>> Elliot Kaye: Good morning and
welcome to this public meeting
of the United States Consumer
Product Safety Commission.
First on the agenda today is a
decisional meeting on a final rule
for slings carriers promulgated
under Danny's Law,
Section 104B of the Consumer
Product Safety Improvement Act.
We have two staff members here with us today
in case there are any questions
during the opening round.
We have hope Nesteruk from the office of
-- from Hazard Identification and Reduction
and Mr. Matthew Mercier from the
Office of the General Counsel.
Thank you for joining us.
We'll start with any questions we have and
then we'll turn to consideration of the rule.
I don't have any questions, Commissioner Adler.
>> Robert Adler: No questions, thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I do
have a couple questions.
First of all has the ASTM shown a willingness to
adopt the one little modification that we have?
>> Hope Nesteruk: Yes they have.
We've received letters from ASTM and from
the Baby Carrier Industry Alliance indicating
that they are going to meet, they're
actually meeting next Tuesday
and they will be discussing that.
>> Marietta Robinson: Terrific.
And also I wanted to ask you Mr. Nesteruk I
assume that you know we've been, you know,
we understand that this package is going
to have an effect on the tiny little mom
at home kind of businesses if you will.
And there was some discussion I know
you've been talking with the BCIA
and I appreciate all the
work you've done with them.
But what is your opinion about if we extended
the effective date say another six months
if that would help in terms
of mitigating the cost
to these small businesses
that this rule would entail.
>> Hope Nesteruk: I believe in the package
we actually listed that as one option
as further extending the effective date.
And so [inaudible] were generally in
favor of the 12 month effective date.
We didn't have any that requested a later one.
So it would spread the costs
over, over a longer period but.
>> Marietta Robinson: But it's not going
to affect the cost themselves as I read it.
>> Hope Nesteruk: Correct.
>> Marietta Robinson: Okay.
And one of the alternatives that you listed
and I really appreciate the thought that went
into the possibilities that we have here
because obviously we're very sensitive both
to protecting our tiniest
consumers and, you know,
not imposing an undue burden
on small businesses.
But one of the alternatives that you listed was
exempting wraps/slings and I share your concern
that then they wouldn't have
to meet the labeling
and instruction requirements
that I think are so important.
But I just wanted to clarify that make sure
I'm right that in addition to the labeling
and the instructions that those wrap/slings
would have they also are going to be subject
to their regulations in terms of the performance
and the material strength and so forth.
>> Hope Nesteruk: That is correct.
>> Marietta Robinson: Okay.
It's understanding that BCIA or the Baby
Carrier Industry Alliance, the trade association
for the industry has been very
involved in this process with the CPSC.
And I know that Mr. Cohen on their
behalf submitted a letter on December 13,
which included a request to
collaborate with the CPSC
on a targeted information education campaign.
I love the title of it, visible and kissable.
They indicated they have been working with
the small business ombudsman on this issue
and I just wondered what your thoughts
are with respect to the request
from the Baby Carrier Industry Alliance
and what resources would be needed
at the agency to implement such a campaign.
>> Hope Nesteruk: I think that's
something for the resources.
>> Marietta Robinson: Right.
>> Hope Nesteruk: That's something we haven't
really looked at and we'd need to consult
with the department or the Office of
Communications for their resources
on the information and outreach campaign.
So that's something we can get back to you on.
>> Marietta Robinson: Okay and I assume
that you're very much in favor of such an.
>> Hope Nesteruk: Yes.
>> Marietta Robinson: Information
and education campaign.
Okay, I have nothing further.
Thank you so much for your work on this.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: I don't
have any questions, thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you
Mr. Chairman, good morning.
I have first question is how would you
characterize generally the incidents
and injuries we've seen with
these particular products.
>> Hope Nesteruk: We've seen a wide
variety of injuries and incidents.
We have everything from what we call the
consumer missteps, which are the slips,
trips and falls while you're
carrying the child in the sling.
But there's also the suffocation incidents.
And we also have some incidents
where there is one for example,
where the fabric ripped and the child fell out.
We have done some recalls in the past
over hardware that has had some problems.
So there have been falls,
there have been suffocations
where they're falling from the carrier.
>> Joe Mohorovic: Falling from the carrier
based on performance attributes of the carrier
or would you characterize them as consumer
misuse and some of these wraps can,
at least for me, can seem to be
pretty complicated in terms of how
to apply one or wear one properly?
>> Hope Nesteruk: Both.
>> Joe Mohorovic: Both, both.
And in terms of voluntary
standard and the manner
with which it addresses the injury patterns that
we've seen you did mention the slips and falls
that would be addressed by the label correct?
>> Hope Nesteruk: Correct.
>> Joe Mohorovic: And I don't have the
language of the label in front of me.
Do you happen to have the
language that's offered in label,
somewhere where you might
be able to provide that?
>> Hope Nesteruk: I actually don't
think I brought that with me.
Do you have it Tim?
>> Joe Mohorovic: Just trying to
remember how it addresses the.
>> Hope Nesteruk: Hold on let me see if I can.
>> Joe Mohorovic: How it addresses the hazard.
Sorry Mr. Chairman, I was so weighed down by
the fireworks package that I'm not strong enough
to also have carried down our slings package.
>> Hope Nesteruk: Unfortunately,
we don't have a copy of that.
>> Joe Mohorovic: Okay.
>> Hope Nesteruk: And.
>> Joe Mohorovic: But I recall
it's generally something
of being careful not to slip and fall right.
>> Hope Nesteruk: Yeah, it does talk to keeping
the one hand on the baby while moving and.
>> Joe Mohorovic: Okay, all right.
Thank you Mr. Chairman, that's fine.
>> Elliot Kaye: Is that okay?
All right, having heard no further questions
we'll now excuse staff from the table and turn
to consideration of any amendments or motions.
I will start with an amendment, I
believe it's already been circulated.
My amendment is pretty simple, I'll offer a
brief explanation and then ask for a second.
On page 30 of the draft final rule I offer
to strike the word staff and replace it
with the words, the commission
in the following sentence.
The staff generally recommends designing the
hazard out of a product regarding the consumer
from the hazard rather than employing warnings
because a warning's effectiveness depends
on persuading consumers to alter
their behavior to avoid the hazard.
The point of this amendment is to bring more
attention to what's called the safety hierarchy.
And the safety hierarchy as CPSC
well knows is a foundational concept
in injury prevention science
and it's understood,
taught and utilized all throughout the federal
government and industries around the world.
The safety hierarchy simply stated as
eliminate, guard, warn is a system of priorities
that places elimination of hazards as the
most preferable solution for enhancing safety.
Eliminating a hazard is the gold standard
and should always be the first choice
because it is the most effective.
When that's not feasible the second choice
for injury prevention is to prevent access
or to guard any given hazard by placing a
guard in between the user and the hazard.
Guarding consumers from hazards or
relying on warning labels are only used
if hazard elimination is not possible.
When a guard is not feasible the third and
least desirable choice is a warning label.
And it's only used as a last
resort because again,
it's the least effective
method of preventing injuries.
Since the concept of the safety
hierarchy is so important
to commission activities I believe the
commission should be actively promoting the
universal understanding of this
pivotal concept whenever possible,
so I've offered this one small change to
the draft final rule to give the full weight
of the commission's authority in this sentence.
Do I have a second?
>> Robert Adler: Second.
