>> Welcome back.
We're going to resume this public meeting
of the United States Consumer
Product Safety Commission.
We'll now move on to our second decisional
matter on the agenda this afternoon:
the Notice of Proposal we're making on
Amendments to Fireworks Regulations.
For the discussion, if there is any, the CPSC
staff members before us are Mr. Howard Tarnoff,
Dr. Rodney Valliere, Dr. Aaron
Orland, and Miss Meredith Kelch.
I have no questions for staff.
Commissioner Adler, do you have any?
>> I don't but I did want to just join in the
general welcoming and applause of our colleague,
Commissioner Buerkle, into
the vice-chairmanship.
I note that it was a unanimous vote, something
I hadn't gotten for a number of years.
And I would also say that I
did actually think about voting
for your colleague Commissioner Mohorovic
but as he said, I'm smarter than that so --
[ Laughter ]
At any rate, we do welcome you.
And please understand, Commissioner
Mohorovic, that that was said with teasing.
>> Just going to -- hold on one second.
We have nobody at the secretary's
table to control the time.
If that would be possible to have somebody
there, please, that would be great.
And we're going to go 5 minutes per question.
Commissioner Robinson.
>> I have no questions and
I'll refrain from insults.
>> Commissioner Buerkle.
>> I have no questions.
Thank you.
>> Commissioner Mohorovic, any questions?
Okay. We'll now move to consideration
of the underlying package.
I do have one amendment and
I'm going to take 3 minutes,
even though the clock seems it will run forever,
to describe it and then I'll ask for a second.
And I think my staff is going
to distribute the amendment
but hopefully everybody's already seen it.
Although the NPR, the Notice of Proposal
Rulemaking, includes a broad discussion
of the health effects related to HCB and
other chemicals, staff has concluded that HCB
and lead compounds have many health effects
unrelated to the risk of cancer, birth defects,
or gene mutilations -- mutations.
Accordingly, I do not believe that it is
necessary for the Commission to convene a CHAP
to review these substances prior to rule making.
My amendment seeks to clarify
that the Commission is only proposing
adding these substances to the list
of proposed chemicals to address a
particular subset of health effects.
Staff has also concluded that these
chemicals are associated with hematological,
gastrointestinal, cardiovascular, renal
and neurological diseases of the brain,
as well as neurobehavioral effects of
adults and children and other toxicities.
I want to thank our health sciences staff
for the assistance they provided
to my staff with this amendment.
Is there a second?
>> Second.
>> Having heard a second, we will now
move to consideration of this amendment.
Commissioner Adler.
>> I'm going to support this amendment
and I think this is a very
thoughtful and called for amendment.
Unfortunately, I missed the
actual briefing in fireworks
but I note Commissioner Mohorovic brought up
the very good point about the need at times
for chronic hazard advisory panels when you've
got things that you're proposing to regulate
that involve things like carcinogenicity.
In this case, the health defects stand alone,
separate and apart from the chronic effects,
and so I think it's important to clarify that
so that we can proceed with this regulation
without having to convene CHAPs which I think
nobody on the table today would support,
so I'm delighted to support this.
>> Commission Robinson.
>> I thank the Commissioner Mohorovic
for raising this issue but after looking
at the statute, the package, and the
amendment, I'm comfortable that there's no need
to convene a CHAP with this amendment
because obviously the NPR is not based
solely on with HCB and lead compounds.
It's not -- the effects are not solely
cancer, birth defects, and gene mutations.
So, I will support this amendment.
Thank you for bringing it.
>> Thank you Commissioner Robinson.
Commissioner Buerkle.
>> I don't have anything.
Thank you.
>> Commissioner Mohorovic.
>> Having heard no further
consideration or no further comments,
we'll now move to consideration of my amendment.
Commissioner Adler, how do you vote?
>> Aye.
>> Commissioner Robinson.
>> Aye.
>> Commissioner Buerkle.
>> I'm going to abstain.
>> Commissioner Mohorovic.
>> Abstain.
>> And I vote aye.
>> The yeas are three, the nays are
zero, and there are two abstentions.
The amendment has been agreed to.
Are there any further amendments
to the fireworks package?
Having heard none, we'll now
move to final consideration
of the underlying package as amended.
Does anybody have any comments they
wish to make before I call the vote?
Commissioner Adler?
>> No, I don't.
I have a few closing comments
but nothing at this time.
>> Commissioner Robinson.
>> No.
>> Commissioner Buerkle.
>> No.
>> Commissioner Mohorovic.
>> No.
>> Okay well, having heard no further comments
we'll now move to final consideration.
