>> Elliot Kaye: Good morning and
welcome to this public meeting
of the United States Consumer
Product Safety Commission.
We have one item on the agenda this morning,
the fiscal year 2017 operating plan
and the commission will vote on.
Before I introduce the staff in
front of us, I do want to mention
that Commissioner Buerkle is joining by phone.
Out thoughts are with her and her mom
and their family during this time.
And I can only hope that the empty chair next to
me fake laughs as well as she does to my jokes.
We have from the staff today Mr. DeWane
Ray who's the Deputy Executive Director
for Safety Operations, Mr. Jay Hoffman
who's our Chief Financial Officer,
Ms. Patricia Adkins who's our Executive
Director, and Dr. George Borlase,
our Director of the Office of
Hazard Identification and Reduction.
So we're going to start with our usual five
minutes of questions per commissioner and then
after that, we'll turn in to the consideration.
I have no questions, so Commissioner Adler.
>> Robert Adler: No questions.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: No questions.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: I have no questions.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: No questions.
>> Elliot Kay: All righty.
Well, to the staff, thank you very much.
That was easy.
You are excused.
And I'm sure that you won't
need me to say that twice.
We will now turn to consideration
of the underlying operating plan.
We do have a series of amendments and I'm
going to begin with my first amendment.
I'm going to introduce it
and then ask for a second.
My first amendment is on the
subject of padded crib bumpers.
And it involves the commission's
work on this topic,
which has been ongoing now
for a number of years.
Dozens of infants and children die
each year from unnecessary soft bedding
and I'm not just talking about crib bumpers
but I'm talking about all forms of clutter
in the cribs, which is bumpers,
pillows, comforters,
and other plush bedding in
that sleep environment.
In my opinion, these definitely
can be prevented.
So my amendment is a followup to great
staff work, thorough staff work from 2017
and followup staff work from 2016 in looking
at these incidents as well as significant input
from technical expert on my own
staff, Dr. Jonathan Midgett.
And my amendment would direct staff to follow
up on direction the commission gave the staff
in 2014, which was to commence rulemaking.
My amendment would move the next
step to move that rulemaking
through what we call the Section
104 process, which is Section 104
of the Consumer Product Safety Improvement
Act, which gave the agency rulemaking
for certain children's products that
we viewed pose a certain hazard.
So, I have distributed my
amendment, my staff has as well.
And the amendment basically has two parts.
It would focus on staff work that
would develop a performance standard--
consider the voluntary standard and develop
a performance standard and it would look
at both the rigidity of the bumpers as
well as the airflow associated with them.
And both of those get to
the same issue as to whether
or not this product presents a certain risk
of suffocation or entrapment or other hazards
that the staff has identified
associated with it.
So with that, I'll ask for
a second on my amendment.
>> Second.
>> Elliot Kaye: Thank you.
Having heard that, we'll
now discuss the amendment.
Commissioner Adler.
>> Robert Adler: Well, thank you Mr. Chairman
and thank you so much for the amendment.
Anybody reading the staff briefing
package on crib bumpers could see
that the staff put an enormous amount of
work and thought into it that said part
of staff approach to analyzing the incidents
is not an approach with which I agree.
The staff approach was to ask the question,
would a death have occurred even
if the bumper were not present?
And although that's a perfectly reasonable
test, it's not the one I think that is mandated
by the Consumer Product Safety Act and
it's not the one that I would adopt
and I picked an extreme example
to illustrate my point.
It would be the equivalent of saying, "If we
poisoned the victim so the victim would die,
but then we shot-- somebody else shot
the victim, do we forgive the poisoning?
Which is to say, you can have two
causes that contribute to a fatality
and to exclude situations where the crib
bumper presents an unreasonable risk
because the child might have
died from some additional cause,
to me doesn't really address what the
Consumer Product Safety Act mandates.
The Consumer Product Safety Act mandates
that we act against unreasonable risks
of injury associated with consumer products,
which means you can have a reasonably remote
connection between the hazard associated
with the product and the actual harm to a child,
but there is a limiting factor
for when we can act.
And that limiting factor is that any action
we would take cannot unduly increase the cost
or unreasonably affect the availability
or the utility of the product.
And that, to me, is the true test, which is
why I commend the Chair for taking a fresh look
at it and directing staff to
take a different perspective
in approaching the hazard
associated with crib bumpers.
And one last point that I would like to make,
when the staff briefing package came in,
I was contacted by a number
of people who are experts
in the field, human factors and epidemiology.
And they raised enough concerns so that I
have scheduled a meeting to which anybody
and everybody who wants to is free to attend.
And that will be on Wednesday, the 26th,
in this hearing room from 10:30 to 12:30.
And there will be various people who have been
working on the issues of crib bumpers for many,
many years who wanted to come in and give
their perspective on crib bumper hazards
and in particular to give their
perspective on the staff briefing package.
So again, I thank the Chair for his amendment.
I certainly propose to support it.
>> Elliot Kaye: Thank you, Commissioner Adler.
Commissioner Robinson.
>> Marietta Robinson: Thank you.
I spent a lot of time with my staff looking at
this issue over the years that I've been here
and it has concerned me for many years.
And my staff and I last holiday season spent
a very troubling time reviewing the files
in depth-- of our in depth investigations
for many of the crib bumper incidents.
I've met with staff to discuss crib
bumpers and the hazard patters.
I've met with outside groups, trade
associations, consumers groups, doctors groups,
safe sleep activists, and manufacturers
of traditional crib bumpers,
as well as alternative mesh liner.
And I've anxiously been waiting for this
package, I along with Commissioner Adler.
I was disappointed that the test was not
what our statute dictates and that is
that the product be associated with, which from
a legal standpoint, I'm intimately familiar with
and it's very different than the
approach that I felt like the staff took.
And while I appreciate their hard work, I
very much appreciate the work that Dr. Midgett
and the Chairman's Office put into this
amendment and I very much applaud it.
I agree 100% that crib bumpers should be
added to the product registration card
as they are durable infant
products, in my opinion.
And I also agree that staff
should be directed to begin work
on a Section 104 mandatory
standard for crib bumpers.
I also agree that staff should
address all or as many as possible
of the hazard patterns associated with
padded crib bumpers that include suffocation,
wedging and entrapment, falls, use patterns such
as installation difficulties using crib bumpers
for children past the recommended age and
using crib bumpers outside of the crib,
and mixed messaging about padded objects in
the cribs, which we all know we do not need.
It's critically important that staff focus
on developing the performance
standard as directed in the amendment.
And I'm confident that once staff
has completed the data analysis
and technical research necessary as
outlined in the Chairman's amendment,
the staff will be well-prepared
to present the commission
with the Section 104 mandatory standard
for crib bumpers in fiscal year '18.
I have privately complimented Dr. Midgett on
his very, very carefully prepared amendment
and his policy statement and I
compliment the Chair obviously
for your staff's work and for your work on this.
And I very much support it.
>> Elliot Kay: Thank you very
much, Commissioner Robinson.
Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chair.
I don't have any questions at this time.
I will say though that I do
not agree with my colleagues
that crib bumpers should be
classified as a durable nursery product
and I will not be supporting this amendment.
Thank you.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
Commissioner Mohorovic.
>> Joe Mohorovic: Thank you, Mr. Chairman.
And Mr. Chairman, I applaud the
fact that you've brought this issue
up in light of the operating plan.
It shouldn't have surprised you or anyone that I
have serious concerns about padded crib bumpers.
I think there's a problem.
I think we need a solution.
And I've said as much in those letters that have
been written to state legislatures are available
for anybody to take a look at
on my section of the website.
However, as what Commissioner Buerkle
just brought up in terms of the process
and the approach here is what I take
some great, distinguishing the process
that I think what we should approach on this.
In 2009, I recognized that the commission
issued a rule, the product registration rule.
Commenters on that rule had suggested
a long list of other products,
which the commission might include in
the definition of a durable infant,
or a toddler product, and
that included textiles.
But the commission expressly
rejected that suggestion.
And in the FR notice, the CPSC wrote,
"Based on the definition of durable infant
or toddler products and the original 12
product categories identified in the CPSIA,
the commission does not believe that these
products should be included in the final rule."
So, the commission has already
spoken on this subject.
Mr. Chairman, if you would
yield, I don't know if you were--
were you at the CPSC in the
staff capacity at that time
when this rule was being promulgated, maybe not?
>> Elliot Kaye: Actually, we need you to yield.
Would you yield?
>> Joe Mohorovic: Oh, I'll
yield if you'll answer.
>> Elliot Kaye: What was the date?
I was not in, you know, '09 but what's the date?
>> Joe Mohorovic: I don't have the date.
I just recognized that it
was promulgated in 2009.
>> Elliot Kaye: Yeah, I know I was
not here in the staff on that season.
>> Robert Adler: And I'm
not sure I was here either.
I certainly have no, as they
say, present recollection
at this point in time and place and location.
>> Joe Mohorovic: My-- OK, I could
be wrong, Commissioner Adler.
My records reflect that you voted for that
in a five-O vote with Chairman Tenenbaum,
including that quote, which
really restricted those products
that the CPSC felt were durable
infant or toddler products.
And I recognized that doesn't mean the
commission can't change its opinion.
And that doesn't also mean that commissioners
can't chang their opinion from one to the other.
But do we believe that then
the CPSC got it wrong?
Or, Chairman, do you think the CPSC got it wrong
in 2009 in specifically saying that textiles
and those other products that could have been
considered in the definition of a durable infant
or toddler product and therefore subject
to the product registration card
rule should not have been defined
or we should have given an
open-- an open definition?
>> Elliot Kaye: Well, as I mentioned, I wasn't
here then, so without having the benefit
of understanding what all of went into
that, whether that was a staff decision
or commission level decision, I really don't
know but I can-- and you pointed it out.
We have new commissioners here, people
with different opinions and I don't think
that the law was written in a way
from my perspective that's static.
I don't think the commission was
intended to have everything set in stone.
I do think that it was something that
was intended to be followed in spirit
and I do believe, as Commissioner Robinson
said, that we're following that here.
>> Joe Mohorovic: And if in fact, we did
instruct staff to reproach rulemaking in a 104,
would we also have to direct
staff commensurately
to reopen the product registration
card rule to amend that as well?
>> Elliot Kaye: Yes, and that's
actually in my amendment.
>> Joe Mohorovic: It is, forgive me
for not noticing that, Mr. Chairman.
I see I'm not on a shot clock today.
So thank you for that opportunity to have an
unlimited time to talk about this subject.
[ Laughter ]
But I don't have-- So, in the end, I mean,
I think we agree with the hazard associated
and there's a need for commission action.
And in fact, I think there's
a need for formal rulemaking.
However, I do think that using the 104 approach
in considering these products, durable infant
and toddler products is inaccurate.
And I think Congress, in providing us the
authority for express streamlined rulemaking
without the findings that are otherwise
necessary and CPSA and our other statutes,
that they wanted to do so and have the
agency provide great, great discretion.
And it required that this-- thinking
about these products and whether
or not a padded crib bumper is in fact a
durable nursery product, I couldn't help
but just thinking about just a few years ago,
playing the Sesame Street game with my kids.
One of these products is not like the other.
Can you determine?
So, here are the products,
if you play along with me.
So, for those kids playing at home, so these
are durable infant and toddler products.
So for the two-year-olds playing at home,
one of these things is not like the other.
Which one is different?
Do you know?
You know? Tell me which thing is not like
the others and I'll tell you if it is so.