>> Elliot Kaye: Thank you, having heard
a second will now turn to consideration
of my Amendment Commissioner Adler.
>> Robert Adler: I strongly
support this amendment and I'm glad
that you've brought it to our attention.
In fact, I think it's such an important message
and it is the traditional public health
message that's been around as long as I've been
around in dealing with health and safety so that
at some point in addition to voting to approve
that now I could see us putting that us a policy
statement in CFR, so I strongly support it.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: No questions.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No questions.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: You know, when
I was -- thank you Chairman.
When I was looking at this language
originally in the draft I choked on it a bit
and I really gave it a lot of thought.
As one and coincidentally last night I was with
my old boss a guy named Gene Ryder [phonetic],
who had taught me so much about appreciation for
designing out hazards and how critical that is
to a hazard mitigation, a
successful hazard mitigation system.
And I won't go into all the other details of it.
So I would feel that I'm well versed in
appreciating the successful approach of focusing
on design first and not relying on
consumers to make reasonable behavior.
But the reason I choked on it originally is
because it seemed to me to
be very paternalistic.
But the more I thought about it I thought
coming from staff and Mr. Chairman,
this is why I'm not going to be
able to support your amendment.
Coming from staff who are our
technical experts in safety,
in hazard mitigation they are the perfect
person, they are the perfect object
of the sentence to say that the staff
generally believes because they are the experts.
So if it is their goal as it
should be to identify and to remove
from the marketplace consumer
the potential for consumer injury
and fatalities I think it's
perfectly appropriate for staff
to have that -- to make that statement.
But I think at least the way I
interpret what you're doing here
with the commission is it's now putting
the commission in that paternalistic role.
And in some of these cases I think that
where a market failure does not exist,
where a consumer is well aware of the injury
or the potential for injury or fatality
that a consumer product or using a
certain consumer product presents
that they're acting responsibly.
They're willing to accept
a particular risk involved.
And to suggest that it's the commission's
approach that we should be designing out hazards
that starts to drift far more from the
commission's perspective into the nanny state,
taking away consumer choice,
taking away liberty.
When consumers choose to do
anything from riding skateboards
to hang gliding I don't think anybody gets on
a hang glider and jumps off the side of a cliff
and doesn't appreciate the fact that
they might come crashing down to earth.
So I think that they're making
an informed decision.
In this case, suggesting that the commission
should be representing this position is a matter
of policy I think and I think it's an area where
we might have healthy disagreement on where
that line is in terms of a willingness
to be paternal in our approach.
So while I don't reject or have any
problems with the statement as it stands
from a technical expertise
perspective I have difficulty
with it being the position of the commission.
And I could appreciate as Commissioner Adler
pointed out that he appreciates that approach
of taking a more aggressive stand perhaps
if aggressive is the right way of putting it
and the removing from the consumer their
ability to make an informed choice.
So for those reasons I'm not going
to be able to support the amendment,
but I appreciate the thought behind it and
I appreciate also the fact that you agree
with this kind of approach and
deem it the most effective.
So I hope we can just agree to disagree
without being disagreeable about the point,
but for those reasons I won't be
able to support the amendment.
Thank you Chairman.
>> Elliot Kaye: Thank you Commissioner
Mohorovic, absolutely no doubt we can continue
to disagree without being disagreeable.
I'm glad you didn't choke on it,
that's important for your safety.
In closing, I do want to say that I think
that you in some ways overlook the great work
that is done in industry
consistent with this philosophy.
There are many companies that absent
any federal involvement whatsoever are
on their own following the safety hierarchy
and looking for ways to design out hazards.
And so all we're doing is
really amplifying that effort,
making it clear that is the preferable
way to go, and ensuring that for those
who may not know, who may not have
given it the thought that they realize
that these are the ways to do it.
Because we've heard sometimes companies
start with warning labels and maybe
for them it's they don't know
that there are other options
that might be better serving
their customers in the long run.
So I think that it adds clarity
to the marketplace,
it does represent where the commission
has been probably for decades.
I would turn to Commissioner
Adler for his nodding assent.
And so I feel like it only
enshrines where we already are.
Having heard no further comment I'll
call for a vote on the amendment.
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Nay.
>> Elliot Kaye: And I vote Aye.
The ayes are four, the nay is one,
the amendment has been adopted.
Are there any further amendments or motions?
>> Ann Marie Buerkle: Yes Mr.
Chairman, I have a motion.
>> Elliot Kaye: Chairman Buerkle if
you could please explain your motion.
>> Ann Marie Buerkle: My motion and I believe
it's been distributed already by staff.
I move that consideration
of the draft final rule
for sling carriers be postponed
for a period of one year.
And excuse me, I have several reasons for making
this motion and I'll just explain a few of them
and then turn to my colleagues for any
questions they might have on the topic.
I think first of all, we're on the cusp of a
transition from one administration to another
and from the 114 to the 115th congress.
I don't believe that we should be in a
hurry to pile on more regulations right now.
Particularly and my concern especially with
this is where the benefits if any are so slight.
The chairman of our house and senate
authorizing committees wrote a letter
after the fall elections asking us to
avoid focusing our attention and resources
in the coming months on complex,
partisan or otherwise controversial items
that the new congress and the new administration
will have an interest in reviewing.
We should heed this direction from congress.
I believe the rule fits into the
controversial category for a number of reasons.
Number one, this is a rare situation here
at the CPSC in which our staff has concluded
that this rule will have a
significant adverse impact
on a substantial number of small businesses.
In my three years as a commissioner this
is the only rule where the staff has made
such an affirmative determination
and I understand
that this happened only a very
few times in the history of CPSC.
This is not an academic point, it appears very
likely that this rule will be putting dozens
if not hundreds of small businesses,
small companies out of business.
Oftentimes you'll hear from the dais numbers,
large numbers we talk about
the cost of regulation.
This is very real where we're talking about
putting out of business some small companies.
Number two, there's a serious legal question
as to whether the products to be covered
by this rule should even be included within
the class of durable nursery products.
For one subset of slings the commission admits
that it quote, considered the possibility
of exempting wraps and other fabric carriers
without loadbearing hardware or seams end quote.
Number three, as discussed in the
federal register notice CPSC was unable
to develop performance tests or requirements
that could address the infant
positioning hazard.
I brought this up during the NPR discussion
that we're not really addressing the hazard.
And that's not due to want of trying,
it's because we can't address that hazard.
And those are the primary reasons
for the fatalities with this product.
So thus this rule is not going to
prevent the main hazard posed by slings.
Number four, most of the nonfatal
injuries that we account in association
with slings actually result from
caregivers falling while wearing a sling.
Those injuries again are not going
to be addressed by this rule.
So again, we're talking about without securing
commensurate benefits imposing a very high
burden on these small companies.
Number five, the staff notes that it has
conducted only limited testing of wrap slings,
but of these staff indicates it has found
no wraps that failed the test for static
or dynamic load testing or failed
the test for occupant retention.
Number six, for most manufacturers the primary
cost of the rule will be related to testing.
And some of the tests are destructive,
meaning that representative samples
of the product will be destroyed
during the course of the testing.
I want you to think for a moment about
weaving a sling that retail maybe would cost 5
or $600 according to our economist and
then having to submit it for testing
and in the process of that testing
all of that work is destroyed.
