Last night, the House of Representatives gave its final approval to a bill to give more resources and authority to the Consumer Product Safety Commission (CPSC). House members approved a package, negotiated among House and Senate leaders earlier this week, by a vote of 424-1.

The overwhelming bipartisan support for this bill is a sign of how serious a concern product safety has become for consumers and policy makers. Last year's record number of recalls, many of which were for lead-contaminated toys, spotlighted the gaps in the nation's consumer product safety net and the inadequacies of the CPSC.

The bill would address many problems by providing CPSC with more money and staff, mandating a ban on lead in children's products, mandating standards for all-terrain vehicle safety, expanding protections for whistleblowers, creating a consumer complaint data base, and much more. One provision would ban phthalates pending further study, a revolutionary concept for the regulation of toxic substances (more on that here).

The Senate may vote on the bill as early as today. It is imperative that the Senate finish its work on this bill before it leaves for a lengthy recess. If the Senate does not act by tomorrow, consumers will have to wait until after Labor Day to see this legislation passed.

President Bush has expressed opposition to some provisions in the bill but has not threatened a veto. Bush should signal his support for the measure as soon as possible so that we can end the legislative debate and begin taking action to protect consumers.

Stay tuned to Reg•Watch for updates.

The Senate missed an opportunity this week to beat back a Bush administration policy that will keep low-income kids from receiving government insurance.

In August 2007, the Centers for Medicare and Medicaid Services (CMS) announced a policy, to take effect this August, which will make it more difficult for uninsured kids to qualify for the State Children's Health Insurance Program (SCHIP). For example, New York state wants to set its eligibility limit at 250 percent of the poverty level. While that may sound like a lot, it's only about $44,000 for a family of three. Unfortunately, CMS thinks those folks are too wealthy to qualify.

Sens. Max Baucus (D-MT) and John Rockefeller (D-WV) are trying to stop the policy by using a little-known law called the Congressional Review Act which allows Congress to disapprove of agency regulations.

But the Senate has run into a bit of a sticky wicket. CMS did not release the policy as a formal rule; rather, they issued it as a guidance document — a less formal class of government policy that is not subject to Congressional Review Act challenges.

On April 17, 2008, the Government Accountability Office said that the CMS guidance document should be considered a rule for the purposes of the Congressional Review Act. So that means Congress can challenge the rule…right?

The problem, it turns out, is timing. Congress only has 60 "session" days to introduce a resolution of disapproval. The 60-day clock starts the day the agency informs Congress of its rule. After GAO's April ruling, CMS sent a letter May 7 saying the agency would ignore GAO, and it refused to submit the policy to Congress as it would a normal rule.

So GAO says the policy is a rule, a decision Baucus and Rockefeller prefer because it means they can file a Congressional Review Act challenge; but CMS says the policy is not a rule and won't submit it to Congress. The question becomes: When does the 60-day clock start?

The Senate parliamentarian sent a letter to Baucus and Rockefeller this week that says the clock started April 17, the day of the GAO ruling. That means the deadline for introducing the resolution was July 8. (Don't bother trying to figure out how the Senate counts days. Nobody knows.) Baucus and Rockefeller introduced the measure on July 17.

The parliamentarian's determination doesn't make much sense — not that any other date would make much sense either. This is uncharted territory for the Congressional Review Act.

But this shouldn't even be an issue. Why did it take Baucus and Rockefeller so long to introduce the resolution? As a result of the parliamentarian's decision, they had to postpone a scheduled markup of the resolution. Now, the Senate will miss out on the expediencies that an official Congressional Review Act challenge carries (limited debate and no filibuster).

Those expediencies could have been valuable, since time is of the essence for low-income families. If Congress can't find another way to nullify the CMS policy by August 17, many deserving kids will be left without insurance.

The Federation of American Scientists has launched a new online archive that collects the reports of the Office of Technology Assessment (OTA). OTA was a research arm of Congress tasked with providing members with the best available scientific and technical information on emerging issues. Unfortunately, OTA was abolished in 1995 as a result of Newt Gingrich's Contract with America.

The online archive is a central collection of the office's reports. The website will also regularly provide updates on congressional efforts to resurrect OTA.

OTA Archive

Yesterday, Reg•Watch asked the question, "Will Congress Wrap Up Consumer Safety Bill?" The answer turned out to be "no," as lawmakers' talks stalled during a meeting intended to finalize a version of a bill to reform the Consumer Product Safety Commission.

Lawmakers did agree to set up a publicly searchable consumer product complaint database which was one of the controversial provisions that needed to be worked out.

Other sticking points remain, including a ban on phthalates, extended protections for whistleblowers, and federal preemption of state law. The House and Senate conference committee members hope to meet again next week to hash out the remaining differences.

