy at Crandall Canyonhas again put mine safety on front pages across the nation. Already this year, 24 men have been killed in the nation’s coal mines. Ineffective enforcement, outdated technology, and inadequate safety standards are the heart of the problem. After the terrible accident at the Sago mine last year, members of our Committee went to West Virginiato talk to miners and their families, and to the community… Republicans and Democrats [left with a commitment] to do all we could to correct the problems and prevent further tragedies. Senator Enzi, Senator Murray, Senator Isakson, Senator Rockefeller, Senator Byrd and I worked to pass the MINER Act [MineImprovement and New Emergency Response Act of 2006]–the most comprehensive mine safety reform in a generation. It required more emergency air supplies, more mine rescue teams, and faster adoption of cutting edge technology in the mines. That Act has made a difference. Senator Murray, our subcommittee chair, held an oversight hearing this spring which found that the legislation was making mines safer. 

…

JEFFREY KOHLER, ASSOCIATE DIRECTOR, MINE SAFETY AND HEALTH RESEARCH NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH: Under the legislative mandates provided in the MINER Act of 2006, current changes are underway, and represent the most significant improvement in mine safety in three decades. New communications and tracking technologies, Self Contained Self Rescuers (SCSRs), and refuge alternatives are being developed. New and more effective training programs, emergency procedures, and mine safety practices are being designed using innovative risk analysis and management systems. Any one of these alone would improve mine safety, but in combination the effect is expected to be great. The legislative mandates have created an unprecedented environment of partnership among labor, industry, and government. 

… 

SEN. KENNEDY (Taken from earlier in the hearing): But today, we find ourselves asking new questions about whether [the bill] did enough to make mining safe. For the sake of all miners, we need to understand what went wrong at CrandallCanyon. It is too early to expect these answers today, but at least we begin to ask the right questions– about the CrandallCanyon mine, about whether MSHA [Mine Safety and Health Administration] is effectively doing its job, about whether the Congress must do more… [W]e must also look at how decisions are made at the mine site after an accident takes place. In particular, we’re concerned about MSHA’s duty to manage information at mine rescue sites… Finally, our Committee continues to press the need for better technology to locate and communicate with miners in an emergency. The deaths at CrandallCanyon clearly show that miners are paying the price for this lapse in technology. It’s outrageous that the trapped miners could not be located. In the MINER Act, we sought to expedite the adoption of the latest technology. In this hearing we’ll discuss how we can do more and do it faster. 

Witnesses testified that despite previous owners’ concerns, Murray Energy Corp. went forward with mining plans and allegedly failed to meet conditions that may have raised a red flag at Mine Safety and Health Administration. 

DENNIS O’DELL, ADMINISTRATOR, HEALTH AND SAFETY, UNITED MINE WORKERS OF AMERICA: After completion of the final longwall panel the only remaining reserves were the “barrier pillars” and the mine’s main entry pillars. AndalexResources deemed this remaining coal crucial to maintaining the mine’s stability. In documents it filed with the Utah Division of Oil, Gas and Mining that company stated, “Although maximum recovery is a design criteria, other considerations must be looked at in the final analysis in the extraction of coal. These factors consider the insurance of protection of personnel and the environment. Solid barriers will be left to protect the main entries from the mined out panels and to guarantee stability of the main entries for the life of the mine.” Despite these expressed concerns of AndalexResources, email correspondence between the engineering firm of Agapito Associates, Inc. and Mr. Lane Adair of GENWAL Resources on August 9, 2006, indicated it had completed a preliminary review of the” ...proposed retreat mining sequence in the Main West Barriers... “This correspondence occurred on the same day that Murray Energy Corp. apparently became the “controller” of the operation. On December 10, 2006, Agapito President and Director, Michael Hardy, sent a letter to Mr. Adair after visiting the Mine to “...review the ground conditions of the room and pillar mining in the north pillar along Main West. Mr. Hardy determined that, “There was no indication of problematic pillar yielding or roof problems that might indicate higher-than-predicted abutment loads.”Beginning ten days later, December 20, 2006, Murray Energy’s subsidiary, UtahAmerican Energy, Inc. (hereafter referred to as “Murray Energy”) submitted several amendments to the roof control plan to develop entries into the north barrier, Main West; it sought to remove pillars from those entries during retreat mining operations after the entries were developed. MSHA, District Nine Office in Denver, Colorado approved each of these plans. 

In early March 2007, the Crandall Canyon Mine experienced a large “mountain bump” while pillar extraction was being conducted in the north barrier. The bump was so severe that Murray Energy abandoned its plans to develop the remaining north panel (consisting of approximately 54 pillars), and sealed the area. While it is unclear if Crandall Canyon Mine management officially notified MSHA of this event, the resulting seal plan that had to be submitted to the Agency should have at least raised questions about why the operator was abandoning that large area of the mine. It will be interesting to see whether MSHA will decide that the mountain bump of March 2007 was “reportable” under existing law; if that comes back negative, then we should consider what changes are needed to ensure that future events of that magnitude are considered by MSHA when it reviews a mine’s operating plans. 

Before the large “mountain bump” in early March, Murray Energy had submitted plans to develop the south barrier of Main West. On March 8, 2007, MSHA approved a request by mine management to pillar the area. Pillar extraction continued until August 6, 2007, at which time the retreat mining was almost due south of the area where the bump had caused the operator to abandon the north barrier section. At that time, a catastrophic “mountain bump” trapped the six miners in the working section. The force of the bump registered approximately 3.9 on the richterscale at the University of Utah Seismic Stations. 

… From all that we have seen, we believe that plans to perform pillar development and extraction of the barrier pillars at the Crandall Canyon Mine should never have been submitted. Further, and perhaps more importantly, MSHA is charged with protecting miners’ health and safety, and should never have approved such a request.

 Witnesses testified that after the collapse, Mine Safety and Health Administration made matters worse by allowing the owner of Murray Energy Corp. to become the public face of the rescue effort. 

ROBERT FERRITER, DIRECTOR, MINE SAFETY AND HEALTH PROGRAM, COLORADOSCHOOL OF MINES: On the morning of August 6, 2007, the company reported to the news media that a seismic event, or earthquake, caused a major underground mine collapse at the Crandall Canyon Mine located in Carbon Countynear Huntington, Utah. These reports were immediately challenged by various mining experts who had studied the coal mine bump phenomena in the Wasatch Plateau and Book Cliff coal fields in east-central Utah. By Tuesday, August 7, 2007, the very next day, seismologists and the U.S. Geological Survey’s National Earthquake Center in Golden, Colorado established that the August 6, 2007 event recorded on various seismographs throughout the West was indeed an implosion, or mine collapse located at the Crandall Canyon Mine. There is no debate among professionals that this was a mining-induced seismic event (coal mine bump).