Number seven, in general once the mandatory
standard becomes effective sometimes we have the
benefit or we can afford the
benefit to small companies
for small batch, that small batch exemption.
Unfortunately, because this is a 104 we
can't avail ourselves of that exemption.
So those are my reasons for why
I consider it controversial.
Just a couple of other points quickly
and I'll open it up to my colleagues.
I would prefer and I said this
in my statement following the NPR
that this product class not be considered a 104.
I'm aware that the commission majority does
not agree, nevertheless there's no exigency
that requires us to mandate
this standard right now.
Section 104 and congress and I will
admit congress has put us between a rock
and a hard place, do this, don't do that.
But I think as regulators we need to
use our discretion to decide based
on our data what 104 should be our priority.
Differing consideration of this standard I
think also would give the Voluntary Standards
Committee time to address the staff's
proposed addition to the voluntary standard.
And as Hope pointed out earlier,
they are willing to do that
and then that would give us a standard.
And last but not least, disabling right now
consideration or differing the promulgation
of this final rule doesn't disable
our staff from dealing with the slings
that could pose a substantial product hazard.
They always have and in the letter from the
hill they always have the option of enforcement.
And so that doesn't go away
if we defer this rulemaking.
And so for those reasons I ask my colleagues to
support my amendment to defer this rulemaking.
>> Elliot Kaye: Do I hear a second
on Commissioner Buerkle's motion?
>> Robert Adler: Second.
>> Elliot Kaye: We've heard a second we'll
now turn to consideration of the motion.
I have a question for Commissioner
Buerkle to understand the motion better.
Is it your intent that we would postpone
consideration, but then vote it out in a year
or are you saying and assuming during
that time that ASTM would harmonize
with this one provision or is it your goal
that we actually don't consider this as a 104
and to take that time to
remove it from the list?
>> Ann Marie Buerkle: I would prefer
the second option what you're saying.
I think in the interim it would be incumbent and
really helpful if staff could gather the data
if the standard was updated to meet what
we're putting out in the mandatory standard
and then provide us with the
data and to see where we're at.
And I think that would be a
more thoughtful way to proceed.
>> Elliot Kaye: And what to make than of the
primary association that represents not all,
but many of the smallest manufacturers, the
baby carrier who came to us and asked us
to promulgate this final rule
what to make of that request?
How do you reconcile their desire
that we do create a federal mandatory
standard with your desire to push it off?
>> Ann Marie Buerkle: Well, think
they're looking for certainty.
I think any company whether large
or small is looking for certainty.
And so knowing that this was now a
mandatory standard they know what they'd have
to deal with.
But I can't imagine across the spectrum
if you talked to any company and you said,
you have the choice between a voluntary
standard which is the exact same rule
as our mandatory standard
which would you prefer.
I got to believe they'd go
with the voluntary standard.
>> Elliot Kaye: Okay, thank you for that.
Commissioner Adler.
>> Robert Adler: Thank you Mr. Chairman.
And you ask in the most diplomatic
way imaginable a question I'm going
to be a little blunter about.
And that is if we put this off, this
consideration off for a year if you had
to assess the probability that you
Commissioner Buerkle would be voting
for this what would you assign
that order of probability?
>> Ann Marie Buerkle: To be honest, I think
there are other 104s that demand priority.
I think that would be a more thoughtful way
to legislate than to regulate I should say.
And I think going to the staff and
saying prioritize based on our data,
based on the fatalities and the
injuries what's the best way to proceed,
what's the next 104 we should handle?
And I have a feeling slings
wouldn't be among those.
>> Robert Adler: I'm not sure I got an answer,
but I really appreciate the
thoughtful answer you did give.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Let me just
say Commissioner Buerkle that I also
since we've been serving the same amount of
time on the commission I share your concern
about the impact on small business.
And when we voted for the NPR two and
a half years ago I discussed the fact
that this was the first time where there has
been a substantial impact on small business
and I questioned whether we
needed to pass this rule.
I became convinced when Ms. Nesteruk came
in and showed me some of the products
and the kinds of failures that we'd had.
So it wasn't just the incident reports,
but the recalls and the kinds of failures
with the material failing, with the
seams failing, with the rings failing
that had resulted in injuries to children, which
caused me to take this a little more seriously.
This is a unique product and it's been unique
for I've read as long as 2 million years
that it's the kind of product that it can be
manufactured if you will, produced in a home
as opposed to any sort of assembly-line thing.
So it's a very unusual product
and I understand that.
I do disagree with you in
terms of how I interpret
and we're all just left with
our own interpretation.
The letter from congress, I take anything that
we get from congress very, very seriously.
Senator Thune and Congressman
Upton certainly correctly pointed
out that we will soon have a new chair
and that they've told us our actions
will receive enhanced scrutiny,
but I certainly don't think and
they were explicit about saying
that we shouldn't stop doing our jobs
of routine product safety enforcement
on behalf of American consumers.
And told us to use their words that we should
avoid focusing our attention and resources
on complex partisan and otherwise
controversial items
that the new administration will
have an interest in reviewing.
And as I look at this I don't
see this issue as being complex,
partisan or otherwise controversial.
Certainly the sling FR is not a new issue,
the ASTM has been working
on the standard since 2012.
We as I said, issued our NPR two and a
half years ago no one is surprised by it.
It certainly isn't a particularly complex
issue and we've reviewed the products,
the data and I was delighted that we had 188
comments that we've reviewed very thoroughly.
And I just don't see this as controversial in
this case with a tiny exception having to do
with the seams of a warning label.
We're just adopting the ASTM voluntary standard
and I don't see this as a partisan issue.
I don't know what being a Democrat or Republican
has to do with how you look at this rule.
We share whatever our politics a
concern about small businesses,
but also a concern about the consumers.
And I think it's important when we look
at what -- well as you pointed out,
it's important that we look at whether
this is a durable infant product
in determining what we may and may not do
pursuant to our instructions from congress
with respect to relieving the
burden on small businesses.
And I will say that I think the fact
that the slings have been on the list
of durable infant products dating from before
this constitution of the commission was
in existence, dating from when the CPSC first
passed its registration card rule back in 2009,
the NPR specifically included slings as a
potential product for the registration card rule
and we received comments on that.
And that commission decided that certainly
this was a durable infant product.
And we know that slings are often used for
multiple children in one family and are passed
around from family to family and I think they're
a perfect example of durable infant products.
And we also know that they're associated
with serious injuries and deaths.
So in looking at the protection of and
obviously it's the brand-new newborns
that we're really looking at with this
product and so when we look at that compared
with the impact on small
businesses I certainly understand
that small businesses will face
increased costs and third-party testing.
And I've looked at how we might be
able to leave some of that at the CPSC.
There are certainly other ways
in which that could be relieved,
but is there anything we as a commission can do.
And I just with the restrictions that are
placed on us by congress we may not exempt
or otherwise change the testing requirements
for small batch manufactures if it's a 104
and I just don't see how delaying this rule
for a year is doing anything
to help these small businesses.
If we're saying don't pass a rule I don't
think that that's acceptable given the risk
that we have with this product and
that it is a durable infant product.
And staff has worked so hard
to put this together
so I cannot support further delaying this.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman,
I'm going to support this motion,
this amendment to delay consideration
for a year's time.
First of all, primarily because I would like
to solicit some better clarity from congress
on this issue of what is a section
104 durable nursery product.
I know the Federal Register, the work of the
commission in 2009 has been cited here today.
