>> Elliot Kaye: Okay, we're now going to resume.
Thank you for patience as we attempted to try
through the staff, through our own staff to work
out adjustment to Commissioner's
Adler's amendment.
I'm going to recognize Commissioner Alder now.
Commission Adler.
>> Robert Adler: So thank you Mr. Chairman and I
want to thank my colleagues for bearing with me
as attempt to move towards the resolution
of this and develop a stronger consensus.
So, what I'm going to do is withdraw the
original motion and provide a substitute motion
and the critical words that are different are
the words that say that we have directed staff
to develop a protocol subject to commission
approval prior to the commission consideration
of the 2017 midyear review for
developing an appropriate protocol,
and for assessing the appropriate procedures
to follow in implementing this as a program.
So with that, I move the
amended motion and seek a second.
>> Elliot Kaye: Is there a second?
>> Marietta Robinson: Second.
>> Elliot Kaye: Having heard a
second we'll now turn to discussion,
but commissioner do you want, I understand you
might some time and I'm happy to yield it to you
to further explain your thought
behind this amendment.
>> Robert Adler: Yeah I was caught a little
short when you, when I put my motion in.
Usually we then get to explain the
motion, but then just sort of moved on
and I didn't get a chance to read a few remarks
that explain why I think this is so important.
I think we all know that volunteer
standards have gain increasing importance
since CPSC activities over
the past 30 plus years.
This is resulted in part because of legal
changes to the Consumer Products Safety Act
that direct us to give preference
to volunteer standards
over mandatory standards
under certain conditions.
It's also occurred because we've been
directed to build mandatory standards
for certain children's products on
a framework of voluntary standards.
And perhaps it's important if not more
so, it's occurred because the agency
in the voluntary standards community have
increase our cooperation and collaboration
with each other and I say this as an observer
of the product safety scene for over 40 years.
I think relations between CPSC and the voluntary
standards community have never been better.
That said, they can still be
dramatically improved and I want to point
out as I did before, one glaring shortfall
in the voluntary standards process that folks
in the voluntary standards communities see
as clearly as we do and that is the lack
of meaningful consumer input in far too
many voluntary standards proceedings.
And the reason is simple, unlike industry
participants, consumers and consumer groups
for the most part don't have
the resources to participate
in such proceedings nor do they have
the same access to technical information
that would enable them to engage at the
same level as industry participants.
And here's the critical point, the result is
too often voluntary standards are developed
that don't provide a full measure of
safety to adequately protect consumers
and that's the point of this amendment.
I've have numerous conversations with
friends in the voluntary standards community
and as I say, a lot of the share this concern.
To address this imbalance, some standards
development organizations have begun providing
limited funding for travel and other
expenses to consumers and I particularly want
to acknowledge the efforts of
ASTM and CNUL in this regard.
Their efforts have helped,
but not solved the problem.
They're still too many standards development
organizations and including a number that want
to work with CPSC in developing
voluntary standards that fail
to provide any support whatsoever to consumers
and NFPA was cited as one of the examples,
the Portable Gas Manufacture's Association.
The Window Covering Manufacture's Association
none of these provide any resources in support
of consumer involvement in their
standard development proceedings.
My amendment seeks to have CPSC establish a
program to provide resources for technical
and other supports to consumers and consumer
organizations for voluntary standards
that are important to the agency.
And not going to read this next point
because it's been mooted by comments
that Commissioner Mohorovic made, but I
did want to make one final point again;
we've had a regulation on participation in
voluntary standards that's been on the book
for many decades which gives the commission
the authority to provide funding support
for voluntary standards development.
It's never been implemented in
the years since its adoption.
But given our increase and increasing
involvement in voluntary standards development,
I think the time is right for us to help ensure
that more balance is added to these efforts.
>> Elliot Kaye: Thank you Commissioner Adler
and thank you for you flexibility in terms
of your amendment and also to the other
commissioners for trying to find a path forward.
I think that we'll get there and
I appreciate that we were able,
or hopefully that we're able to do that.
I plan to support the new
amendment that you've introduced.
Commissioner Robinson.
>> Marietta Robinson: Nothing further.
>> Elliot Kaye: Commissioner Buerkle.
>> And Marie Buerkle: I have
nothing further thank you.
I do just want to express my appreciation
to the chairman and to Commissioner Adler
for taking a step back and
coming up with this amendment.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
I want to appreciate Commissioner Adler for
his reconsideration as friendly amendment
to his amendment to give us a better idea
of what potentially we're about to vote
on the future with regards to
reallocation of our allocated, of our funds.
I would like to point out that there
is a very important stakeholder
who will have the opportunity to
consider what we're attempting to do
with our appropriated dollars and that
is congress who have not voted for,
voted in final our FY-17 appropriation,
but only a continuing resolution
to fund us through the end of year.