… 

MR. O’DELL: Section seven of the MINER Actstates that MSHA “shall serve as the primary communicator with the operator, miners’ families, the press and the public.” Nevertheless, in Utah, it appeared as though MSHA surrendered its role as chief communicator. As a result, a great deal of inaccurate and misleading statements and information went over the airwaves. The effect was that millions of Americans were given incorrect and misleading information right from the start of this disaster, and MSHA allowed it to happen. Here are some examples: … Time and time again Mr. Murray emphatically stated that he knew exactly where the trapped miners were. Yet eight weeks and many boreholes later he still has not been able to locate the miners. Mr. Murray also strenuously objected to reports that miners were performing a final method of mining referred to by the media as “retreat mining.” Again, he was not giving true information: from the approved mining plan it is evident that this mine was in the process of “pulling pillars,” which is a particular type of retreat mining… Mr. Murray stated that he had not had any major accidents at any of his mines prior to this. The truth is that four miners have been killed at Mr. Murray’s mines… 

More than a violation of protocol, Mine Safety and Health Administration’s apparent ceding of control to the mine owner may have risked lives. 

MR. O’DELL: Mr. Murray claimed that the mine was perfectly safe when he invited non-essential personnel from the media and families to tour the underground rescue work. However, not only did they experience a “bump” while they were underground, but it was in the same vicinity where nine rescuers were injured and three killed just days later.

… 

MR. FERRITER: The message conveyed to the public was “it’s Robert Murray’s mine, he’s in charge and can do whatever he thinks is right.” MSHA was not the primary communicator the first couple of days, allowing for a poor public image. [Moreover, MSHA allowed] [f]ive reporters, including CNN … underground while the rescue was taking place. While the videos were informational, the video and photos did not in any way aid the rescue effort. In fact, another bump occurred while the reporters were underground. If one of the crew had been injured, MSHA would have had another disaster to deal with. Other non-involved mines in the Price, Utaharea probably would have allowed visits for informational purposes if asked by MSHA… 

Witnesses explained that significant attention and resources must be devoted to developing advanced technology to locate and communicate with trapped miners. 

JEFFREY KOHLER, ASSOCIATE DIRECTOR, MINE SAFETY AND HEALTH RESEARCH NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH: [I]n communications and tracking technologies in emergencies, we face fundamental limitations in both types of systems - wired and wireless - that are used for transmitting voices or signals over long distances or through the earth. Signals sent by wireless systems, such as radio signals, are blocked by rock and other barriers. This poses a basic hurdle, whether the intent is communication from above ground to trapped miners hundreds or thousands of feet below, or communication from the mine opening into a tunnel that has been blocked by rock after an explosion or a mine collapse. Wired transmissions depend on signals sent along wires and cables. Wires and cables are susceptible to being snapped or damaged beyond use in an explosion or a crushing roof collapse. The breaks or damage may occur at locations that are not readily accessible. To engage such challenges, we have had to apply a mix of scientific know-how and creativity, our close working knowledge of the underground mine environment, and persistence in working through the technical questions that always come up in scientific studies.

… 

Bruce Watzman, Vice President, Safety and Health National Mining Association: Atpresent, there is simply no available single system that can withstand all potential scenarios while maintaining minewidecommunications. Despite these daunting technological challenges, the industry is not sitting idly by until a reliable system reaches acceptable functionality under all circumstances. Today one member of NMA [National Mining Association], Alliance Coal, has developed one of several systems that use radio frequency identification (RFID) tags and bidirectional readers to track miner’s movement throughout the mine pre-event. This is an improvement over earlier systems and is considered state-of-the-art. Yet, it too is susceptible to damage by destructive forces that will affect its functionality. The system currently requires a connective through the- mine fiber optic cable that is vulnerable to damage and could potentially render the system useless. 

NMA [National Mining Association] member companies recently conducted tests of communication technology being developed primarily for Department of Defense use. The results indicate that improved communication systems are possible. The Kutta system, a subterranean wireless communication system having the ability to couple onto and transmit radio signals using the existing metallic infrastructure in the mines, including metal core lifelines, phone cables, tracks, etc. holds great promise. Its ability to interface with a mine… leaky feeder communication system has the potential to integrate an analog and digital handheld multi-frequency radio and complementary repeaters to overcome traditional barriers to enhanced wireless communication.

Obviously there are other improvements in communication that can be achieved. Our concern is not that additional communication requirements will be mandated, nor is it the cost of communication systems. Rather, it is that realistic expectations of what is technologically achievable drive whatever requirements become the industry practice. Working with researchers at the National Institute for Occupational Safety and Health (NIOSH) we continue to approach this issue through sound science and realistic timeframes for implementation. In sum, there is no silver bullet technology yet available. True “through-the-earth” wireless technology does not yet exist. Until we overcome the technical barriers that preclude transmission of signals through the earth, the systems will require some form of underground backbone and infrastructure, which are susceptible to damage. 

A former high-ranking Justice Department official acknowledged that the Bush Administration’s extreme view of executive power has been counter-productive to combating terrorism. 

SEN. LEAHY: … [S]ecrecy, insularity and unilateralism have become the hallmark of this Administration's dealings with Congress, their allies and with the wider world. 

And we've begun to see the great cost this has exacted on American values and constitutional principles and our standing as we pursue our national interests around the world. 

We see it in a system of detention that, rather than being above reproach and an example to the world, has lost credibility with our allies. And, worse than that, it has become a powerful rhetorical tool for our enemies. 

We see it in the terrible abuses at Abu Ghraib, which stained us as a country and which were a direct results of a lack of clarity and restraint in the rules about interrogation. And no matter what we do now to correct it, those pictures will be used against the United States by the people who do not support us for years and years to come. 

We see it in a President who chose to violate a surveillance law, rather than come to Congress to get it changed, sewing seeds of distrust and suspicion for himself and, no doubt, for many presidents to come. We see it in the President's cavalier use of his pardon power to override a jury verdict to convict a top White House aide of lying to a grand jury and the FBI. 

We see it in the White House's efforts to corrupt federal law enforcement by the unprecedented mass firing of U.S. Attorneys, who this President had appointed, in order to install cronies and loyalists. And we see it generally in the deplorable lack of respect for the liberty of Americans. 