Kids? It's the center one.
Adequate bumper.
It's nothing like the other products, none
of the kind of demonstrated qualities.
I think any two-year-old, if we
had a child observation study
and play the Sesame Street game, they would all
easily be able to point out that crib bumpers,
padded crib bumpers are not
durable infant or toddler products.
They're nothing like toddler beds and
strollers and cribs and heavy functional items.
So, to broaden the definition, I think is going
far beyond what Congress intended us to do.
And Section 104 defines a durable infant and
toddler product as a durable product intended
for user that may be reasonably expected to
be used by children under the age of five.
And of course, it included
the list of 12 examples.
I provided nine of them visually to
dramatically demonstrate the difference
between those products as intended by
Congress and the padded crib bumper.
The commission added six other products,
children's folding chairs, changing tables,
bouncers, infant bathtubs,
bed rails, infant slings.
When we added these, we said we
thought they met the definition
but we didn't explain-- explain why.
For me, the answer lies in what we didn't add.
As I mentioned earlier, the commission
expressly rejected commenter suggestions such as
"textile items", saying they "should
not be included in the final rule based
on the definition of durable
infant or toddler products."
I believe that was the right call at
the time and it is the right call now.
The products we added are functionally
similar to the ones on the 104 list.
Folding chairs, high chairs, they make sense
together, as do toddler beds and bed rails.
Slings are textile products, which aren't
usually considered durable but they are a form
of infant carrier, which are on the 104 list.
Crib bumpers are also a textile
product, not durable.
They also don't perform the same
function as anything on the list.
Crib bumpers don't look like a
duck, they don't quack like a duck,
and we should not regulate them like a duck.
This is more than simple semantics.
Section 104 allows us to skip a
bunch of our usual analytical steps.
Congress required those steps for a reason.
They result in better, more thoughtful rules.
And when Congress authorizes a limited
exception to our procedural requirements,
we need to treat it like it is
a limited, limited exception.
Section 104 didn't give us broad
authority to pretend everything we want
to regulate is a durable
infant and toddler product.
So, maybe tomorrow, we'll take this little
lamb that's got some kind of sensor inside
for white noise and it's got a little Velcro
attachment on the back that's intended to attach
to a crib and say, "Ah, again, another durable
infant product, let's go ahead and regulate it
under 104 with no statutory findings."
Now, I know some of my colleagues feel
that our procedures are too burdensome
and that it would be much more fun
to regulate based on impulse alone.
But just as we would tell
any company we regulate,
not liking a rule does not
get you out of following them.
And much like the history of liberty has
largely been the history of the observance
of procedural safeguards, my favorite
quote from Justice Frankfurter,
"Process" Mr. Chairman, "Process matters."
And for that reason, I cannot
support your amendment.
Thank you.
>> Elliot Kaye: Thank you,
Commissioner Mohorovic.
I have a feeling that other commissioners
are going to want to speak on this too.
So I'm going to be brief because I can
feel them [inaudible] a bit to jump in.
A couple of points on the child
behavioral issues you mentioned,
I actually have a child psychologist on my
staff and he fundamentally disagrees with you
and he has the technical expertise
that I don't think that others do.
And that is I think meaningful
because we normally rely as we should
on the technical expertise of staff when
we don't have that technical capability.
This is one of those very instances
where I happen to employ somebody
who has spent years working on this issue, has
great familiarity with children's products,
with durable infant products, and he's
reached a different conclusion than you have.
And I think when you read what he's
written, which I will circulate more broadly,
more publicly, but I know you have a copy
now, hopefully you'll find it compelling.
But at least you'll hopefully give him a
chance and talk to him about it further.
I am having a hard time reconciling though
your desire to drag out these efforts
with your letters to the-- that you've
referenced earlier to other legislatures
where I think you called for a full-scale ban.
Am I characterizing that correctly?
I don't-- I want to make sure I have it right.
I now yield for that.
>> Joe Mohorovic: I think
we should open rulemaking
under Section 7 to 9 of our statutory authority.
>> Elliot Kaye: I understood.
But in terms of the letters that you wrote to
the legislatures that were considering actions
on crib bumpers, do I have it right?
You asked-- You called for a ban.
But you called for a regulation at least.
>> Joe Mohorovic: Those are different
bills with different amendments
and different legislatures at different times.
What I can say definitively right now,
and we don't get a lot of clarity in terms
of what our intentions are around here,
my intention would be open up rulemaking
under Section 7 to 9, no bureaucratic
doublespeak, no what did you say there,
then at the time, what did you mean?
Let me be clear.
I'm a commissioner at the CPSC.
I'd move to open up rulemaking,
not under 104 but under Section 7
and Section 9 of our statutory authority.
I think that's pretty clear.
>> Elliot Kaye: Yeah, I think that's clear.
I think it's difficult to reconcile the two
positions where you called on other legislatures
to immediately regulate,
if not ban, these products.
But when it comes to our agency acting,
you want to take the slow route.
And I'm not comfortable with that
from child safety perspective
and you mentioned the statute
having no findings.
That's actually not true.
Section 104 of the CPSIA has one
critical finding and it's about safety.
And that's why I think it's so
important that we move under 104.
Commissioner Adler.
>> Robert Adler: Thank you very much.
And I think this falls into the realm sometimes
of foolish consistency being
the hobgoblin of small minds.
But the first thing I wanted to say is
that to the extent I can recall the vote
if I participated in the vote, and
I will take your word that I did,
was that my problem was I had real
difficulty eliminating baths--
excuse me, blankets and sheets and
towels from being durable infant products
because if you think about it, they really are.
And with respect to the notion of
crib bumpers not being durable,
I will cite a personal example.
I still remember about a month after
my son was born, looking out the window
and there were my wife's parents
with a trailer that had the crib
that she was born in and the crib bumpers.
Now I was not a happy camper taking
those things simply because of nostalgia
but those crib bumpers had been used time
and time and time again over the years.
I think it's inconceivable that they're--
that you could find them not to be durable.
The real problem is how do we
distinguish things like blankets, sheets,
and towels as durable infant products?
And I think it's a matter of policy, I
said, I don't want to extend 104 rulemaking.
But let me just also point out that, and I think
you alluded to it, bumpers aren't textiles.
They have textiles but they're not textiles.
Blankets, sheets, and towels are textiles.
Those were the things that
were excluded from the rule.
Slings, as you also point out, have textiles.
That doesn't mean they're
not durable infant products.
So I think even trying to approach this
from the plain words of the statute,
I think it's pretty hard to say that bumper
pads are not durable infant products.
So, I don't view this as acting on
impulse and I don't view it as fun.
I view it as a very serious charge that
the commission has to promote safety.
And in this case, I think this fits well
within and comfortably within the definition
of durable infant product and I think we
ought to take the fast route as opposed to--
slow is not even the right word to use
to describe the rulemaking
procedures of Section 7 and Section 9.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I think
it's extremely unfortunate
that we allowed you unlimited
time, Commissioner Mohorovic.
But I'm kidding.
But the-- what I rely on, I respect
your difference of opinion with respect
to these being durable infant products because
I think reasonable minds can differ in that.
I certainly did not rely
on pictures but I relied
on what I thought was a very
thorough legal analysis
that our General Counsel's Office
produced with the crib bumper package
in terms of what our alternatives were.
And I was convinced by that legal analysis
of what we have and have not classified
as durable infant products, products that
are not explicitly listed in the statute
and how we've gone about the analysis.
I was convinced that we could go this route.
Mary is shaking her head now.
Am I doing something I--
>> I just caution you to not discuss
legal analysis at an open hearing.
>> Marietta Robinson: Yes, thank you.
I will just say that I'm convinced that this
is a durable infant product and I think the--
obviously, the benefit of that
is that we can go a quicker route
and we can get this regulated more quickly.
And I think that this is much more
the equivalent of slings than towels
and the bear that you've brought with you.
But at any rate, I recognize that
reasonable minds can differ and I differ.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: I have nothing
further, except for [inaudible].
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Commissioner
Buerkle, did you get it right?
Which picture, which product
is not like the others?
>> Ann Marie Buerkle: I sure did.
>> Joe Mohorovic: OK.
Well, I agree that reasonable
minds can disagree.
And this is an unfortunate one, I think for me,
because the long and short of it is it's an area
that I think at least with the majority,
I agree that this is a product category
that requires action from the commission.
So I think we shouldn't lose the general
nature of our agreement behind the disagreement
with regards to the process or
the approach that we're taking.
And thank-- I want to thank my
colleagues for their consideration.
I know they did carefully thinking,
not flippantly consider these products
as durable infant or toddler products and I
would also agree with Commissioner Robinson
that reasonable minds may
disagree from time to time.
Thank you, Mr. Chairman.
>> Elliot Kaye: Thank you,
Commissioner Mohorovic.
Having heard no further discussion
on the amendment
of crib bumpers, we'll now call the vote.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: No.
>> Elliot Kaye: And I vote aye.
The ayes are three the nays are two.
The amendment to add the crib bumper amendment--
the amendment to add crib bumpers to
the operating plan has been approved.
I now go to the next amendment.
This is my second amendment.
This is on all-terrain vehicles
or what we also call ATVs.
This amendment I view more as a technical
amendment to the package in the fact
that on the mandatory standards table, I
felt in looking at it and my staff felt
that the amendment did not-- I'm sorry,
that the underlying operating plan
did not capture the ongoing staff work
beyond conspicuity.
And it was important for the public to
know and we've had discussions in the past
at the commission level in public about alerting
the public to the accuracy of our documents.
It was important for the public to
know ongoing work is being undertaken
by the commission staff, having
to do with stability of ATVs
as a possible further underpinning
of additional ATV rulemaking.
So I think my amendment is a simple one,
just to make sure that the public understands
that there is that ongoing
non-conspicuity ATV work related.
Is there a second?
>> Second.
>> Elliot Kaye: Thank you.
Having heard a second, we'll
now turn to discussion.
Commissioner Adler.
>> Robert Adler: I agree with your amendment.
I feel no need to address it
beyond noting that the stability
of ATVs has been an issue before the
commission for decades and it's time
that the commission spent the necessary
resources to address issues of stability
as well as issues of conspicuity.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I support this
separating out the non-conspicuity.
The-- Our staff, as you know, is spending
a great deal of time on the brakes
and we're talking brake lights
and reflectors on ATVs.
And I was absolutely delighted to that
in response to a conversation that I had
with some members of the committee
and the letter that I wrote
about what we were basically asking
that they very generously decided
to include these requirements
in the next voluntary standard.
And my understanding is that we're all very
optimistic that that's going to get passed.
And so then we can move on to the stability
issues that, given what we did in our midyear
in terms of testing with non-- being
able to test without human in the ATVs,
I'm very encouraged that
we're finally going to be able
to address the stability issues with ATVs.
And I support separating this out.
>> Elliot Kaye: Thank you,
Commissioner Robinson.
Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chairman.
I don't have any questions.
I will say that my staff and I spent half a
day at the lab and the staff was very kind
in explaining to us the ongoing testing
and work that they're doing on ATVs,
so I appreciate that this amendment is going
to provide a more accurate representation
of staff efforts on ATVs and
legislators bringing them in.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
Commissioner Mohorovic.
No comments?
OK, having heard no further discussion, I
now call a vote on the second amendment.
This one's on ATVs.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The ayes are five and the nays is zero.
The amendment on ATVs has been adopted.
We'll now turn to my third amendment.
This amendment is on high-energy
density batteries.