The commission I think had a more from my
reading of the Federal Register notice,
was very clear that it was
a discrete set of products.
But this commission now has opined widely
on really extending the boundaries
of that definition.
So I would like to have a year's time to
hold off on this, which is certainly one
of those products that to me is
very close to the line on whether
or not it is in fact a 104 product category.
And I would hope that we would get some
better clarity from congress on this point
to help us refine our thinking as the
definitions provided in CPSIA are less
than helpful in some of the
considerations for other products.
What else was brought up today, which I'm not
fully convinced of, I think chairman you brought
up the fact that the association has
been very strongly in support of this.
We know the association is made up of small
business members primarily not large players so,
therefore, there seems to be
less concern about the costs
that will be imposed on small businesses.
I don't share that -- I don't
share, I'm not convinced of that.
I'm not convinced that the small
business entities as reflected
in the comments we've received
from SBA specifically.
But I don't believe that small businesses
want to see a mandatory rule applied here.
And I think we should be careful that just
because an association tells us that they're
in support of it that that
means it's universally desired.
I think that this city has a long history,
million-dollar homes in Chevy Chase are funded
by manipulation of standards
processes, procurement,
etcetera and because we have a standard
that the association wants to get behind
that doesn't necessarily
and I'm not trying to imply
that that standard was manipulated,
but it does happen.
The standards process rules are
sometimes manipulated by parties who want
to eliminate competition and that's a
strategy that players will sometime employ
if they're already absorbing the cost of
third-party testing for whatever their reasons,
their distribution channels may require it.
Then they'll want to impose those costs
on everybody else who may be going direct
to consumer through some other distribution
channels that don't find it necessary
to present a third-party test
report to demonstrate compliance
with the performance elements of the standard.
While I recognize that staff
is suggesting the voluntary --
the labeling become permanently affixed.
But it's not just third-party testing we have
to be mindful and we have to be sympathetic
to the certification obligations employed here.
There are some, but there are not
nearly the amount of textile mills
in the United States that there used to be.
The South, North Carolina used to
have dozens, was a strong presence.
The Northeast mostly with footwear,
but also with some textile producers.
You've got these products
that are being imported,
they're going to have certification obligations.
This commission has already opined in a
proposed rule to have mandatory certifications
and mandatory listings of multiple
elements in that certificate and that needs
to be provided every time they're
bringing in new shipments of materials.
It's not just the third-party testing,
but it's an incredible paperwork burden.
So I think we need to be sympathetic to
those costs as well and mindful of them.
So if we have a product category that is
not enumerated in Section 104 of CPSIA,
it's close to the line, I think we ought to
get real clarity and especially in this case
because this sector is a small business sector.
And they can't absorb those costs, they can't
immediately turn on the kind of paperwork burden
that certification brings with it as well.
So I think a year is a good period
of time to hopefully solicit
and receive some better clarity from
congress in terms of their intent
of the categories applicable for 104.
Thank you Chairman.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chairman.
I'm not going to try to recollection
what Commissioner Robinson said
and rebut just a few of those
claims that you made.
I think first of all, with
regards to failure of the slings.
In the package it indicated staff had
tested about 40 slings, 40 or so and in all
of those tests that were
done none of those failed.
So I'm not sure if those failures occurred
before there was a voluntary standard
and I'm familiar with the failures that you
were shown because we were shown them as well.
So I think there is some indication that
the industry is slowly complying with
and the small businesses are
slowly complying with the standard.
But I do think it is controversial.
We are promulgating a rule that does not
address either the hazard of positional asphyxia
or the trips and falls that causes so
many of the other injuries and we're doing
that at the peril of several small businesses,
maybe hundreds of putting them out of business.
That in my mind is controversial.
And again, to Commissioner Mohorovic's point,
this may be a very valid reason to go back
up to the hill and say is this
really what you meant by the 104s.
You know, I think there's an argument
that this is not a 104 that some
of these more constructed slings could have gone
into the soft infant carrier category
rather than being considered a sling.
I think this is highly controversial.
I don't think this agency ever would want to
be responsible for putting small companies
out of business, but our own
economist tell us the cost
of testing could exceed their
revenues, the estimate is 10%.
And so for that reason I
consider it highly controversial.
>> Elliot Kaye: I know Commissioner
Adler has comments I believe
and others might, so we'll go another round.
I will not be supporting the motion,
I appreciate your offering it.
I do think that and I want to
address a couple points in particular
that Commissioner Mohorovic raised.
First, I do think Commissioner Mohorovic
that congress already was
consulted in essence on this rule.
The commission had already added
this to the list of durable products
in the product registration rule by the time in
2011 when congress tweaked CPSIA through 112-28
by trying to find some testing burden
relief while still assuring compliance.
Congress created as of course you know the small
batch registry, which could have provided relief
in many of these instances for
folks that we're talking about here.
But Congress exempted intentionally
the 104 rules from that registry.
Again, with full knowledge at that point
that this had already been added to the list.
I can understand that if we had acted after
that congressman may have not been aware,
but I believe congress was fully aware
and likely took that into consideration
or we assume they took that into
consideration when this was drafted.
If that's not good enough for you though
and you still think a congressional inquiry
is necessary I would only ask that as you go
about doing that that you talk to
those individuals who actually drafted
and convinced their colleagues to enact 104.
And I really mean mostly Congresswoman
Schakowsky and her staff and the people
that she worked with to understand what
their intent was and what went into 104.
And to go back to 2001 when Congresswoman
Schakowsky originally introduced the legislation
and then carried that forward every
congress, which she was thinking
about as you look not only to what it means to
be durable but also what was intended in 104
and whether that in her mind and in her
colleagues' mind was a static thought
or whether it was intended as
new products come on the market.
And this is obviously not new, but
as new products come on the market
and as parents continue to have that mismatched
expectation that these things are tested
where there's some standard in place
before those products come on the market.
Only to realize down the line after
tragedy strikes that there isn't one
that Congressman Schakowsky was
trying to get ahead of that.
That she was trying to create a process that was
consensus-based, that involves collaboration,
that involved advocacy and involvement from
across the safety community to make sure
that these products are given the
type of standards that they deserve.
And I think that reflects that and
I think we would do it disservice,
back to Commissioner Buerkle, I think we would
do a disservice to all the work that was put
in by the safety community not to take
that rule and turn it into a final rule.
So I'm not prepared to support the motion.
Commissioner Adler.
>> Robert Adler: I can see that the
questioning round very rapidly converted itself
into a comment round.
I do have some closing remarks which I'm not
going to give now, but I did want to respond
to some of the comments that were made.
And I do want to say that Commissioner Buerkle
and Commissioner Mohorovic I
think you've both made some very,
very important and reasonable points.
I don't agree, but I think you've
made a very, very thoughtful case.
And this is a tough decision for me to make.
My problem with saying controversial is
that what that does is you've given reasons,
but I'm not sure I agree with them.
But I don't think something becomes
controversial just because we're going
to have disagreement among the commissioners.
And I do think this is part of that
104 rulemaking mandate that we have
that we are methodically
working our way through.
With respect to whether slings fall
within the definition of infant carriers,
I would note in passing and this is just an
additional data point that the ASTM subcommittee
that deals with infant carriers, bouncers
and baby swings certainly consider
slings to be within that category.
So I think the industry itself
is telling us that slings belong
within the category infant carriers.