So they'll have the full opportunity
to consider whether or not they want
to send us additional language to
encourage us or potentially discourage us
from reallocating appropriated
resources or to inquire whether
or not we should put a particular
amended line item in our requested funds
to identify how much we plan on sending
outside of the CPSC to private parties.
>> Elliot Kaye: I have no further comments.
Commissioner Adler.
>> Robert Adler: Well that's certainly,
Commissioner's Mohorovic's
remarks certainly don't sound
like a friendly disposition
towards this approach.
If anything it sounds like we can expect a
phone call or a visit to the Hill on his part
and I would just urge him
to at least until we've come
up with a specific approach here
maybe to withhold that approach
and see what the staff comes up with
and see whether he agrees with it.
>> Elliot Kaye: Commissioner
Robinson, anything further?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner
Buerkle anything further?
>> Ann Marie Buerkle: Nothing further.
>> Elliot Kaye: Commissioner
Mohorvic anything further?
>> Joe Mohorvic: Nothing further.
>> Elliot Kaye: Having heard nothing further
on the other amendment we'll not take the vote.
Commission 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 aye's a five.
Nays are zero.
The other amendment has been approved.
Are there any further amendments?
>> Marietta Robinson: I have one Mr. Chair.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I am asking that we
amend the operation plan to add on page seven
under other plan voluntary standards activities
the non-integral firearm locking devices
and youth resistant firearm security containers.
When I first came to the commission I
asked about why we weren't doing more
to make guns safer and I was initially
told, please do not mention the word "gun."
And I did not for a longtime and I fully
appreciate that the CPSC is explicitly been told
by congress that we do not have
jurisdiction over guns or ammunition; however,
we do have jurisdiction over two small but
critically important areas involving gun safety
and I have to think particularly
child safety drove those exceptions.
Gun locks that are added to guns
after manufacturer to prevent it
from being fired unless the locking device
is removed and gun safes which are secure
in protective storage container for firearms
are the two exceptions when it comes to guns.
So although we cannot do much to make guns
safer, I believe we should do all that we can
to make them as safe as possible and I would
like thank Ted Alcorn who's the Research
Director at every town for gun safety
who presented testimony at our Priorities
Hearing and that led to an ongoing conversation
with him over the past months and he
introduced us to a number of key people
in the field doing amazing research and work
on ways that we can encourage more people both
to use gun locks and safes and making
sure that they're working properly,
but also he introduced us to people who are
doing some very exciting work in the area
of gun locks and safes and some of the
technology that they're introducing.
In 2001, the CPSC tested 32 models of gun locks
and because I'm going to be talking about data
in a moment I would just like to
emphasize here that there were not
and I can't fathom how there will
be data on gun locks being safe,
but there was, there were no data at that time.
But we took 32 models of gun locks
and 30 of them failed our test.
This prompted a series of recalls and
gun locks were distributed as part
of a national safety education
and outreach effort
and in 2004 ASTM passed a voluntary standard
both with respect to gun locks and gun safes.
Now while those standards were
reaffirmed in 2009 and 10 and 2016,
there was absolutely nothing that went
into that process according to ASTM other
than merely polling the members
of the committee.
So there was no consideration of anything
substant with respect to those standards.
The gun lock standard for ASTM is
F-236904 and then 2016 obviously
and it's a standard safety specifications
for non-integral firearm locking devices
and the standard appears to
contemplate only locks using a key
or a mechanical combination lock.
It doesn't allow for gun
locks using electronic locks
or locks using biometric or Wi-Fi technology.
And the gun safe standard, again, passed
in 2004 is for lockable containers
that completely contain firearms and again just
has the technology that was in place in 2004.
Now as I mentioned, I don't think we're
going to ever have the data that we need
to support whether gun locks work.
I'm having trouble thinking that any emergency
room employee is going to put in the narrative
that we look at in our nice data that a child
was shot or somebody was shot by a child
because they got the trigger lock failed.
But here's what we do know, we
do know that in the 12 years
since the standard was examined substantively
and passed there have been huge improvements
that have taken place with respect to technology
and we also know the horrifying statistics
that there are more than 2 million
American children living in homes with guns
that are not stored safely or securely and each
of those children has friends
who visit those homes.
Less than 15% of the gun owning households
reports storing their firearms unlocked
and loaded and those households
account for more than 2/3
of unintentional child shootings
and that's where my focus is.
To date, during this year alone we've had
a 199 children as of 2 days ago who have
who have unintentionally killed or injured
someone with a gun and I was just told
by Dotty Yard [assumed spelling] that as of this
morning, 2 days later we can increase that by 4.
It's up to 203 in 2016.