Recently, CPSC has recalled many different
product categories or types of products
because of batteries overheating or exploding
with the potential to cause fires or burns.
Some of these product categories have been
power tools, computer notebook batteries,
radio-controlled toys, video baby monitors,
heated winter clothing, hoverboards of course,
and this course as well,
cellphones, flashlights,
rechargeable vacuums and electric bicycles.
As high-energy density batteries become
more prevalent in our daily lives,
as we ask more of those batteries and we ask
them to take up less space and as competition
to make them more powerful and less expensive
increases, it becomes increasingly important,
in my mind at least, for the commission to
stay informed of developments associated
with the battery industry and to have some path
forward to not be dealing with these as much
as in the back end but to be
making sure on the front end
that these are not issues
consumers have to deal with.
So this amendment directs staff to perform
additional activities to address the emerging
and ongoing hazards associated with high-energy
density batteries, including but not limited
to enforcement, voluntary and mandatory
standards work, import surveillance
and compliance, and industry, interagency,
and intergovernmental cooperation.
And I want to highlight that last part in
particular that this is about cooperation.
This is about understanding the lay of the
land better, having a much better dialog
with industry, with our regulatory partners in
the federal government and across the world.
I also think it's important that-- to note, and
this will come up as well in a later amendment,
I think staff does an excellent job of trying
to take lessons learned from recalls and apply
that to our hazard identification work.
This would try to accelerate
it in terms of the batteries.
Is there a second?
>> Marietta Robinson: Second.
>> Elliot Kaye: Thank you,
Commissioner Robinson.
Having heard a second, we'll
now turn to a discussion.
Commission Adler.
>> Robert Adler: there are few things in life
that I'm reasonably confident of predicting.
And one of those is that sometime within
the next reasonable period of time,
we're going to have yet another issue
of lithium-ion batteries catching fire.
That's been going on for years and I
suspect it's going to continue to go on.
They're very important technology.
They've really advanced the technology with
respect to laptops and phones and so on.
But they're also used in automobiles.
This is a wide ranging issue across the
federal government and I'm delighted to hear
that as part of your amendment,
we will not be going alone.
We will be working in concert with
other agencies and departments
because this is just a massive
problem and I commend the Chairman
for bringing it to our attention.
I certainly plan to support his amendment.
>> Elliot Kaye: Thank you, Commissioner Adler.
Commissioner Robinson.
>> Marietta Robinson: Thank you.
One of the great things about this job
is watching the technological advances
that are being made on a daily basis.
And they're exciting and really impressive and
breathtaking, especially with what we can do
with batteries, not only lithium-ion but lithium
polymer, lithium iron phosphate batteries,
but they're packing ever more power into
these and can do so many more tasks.
But anyone who follows our recalls know that
this has increasingly become a problem for us
in one of our biggest challenges
in making sure that these are safe.
I very much support this and am delighted
at the idea that we will get out in front
of it instead of, you know, product by product
basis, given the fact that this is clearly going
to be a horizontal problem
and I applaud this amendment.
I'm glad we're going to be
working with other agencies.
>> Elliot Kaye: Thank you,
Commissioner Robinson.
Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chairman.
I do have a few questions on this topic.
In the amendment language, you're directing
staff to perform additional work and you kind
of expressed some of that work broadly
in your explanation of the amendment.
But can you be more specific
as to what staff will be--
what additional work they will be performing?
And will there be a deliverable?
Will there be a briefing a
package or a report will provide us
with the information that
we're looking for here?
>> Elliot Kaye: That will
accommodate, Commissioner Buerkle,
the tight resource availability of-- adding
an answer to the second question first,
of the operating plan, I was
asked by staff not to work
into this amendment a specific deliverable
because that would have taken time
and resources away from other projects.
So, I have explained to staff that I
could live with that but I do think
that the commission does need some
type of informal update along the way.
And if it turns out either through the
midyear process or in the next fiscal year
that we want a more concrete deliverable, we
can of course ask for that and have to work
that in from a resource perspective.
But I do expect from the staff, even if it's
not a written product, some identification
of a path forward, giving us some sense of
what are the voluntary standard gaps, if any,
where our other federal partners
on these issues,
what our opportunities for
further collaboration.
And now I'm getting into the first part of your
question, where does the European Commission sit
on this, Health Canada, what can
AQSIQ in China do to help us?
I feel, at this point, that there are a lot
of desperate parties out there that have a lot
of knowledge on batteries
but were all not talking.
And of course, most importantly,
industry, between the industry associations
and individual companies, I have to believe
that there's a wealth of knowledge out there
that if we just sit down and have a discussion
with them and maybe have some visits to labs
and learn how they're testing
and what their results are
that we can actually gain a
much greater understanding.
Does that help?
>> Ann Marie Buerkle: Yes, it helps.
I'm wondering if because you
mentioned limited resources,
whether or not this amendment is going
to have any resource impact,
if it's money your staff turns.
>> Elliot Kaye: I think it does
have resource implications.
My understanding from the EXHR staff is that
it is the equivalent of four staff months
and that it would come out of the bucket that
staff reserves to deal with unplanned work,
including responses to legislative
questions for instance and petition work.
>> Ann Marie Buerkle: OK.
How do you think that-- will there be a
plan, I guess, to share this information?
If there's not going to be a
briefing package or a report,
how will the five commissioners
be kept aggressed of the progress
in which staff is hopefully learning
as they do these additional
responsibilities and additional work?
>> Elliot Kaye: Certainly, I would hope
and encourage that the commissioners,
during your weeklies, will
ask staff where it stands.
And if you feel like you haven't heard
about it in a while or staff feels
like there's an update, I would encourage
staff to raise it during the weekly briefings.
If we-- there's a critical mass of information
and we feel it would be best to have us all here
at the same time, we can of course
have some type of public hearing.
I just want to be sensitive to staff about the
fact that that's a nonzero amount of resources
that have to be pulled aside to prepare for
that without a federal registrar notice,
potentially answer comments or address comments.
But I think that if your
concern is will you know when--
what you need to know when you know
it, I'm sure that staff will keep you
and all the rest of us certainly informed.
>> Ann Marie Buerkle: Thank you.
Well, with regards to engagement in the mention
of the entities that staff will talking to
and trying to break down some of the
silence that exists with this issue,
will there be stakeholder engagement?
Will we be reaching out to those who
have been affected by these problems
in a regulated community or the stakeholders?
And will be having conversations to
obtain information from them as well?
>> Elliot Kaye: Well, certainly, I
think the spirit of my amendment,
if not the specific words is that
this should be a very broad outreach.
And so I would expect staff, and I think staff
intends to reach out as broadly as necessary
to get any actionable information.
So, if-- and I'm going to defer to the judgment
of staff but I've laid out in my amendment
at least in broad strokes the type
of engagement, including stakeholders
that you're mentioning that I think could
have the type of actionable information.
So I would expect that they would
be contacted in some form by staff.
We have to be mindful of the collection
limitations on information that exists
from ONB [assumed spelling] but I'm sure staff
can figure out a way within that framework
to gather the information that they would need.
>> Ann Marie Buerkle: Thank you.
I have one last thing.
And I did mention that I support this
amendment because, as you mentioned,
in right of the research
[inaudible] very important
that we get our arms around this issue.
So I will-- I do intend to support it.
But I am concerned that maybe at midyear, we can
talk about progress on this issue and whether
or not we think a briefing
package and/or a report should be--
may develop to the commissioners, because there
is so much information that we need to learn
about and understand from staff's
perspective and from their additional work.
>> Elliot Kaye: I would welcome that discussion.
As I mentioned, that was where I started.
And I added deference to staff and I would
call even pleas, I backed off on that.
But certainly, Commissioner Buerkle, I would
love to continue that discussion with you
and see if the midyear or some other form
would present an opportunity to get that type
of information to us in that format.
>> Ann Marie Buerkle: Thank you.
That's all I have.
I appreciate your answer.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
Commissioner Mohorovic.
>> Joe Mohorovic: No questions.
>> Elliot Kaye: Having heard no further comments
on the amendment, we'll now turn to a vote.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The ayes are five and the nays is zero.
The amendment on adding high-end--
high-energy density batteries
to the operating plan has been adopted.
I now turn to the next amendment.
This is an amendment that I have
on top loaded washing machines.
And similarly, it involves trying
to learn information that we gather
in the compliance context and carry that forward
to our hazard identification reduction work.
My amendment is simple.
It would add to the list of voluntary
standards that the staff is monitoring,
voluntary standards work on
top loaded washing machines.
Is there a second?
>> Marietta Robinson: Second.
>> Elliot Kaye: Having heard a second, we'll
now turn to a discussion of the amendment.
Commissioner Adler.
>> Robert Adler: No questions, no comments.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I believe
that I support adding this.
I always support our staff being involved
in voluntary standards activities
and this is yet another one.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you.
I just have one question
and that has to do with,
so will the voluntary standards
work continue on--
you directed your staff to work on the
top loaded but will it also continue
in the voluntary standards
work on the front loaded?
>> Elliot Kaye: My recollection, I
don't have the page in front of me.
I thought that this was one of those areas
where staff might be stepping back from,
at least in terms of its active engagement.
And as I'm talking, I'm just flipping through.
Yes, so on page 7 of the operating
plan, as staff proposed to us,
staff had identified this is
one of those voluntary standards
where they did not to be as actively engaged in.
But I certainly understand from staff
that that doesn't mean we don't--
that we turn a blind eye to what's happening.
But that basically means we
continue to have it under monitoring.
But that it's not something that
we are preparing for and coming
to the voluntary standards body with specific
ideas as I think that they might have to do
or at least be more engaged on the top
loaded washers in light of recent incidents.
>> Ann Marie Buerkle: OK.
Thank you very much.
That's all I have.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: No questions.
>> Elliot Kaye: Having heard
no further discussion
on the amendment, we'll now call a vote.
Commissioner Adler.
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Aye.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The ayes are five, the nays, zero.
The amendment on top loaded
washers has been agreed to.
I now turn to my last amendment, which
is on upholstered furniture flammability.
Unfortunately, this is an issue
that the commission has struggled
with far longer than even bumpers.
I think that we're coming on two decades
of the agency trying to get its arms around
and we're not the only ones,
but trying to get its arms
around hazards presented
by upholstered furniture.
In the interim, at least one state, California
has moved ahead with its own standard.
And that standard is now, as we understand
it, the de facto of national standard.
What makes this challenging and what
I try to get to in my amendment is
that there's really two hazard
patterns we're talking about here.
One is the fire hazard that's associated with
this-- with the foam, in particular, getting--
becoming combustible under some type of
ignition source, whether it's a smolder
from like a cigarette or a
flame from like a candle.
But there is also the reality
that we have to accept
that there might also be a chronic chemical
exposure hazard from the flame retardants
or certain flame retardants that
have been added over the years
in an attempt to address the fire hazard.
And it has been explained understandably,
especially for those of us with young children,
over the use and abuse of couches over
time, this-- the flame retardants become--
they release from the foam and they settle into
the dust, kids put their hands under couches
in most homes in the US, except maybe
mine, and they end up ingesting it
and there is significant concern.
And one of the efforts that California
sought to undertake was to try to drive
out those chemicals, and my understanding
as well, based on reports from California
and industries that industry has
responded and taken those chemicals out.
So my amendment has two parts.
It's intended to have staff work to reconcile
some of the remaining technical issues
that exist between the excellent work that we've
done of smolder standard and we've been working
on it for a number of years, as
well as what California has done.