Maybe you would think they shouldn't be, but
I do think they fit within that category.
And I have to say how delighted and
thrilled I was to hear my colleague,
Commissioner Mohorovic say that just
because a trade association supports something
it doesn't mean that we have to defer to that.
And I would say that just because
they oppose something we ought also
to take that with a grain of salt.
So I will be only too delighted to remind
him of that concept from time to time.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Yes, let me first
say Commissioner Buerkle that the slings
that were tested as I understand, the 40
that were tested were wraps and there are
so many other different kinds of slings out
there and we're delighted that those past.
But that doesn't mean that they
should be precluded from the rule.
And we just need to make sure that if
indeed, people are more and more complying
with the voluntary rule that indeed they
continue and I think that that will do this.
I would also say that congress
expressly directed us to do 104s
and they had the full opportunity to carve
out slings in public law 112-28 but did not,
which means to me that we need to continue to
regard these as durable infant products and,
therefore, go forward with the rule.
Now I will say, I mean while we can't
do a small batch exemption and certainly
in this rulemaking I have
looked at this thoroughly to see
if we could maybe reduce the frequency
of the periodic testing so that we could
as I understand from our economics department,
we could reduce the cost by up to 60%
if we could reduce the frequency.
But we can't do that in this rulemaking,
but I certainly would be amenable
to discussing going forward finding a way
to reduce the frequency for the testing
so that we might be able to alleviate this,
but it would be outside of this rulemaking.
Thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
With regards to the 104s generally
we do have some enumerated,
congressionally some statutorily
enumerated product categories that because
of some very smart rationale that
I better understood from visiting
with staff yesterday or the
day before on this point.
Why we're moving forward on swings as opposed
to some of the others that still we do not have,
we have not converted voluntary standards into
a mandatory rule as allowed in Section 104.
So I have a better appreciation
why we're on slings right now.
But the comment that I wanted to make
generally addressing some of the others
that have been made today by my colleagues
and very thoughtfully with regards to 104s
and an appreciation for why
we have expedited rulemaking,
why there isn't a small business
exemption for 104s.
Because I agree that generally with the category
of durable nursery products these product
categories are of the highest risk
to our most vulnerable consumers, products
like cribs and high chairs and strollers.
But, you know, with this particular
voluntary standard and it's been mentioned
that the standard and those who
contribute to the development
of the standard have done everything
to try to address the injuries
and the hazards associated with it.
This particular voluntary standard is not
going to do a tremendous amount for safety.
These products are already children's products.
They can't have small parts, can't
have lead, can't have lead paint,
so some of the more critical standards
for safety for children already apply
to these products in the absence of a
mandatory rule in the performance elements.
Staff has tested these products and
they're not finding products failing.
I mean really the performance elements of
the standard is getting to literally bursting
at the seams whether these products are going
to burst at the seams and kids are just flying
out slings because they're just tearing open
like tissue paper and falling to the ground.
And there needs to be a standard to make sure
that these things have the physical strength
to withstand the weight of
a carrier and the weight
of an infant and how it's worn by a mother.
I mean to put in a label where we have the most
serious incidents associated with this product
or with slips and falls to put
a label on it and tell consumers
when you're carrying your baby don't fall down.
You know, I don't think you need a label
to warn a mother to not or a father sorry
or any caregiver to not fall down
while they have an infant in a sling.
I don't think that's going to do very
much to address the real hazard pattern
that we're concerned about with these products.
And I know it's been mentioned an I&E
campaign that'll address slips and falls,
as well as the proper use of the
product too and I applaud those efforts
and appreciate the industry coming to us
and wanting to collaborate with us on that
and I get every impression
that we're going to do that.
But this -- having mandatory testing to this
particular voluntary standard is not going
to contribute to safety in a very
meaningful way as much as everybody tried.
I think that everybody developing this
standard and our staff looking at it,
including the additions that
they've recommended are trying
to do everything they can
with this particular product.
But putting it off is not putting off safety.
So for a lot of the reasons why we have Section
104, we have the mandatory testing to it
and the streamlined expedited rulemaking
associated with it I just don't find it
as applicable in this product
category and I do appreciate
that the commission thoughtfully
considered this category
and writing the product registration
rule and adding it as one
where the product registration
card is applicable.
But I would disagree with that
decision made in 2009 it looks like
and I would like to get some better clarity.
But I think the chairman does make some good
points that the congress for how many years now,
eight years has had the opportunity while
seeing this product registration card rule
to express their discomfort.
But I think perhaps this little nuance
in the product registration card rule
might have missed their attention.
And if we bring it to their
attention knowing full well
that this commission has considered expanding
product categories perhaps far beyond the
enumerated products that we could
be better served by having that.
Thank you, I apologize for going over Chairman.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr.
Chairman, just a couple of quick points.
Number one, I just wanted to refer
to Commissioner Adler's comment
about we're ticking off methodically the 104s.
We are, but I caution all of us that
we took them off not mindlessly.
And in this case to the chairman's point,
a parent has an expectation
about testing of these products.
Any which way that product is tested
it's not going to address the hazard
of a positional asphyxia and trips and falls,
it causes the highest rate of injuries.
So we can't be mindless about this,
we've got to use our common sense.
And so I think the data just
doesn't lead us to mandatory rule.
And lastly I would say to my colleague's
point about this not being controversial,
I think when we as regulators put small
companies out of business that's controversial
and that should weigh on all of us and we
should take that responsibility very seriously.
Thank you.
>> Elliot Kaye: Are there any further questions
or comments on the amendment or motion?
Having heard none will now move to
consideration of the Buerkle amendment.
Commissioner Adler how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: I'm sorry
to commission the motion.
Commissioner Adler, how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: No.
>> Elliot Kaye: Yeah, we
seconded it a long time ago.
>> Ann Marie Buerkle: Okay.
>> Elliot Kaye: Sorry, let's start again.
>> Joe Mohorovic: We want to make
sure the procedures are right
because this thing is going to pass.
>> Elliot Kaye: We're now moving
to vote on the Buerkle motion.
Commissioner Adler how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote no.
The ayes are two, the nays are three.
The Buerkle motion is not adopted.
Are there any further amendments or motions?
Having heard none we'll now move to final
consideration of the draft package as amended.
Is there a second?
>> Robert Adler: Second.
>> Elliot Kaye: We heard a second we will --
before we have the vote we'll
have any final comments.
Commissioner Adler, any final comments?
Of course, there will be
time for closing statements.
>> Robert Adler: I have no further comments.
I do have a closing statement.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
Okay having heard none we will move to the
final vote of the draft package as amended.
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Nay.
>> Elliot Kaye: And I vote aye.
The ayes are three, the nays is two.
The staff package as amended has
been approved for publication
of the same in the Federal Register.
We'll now have closing statements,
each commissioner will have 10 minutes.
I will go first.
>> Elliot Kaye: The commission took
another important safety step today
to protect babies all across the country.
We acted to make a critical item for
many families, infant slings stronger,
more secure and easier to safely use.
By moving to protect the most precious among
us our infants we did not act in a vacuum
and we certainly did not act alone.
The death and injury numbers associated
with these products alone speak
to the need for this new standard.
There have been at least 17 fatalities
and 90 injuries related to sling carriers
between January 2003 and September of last year.
Those statistics are troubling.
The numbers also represent real people.
