>> Elliot Kaye: Good morning and
welcome to this public meeting
of the United States Consumer
Product Safety Commission.
Today, we will consider one agenda item, the
regulatory agenda and plan for fall 2016.
EPSC staff members joining us today are Mr.
DeWane Ray who is the Deputy Executive Director
of Safety Operations even if
his card does not exist yet.
He did move recently into that role.
Ms. Patty Pollitzer Supervisory General
Attorney in the Office of the General Counsel.
Dr. George Borlase Assistant Executive Director
for Hazard Identification and Reduction.
And Ms. Patricia Adkins our Executive Director.
Before we turn to five minutes of
questions for each Commissioner,
I'm just going to ask our general counsel to
give us a little bit of the rules of the roads
since this is the first time we have tried to
walk the line of discussing a document that is
under Official Use Only, but in a public
setting consistent with the Sunshine Act.
So Mr. Boyle if you would please
talk about what we may or may not do.
That'd be helpful.
Thank you.
>> Mary Boyle: Sure.
Basically, I just want to remind everyone that
while the Commission is discussing its policy
with respect to regulatory agenda, we're
not discussing the underlying document,
because that document won't be
released for several months as part
of the government-wide unified agenda.
So it's pre-decisional at this point in terms
of when it will be released to the public,
so the Commission can discuss general
policy with regard to the regulatory agenda
and issues embodied in that document.
But the document itself,
since it won't be released
for several months it's not something we will
be discussing in specific detail to the extent
if I have to remind folks, I
will try to gently do that.
But that's the expectation that will
keep underlying document confidential
until it's released to the public.
>> Elliot Kaye: Thank you Ms. Boyle.
And before e move on to asking staff questions,
I do want to give Commissioners an opportunity
for any point of order, clarification
of Ms. Boyle if they do.
Commissioner Adler do you have any?
Commissioner Robinson?
Commissioner Buerkle?
>> Ann Marie Buerkle: I do not.
>> Elliot Kaye: Commissioner Mohorovic?
Great. OK.
So now we'll move in to our normal round of
five minutes of questions for the Commissioners
of staff and I'm going to
start, please, with Ms. Adkins.
And first, thank you for the
work that goes into this.
I know there's a lot of work to
take all of the different documents
that the Commission has blessed publically
through the years and to update the documents
to make sure that we are consistent.
We don't have to comply with the
executive order that this comes
from which is 12866 from the 1993.
But we do try to comply with the spirit of it.
And so in Section 4(b) of Executive Order 12866,
it talks about that each
agency shall prepare an agenda
of all regulations underdevelopment
or review, do you feel that reg.
agenda that staff has sent up is
consistent with this direction?
>> Patricia Adkins: I do Chairman.
We certainly look at our operating plan.
We look at the mid-year activities.
We also look at our budget performance request.
And then staff also looks at the status
of the various projects that we have.
And in looking at all of those,
certainly we make the call
that this is what we were going
to forward to the Commission.
So at this stage, we feel as though
that we have accurately reflected.
>> Elliot Kaye: Thank you.
And I do want to commend Commissioner Mohorovic
in particular because it was his urging
of providing some of the impetus behind
us, taking a deeper dive into and he
and I have had discussions about the
purpose of the executive order and some
of the guidance that's been
issued by OMB and OIRA within OMB.
And it is, as I mentioned to him this morning,
it has been a good exercise in going back
and reading documents as a refresher
including the executive order and some
of the guidance just to make sure
that even though as I mentioned,
we're not legally required to
comply with the executive order
that there is a sense of the spirit of it.
And part of that based on some
of the guidance that I've seen,
certainly the most recent guidance that
OIRA has put out talks about being realistic
about timelines and being realistic
about being able to dedicate resource
in the next calendar year or the
next 12 months to these projects.
And I'm not saying are you definitely
going to take a specific regulatory action.
But are you comfortable that of
the items that are listed in here
that staff will be moving
forward putting forth--
taking some action, dedicating
resources to these items.
>> Patricia Adkins: I am comfortable with
that certainly it requires us to sort develop
to review to work on and that's
certainly the intention of the staff
and the up coming physically year.
>> Elliot Kaye: And the last thing I want to
ask about there're two anomalous rules in here
that those who've been following the
Commission closely know that are probably--
well, I call anomalous-- they're not quite the
normal rules the way staff works on something
and that I view them as being more
Commission-driven than staff-driven
and those are the voluntary recall notice
rule and these proposed 6(b) revisions.
The dates that were selected-- I'm
not going to get in to the specifics--
but the dates appeared not to be identical
to other dates that were selected.
Can you go it to some other
thought process, please,
for why those two rules appear differently?
>> Patricia Adkins: I believe you hit on it
in terms of Commission-driven, certainly 6(b)
and the voluntary recall rule
are areas that the staff felt
that the Commission should
the direct those in some way.
We certainly have more control over
the some of the other activities
that are in the regulatory agenda.
But we felt that the date that we set
appropriate and if it was the only will
of the Commission then certainly
they could take some action.
>> Elliot Kaye: And I continue to be
optimistic but the Commission either in part
or in whole could come up with
compromises to those rules.
And if that were to happen, and I like to
see that happen during this fiscal year,
would staff be in a position to execute some
parts of it in terms of redrafting or sending
up new packages based on
that Commission direction.
>> Patricia Adkins: We certainly
would be available to do that.
>> Elliot Kaye: Great.
Thank you.
Commissioner Adler?
>> Robert Adler: Thank you very Mr. Chairman.
I'm going to join you in praising our
colleague, Commissioner Mohorovic.
One of the delightful things about
working with him is that we reach a point
where we can disagree without
being disagreeable.
We can be quite heated in
our reasonable disagreements.
But he has brought a number
of policy issues to the agency
that would not have been brought forward
and might well have been
neglected if she hadn't raise them.
So I think he's a terrific colleague and I hope
we continue working in the same good spirit
and I would have the same by the way
from colleague Commissioner Buerkle.
Just-- I don't have a question.
I just have two quick opening comments.
First of all with respect to the
6(b) and the voluntary recall rules,
I've played a role in developing
those proposals.
I know Commissioner Buerkle is going to advance
the proposal on those and I did want to stay
in the spirit of the comments you just made that
I think the Commission has been walking around
and the chairman and particular with the
bull's-eye on our back about these rules.
I think there's an enormous
amount of merit to the rules.
But I'm also a realist and I can count votes.
And it does seem to me that the time has
arrived for as to move to a compromise.
So in that spirit I just want to
tell my colleagues that I'm planning
on circulating proposals both for
6(b) and voluntary recall rule
that I hope will be compromises that they
will all consider very, very seriously.
So and, again, I'm sorry to see the
bull's-eyes that's been on the chairman's back
at several congressional hearings.
The only other comment I wanted
to make is about the reg.
agenda in particular because I don't know how
other people use it but I know I use it just
as a reference point sometimes to say how
long is this pending rules have been sitting
around at the agency.
And one of the things that makes me so
sad is to look at the number of rules
that had been pending at the
agency for 5, 10, 15, 20 years.
And to me that's a reflection not of the
fact that they like married it's a reflection
of the fact that this Commission has
been budget-wise squished so tightly
that it's very difficult for us to free
the resources to work on these rules.
And what makes sad is there are individuals
out there who have been and will continue
to be sickened, burned, maimed, and
killed because we have not been able
to step up and finish these rules.
So I like that because it reminds me what
our chore is but it also depresses me
because it tells me that we don't have
the resources to do what's necessary
and we have some really cumbersome procedures
that we follow in order to promulgate rules.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Even
though we're not required
to do this I think is a good
exercise that we do this reg.
agenda because it really provides the
public with a transparent snapshot of what
at this particular moment
this agency is working on.
I was going to start somewhere
else but I'm puzzled by the--
both the Chair's comment and Commissioner Adler
and I assumed that they've spoken together
about this voluntary recall 6(b) rules.
Miss Adkins, I'm going to
address this question to you
but if somebody else could turn
the lights up it would be helpful.
I frankly don't know what that means that it
should Commission-driven and not staff-driven.
I mean everything this agency does is
Commission-driven and staff takes directions
and I don't even know what that
means that there's a bull's-eye
on the chair with respect to these rules.
My understanding from the information that
I have and some of it's been very public is
that even though the Commission-directed staff
to give us a proposal with respect to a package,
with respect to these two rules that the chaired
made it clear two years ago and continuously
since then that staff was not to work on this.
Do I misunderstand that?
And if so, why have you not been working on it?
>> Patricia Adkins: I think you are
accurate and he has certainly publicly said
that safety activities would take priority.
And if indeed there was staff
time available to work
on those two rules then we could
certainly-- we would do that.
But I-- as I said I think
publicly you are accurate.
>> Marietta Robinson: And I think that I made
it pretty clear and I think pretty explicitly
so why I think these rules are very,
very much about safety and I appreciate
that we have a difference of opinion on that.
But given the comments that were just made
by Commissioner Adler and by Chairman Kaye,
is my understanding that the directions have now
changed that you're going to be working on this,
because that was one of my question
because there's an 11/16 date on that
and I would be absolutely delighted.
I know that there's controversy on this but
controversy should certainly not stop us
from jumping into this and figuring out what
we can do that will help in public safety,
with respect to these two rules that
have been languishing for two years.
>> Patricia Adkins: I have not
received any recent direction.
>> Mary Boyle: I'm sorry.
But can I interrupt for one moment?
I just want to question Commissioner
Robinson to not refer
to the underlying document, if you could--
>> Marietta Robinson: I apologize; I
meant to just be referring to the rule.
Thank you
>> Patricia Adkins: We have not
received recent direction to work
on either of those two activities.
>> Marietta Robinson: Right.
So given what was said today, are
you going to be working on those?
>> Patricia Adkins: If we are given
direction to work on those, we will
>> Marietta Robinson: By the Chair?
>> Patricia Adkins: By the Chair, by
the Commission, we will work on those.
>> Marietta Robinson: OK.
Does the up plan and the reg, agenda for the
last two years the directed staff to work
on these is that not Commission direction?
>> Patricia Adkins: That
is Commission direction.
>> Marietta Robinson: OK.
>> Patricia Adkins: For my
perspect-- certainly from--
in my opinion, my perspective the Chairman
certainly does guide in many ways the activities
of the August staff and I said
there's been public comment by him
that we should work on other activities.
>> Marietta Robinson: That he
believes are higher priority?
>> Patricia Adkins: Correct
>> Marietta Robinson: OK.
Dr. Borlase, just very quickly the-- as
I understand it the items in the reg.
agenda that have dates on them are ones that you
are cautiously optimistic, we're actually gain
to be able to finish in the next 12
months, do I understand it correctly.
>> George Borlase: Correct.
>> Marietta Robinson: Good.
And the next one, I don't know to
whom to even address this question
but there are some projects that are
just associate with the all zeroes
and my understanding is that these
are projects that are on the agenda
because at some point there
was an ANPR, an NPR but the--
basically the Commission has decided not to
do anything but something would be needed
to take it off the agenda, so it stays on the
agenda until we give direction, is that right?
>> Patricia Pollitzer: Maybe I can address
>> Marietta Robinson: Oh, OK.
>> Patricia Pollitzer: So I
think those items are actions
that the Commission has begun initiated some
kind of role making action has issued an ANPR
for both rules, something like that,
so they continue to be open rule making
of the Commission take some action
to terminate a rule making--
>> Marietta Robinson: OK.
And we would need-- we would need
to affirmatively taken action--
>> Patricia Pollitzer: Correct.
>> Marietta Robinson: -- to remove them.
OK. Thank you so much.
I have nothing further.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr.
Chair and thank you to all the staff
for being here for putting together the reg.
agenda and for all of your hard work
on this issue among many other issues.
And to my Commissioner-- to my colleague
Commissioner Mohorovic, I guess,
thank you for asking [laughter], just kidding.
I won't be as perfused in my
accolades as my colleagues.
You know, actually it's good
opportunity for us to get together and--
[ Inaudible Remark ]
My questions have to do with
voluntary recall and 6(b).
And so I'm trying to understand the way it was
handled last year versus this year are they--
were they-- is it different, with this
date, with the dates that have been put in?
>> Patricia Adkins: As far as the approach?
>> Ann Marie Buerkle: Yes.
The approach that was taken using the dates.
>> Patricia Adkins: The approaches has not
changed, as I mentioned earlier that we're,
you know, certainly looking at the
operating plan, other documents,
talking to staff about the ability to
work on, review, develop those projects.
So as far as I'm aware the approach
has been-- has been consistent.
>> Ann Marie Buerkle: Well, let
me ask a different way then.
So does the staffs' choice
for the dates that are
in this document reflect what Commissioner Adler
just mentioned about reaching compromise or?
>> Patricia Adkins: I think-- Let me go back,
I think Commissioner-- if I can suppose--
Commissioner Adler was saying that he was going
to in the not too distant future suggest
something to the Commission related
to either one rule or both of the rules.
But we have not received any specific
information about what that would be,
I think he, one, certainly, wants to discuss
with his colleagues before we would move forward
with anything that the Commission
was directing us to do.
>> Ann Marie Buerkle: Thank you.
I just want to call my colleague's attention
to the fact that we've been directed
by Senator Moran's office to-- in a public
hearing let his office know if we intend
to make any movement with
regards to voluntary recall
and I would say that this timeframe in the reg.
agenda certainly would reflect
that or so it would seem.
And I think they've been very clear
about voluntary recall as well as 6(b),
that 6(b) is congress' preference they have
given us a tremendous amount of discretion
to gather information but also we have a legal
responsibility to protect that information.
They made that clear.
They've had opportunities to
change that one, they haven't.
So when we talked about changing 6(b) or as you
pointed out so aptly it is Commission-driven,
these two issues, or voluntary recall notices,
I think we have a responsibility to the Hill
and they're waiting to hear whether or not we
are going to do something about these two issues
and I would just end by saying it as recently
as July 14th, staff was up on the Hill
to Senator Moran's office and to the
committee folks advising that we were not going
to take care action on voluntary recall.
Anything we have done to date is consistent
with what we have said to the Chairman.
So I just put all that out there I
have great concerns that we've decided
to move forward on either one of these issues.
We have responsibility to
let the Hill know that.
Thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
I also want to thank all the staff for the
hard work in this and especially the staff
who contributed to the arrangements,
making a decisional meeting on this matter.
I very much appreciate.
I it was a short timeframe and a lot to
look and review in short period of times.
So thank you very much for all
those efforts that went and thanks
for my colleagues for their appreciation.
I similarly appreciate the dialogue and the
interaction that we have with each and everyone
of my four colleagues on every
matter before the agency.
I don't have any particular questions for
staff, so big sigh of relief from the panel.
But Mr. Chairman, in order to
maybe help you with your phone
that might be ringing I think
I might have heard this right.
If you can maybe clarify if you don't yielding
to a point that I thought I heard you said
that you wanted to try to reach consensus
on the two rules we've been discussing.