And there's a second part to make sure
to be sensitive to vulnerable populations
as we pursue this fire hazard and addressing
it that we're not unintentionally contributing
to chronic exposures from
harmful or toxic chemicals.
Is there a second?
>> Robert Adler: Second.
>> Elliot Kaye: Thank you, Commissioner Adler.
>> Robert Adler: Thank you
very much, Mr. Chairman.
I strongly support your motion.
And I did want to make a couple of observations
and this goes back to the
years I've been around.
You can make the case that back in 1968 is
when the federal government first began
investigating the flammability hazards
of upholstered furniture.
And that was when what was
then called the National Bureau
of Standards began testing extensively.
I just know that when I came to the
commission in 1973, we were fully engaged
in addressing the hazards
of upholstered furniture.
And one of the things that I've concluded
is that because of their construction
and the multitude of fabrics, it is
an incredible technical challenge
to address the hazards associated
with furniture flammability.
But there's actually been some good news.
When I first came to the
commission, my best recollection,
there were well over 1200-1300 deaths
from furniture fires in the home.
And in the intervening years,
we've seen a number of factors
that have reduced that dramatically.
We've seen safer furniture, we've seen
smoke alarms, and we've seen a dramatic drop
in smoking, which is typically
the reason why furniture smolders.
So, we're down to about 400 flammability deaths
a year but that's still the number one cause
of flammability deaths from
consumer products in the home.
And I don't think we can
just abandon the effort.
We've got to keep working on it.
But you raised an incredibly
important ancillary point.
And that is, we may be having hundreds or even
thousands of people dying from furniture fires
but we have hundreds and hundreds of
millions of consumers exposed to FR chemicals
in furniture if we're not careful.
And sometimes in our haste to address one
hazard, we unintentionally create a hazard
in a different direction and I'm mindful
of the children's sleepwear standard
which triggered the addition of a chemical
flame retardant called Tris that turned
out to present a serious chronic hazard.
And so the commission was kind
of caught flatfooted giving good
intentions a bad name at that point.
So we have to be mindful
of all of these hazards,
which is why I think the Chairman's approach
is so thoughtful because what you're asking us
to do is to build on existing
technology and existing development.
And I think you've also put your finger
on California right now is the tail
that wags the national dog
when it comes to flammability.
And so to the extent, we can go and
work with the authorities in California
and I love the acronym BEARHFTI
for the California bureau,
almost as good as IKFSO [assumed
spelling] for consumer products.
I do think that we can sit down and talk
and work with the folks at this bureau.
And I love the idea of federal state
cooperation to try as best we can
to address the concerns raised
by staff with respect to TB117.
I am not convinced that those are insurmountable
problems and therefore I look forward
to collaboration very optimistically and
again, I thank the Chairman for his motion.
>> Elliot Kaye: Thank you, Commissioner Alder.
Commissioner Robinson.
>> Marietta Robinson: This is another
issue I've watched very closely.
And I'm convinced that our staff has really
been working in the utmost good faith,
trying to address as many causes
of fire as they can without moving
into dangerous flame retardants
being required for the furniture.
Our data are not great, with respect to
the cause of fires, but they are not going
to get any better in spite of a lot
of efforts on certainly my part to try
to get better data from insurance companies.
I have not been successful in getting that.
So we have what we have and our staff
has been working very hard on this.
And we all are very aware of the
dangers of many of the flame retardants
and I think during the hearing for--
on the petition to ban non-polymeric
additive organohalogens, this was really,
really brought home to us by a number
of experts in addition to those we've--
we've all met with on numerous
occasions over the last years.
So it's a real concern.
But I do think that, as Commissioner
Adler just said, we can't give up on it.
I've met with so many stakeholders on this,
consumer groups, furniture manufacturers.
I went down to North Carolina and met
with foam makers and textile manufacturers
and again with furniture manufacturers.
And most recently, in fact just yesterday,
I had a conversation with a technical expert
at the California's Bureau of Electronic
and Appliance Repair Home Furnishings
and Thermal Installation who's worked
on TB117-2013 and he answered many
of the questions I had about their
approach to furniture flammability.
So, I very much support this amendment.
The package that we received from staff showed
a great deal of effort that had gone into this.
But it was clear from that package that
there's more that can be done with the respect
to figuring out a path forward
to find repeatable, reliable,
and relevant performance
requirements that we can formulate.
And I think it's great to be working
with California on this because they have
so many experts who have done
such excellent work on this.
>> Elliot Kaye: Thank you,
Commissioner Robinson.
Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chair.
I won't repeat the list that
Commissioner Robinson went through
but our staff has done the same analysis, had
the same meetings and the same conversations.
I think it's fair to say for all of
us, this is a very important issue.
And I understand we've trying to solve the
problem as best we can is on everyone's--
of the commissioner's requirements.
In fact, it's why I promoted an
advanced TB117 amendment last year.
So, this is important to me.
I do have a couple of questions
regarding your amendment.
One of the things that I'm
wondering about is what is the status
of the upholstered furniture NPR now?
Will staff-- Are they going to still send us
a briefing package to terminate the rulemaking
that they recommended in
the TB117 briefing package?
>> Elliot Kaye: Not if this
amendment is approved.
If this amendment is approved, it
would change the direction to staff.
Instead of staff working on a termination
package, staff would enhance its efforts
with California to see if any
agreement could be reached
on the technical aspects
of the smolder standard.
>> Ann Marie Buerkle: OK.
So we essentially are overwriting
the statute under the agency?
>> Elliot Kaye: Yes.
>> Ann Marie Buerkle: I have
grave concerns about that.
I mean, they're the experts, they're
the ones who have, as you mentioned,
dedicated two decades along in this work and
they shout along the line of trying to figure
out as well as the only standard.
They've indicated that in that briefing package
that terminating the rule
made the most sense to them.
So I have concerns and I'll
just leave it at that.
When you're talking about staff being engaged
with the State of California regarding TB117,
can you just elaborate on
that a little bit further?
>> Elliot Kaye: Sure.
So TB-- California has offered to
either host or, if the need be,
come out and sit with our technical staff.
They have a lot of data that
they believe could be relevant.
They identified immaterial shared with the
commission that will certainly make as part
of the rulemaking docket information that
they feel would help better explain some
of the differences of opinions
that they and staff have
over specific technical aspects
of the smolder test.
So staff in 2008 proposed a-- an NPR,
a notice of proposal we're making
on the smolder aspect of flammability.
And maybe 2010-2011 timeframe, staff started to
shift away from that because of concerns about,
as Commissioner Robinson talked about,
repeatability of going from a small-scale test
to a large-scale test and even extrapolating
what that would mean for real life scenarios.
So staff had reached a conclusion
where they felt that those--
that they had exhausted that
avenue and California feels,
as Commissioner Adler mentioned, that
there might be more promise there
and I think it's important for the two
staffs to get together at a technical level
and have those discussions
and see if there is some type
of reconciliation between those two views.
>> Ann Marie Buerkle: I'm pleased
that they'll be reaching out now
but I guess my question is why it
hasn't been reached a long time ago?
Adoption of TB 117 is something that's
been on the table and discussed by folks
from the industry as well as from the consumer
groups from those concerns regarding chemicals
and it seems like that would have
been something we could have benefited
from a long time ago rather
than waiting till now.
>> Elliot Kaye: Can I address
that, Commissioner Buerkle?
>> Ann Marie Buerkle: Sure, you sure can.
>> Elliot Kaye: So actually, there have
been technical discussions in fact,
when California proposed to update
Technical Bulletin 117 as a lead up to 2013.
Two of our staff, including senior staff, went
out to California to meet with California staff
and to testify as part of that and I'm pretty
certain based on whatever composed CPSC staff
and California staff that those
technical discussions have continued.
I just don't know if they've had a chance to
really focus in on what the core issues were.
I think there was something about staff
producing that report from last month
that allowed everyone to home
in on what the key issues are
and really give the groups a chance
to try to settle those issues.
So I think that that evolved from the various
discussions that actually have been taking place
between the two agency staff over
the course of a number of years.
>> Ann Marie Buerkle: Well, that's unfortunate
then because [inaudible] a lot of some
of these discussions [inaudible]
we thought would be most prudent.
And I will say and I-- this is hearsay but--
and I will certainly look into it further
and that is-- I don't think that
when staff in their engagement
with California's folks--
staff took them very seriously.
And hopefully, that will change and they
will have meaningful discussions rather
than just discussions for
the sake of discussions.
I want to go ahead with a couple of other
questions and if you don't mind answering them.
Do you know if our staff had clear
direction that it continues its work
with the NFPA Voluntary Standards Committee?
And if so, what is that direction?
>> Elliot Kaye: When you say clear direction,
do you mean up until the point of this amendment
or as a result of this amendment if it passes?
>> Ann Marie Buerkle: Well, I think both.
You know, I'm just wondering.
There seems to be a lot of confusion and this
will just continue to add to the confusion.
What is staff's direction with NFPA?
>> Elliot Kaye: No I can't speak to
what staff to date has been given
if staff has even been given any
direction as opposed to staff
from a technical perspective pursuing through
NFPA and their voluntary standards process
or following that process in contributing
to that discussion, whatever the goals are
of that subcommittee or the technical groups.
I just-- I'm not familiar enough with it.
I don't obviously attend those meetings.
I'm assuming it's like any voluntary standard
where there's allotable effort in place
to address a specific hazard pattern and
then there's a group of experts that gather
to discuss it and we give staff the
latitude as we usually do to come at it
with whatever approach they think
is most effective and data-driven.
What is different or is overlaid on top of that
with this amendment and Commissioner Adler got
to it is that as staff is very focused on
solving a particular hazard pattern associated
with fires, it's not been the charge of
that subcommittee or that technical group
to consider other unintended consequences.
And this is one area where multiple groups
have brought to our attention the concern
that as you push open flame mitigation
strategies, you are driving chemicals
to the extent that they've been
taken out back into the products.
And there is that chronic exposure issue that
could occur and so the point of this amendment
to staff-- is to say to staff
keep at it on the fire side
but make sure whatever you're doing does not
unintentionally contribute to chronic exposure,
especially the children from
harmful or toxic chemicals.
>> Ann Marie Buerkle: OK.
I still-- I guess I'm still
not clear and we'll continue--
my staff and I will continue to
understand the work that's being done
in the NFPA Voluntary Standards Committee.
I mean, I-- and I've said this when I offered
my amendment regarding TB117 that I mean
if we can address and TB117 does
address smolder ignition sources, they--
why aren't we focused on that
because they represent the majority
of residential fires involving
upholstery furniture and things like that?
That would be a good way
to go and deal with that.
We're not saying don't go forward with the open
flame but deal with the smoldering and deal
with TB117 just as what the staff
indicated in their package to us.
But I'm concerned about NFPA and our
participation in NFPA because I heard
from many stakeholders, including those that we
recently met with, that-- I mean, it's across--
and this has been the most interesting thing
about this issue is how it transcends the
usual stereotypical positions on the issue.
It brings unlikely partners or it makes
the likely partners come together.
But I've heard from industry, health and
safety advocates and the fire fighter team
that NFPA lacks transparency and
they don't encourage participation
in the voluntary standards process-- that would
take process and they're all concerned about it.
So my staff and I will be continuing to look
at the NFPA process and make sure it's open
and transparent to all stakeholders.
I think that's key and that is more in
the spirit in line with what was intended
with the voluntary standards work.