… 

Just a couple things occurred to me. There's a small group of lawyers, as you said, responsible for crafting a legal policy for terrorism. And if I've got it right, that's David Addington, Alberto Gonzales, John and you.

You've characterized them as having an extreme view of executive power. They believe the President's Commander-in-Chief authority allows him to do whatever necessary to protect the country in an emergency; that we've been in a state of emergency since 9-11.

…

Have I described their view correctly?

…

JACK GOLDSMITH, FORMER LEGAL COUNSEL FOR THE DEPARTMENT OF JUSTICE : Yes.

…

SEN. LEAHY: What effect does asserting this kind of extreme authority have on the President's terrorism policies? Overall, does it help or hurt them?

MR. GOLDSMITH: As I explain in my book at length, I think it's been, on the whole, hurtful.

Witnesses testified that the insular and secretive nature of the Bush Administration’s legal team resulted in imprudent and, in some cases, unsound legal opinions on dealing with terrorism that did not withstand legal scrutiny.

SEN. LEAHY: Now, you write about the extraordinary secrecy with which the Administration treated legal opinions related to terrorism…. Why the extreme secrecy? In other words, the person who has to make the legal determination for the NSA [National Security Agency], whether they could do it, is told, "Yes, you can do it, because it's legal. But we're not going to tell you why."

MR. GOLDSMITH: So the question is, "Why the extreme secrecy?"

Well, there are two possible explanations. One possible explanation is that the reason for the secrecy was to make sure that the information did not leak to the public. The second possible explanation was that they did not want the legal analysis scrutinized by anyone, even inside the executive branch.

And with regard to a lot of the secrecy with some of the issues, I wasn't sure which of the two interpretations was correct, but I think it can only be the latter: That they just didn't want the opinion scrutinized with regard to the TSP matter.

SEN. LEAHY: Was that because they didn't think they would stand up to legal scrutiny?

MR. GOLDSMITH: I don't know.

SEN. LEAHY: Did it have a negative effect on the quality of the legal advice the Administration was getting?

MR. GOLDSMITH: There's no doubt that the extreme secrecy, not getting feedback from experts and not showing it to experts and not getting a variety of views, even inside the executive branch, led to a lot of mistakes.

SEN. LEAHY: Is it fair to say that, in your opinion, the warrantlesswiretapping program, or at least significant parts of it, were either illegal or without a legal basis?

…

MR. GOLDSMITH: As I say in my book, in my opinion, it was a legal mess. It was the biggest legal mess I've ever encountered. …there were certain aspects of programs related to the TSP [Telecommunications Service Priority] that I could not find a legal support for.

SEN. LEAHY: Well, did you make others in the Justice Department or the White House aware of your views; that you did not find these aspects legal?

MR. GOLDSMITH: Yes, sir. …The senior leadership in the department agreed with me. And the White House didn't.

Witnesses testified that the former Justice Department Counsel conceded that given the Administration’s apparent willingness to disregard legislative intent and hostility toward the Foreign Intelligence Surveillance Act court, Congress should be careful in drafting surveillance law language to not grant more authority than intended.

SEN. FEINGOLD: The experiences you recount in your book suggest if we write a statute in a way that grants more authority than we intend, it's quite possible that, at some point, the law will be read in its broadest form.

Do you agree that this is something Congress should take into account when drafting statutes in this area?

MR. GOLDSMITH: … Congress should worry about and consider and take into account how the executive branch interprets the laws it passes, the answer is: Absolutely, yes, you should, because, presumably, you hope to achieve certain things and you'd like to know how the language that you enact is going to be interpreted and enforced, and, so, yes.

SEN. FEINGOLD: And even though you may not have endorsed the notion of trying to find any justification, I take it your experience is that there was a fair bit of that going on in parts of the Administration that you witnessed, correct?

MR. GOLDSMITH: There was certainly pressure to go as far as the law would require.

…

SEN. FEINGOLD: Let me ask you about another aspect of your book. You recount in your book a meeting in February of 2004 at the White House, where Vice President Cheney's Counsel, David Addington, stated, quote, "We're one bomb away from getting rid of that obnoxious court," unquote, referring to the FISA [Foreign Intelligence Surveillance Act] court. What was your reaction when he said that?

MR. GOLDSMITH: Believe it or not, I didn't have much of a reaction, because I had heard things like that before.

…

There was a hostility to the FISA court and to the FISA mechanism.

Wednesday, October 3, 2007: Senate Committee on Banking
“Combating Genocide in Darfur: The Role of Divestment and Other Policy Tools”

Witnesses testified that economic sanctions have increased pressure on Sudan, but chaos, destruction, and war still exist in the region.

SEN. DODD: I want to thank Senators Menendez, Casey and Brown for agreeing to share the gavel during this important hearing, of vital interest to Americans concerned about the ongoing genocide in Darfur and the unspeakable suffering of millions of innocent men, women and children there.…Today we will consider a broad range of policy tools, including divestment, a federal contracting and procurement ban, and other broadened sanctions against the government of Sudan and those who support it, either actively or indirectly. 

… 

Let me be clear. Divestment is but one part of a much broader strategy on Sudan, which must include using every tool at our disposal – diplomatic, economic, and financial; individually and collectively through the UN [United Nations], the AU [African Union], and others – to bring an end to the violence in Darfur. That means tough, robust diplomacy which includes targeted sanctions beyond those already in place. Divestment can be a critical tool to bring to bear economic pressure from millions of investors in a campaign to make clear to the Sudanese regime that American citizens will not tolerate its behavior, and will actively withdraw their hard-earned savings from enterprises that do business with that government. For many, the model is the sustained economic pressure brought to bear, ultimately successfully, on the repressive government in South Africa to end apartheid. 

… 

SEN. BROWNBACK: President Bush implemented additional sanctions as a way of increasing that pressure despite slow diplomatic progress. I, and many of my colleagues, applauded those sanctions as sending a strong signal that the U.S. will pursue even unilateral measures as a way to create pressure to end the violence. Of course, we all agree that the best way to confront this tragedy is through tough multilateral diplomacy, but we cannot remain captive to the slow timetable of the Bashir regime and allied countries that prolong the suffering through self-interest and indifference. At the same time, the Administration, Congress, and all of us can do more. 

[T]he rest of us must not hesitate to adopt legitimate measures that could have an impact on shortening the genocide and saving lives. One such measure is targeted divestment. The essence of this approach is that while we have taken the pledge to the people of Darfurof ‘‘not on our watch.’’ we must also take the pledge of ‘‘not on our dime.’’ 