I've spoken with people at the
Harvard School of Public Health
that are using the National Violent Reporting
System examining unintentional firearm deaths
involving children and they looked at 16 states
between 2005 and 2012 and they found that,
about deaths not injuries just deaths, that
229 of the unintentional firearm deaths
of children were between 0 and 14 in those
16 states and then as they looked at the way
in which the incidents were classified, many
of the deaths by, that were caused by children
with access to guns were labeled
homicides so they were captured in the data
and when they moved that to unintentional
which was the correct classification
the number was 80% higher.
In recognizing the limitations to that
study, the researchers pointed to the brevity
of the narratives which did not
provide enough qualitative data.
Researchers noted that the vast
majority of deaths appeared to occur
when a child found a gun in the
home that was improperly stored.
However, the narratives did not provide
information on how that happened,
whether the gun lock and storage lock failed or
if the gun was not properly locked or stored.
There have been several studies with respect
to suicides and I certainly appreciate
that that is outside of CPSC's jurisdiction.
However, while these studies have focused
on suicide attempts the results show
that keeping guns locked properly,
unloaded and safely stored results
in a significant decrease
particularly in firearm injuries
and deaths particularly with
children and teenagers.
So, while studies show that certainly guns
safely stored and locked bring about a reduction
in firearm related incidents including
injuries and deaths especially among children,
and what we need to make sure of
is that if adults are engaging
in responsible firearm storage and
locking that those devices work properly.
At this point, what I'm asking is that
we allocate some CPSC resources to try
to ascertain whether the standards past 12
years ago which is a lifetime ago when it comes
to technology are what should be in place in
2016 in terms of actually making gun locks
and gun safes safe so that we can
hopefully drive down these numbers
of unintentional deaths of our children.
>> Elliot Kaye: Thank you Commissioner Robinson.
Is there a second?
>> Robert Adler: Second.
>> Elliot Kaye: Having heard
a second it will now turn
to discussion of the Robinson amendment.
I want to commend Commissioner Robinson
for this amendment which I plan to support.
We're almost 4 years on the anniversary
of Sandy Hook and after that occurred,
Vice-President Biden reached out to a
number of agencies to see what could be done
through the White House and through
other agencies to try to certainly tackle
at a holistic level gun violence as you
mentioned CPSC has a very small part in that
and that was the area that Vice-President Biden
discussed with my predecessor Chairman Tenenbaum
which was trying to see if the gun lock and
gun safe voluntary standards could be enhanced.
Chairman Tenebaum did a get the CPSC engaged.
Staff did start to engage on
the voluntary standards bodies.
I think that, and I hope it's changed,
the frustration that I certainly felt was
that there was a lack of technical expertise
to try to bridge the gaps that folks recognize
in the substandard aspect of these
standards to try to have better product.
I did end up visiting with a couple
of individuals out in South Dakota
who had demonstrated pretty handling
how easy it is to defeat these,
so I think you're on to a real safety issue.
The question is, whether
between our staff or somebody
on the outside will the right parties
come to the table with the right knowledge
to give the subcommittee something to work with?
I have Lynn Morrissey [assumed spelling]
in particular the ASTM has gone way above
and beyond to try to drive groups to the
table to want to improve these standards
and certainly the participants
in the normal rounds were ready,
willing and able to consider
something that was valid.
We just didn't have anybody step forward who had
concrete suggestions to enhance the standards,
so while I am thrilled to support the
amendment I do hope that somebody steps forward
so that something can be made of it
and I'm happy to yield if you want
to address that particular point.
>> Marietta Robinson: Yes, I would love to.
I also spoke with Lynn Morrissey who expressed
being very open to reopening the standard,
but I have also spoken with individuals
who would very much like to participate
in such a standards committee and have a great
deal of technological expertise and have come
up with some really quite fabulous
improvements since 4 years ago.
So, I'm very excited about those
people's participation in this
and I think it could be very,
it could really enhance safety.
>> Elliot Kaye: I think that's fantastic
and thank you for doing that leg work
to try to drum up that business for it.
I as we've discussed on other occasions, from
my perspective at least the final step would be
to not only have ASTM improve their standards,
but to have California we're back to talking
about California, to have California
amend their lock and safe standards
or at least adopt what ASTM has
done so that similar as we see
on poster furniture it does seem
that California drives the market
and obviously whatever my office can assist
with we're happy to continue to do that.
>> Marietta Robinson: Appreciate that.
>> Elliot Kaye: Commissioner Adler.
>> Robert Adler: I support
Commissioner Robinson's amendment.
As I've listened to her explain it,
I've gained a degree of reassurance
that this is a very carefully honed amendment
but I somebody who has lived through the trauma
of the agency's consideration of
anything relating to guns or bullets,
I did want to just express a word of caution.
But I need to preface what I'm going to
say by making certain that I put on record
that I am somebody who strongly dislikes guns.