One last-- I guess one last question
or statement to you is I would
like for the commission to seriously
consider putting the staff's recent package
on TB117 out for comments.
It is a substantial.
It probably-- it should have gone out sooner
but it is a substantial amount of work that went
into it, it reflects years of
work from department staff.
And it really does, I think, merits
comments from the various stakeholders.
And I think that would be
a really prudent way to go.
Let's regroup, let's figure out the direction
the agency and the staff should be working in
and we have a certain amount of information
from what was provided in this package.
And I would really request
that you would consider that.
Let the public comment on
the staff package TB117.
Thank you very much.
That's all I have.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
Commissioner Mohorovic.
Mr. Mohorovic?
>> Joe Mohorovic: Thank you, Mr. Chairman.
I apologize for not being
facing forward on this.
I plan on supporting this amendment.
Mr. Chairman, I appreciate
you bringing it forward.
I appreciate what you've brought forward with
regards to the mandatory standards table.
So, keeping open the activities towards TB117
or our upholstered furniture flammability
rulemaking, for me, at least holds out hope
that we could come to a point where
the commission might adopt TB117-13.
That would be my clear intention.
It's my clear direction and if there's
ever a second or a reasonable third,
then we can move right along with that
kind of an approach and instruct staff
to prepare a package that says exactly that.
Your amendment also addresses
the voluntary standards activity.
Commissioner Buerkle got
to it to a certain extent.
And we've all talked about the amount of
stakeholders that have traveled far distance,
spent thousands of dollars in travel to
come and advocate before the commission
about their concern of the chronic
health effects of flame retardants,
whether they be organohalogenated,
bromated, et cetera, there's a lot of concern
and controversy around that issue.
Now you mentioned that you didn't know what the
purpose of our voluntary standards activity is
and you've got a lot in your mind.
I'm going to help you with that.
Because in our testimony on the
hearing, I inquired that of Mr. Borlase,
who's here today if you don't want to take
it from me, you can hear it again from him.
As I explored exactly what is the
intention with staff on that line item
with the voluntary standards activity.
And it was revealed, and this is very clear
as three of my staffers attempted to try
to pull our V-star report so I can quote
exactly what it is from our staff to prepare
and describe transparently what is our
intention in our voluntary standards activities.
The NFPA 277 standard is a
large open flame standard.
I know you didn't mean to be misleading by
talking about small candles or small open flame,
perhaps you meant in terms of our
previous rulemaking et cetera.
But where we are putting CPSC funds
towards and asking staff to contribute
to is a large open flame standard.
And again, as I do a little bit of
distraction, there is a perfect quote
that explains what the purpose of that activity.
Thank you, just in the nick of time.
Let's see, the purpose of it.
I don't know we've got the right one here.
Not the right one, Mike.
Mr. Chairman, would you allow Mr.
Borlase to be able to testify in terms
of what the staff's direction of the
NFPA Fire Test Committee's direction is.
There is a quote that's available that
clearly indicates that they're seeking
out a large open flame standard where
upholstery is not the first item ignited
but the second item ignited.
And I think it's relevant because it's talking
about the reasonable demand drivers for ways
that one might be able to comply
with the performance standard that's
designed to be large open flame.
>> Elliot Kaye: Mezzanine has called
Dr. Borlase up for a couple reasons.
I don't think that Dr. Borlase is--
but I noticed that this is going to be
the case and I guess I'm struggling.
I hear your larger point but I'm struggling to
understand why that specific line, I got it,
open flame, large open flame but what it
is about that specific piece of information
that you feel like will illuminate the
conversation that it's otherwise in the dark?
>> Joe Mohorovic: I am so glad you asked.
The reason it's important is it's about what
is the reasonable approach is to addressing it.
Now we're going to have a hearing later
on today about portable generators
and carbon monoxide and reducing
carbon monoxide.
And our staff put together performance standard.
Not a design standard that says you have
to have EFI or a catalytic converter,
but they recognized that any reasonable
approach to achieve those kind
of performance will likely require
EFI or a catalytic converter.
That's not defined, you can do it anyway
you can but that's where you got to.
And unless there's some magical industrial
revolution between here and there
where somebody finds another means
of getting there, reasonably,
that's what people will have to do.
If we're going to fund a large open flame
standard, it shouldn't surprise anybody
that they're going to have to do that by
the incorporation of flame retardants.
Now, I have a question I'm willing yield
to and that is you have a line in here
that says specifically with our
voluntary standards efforts.
While pursing fire safety through
voluntary standards efforts,
staff shall support development of voluntary
standard that can be achieved without exposure
to toxic chemicals either from the furniture
itself or through combustion of the furniture.
Now, if the staff are going to contribute
to an aggressive large open flame standard,
how would this inhibit or discourage
somebody from using what many claimed
to be are toxic chemicals as
an approach to meeting it?
>> Elliot Kaye: Sure.
I guess I don't understand why it has
to be the chemicals we'll go back in.
Why is that a necessity?
That's not something that the
staff has presented to me.
>> Joe Mohorovic: What ways would one be able
to comply with a large open flame standard
for upholstered furniture unless you
think it's going to be upholstered
with a flame retardant suit
that a fireman wears?
>> Elliot Kaye: Well, so staff has spent a
lot of time on barriers and in California,
the same agency in California that created
TB117 is actively studying barriers as well.
>> Joe Mohorovic: For small
open flame, Mr. Chairman.
>> Elliot Kaye: But barriers
generally is a technology.
Maybe I have more faith in the
innovation of American businesses to come
up with different ways to do it but I do
think that there is a legitimate fire hazard
because what you're proposing the alternative
and by the way, I don't see any amendment
from you to cut staff's work out on this and
I've never seen that but you are proposing,
in essence, the implication of that is
that we should turn a blind eye to one way
to potentially address fire hazards
and I'm not comfortable with that.
I feel like every option should be on the table,
we can decide as we go along how far that moves
and what we want to live with but I don't--
I'm not comfortable and I would not support
at this point categorically denying staff
the ability to participate in NFPA's process.
And I also don't think, by the way, that
I would stop NFPA from going forward
and I do think there is value of having staff
at the table to understand what NFPA is doing
and to lend our technical
expertise to that effort.
But if you want to propose
an amendment to my amendment,
I'm sure the commission would consider that.
>> Joe Mohorovic: The reason I'm speaking up
about this subject is the fact that the people
who have spent countless
hours and thousands of dollars
to advocate before the commission,
they deserve a straight answer.
And to pretend that while staff can contribute
to a large open standard that could be achieved
through some other means, but not
necessarily using flame retardants, sure,
they could just make all leather furniture
that could comply with small open flame
and large open flame and cigarette smoldering.
But it's disingenuous to say that we're
not contributing towards a standard
that any reasonable mind would conclude requires
flame retardants to pass it, everybody knows it,
the advocates know it, we know it and this
language provides a false sense of security
that in fact, we're putting resources
towards demand drivers for flame retardants.
So, the only reason I'm bringing it up is
because Washington's got too much of this going
on and they deserve an honest answer.
And if we're going to fund those efforts and
resources to them, then let's just say it.
Let's just say we're going to fund these
resources, they're going to contribute
to a standard, the standard with be able to say
that it's had the support and the contribution
of the CPSC staff and therefore, they'll be
able to encourage people or strong armed people
to comply with their standard
and that's what'll happen.
But much like somebody saying, "Well you know,
you can comply with the portable generator
standard but you don't have to have an EFI,
you don't have to have a catalyst, you could
magically create some kind of generator
that will reduce CO that
nobody's ever heard of before
that doesn't require that kind of technology."
So, let's just say, you know, come correct as an
agency, as a government for once, and just say,
"This is where we are and
we don't believe you yet."
We're going to put staff, money and dollars
towards it and until we're proven otherwise and,
you know, and I'm out with the jury on this.
I'm not compelled either way that I believe that
the exposure created by those flame retardants
that are in the standard, that
would be on the standard to comply
with a large open flame are
necessarily creating an unreasonable risk
or substantial product hazard.
But, you know, the people have spent a lot of
time to get a straight answer from the agency
and I just think that they
deserve some straight talk.
Thank you, Mr. Chairman.
>> Elliot Kaye: Thank you,
Commissioner Mohorovic.
I would like to address a few of those points.
First of all, even some of the advocates who've
come in including last week, fire chiefs,
their recommendation was not to not work
on this but it was to expand the scope
of the subcommittee's mandate so
that it would consider public health.
And so, that's, in essence, what
we've done from the CPSC perspective.
We can't mandate what the direction
that NFPA is supposed to go in
but we can only control the CPSC's aspect.
So that is actually consistent
with the advocacy viewpoint.
I'm a little disappointed that you have such a
small-minded of view though of the capabilities
of companies and I think portable generators
is a perfect example and we'll hear
about this later this afternoon, where even up
to last year, we were told, it cannot be done.
You cannot put this type of
technology that we're going to hear
about on smaller class 1 engine handhelds.
It is technologically not feasible.
Here we are a year later and it is.
And so, I have a much-- I don't
have a conspiratorial view of this
and I have a much more open mind and a
stronger belief in the entrepreneurial aspects
and the creativity of businesses to
solve these technological problems.
Commissioner Adler.
>> Robert Adler: Thank you.
I've-- This has been an extremely
useful and beneficial debate.
And I have to say that to great extent,
I think Commissioner Mohorovic
makes some really excellent points.
I think, given the state of today's technology,
it's clear that the only way you
could meet the open flame standard is
by the addition of FR chemicals.
And unfortunately, I think NFPA is not--
is sensitive to that or they
just haven't had our concerns
about chronic hazards brought
to their attention.
But I will just go on record at saying
this, I've said on numerous occasions,
if people bring me a standard irrespective
of its performance-based drafting
that inevitably will bring about the use
of FR chemicals, there is no way on Earth
that I would support it and I think the
Chairman's amendment is very carefully drawn
to address that notion.
And so, I think we can hold that hope that
there might be some technological development,
I think it's perfectly fine to say to the staff,
"Go ye forth and talk to these various experts
on the development of further
refinements with respect to safety."
But I do repeat once again that
if people come back and tell me
that an open flame standard
whether for small open flame
or large open flame will require the use of
FR chemicals, I'm not going to support that.
I've also been quite impressed by the work
and research of a number of folks in this area
who have made the case, it's still an open issue
in my mind, that by the time you get to anything
that is the second ignition
use with a large open flame,
abandon hope because what you've got
is something that you could not solve
by the use of at least current technology.
So I'm very skeptical about the work that's
underway but the idea of just cutting it off,
to me, does not make a lot of sense,
especially since we can keep reminding folks
of this carefully drawn amendment that the
Chairman has in which he goes out of this way
to say, without exposure to toxic
chemicals, which is why I would support that.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Yeah, I'm a
little puzzled, Commissioner Mohorovic.
I think everyone at this table agrees
that the open-- an open flame--
a large open flame standard
would require flame retardants
and we would not support that, period.
I think we can all say that we agree on that.
And we certainly have it from some sources
that-- I mean, it's double, triple,
quadruple hearsay but except
for purposes of this discussion
that the NFPA is committed to
a large open flame standard.
I don't know that that's the case but just for
purposes of the discussion, I'll accept that.
I was in the same meeting you were in last
week and shared all of the concerns you shared
but I certainly-- I know you left a little early
because you had to but that certainly was not--
it certainly was the consensus of the group that
they were not telling us not to participate just
because they thought a standard was going
to come out that they didn't agree with.
In fact, they thought it was important that
we do participate to try to steer them away
from a standard that would
require flame retardants.