This fiscal year, did you mean this
fiscal year '16 since we're still
in it or did you intend to mean '17?
>> Elliot Kaye: I meant the
fiscal year reflected
on the document in front of us which is '17.
>> Joseph Mohorovic: OK.
So people see that one that when
it eventually does come out?
>> Elliot Kaye: If it does.
>> Joseph Mohorovic: If it does, too.
That's right.
Thank you very.
That's all the questions I had.
>> Elliot Kaye: I'd like to go
another round just to ask a couple
of clarifying question based on Commissioner
Buerkle and Commissioner Robinson's questions.
So Miss Adkins just to be clear, the staff
has not been given any direction specifically
related to Commissioner Adler's potential
proposals to under take any more work,
meaning Commissioner Buerkle's concern
that we have not notified the Hill has not
yet been triggered because there
hasn't actually been anything correct?
>> Patricia Adkins: That's correct.
>> Elliot Kaye: And as far as I
understand it you're not privy to--
I'm not privy, you're not privy to
whatever Commissioner Adler is considering?
>> Patricia Adkins: I am not nor as a staff.
>> Elliot Kaye: OK.
And Commissioner Rob-- thank you for that.
And Commissioner Robinson raised the idea
that the Commission had directed staff
to under take work which
is true for basically any
of the work direct in the
operating plan correct?
>> Patricia Adkins: Correct
>> Elliot Kaye: And is it also accurate that
all of the items that I've been very clear
about of what my priorities are are also
Commission blessed item in the operating plan,
meaning, I'm not substituting in my direction
to you items that are out of the blue,
that I'm making up I am basically just
choosing items that the Commission blessed
and pursued the authority vested in the Chairman
and the Consumer Product Safety Act prioritizing
which activities staff address this first of
that Commission blessed list, is that correct?
>> Patricia Adkins: And that's correct as well
>> Elliot Kaye: And so from your perspective
and feel free to disagree with me seriously,
do you believe from a safety perspective, from
a core agency mission perspective the work
that I prioritize, the table saws, window
coverings, ATVs, the 104s, portable generators,
do you think that those are more important
from a safety perspective or less important
than the voluntary recall
notice rule and the 6(b) rule?
>> Patricia Adkins: And this is my opinion--
>> Elliot Kaye: It is just your opinion.
>> Patricia Adkins: -- my opinion.
I would say that those are
more important because they are
from my perspective directly
affecting consumers, families,
we certainly look at it from, in recent
depth, associated with those particular topics
and projects that we're working on.
So I do find those to be items
that directly impact our mission.
>> Elliot Kaye: More so than the other two?
>> Patricia Adkins: Correct.
>> Elliot Kaye: Dr. Borlase,
do you disagree with that?
>> George Borlase: No, we evaluated based on
number of injuries, deaths, and assessing party
and the other, one you mention, all have
the injuries that's associated with them.
>> Elliot Kaye: Mr. Ray,
any disagreement with that?
The mic, thanks.
>> DeWane Ray: No disagreement.
>> Elliot Kaye: And none of this by
the way to say that there's no merit
to those particular rules, voluntary
recall and 6(b), it's just all relative
which I've also been public about.
This is not to say that they don't have merit.
I do think that they have merit
and I'm open and very eager
to see what Commissioner Adler might
proposed, we just have very limited resources
as Commissioner Adler mentioned and
I do think it's important working
with though [inaudible] working
with senior staff
that we do continue prioritize
those safety rules
that will have a much more
direct impact on safety.
Thank you.
Commissioner Adler
>> Robert Adler: Well, I will
disagree with the Chairman.
I think that the 6(b) and the voluntary
recall rules have a very, very strong
and immediate and direct impact on safety.
I'm not prepared to say that with
respect to any of this items you went
through that these rules would take dominance
but I do think it's possible to work on both.
And for those who are looking for a
conspiracy, there really isn't one.
I hadn't thought about floating a compromised
proposal although I have discussed possible
comprises with all my colleagues
from time to time.
But until I'd seen Commissioner
Buerkle's intention to put in an amendment
on these two items, I hadn't really thought
about floating a proposal but it dawns on me
that the time is, at least from my perspective,
ripe that it will still take a majority
of my colleagues to agree that we
would even take up these rules.
And I have no problem Commissioner
Buerkle with notifying Senator Moran,
I think that we do have an obligation to--
when Hill asks us for information
to share that information.
So I thank you for the reminder.
I do think that the time is ripe for us to
fish or cut bait when it comes to these rules.
So it is my hope especially with my
office trying to follow the examples set
by Commissioner Mohorivic that if you have
a proposal you actually do the work yourself
and you circulate it and you do the research so
that you can put a proposal for the Commission,
I would not want somebody telling me
that I can't do something
because the staff has to do it.
I think that it's the role
of the Commissioner when he
or she has a proposal to
float that they do that.
And I think all the Commissioners
have done that.
So that's my only comment at least until we get
to Commissioner Buerkle's proposal if we get
to that because I have some
substantive comments about the two rules.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Feel like I'm not a court
room and I can't object to leading questions
that the Chair asked of the people
who answered directly to him.
But I'm going to try to stay on topic here.
But Miss Adkins, the projects that the Chair has
listed are require EXHR [phonetic] resources,
right?
>>Patricia Adkins: EXHR but certainly
we engage other use within the agency--
>> Marietta Robinson: I understand.
But the voluntary recall and the 6(b) is
about complaints and OGC resources, correct?
>> Patricia Adkins: I would also say that OCM is
involved in certainly the voluntary recall rule.
>> Marietta Robinson: Of course.
But they're not involved in the EXHR, the
table saws at this point, right, for example?
>> Patricia Adkins: Are you talking about OCM?
>> Marietta Robinson: OCM, yeah.
>> Patricia Adkins: They are not.
>> Marietta Robinson: Right.
So we're talking about completely different
animals in terms of resources at the agency.
And I very, very much agree with
Commissioner Adler that when we talked
about getting information out to the public and
when we talk about recalls that they are very,
very much concerned with safety and there's
absolutely no reason what the resources
of this agency that we can't go down
both the roots of addressing the projects
that the Chairman has listed and then
all of the Commissioners concern with
and all of the Commissioners to
make clear their concern with
and also pursue these two critical rules
that can be so important to safety.
And I'm very heartened to hear Commissioner
Adler say that it's time to fish or cut bait.
I really think that too often here we ran
from disagreement and I think we're all adults
and we have thick skins and we have
reasoned ways of discussing things.
And I think that it is time for us to discuss
if there isn't some way for us to come
to a compromise on this and thank you so much
Commissioner Adler for taking this project on.
I appreciate it.
One question and again I don't know to whom to
address this but could somebody quickly explain
to me what the analysis is
that staff undertakes to decide
if they designated an item a potential
significant regulatory action in the reg.
agenda. Maybe that's you Ms. Pollitzer.
>> Patricia Pollitzer: I
can address that I supposed.
So the term significant regulatory action
is defined in the Executive Order 12866
that has several criteria, the clearest one
is the monetary amount of a rule as expected
to have an impact, an annual impact
of a hundred million dollars or more.
>> Marietta Robinson: And while I
understand that because of the language,
but what do we do to decide if
in fact the project we're talking
about would fall into that category?
>> Patricia Pollitzer: So what
we've done generally is look
at the proposed rules that
we've issue in the past.
For most of the proposed rules that the issue--
that the Commission issues at least
under the Consumers Product Safety Act
and certain other acts, the staff has
to prepare a regulatory impact
analysis along with the proposed rule.
So we use that as a basis to decide whether
it's significant regulatory action or not.
>> Marietta Robinson: So prior to
that analysis we wouldn't classify it?
>> Patricia Pollitzer: Correct
>> Marietta Robinson: OK.
I think that's all.
Thank you
>> Eliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: The Chair
has asked that yield in 30 seconds.
>> Elliot Kaye: Thank you very much.
Just to be clear, the General Council's
Office support all the EXHR rules, correct?
[Inaudible] the General Council
like that as well.
>> Yes.
>> Elliot Kaye: Meaning all of
these rules require OGC resource
that would otherwise be spent on other items.
>> Correct.
>> Elliot Kaye: OK.
And also can you just give
10 seconds, Ms. Adkins,
of what it means for senior staff what the
6(b) clearance process means so that even
if a different part of an agency
drafts the underlying portion,
what it means from a resource perspective that
the senior manager have to spend the time trying
to clear that package how laborious that can be
and what they can't otherwise do with their time
and how one something comes into 6(b),
the clearance process that's used
at the senior staff level
what that really means.
And I just happen to-- and Commissioner
Robinson was not fortunate enough
to be the executive director as I was, so I have
a unique experience of having lived through that
and what that means from resource perspective
and that hasn't formed my view point
and I apologize Commissioner
Buerkle, I make up the time for you,
that has informed my view point as to
what went into choosing, the priorities,
knowing about the clearance
process and how laborious that is
for the Executive Director's
Office and the senior staff.
>> Patricia Adkins: Certainly.
Well, obviously, there's a lot information--
lot of activity that goes into an
effort before it even gets to 6(b)
in terms of the clearance process.
So there are other aspects before
we get it that have to be cleared
and reviewed by the AEDs before we see it.
There are probably about
anywhere from five to seven people
who look at the final packages in 6(b).
Certainly, there are small packages, you know,
may be 5, 6 pages but then some of the packages
as you all know range from, you know, 50
pages, 150-- to 150 pages or even more.
And we read everything.
And then as we're making comments by the
five to seven people who are reviewing it,
then the staff has to go back
and address those comments.
We will then also look at what they
have responded based on the comments
that we have given and then there could--
we could not be maybe satisfied
with what they provide to us.
So there is a major back and
forth that occurs in 6(b).
And it could go on for weeks.
>> Elliot Kaye: And thank you for that.
And I do apologize, Commissioner Buerkle.
I'll just wrap it up by saying-- what I
heard her say was 3 minutes not 30 seconds.
Those five to seven people are these five
to seven senior most people at the agency,
I mean, from a staff perspective?
>> Patricia Adkins: They are.
That's correct.
>> Elliot Kaye: And when you're doing that in
6(b), you're either doing that at night as I had
to do it or you're doing it during the
day and it's very difficult to find a time
to do anything else for those big packages?
>> Patricia Adkins: That's correct.
>> Elliot Kaye: Thank you.
I apologize, Commissioner
Buerkle,, I yield back.
Thank you.
>> Ann Marie Buerkle: It's OK.
I just want to be clear about these
dates again on voluntary recall and 6(b).
Because quite frankly when I looked
at this I thought it was just in here
that for some reason these were
being treated the way the rest of--
you know, the things that we
really don't have a date certain
and the constraints of this document.
So those dates were put in inadvertently
rather than we are going to do something.
So I'm wondering who made the decision to treat
this differently than it was treated last year
and to put this date in for 2016?
>> Patricia Adkins: Apparently staff submitted
the dates and then we do the OEX review
of the dates and this was the first.
What I'll just describe as
available date to attach to 6(b)
and also the voluntary recall rule.
I think the given as I've said, it was--
what we viewed as more policy-directed
and also Commission-driven that seemed more
appropriate to just take the next date.
We didn't want to presume to go
to the end of the fiscal year.
We didn't feel as though that was something
that we had as much control over as say some
of the other activities that have similar
dates as 6(b) and the voluntary recall rule.
>> Ann Marie Buerkle: Well, let me ask this
because at my office and I know other offices
as well have put a lot of time into
what the chairman publicly announced
of workshop on recall effectiveness.
It seems to me that workshop would
certainly be relevant to any rule making
and what we would do going
forward with voluntary recall rule.
And so it seems a bit premature
that we would put a date
in here for November-- I take that back.
I could see Mary over there.
She had her hook out.
And so it seems a bit premature that we
would put these dates certain into the reg.
agenda when, in fact, at
least on the volunteer--
the recall effectiveness workshop that may
have some relevance in our rule making.
>> Patricia Adkins: I know you
described them as dates certain,
I think there is if they're estimated,
their approximations in terms of the dates?
>> Ann Marie Buerkle: Well, I understand
approximation but it would seem
like that approximation should be more--
certainly makes sense in terms of a workshop
that just going to happen, we don't
even have a date for that yet.
So it would seem that then
the timeframe and the reg.
agenda would be beyond the
recall effectiveness workshop,
and I don't think that's
reflected in the document.
>> Patricia Adkins: And the only response
that I can give Commissioner Buerkle is that,
if that date is unacceptable, then
the Commission certainly has the--
certainly the authority to
make a different suggestion.
>> Ann Marie Buerkle: Thank you very much.
That's all I have.
Thank you Mr. Chair.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Nothing further.
>> Elliot Kaye: Commissioner
Adler, anything else?
>> Robert Adler: Nothing.
Thank you.
>> Elliot Kaye: Commissioner Robinson?
Commissioner Buerkle, anything else?
Commissioner Mohorovic?
Great, OK.
Thank you to the staff for those responses.
We're going now move to considering any motions.
Are there any motions to consider or amendments?
>> Ann Marie Buerkle: I do
have two amendments Mr. Chair.
>> Elliot Kaye: [Inaudible] like to see
with the first one and describing it please,
and then I'll ask for the second.
>> Ann Marie Buerkle: So my first amendment is
to change the due date of the briefing package
for voluntary recall notices to 9/30/2017.
>> Elliot Kaye: Is there a second?
>> Joseph Mohorovic: Second.
>> Elliot Kaye: Having heard the second,
we'll now move to consideration of the motion?
I feel like I've said what I needed to say.
But I will yield 3 minutes to you if you'd
like to speak more about your amendment.
>> Ann Marie Buerkle: Thank you.
I'm going to offer a second amendment.
And my comments will be a combination for
both of the amendments, so however you want--
>> Elliot Kaye: Open for you taking the time
you need to describe the amendments as you wish.
>> Ann Marie Buerkle: So, well, should I offer
my second amendment and handle them jointly?
>> Elliot Kaye: No, let's
do one at a time please.
But if you can describe them both, but we'll
procedurally just do one at a time please.
>> Ann Marie Buerkle: So my second amendment
is changes the due date of the briefing package
for the amendment to regulation
and information disclosure
under section 6(b) also to September 30th, 2017.
>> Elliot Kaye: And I'll ask
for a second after when we--
when that amendment comes back up the next time.
But if you wanted, you can take the time to
describe your amendments and then we'll move
to consider the first and then
I'll ask for a second on the second
and then we'll move to consider that.
>> Ann Marie Buerkle: Very good.
So both of my amendments deal with
scheduling the briefing packages
for final regulations specifically
both seek to postpone the due date
for certain briefing packages
until the end of the fiscal year.
The first amendment concerns the scheduling for
the so-called voluntary recall notices rule,
and the amendment deals with 6(b) regulations.
Frankly, and this is no surprise to
anyone if I had my way neither one
of these regulations would ever be
finalized, not in the way at least
that they're being proposed currently.