The motion is to approve the
proposed amendments to regulate --
to fireworks regulations as amended and to
publish the same in the Federal Register.
Commissioner Adler, how do you vote?
>> Aye.
>> Commissioner Robinson.
>> Aye.
>> Commissioner Buerkle.
>> Same.
>> Commissioner Mohorovic.
>> Same.
>> And I vote Aye.
The ayes are three, the nays are zero.
The abstentions are two and the motion
to approve the amended fireworks NPR
and to publish the same in the
Federal Register has been approved.
We'll now move to closing statements.
I'll begin and we'll have 10 minutes each.
Today's vote to approve this NPR reflects
a successful process built on collaboration
that includes commission initiative
or excellent expert staff,
extensive industry experience,
and sound regulatory practice.
Even though the Commission issued an ANPR
in 2006, the agency was not able to focus
on fireworks certainly at the commission
level because of other pressing safety issues
and the implementation of the
Consumer Product Safety Act of 2008.
We resumed work on this issue after Commissioner
Robinson returned from a visit to China
where she saw firsthand how fireworks are
made and they are literally made by hand
which adds a real complexity to
regulating to specific criteria.
After her trip, she offered an amendment
for staff to undertake a complete review
of our fireworks regulation as part of
our fiscal year 2015 operating plan.
The Commission approved that amendment.
At the end of 2015, CPSC staff produced
an excellent and thorough briefing package
with options to modernize and streamline our
regulations in furtherance of consumer safety,
and that last part is extremely important.
While improving our regulations
is a worthy cause,
I believe that precious resources
spent reviewing rules is --
are best spent where they can improve
and we can improve consumer safety.
As chairman, I've been supportive
of using our resources
to methodically review the rules we have
in our books and was pleased to work
with Commissioner Mohorovic
to have the Commission review
or revive our [inaudible] review process.
In particular, I've been
interested in those rules
that may be outdated or in
need of strengthening.
This package is a perfect example of
how [inaudible] review should work.
CPSC staff's proposed revisions and
clarifications are aimed at increasing safety,
better reflecting the current fireworks market
and technologies, reducing testing burdens
and promoting uniformity with
other federal industry standards.
It is not easy to accomplish
all of these objectives
in one package but I believe this one does so.
I want to thank the fireworks team for
their thoughtful and pragmatic approach
to enhancing consumer safety through this NPR.
I am proud to support the publication of
this NPR and look forward to receiving all
of our stakeholder comments and what
the commission is proposing today.
And as a matter of housekeeping, I would
just ask our secretary, Mr. Stevenson,
to enter into the record, the
rulemaking record, emails that I receive
and I believe the other commissioners
received both
from the American Fireworks Standards
Laboratory in support of the rulemaking as well
as from the American Pyrotechnics
Association in support of the rulemaking.
>> Leave them there.
>> Great. Thank you.
He said, leave them there, he will collect them.
Commissioner Adler.
>> Thank you very much Mr. Chairman.
I'm please to vote to approve the Notice
of Proposed Rulemaking for Fireworks.
This NPR is a culmination of
years of dedicated staff work
and I believe the thoughtful proposal
before us is a move in the right direction.
I want to commend the staff from across the
agency that contributed to this project,
including folks from the Directorate of Library
Sciences, Health Sciences, Economic Analysis,
General Council, and anybody
else that I may have left off.
And I also particularly want to commend
the folks in the industry who have worked
so cooperatively with us over the years and with
whom we have a really excellent relationship,
AFSL in particular, NAPA as well.
I think, as most people know, this
is a rule that goes back to the '70s.
I was here in the '70s.
I actually sat through extensive trial-typing
hearings on fireworks, if you can imagine,
being cross-examined over a rule.
But that was the rule making
under 7.01E of the Food, Drug,
and Cosmetic Act that we
were compelled to follow.
And it was a very long process and
I'll even go so far as to confess
that I was really hardcore at
the start of the proceeding.
If had it been up to me I would have
banned fireworks, notwithstanding the fact
that when I was a kid, dare I admit it, I played
with lots of fireworks including cherry bombs
and silver salutes which are
cherry bombs that you throw
and when they hit the ground
they explode bigtime.
But over time and with a more-developed record,
I think I've come to a better
understanding about the use of fireworks.
And honestly, I believe that if we were
to completely ban them we would have
such a massive black market that it
would really be counterproductive,
so I'm very glad that we
have ended up where we are.
And it's also the case that the industry
has evolved and there are new devices
and different types of explosive powders, so the
time really is now for updating the standard.