And when I think of the examples of the
standards committees that if we looked
at what we thought the end result was going
to be and decided based on the projection
that we wouldn't participate, I got
a long list of standards committees
that we wouldn't be participating in, window
blinds, furniture stability, ROVs, ATVs,
I mean I could go on and on of the
things we wouldn't participate in.
But that's not the way we approach
voluntary standards committees.
And I just think I-- the way that this
amendment is phrased, I think that it takes care
of the concerns that were expressed
in the meeting that you and I were in.
We all know the CPSC is not going to
get behind a large open flame standard
because we are not going
to require flame retardants
in our furniture whether we do
or do not have small children.
We're concerned about the future of the Earth.
And so, that being the case, I don't share
your concerns and I support the amendment.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chairman.
Well, I have a couple of
additional comments on this issue.
I agree with Commissioner Robinson in that.
It is hearsay but we've heard it from many
that the NFPA is directing their
work towards large open flame.
That is fairly well-known in
the minute it gets into use--
the use of flame retardants as
possibility to deal with that issue.
So, having said that, I'll go back to my
larger concern with NFPA and that is lack
of transparency that our staff
would participate in the process.
This is not, I don't believe,
consistent with the intent of--
in the will of Congress and voluntary standards
process, whether it's open transparency,
whether it's, you know, all of
the stakeholders are at the table
and have an opportunity to discuss these issues.
So, I will continue my work with NFPA.
I don't-- do not think that when we
allow staff to be working with NFPA
in the Voluntary Standards Committee
that that work will be directed towards
large open flame which is a concern to me.
I also want to just ask you and really ask you
to consider and respond to me regarding putting
out the TB117 package for comments.
I think that would be a prudent way to go.
This isn't a settled issue, as we know,
and I'd like to hear what the public,
what the stakeholders have to say
with regards to what our staff found
and what they've presented to the
commissioners in the TB117 package.
>> Elliot Kaye: My apologies for
not addressing that the last time,
I didn't know that you were
asking me a direct question on it.
I'm happy to entertain that as part of a midyear
amendment as I think all the commissioners would
because that's not an insignificant amount
of work to both prepare the federal register,
probably not a tremendous amount on that end,
but to deal with the comments on the back end.
And I also don't think that it's mutually
exclusive, meaning I think that if just
by putting it on our website, we have
already elicited comments from it.
And I might be wrong but in the portable
generator capacity, when we did the work
that we'll hear about with the University
of Alabama and we posted that publicly,
that elicited a number of comments.
And I don't think that we
specifically "put it out" from comment.
So, I would encourage anybody who's been paying
attention and I believe a lot have who want
to comment on that now, they
can go ahead and do it.
But if you feel a more formal mechanism
is necessary, Commissioner Buerkle,
I'd certainly encourage you to look
at the midyear as the next opportunity
since the operating plan is now under
consideration at this moment to try to do that.
>> Ann Marie Buerkle: I know.
Thank you very much, Mr. Chairman.
That's' all I have.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you, Mr. Chairman.
I want to appreciate your comments,
responses, as well as those my colleagues.
I'll-- I would like to also concede to point
that wasn't made directly that maybe perhaps
with regards to technology, Mr.
Chairman, what you're bring up.
Theoretically with a large open flame standard,
one could meet that through what many
are considering green flame retardants.
So while you could and the NFPA 277 standard
is a large open flame standard, let's not--
that's a fact, that's what it is, our staff
and our very own VISTA [assumed
spelling] report, I have it right here.
It says, during the meeting, the task group
agreed on the following goal for NFPA 277
"significantly reduce the number of
deaths and residential dwelling fires
where bolstered furniture is the
major contributor to fire growth,"
that's a large open flame,
there's already a fire,
to what extent does the upholstered
furniture contribute to that
and reduce the aggress et cetera?
So theoretically, if we were to pursue
that kind of a standard, theoretically,
one could comply with an incredibly robust
large open flame standard through not,
what some are considered toxic
flame retardant chemicals
but perhaps green flame retardant
chemicals outside of some
of the mechanical technological designs of the--
of current or future that
perhaps you are conceding in.
So theoretically, we could-- there
could be an incredibly robust standard,
a point that I still do make that these
are performance standards and they--
for one to comply, much like our
generator standard, they have options.
And the most readily-available option and one
that's been inexistent before California toned
down its standard was the
use of flame retardants
and those that many consider to be toxic.
So for those reasons, I appreciate the
fact, I feel successful in the fact
that at least we've demonstrated to the
public where our resources are going,
what kind of a standard that we are contributing
to, which is a large open flame standard.
And that, if in fact it seems that there's going
to be the need to use flame retardants to meet
that standard, there'll be plenty
of attention brought towards it.
So--
>> Elliot Kaye: With you,
commissioner, are you up for a question?
>> Joseph Mohorovic: I'll do my best.
>> Elliot Kaye: Thank you.
I am curious though why you wouldn't offer an
amendment just to strike staff's involvement
on the voluntary standards process.
>> Joseph Mohorovic: Well, the
reason is because it's not--
it is not my direction or my priority to
inhibit staff from contributing to the standard.
It's my priority to just be
honest about what we're doing.
The meeting that Commissioner
Robinson mentioned, we were both then,
and I appreciate Commissioner Robinson taking
that meeting with me, and I was able to be there
for an hour and 15 minutes before I did
have to leave so that we could discuss it.
It came as a total surprise to those
advocates who came in concerned with--
as well as the representatives
of the firefighting community
that we were contributing to 277.
It was a shock, they were surprised, they
couldn't believe we were going to do it,
and it took about the whole day for
them to unwind it and figure it out.
And I think that you've reacted
with this amendment, Mr. Chairman.
So, there's a lot that needs
to be made transparent.
My disappointment-- I apologize for the long--
I'm not meaning to take up
your time, Mr. Chairman.
>> Elliot Kaye: It's actually your time.
>> Joseph Mohorovic: OK.
Thank you.
Then I'll stay within time.
My disappointment is the following; I
recognize that my colleagues, yourself,
and the majority have expressed great concern
about the demand drivers for flame retardants.
And what disappoints me greatly here
is that at the same time there's a need
and this stated desire from
industry for harmonized standard.
So, we don't have the proliferation of
more state-by-state standards were--
are continuing to put the United States at
a competitive international disadvantage.
So, I was hoping that there would be the kind of
movements behind-- getting behind adopting 117.
And I was hoping the fact that this
concern would compel some of my colleagues
in the majority to adopt 117 and 13.
While motivations are different, it-- we
can come to the same conclusion separately.
But I would expect that much
like the decades of experience
with the upholstered furniture standard,
I'll leave this commission one day
and there will not be a national
standard on upholstered furniture.
So, that's the part that disappoints me.
It's not any direct, you know,
problem with staff wanting
to contribute to this particular standard.
I know that their intentions are to reduce
fires, to save deaths, to reduce injuries
and property damage that they feel
might be achieved by contributions
to this voluntary standard and
product that'll comply with it.
>> Elliot Kaye: I guess I'm confused though,
and we can end the discussion unless you want
to mediate to where-- I think we're on my
time now, because the status and the absence
of this amendment-- this amendment moves
us closer it seems to where you want to go.
The first part of the amendment is trying
to harmonize-- you talked about harmonize,
trying to harmonize the technical
aspects between our staff
in California on the disagreements.
That's in furtherance of one
day hopefully every one coming
to a technical agreement
on the smolder part of it.
So in the absence of this amendment being
on the table, we would be further in my mind
from your goal than what you've stated,
than what this amendment would do
for what you stated, unless I'm
misunderstanding what you're saying.
I understand that what you would like to see
is the agency just go ahead and adopt TB 117.
But there's no other amendment
on the table to do that.
And the operating plan would go in the
opposite direction, absence of this amendment.
So, that's the first part.
The second part is if I heard you correctly,
you still want staff to work on NFPA.
You can see that that should probably happen.
But my-- you talked-- You called
it I think you said dishonest,
but my amendment makes it clear--
disingenuous, dishonest, a negative word,
a negative characterization
of motives if you will.
The amendment makes it clear that
staff is to proceed in that capacity,
but under certain limitations
that don't create other hazards.
It seems to me that's more honest, that's more
transparent about what the commission feels.
The commission is speaking through this
amendment if it's adopted to express its desire
that fire hazards continued to
need research on different areas.
But to be clear to the community that as we
go about doing it from a CPSC perspective,
there is no appetite by this current commission
for that to be done with toxic chemicals.
So in the-- again, I'm comparing
with the absence of this amendment.
I don't know how you feel about the underlying--
And it's not that the staff had done anything
wrong here, but the underlying package,
and I'm happy to yield to you for an answer.
I don't know how you feel that the underlying
package gets you closer to your policy goals
and is more genuine in its approach
of addressing the flame retardant
issue than this would be.
>> Joseph Mohorovic: Thank you for yielding.
And quickly, you are correct.
And that's the reason I'm willing to support it.
In the first instance with regards to the
mandatory standard, it keeps the rulemaking open
and hopes that, you know, that somebody, we'll
be able, at least in my desire, to adopt 117 13.
The part that I think is disingenuous much
like generators to promulgate a standard
of a certain performance where all the
reasonable people, and perhaps, Mr. Chairman,
this is by virtue of the fact that
I'm the one on the agency that comes
from the industry we regulate and
understand what they need to do to comply
with the standards and talking to the members.
And they know there isn't a
fantasy barrier out there.
There-- Yes, there are some flame
retardants that some would consider green
and whether they're cost-effective or not
are all sorts of different considerations.
But in terms of my taking some
issue with the language with regards
to the voluntary standard is
that I feel it's just not true.
That I feel that in reality, in the real
world that we operate in, that we regulate in,
a large open flame standard that will
stop, as a staff, as a 277 goal is,
the contribution of upholstered furniture
to a fire that's already raging
will require flame retardants.
There's no question.
So, I just think that we
ought to be honest about that.
And then we might say, we really hope that,
you know, somebody only makes leather furniture
in the future, and that's going to comply or
somebody only uses this list of green chemicals.
But the reality is much what we've seen
play out in California is with the sub--
with the standard of that kind of
robustness, people will use the means
to address the performance standard.
Much like with carbon monoxide and
generators, people are going to put EFI
and catalytic converters on
there if we promulgate that rule.
It's possible they could come up with
something else, but we have to be realistic.
So, it's that element of realism
that I was getting to in terms
of being genuine about our intentions.
>> Elliot Kaye: OK.
I don't agree, but I appreciate that--
>> Joseph Mohorovic: Thank you.
>> Elliot Kaye:-- that explanation--
>> Joseph Mohorovic: Thank
you for the opportunity.
>> Elliot Kaye: Are there any
further comments, Commissioner Adler?
>> Robert Adler: Yeah.
Just one-- two quick comments, as much as
I like the idea of just adopting the TB117,
I remind my colleague that you can't adopt
TB117 the way we do for ASTM standards
that are developed under section 104.
It would require us to go
through sections 7 and 9.
And therefore, I think it's critically important
that we-- excuse me, actually, not 7 and 9,
it would be under the flammable
fabrics act which I think is section 3.
The point is that we do need to sit
down with California and refine some
of the criticisms that staff has raised.
And I think that some of those issues
are quite easily addressable in the issue
of whether there should be a standard cigarette
and whether there should be a standard foam.
I understand the staff's concerns,
but I actually think those are,
for lack of a better term,
details that can be addressed,
and they're not substantive
irreconcilable approaches.