Both were roundly criticized in
public comments, we have tried before
to move them off the agenda entirely but
there's not a Commission majority unfortunately
to do that.
The Chairman has indicated that they are
not a priority for him and he has pledged
to give the Chairman the senate
oversight committee a heads
up if he decides to move ahead with any of them.
Imagine my surprise then and
I will say I was surprised
and as I just mentioned I just thought
it was sort of an error that it got--
these two issues got lumped in with some of
the other higher profile in safety issues,
but when these two items showed
up with due dates in November
of 2016, a very short period of time.
My intuition and again I will say that they
were assigned November date by mistake,
I think they got lumped in with
some of the other EXHR projects,
but apparently I was incorrect
with that assumption.
What they say about assuming.
So I've heard this morning that we
suggested that this is how we carry over--
we handle our carry over projects.
If they aren't finished by the end of the
fiscal year then they are assigned an early date
in the next fiscal year in the reg.
agenda. But this is not how we've
handled these rules in the past
and I don't think we are handling the
carry over rules in the same way slings
for instance shows a completion
date of September 2017--
>> Mary Boyle: Excuse me Commissioner
Buerkle, if you could just refrain
from discussing the specific of the
underlying document I would appreciate it.
>> Ann Marie Buerkle: Thank you.
>> Mary Boyle: Thank you.
>> Ann Marie Buerkle: Finally, as the
Chairman announced and I just mentioned
that we are planning on having a public workshop
on recall effectiveness, I've always thought
that that workshop would cover some
of the topics of the voluntary recall
and the information we gain from the
workshop certainly could help us resolve some
of the thorny outstanding
issues with this proposed rule.
If that I true then it's another reason I think
that we should not be showing November 2000--
that we should not be showing this date as
a completion for the voluntary recall rule.
Thank you.
>> Elliot Kaye: So I'll now move to--
or we'll now turn to either questions
for Commissioner Buerkle or comments
on the amendment and I'll just briefly say that
from my perspective and I can't speak to thing
about a staff that an excellent
job of explaining
from why they chose the dates they
did or how they carried it over,
nothing has changed from my perspective.
And so if there's any concern Commissioner
Buerkle that stuff is either implicitly
or explicitly signaling that they are
moving forward on these two rules either
on their own initiative or from
direction from me, that is not accurate.
The position that I've taken remains.
I am encouraged as, you know, I've
been pushing for potential compromise
at the Commission level now
for the last almost two years.
I'm encouraged that Commissioner Adler
is going to move forward with that.
If and when that happens I think
that that will coincide well
with a recall effectiveness workshop and we can
consider any proposals that he might put forward
on that rule in conjunction with it.
But I do agree with him that at this time for
the Commission both to save stuff resources
and in large part because the controversial
portions of those two rules really did arrive
at the Commission level, I do think it's
time for us to move forward on those
and I'm very pleased to hear that and
so hopefully that means more to you
than what ever dates may or may not
appear in this particular document.
Commissioner Adler?
>> Robert Adler: First of all thank you
and thank Commissioner Buerkle
for a very thoughtful proposal.
I will say that if I had
every thought for a second
that the recall effectiveness workshop would
be used as a basis for not making progress
or not moving forward on
the voluntary recall rule,
I would've been much less
enthusiastic about doing it than I am.
That said, I think that it is useful to
make sure that anything we would do by way
of amending the proposal that's before us
should be consistent with issues that are raised
in the recall effectiveness workshop.
I think the recall effectiveness workshop
is going to be much more aimed at coming
up with new approaches, more novel and
creative approaches for recall effectiveness
that I don't think will have much relevance to
be quite honest to our volunteer recall rule,
but if somebody wants to demonstrate to me
that there is some relevance there
I'm certainly open to hearing that.
I think the voluntary recall rule is
something that needs a little bit of history.
And the history behind this is that this
was not a Commission initiated matter,
it was something that in particular our office
of communications was asking for clarification
and the approaches that we took with respect
to how we negotiated recall settlements
and it was designed to expedite and
make the process more efficient.
The merits of that remain and the
language that I had proposed with respect
to making recall agreements voluntary corrective
action plans legally binding with something
that did not come from Scott Wilson and any of
his stuff, it's something that came from me.
I think there's still an
enormous amount of merit to it.
I'm not going to apologize for any proposal
that I made but as I say I'm a realist,
I think that what we need to do is-- and
I will confess, I am a serial compromiser
and I am unabashed and unashamed to say that.
So what I'd like to do is to get as much of the
substance in the merit of the voluntary recall
as we possibly can and move forward with
it and I think that this is something
that we can discuss and elaborate once I've
actually put my thoughts down in writing
and shared them with my colleagues.
Thank you.
>> Ann Marie Buerkle: Well,
Commissioner Adler you'll
>> Robert Adler: Sure.
>> Ann Marie Buerkle: So that's true what
the original the genesis of this package came
from OCM and the interest was in
facilitating the recall notices or put out
and I would say beyond that then it
was what the Commissioner has proposed
that created the firestorm and
it has caused all the controversy
and cause really a tremendous amount across
all spectrums of the industry and the concern
with regards to disclosure of information
on 6(b) rule and also with voluntary recall.
That was Commission generated and the Commission
can take credit for all of the firestorm.
>> Robert Adler: I would agree
with every word you said except
when I pluralize the word spectrum I say
spectra but not injecting a small note of humor,
but I think that's exactly right Commissioner
Buerkle, and so therefore we should not try
to avoid the fact that this was
a Commission generated proposal
and therefore I think it's incumbent upon
us who offered these amendments to work
with one another and see if we can't come
up with something that would be satisfactory
to the Commission or at least to
resolve it one way or the other.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Since I'm the only other
Commissioner who's been a Commissioner long
enough to have participated in
this with Commissioner Adler
and obviously Commissioner Buerkle
participated in that discussion.
But I certainly back Commissioner
Adler's proposals
for the amendments to the voluntary recall rule.
But let me just say this and I will-- since
we're separating the voluntary recall rule
from your proposed amendment on
6(b), I will stick with that.
My perception from this chair
is that what happened on this is
that there was a firestorm although I do have to
say that when you talk to any individual lawyer,
he or she cannot keep a straight face and saying
that a negotiated agreement that is reduced
to writing the both parties
sign is not legally binding,
they certainly as a group
have come out with this.
But that's not the point of raising that
that seems to be the point of conflict.
The point is this, yes, we
have controversies, so what?
This is absolutely no reason
to put this on the back burner
and say that we don't have the resources
to address which I think has been the case
with too many issues in the last two years.
And as I'm hearing the Commissioner speaking,
I think we have three of us who very much want
to put this back on the front burner
and let's have a debate on it.
Let's figure out what compromises we can make,
all of us sitting up here have compromised
on a number of occasion I
think that's the reason
that this Commission is as strong as we are.
We do come to agreement.
And if we don't agree then we
don't agree that-- c'est la vie.
But I think that the idea of not addressing it
because it's potentially
controversial is something
that makes absolutely no sense particular
given the business of this Commission.
So Commissioner Buerkle I appreciate why you're
trying to put the date in the September of 2017,
but I cannot agree with this because I think
it's something that after all this time
of languishing that it's time
to take it on and if we end
up with a 5-0 decision and it compromise, great.
If we don't, we end up with some vote
that's not a unanimous vote, so what?
That's what we do.
But it's time for us to make
a decision because these--
the voluntary recalls are probably 90%
plus of what we do here and to make sure
that our rules are clear for the stakeholders
that they're clear for us is something
that is absolutely essential to us
doing our job of protecting the public.
So I cannot support this amendment.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
Mr. Chairman, as I look at this amendment
before us right now in plain an simple terms,
Commissioner Buerkle is suggesting that in our
future unified agenda we reflect this one item
as showing that we'll have a briefing
package at the end of the fiscal year, right.
That's the language we have in front of us.
Whereas in previous versions had demonstrated
going final, final rule at a certain due date
and one can look at any of our past
unified agendas to look at that.
So what she's doing right now is trying to
put a date when we're going to get to this--
when we're going to get to this matter?
And this matter has been suggested that it's
not being staff-driven but Commission-directed
and Commission-- it's been derived by the
Commission, so it's perfectly appropriate
for us the Commission to be clear with
the pubic in terms of when we're going
to have this mater resolved because if you
look at our instructions for the unified agenda
and I'm holding in my hand here the instructions
from our Administrator Velira [assumed
spelling], Mr, Shelansky [assumed spelling]
and with regards to the unified agenda,
the instructions to the Commissions
are the following.
The time tables, that's exactly what
Commissioner Buerkle is referring
to here with her amendment.
The time table's that appear for each entry in
the unified agenda are particularly important
for the public-- for public
understanding of the timeframes
for participation in the regulatory process.
Please take all reasonable steps to ensure
the accuracy of time table information.
But we also heard today,
which is a surprise to me
and that's why I'm glad we
have these decisional rules.
We're not allowed to get together like
this unless in this kind of a forum
that Commissioner Adler is-- has some
thoughts in his mind and he plans on sharing
with the Commission to seek some compromise
on not just this matter, but the other matter
with which Commissioner Buerkle
has a suggested amendment.
And I'll note that in the time tables, this
is the 2000, I just quoted from 2006 version.
It's kind of funny to see that when Mr.
Shelansky first was making these suggestions I
noticed the slight nuances and differences.
In 2013 he asked that we make a
sincere effort to ensure the accuracy
of time table information, so I guess sincerity
was far too much to ask for the Commissions--
for the different Commissions and agencies,
so now it's just asking us
to take reasonable steps.
And I think what Commissioner Buerkle has
introduced is a very reasonable step here.
If this is Commission-driven,
Commission-directed how can we ask the
staff to, you know, look into our minds.
But I am afraid I might get the backhand
of my colleague Commissioner Buerkle
if I would also suggest that if somebody has
something else in mind when they're going to try
to seek compromise, now is the time to set
the date, because after all the purpose
of this unified agenda is for
the public to be able to engage.
It uses the word promoting predictability.
We don't want to spring things on people.
We don't want to give the false impression
that we're going to get to something.
That's why, Mr. Chairman, I was asking
for that specificity with regards
to the current fiscal year
we're in right now, FY '16.
>> Elliot Kaye: Do the Commissioner
yield for a question to you?
>> Joseph Mohorovic: I will.
>> Elliot Kaye: I won't take 3 minutes.
How was it more accurate if Commissioner Adler
plans on circulating something that could end
up prompting the Commission to move
more quickly, how was it more accurate
to put a later date than an earlier date?
Wouldn't be more likely to spring something
on the public if they're expecting the end
of next fiscal year versus something sooner?
>> Joseph Mohorovic: Well, that's why, Mr.
Chairman, I was afraid to get the backhand
of my colleague Commissioner Buerkle if I was
suggesting that Commissioner Adler provide
and amendment to her amendment
with regards to a different date.
And I know that Commissioner
Adler can't foresee whether
or not he'll be able to achieve compromise.
But this effort is all about our
most sincere reasonable effort,
when we're going to get to this.
So, congress, so the public can engage
because after all, the regulatory process
and its purposes are for public engagement.
This should not be an insider ball thing.
And that's the whole purpose of all these.
That's the purpose of all
these regulatory agendas.
So, Commissioner Buerkle, I
apologize if I've argued perhaps
against using the end of the fiscal year.
But if that's what Commissioner Adler
has in mind as an appropriate date,
then I would suggest maybe that he
get behind Commissioner Buerkle's.
But without mentioning any proposed dates
at all, I think that at the very least,
we shouldn't be trying to spring
something on some in raise-- some raise--
some concerns with the date
other than we've normally done
which is kick this rule back
to end of the fiscal year.
So, that's why I'm support of the current.
But would be open, my mind is
open to hearing an alternative
if somebody has something
that better achieves accuracy.
I want the public to know when we feel we
think we're going to address this matter.
Thank you Mr. Chairman.
>> Elliot Kaye: Buerkle.
>> Ann Marie Buerkle: Thank you.
Well, thank you for your
comments Commissioner Mohorovic.
I am-- and I think the language used
is reasonably expect in terms of--
and so, I think I would ask the staff, do we
reasonably expect that some action will be taken
by the date that's indicated in the
voluntary-- excuse me, in the reg.
agenda?
>> Patricia Adkins: Commissioner Buerkle,
are you saying for the entire reg, agenda?
>> Ann Marie Buerkle: For
the-- on this specific topic,
voluntary recall that I've
raise in this first amendment.
>> Patricia Adkins: I don't
know that I can respond
to that given what the Commission has already
said and Commissioner Adler that he is looking
to share something with his colleagues
about the voluntary recall rule.
Certainly, when we put the date
there, again, it was one that--
it was the next available sort of
date in the various ones that we have.
And as I said earlier, it's the will of
the body to make an adjustment to the date.
And just as sort of additional
background, it's--
I think it was said, will it
be done by a certain a time.
And usually, it's-- well, not usually--
but I'll say, when we're looking at this,
it's the work of the review or the development
of an activity that we're looking at,
not necessarily that it is the end date that
we will have, a rule, but-- if I'm correct.
And I can ask either Patty or our general
counsel to say or to weigh in that you have
to start the work, you have to develop, you
have to review, you have to be working on it.
It's not necessarily that we will complete.
Am I accurate to the general counsel?
>> Mary Boyle: If you're talking about
what the purpose of the regulatory agenda--
>> Patricia Adkins: Correct.
>> Mary Boyle: -- by choosing the languages in
terms of what's-- and this is in our preamble,
what's under review, what staff is working on,
I don't-- even though we do projected dates,
I don't think those dates are meant to be--
well, none of it is meant to be binding.
So, I do think the concept is that
we're reflecting work of the staff.
>> Patricia Adkins: OK.
Thank you.
So that, I'm saying, could something start
at the date that is listed for this activity?
It could, depending on the timeframe
for Commissioner Adler's
engagement of his colleagues.
>> Ann Marie Buerkle: Thank you.
And I apologize because the
question may have been out of turn
since we already had our
opportunities to ask questions.
I do want to just comment on
Commissioner Robinson's comment.
I'm not afraid of a fight.
I'm not afraid of discussion.
I'm not afraid of debate.
I've tried getting this out
of the agenda every which way
because I think it's bad policy
for the agency on both counts.
So, I'm not afraid of-- I just am realistic
and knowing that I'm in the minority here.
And so, my actions are limited.
And so, that's why I've chosen this route.
>> Elliot Kaye: The only final comment I'll
make, and thank for you amendments as I think
that Commissioner Mohorovic
has raised the timing issue.
And I do think that getting into the
specific dates that may be in the package,
it's better to alert the public
too soon in my mind than too late.
And it seems that the package
is more likely to tell somebody
that something might happen before it happens
than where the amendment would tell them.
They don't have to worry about it.
They don't have to pay attention to it.
They can come back in a number of months
and then tune in on those particular rules
with an expectation of then
maybe something that happened.
And they may have missed it at that point.