… 

SEN. DURBIN: The people of Sudan have suffered drought, famine, genocide, and now utter chaos. The United States has talked for years about putting a stop to it. Yet the crisis continues. We must act, and we must act now. 

It was over two years ago when President Bush rightly called what was happening inSudanby its proper name: genocide. Yet the United States and our allies have not done enough to help stop it, and Sudancontinues to disintegrate. 

… 

Whatever economic pressure we apply, the purpose needs to be clear: the U.S.wants to help bring peace to the region. And we need to apply this pressure with one voice. This chamber, this Congress, and this country will not stand by and watch as chaos and destruction destroy the people of the Sudan. 

Senators and Administration officials agreed that sanctions are an important tool in helping to bring peace to Darfur.

SEN. CASEY: [T]here is some common ground here in the sense that we all agree that sanctions and economic pressure and other kinds of pressure do work. And you’re seeing some results from that… When you juxtapose [your] statements and that agreement… next to the basic provisions of the Senate Bill… Senator Durbin’s legislation…:require the Administration to create a list of companies supporting the Sudanese regime. Require companies supporting the regime to report to the SEC [Securities and Exchange Commission]. Require the Administration to report on the impact thus far of current economic sanctions. Increasing civil and criminal penalties for sanctions violators. Studying how the federal employee Thrift Savings Plan can create a Terror-Free Investment Fund…My point is that a lot of what’s in this legislation contains requirements that the federal government does everyday of the week. 

…

JENDAYI E. FRAZER, ASSISTANT SECRETARY FOR AFRICAN AFFAIRS, DEPARTMENTOF STATE: I will just say that I support reporting on the impact of current sanctions that’s in the bill now because I think that report will tell you how effective we have been. The enforcement has gone up significantly particularly since May 29th, and how those sanctions are choking this government. So I support that part of the bill. 

… 

ELIZABETH L. DIBBLE, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR INTERNATIONAL FINANCE AND DEVELOPMENT, DEPARTMENT OF STATE: [W]e want to be able to continue to ratchet up and have the flexibility to apply pressure where we see it is needed at a particular time. I think the evidence since May, when the new sanctions were announced, we have gotten the attention of the government of Sudan. I think the existing sanctions aren’t working, I realize there is frustration and there’s frustration on our part as well that the situation in Darfur is continuing. But we do feel that we are moving in the right direction. Perhaps not as fast as either you or we would like to move. But we feel we do have the tools we need right now to continue to maintain that pressure. 

Witnesses testified that combating the situation in Sudanrequires targeted Sudandivestment, along with increased multilateral pressure, and combined, assertive, and robust diplomacy.

BENNETT FREEMAN, SENIOR VICE PRESIDENT FOR SOCIAL RESEARCH AND POLICY, CALVERT INVESTMENT: Targeted divestment is a well-crafted, well-timed tool that combines economic with political pressure. At the same time, it enables citizens and governments at all levels, together with corporations and their investors, to make a vital difference. Moreover, it is the right of investors to ensure that their investments do not support genocide and do support peace and security in Sudan. Investment decisions matter, and what matters most now is bringing the conflict and abuses to an end by using all the tools at our disposal to save the people of Darfur. 

JOHN PRENDERGAST, CO-CHAIR, ENOUGH PROJECT: One of the most effective tools that one can have in the executive branch … diplomat… working on the peace process is to have the legislative branch behind you, threatening to implement serious measures represented in this divestment bill. These measures provide leverage for our negotiators in Tripoli and our efforts to get that hybrid force on the ground ASAP. And the concentrates the minds of those at the negotiation table and those around the negotiation table, like those coming and visiting from Beijing. It sends the message that gone are the days that there will be no consequences, as Senator Menendez said during his opening remarks, for committing genocide and crimes against humanity. That will, indeed, have an impact.

 
Wednesday, October 3, 2007: Senate Environment and Public Works Committee
“The Nuclear Regulatory Commission’s Reactor Oversight Process”

Senator Carper spoke about the ability of the Nuclear Regulatory Commission to prevent and correct reactor problems.

SEN. CARPER: The Reactor Oversight Process is the cornerstone of the Nuclear Regulator Commissions (NRC) reactor safety program, and today we are going to discuss its effectiveness.

The Reactor Oversight Process was developed to provide a more predictable and consistent regulatory framework for the nuclear industry. At the same time it is intended to give the public a more understandable and accessible assessment of plant performance.

I believe the Reactor Oversight Process has fulfilled these two objectives. Having said that, I want to discuss a third aspect of NRC’s mission - prevention and correction of problems.

NRC’s “Action Matrix” categorizes individual reactors according to their performance. If a plant’s performance degrades the NRC increases its inspections.

The NRC has identified seven key processes – or “cornerstones” – that are necessary for safe operation of a plant. There are currently ten reactors in NRC’s column three – the “Degraded Cornerstone Column.”There is also currently one reactor in column four the “Repetitive Degraded Cornerstone Column.”

This means eleven reactors are having significant problems in areas of their plant that are deemed to be necessary for safe operation.

 

Senator Sanders submitted testimony on the need to provide greater oversight of safety inspections at nuclear power plants.

SEN. SANDERS: According to the September 2006 GAO [Government Accountability Office] report on Nuclear Oversight, from 2001 to 2005 NRC issued five red findings, the worst kind, and seven yellow findings, which are just below red in terms of seriousness of the violation. The red findings involved steam generator tube failure, auxiliary feedwater pump problems and the infamous Davis-Besse frightening football-sized hole in the reactor vessel head caused by acid corrosion.

Problems happen and things fall apart when nuclear plants, and people, for that matter, get old. And when plants try to increase their power rating that puts more stress on already aging nuclear plants. Some nuclear plants may be seeking a 20-year license extension. And some may be seeking both a power uprate and a license extension. With all of this, people are rightly concerned.

Given these circumstances, I have introduced S.1008. I mentioned this bill in my comments at the last hearing we held in April, but with the recent problems at Vermont Yankee, including a cooling tower collapse, seen here, I believe it bears repeating.

S.1008 allows a state’s Governor or public utility commission to request an Independent Safety Assessment, if they have a nuclear plant in their state. If a state is in the emergency planning zone for a nuclear plant in the state next door, they certainly have an interest in these issues as well and that is why my legislation would allow them to make the same request. For example, there are towns in the states of New Hampshire and Massachusetts that are within the emergency planning zone for the nuclear plant in Vermontand, under my legislation, those states would be allowed to request an Independent Safety Assessment.

The Government Accounting Office submitted a report on current safety inspections at nuclear reactors.