Again, looking at the staff package, the staff
has come in, and the staff has recommended.
It's part of that set of
recommendations that we continue working
with the voluntary standards sector.
And working to consider whether we can
address open flame is a lot different
than saying we're going to do it absent
the development of new technology.
But as the chairman said, we can't
just accept existing technology.
We have to always look to see what can be done.
And this one of those where we've seen dramatic
improvements across the board in technology.
And this is when I hold out--
hope for future technology.
Again, noting the legitimacy of a lot
of your concerns and appreciating them.
Thank you.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: I just feel the need
to correct a narrative that's
been developed this morning.
I-- The groups that with whom we met last
week were not in the least bit surprised,
let alone shocked, that we
participate in voluntary standards
with the NFPA on a flammability standard.
They're shocked as I witnessed it came
from a rather emotional what I viewed
as a misstatement, on your
part, Commissioner Mohorovic,
that on Wednesday the commission
was going to be voting
to devote itself to a full open flame standard.
Your reading of the up plan, the
way it was phrased before, was very,
very different than what my reading was.
I never for a moment thought
that what was articulated in the
up plan was committing us
to an open flame standard.
That's the point at which everyone when into
a tizzy because they thought we were going
to be voting on Wednesday to
commit to an open flame standard
which was very far from what it said.
But I support this amendment, Mr.
Chairman, in impart because there--
it makes explicit what I
thought was implicit before.
And adds to it our commitment which
I think has always been the case
that we would never put dangerous
flame retardants--
We wouldn't make pass standard that would
make them necessary in order to reach it.
So I just wanted to correct that narrative.
>> Elliot Kaye: Thank for stating it
better than I did, Commissioner Robinson.
Commissioner Buerkle?
>> Ann Marie Buerkle: Thank you.
Just one point of clarification regarding
the group that was in this test week,
and I will be honest and say I
did not participate but heard
from them directly through email.
That-- So they may be weren't shocked that
we're participating in the voluntary standards
of the NFPA, but they were concerned.
They were greatly concerned.
They brought up the issue of the
transparency within NFPA and the fact
that NFPA only considers fire testing.
It does not consider the health impacts of
our population or larger public interest.
And I think for those who are so
concerned with toxic chemicals,
that should be an issue and
that should be a red flag.
And all I'm saying is that we should know what
our staff is doing, and we should be concerned
with participation of the NFPA for that reason
but also because of the lack of transparency
and the felling that only certain
parties are allowed at the table
and there isn't true stakeholder
engagement then.
So while I don't disagree that activity
in the voluntary standards should seize,
I think we need to understand what is happening,
what the goal is, and hear back from staff
as to what's being talked about there and what
their positions are when they're participating.
So I appreciate this time, thank you very much.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
Commissioner Mohorovic.
>> Joe Mohorovic: Nothing.
>> Having heard no further discussion on
the amendment, I will now call a vote.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: No.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The ayes are four, the nays is one, the
amendment to direct staff associated
with upholstered furniture has been adopted.
Are there any additional amendments?
>> Robert Adler: Yes, Mr. Chairman.
>> Elliot Kaye: Go ahead.
>> Robert Adler: I have-- You have the motion
that I have submitted to the commission.
I move that the commission to
establish a program to support consumers
and consumer organization in voluntary standards
proceedings where the commission has determined
that those proceedings involved the safety of
products have importance to the commission.
>> Elliot Kaye: Is there a second?
>> Marietta Robinson: Yeah.
>> Elliot Kaye: Having heard a second, we'll
now turn to a discussion on the amendment.
I do want to begin by commending
Commissioner Adler for highlighting an area,
and this got into some of what Commissioner
Buerkle mentioned that I think is of concern
to all of us, which is the balance
and fairness of voluntary standards.
And I thought Commissioner
Robinson said it perfectly.
That if we were to judge our work
and our resource allocation based
on the way some current voluntary
standards bodies operate,
we would really not have much
voluntary standards work to do at all.
But to me, that doesn't mean disengagement,
that means better and more engagement.
And I think that exactly where Commissioner
Adler is going with this amendment.
We have to-- My office has been, and I'm happy
to talk to Commissioner Buerkle about this
when you're back, we've been
engaging with most, if not all,
of the major voluntary standards
bodies to inquire
with them how they go about their process.
And we ask them a series of questions.
We plan to make those letters public, of
the back and forth that we've had with them
about their openness, their
transparency, and their balance.
And the balance is a critical
issue because, as well-intentioned
as a voluntary standard might be to address a
product hazard or an injury or a hazard pattern,
if there is not a sufficient balance
on that committee or the subcommittee
or the technical task force that's develop,
there's no chance of that's
going to come to fruition.
And we see that.
And there's different ways that the standard
bodies permit these committees to be set up,
but when you're getting at, at the heart of
it is, there is likely an underrepresentation
by certain segments that are
solely focused on consumer safety.
That's all that they have in mind.
So I'm completely supportive
of the spirit of it.
I will say I have some concerns about the
practical aspect and the mechanics of it.
And I hope that should the commission adopt the
amendment, that you allow staff some flexibility
and making sure that we can
follow all proper procedures
and regulations and laws associated with it.
And that we can figure out a way that works for
staff, it achieves the goal that you're looking
at but keeps staff in a safe lane
and a relatively low resource intensive
lane to try to get to that goal.
But I do support the spirit of it and I do
commend you for the larger work that you've done
on trying to drive better processes and more
balance to the voluntary standards process.
Commissioner Robinson.
>> Marietta Robinson: I also want to complement
Commissioner Adler for this creative amendment.
We've all ran into way too many circumstances
where the voluntary standards
committees are controlled by the parties
that have the resources to participate at the
level that many of the consumer groups do not.
And we end up with a standard
that's not as robust
as we think is necessary in
order to protect consumers.
I think this is a great way of us doing our part
to help those voluntary standards committees
actually have the balance that's required.
And I think we have the authority
under 16CFR1031.7(a)(11) to do this.
I share a concern about exactly how this is
going to work but I think Patty Edwards is going
to do a great job in putting together a
process by which we administer these funds,
and I look forward to an
update on what we're doing.
I support this.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chairman.
I do have several questions for Commissioner
Adler and I apologize for not being there
in person, and having the opportunity
to chat with you during the week.
I think probably the most fundamental question
for me is who is eligible for the assistance.
>> Robert Adler: Excuse me.
The way the amendment is drafted, it would
be consumers and consumer organizations.
I realize there are perhaps other groups
that would seek some kind of support,
and in appropriate cases, they might be
eligible for it under a different approach.
But mine is addressed specifically to
the issue that I've heard raised both
in the consumer community but also in the
standards development organization communities.
When you talk to the folks at ASTM, NUL and
ANTSY [assumed spelling], they all recognize
that there is a serious shortfall
in consumer input.
And so what I've tried to do is address my
amendment to the issue that is the most glaring
in the voluntary standards amendment process.
So my amendment at this point is limited
to consumers and consumer organizations.
>> Ann Marie Buerkle: Thank you.
But that really doesn't give me
any more information in terms
of how does one define a
consumer, consumer organization.
I understand from staff that many
actually consumers would be eligible.
For example, I think one of--
in a staff meeting, there's an individual
who previously worked for a manufacturer
of the product in question,
they wouldn't be eligible.
So I-- it's still-- it is so
broad to me and I'm trying
to understand what the parameters
are and who would be eligible.
>> Robert Adler: Yeah, that's a fair question
and I'm always delighted to go into detail.
My notion, which is not explicitly put in
the amendment because I have been asked
to leave a lot of discretion to the
staff, is to say that if you're somebody
who has received compensation from the
industry that is a subject of a proceeding,
if you have taken money from any of
those manufacturers, there's certainly--
you have every right to participate,
but you would not be eligible
for support from the commission.
This is designed to get to
those folks who have--
who are important stakeholders but who
are not in any way financially connected
to the industry that's the
subject of a proceeding.
So, for example, if you were retiree, you
would not be eligible, if you're somebody
who is an expert witness for manufacturers, you
would not be eligible, if you're an academic
who has taken funding from
universities to work on issues relating
to the industry, you would not be eligible.
And I repeat, you're more than welcome,
you're invited and encouraged to participate,
and the truth is they all do participate.
My problem is that in a number of
the volunteer standard proceedings,
those folks have been classified as general
interest participants when what they really are,
are-- is industry-obligated, an
industry-affiliated participant.
I'm not seeking to remove
anybody from the process,
I'm seeking to have it be a
more open and honest process.
And I have to say, I was encouraged
by hearing your remarks about NFPA.
That's precisely the kind of thing
that I think needs to be targeted.
We need to have more consumer
participation in groups like NFPA,
and that is what this amendment
is designed to address.
>> Ann Marie Buerkle: Well, I guess, I'm-- I may
be-- I'm trying to understand the process here.
It seems like this amendment may be premature.
Rather than trying to get
this amendments passed,
it seems to me that there should be a protocol.
We don't know what we're voting on.
And in truth of, for instance, the
resources that will be allocated.
So, is there a ceiling on what
staff can spend on this process?
What is the process for someone
who wants to apply for the funding?
Will they compete with each other,
will there be match funding?
How would the whole of that going to work?
>> Robert E. Adler: These are wonderful
questions that I'm delighted to--
first of all, I would be
delighted to write a protocol.
In fact, I told staff that that would
be nothing I would find more enjoyable.
But a staff has said, and I think
there's tremendous legitimacy to this,
please don't micromanage the process, please
don't tie our hands, give us the discretion
to come up with a useful protocol.
Any protocol they would come up with
would certainly be run by the commission.
But you're talking to somebody who is
chafing at the bit to write a protocol.
But just as the chairman was saying, in response
to request, if not, please, or in my case,
maybe threats not to do so, this is an approach
that would leave a tremendous
degree of discretion to our staff.
And I couldn't think of a finer set of
staff folks to work on this than people
like Patty Edwards, Patty Adair
and others within the commission.
>> Ann Marie Buerkle: So, is there a ceiling
on the amount of money that staff could send?
>> Robert S. Adler: Yeah,
the ceiling is the amount
of money the commission would
have available to spend on,
and we don't really know what that ceiling is.
Again, when I first drafted the proposal,
I put specific dollar figure in there.
But again, in response to requests,
please if not death threats,
I have removed the specific allocation.
But I think it's fair to say that anything
that would be allocated would
be known to the commission.
And also, when we come to
mid-year, it may be the case
that I will have a specific number to request.
And in part, that's going to reflect
what the state of the budget is
when we get around to doing mid-year.
>> Ann Marie Buerkle: Would you
consider before voting on this amendment
that staff would come up with the protocol?
>> Robert S. Adler: That is--
>> Ann Marie Buerkle: So that--
>> Robert S. Adler: That--
>> Ann Marie Buerkle: Because
your concern is you're taking some
of the discretion away from staff.
So, letting-- let the staff come up with
the protocol what they have in mind,
how they envision this working, you know, who--
some of the consumer, their budgets
are larger than CPSC budgets.
So I'm trying to understand how they're
going to make those calls and how--
And so, there needs to be a pretty strict
protocol, and we're going to find ourselves
in hot water in-- if there
was disparate treatment.
And so, it seems to me so many
of those is you should be dealt
with before we commit to allocating any funds.
>> Robert S. Adler: I think we're not
disagreeing but maybe I don't understand.
I don't think we can tell
staff to go and work a protocol
if we haven't given them an authorization
to go and work to develop a protocol.