So, I do think that the amendments,
unfortunately, are not consistent
with alerting the public and
giving the public a timeline
that they should be alert--
be paying attention to.
So with that, unfortunately, I won't
be supporting either the amendments.
But I have no more comments at this time on it.
Commissioner Alder.
>> Robert Adler: I did want
to make a quick comment.
I have not given up all hope
in getting Commissioner Buerkle's
vote on a compromised proposal.
And I hope she will look
at it with an open mind.
And I'm delighted to engage in
any discussion about it to see
if we can't reach a mutually
acceptable compromise.
With respect to the timing on this,
I would say sooner rather than later.
In fact, I've been thinking about this.
I think we all have for years.
And I've actually even sat down and done a draft
of what I think a compromise might look like.
So, it's not that far off from me actually
having a written document to share.
But this is also something that
I feel an obligation to run
by staff and to run by my colleagues.
So, rather than doing it precipitously, I'm
going to try to make sure the process works.
But trust, it will be sooner rather than
later once I decided I was going to do it.
It looks like Commissioner Mohovoric wants to--
oh, you had your hand on
button so I thought that-- OK.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I was not for a moment
suggesting Commissioner Buerkle that you are not
up for a robust conversation or as you
call it a fight, quite the contrary.
I think that, in fact, Commissioner Mohorovic
and I had this conversation yesterday,
that at least the three of us very much want to
either get it off the agenda or take care of it.
Let's have this conversation.
Let's have the debate.
Let's figure out what the compromises are.
And this morning, it's the first time I've heard
that Commissioner Adler very
much wants to do this, too.
So, I am delighted and I look forward to it.
And we'll get it off the agenda one way or
the other if we can get four of us together.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
My disappointment with our approach to this is
generally and specifically with this matter,
with regards to the time and
the voluntary recall rule,
we refuse to make a sincere effort for accuracy.
With all due respect Mr. Chairman, your
approach for me to summarize it was, well,
we'd rather err very, very soon
so that people would become aware.
They wouldn't become-- wouldn't
be sprung on them.
But that's exactly contrary
to why we have this document.
The language and the spirit of why have
this agenda, is to promote predictability.
So, in order to be predictable and
allow the public to have the benefit
of predictability, we have
to strive for accuracy.
That's not strive to put an earlier
date on something so that, you know,
when it transpire six months or eight months
later, we certainly didn't do it too late.
We're trying to allow people
to manage their resources.
And this is something that, maybe
outside of government, happens constantly
in the private sector for almost 10 years.
I had to constantly do this with capital
authorization, request for new equipment,
to predict what type of revenue it's
going to yield and the cost and what kind
of figures public sector companies constantly
have to be able to try to do their best
to predict with analysts, what their future
results will be from a business practice.
This is all that we're being asked to do.
But I mean, I think it's unfortunate
that we don't have a majority
that really wants to strive for accuracy.
So, I know it's difficult.
I'm looking down [inaudible] Commissioner
Adler who has some thoughts in his head.
And I know it'd be difficult
to put a number down on that.
But I wish he did.
And perhaps, if this amendment fails,
perhaps he would put an amendment
in which would be his best effort.
So, it's not trying to be too--
we're trying to get as much we can
to the bull's-eye on this matter.
So, I'll support this effort because I think
it's at least jacks are better to open.
But yet I think what the clear
takeaway is here that the unified agenda
or any time table put next to these
particular matters and in this one
in particular is not done with any
sense or desire to achieve accuracy.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Well, I just-- my
concern is that for years now, the last--
since this rule came out in 2013, we've
been-- Chairman has been saying to the public,
it's not a safety priority, therefore, I don't
see any sense of urgency into taking this up.
And so now to have it this date in the reg.
agenda is of concern to me.
And so I just think it makes far greater since
to project it out and then to see and to work
with my colleagues and to see if we
can come up with some compromise.
But to let the public know Commissioner
Mohorovic says, give them some certainty,
some predictability in what
we're talking about today.
We will work hard to come to some compromise
and to get rid of the more controversial
and make this a reasonable package so
we can in fact recall effectiveness.
But it seems by putting in this
date, we are not being clear.
We are doing a 180 on what we've been saying
for years now that this is not a priority.
This is not a safety priority,
therefore it's going
to take a back burner to so many other issues.
And I think that to me is troubling
and to Commissioner Mohorivc's
point regarding public information
and certainty, that concerns me.
>> Elliot Kaye: So continuing the discussion,
Commissioner Mohorivic, I'm going to yield
if you're willing to answer a question.
I'm just curious to now since I think we both
share the same goal which is to strive to be
as reasonably accurate as possible
on a public notice perspective.
What I'm missing is why you think a date at the
end of the next fiscal year is more accurate
for this particular package
than an earlier date?
>> Joseph Mohorovic: I don't know
if it's more accurate at all.
I think all we've told the
public with regards to this rule
which has garnered I think more attention
than anything else in our regulatory agenda,
in the two years that I've been on
the-- that I've been on the Commission.
Anyone looking through our previous attempts
will see that our previous agendas we'll see
that we consistently put at the end of the
fiscal year we're going to final with this rule.
So we've had this in the sleeper hold where we
do the Jedi mind trick to say, oh, you know,
those are not the droids you're concern of and
we just kind of do this, you know, this kind of,
you know, bait-and-switch or it's a
magician's act in terms of being accurate.
And I would just like to see
even if I don't like the rule
as it stands right now and its language.
I think it's more important to be honest
with public and when we tend to get to it.
Because people feel strongly about
this rule, positively or negatively
and they should have the
opportunity to engage with all of us.
That wouldn't curtail our ability to dialogue
and seek compromise and perhaps a middle ground.
But, you know, I think, you know, any date
if it's completely arbitrary is just that.
It's arbitrary.
At least with this approach,
it's the same arbitrary approach
that we've been doing agenda after agenda.
Sorry for-- I'm sure you didn't
intend to yield for that long.
>> Elliot Kaye: No, that's OK.
I think you hit it on at the
end what the driving philosophy
for you was just to maintain the same arbitrary.
But it sound an alternative to
Commissioner Adler now for his time.
But it does sound like he intends to move
relatively quickly, thus the date that may
or may not be in the package
might actually be more accurate
than the date that's being proposed.
Commissioner Adler.
>> Robert Adler: Yeah.
I have no control over what
the other commissioners do.
I only have control over what I can do
and I'm telling you what I can do is
to have something circulated
within a matter of weeks.
And so I'm hopeful given the discussion
today that folks want to get this addressed
and resolved which ever way we do that.
And so u don't really-- I don't
like the phrase bait-and-switch.
I don't even like the term arbitrary.
I like the term a judgment call and it's
best judgment call that the number that is
in the regulatory agenda now is a
far more accurate number, at least,
from my personal perspective than the number
that Commissioner Buerkle has floated.
But I appreciate her raising the point because
actually as I say, that was the catalyst
for me deciding that, damn it, I am going
to circulate something and let's address it
and get it decided one way or the other.
>> Elliot Kaye: Commissioner Robison.
>> Marietta Robinson: I would only say that
Commissioner Adler, in light of the fact
that you and I are the only two remaining
soldier standing who supported the amendment.
You have a superb staff and I do too.
And if you would like any assistance from my
staff in coming up with a compromise on this
that we could propose to
our fellow Commissioners.
I'm happy to have my staff help.
>> Robert Adler: Gratefully accepted.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joseph Mohorovic: Thank you Mr. Chairman.
Mr. Chairman and with all due respect
and apologies to Commissioner Buerkle,
I'm not going to support the amendment
Commissioner Buerkle because for the first time,
this Commission has said loud and
clear that the date that will appear
in the regulatory agenda is thoughtful and it's
real and that's going to get real attention.
I think if we didn't have this dialogue or
-- and I appreciate it Commissioner Adler,
you saying that in your mind
is your most accurate depiction
of when the agency will be moving
on the voluntary recall rule,
that will send shockwave and that's OK.
Shockwave may be good.
Shockwave is bad.
But the point is is those shockwaves should
go out because of the controversial nature
of this rule, I'm rule we'll
be immediately notify the Hill
who to have expectations that we would do that.
Immediately, I would recognize that also
in testimony I wasn't invited to appear
but I did see that on behalf of the Commission
that we committed to have full engagement
of the consumer interest with regard
to this proposed regulation we would have full
open engagement with the business community
which was the quote that Subcommittee
Chairman Moran used during the hearing.
So, I want to see this really flashed out and
have this put in the light of the day and that
when this eventually does
appear in a matter of days,
it will get the attention it
deserves and let's pile it on.
We already had a pretty active and
robust, ambitious agenda for the fall
and this is going to be the icing on the cake.
I'll remind you, it's football
season Commissioner Adler
and you're a basketball fan primarily.
So, I take a little bit of un-ridge to that.
I wish we could've got into
this in the spring time.
But for that reason, with all
due respect Commissioner Buerkle,
I'm not going to support the amendment
because I want to see one that is accurate
and I'm confident that the way Commissioner
Adler as bracketed by our general council
and mentioning any specifics with regards to any
proposals that are put before the Commission.
But since I'm privy to those, I
know it's going to make heads spin
and I think that's what I would like to see come
out of the regulatory agenda,
to me, that's the purpose.
Thank you.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: I'm
not sure where to begin.
First of all, I feel like Commissioner
Mohorovic you're throwing the bath out--
the baby out with a bath water.
But be that as it may, my suggestion was going
to be to Commissioner Adler, is there a date now
that Commissioner Mohorovic is, you know,
decided he's going to vote against my amendment.
Maybe we should talk about when we could
reasonably expect to something rather than--
I just frankly this in what
Commissioner Morohovic and the purpose
for this decisional meeting was transparency
and giving the public the opportunity
to know what the heck we're doing and give them
a fairly and I think we've got to be realistic.
This, the nature of this document
is not going to be date certain.
The nature of this document is-- it's-- your
second-- you know, it's your best guess,
it's difficult to come up with these date just
given the guidance we got from Ms. Williams
and the dates that are used, the nature of
the document, is the fact that we can't put
in dates, you know, the earliest
dates we can put in.
So, it isn't going to be
accurate, that's just the nature
of the document and we have to accept that.
You know, part of my problem with all
of this is we're a far nimbler
agency, you know, it's troubling.
We could be more accurate but the guidance and
what we're hearing doesn't allow us to do that.
But, you know, if we want to bring this
on, we can leave this data in there.
If we want to move it out, so it is
when we can reasonably expect to talk
about compromise then that's
something we could talk about as well.
>> Elliot Kaye: The Commissioner
yielding to Commissioner Adler?
>> Ann Marie Buerkle: Yes.
>> Robert Adler: I'm not going
to give a specific date because--
and look at my calendar in great debt and I
didn't realized we would be focussing on it
but I can tell you it would be within
weeks and not months that I would be glad--
that I will be circulating and as I say, once
I've done that, that's beyond my control,
then it's up to the Commission as a whole to
decide when they want to put it on the agenda,
whether they want to put her on
the agenda and how we resolve it
but I will promise you that
it would be within weeks.
>> Ann Marie Buerkle: And so,
the date that's in the reg.
agenda you reasonably certain
that it'll be before that day?
>> Robert Adler: I'm quite
comfortable with that.
>> Ann Marie Buerkle: Thank you.
>> Elliot Kaye: I have no
further comments on the amendment.
Commissioner Adler?
Commissioner Robinson?
Commissioner Mohorovic?
Commissioner Buerkle, any
last word on the amendment?
Having heard with no further discussion,
we'll now turn to consideration
of the first amendment from
Commissioner Buerkle.
Commissioner Adler, how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joseph Mohorovic: No.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: And I vote no.
The no's are four and the aye-- the ayes
are one, the amendment is not agreed to.
Commissioner Buerkle, if you could just
briefly explain, please, your second amendment
and then I'll ask for a second on that one.
>> Ann Marie Buerkle: So my second
amendment has to do with the disclosure
of information finally referred to a
6(b) and I would just change the date,
the due date of the briefing package
for my amendment to regulation
and information disclosure
under Section B to 9/30/2017.
>> Elliot Kaye: Is there a second?
>> Marietta Robinson: Aye.
>> Elliot Kaye: Having heard the second, we'll
now turn the discussion on the amendment?
Thank you as well for this one.
I think that most of the comment was-- most
of the comment that I made I think apply,
I do think based on what Commissioner Adler has
suggested that he will be circulating or intends
to circulate and he's not adding an affirmation
that within weeks that this date that appears
in here or may appear in here
is actually more accurate
than the proposed date in your amendment.
So, all the comments that I made
for the previous amendment stand.
The one difference though is that-- and
it's not about being afraid of fighting
or anything that's not accurate, it's really
about resources and when the Commission has time
to turn to anything which is why I'm so
pleased that Commissioner Adler is willing
to move forward with the potential compromise
because the Commissioned pool of resources
that Commissioner Mohorovic has
tapped into in his office for instance
where that Commissioner Robinson has tapped
into in her office with her proposals,
that's a different pool of resources than the
stuff resources and I'm much more comfortable
for these two rules in particular
since the controversy has generated
from the Commission level to have the offices
is absorb those resources as a oppose to staff.
So, I think this is good.
I've been asking for two years to have
compromise come at the staff level
or the Commission level at least an attempt and
it's positive that that might actually happen.
This rule in my mind is different
and that it's the statue
that for me personally is the problem.
I have said this many times before,
I think 6(b), the statutory provision
and Consumer Product Safety Act
is the most anti-consumer safety,
anti-transparency provision that
I could think of that we deal with
or really any health and
safety agency deals with.
And it's actually inconsistent in
my mind with the entire purpose of--
and the name of the Consumer Product
Safety Act to have this provision in there.
I've been here now for six years.
I've seen it move-- it do what it does on--
in an intimate level and I am comfortable
that the act itself, the provision
and the act actually harms
consumer safety definitively.
The reg. which was adopted,
I'm sure Commissioner Adler can give
us a history lesson on when the reg.
was adapted many years ago,
certainly acerbates that problem.
There s no doubt about it.
And I do feel that it's a worthwhile efforts
for the Commission, at the Commission level
with Commissioner office resources to
tackle trying to modernize the reg.
and to undo many the unnecessary
provisions at our hand.
So, I welcome that.
That to me is the ideal situation
that we don't force staff to have
to put this aside their work, general counsel's
office in particular on the safety rules
that they're trying to help
with to have to deal with this.
This is our burden to deal
with and I'm encouraged to hear
that we're going to try to deal with it.
I won't be supporting the amendment.
But I will be very supportive and my office
would be very supportive not only of continuing
to try to explain to the Hill
why the act needs to be repealed.
But in the mean time, why our reg, needs to
b e modernize and improve at the same time.
Commissioner Adler.
>> Robert Adler: Having looked at the
history of the Consumer Product Safety Act,
one of the things that's always struck me
about Section 6(b) is it was an enacted
over 40 years ago and it was really enacted
because the congress is mad at
the Federal Trade Commission.
And so, they punished us for what they were
angry at the Federal Trade Commission for.