I do say that fireworks can be one of
the most dangerous products around.
I think it's terrific the way the
Commission, on an annual basis,
demonstrates the hazards
associated with fireworks,
and I think we've made tremendous progress in
the way we present the hazards from fireworks
from the days when we had mannequins when the
hand would explode and they'd keep smiling
because they were frozen in time and place.
At any rate, I believe that
both with respect to safety
and enhancing compliances is a good
proposed standard and I look forward
to receiving public comment on it.
Thank you.
>> Commissioner Robinson.
>> My memories of fireworks are
gentler than throwing cherry bombs.
But I have to say that when I went to China
and addressed a very enthusiastic group
of people involved in the fireworks industry,
Heather Bramble who went with me had come
up with a really very fascinating
history of fireworks over hundreds
of years generally mostly out
of China and then from fireworks
in this country which was very interesting.
And as I was preparing my speech I commented to
some people that I just sat there for a moment
as I was looking over the
speech, you okay Rodney?
[inaudible] That I had some wonderful memories
that involved fireworks and every time I said
that to people they would just get
these great smiles on their faces
because everybody seems to have those memories.
I job of course is to make sure
that those magical moments are safe.
I'm delighted that we voted to
publish this NPR for fireworks.
As you know, I've been deeply
committed since becoming a commissioner,
understanding the issues surrounding the safety
of fireworks and figuring out solutions to some
of the challenges to making fireworks safer
and ensuring compliance with our regulations.
I really, really want to thank again,
staff for your outstanding effort on this.
This is highly technical and very
complicated and you've done a tremendous job
in putting together a
well-presented-and-researched proposal.
EXHR, OGC, OEX worked together to
get this right and I thank you.
I've frequently quoted David Brooks, so
you've probably heard it before when he said,
"if you want to live a meaningful
life get involved in something
that will last longer than you do."
My time here as a commissioner, as we all
know, is short but I think this is something
that is going to go on long after I do and
I'm very satisfied with the work that's gone
on in trying to make fireworks safer --
although I will add that I hope we have a final
role before I have to leave as a commissioner.
We've studied the current
regulations and testing methods
to understand the most basic issues as
well as the most complex issues related
to how the FHSA regulates fireworks.
We met with our excellent scientists
at the lab to see how we test fireworks
and the many possible ways
to evolve our testing,
discussed all of these issues
surrounding compliance
with the current fireworks regulations
with our import compliance and legal staff.
We listened to many different external
parties; foreign trade associations,
standards organizations, as well as small
and large manufacturers of fireworks
to discern their myriad issues
with the current regulations.
We visited foreign manufacturers
and seen how they were made
and we've watched how the CPSC imports
staff, spot checks shipments of fireworks
to identify certain possible dangerous products.
And I've worked closely with
Commissioner Mohorovic's office
to figure out the best path forward.
I think we were both surprised at
the number of comment that we got
with the interpretive guidance that
we pushed through for the Commission
to publish an FR Notice on and we look forward
to even more comments with
respect to this full NPR.
We want everyone's comments, please.
To the public, if you are a consumer activist,
a victim, a trade association, an academician,
testing lab, manufacturer, importer,
retailer, we really want to hear from you
because we really want to get this right.
We need a common sense, cost-effective
regulation that require fireworks to meet
and exceed robust performance tests
and ensure the products are safe.
Our country is intensely partisan right now as
we witnessed last weekend, watching the transfer
of power one day, on the record-breaking
peaceful demonstrations the next day
by mostly women in all 50
states and 30 countries,
against that person's policies
to whom power was transferred.
This fireworks NPR should
not be a partisan issue.
We all want to make fireworks safer.
I -- as I said, I'm pleased that
Commissioner Mohorovic brought
up his concern about whether we needed a CHAP.
Chairman Kaye suggested the
amendment, we supported this.
I think all of this has been a demonstration on
fireworks of a completely non-partisan approach
that I'm hoping that we can continue
on many issues at the agency.
I do have to say that I'm disappointed
that my Republican colleagues have
abstained from their vote today.
My understanding is that it was based on a memo
that came from our new president but we all know
that that doesn't apply to us,
that we are an independent agency.
We are not bound to stop doing our jobs just
because the present president has told us not
to do so because there's a reason that
Congress made us an independent agency.
Every single issue that's come up
since I've been a commissioner,
when it deals with an executive
order it's very explicitly stated
that we are not bound by executive orders.
We have some that we have tried to
comply with for various reasons,
but this is certainly not one where
we're instructed not to do our jobs;
it's not one we should comply with and we
have absolutely no legal obligation to do so.