MARK E. GAFFIGAN, ACTING DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE: From 2001 through 2005, the Reactor Oversight Process (ROP) identified performance deficiencies through more than 4,000 inspection findings at nuclear power facilities. Ninety-seven percent of these findings were designated green—very low risk to safe facility operations, but important to correct. Two percent (86) were white findings that were considered to be of low to moderate risk significance. Twelve findings were of the highest levels of risk significance—seven yellow and five red. More recently, from January 2006 through June 2007, NRC identified an additional 1,174 green findings, 27 white findings, one yellow finding, and no red findings. 

NRC also reviews performance indicators data—used to monitor different aspects of operational safety—that facility operators report to categorize the level of reactor unit performance for each indicator. From 2001 through June 2007, NRC reported that less than one percent of over 39,000 indicator reports exceeded acceptable performance thresholds and nearly half of all reactor units have never had a performance indicator fall outside of the acceptable level. Through June 2007, three of the 16 performance indicators have always been reported to be within acceptable performance levels—measuring the amount of time that the residual heat removal safety system is unavailable, monitoring the integrity of a radiation barrier, and monitoring radiological releases. Since 2001, three reactor units have reported a yellow indicator for one performance indicator. No red indicators have ever been reported. 

Senator Boxer asked about the Administration’s efforts to address the loophole in the current sanctions regime for Burma. 

SEN. BOXER: During his address to the U.N. General Assembly last week, the President made a very good, strong statement about the situation in Burma and he rightly stated that the American people were horrified by it and are horrified by it. And he made a strong statement further about tightening sanctions. He didn’t seem to address the loophole that’s in the bill, which I think requires tightening, which allows American companies to continue to do business in Burma. Now, it’s all well and good for everyone to say the sanctions have to be multilateral. We agree. But if we still have big loophole, I think that gives us a little bit of a lower moral ground. So, for example, the Chevron Corporation is one such company that continues to do business in Burma as part of the Yadana Offshore Gas Project, the natural gas field that provides $400 million to $600 million in revenues to the Burmese junta – $400 million to $600 million every year to the junta. 

…Have you discussed this with the President? Is there a way that we could join together, the legislative executive branch to tighten up this loophole? Because it seems to me it sends a mixed message on our commitment if we have such a giant loophole and Chevron. I don’t mean to pick on them they just happen to be doing business before the sanctions went into play. But they are, in essence, providing so much; hundreds of millions of dollars to the government every year. Could you respond to that? 

MR. SCOT MARCIEL, DEPUTY ASSISTANT SECRETARY, BUREAU OF EAST ASIAN AND PACIFIC AFFAIRS, DEPARTMENT OF STATE: Sure, Senator. Chevron, as you know, it’s investment or presence in Burma was grandfathered in... 

SEN. BOXER: I understand. 

MR. MARCIEL: ...under the 1997 law. What I would say is,we’re looking at everything, to be perfectly honest. 

Senator Kerry pressed Mr. Marciel on the Administration’s efforts to address the urgent humanitarian situation in Burma.

SEN. KERRY: hate to say it, but what I hear is kind of a slow walk diplomatic policy for a rather urgent humanitarian situation. Can you tell me, specifically, what the Administration is doing to get the Gambarimission on track? 

MR. MARCIEL: Well, I mean now, of course, Gambari, as you said, has visited and has already left Burmaand is on his way back to New York. 

SEN. KERRY: But he has an ongoing mission. He’s been... 

MR. MARCIEL: He has an ongoing... 

SEN. KERRY: ...appointed by the secretary general to be the mediator. 

MR. MARCIEL: You’re right. 

SEN. KERRY: What are we doing to further that mediation? 

MR. MARCIEL: We have been pushing every country that has any involvement in this at all very hard to support his mission and urging all countries to unify in support... 

SEN. KERRY: What are we doing to leverage that? I mean, what are we doing to leverage that? As far as I can tell, the only public statements I’ve seen are the president at the U.N. and the Secretary at the U.N. last week. Where were the President and the Secretary of State and Chris Hill yesterday and the day before yesterday and on the weekend, when people’s lives are at risk? Where are they? 

MR. MARCIEL: Well, I’ll tell you, Senator, they have been very active on this issue. 

SEN. KERRY: Well, we haven’t heard anything, and we certainly haven’t seen anything. 

The U.N. is not doing enough; the crisis in Burmaneeds to be made a higher priority.

SEN. BOXER: In terms of the United Nations, which is, obviously, where all eyes are, what are they going to say, what are they going to do, how aggressive are they going to be, do you think Secretary Ban Ki-moon has done enough so far? Do you think that it would be worthwhile having him do more? What’s your sense of it? 

TOM MALINOWSKI, WASHINGTON ADVOCACY DIRECTOR, HUMAN RIGHTS WATCH: Well, I think the answer is no. He has not done enough. The U.N. had to be prodded a bit too much into getting its act somewhat together last week by sending Mr. Gambari. The Secretary General issued some fairly tepid statements about Burmaas this crisis was beginning. Mr. Gambari was fairly tepid, as well, as you know. I think this is an issue that demands much higher level, much higher priority attention. I think it would probably be a good thing for the Secretary General to go. Let’s hear what Mr. Gambarisays. If all he says to the Security Council when he briefs them on Friday is,“Let’s just have more trips. It was great that I went. Isn’t that a sign of great progress,” that would be a signal to me that we need a fundamental change in approach. 

Experts called for a more comprehensive strategy to effectively address the situation in Burma.

MR. AUNG DIN, CO-FOUNDER OF U.S. CAMPAIGN FOR BURMA: The international community must hold the military junta of Burmaaccountable for these crimes against humanity and must take effective and collective action. The international community should not let this murderous regime get away with the serial killings… what we asking you is collective and effective action from the U.N. Security Council, a binding resolution, instructing the military junta of Burma to stop killing and arresting protesters, to treat all detainees humanely and provide them proper medical care, release all political detainees, including AungSan Suu Kyi, and engage in a meaningful political dialogue with democracy forces and ethnic minority leaders for the sake of national reconciliation and a transition to democracy and civilian rule.

We also want the U.N. Security Council to impose targeted sanctions against the military junta, which includes an arms embargo, (inaudible) of the top generals and their family members, any (inaudible) investment, and threaten them (inaudible) with stronger sanctions if it fails to fulfill the instructions of the Security Council. We all know that Chinaand Russiamight still exercise their veto powers to kill such a resolution. However, we, the people (inaudible) really want the United States, in consolidation with the United Kingdom and France and other like-minded members to table a resolution at the Security Council as soon as possible. As the people of Burmacourageously challenge a brutal junta, we want the U.S.and democratic countries to challenge Chinaand Russiaat the Security Council. We might fail, but we will surely win.