And the interesting thing to me also is
that if this were such a wonderful provision
for public policy and promoting
good public health and safety.
Why isn't that after 40 some years, we're still
the only agency that had supervision like this?
I think the answer is that which was an impulse
for the congress 40 some years ago has
become an entitlement for industry.
You will never, never hear anybody from the
media or from consumer community praising,
supporting, doing anything
other than criticizing 6(b).
And I've always been struck by the irony and
I'm not intending this in any way personally
against my colleagues but just generally
speaking, those who hold themselves
out as conservatives, those who hold
themselves out as skeptical about government,
those who hold out the fact that they
don't trust government to step in
and regulate our lives are thrilled to
see the government acting as a sensor.
The government acting as the data nanny for
what information gets released to the public.
It's unheard of to me and it has immediate
and direct consequences on safety.
Every time we issue a press release, we know
that we have had discussions with companies
about what will go into the
press release and what wont.
And it is to the credit of the staff that
they have been fairly aggressive in standing
up to companies that are invoking
the potential of 6(b) lawsuits
that we don't have weaker press
releases than we come up with.
But we've all seen press releases modified
because companies fuss and invokes 6(b)
that is never done by other agencies.
And whenever I hear people say, well, you
don't believe in fairness and accuracy,
that infuriates me because that's not the issue.
The issue is public health and safety.
That's what I care about and
this impedes and undermines that.
And just one last point, with
respect to 6(b), I completely agree
with the chairman, the issue
really isn't our reg.
In fact, I have to had number of discussions
with colleagues in the business community
as Commissioner Robinson was saying offline
talking about that and they yawn when we talk
about this draft proposal in 6(b) because mainly
what it is is just an update to reflect the fact
that we're in the digital electronic
age and this was written back
when people were writing letters and
communicated in different fashions.
That said, I'm still prepared to try to
compromise to see if we can't reach something
that all agree with and I only wish that
we could push further in modifying 6(b).
But it is a statutory provision and it's
one-- because it's a statute we comply with
and I think we do it conscientiously.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: Well, I share the opinion
of my fellow Commissioners who've
expressed there so far about 6(b).
There's nothing we can do about
that without congressional action.
And that is not what is in the reg.
agenda. What our regulation does on the other
hand as congress gave a hoop to jump through
and we added three additional hoops and all
we're trying to do is do away with the ones
that have absolutely nothing to do
with the statute and drag this--
our communications into the 21st century.
Listening to Miss Adkins describe what we
do for 6(b) some of those steps being ones
that are pursuant to the
regulation and not pursuant
to the statute only makes the point stronger
that this is something we
need to do deal with now.
And when you look at over the past three years,
I've been a Commissioner the number of occasions
when we have not been able to communicate to
the public things that we should have been able
to communicate and if we didn't have our reg.
we could have done it much more
efficiently and getting that information now
and how critical it is to safety,
it makes the point even stronger
that we need to deal with this now.
So I cannot support putting off for the same
reason that I don't support changing the date
with respect to the voluntary recall rule.
This is the first time that I've heard the
chairman express that he thinks that this--
these changes to 6(b) are related to safety.
In the past he's taken the position
that it's not related to safety.
So it's been put on the back burner
and I'm absolutely delighted at that.
So hopefully we will be able to move
this to the front burner and deal with it
in the tiny little way that we can just bringing
our communications into the 21st century
from what exist in our regulation.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you.
Mr. Chairman.
Mr. Chairman, first of course the point of this
amendment is about timing and about what kind
of information will reflect
to the public in terms
of when we might be taking this particular
matter on and for the same reasons
in the prior amendment I won't
be supporting the amendment
to move back the date to
the end of the fiscal year.
Though I might wish that that would have
some effect, I don't think changing that date
in the unified agenda will thwart my democratic
colleagues from pushing forward on this bill.
If we were successful in putting through
date of the end of the fiscal year,
I don't think that will change
realistically the timing.
Of course, our general counsel pointed
out the fact that it's not binding.
It's not. So being a guy from the Boston area
we take Paul Revere's ride with a lot of pride.
And I think that this particular regulatory
agenda might garner some more interest
than it usually does in our
sector consumer product safety.
When the public sees the timing with which
the agency in one way or another expects
to get to these particular matters.
And with this 6(b) rule and how it's been
derided here at the hearing in response to some
of the comments not specifically but from
Commissioner Adler and Commissioner Robinson
with regards their feeling and the Chairman,
with regards to their feelings about 6(b).
Let me read, of course, the
quintessential element of 6(b) from the act
which is the Commission shall take
reasonable steps to assure prior
to it's public disclosure thereof that
information from which the identity
of a manufacturer or private labeler
maybe readily ascertained as accurate.
And then that disclosure is fair in the
circumstances and reasonably related
to effectuating the purposes of this act.
That does not sound like
bad public policy to me.
To make sure that information that comes from
the public and I say that only in defense
of what was portrayed as how could conservatives
be against this and other information
that should have been put out but couldn't.
Well was it not able to be put
out because it was inaccurate?
To me that's a good thing.
You know the government's got the ability
to bully, it's got the ability to coerce,
and we have the ability to malign reputations
and have significant impacts on people,
on reputations and on corporate performance.
So to ensure that anything that comes
from the CPSC is accurate and fair
in the circumstances are some ideals
that I am very well in support of.
Now, I will also say that these two rules and
with all due respect, I apologize for moving
on a little bit with the voluntary recall rule.
These have been a little
bit gremlin rules whereas
in their original fuzzy format they
were just a little bit mischievous.
But then through amendments, water got
put on them or they are fed at night.
I don't know what it did and they turned into
these disasters that many predicted would burn
down the equilibrium of consumer products
safety that we know and appreciate today.
So whatever we get back to, whether
it's original versions or the versions
as they were amended remains
to be seen and I look forward
to the dialogue and the negotiation.
And I will say this that while I mentioned
it's the majority that will be interested
in pursuing these rules especially
in a very short timeframe.
Predictions about midnight regulations might
be coming true while these rules were told
to be in a sleeper format.
It looks like they may not.
So those that are checking predictability might
want to look at the record on that as well.
But I also wanted to say in the spirit of
openness in dialogue that I do not believe
that this-- that these matters will be discussed
and negotiated only amongst the majority.
I do believe that all the Commissioners
will make every reasonable effort to work
with each other as we consistently do.
So the partisan aspects of what I mentioned,
I hope you'll take that into consideration
and not that I feel that I
won't be part of the discussion.
Thank you Mr. Chairman.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chair.
So let me, if I might ask Commissioner Adler
because I had understood and we've conversations
with regards to compromise
on voluntary recall notice.
It's been of news today that you're willing
to make a proposal for compromise on 6(b)?
>> Robert Adler: I am.
And my memory is worse than yours.
So I will always defer to your memory.
But I thought I had mentioned in passing that
I was interested in proposing compromises both
on voluntary recall and 6(b), but
that is absolutely my intention.
>> Ann Marie Buerkle: OK.
Thank you.
So I will just-- and certainly
I will look forward
to getting that-- those compromise offers.
Just a couple of things about 6(b) and some
of the comments that were made here today.
You know in 2008 when the Consumer Product
Safety Improvement Act was enacted,
congress had the opportunity to change 6(b),
to changed the way we disclose information
and they consciously made
a decision not to do that.
So I think that that the bar
for us is extremely high.
We're a data-driven agency and what
Commissioner Mohorovic just mentioned about fair
and accurate disclosure of information.
It should be something that we are embracing.
Do we want to just put out
information that's not accurate,
that is based on emotion
rather than fact or science?
I don't think so.
The credibility of this agency will go right
down the tubes and I don't think one person
in this room or in this agency
wants to see that.
We should be embracing 6(b) as the information
that we are putting out is accurate and fair.
That's what we're about.
We're about data-driven agency.
I don't think it's anti-consumer safety.
I think we do a disservice to the consumer when
we put out information that is not accurate,
that is based on hyperbole, that is
based on an initial reaction rather
than taking a deeper dive and giving the
opportunity to regulate community to speak back
to us about what is right
and what is wrong about that.
You know, it's nice to think we
know everything but we don't.
And I think we're taking some
moral high ground when we think
that the regulated community doesn't want
safe products and doesn't want their consumer
to have the information about a
product that might not be safe.
And we do better, we always do better and we
act more effectively as an agency when we work
in communion with and in collaboration
with regulated community because we can act
in isolation and we put at-- when we're talking
about putting out information that is not fair
and accurate, because if we're
not moving and we don't--
we want to discourage 6(b) and we want congress
to change the statute, then
that's what we're saying.
We're saying that fair and accurate
is not what we're interested in.
We might just act quickly on impulse.
We have a higher-- I think a
higher responsibility to consumer
but that's not what we want to do.
And I just will take exception to Commissioner
Adler's comment about attorneys yawning.
I don't believe that one and
base on the comments we got both
on voluntary recall as well as 6(b).
There wasn't anyone out there who were
yawning on neither one of these comments.
The number of comments that were generated and
both of these NPRs was tremendously significant.
There is a tremendous amount of concern
and discussion about these issues
and many thoughtful comments have been
submitted to us on both of those NPRs.
And you know, I take an awful
lot of time to travel around,
to talk to the regulated
community and consumer groups
and we have spent a lot of
the summer doing just that.
And maybe not here in Washington, although
you hear it here in Washington but when you go
out into the regulated community and you talk
to the attorneys and the compliance people
for these companies, they are concerned.
They are concerned that information
might be disclosed
from this agency, that isn't fair and accurate.
And they have even had a chance to weigh in on.
They are concerned about that and they're
also concerned with the voluntary recall rule.
So I don't take either one of those lightly.
And as I said I will look forward to
receiving Commissioner Adler's compromises
and we'll go from there.
>> Elliot Kaye: I'm going to turn to
Commissioner Mohorovic for follow up.
But I do want to say a general matter and I
would image that my colleagues agree with me.
I don't think that anyone believes
that the CPSC and staff cannot be fair
and accurate without the statute.
I don't think that's what's
standing in the way of inaccurate
and unfair statements just going
out willy-nilly from the agency.
If there is and that's something unique to our
hiring process or something that's going on here
at FDA, FTC, EPA all of these other agencies
somehow don't have this restriction on them
yet there's not the same
concern that they can't--
that they wont be able to control themselves.
I think everyone agrees with that
principle and I'm confident that the staff
in particular would actually
treat it no differently.
But we also have to recognize that the practice
of what happens with 6(b) is very different
than off-- what's written in the
statute in the specter of it has taken
on a life in part because of the reg.
but also in part because of
the way it's been interpreted.
And for me one great example, Commissioner
Mohorovic, since you talked about fair
and accurate, I'm curious how you
would see this working practice.
So we decided to open up an
investigation on the matter.
And the media out that reaches out
to us and says are you investigating?
Under the statute 6(b), we cannot
confirm that at that point.
We are required to go to the company
and to clear a statement with them
at least run the clock out
that says we are investigating.
How does the company know that
that statement is fair or accurate
since they don't know what we're doing?
How do they-- how would they in a
knowledgeable enough position in your mind
to add something meaningful to that discussion
when they have no clue why
they're investigating or not.
Would be comfortable answering that question?
>> Joseph Mohorovic: Sure.
I'd be happy to Mr. Chairman.
Thank you.
And you mentioned that we have the complete
ability to be fair and accurate and consistently
without a statute requiring us when
we are speaking about a situation
that identifies a manufacturer private labeler,
that is the constraint with
which the statute kicks in.
One needs look no further than the matter before
us today in our ability to be fair and accurate.
We've all stated except for this one-- these two
matters with 6(b) and the voluntary recall rule,
those are the only matters with which
the public when they eventually look
at our regulatory agenda and our unified
plans will have any sense of confidence
that the Commission believes in those dates.
We have admitted here that these
things are aspirational that, you know,
we're going to throw everything in there.
And one needs look no further,
this come out every six months.
You just look at what it said six months ago.
Did we complete it?
Nope. What do we do again?
Kick the dates back the same time.
So, we have a culture through these
formal documents, contrary to what OIRA
and the executive orders ask us to do.
We have a culture of purposely being inaccurate.
And even though it hurts me to not be able
to support my colleague Commissioner
Buerkle's amendment, to me,
that would've continued the
culture of disinformation,
purposeful inaccuracy by the federal government.
Now, of course, in our rule-making,
we don't talk about specific companies
that we're not bound by 6(b) in
terms of being fair and accurate.
Here, we're allowed to be nilly-willy and
just go ahead and put whatever we want
that needs particular dates and
we don't' have to worry about it.
So, you're asking me to accept the
fact that in the absence of 6(b),
we would continue to be fair and accurate.
And I don't think we would.
And I think this contributes to the general
delegitimization of our federal government,
I think this contributes to why people, you
know, will think and come up with sayings
and we all know all politician, you know,
they're lying when they move their lips.
I mean all of those.
I mean, we ought to embrace it and accept it
because it's part of a culture that we continue.
I've got some other motions, I think
they're going to fail that will get
to becoming-- to be being fair and accurate.
And I think we'll only prove to
ourselves that we're going to refuse
to be fair and accurate Mr. Chairman.
>> Elliot Kaye: I appreciate that.
But the question that I asked, do you have an
opinion as to how 6(b) helps further fairness
and accuracy when a company is
asked to [Inaudible] on something
that they actually are not in the position
to know the truth or a lack of truth though.
>> Joseph Mohorovic: I appreciate.
Thank you Mr. Chairman for yielding again.
And I recognized that Commissioner Buerkle and
I were the only ones that were elected to office
and one of the first things they teach you is
answer the question that you want to answer
and not the question that maybe you're asked.
So, maybe that's the difference
on why I was successful
on small ball 20 years ago or 15 years ago.
>> Elliot Kaye:I appreciate that.
And we are asked twice actually.
But I think that your none-answer to
that reveals the flaws with the 6(b).
And if you-- I'm comfortable to go to the
Hill with you if you're willing to go with me
to find a way to preserve the spirit
of fairness and accuracy in 6(b)
but not tie the public's hands when it--
or the agency's hands when it
comes to disseminating information
that we are comfortable is fair
and accurate that delays getting
that out and impacts public safety.
Are you willing to at least go to the Hill
with me and talk about changes to the statute?
>> Joseph Mohorovic: Chairman, I
don't think I'm allowed to say no
if congress compels me to appear before them.
I've never been invited in all these
different hearings that are planned.
So, I guess that's a reflection of
congresses desire to hear from me.
But I will give you some red
meat, honestly, in terms of 6(b).
OK. And in looking at the previous version
of the rule, that was before the agency,
I think in the spirit of making the office
of the secretary in particular more efficient
and up-to-date with the 21st
century are certainly things
that we should absolutely inspire to.
In terms of some of the other
elements, I'll have to think
about them a little bit more closely to give you
the fair and honest answer that you deserved.
But I'm unprepared to talk about and give a
major speech about my total feelings about 6(b).