In a few minutes, members of the House and Senate are set to meet to work on sorting out differences between their respective versions of consumer product safety legislation. Both versions of the bill would expand the budget and authority of the beleaguered Consumer Product Safety Commission, but other provisions have proved contentious.

Congress Daily (subscription) reports:

The House passed its CPSC reauthorization in December and the Senate approved its version in March. Conferees first met last month, when they agreed on 21 items. They left the more troublesome measures for today.

Among them, a ban on phthalates in children's products, which is included in the Senate version but not the House's. Studies have shown phthalate exposure to cause developmental abnormalities, particularly in fetuses and infants. The European Union and the state of California have already announced restrictions on phthalates.

The creation of a publicly accessible consumer complaint database, another Senate invention, has also stoked debate. Critics of the database say it would be too expensive, according to Congress Daily. The Senate version also includes protection for whistleblowers who report dangerous products from their perches at private firms. (Read more on the whistleblower issue here.)

Both bills include a provision that would preclude CPSC from establishing rules that preempt state and local law — an issue that has angered industry trade groups. The Bush administration has a penchant for including language in federal rules saying that if a product maker complies with federal regulation, the product maker is not liable under state common law. This legal doctrine, known as preemption, prevents consumers from seeking damages, or tort, claims after being injured by a product. Hopefully, the provision in the CPSC bill will survive the House/Senate conference.

CPSC is in dire need of reform after more than a year of product safety debacles. In 2007, CPSC was in the news for all the wrong reasons. Recalls of lead-contaminated children's products reached all-time highs. A long-term vacancy in the commission left it without a quorum, preventing it from conducting official business. President Bush nominated a product industry lobbyist to fill the vacancy, but the conflict of interest of a lobbyist regulating his former cronies was too much for Congress and the public to swallow, and the nomination was pulled. Finally, the acting commissioner, Nancy Nord, was caught taking lavish trips funded by the consumer product industry.

Mostly due to the outrage over lead in toys, Congress had hoped to finalize the legislation by Christmas 2007. After that convenient PR deadline passed, Democratic leadership let the bill slide down its list of priorities. Four months after passage of the Senate version, a conference of House and Senate leaders is only now working out the controversial aspects of the bill.

Reg•Watch Update: "On Consumer Product Bill, More Work Remains"

Just before it broke for its July 4 recess, the Senate approved a bill (H.R. 3564) to reauthorize the Administrative Conference of the United States (ACUS). Congress initially formed ACUS in the 1960's, but vanquished it in the mid 1990's as part of the Newt Gingrich-led effort to reduce government.

ACUS was a panel of administrative law experts. ACUS studied the federal rulemaking process and other operations of federal agencies. The panel took long-term views and made recommendations on improved performance.

The bill would authorize ACUS to receive $3.2 million from FY 2009 — FY 2011. ACUS would be a bargain at twice the price, as it has the potential to more than pay for itself by making recommendations on improved government efficiency and performance.

The idea of renewing ACUS is swimming in bipartisan support. It has already passed the House, where it is sponsored by Reps. Linda Sanchez (D-CA) and Chris Cannon (R-UT). According to BNA news service (subscription), Judiciary Committee leadership Sens. Patrick Leahy (D-VT) and Arlen Specter (R-PA) pushed the bill through the Senate last week. The bill also has the support of two Supreme Court justices: Stephen Breyer and Antonin Scalia, both former members of ACUS.

Technically, ACUS already exists. 2004 legislation reauthorized the panel. Unfortunately, since then, Congress has not funded it, making it impossible for ACUS to have employees, computers, three-hold punches, etc.

That trend is likely to continue, as insiders believe — because of election season and general ineptitude — Congress won't be able to pass appropriations bills this fall, preferring instead to pass a continuing resolution. Continuing resolutions can't appropriate funds to agencies that don't currently exist, so ACUS may remain a hollow entity.

Because some minor changes were made in the Senate, the bill will now shoot back over to the House, before being sent to the President.

Yesterday, six controversial rules that would have reduced federal funding for Medicaid programs were put on hold until at least April 2009. Congress included moratoria on the rules as a provision in the war supplemental bill which President Bush signed into law. (H.R. 2642; see section 7001 for the moratoria.)

The Bush administration had finalized, or was preparing to finalize, the regulations in an effort to cut federal funding for a variety of Medicaid programs administered by the states. The regulations would have cut funding for services that help those with mental illness and intellectual disabilities and for children in foster care, among other services.

Bush had threatened to veto a stand-alone moratoria bill. Fortunately for states and Medicaid beneficiaries, Congress was able to attach the provision to the war supplemental. Regardless, the regulations are so unpopular among congressmen both houses of Congress approved the provision with veto-proof margins.

Passage of the bill means, hopefully, the Bush administration will not be able to monkey around with Medicaid for the remainder of its tenure.