So again, to the public, send us your comments.
And to staff, thank you so much.
>> Commissioner Buerkle.
>> Thank you Mr. Chair.
First of all, let me begin as always by thanking
the staff for all of their hard work and effort
that went into the package, as well as your
willingness to answer questions at the last --
at your briefing that you
provided the information to us.
And lucky for all of you, you would have
had a real coughing spell this morning.
We were so tired from this morning
that no one had questions today.
But again, thank you.
Thanks for all your hard work.
I also want to commend my two colleagues,
Commissioner Robinson and Commissioner Mohorovic
for their leadership on this issue.
They have, from the beginning,
focused on specific issues
and really contributed very significantly
to the proposal that's before us today.
After careful consideration, and you
may have deduced this from our votes,
I've decided to abstain, and I know I speak for
my colleague Commissioner Mohorovic from voting
on this notice of proposed
rulemaking because I believe
that we should honor the temporary regulatory
freeze ordered by the new administration even
if it doesn't apply to us
strictly as a legal matter.
On Inauguration Day last Friday, the new White
House staff Reince Priebus issued a memorandum
to the heads of executive departments
and agencies calling for a moratorium
on new regulations with certain exceptions.
The same thing apparently was done at
the start of the Obama Administration
and in several other administrations.
To date, no one at the Consumer Product Safety
Commission has received a copy of the memorandum
or other instructions from
the new administration.
It's not clear that the regulatory freeze
is even intended to apply to our agency
and independent agencies in general.
Nevertheless, as a policy matter CPSC will
often follow the spirit of executive orders
and other White House directions even
where they're not directly applicable.
I believe that the course is appropriate
here particularly in the earliest days
in the transition and from
one administration to another.
And despite the fact that I abstained from the
vote, I do have some concerns and I just want
to take this opportunity about the package
and just mention how much I look forward
to the comments from all of the stakeholders.
They're going to be very
important to this package.
As proposer, major gaps in our
knowledge that would prevent us actually
from making findings needed
for a final rule under FHSA.
Therefore, I want to strongly encourage all
stakeholders to share their views and data
with the Commission, particularly
with regards to the safety benefits
of the rule and the cost impacts.
This proposed rule covers a lot of territory,
including new requirements and limits
and restricting of certain chemicals.
I'm particularly interested in hearing the
comments on staff's proposed recommendation
to align the mandatory standard to the
APA, the American Pyrotechnics Association,
Standard 87-1, on the method for determining
which fireworks are intended
to produce an audible effect.
Instead of the notorious "ear test" the proposal
will use fine metal content to determine
which firework devices are intended to produce
an audible effect and therefore subject
to the two-grain limit on
the pyrotechnic content.
Staff is looking for further information
to support the proposal or
any alternative proposal.
I believe it's very important to establish that
the new test is generally equivalent to the old,
or if not to justify any
scope where the stringency.
At our recent briefing, and this is another
issue that has been of concern to me,
Dr. Orland stated that SPSC staff
have been working with the APAN
on updating the APA standard 87.1a but the
[inaudible]has come to a standstill or at least
until our package is released
for notice and comment.
Dr. Orland indicated at the
briefing that the APA was waiting
to see our NPR before further
advancing changes to their standard.
Nevertheless, he did seem
confident that the APA standard
and a proposed rule could
be aligned and reconciled.
I'm very interested to learn and keep abreast
of the APA 87.1a standard once our
rule is out for notice and comment.
I'm also very interested in the stakeholders'
comments on parts of the proposed rule
that addresses prohibited chemicals,
in particular the addition of lead,
lead components, and HCB to
the prohibited chemical list
and setting contamination lists
for the prohibited chemicals.
At the SPSC briefing, my colleague Commissioner
Mohorovic inquired as to the need for the CHAP
and today's amendment did address that
issue and took care of that problem.
In this regard, it would be important to
pinpoint the rationale for regulation of all
such chemicals and to make sure
that the restrictions specified
in this standard matches
that state of rationale.
This is another topic that I'll
look forward to reading comments on.
The changes being proposed today could have
the effect of imposing greater restrictions
on consumer firework than
our current CPSC regulations.
Therefore, it's very important --
and I just want to reiterate what
Commissioner Robinson said --
it's very important that we hear
directly back from our stakeholders
and I really do look forward to your feedback.
Thank you, Mr. Chair.
>> Commissioner Mohorovic.
>> No comments.
>> Okay. This concludes this
public meeting of the United States
of the Consumer Product Safety Commission.
Thank you.