I know Commissioner Adler can do it like that.
But for me, I take a little bit
more time and homework to do it.
>> Elliot Kaye: Commissioner
Adler that your cue.
>> Robert Adler: Well, first of all, I did
want to go back in a little bit of history
because 6(b) has become a
wait-around our next set.
I don't think congress ever really intended.
I think when congress wrote that,
what they really intended wants
to say anytime the Commission is the
initiator of information released,
that's when this review should take place.
Unfortunately, as we know, from time to time,
congress doesn't write words that carefully.
And so when we said we are not going to apply
6(b) to the release of information in response
to the Freedom of Information Act request.
We thought we were on solid ground
until we went to the Supreme Court.
And the Supreme Court said,
the statute is the statute.
And the statute applies across
the board including FOIA request,
which means that to pick an example from
our last discussion, if we have a document
that is simply a list of 50 companies and
somebody makes a FOIA request for that document,
we have to send out 50 different
separate FOIA-- excuse me--
6(b) disclosures to companies
and we have to redact 49
of the names for each one of those releases.
And that adds and you can look at the annual
FOIA report that we submit to congress.
6(b) costs us hundreds and hundreds of thousands
of dollars of staff time and months and months
and months of waiting to
process information through 6(b).
And the fact is stuff that is just in our
shelves that were acting more as a library
than anything else, we still
have to process through 6(b).
I really don't have a problem in
the spirit of compromise of saying,
please just remove this FOIA burdens that we
have to bear and let's impose on ourselves
that if we initiate the information
release that we follow these procedures.
And I just wanted to add one thing.
What you read from 6(b) is not the
language that bothers me, what you read--
what you didn't read is the language
in section 6(b)(2) which says
that if the Commission is going to release
information when somebody has objected,
we have to give them notice
five days before we release it.
And if we're going to release the document, they
then have the right to go into court to sue us,
to bar us from disclosing that information.
That's something unlike any other agency
and that's where the burdens arise.
Companies just casually threatened to bring
a lawsuit and they force us to sit down in
at least ponder and think through what
we're going to release when it comes
to corrective action plan,
publicity and other things where--
I'm losing my train of thought
because I'm getting excited.
But it seems to me that there
is a reasonable compromise
to be reached even with respect to legislation.
I'm not going to hold--
>> Ann Marie Buerkle: Will
Commissioner Adler yield?
>> Robert Adler: I will.
>> Ann Marie Buerkle: So, I think we find
our self again in the same situation.
The original 6(b) proposal was the
reasonable one that brought the agency
into the 21st century using
electronic transmission of information
and would certainly assist the office of
the secretary facilitating FOIA request.
It was then the Commissioners, as my
colleague mentioned, feeding the gremlins
or however it all happened
that changed this package
into the highly controversial
package that it is today.
And so, I think that's very important
to notice-- to take notice off.
And secondly, that CPSA did
change a bit of the 6(b).
And it did shorten the amount of
time for disclosure of information.
And it did say to us in case of an
emergency, in case you need to act quickly.
You have the tools to do that.
But again, if that opportunity, when they
could have gotten rid of 6(b) completely
and how we disclose information they chose not
to and I think we need to be aware of that.
>> Robert Adler: Yeah.
And if I might to regain my
time, you're absolutely correct.
This was one of the most highly
contested items within the CPSIA.
And it was clear that there
was just so much opposition,
because in this review this is an entitlement
that other critical elements
of this statute were at risk.
And so, congress did what-- that which I
think we should be doing and they compromised.
That's not to say that this is a decision
that was made in my judgment on the merits,
it was made on the basis of political muscle.
And on the basis of political muscle, they push
as far as I could in modifying 6(b) which is one
of the delightful things
that brought us the database
which I think has been an
extremely useful mechanism.
But, to-- Tell me, just because congress didn't
abolish it completely means that on the merits
that the better argument prevailed.
This is not one I agree with.
This is one where it was pure political muscle.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: If I can
drag everybody back to the reg.
agenda. What we're talking about here is
whether the amendments to our regulation
under 6(b) is something that
we think can be finished at--
in a good faith estimate
in November of this year.
And I'm understanding that given where we
are and everybody's opinion about trying
to compromise this that we
should be able to do that.
So I would be voting against this amendment.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
We're laughing about how many cats
have been running out of bags here.
And so, [inaudible] through no fault I think
of anybody participating today,
it's been a quite awkward.
>> Robert Adler: I love your metaphors managed--
>> Joseph Mohorovic: Yeah.
So, anyway, I do you want to see one thing,
you know, we're on the subject of 6(b)
and I'm not going to use five minutes.
But, you know, in terms of some other ways
that we can make our operations, as I said,
work more efficiently, where in the
spirit of 6(b) we are retaining that,
but yet eliminating some of the redundancies
that in the 21st century make no sense.
Those are areas that I very much look forward
to hearing Commissioner Adler's thoughts
in the subject and others
in the Commission as well.
And I-- And then I'll also point
out something that I'm reminded
by constantly when this subject comes up.
There is so little that we can do in some
situations with consumer products outside
of consumer information, products around
the street, products around people's homes,
we can take a standard to change those products.
So, we're relying upon our ability
to communicate with the public.
And Mr. Wolfson, the Office of
Communication does a fantastic job
with the resources that they're giving.
But there is one tool in the
toolbox that remains missing.
And that is a Facebook page.
I don't have a Facebook page.
I've never even been on Facebook.
But I hear it's pretty popular.
And many agencies have Facebook pages.
And it drives a tremendous amount
of attention, re-attention to some
of the Commission's information
and educational campaigns.
Many have stated or speculated that perhaps 6(b)
and the way Facebook works is the imposition
why the CPSC is unable to have a Facebook page.
In the short term, I hope Sheryl
Sandberg leans in and changes her policy
to accommodate the CPSC for the
better of consumer product safety.
But also, I'm reminded by that, Commissioner
Adler, because I do think that while not being
on and I recognized that it's a power to extend
our safety information which is critical,
and sometimes, the only way that we can do that.
And many have considered or proposed that or
thought that 6(b) was the culprit inhibiting us
from doing that, and it's not just Facebook.
But that's one example that always
stays in the back of my mind.
I'm happy to yield, Commissioner.
>> Mary Boyle: Excuse me Mr.
Chairman, can I weigh in for a moment?
>> Elliot Kaye: Of course.
>> Mary Boyle: No.
Not to-- Sorry.
Not to use specifically.
I think we have gone a bit astray from
the agenda that is before the Commission
and its vigorous and robust debate is
probably appropriately tabled for another day.
And I-- my recommendation is that we
return to the discussion before you.
>> Elliot Kaye: I agree with that.
And I do thank Commissioner Robinson
as well for raising that point.
We've enjoyed it.
And with that, any last words on
the amendment, Commissioner Buerkle?
>> Ann Marie Buerkle: I do not.
Thank you.
>> Elliot Kaye: Hearing no further discussion
on the amendment, I'll now call the vote.
Commissioner Adler, how do vote on
Commissioner Buerkle's second amendment?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joseph Mohorovic: No.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: And I vote no.
No's are four, the ayes is
one-- the ayes is one.
The Commission-- The amendment is not adopted.
Are there any further motions or
amendments to the underlying package?
>> Joseph Mohorovic: Mr.
Chairman, I have a motion.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
For your benefit and those for our
colleagues in our pre-reviews here,
there is an item for a motion that's been
circulated which identified as Item 3(c)
that I've-- I will choose not
to move at this point in time.
So for my colleagues' benefit,
I will be referring
to what you'd been reading
as Item 3(d) in our agenda.
Thank you Mr. Chairman.
What we call the regulatory agenda,
generally, is really three documents.
I'm sorry Mr. Chairman to explain the amendment.
>> Elliot Kaye: That'll be great.
And then I'll call for a second and I'll
give you time to further discuss it.
>> Joseph Mohorovic: Thank you Chairman.
The regulatory agenda is really three
document; the regulatory flexibility agenda,
the regulatory plan, and the unified agenda.
My first motion concerns the regulatory plan.
And in 1993, President Clinton issued
the Executive Order 12866 which called
for each agency to produce a regulatory
plan each year of the most important
and significant regulatory actions that the
agency reasonably expects to issue and propose
to our final form in that
fiscal year or thereafter.
And he did ask to the executive order that both
that IRCs, Independent Regulatory Commissions
like ours also participate in this activity.
And I'm pleased to see that while we're
not bounded by 12866, we choose to do so.
The order to find significant rules impart as
those that may, and may is the key word, may,
that may have an annual effect on the
economy of $100 million or more or those
that raise novel, legal or policy issues.
This is the test with which
something gets placed
on the regulatory agenda or no, in simple form.
The agency responsible for
publishing the plan, OIRA,
has noted that the $100 million
economic effect could come
from a regulatory a deregulatory
action, deregulatory as well.
So, this is about OIRA's role as a collator
that can help the public quickly understand
the most significant regulatory actions going
on across the federal government.
And in past versions of our CPSC
regulatory plan, we had just one item,
the upholstered furniture flammability
standard that has been into work since 1994.
That proposed rule would certainly have
an economic impact well over $100 million.
But the question is this, do we honestly
believe, honestly, that that's the only one.
So for starters, the rule-making begun
by a petition to ban window coverings
with accessible cords would have an
economic impact of at least $200 million.
And probably, well over half a billion dollars.
Similarly, our rule-making
on phthalate is certain
to have an economic effect
well in excess of $100 million.
Moreover, that rule itself repeatedly describes
its reliance on a quote, novel process, unquote.
They used the word novel and then quote,
novel approach, unquote to calculating risk.
They're writing the wheelhouse of
exactly what's prescribed in 12866.
Since raising quote, novel, legal or policy
issues, unquote is the separate trigger
for inclusion in the regulatory
plan, our phthalates will should be
in that document, even if it had impact.
It is not.
It has not been in our previous
versions of our plans.
And I fear, perhaps, that it may
not be in the plan before us today.
Again, however, the regulatory
plan should include rules
that reasonably may have $100
million effect in that spirit.
We should also include at a minimum our ongoing
projects on portable generators, table saws,
projects that may call for significant
design and manufacturing changes
that could easily hit the $100 million mark.
We're also reviewing two of the most significant
rules in the agency's history, our open flame
and smoldering matches flammability
standard, 1633 and 1632 respectively.
And as OIRA points out in its yearly
call for plan submissions quote,
all important items related
to any existing regulations
under agency review should also be
included in the regulatory plan, unquote.
The goal of the regulatory plan is to make sure
the public knows about all of the big deal rules
that the entire federal government
is working on including CPSC.
The furniture flammability rule
is unquestionably a big deal.
But it is not the only one.
In the spirit of openness, transparency
and public participation and facilitating
that public participation, including being able
to participate in a way that's anticipatory,
we need to make our plan
more reflective of reality.
I don't want to make mountains out
of regulatory molehills, I don't.
But we should acknowledge the
mountains that are right in front of us.
So, Mr. Chairman, I move the Commission
direct staff to amend the CPSC reg.
plan at our rule makings on window
coverings, phthalates, table saws, generators,
and our ongoing rules on mattress flammability.
Thank you Mr. Chairman.
>> Elliot Kaye: Thank you
Commissioner Mohorovic.
Is there a second for Commissioner
Mohorovic's amendment?
>> Robert Adler: Second.
>> Ann Marie Buerkle: Second.
>> Elliot Kaye: Second and a third.
Having heard that, we'll turn
to discuss on the amendment.
I'll just say briefly, I appreciate the effort.
I do think it's a bit premature in
particular to most of the rules in there.
It might be that that information ends
up coming to light and stuff packages
in terms of the economical analysis.
But I do want to prejudge what the
performance standards will look like.
And I think window covering
is a perfect example.
We are hopeful with the announcement of the-- by
the voluntary standards body in the last month
or so that they intent to really
go after the hazard patterns.
It's entirely possible if they are successful
with CPSC staff and consumer group participation
as well as retailers that whatever proposed
rule staff might come with as a result of that
to deal with any remaining, if there
are any remaining, hazard patterns.
It might be very tiny.
We just don't know.
And so, I think that you're
on to something in terms
of making sure that we put it in the agenda.
I just don't think that the trigger
has been hit for many of them.
So for that reason, I'm going to oppose.
Commissioner Adler.
>> Robert Adler: I also wanted
to thank Commissioner Mohorovic
in particular for raising this point.
When we were talking about it, I was reflecting
on the fact that there used to be a time
when $100 million was a lot of money, just as
back when they were writing the constitution.
Twelve bucks was a lot of money.
So, they figured, you know, for jury trials,
it's got to be at least amounting
a controversy over $12.
So, I'm not prepared to support
Commissioner Mohorovic's amendment.
But I'm not prepared to say
that he's wrong on the merits.
But the thing that makes me very
nervous is doing this is not cost-free.
And there's some baggage that comes along
with calling something a
significant rule or a major rule.
And it isn't just this executive order.
There's Executive Order 13579, 13563, 1360.
There are number of implications that are raised
by calling something a significant
rule and a rule-- a major rule.
So, I want to reflect on it.
I want to think about it.
I am not rejecting your argument.
I'm simply saying, at this point,
I'm not prepared to agree to it.
But I think you've raised a very, very important
point, one that merits reconsideration,
certainly when we get to midyear review.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: As we've
discussed, Commissioner Mohorovic,
I'm not going to support this, but for very
different reasons than my fellow Commissioners.
We have a process which Ms. Pulitzer
has explained to us for deciding
if something is a significant regulatory action.
And we only designated is that if staff
has made findings and had done an analysis
that puts a particular project in that category.
There's been a briefing package as I
understand it on the economic effective rule
on upholstered furniture our one
significant regulatory action.
My information although having spent
way too many years in a courtroom,
I know there's a problem with quadruple
hearsay which is what I'm reporting.
But my understanding is that staff spent
quite a bit of time last night going
through what we've done, what analyses have been
done with respect to window blinds, phthalates,
table saws, portable generators and
mattress flammability standards and found
that we have either not engaged in that
analysis yet or we've engaged in it and found
that it was under the $100 million mark.
And so, based on that information,
I think it's premature to do this.
It isn't because of, you know, any
guesses on industries like window blinds
which have a long way to go to
get where we need them to be.
But it has nothing to do with guessing.
It has to do with the fact
that we need the analysis
and findings as Ms. Pulitzer explained to us.
And certainly, if in the future, we're going
to be getting packages in some of these areas
and in the future when we have the analysis
done, it may very well be that staff decides
that it may have over $100 million impact.
And when that analysis exists, then
of course, we should amend the reg.
agenda. But I think it's premature now.
So, I will not be supporting this amendment.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you.
I will be supporting my colleague's
motion and his amendment to this reg.
agenda. I agree that many of these projects,
perhaps all of these projects would satisfy the
criteria for inclusion into the regulatory plan.
But ultimately-- and I want to make this clear
that I hope it's not going to be necessary
that we adopt a mandatory
standard for any of them.