We have a childcare facility in the
ground floor of our building complex here,
17 babies represents an entire
classroom of infants downstairs.
This rule matters for those children, it matters
for their parents, as it matters for babies
and parents throughout this country.
The rule is needed to address known
hazards and to prevent needless
and tragic deaths and injuries to babies.
The Consumer Product Safety Improvement Act
of 2008 directed CPSC to initiate rulemaking
to issue safety standards for durable infant or
toddler products that are substantially the same
as or more stringent than the
applicable voluntary standard.
Consistent with the CPSIA our actions today
are the culmination of excellent teamwork
and contributions from across the safety
community, from our fantastic staff
to the safety advocates to
manufacturers, retailers,
testing laboratories and staff at ASTM.
Together representatives from
these entities put in the hard work
to create a baseline sling standard
for use as the core of our rule.
We are turning the excellent product of
that collaborative, consensus-based process
into an enforceable federal standards
that parents can have confidence in.
There is no genuine controversy in moving
ahead to ensure these products are safer.
Representatives from all corners
of this process support this rule.
That includes the Baby Carrier Industry
Alliance, BCIA, which represents many
of the sling makers who will
be complying with this rule.
It includes the Juvenile Products
Manufacturers Association,
which also represent sling manufacturers.
After all the safety work that has been done
by so many and all the calls to adopt this rule
in my mind it would be controversial
and anti-safety not to adopt the rule.
Importantly today's safety step is also
entirely consistent with congressional intent.
Not only as reflected in CPSIA, but also
when congress spoke in follow-up legislation.
In 2011, congress tweaked CPSIA to along with
other purposes include some type of reduction
in testing costs, but importantly,
without sacrificing child safety.
One step congress took was to
exempt the smallest of businesses,
the businesses that we're talking about
today from certain testing requirements.
However, congress specifically
declined to include
in the exemptions the testing costs associated
with durable infant goods,
such as infant slings.
Congress took this action with full knowledge
that the commission had already determined
infant slings are durable nursery products
and thus were subject to rulemaking
that would trigger mandatory
third-party testing cost to ensure safety.
Thus, congress made the policy decision not to
exempt products such as these from these costs.
That is not to say though that anyone isn't
sensitive to these costs, far from it actually.
We all recognize that there will be significant
and real economic costs to this rule.
In light of that, we have
taken steps within the bounds
of the law to address those real concerns.
We have provided for a longer effective date.
Our hope is that this extra time allows
sling makers to spread their testing costs
out over a longer period of time,
as well as to give them more time
to learn about the specific requirements.
And on that point in particular, at
the request of BCIA and its members,
I have also directed our communications staff to
work with BCIA and our safety partner in Canada,
Health Canada, with whom BCIA already
partners on an education campaign timed
with when this rule takes effect.
I'm also very open to additional steps
consistent with the law and with safety
that we can take and encourage
and I encourage anyone
with thoughts along those lines
to reach out to my office.
I do want to make one specific
request though about testing costs.
I mentioned earlier one of our safety
partners, the testing laboratories.
Many of them have been great
participants in these efforts.
I know if they put their heads together
they can find a way to help the smallest
of the sling makers offset costs.
I'm eager to see what they
might be able to come up with.
Slings are a critical product
for many American families.
When used safely many find that they promote
bonding between parents and newborns.
Our actions today will help ensure that
parents and caregivers can use slings safely.
I'm very proud to vote for this rule, which
is the culmination of the work of so many
from across the safety community.
I look forward to turning our attention
to a successful implementation of the rule
with that same collaborative spirit.
Thank you.
Commissioner Adler.
>> Robert Adler: Thank you
very much Mr. Chairman.
As a starting point, I want to thank staff
for a truly excellent briefing package.
You've produced an exhaustive,
comprehensive analysis that addresses a number
of very troubling questions in the rule
in a thoroughly professional manner
and I think we're all better for that.
I wish regulating were a constant win-win
proposition where everybody ended up better off
and no one ever experienced setbacks.
Sadly, that's not always the case.
This package illustrates the point vividly.
That is, in order to provide adequate levels
of safety for vulnerable infants it appears
that we may well cause some economic distress
for a number of very small manufacturers
and the trade-off is stark in this case.
As I review the fatality and injury picture
with slings I see that in the period from 2003
to 2013 and you've heard these numbers
before, staff identified 16 fatalities
and 54 injuries associated with slings.
Since then staff has reported an
additional fatality and 36 more injuries.
Now the good news to me is that incidents with
infant slings do appear to be fairly uncommon.
Unfortunately, when incidents
do occur they can be gruesome.
Although I'm not clear regarding the exact
number of suffocations that have occurred
with slings, simply visualizing what
happens when a child dies from a lack
of oxygen presents a ghastly picture
that is very hard to deal with
and the injury picture is equally troubling.
When a child falls from a sling
fractures inevitably occur,
including skull fractures along with a host
of other injuries that can be quite severe.
So I'm convinced we have a safety problem
with slings that must be addressed.
What concerns me is the impact
on sling producers,
a sizable number of whom are not just small
manufacturers but as staff pointed out,
very small manufacturers with
annual sales less than $50,000.
And as staff points out, this may
well pose a significant burden
to some of these small manufacturers.
And interestingly, the greater challenge
evidently won't be meeting the substantive
provisions of the standard, but rather the tests
with their products at independent
third-party labs.
And on this point reading the
package I see varying estimates based
on which assumptions one uses to estimate
testing costs, but the number at a minimum seems
to reside around $200 to $650 per model sample.
Numbers like this probably don't present a
serious concern even to modestly sized firms,
but for the very small these numbers
may well pose an existential threat.
And here's where the issue becomes so stark.
It would be wonderful if there were an
inverse relationship between safety and size
that is the smaller the company the less
likely infants would be at risk and alas,
the opposite seems to be the case.
As staff notes in the briefing package
of the six sling recalled since 2001,
four involve small manufacturers of
which two may have been very small
with revenues less than 50,000.
In fact, one death of a 10-year-old
baby involved a very small manufacturer.
So any inclination that I might have to
exempt or minimize the testing requirements
for small sling manufacturers must give way to
the very real need to have them do this testing
if we're going protect infants
from dangerous slings.
I carefully reviewed the
alternatives offered by staff
to reduce the testing costs on small businesses.
Unfortunately, I've reached the same
conclusions as staff, one of the alternatives
that we haven't already adopted and I'm
glad we did adopt some to lessen the burden,
seems likely to work either
for practical or legal reasons.
So I've concluded we should go forward
with the rule and hope that our forecast
of the economic impact will be
wrong, mitigated or short-lived.
Having said all this, I want to repeat a
concern and the chairman mentioned this also
that I've raised for several years now and
I'm not going to stop raising this concern.
That is, I deeply regret that our friends
in the test lab community have not stepped
up to offer better and deeper discounts
to the struggling members of industry
who face significant testing costs.
I remind them that many within the test
lab community saw their revenues increase
significantly with the arrival of
third-party testing requirements
in the Consumer Product Safety Improvement Act.
Surely this increased prosperity should
move some within the test lab industry
to provide greater assistance to those whose
livelihoods are threatened by testing costs.
Now I realize drug manufacturers do not
necessarily stand as a good example of altruism
in action, but I can't help noticing that
even these firms have managed to come
up with a partnership for
prescription assistance
that provides free drugs worth hundreds
of millions of dollars a year to patients
in desperate need of life-saving medicine.