… 

MICHAEL GREEN, SENIOR ADVISOR, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES: What concerns me is what many of the members were discussing, and that is that we will fall back into complacency; settle for a hollow process as we often have in the past. And I think that we need to galvanize the international community, as several of the members of the committee have said. The United Stateshas to lead on this. The solution is going to lie largely within Asian. But the leadership is going to have to come from Washington. I would argue, first, that while sanctions in and of themselves have not changed the behavior of the regime, they’re absolutely indispensable. The President announced new targeted financial sanctions, which I think are critical to our overall strategy, first, because the democracy movement wants them; they know we’re doing them. This is giving them the moral support and encouragement they need to win this battle in the streets. Secondly, sanctions– these targeted financial sanctions are much more sophisticated than they used to be. They sting and they complicate those who try to do business with the elite and will get international. 

Now, I think we also have to push harder on the Security Council for a resolution. The Administration has been hesitant because it, to date, does not want to provoke a Chinese or Russian veto that would give encouragement to the junta. I think we’re beyond that. I think we need to force Chinaand Russiato put their cards on the table. I would push for an arms embargo, as well. Ultimately, Chinaand Indiawill not agree to American-style sanctions. But we know, from North Korea, that they’ll turn the oil off for three days, they’ll cut off critical shipments; they can express their displeasures in ways that are hard to miss. And, finally, I think we need to organize the diplomacy in a more deliberate and almost formal way. We need senior officials, perhaps even a special envoy, not to go talk to the regime, but to go talk to India,Chinaon behalf of the president and the Congress – begin pulling this together. And we need to agree to a common set of benchmarks to move this loose change and rhetoric toward something of a concrete set of steps, beginning with the release Aung San Suu Kyi and a transparent and inclusive process. 

John Young described the problem of cost overruns for Defense acquisition programs,and his intentions to improve program management.

SEN. LEVIN: [W]e’ve got a large number of major Defense acquisition programs that have exceeded their cost estimates by significant amounts. In January of this year, it was reported that, of the 25 Defense acquisition programs that did exceed their estimate by that amount, that eight were in the Army, eight in the Navy, nine in the Air Force. Another six have exceeded their critical cost growth threshold since then. Why is it, do you think, that so many of our programs are so far over budget?

MR. YOUNG: I believe, sir, there are unfortunately a number of factors. One, our budget process seeks to make, in some cases, optimistic estimates about what it will cost to develop a system, how much time it will take to deliver that system. And then we frequently set the requirements bar optimistically high, in hopes that the technology will come in a timely way to meet that requirement. When all those forces collide, you end up with an optimistic schedule, excessive requirements and not enough funding. You then – you get in a spiral, where the programs take longer, cost significantly more. The decisions you make along the way are suboptimal. And it would be my hope to do a much better job of structuring programs to realistic requirements, realistic schedules, and as realistic a possible estimate of the budget it will take to do that, and then manage those carefully.

Mr. Young discussed initiatives he would take to ensure sufficient acquisition planning and contract oversight in the Department of Defense.

SEN. LEVIN: [T]he DOD I.G. [Department of Defense Inspector General] and the Government Accountability Office [GAO] have reported that the department consistently fails to conduct required acquisition planning and contract oversight functions for its services contracts. And so, the GAO now is reporting that the department is, quote, ill-positioned to determine whether it is getting what it pays for under these services contracts. Can you tell us what steps you think you might be able to take when confirmed, to ensure that the taxpayers are getting the money’s worth that they deserve from the $100 billion plus that the department spends every year on contracting for services?

MR. YOUNG: Yes, Mr. Chairman. As I think your – there are efforts underway now to develop a consistent set of policies across the department for acquiring services, and to coordinate the purchase of those procurements between the services, and then, wherever possible, use competition as the driving force to help improve the value we get. And then we have to take steps to increase, as you’ve said, our oversight of those contracts. I will push in all of those areas to improve our acquisition of services.

Mr. Young discussed Pentagon plans to improve contracting oversight and accountability.

SEN. MCCASKILL: How do we instill in military training some kind of sense of responsibility for oversight on contracting?…I would appreciate you and Secretary Gates, to the extent that you could have a conversation with him about this, talk about what we need to do in terms of training. Because we’re not going to go backwards, I can’t believe, because we don’t have the ground strength to do it. If we ever have another contingency like this, and if we are ever in another conflict like this, I think we’re going to continue to contract.

MR. YOUNG: I want to assure you that this is very high on Secretary Gates’ list, near the top of Secretary England’s list. I participated in a meeting with him on this issue yesterday. And I participated earlier this week in a meeting with Secretary Geren, the Army secretary, on this. I do think you’ll see the Army seek to move some steps back. We’re trying to understand the issue. …The recent issues are going to refocus the Department’s attention at the most senior levels, including mine, on this issue. And I believe it will include training. It will probably include people. And it will include changes to our processes.

Senator McCaskill called for ensuring financial accountability in Department of Defense contracting.

SEN. MCCASKILL: One of the things I’ve struggled with since I began trying to track financial accountability within the Department of Defense, is figuring out who to blame. It’s really hard to figure out who to blame when something goes terribly wrong and taxpayer money is wasted at unprecedented levels, because of the way this whole thing is set up. And Mr. Young, what I would ask you is, who should be blamed? And if you’re aware, I would love to hear, has there ever been, that you know of, any military commander who has lost a promotion, or who has been demoted, or anyone who has been fired for failure to oversee a contract appropriately, or failure to definitize a contract appropriately, or failure to track the monitoring of a contract appropriately? Since you’ve been at the Department of Defense, are you aware of anyone who has ever been demoted or denied a promotion or fired over their failure to hold the people in that department and in the military accountable for the way they spend money?

Robert Smolenpledged to move forward with efforts to modernize and reduce the size of the nuclear weapons complex.

SEN. LEVIN: There’s been some criticism of the approach that the National Nuclear Security Administration has taken to efforts so far, to efforts to modernize and reduce the size of the nuclear weapons complex. Much of the criticisms revolved around the fact that the NNSA [National Nuclear Security Administration] is not closing and consolidating any of the production sites. As the modernization process moves forward, will you look carefully at opportunities to close and consolidate production sites, if appropriate?

MR. SMOLEN: Absolutely.