And I hope and would really encourage
a voluntary standards would be adopted.
And they would prove far more
appropriate and sufficient.
However, if we do come to the point where we
adopt the mandatory standard for any of these,
it does seem that this will be
significant and deserve to be recognized
and flagged in this part of the agenda.
So, I thank my colleague for his motion.
>> Elliot Kaye: Commissioner Mohorovic,
any final word on your amendment?
>> Joseph Mohorovic: Thank you Mr. Chairman,
just in response to some of the debate.
First of all, I appreciate all the time
and thoughtfulness discussion
that went into these amendments.
I know that you know that this is something
that's relatively important to me, relative.
Being important is not the end of the world.
But I would like to see as
aspire to best practices.
And what I would say in terms of
consideration of why some of you have indicated
that you're not willing to add
other items to the regulatory plan
because it hasn't received the
regulatory impact assessment
which has finally determined a
particular rule to be a significant rule.
And I would suggest that, of course, I
always remind everybody, they don't reminder,
that I'm the only non-lawyer here.
But as a former legislator, the words we
often paid attention to was shall versus may.
And in terms of what makes the cut, the word is
may, may, may, may, may, may, not is, not is.
We've determined it'd have an economic
impact of $100 million or more.
May, significant regulatory
actions, I'm quoting 12866.
It means any regulatory [inaudible] that is
likely to result in a rule, that may, not does,
not that has been proven to you, not that has
found through regulatory impact assessment.
We've gone to that step with
the upholstered furniture rule
which is why everybody has confidence in
including that in the regulatory plan.
But I think we're being less transparent that
we perhaps could be because we're refusing
to see the word may and we're inserting
the word shall or is, with all due respect.
Thank you Mr. Chairman.
>> Elliot Kaye: Any further comment
on the amendment Commissioner Adler?
Commission Robinson?
>> Marietta Robinson: I would only say
that the may still has to have, in my view,
a process to decide if it may have the
effect whenever we get the economic analysis
in any package that comes to us.
They can only say that it may have this effect.
They cannot say ever it shall have this effect.
So may is always what's used but it's
the fact that it's lacking the analysis.
That is my objection.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
Having heard, no further discussion,
we'll turn to consideration
of Commissioner Mohorovic's first motion.
Commissioner Adler, how do you vote?
>> Robert Adler: No.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Buerkel?
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joseph Mohorovic: Aye.
>> Elliot Kaye: And I vote no.
The nays are three, the ayes are two, the
amendment-- or the motion has not been adopted.
Commissioner Mohorovic, do
you have anymore motions?
>> Joseph Mohorovic: I do Mr. Chairman.
>> Elliot Kaye: If you could take
three minutes to explain it, please?
>> Joseph Mohorovic: I'd be happy to.
I'll try to speed read again.
I know we've had a longer hearing
that maybe many have expected.
In addition to establishing the regulatory plan,
Executive Order 12866 also created
the concept of a unified agenda.
This was the subject of the previous
amendments considered by Commissioner Buerkel.
Now the unified agenda is a one stop regulatory
shop to provide the snapshot of what agencies
across the government were doing.
And each agency would put together a list
of its activity, send that list to OIRA
who would collate the list and publish
them as one big regulatory play bill.
OIRA consistently reiterates that the unified
agenda should give readers an appreciation
of what agency plans do in the near term,
the next year and to look at every action,
big or small as opposed to the
regulatory plan, the red flags analysis
that an agency is close to actually taking.
OIRA specifically discourages agencies
carrying idle rules over year after year,
urging them to remove those roles from the
agenda, in previous documents and instructions,
quote, unless they realistically intend
to have the resources to take that action
over the next 12 months, unquote.
This is not withdraw any rule whether
something exist on the unified agenda
or it is not published as part of the
unified agenda, doesn't withdraw any rule
by its existence potentially
on that unified agenda.
It merely let's the public know
what were likely and unlikely
to get to those roles in the next year.
Of course, we as an independent agency
required to comply with executive order
but we have wisely and commendably
chosen to do so.
To be useful to the order's purposes, however,
we need to participate in the order's terms.
This is inconsistency with
what OIRA has asked us to do.
In fact, that's precisely what
OIRA has asked us not to do.
I feel strongly that we should
participate in the unified agenda process
that it gives the broader public not just
close watchers of the CPSC and opportunity
to understand what the agency
is doing and weigh in on it.
But the unified agenda's goal of spurring
meaningful public participation is only
achievable with meaningful agency participation.
Excuse me.
And that's what I would like
to see us strive for.
This would not withdraw any rule nor
would it delay any role by a single day.
My motion would merely instruct staff to
put together an agenda that accurately,
describes the agency's intention.
To that end, Mr. Chairman I move the Commission
for action on the regulatory agenda fall 2016,
direct-- the executive director and consultation
with the associated executive director
for hazard identification and reduction
and the office of general counsel
and such other staff offices
as executive director sees fit.
To evaluate the items presently indicated in
the regulatory agenda fall 2016 to be published
in the fourth coming unified agenda
prepared by the Office of Information Reg.
Affairs, identifying the items among
the groups specified in 2A for which
after consultation does not believe the
agency can reasonably achieve in 12 months,
presented to the Commission not
later than 5 p.m. on Thursday,
reflecting all agenda items identified
in to be marked as long-term actions,
reschedule the regulatory agenda fall 2016 for
a vote by ballot to be due sometime at a point
of time that's acceptable to the Commission.
Thank you Mr. Chairman.
>> Elliot Kaye: Thank you
Commissioner Mohorovic.
Is there a second?
>> Ann Marie Buerkle: Second.
>> Elliot Kaye: Having heard a second,
we'll now turn to discussion on the motion.
I think the key line which for me,
Commissioner Mohorovic, and without discussions
about this certainly what you've offered
this is the one that I'm most sympathetic
to is the standard that you
set in your amendment which is
that does not believe the agency
can reasonably anticipate achieving,
you use the word achieving the stated action.
From my read of the guidance documents
of the underlying Executive Order 12866,
the material that you've provided, I think
that creates a standard that actually higher
than what is required by or asked of OIRA.
I go back to the language I read at the
beginning that comes from section 4(b).
And this is the unified regulatory
agenda from 12866.
Each agency shall prepare an agenda of all
regulations underdevelopment or review.
I see underdevelopment or review as being
the standard that staff is supposed to meet
in preparing this regulatory agenda.
And I think as we heard some the
executive director Ms. Adkins,
staff did that and they stand by that.
So it is accurate from their stand
point and they do intend to continue
that these rules are underdevelopment or review.
And that's why they're in
there and my concern is
that you've created a standard
that's higher that's called for.
And the unintended the consequence of that--
well, first of all, I think that if staff were
to follow the guidance that they followed
the first time in your memo or approved,
nothing would change we would get back
from the executive director's office the
same package we already have in front of us.
Because I think they stand
by the accuracy of it.
If they followed the direction
that you gave them and went
with reasonably anticipate achieving the stated
action, my concern is that they would end
up not including things on the regulatory agenda
that they do intend to continue to work on
and the public will be the
less informed at that point.
I know you don't intend for
that to be the result.
But I do have a concern that
that might be a result.
So for that reason I feel comfortable base
on what the executive director stated earlier
that this amendment while in spirit I agreed
with it that the staff should continue
to be consistent with the
directions or the guidance provided.
I think they have done that and I don't think
that this amendment would actually make a
difference in terms of the regular agenda--
regulatory agenda in front of us.
Commissioner Adler.
>> Robert Adler: Yeah.
And I did want to just to distinguish a
little bit between the executive order
and the OIRA suggestions the-- lets be
clear what the executive order calls
for in a unified regulatory agenda it requires
the regulation identifier number we do that.
A brief summary of the action, we do that.
Legal authority for the action, we do that.
Any legal deadline for the action, we do that.
Name and telephone number of a
knowledgeable agency official.
That's what it calls for in
the unified regulatory agenda.
That's what the executive order asks us to do.
And that's what we do.
Now it is true there is guidance that
has been provided by OIRA over the years.
But talk about language and
this isn't even may versus is.
This is please keep in mind, these are optional.
These are suggested, please
consider, please consider this.
In other words it is providing
us advice and it is asking us
to consider these things
which I think we've all done.
But the thing that makes me
nervous is that if we were
and I do agree with the chairman on this.
If we're to adopt the Mohorovic standard,
we're really adopting a more narrow
or broader depending on your
perspective approach
than what is called for in the executive order.
We are working on these things.
They're under review.
And I tell you there is something that makes
me nervous about in effect putting somethings
and identifying them is back burner when it's
not clear that they would be back burner.
And this is another point of sadness for me
the idea that world out there is saying, oh,
we're not going to do anything
to promote or enhance safety
with our products unless
it's clear the Commission is
on the versive write in the mandatory standard.
I think what we have done in our regulatory
agenda that I really like is we have said
to the world here're the projects
that we think are important.
Here are things that have safety implications.
Don't make us be the only players in this.
And so, I find it said that companies would
say, well, I set my workload according
to what is listed in your regulatory agenda.
I expect better of that from
our friends in industry
and for the most part I think they rise to that.
But I don't like the idea of sending a signal
that these are things that are back burner
when they're not necessarily back burner
in my mind, there are things that we want
to have industry take note of and respond to.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I'm satisfied from
Dr. Borlase's and Ms. Adkins' testimony
that they have reviewed this carefully and
they've given it their best faith effort
to give us work that's they're working right
now or they plan to do in the next 12 months.
I think they've gone through the process
that is expressed in the amendment.
And they have expressed their confidence in this
agenda so I will not be supporting this motion.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you Mr. Chair.
As I mentioned earlier, I think it's really
unfortunate that we have to submit our input
to OMB so many weeks before publication.
And essentially what's prematurely I think it
goes to the sort of the intrinsic inaccuracy
of the document because of that limitation.
But we are sending it for
head of the publication date.
And in this matter we're really
just hopefully weeks away
from receiving our ops [phonetic] plan
for 2017 which is a detailed of look
at what we will be doing over the next year.
And I think that's going to be a far
more accurate depiction I'm hopeful.
So without the benefit of the ops
plan to try to reflect the reg.
agenda what's going to happen, it's difficult.
So it's a little bit of poking around in the
dark to try get and to pinpoint those dates.
And it's obvious to say as Commissioner
Mohorovic pointed out earlier,
we're going to have a very busy fall.
And now in light of today's hearing,
we're going to have two more--
two more issues to deal with
voluntary recall and as well as 6(b).
So-- And I will look forward to your documents.
But I do say that if there
are projects in this reg.
agenda that are not ready for prime time then
I would encourage the staff to reflect that
and to not have them be in the document.
But I will be supporting the amendment.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you Mr. Chairman.
I appreciate the dialog today and previously.
I'll point out a couple of
things in response to some
of the arguments made against
this amendment today.
First of all, the Chairman read
a section of Section 12866,
the instructions on the unified
regulatory agenda.
But he cleverly stopped where there was
an and in the sentence that you read.
You talk about the regulations underdevelopment
review at a time and then you left
out the rest part which was, and in a manner
specified by the administrator of OIRA.
Well, we've got that.
We get instructions from the administer of OIRA.
Let me see if any of this
sounds familiar, people.
In recent years a large number of unified
agenda entries has been for regulatory actions
for which no real activity is
expect to within the coming year.
Please remove these items from the agenda.
Bullet two, many entries are
listed with project dates
that have simply been moved forward
year after year with no action taken.
It's like it-- I mean it's like a joke.
I don't know how you guys don't look at that.
Year after year when we sign off on these
things and don't find that hysterical,
unless you realistically intend to
take action in the next 12 months.
Please remove these items from the agenda.
So we heard testimony today that was, oh,
no, this is out best effort at accuracy.
And we're acting like we don't have experience.
I've been on the Commission two years.
I've seen four of these things and we can go
through what was published, what was completed,
what was published, what was completed.
And the same ones are just wrong.
So to say, oh no, no, no, I feel
confident that this accurate
because I asked and they said it's accurate.
Do you ever bother to say, well, how
do we consistently get this wrong.
I mean it's unfortunately you know that's
because there's no accountability
and government, period.
We have no accountability
to our regulatory agenda.
Nobody is going to call us on and Chairman
doesn't get any letters saying your regulatory
agenda is complete disinformation campaign.
So I got a feeling that this is, well, I
think people have stated their opinions.
We're not going to change
it for the better this time.
I'll try to keep leaning on this a little bit
more so maybe we can act in the better spirit
of what these agendas is supposed
to reflect for the public.
Not for our benefit for the public's benefit.
So with that I hope maybe
some minds might be change.
But thank you Mr. Chairman.
>> Elliot Kaye: Thank you
commissioner Mohorovic.
The last thing I'll add on is I just-- I
think its not fair characterization of staff.
I do you that there's a difference
between achieving a stated action
like I mentioned meaning an
NPR and not working on it.
I think often there is a lot of work that
goes on that just fall short of being able
to produce a briefing package
or an NPR or a final rule.
And I think for the public's
sake of notifying the public--
I guess that the flip side is
to take these things all off
and that implies that nobody is working on it.
They're not working and I think in the spirit
of the executive order we
are continuing to work on it.
And to follow up in Commissioner Adler's point,
it's a budgetary reason it's resource reason,
we would love to get more done and we are saying
that this are the things
that we need to get done.
And if congress-- and if you want to support,
if you want to really get
these things off the agenda,
you want to support our budget numbers even more
vocally, I'm happy to go with you at the Hill
to say we need to double our budget
so we can finally clear off the reg.
agenda. If that's what you're
saying, I'm all for it.
>> Joseph Mohorovic: Yield--
>> Elliot Kaye: Absolutely.
>> Joseph Mohorovic: -- a moment.
Thank you.
Because I don't know for we need another one.
I just want to be clear in terms
of my displeasure with this.
It's not at the staff at all.
This is our agenda.
This is the Commission's agenda.
The Commission is voting on this.
Chairman thank you.
In your dialog you brought to my attention
different independent regulatory Commissions
have different approaches, sometimes
it's merely the Chairman identified.
Sometimes it's just staff.
It's just staff did this and sent it then I
would have some problems with the staff's work.
This is not my criticism are
not at all the staff works.
So the Commission's work here.
So let me be absolutely clear.
These dates, what we submit because it's
a Commission vote, any problems I have
with them is problems that I have at the
Commission level clearly and only right there.
>> Elliot Kaye: Fair enough.
>> Joseph Mohorovic: Yeah.
>> Elliot Kaye: I hear you.
Commission Adler anything else on the motion.
>> Robert Adler: Well, in terms of items in
guidance that are not read, I would also commend
to Commissioner Mohorovic's attention.
Again, the notion that these are
suggested steps and making that point,
the director of OIRA said please
consider whether the listing
of such entries still benefit readers and
it's my view that this does benefit readers
and therefore I'm perfectly comfortable in
spite of reading these suggestions to say I'm--
what we're doing is consistent
with those suggestions.