And what I'm asking for is authorization to
have staff develop a protocol to move forward
on the development of funding in support
of consumers and consumer organizations.
So I'm not sure that we disagree.
>> Ann Marie Buerkle: So this
amendment would not allow staff to--
give staff the discretion to begin this process.
You're saying this amendment would only ask
staff to develop a protocol that would allow--
it would explain to the commissioners
how is this voted on how it would work.
>> Robert S. Adler: No, I
don't think I'm saying that.
I'm saying I don't think there should be any
allocation of funds until there's a protocol.
It may be that the staff can
develop a protocol fairly quickly
and they can begin providing
funding to consumer groups.
That's certainly the spirit of my approach,
but I am mindful of the chairman's concerns.
You notice how carefully he said, he agrees
with the spirit but not the precise wording.
But his concerns are legitimate,
that there are various technical,
financial and legal issues
that have to be addressed.
And I'm in complete agreement with that.
I would just note that we have had on the
books for decades a specific provision
that says the commission is authorized
to provide funding in support
of voluntary standards activities.
And if you believe that these voluntary
standards activities are important
to the functioning of this agency, and you also
believe there's been, as you note with NFPA,
standards that are being developed
that are not open and transparent,
and it don't have sufficient
outside participation,
I would hope that you would
support this amendment.
>> Ann Marie Buerkle: Well, I think part
of my problem with this amendment is not
that we don't want broad involvement as I
mentioned with NFPA, we've heard that complaint
from many, but that the government
funds that participation.
Now, first little circumstance is today
require me to be home here and calling in.
I mean this doesn't cost-- I shouldn't say that,
I'm not sure what it cost McGugin
[assumed spelling] in his budget.
But it seems on its phase is this is a
lot cheaper than travel, actual travel.
So there are-- it seems to me there are
some options that could be considered
to get that broad representations.
But not at the taxpayer's expense.
That's what concerns me here.
That's one of another concern.
What-- Is it the role of the
government to fund people, you know,
whomever because we don't really
know, the protocol hasn't been set up,
participants in the voluntary
standard committee?
And so, while I think that yes
there should broad participation,
the stakeholders should be
there, I think for me one
of the questions is should
we be funding it when--
I guess, is it our role to
fund that participation
and could there be other ways
to develop that participation.
>> Robert S. Adler: That's a fair comment
and it's always one open to debate.
I will say that it's an issue that has debate--
been debated and resolved by
the commission in the Congress.
Over the years, Congress has given us the
authority with respect to the development
of mandatory standards to provide funding
to outside groups who could come in
and help improve the process, and
that's been on our books for many years.
We've not done any funding.
In similar fashion, the voluntary standards
participation regulation that we have
on the books addressed that question
resolved and said that in appropriate cases
where you can get a better product,
probably at less cost, by funding consumers
and consumer organizations to assist
in the process, you ought to do that.
I can think of situations where giving
somebody a grant of $500 might save us $10,000
in staff funds from having one of
our own staff members participate
in the development of voluntary standard.
And I would just point out that
we've got something on the order
of 70 plus voluntary standards
proceedings underway.
We can't possibly have commission
staff involved in all
of those meetings at every step of the way.
And yet we've decided-- and we've even added
some today, we've decided those we're important.
And so in particular cases where staff thinks
it would make a significant difference,
it seems to me that we're fully
authorized to do it and it seems
to make perfect sense to
provide this kind of support.
>> Ann Marie Buerkle: So that last
statement concerns me because it sounds
like unless you agree with staff's position,
you be might not be eligible for the supports.
But even more than that, I think CPSC and our
staff's positions are based on data and science.
And that's how we should approach
participation whether it's a mandatory standard
or a voluntary standard committee.
And so putting a consumer or consumer group
in our place I think is inappropriate.
So I would-- certainly wouldn't agree with that.
I just want to ask one last question because
I realize I'm taking quite a bit of time.
Are we-- I should ask Commissioner Adler,
are you aware of any other federal agencies
that are doing this at this time?
>> Robert S. Adler: Well,
let me go back to a point
that you made because it's really important.
The idea that we would only fund those who agree
with us is not anything that's even implicit
in what I am proposing, to the contrary,
there may be times when we're funding groups
that will come in and are equally
committed to promoting safety
but I think we maybe haven't
taken the proper approach.
And I would think a crib bumpers might be one
of those examples where outsiders might think
that staff approach is not
the appropriate approach.
So, I think this is designed to get
additional voices into the process.
And I couldn't agree more with you
that we rely on data and science.
That's the whole point behind the amendment
is to provide technical resources to consumers
and consumer organizations so that they can
avail themselves of technical support in ways
that heretofore only the
industry has been able to do.
So that-- And now back to
the question which you asked
and it's just flown my mind,
so if you could refresh.
Oh, I'm not aware, but it's
not an-- this is not something
that I have done extensive research on.
I know other agencies have been authorized
to provide funding, but I'm not aware with--
I'm not aware of any other agencies doing it.
I just don't know.
>> Elliot Kaye: Commissioner Buerkle, can we
come back to you in the next round, is that OK?
>> Ann Marie Buerkle: Yes,
certainly, I apologize.
Thank you.
>> Elliot Kaye: Thanks OK.
Commissioner Mohorovic.
>> Joe Mohorovic: Thank you, Mr. Chairman.
At first, Commissioner Adler, let me
first say, I know in my heart as well
as I know anything your intention with this
and that, I've been aware of and I'm concerned
as well with evidence presented
in terms of a lack in balance
in certain voluntary standards activities.
This is something that I've
heard for years as well
and I appreciate your efforts to address it.
I know that's where your intensions are
before things go horribly worse here
in terms of my tone.
But I think, first in terms of this particular--
the amendment that we have before us,
the things that you've mentioned with
regards to elements of eligibility
and there is no direction in the
language here at all to staff in terms
of the development of a protocol.
And I know-- I'm prepared to spend a long
time on it only because I care about it,
Commissioner Adler, but I'd be happy to yield
if you would consider tabling this amendment
and bringing it back in mid-year with
maybe some more clarity so that not just
for what you might be advocating and proposing,
but what you might be asking your colleagues
to forever associate themselves with in terms
of a very serious fiduciary responsibility
that we all have as commissioners.
So, I'll yield to that if you
want to consider, otherwise,
I'll pursue more direct questions
about your amendment.
>> Robert Adler: Again, I can't begin to tell
you the degree of mixed signals that I've gotten
because what you're asking me to do
is the precise thing that staff went
out of their way to ask me not to do.
And that is because they have said they have
the expertise, they have the experience to go
and especially assess some of the possible legal
financial barriers to coming up with a protocol.
Nothing would make me happier than to actually
sit down and draft the protocol myself.
But every time I have even toyed with doing
that, staff has said you're micromanaging,
that's not appropriate, we would like to
have the discretion to develop the protocol.
I think it's fair to say that any
protocol that the staff came up with ought
to be shared immediately with the
commission and I'm fully supportive of that.
And I think any commissioner who has any
suggestions that he or she might make
for what sort of protocol there might be, it's
perfectly appropriate for folks to do that.
Needless to say, I've made my suggestions clear.
But am I prepared to table it in order to
develop protocol, I'm not prepared to do that.
>> Joe Mohorovic: Thank you.
Thank you, Commissioner Adler.
I will just say though, in terms of the elements
of eligibility or in terms of any limitation
in the appropriation of resources, I recognize
that we have on average about $5 million a year
at mid-year, every year to reallocate.
So, there might be as much as $5 million
that will be reallocated to consumers
or consumer groups based on a protocol
where we've given no commission direction.
It doesn't say anything in the language
here about financial constraints,
inability to fund, what their proposal is.
And for those that are keeping score
here with regards to voluntary standards,
we've recently made the major move allowing our
staff to now contribute in voluntary standards
and leadership capacity,
to allow our staff to vote.
And now, if this amendment passes, we're
allowing our staff to fund and stack the decks
of the voluntary standards that they might be
leading or voting on in the bigger picture.
I really would think and ask you to consider
what you're asking your colleagues to agree
to in the wide open language here
with no barriers, no discretion,
no type of control or any direction at all.
All it says is that you may provide
technical and other valuable input.
You know, your colleagues who might support
this will have to own this and have to own this
in their responsibility as a commissioner
with regards to appropriated taxpayer dollars
and using them wisely and using them for
the purposes that they've been appropriated.
I know you recognize that.
And again, I don't have to
remind you that I recognize
where your spirityou're your intention--
>> Robert Adler: OK.
May I ask you to yield for
just one additional second?
>> Joe Mohorovic: Yes, you may, sir.
>> Robert Adler: You-- I
think you raise a good point.
And the Chairman just made a quick note.
I really have no problem with saying before
we proceed with this that the staff ought
to bring a protocol and show it to the
commission and get commission approval.
I really don't have any objection to doing that.
And I think that would be a good thing
because I think it would be something
that we could all discuss and
debate and move forward on.
So, I would be open to friendly amendment
to say that before any funding proceeds
that the commissions have a
protocol presented to it by staff
and if the commission approved the
protocol or at least vote on the protocol.
>> Joe Mohorovic: I'll-- Since I'm yielding, I
would consider a tabling, but what I can't do
in all good conscious and responsibility is
provide that blank check with the intention
that then the protocol will come after,
but I've already voted to allocate
and allow the resources without
seeing what it is that I'm voting on.
This is a classic case.
We have no idea what we're voting on here.
We have no idea how much money.
We don't have any idea that to whom.
All we know is to who will make
the decisions and it's our staff
and it's a wide open blank check.
So, before we get into all the other
elements of it and the legal ramifications,
the fact that such a noble idea this-- not
that it's noble to try to increase balance
on voluntary standards, but that CPSC limited
resources will be spent towards funding outside
groups hasn't been shared
or exposed and told today.
I see the chairman is nodding, so I'll yield,
but I think I'm already beyond
my time, Mr. Chairman.
>> Elliot Kaye: Yeah.
So--
>> Joe Mohorovic: Sorry.
>> Elliot Kaye: -- based on what
Commissioner Adler has said,
I'm going to move to amend the Commissioner
Adler's amendment with the clarification
that all this amendment would do is to
direct staff to develop a protocol pursuant
to the direction in Commissioner Adler's
amendment, submit that to the commission
for a vote and seize all activities until
the commission has-- get provided further.
Well, not pursue any activities
pursuant to this amendment
until the commission has
provided further direction.
And as part of that protocol, that would include
a funding estimate as well as any other legal
or other issues that would
be associated with it.
So the commission would have full consideration
of the protocol, the financial implications
of it any legal implications before a dollar
is spent on effectuating that protocol.
>> Joe Mohorovic: I can agree to that.
>> Elliot Kaye: Is there a second?
>> Joe Mohorovic: I would second that.
>> Elliot Kaye: OK.
Would any-- Is there any discussion on that
proposal to Commissioner Adler's proposal?
Commissioner Adler.
>> Robert Adler: No.
I'm perfectly comfortable with that.
Again, I feel thorn and buffeted from both
sides because when I had the discussions
and I have tried to explain
why I phrased it the way I did.
But in terms of having the commission move
forward in accordance with the commission
with the Chairman's amendment,
I'm fine with that.
Yeah. What I-- I guess I would, in
response, to request from staff,
I would ask for a five-minute break so
that we can perhaps draft some language
that would be acceptable to all the parties.
>> Elliot Kaye: Yup.
So, we'll take a 10-minute break
actually and reconvene at 11:40.