…

SEN. LEVIN: [W]hat will you do to make sure that there’s a balancing of the research on the Reliable Replacement Warhead with the carrying out of the life extension program?

MR. SMOLEN: Sir, I believe the Reliable Replacement Warhead provides great promise for the future as an alternative for us. We still need to do some study before we can make final determinations on how effective that will be. In the absence of knowing that, we certainly must proceed with the life extension programs to continue to maintain the stockpile as credibly as we possibly can. With regard to the facilities, certainly, I will absolutely take a close look at all of our facilities. There have been numerous studies, as you know, sir, and I have been reviewing those studies. And I hope to confer with colleagues, if confirmed, to understand all of that much better. I think there may, in fact, be good opportunity for consolidation. But at this time, I still need to know much more about what our options are before I could commit to any specific actions. 

Coast Guard Rear Admiral Pekoske gave a status report on the implementation of the Safe Port Act. 

REAR ADMIRAL DAVID PEKOSKE, ASSISTANT COMMANDANT FOR OPERATIONS, UNITED STATES COAST GUARD: We have had many successes to date in meeting the requirements of the SAFE Port Act, including requirements involving the inclusion of Salvage Response Plans in Area Maritime Transportation Security Plans, Unannounced Inspections of Maritime Facilities, the Port Security Training Program, the Port Security Exercise Program, and Foreign Port Assessments. 

We recognize, however, that there is still work to be done. There are some timeline requirements in the SAFE Port Act that we have not met, including those related to Notice of Arrival for Foreign Vessels on the Outer Continental Shelf and Enhanced Crewmember Identification. We are committed to working closely and diligently with our DHS [Department of Homeland Security] partners to meet these and other requirements of the SAFE Port Act. 

U.S.Customs and Border Protection Commissioner Winkowskitestified on the government’s ability to scan containers for nuclear and radiological materials in seaports worldwide.

THOMAS S. WINKOWSKI, ASSISTANT COMMISSIONER, OFFICE OF FIELD OPERATIONS, U.S. CUSTOMS AND BORDER PROTECTION: The Secure Freight Initiative (SFI) is an unprecedented effort to build upon existing port security measures by enhancing the United Statesgovernment’s ability to scan containers for nuclear and radiological materials in seaports worldwide and to better assess the risk of inbound containers. The initial phase of the SFI involves the deployment of a combination of existing technology and nuclear detection devices to three ports as per the requirements of the SAFE Port Act, but will also extend, in limited operation, to four additional foreign ports.

 This will provide a more complete analysis for the SFI by including different operational and geographic settings at each port and will provide exposure of different models for future 100 percent scanning. SFI Phase I Ports include: Port Qasim, Pakistan, Port Cortes, Honduras, Southampton, United Kingdom, Port Salalah, Oman,Brani Terminal at Port of Singapore,Gamman Terminal at Port Busan,Korea, and the Modern Terminal in Hong Kong. SFI Phase I is currently on schedule to begin operations at the three ports required by the SAFE Ports Act.

This first phase will provide lessons learned on how this new, integrated technology can meld smoothly into the logistics, operations, and risk management process while complementing the flow of commerce at each different port. Additionally, this first phase of SFI will provide the partnering governments with a greater window into potentially dangerous shipments moving through their seaports. Secure Freight will provide carriers of maritime containerized cargo with greater confidence in the security of the shipment they are transporting, and it will increase the likelihood for shippers and terminal operators that the flow of commerce will be both uninterrupted and secure. SFI will use the latest scanning technology, however data analysis, using the Automated Targeting System, will continue to be our primarily method in screening containers. 

The Government Accounting Office also provided its analysis on the implementation of the SAFE Port Act.

STEPHEN CALDWELL, DIRECTOR, HOMELAND SECURITY AND JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE:Federal agencies have improved overall port security efforts by establishing committees to share information with local port stakeholders, and taking steps to establish interagency operations centers to monitor port activities, conducting operations such as harbor patrols and vessel escorts, writing port-level plans to prevent and respond to terrorist attacks, testing such plans through exercises, and assessing the security at foreign ports. However, these agencies face resource constraints and other challenges trying to meet the SAFEPortAct’srequirements to expand these activities. For example, the Coast Guard faces budget constraints in trying to expand its current command centers and include other agencies at the centers. 

Similarly, private facilities and federal agencies have taken action to improve the security at approximately 3,000 individual facilities by writing facility-specific security plans, and inspecting facilities to make sure they are complying with their plans, and developing special identification cards for workers to prevent terrorist from getting access to secure areas. Again, federal agencies face challenges trying to meet the Act’s requirements to expand the scope or speed the implementation of such activities. For example, the Transportation Security Agency missed the act’s July 2007 deadline to implement the identification card program at ten selected ports because of delays in testing equipment and procedures. 

Witnesses explained that the Consumer Product Safety Commission Reform Act of 2007 is an effective bill for providing consumers with greater product safety.

EDMUND MIERZWINSKI, CONSUMER PROGRAM DIRECTOR, U.S. PUBLIC INTEREST RESEARCH GROUP: Recent news about the routine and repeated importation by a major U.S.manufacturer, Mattel, of millions of Chinese toys that grossly failed to meet U.S. safety standards has certainly shined important light on the plight of the CPSC [Consumer Product Safety Commission]. The CPSC is an agency that, over the years, has suffered both from Congressional neglect and from efforts by opponents of consumer protection - both within and without - to destroy it.

Your bill includes provisions that will accomplish three important goals:

First, it provides the CPSC dramatically increased funding, staffing and authority to hold corporate wrongdoers accountable;

Second, it broadens and strengthens the ban on lead, a toxic chemical that causes brain damage and other problems and has no business in children’s products or toys at all;

Third, it strengthens the government’s role in ensuring the safety of imported products while making it clear that any company that enters imported products into U.S. commerce is still responsible and cannot shift the blame to some lowest-cost third- party supplier thousands of miles away.

…

JOSEPH M. MCGUIRE, PRESIDENT, ASSOCIATION OF HOME APPLIANCES MANUFACTURES: We … support the concept behind provisions in S. 2045 which would authorize the CPSC to require specified products sold in our marketplace to show conformance through testing with standards. This presents a challenge with some 15,000 products under CPSC jurisdiction. However, we strongly applaud making it a violation of federal law to knowingly and willfully falsely use a mark or claim certification.

Although a globalized market may require the sharing of vital safety data with foreign governments and state and local authorities, this must be done in a manner that protects intellectual property and confidential business information and ensures that it is not used to prematurely instigate litigation or to unleash public allegations about non-public investigations. Certainly, firms should supply, if requested and known, to the CPSC information on their suppliers, distributors and retailers.