So I'm perfectly comfortable
with living the reg.
agenda the way it's.
I should also add that I heard one
other from Commissioner Mohorovic
that I hope we can explore in the not too
distance future in terms of additional items
and that is whether the Commission
ought to move to adopt Facebook
but that's a discussion for in later day.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Commissioner Mohorovic
while I do not think that sending this back
to staff to revisit it is the answer.
I share with you your frustration that
as you said the same ones continue
to have the wrong dates.
And I do think that it's a Commission
problem, not a staff problem.
And I discuss some of this with Mr.
Ray in a meeting several weeks ago
when he took over his new position.
And now being the new Jay Howell.
Based on the information that I have sitting
in this seat what I frequently see happening is
that we have a path forward has been identified.
Works been commenced.
But the moment there's this slightest indication
of controversy whether it's inside the agency
with staff disagreeing with each
other or outside the agency or both.
Somehow a Pause button gets
push or we get stuck.
And I don't-- the project just languishes.
And inertia sets in.
And some of these projects that we keep
setting dates on have literally been years.
Certainly all three years that
I have been a Commissioner
that I have been anxiously waiting being
able to get a package and address this.
And I do think that it's a problem within
the agency that we need to address.
And I'm not sure how we do it.
I don't think sending it back to staff
to have them fill in dates is the answer.
But what we need to do is in my view not
be so concern with having some controversy.
That's what we're here for.
That's what our job is.
And to have healthy discussions about ways in
which we can find some forward momentum on some
of the projects that we have been working on for
years and years and years and just keep going
around we just keep its--
we just keep treading water.
And I could make a pretty
significant list of those projects.
And so I do sympathies with
your frustration and I share it.
I just don't think that this is the answer.
>> Elliot Kaye: Commissioner Buerkle
>> Ann Marie Buerkle: I have nothing further.
Thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joseph Mohorovic: Thank you mister chairman.
Commissioner Robinson, I'll
consider it a friendly amendment
if you don't think this approach
is the right one.
And instead you would like to just
defer the final passage of this.
And we can have it in a different fashion
rather than what I have prescribed here.
I say that with genuine sincerity
of you like and I'm happy
to yield to you if you like to do that.
I don't mean to put you in spot right now.
You look like you wanted to say something
so I'm giving you that opportunity.
>> Marietta Robinson: No I--
it's not putting me on the spot.
I just don't think that the reg.
agenda is the way to address this problem.
And so I wouldn't do in the
form of an amendment to the reg.
agenda. But I do think it's
something that we should discuss
and see if we all can't find
a way to address this.
>> Joseph Mohorovic: Thank you Commissioner.
And Commissioner Adler I think made the
perfect point in bringing up elements
of Executive Order 12866 and also pointing
out that many of these are suggestions
for independent regulatory agencies.
And I think you're making a terrific argument
for something that I believe and strongly
that the executive orders of
regulatory best practices is defined
in Executive Order 12866 and
13563 should be codified.
And executive and independent regulatory
commission should be subject to them
and any actions that they
take that are noncompliance
with those executive orders should
be subject to judicial review.
That's not making much of a case
for this amendment right here.
But I think I've said all
I could on the amendment.
Thank you.
>> Elliot Kaye: Thank you
Commissioner Mohorovic.
Hearing no further discussion on the
motion, we now move to consider it.
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?
>> Joseph Mohorovic: Aye.
>> Elliot Kaye: And I vote no.
The nays are three, the ayes are two.
The motion-- The second motion by
Commissioner Mohorovic has not been adapted.
Are there any more motions or amendments?
Hearing none, we'll turn to final consideration
of the underlying regulatory agenda
not amended by any motion or amendment.
Each Commissioner have up to five minutes to
discuss that I've no further comments on it.
Commissioner Adler?
>> Robert Adler: I have no further comments.
Thank you.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: I have to say Commissioner
Buerkle and Commissioner Mohorovic when I walked
into this today, I shared Commissioner
Buerkle's opinion that she expressed initially
that I think I thank you,
Commissioner Mohorovic.
But I think that this is
then a very healthy exercise.
I am absolutely delighted that it
looks as though voluntary recall
and 6(b) is going to have some forward momentum.
My-- The thing I hate most in life is inertia.
And I look forward to coming
to a resolution on that.
I know we have disagreements, so what?
So I think, yes, we should inform congress.
Yes, we should dive in head first and debate
these issues and see what we can resolve.
So I'm delighted with that and I think
this has been a very healthy forum
in which to have that discussion.
I, mostly at this point, just want to thank
staff because I know that this was something
that got added and added with hours
and hours of time devoted to it.
Jana [assumed spelling] particularly,
I know you stayed up most
of the night last night making sure-- as I
understand, making sure that we had tracked
down what economic actions we had taken
with respect to specific projects.
And Mary Boyle, thank you so much
for you and all of your staff,
and certainly to those in front of us.
This has been a lot of effort but I think it
was time well spent, and I think we're going
to be a stronger Commission going forward
because of having had this discussion.
Thank you.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: I have
nothing further at this point.
>> Elliot Kaye: And that was very dramatic.
Commissioner Mohorovic?
>> Joseph Mohorovic: No Mr. Chairman, I
don't have anything else except for the close
when you want to get to that point.
>> Elliot Kaye: Great.
So having heard no further
discussion on the underlying package,
we'll now move to final consideration.
I move to approve the staff's
regulatory agenda and plan for fall 2016.
Is there a second?
>> Robert Adler: Second.
>> Elliot Kaye: We'll now
move for the vote on that.
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?
>> Joseph Mohorovic: No.
>> Elliot Kaye: And I vote aye.
The ayes are three, the nays are two.
The staff's regulatory agenda and
plan for fall 2016 has been approved.
We'll now turn to closing statements.
Commissioners will have up to 10 minutes.
In fairness to staff and the time,
I thank you for sitting there.
I know it's not easy especially when
the restroom is so close, yet so far.
So I'm going to file a written statement.
I just do want to thank you very much.
Thank Allison Stanley [assumed spelling] at
my office, in particular for all the work
that she did to help prepare me for this.
Commissioner Adler?
>> Robert Adler: I have almost nothing to
add to that other than to join in the thanks
to the staff for an enormous amount of
work in a very short period of time.
Particularly, I want to thank our
executive director who took upon herself
to coordinate a lot of activity
in addition to the work
that Jana Fong-Swamidoss [assumed spelling] did.
I want to thank my own staff for the
incredibly hard work they've done.
And particularly, I want to thank Commissioner
Mohorovic and his terrific staff for sitting
down and having a very, very
thoughtful and meaningful dialogue.
I think we're better for that.
And I thank you.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: I only want to
say in closing, I want to reiterate
that it doesn't take a rocket
scientist to look at our reg.
agendas for the last two years and
our op plans for the last two years
to realize the projects we're stuck on.
And I really hope that we can spend
some effort at the Commissioner level
and at the leadership level of the staff,
figuring with those projects
how we can find a path forward.
But thank you again for all
of your effort today.
>> Elliot Kaye: Commissioner Buerkle?
>> Ann Marie Buerkle: Thank you Mr. Chair.
I just have a couple of thoughts here.
First of all, my appreciation and thanks to the
staff for those of you who are sitting here,
and for Mary Boyle and OGC for all
of the work that is put upon you.
We thank you for the work and for the
extra work that having a decisional cause.
So thank you.
And your hook probably has gotten
worn out from getting us off the dice.
But thank you.
Thanks for your guidance.
I want to begin by saying that I do share
Commissioner Mohorovic's concern that the reg.
agenda should give the public as
helpful insight into what we're doing
and what we expect to do is possible.
I don't think it's because OIRA
or OMB or anyone else tells us to.
I think it's because we know that we owe it
to the public to let them know as clearly
as we know what projects we'll be
handling and taking on the next year.
But I do want to warn anyone who
follows our agency closely that the reg.
agenda will never be a clearly,
accurate depiction
or a complete story of what we're going to do.
First, as we referred today, some of the OMB
requirements and content and timing means
that we are obliged to submit
information that's almost certainly wrong.
The many November 2016 deadlines,
for example, are purely artificial.
They do not reflect what we expect to
happen, just what OMD requires us to do.
Therefore, much of the information
is inaccurate,
at least when we submit it
into the best of our knowledge.
Second regulatory agenda,
the entirety of the reg.
agenda fails to capture what I think is one
of the most important aspects of our work,
namely the focus on voluntary standards.
One of the unique things about our
CPSC is the statutory preference
for voluntary standards instead
of mandatory staff regulations.
This colors everything we do.
And so, in looking at the reg.
agenda, we do not see or do we have
insight into all of the works that's going
on in the voluntary standards arena.
But the reg.
agenda is not designed to capture this
aspect of our work, and I understand that,
or even the work that they may
have on major regulatory actions.
For this reason, the agency's operating plan
is and will continue to be the better way
to understand what is we plan
to in the next coming year.
We should make the reg.
agenda as good as it can be.
But the operating plan is the place to
look for really an accurate depiction
of the big annual picture that
will be coming up in 2017.
Again, thank you to all the staff
and thank you for having us here.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joseph Mohorovic: Thank you Mr. Chairman.
I am disappointed today.
Well, first of all, with thanks
to Mr. Chairman, to all the staff,
to my colleagues in the Commission, to
especially my senior counsel, Mike Gentine,
for his work on this in short period of time.
I hope you're very proud of the comments that
were cast in your direction from my colleagues
in the Commission and I echo them as well.
Although I am disappointed, I cannot
persuade my colleagues to join me
in making the changes I believe were
necessary to improve the accuracy and thereby,
the legitimacy of our regulatory agenda.
I want to thank them all for
the thoughtful discussion
about regulatory best practices
or the lack thereof.
As each of us in this Commission has pointed
out in multiple occasions, we're tiny agency,
we have enormous reach and virtually
every American uses one or more products
in our jurisdiction virtually everyday.
And our successes and our mistakes are felt
by hundreds of millions of people, and they,
they deserve a fair opportunity to help
us achieve success and avoid mistakes.
Government and regulatory policy should
not be a game open only to insiders.
As Executive Orders 12866 and 13563
had made clear one of the hallmarks
of a responsible regulatory state is public
participation and an open exchange of ideas.
For this to happen, the public needs to know
what actions the agency plans to take in order
to know when to participate
and what ideas to exchange.
This is not a partisan issue.
This is not industry versus consumers issue.
This is a good government issue.
For Mom and Pop companies, to Moms and Pops
who have made consumer's safety their lives
calling the people who want, who have the right
to talk us, need to know what to talk about,
and they need to know far enough in advance
to make the best use of their limited resources.
The flex agenda, reg.
plan, and unified agenda are
specifically and thoughtfully designed
to ensure our stakeholders have
the opportunity to engage with us.
Each is tailored to a different audience, the
small business owner, the economic watch dog,
the general student of government.
They're-- They are readily accessible and
supply information in clear, consistent formats.
They can be powerful tools to make sure
everyone who is interested in agency's activity,
not just insiders who follow the agency on
a daily basis can understand what's going on
and then decide for themselves
whether or not to get involved.
Those tools, however, are only as useful
as the information that goes into them
and the information unfortunately
few of the adage, garbage in,
garbage out, is far too applicable.
Sometimes, Woody Allen might be right
that 90% of success is showing up.
But when it comes to a document whose
purpose is to clearly articulate
to the public what we intend
to do in the next year
and what significant rules we're
considering, I don't think showing
up is even a fraction of success.
Submitting an inaccurate agenda is no
better than submitting no agenda at all,
and in fact, it may be even be worse.
The Washington Post write a column just
yesterday, predicting a rise in the number
of tax cheats, and one of the reasons that they
gave was for growing distrust in the government.
Thankfully, we haven't contributed
to that distrust
and any of the more scandalous ways
somehow, but telling the world that we intend
to accomplish a huge laundry list of tasks,
when we know it's unlikely we'll
finish more than a handful of them.
Saying year after year, quote, we'll get
right on that, unquote, is misleading at best,
deceptive at worse and only furthers the
impression that government can't be counted on.
We should be honest to the
public and to ourselves.
And what we can reason about
we can reasonably get done
and then we should do our best to get it done.
We should say what we mean and
mean what we say into the extent
that we've done this successfully in the past
like no further than our previous versions
of these documents, looked at
what we've said we'd get to.
Oddly, our agendas both overinclusive
and underinclusive, the reg.
plan is under inclusive and that it with
a straight face tries to tell stakeholders
that the upholstered furniture flammability
rules are only significant regulatory project.
When we know the proposed window covering
rule and others would have economic effects
that would make them significant and
the proposed phthalate rule relies
on novel policy issues that makes it
clearly significant under Order 12866.
I mean, the CHAP report and the NPR
used the word novel, five times.
Five times not enough to get it clear.
But they used it five times and apparently
that didn't mean it was actually novel.
I don't know if it was saying it was novel.
It's almost as long as a novel.
But I think they were novel in terms of novel
policy or legal manners for my reading of it.
It's certainly long enough to be a novel.
So I maybe I just misunderstood.
The unified agenda by contrast is overinclusive.
It lists every rule we would like to move,
not just the rules we think we
actually will be able to move.
It is that grievous sin we accused companies
of committing a data dump, the evil data dump.
Rather than calling up for the benefit
of the public, what projects do matter
in the next year, will matter in the next
year, we're burying them with all the projects
that could matter, which
coincidentally is just about everything.
The only way for the public to peer through
our static and figure out what really matters
and what is just for show is the high
higher-powered lobbyist to translate.
And I think we kind of have
confidence not rely upon.
And say, all of those really do know,
well they've got the resources to know,
they've got the resources to have
consumer advocates that pay close attention
to the agency or high-powered lawyers.
We're contributing to this
Washington Insider paradigm rather
than making government more
accessible to ordinary people.
Of course despite our best efforts,
the next year will certainly look
different on the other side of it.
Life is what happens to us while
we're busy making other plans,
and events will dictate deviations from
even the most thoughtfully created agenda.
I recognize that.
We will never perfectly predict our actions
12 months or even 12 weeks in advance.
But we shouldn't use that as an
excuse to frustrate the purposes
of the agenda setting process
by not even trying.
I firmly believe my colleagues want a regulatory
process in which every member of the public,
consumers, businesses, technical, and scientific
experts, everyone can meaningfully participate
and help stir us toward sound decisions
that effectively protect consumers.
But public participation doesn't just happen.
As any business zone will tell you, hanging an
open for business sign out front isn't enough,
you have to give people the reason
to want to come in to the shop.
You have to communicate.
And our failure to provide
a meaningful accurate,
timely regulatory agenda is
a failure to communicate.
And we shouldn't be surprised
when that failure contributes
to a critically broken United
States regulatory system.
Thank you Mr. Chairman.
>> Elliot Kaye: Thank you to the Commissioners,
to the staff who participated or who attended,
to anybody else from the public,
as well as those who viewed online.
This concludes this public meeting of the United
States Consumer Product Safety Commission.