I simply do not understand why the test
labs have failed to adopt some kind
of similar program to assist their
customers and ultimately American consumers.
I, therefore, renew my plea to the test
lab community, please work with the small
and micro businesses to mitigate the necessary
cost of making slings safer for babies.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I also would like
to thank staff and I'd like to thank ATM
and all of the commenters, the 188
people who commented on our package.
I think this is just a wonderful example
of us working with the business community
and with the consumer groups to come up with
a rule that's going to protect our babies.
I looked at our hearing from two and
a half years ago to remind myself
of the things we brought up and Commissioner
Adler brought up at that time and I'm delighted
that he did so today as well, calling out to the
third-party test laboratories to do some things
to help relieve the burden on small businesses.
I at that time, two and a half
years ago went through a history
of the baby wearing back 2 million years
and what people think that it has done
for our society, for the development
of humankind let's put it that way.
In fostering this out of womb experience for
the baby in terms of being close to the parent
and allowing parents to continue,
particularly moms, but as Bo points out to me
that dads including him wear them as well.
But it allows the parents to go
on with the work that they have
to do in a hands-free environment.
So these are products that have been with us
forever, but we have a particular duty here
at the CPSC to make sure that we're
protecting the babies in any way that we can
who are carried in these slings
and find the best and safest
and most cost-effective path forward.
As I said, I voted in 2014 to publish the
NPR, this package and at that time went
through why it is that I believe that
slings are durable infant products
and we all know what our
instructions from congress have been
with respect to our rulemaking under 104.
And I reiterate that if congress
didn't want us to do something
with slings they certainly had the opportunity
when they passed PL 112-28 to carve out slings
as an exception to the 104
since we had explicitly said
that they were a durable infant
product and they did not do so.
So I think we have to read into
that that they intended for us
to go forward with what we're doing today.
We're aware of 17 deaths and 90 injuries
related to slings and with the work of our staff
and the STM subcommittee we believe that
making this sling carrier standard mandatory
as directed in the CPSIA will reduce
and hopefully eliminate all deaths
and injuries related to sling
carriers and that's why I'm going
to fully support this rule today.
The effect on small businesses as
Commissioner Adler has so eloquently expressed.
We wish that we could protect everyone, but
our assignment is to protect the consumers
and I am delighted that our staff has so
carefully gone through the alternatives.
It's very clear from anyone looking at
this package that we all share a concern
about the fact that we are going
to have a substantial effect
on some very, very small businesses.
And we have, not we, but our staff has
very thoughtfully gone through each
of the alternatives and how we could
lessen the impact on the businesses
and has told us the ways that we can't
even though we might want to do so.
So let me reiterate to whoever the next chair is
going to be that may be sitting here maybe not
that I am very willing to
revisit the periodic testing rule
and consider whether we should
have some amendment to that
because that is a regulation
over which we do have control.
And I would encourage all producers, whether
small big or micro do look very closely
at our component parts testing requirements
and see if they can't come up with some ways
to mitigate the cost of the
third-party testing in this instance.
And I would also encourage all
small and micro businesses to work
with our excellent small business ombudsman.
If you're confused about any of the
requirements, please work with that office
to see if we can mitigate some of the expenses.
And I just add my voice to Commissioner Adler's
strong voice about urging testing facilities
to do their part in trying to lessen the
cost for the small and micro producers.
I would also just like to add that
I really appreciate the hard work
that the baby carrier industry has
undertaken to work with us and to work
on the information and education campaign.
And as Ms. Nesteruk indicated, we are delighted
that they are doing that and delighted to work
with them in any way that our resources allow.
And this is obviously very much a niche
industry and if there is any group
in this country I think that's
plugged into product safety
on the social media it is new moms and new dads.
And I would very much encourage that
community to try to get information
out to the young people who are just
beginning the parenting chores and looking
at how they can keep their baby safe
and try to educate them in that way.
So again, I just want to thank our
staff, the ASTM F290715 committee,
the baby carrier industry in developing a
robust safety standard for infant slings.
We're reaffirming our commitment to ensuring
that products used to care for our infants
and children are held to the
strongest safety standards
and supporting this the agency's sacred mission
to protect the public from unreasonable risks
of injuries from consumer products.
And I just think that once in a while we need
to pause to understand how fortunate we are
in this country that we have this agency.
And that unlike so many countries throughout
the world we are able to buy products here
with the assurance that the
government has done all it can
to make sure those products
are safe for our children.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chairman.
Again, I just want to join my
colleagues in thanking staff for all
of their hard work on this briefing package.
Across many disciplines there were many
important contributions made to the package,
especially Hope who was the project manager,
Matt Mercier from the Office of General Counsel,
and then there was a real joint
effort from the Office of Economics.
So thank you all for your
hard work on the package.
I had reservations about
this rule from the beginning.
Although, I voted to approve the
publication of the NPR I voiced my concerns
about the limited potential
effectiveness of the proposed rule.
The cost of the rule for manufacturers,
particularly small companies
and the legal doubt whether slings really
qualify as a durable nursery product.
After reviewing the comments that
were submitted in the rulemaking
and the staff's analysis unfortunately,
my concerns have not been dispelled.
I'm concerned first and foremost that we are
putting law-abiding companies out of business
because they can't afford to pay for the
testing by third-party laboratories as required.
I would be far less concerned about
those steep costs if I were convinced
that it was going to prevent injuries and death.
But I don't see that and I
don't see that in the data.
And I hear my colleagues talk
about the 17 suffocations.
This rule will not address, according to staff,
this rule will not address those suffocations
and I think that's very important to realize.
This rule will not address
the injuries that result
from missteps by the caregivers and trips.
It's not going to address those two
issues which are the leading cause
of the deaths and of the injuries.
So most of the injuries as I
mentioned, are also unaddressed.
They are the results of slips
and falls by the caregivers.
I believe in educating consumers and
I wholeheartedly support the efforts
to make caregivers aware of the risks
posed by the various types of slings.
But I think we can do that in any number
of ways without imposing unreasonable costs
on manufacturers as this rule does.
I believe in following the
direction that congress gives us.
We've heard 112-28 mentioned
multiple times here this morning.
I voted for 112-28 and I can tell you from
first-hand experience no one said to me
or no one indicated to me that
what was in 112-28 we were talking
about slings and we were talking about wraps.
That doesn't get down to
that level of granulation.
And so I think it's incumbent upon
us to go back to the hill and say,
is this what you meant before we impose a
mandatory standard on a lot of small businesses.
I doubt that many of those who voted
in favor of CPSIA had this type
of rule in mind when they did so.
There was no voluntary standard for
slings when CPSIA was passed in 2008,
so it can hardly be argued that congress
expected us to do a Section 104 rulemaking
for slings even if they would've agreed
that slings are a durable nursery product.
I wish that Section 104 gave us
more flexibility than it does,
but I think we could exercise
our discretion to avoid some
of the problems we have encountered here.
AT the very least, where the consequences
of the rule are so severe and the payoff
so slight we should never put this
rule ahead of others in 104 queue.
Thank you Mr. Chairman.
>> Elliot Kaye: Mr. Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
Going off script a bit I guess
I am motivated to address some
of the comments about third-party test burden.