…

ALAN KORN, DIRECTOR OF PUBLIC POLICY & GENERAL COUNSEL, SAFE KIDS USA: In light of the recent news coverage surrounding the CPSC and product recalls, Safe Kids believes this is the perfect opportunity to address children’s product safety on a comprehensive basis. Accordingly, Safe Kids applauds Senator Pryor, Senator Inouye and Senator Durbin for sponsoring the CPSC Reform Act of 2007. It is also our understanding that Senators Klobuchar and Nelson contributed extensively to the legislation and they should also be commended. We believe S. 2045 is an excellent legislative framework to not only remedy the CPSC’s abysmal budget, but to also rejuvenate this important federal agency that has not been reauthorized since 1990. Safe Kids supports many of the provisions contained in the CPSC Reform Act of 2007.

Witnesses described the danger, especially to children, of lead in consumer products.

MR. MIERZWINSKI: Exposure to lead can affect almost every organ and system in the human body, especially the central nervous system. Lead is especially toxic to the brains of young children. A child exposed to a single high dose of lead such as by swallowing a piece of metal jewelry containing lead can suffer permanent neurological and behavioral damage, blood poisoning, and life-threatening encephalopathy. Exposure to low doses of lead can cause IQ deficits, attention deficit hyperactivity disorder, and deficits in vocabulary, fine motor skills, reaction time, and hand-eye coordination. PIRG [Public Interest Research Group] studies have found lead levels in children’s jewelry at 28 percent by weight or more.

Children are more vulnerable to lead exposure than adults, since young children often put their hands and other objects in their mouths; their growing bodies absorb more lead; and children’s developing brains and nervous systems are more sensitive to the damaging effects of lead. Currently, while lead is explicitly banned in paint (at levels based on 1970s science), the CPSC must jump through numerous hoops before it can recall other products containing lead (except those with banned lead paint). Among other regulatory hurdles, it must first determine that levels of lead in any product are “accessible” to ban the product. While, positively, the CPSC is proceeding (through a rulemaking in response to a Sierra Club petition) to ban lead in metal components of children’s jewelry, the better, precautionary approach is to simply ban lead in all children’s toys and products (including, for example, plastic jewelry).

…

MR. KORN: The CPSC Reform Act of 2007 would require third-party testing certification to ensure that children’s products comply with any applicable product safety standards. It would also virtually ban lead in children’s products, children’s jewelry and consumer use paints. Associations, manufacturers, retailers and many consumer groups all agree that these are two concepts whose time has come. Add Safe Kids to this long list. We also have two concepts to add to the legislation. First, Safe Kids believes that the testing required by Section ten of the CPSC Reform Act of 2007 should be done throughout the manufacturing process and on several lots to ensure that all products that may find themselves in the marketplace comply with applicable safety standards. The second involves the bill’s provision that requires the Governmental Accountability Office to conduct periodic audits of third-party testing labs. The audit procedure described in the CPSC Reform Act of 2007addresses the expertise and qualifications of the third-party testing labs. Safe Kids believes that this audit protocol should be expanded to include a periodic assessment of the financial independence of these facilities. This will ensure that the certification labs are truly and continuously independent.

Witnesses testified that stronger penalties for violations and recall practices are needed to provide greater consumer product safety.

MR. KORN: Safe Kids supports the increase in the civil penalty allowed by the Consumer Product Safety Act (CPSA), as contained in the CPSC Reform Act of 2007. In its present form (under Section 20 of the CPSA), any person who knowingly engages in a prohibited act, as outlined in Section 19, is subject to a civil penalty not to exceed approximately $1.8 million. In some cases, and in particular when larger companies are involved, the $1.8 million cap may not be enough of an economic deterrent to prevent the company from engaging in an unlawful act. For example, a company that has $50 million worth of product in the marketplace may be willing to incur the civil penalty instead of reporting a defect or injury as required under Section 15 in hopes of avoiding a recall (failing to report any information required by Section 15(b) is a prohibited act under Section 19 and is subject to a civil penalty). Safe Kids has long advocated for an increase in the civil cap to an amount that better represents a deterrent. We support the provision in the CPSC Reform Act of 2007 that would increase civil fines (for all statutes under the CPSC’sjurisdiction) up to $250,000 per violation with a cap at $100 million.

…

MR. MIERZWINSKI: For better or worse, we live in a global economy. Manufacturers seeking lowest-cost producers routinely stretch supply chains to China or other countries. While the manufacturer, importer, retailer or distributor is appropriately responsible under the CPSA and other laws enforced by the CPSC for ensuring that any product that it enters into commerce meets U.S. standards (and should not blame some sub-contractor when it does not), Congress should also take steps to better protect consumers from the hazards posed by imported products. The bill, S. 2045 takes several steps, which we support, to improve import safety. Section ten (which applies to all children’s products, not only imports), establishes new third party certification for all children’s products. The section prohibits their importation without such certification. Importantly, the third party certification is administered under the authority of the CPSC. It would not be as useful were it not.Also, importantly, we would read Section 18 (preemption) as making it clear that mere certification of a product would not grant any immunity or shield from liability under state law. The committee should be wary of any attempts by industry associations to change this.

…

THOMAS H. MOORE, COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION: On occasion, employees of companies have provided information to the Commission that has proven useful in pursuing actions against their companies for violations of our statutes. Encouraging employees with this type of information to come forward, and then protecting them when they do, could act as one more deterrent to companies who put profit ahead of safety. However, the protection side of the equation would be difficult for our agency to administer. Each case would require an examination of the facts in the particular situation and an understanding of the personnel system and rules in the employee’s company as well as the history of the interactions between the employee and the company. These are not the types of cases in which CPSC lawyers are typically involved and I am not at all sure that having the Commission become so intimately engaged in the inner workings of a company’s employment practices would be appropriate. If the subcommittee wants to provide protection to employees in these situations, it may want to look at another venue for these employee complaint determinations, such as the Department of Labor.

…

MR. KORN: Safe Kids recommends that all recall notices should highlight the distinguishing marks on the product. The simple existence of the marks is not enough - the recall notices need to incorporate color pictures of where the marks are on the products (or its packaging) as well as any graphics to help the consumer/parent/caregiver determine if there is a recalled product in their home. The CPSC recently released “A Consumer’s Guide to the MagnetixBuilding Set Recall”; this is a great example of the effective use of images and other graphic elements to convey safety information. 

DPC