And sometimes I have these moments serving
in this position where I think to myself only
in Washington, only in Washington, only the
federal government can get away with saying,
you know, we're going to needlessly impose
millions of dollars of regulatory burden
and then in the next breath blame the
testing industry for doing the testing later
and blame them for not doing it for free.
I mean, only in Washington can we say that.
And I have the utmost respect and admiration
for all of my colleagues and I know you know
that because we've worked together for years.
But I take great issue with imposing, needlessly
imposing millions of dollars of burden,
reams of paperwork burden, reams of procedural
burdens at the border that's going to slow
down commerce, that's going to
directly impact small business
and then blame the testing industry for doing
the testing that the federal government required
when we don't even really need the requirement.
And in fact, we're not even
willing to go back to congress
to ask them are you sure this is a 104 rule.
You know, are you really sure this
is because with this comes a lot
of consequences, a lot of burden.
In the other product categories a lot
of that absolutely necessary
cribs, highchairs, strollers.
But this one as Commissioner Buerkle pointed
out, the voluntary standard developed
with all the best intentions that it did will
not address the injury patterns that we've seen,
tries to, but you know to try to get a
voluntary standard to have somebody not fall
down while they're using a
product is very difficult to do.
And, you know, we're going into
this thing with eyes wide open.
Our talented staff made it absolutely clear
to this commission how impactful this
will be for those small entrepreneurs.
So when this rule gets done we're doing
it completely with wide eyes, we're open,
we know what the consequences are and we're
pointing our regulatory gone right lock set
in right on American small business.
And, you know, if we really cared about
the testing burden why don't we test it.
We've got a multimillion
dollar testing facility.
We wanted third-party testing because
congress said we want third-party testing,
so then we can be sure it
would be done independently.
Nothing would be more independent
than testing it at the federal lab.
I hope you'll consider testing
it for free out of our budget.
We can do it, we've got better
testing technicians and laboratory
with the shiniest new equipment
than any third-party testing lab.
If you really care about it you
ought to consider doing it for free.
We ought to test it all for
free at our laboratory.
But it's just one of those
moments that I think, you know,
only in Washington can we impose these
costs and then blame somebody else
for executing what we're mandating.
But I want to thank staff primarily
for their hard work in this package.
I regret that I'm unable to support it.
That shouldn't be seen as a reflection of
staff's terrific efforts and the efforts of all
of those who contributed
to the voluntary standard.
I believe that the commission directed our
staff particularly toward the wrong goal.
In Section 104 of the CPSIA of 2008, congress
directed this agency to take a closer look
at quote durable infant or
toddler products end quote.
These products, things like cribs, highchairs,
strollers had been involved in a number
of CPSC initiated recalls in the years leading
up to CPSIA and they had been a major target
of parents' frustration in
the year of the recall.
To help us ease that frustration congress
gave us Section 104, created a lot of work,
required a rule on registration cards,
inferred dozens of specified products,
but it also came with a very handy tool.
It allowed us to skip our normal rulemaking
processes and bootstrap voluntary standards.
That procedural shortcut
is a very powerful tool.
But as Spiderman and as I
keep reminding everybody,
with great power comes great responsibility.
We have the responsibility to use Section
104's express process for its express purpose,
establishing performance standards for
durable, durable infant and toddler products.
So there are three components of
responsible rulemaking under Section 104.
So if applied to this product category.
First, we can only use it to
regulate infant or toddler products.
Those that are quote intended for use or
that may be reasonably expected to be used
by children under the age of five.
Check. We can't use 104 for
lawnmowers or fireworks,
but clearly sling carriers are infant
products and meet that part of the standard.
Two, we can only use it to turn
an existing voluntary standard
into a mandatory one with
some editing if necessary.
If there is no voluntary standard
there is no Section 104 rule.
But again, there is a voluntary standard for
sling carriers, so there's no problem here.
Third, and this is where I see an insurmountable
problem it's that the products must be durable.
On this point CPSIA definition
doesn't help us much.
The act defines a durable
infant or toddler product
as quoted a durable product end
quote, intended for kids under five.
There is no Section 104 definition
of the word durable.
But even as the only non-lawyer on the
commission I know that the basic rules
of statutory construction tell us two
things about what congress intended.
First, congress meant something
by using the word durable.
We should not read words out of a statute.
We should not turn them into
quote mere surplusage,
which has to be the most lawyerly
term ever except for dispositive,
which I hear a lot and I always have to look up.
Second -- Gabe, you use that
a lot, I heard you chuckling.
In the absence of a definition we should give
the word its ordinary or natural meaning.
We shouldn't come up with whatever
torture definitions fits our purposes.
So if Section 104 and the members of
congress who over and over again talked
about enhancing the safety of durable
infant toddler products use that word
in its ordinary sense, we need to
look at what the ordinary sense is.
The Department of Commerce
considers a product to be durable
if it has an average expected
useful life of at least three years.
There are three key terms there beyond
the number, average, expected and useful.
There are military buffs who
collect and eat leftover rations
from Vietnam, Korea and even world wars.
These are 50, 60, 70-year-old meals that people
consume, survive and I guess enjoy more or less.
That doesn't make food a durable product.
We generally expect people to eat food
relatively soon after its production
and most food doesn't have an
average useful life of longer
than three years, except maybe a Twinkie.
By and large -- thank you.
By and large, textiles on
their own are not durable.
Of course, your grandmother's handmade quilt
will stay in the family for generations,
but the exception does not make the rule.
Many of these products covered by the rule
will be 100% fabric, simple bands of cloth
that can be wrapped and tied
to create a carrier.
Many others will be ring
slings bands of cloth with one
or more rings to help form the structure.
Such products simply do not meet
the common definition of durable.
And so they are beyond our authority
to regulate under Section 104.
Even the more elaborate slings are
still a far cry from the products
that are actually listed in Section 104.
Those products, cribs, beds, strollers and the
like are generally sturdy, bulky products made
of wood, plastic or other
genuinely durable materials.
They generally require extensive assembly.
Slings can go from a box to a
baby in a matter of seconds.
Slings do not walk like ducks, they don't quack
like ducks and ergo go they are not ducks.
I understand completely the impulse to
try to stretch the definition as far
as possible of 104 durable nursery products.
To use Section 104 to regulate anything
an infant or toddler might touch.
Doing so allows us to skip the detailed
analysis and findings required under Section 9
of the Consumer Product Safety Act.
But we should remember two things.
First, skipping the hard stuff
isn't always a good idea.
Section 9 ensures that the economic harm of our
regulation won't dwarf their safety benefits.
Every time we use Section 104 we risk
making mistakes we could not otherwise make.
Second, even where the shortcut is
desired by the commission we still have
to have the legal authority to go that route.
Taking the path of least resistance may feel
good right now, but it won't feel so good
if congress or a court admonishes
us for taking unfair advantage
of a powerful but limited procedural tool.
One of my favorite quotes
one I've used over and over
at the CPSC comes from Justice
Felix Frankfurter.
He wrote that quote the history of liberty
has largely been the history of observance
of procedural safeguards end quote.
In Section 104 CPSIA the word durable is a
procedural safeguard and to foreshadow a bit,
we've seen what happens when
you take a safeguard off,
people get hurt, people lose fingers sometimes.
In our case, liberty and
the rule of law get hurt.
Thank you Mr. Chairman.
>> Elliot Kaye: This concludes
this portion of the public meeting.
We will take a break until 11 o'clock and
resume with the second part of our agenda.
Thank you.