I think one of the worst decisions the
United States Supreme Court ever made was
when it handed down the Heller case that
found the constitutional right for individuals
to keep and bear arms for self-defense
I think the statistics as Commissioner
Robinson said are clear in one respect contrary
to the arguments made by gun advocates, the
data against guns are overwhelming and clear.
For every criminal that's killed in
self-defense, 34 innocent people die
from the irresponsible use of guns.
So my concern is not with trying to reduce gun
hazards, my concern is you have the message
in the medium and I'm just not
sure where the proper medium
for doing much beyond what Commissioner Robinson
is proposing and I would just take us all back
in history in 1974, we were petitioned
by a citizens group to band bullets
as hazardous substances under the
FHSA which is interesting because FDA
which was the previous enforcing body had
always exercised jurisdiction over bullets.
They never tried to ban them.
They never tried to regulate
the intended use of bullets,
but they said if a bullet unexpectedly explodes
or unexpectedly triggers, that creates a hazard
to folks and FDA reserved the right to
exercise jurisdiction over defective bullets.
So when it came to us as a successor agency we
admitted we had jurisdiction, but the commission
by 4 to 1 vote and I will point out
my boss David Pittle was the decenter,
the denied any right to regulate
properly functioning bullets.
Commissioner Pittle said, let's
at least explore the petition.
We were sued because of this decision and
the district court said, "No you're wrong.
You have to fully consider
the petition on its merits."
And here's my concern, there
was a firestorm of protests.
We got hundreds and hundreds of thousands of
comments within weeks of the judge's ruling.
We sort of ground to a halt to be honest.
We actually had to hire staff just to
open all of the letters that came in
and we had one staff person whose job
was to put the death threats separate
from the rest of the comments that came in.
But before we could fully address the
petition, congress in its full majesty
and they can act quickly when they
want to, stepped in and removed any
and all jurisdiction over
bullets from the agency.
So here's my concern, at the end of the
process consumers were actually worse off
than when the petition was filed
because we no longer had any ability
to seek recalls of defective ammunition.
We spent lots of very scarce precious
dollars and staff months on bullets
that I would have preferred to see
devoted to other hazardous products.
So we ran head first into the
doctrine of unintended consequences.
So in short, as much as I would love to
see a strong federal response to control
and regulate the irresponsible use of guns, I
don't think we have the staff or the dollars
to get in any in-depth approach to
addressing this, so that's why I'm fine
with Commissioner Robinson's amendment.
I just wanted to express at
this point one note of caution.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank
you Mr. Chairman and too want
to commend my colleague Commissioner Robinson
and all of her work that
she's done on this issue.
I don't have any questions this morning.
Thank you.
>> Elliot Kaye: Commissioner Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
I don't have any questions for Commissioner
Robinson with regards to her amendment,
but I would like to comment that along
with every responsible gun owner I certainly
share Commissioner Robinson's concern
about kids getting unsupervised access to guns.
The outcomes as we've seen far
too often are beyond tragic.
However, I have not seen the data
to suggest that failure of gun locks
or gun safes is driving those terrible outcomes.
If that data existed and our staff agreed
with the credibility of that evidence,
I'm left wondering why our staff was
not compelled to recommend participating
in the voluntary standards Commissioner Robinson
recommends, redirect staff resources towards.
So in the absence of that kind of
information, I cannot make a decision on whether
or not it is an appropriate use of agency
resources to redirect and involve our staff
in those voluntary standards
at the exclusion of others
where there may be a more
clearly demonstrated need.
So for those reasons, I cannot support
Commissioner Robinson's amendment.
Thank you Mr. Chairman.
>> Elliot Kaye: Thank you
Commissioner Mohorovic.
Commissioner Robinson.
>> Marietta Robinson: I would just
like to quickly respond first of all
to Commissioner Adler's comments and I
am, I certainly didn't live through it,
but I've hear the horror stories about bullets.
I'm not for a moment suggesting that
we're expanding jurisdiction here
but rather making sure we're making safe those
limited things that are within our jurisdiction
and I share with you the sort of, I
don't know the exact word I want to use
but my Swedish son-in-law sent me an
email a while back about the State of Utah
where I have a vacation home
and the subject line was "Things
about your country I will never understand."
And it was an article about the State
of Utah deciding to have a state gun,
not a state flower, not a state bird,
but a state gun and we have one there.
That's just an aside, but let me just say with
respect to the data Commissioner Mohorovic,
yes I would love to have
data one way or the other.
Again, I've circled this many-many times.
I cannot imagine where that data will come from.
We certainly had none when we tested 32 guns
and 32 of the locks on those guns failed.
We just have done nothing like that
in 12 years; well longer than that,
15 years in terms of deciding whether
the standard is what it should be
but what we do know is it hasn't in any
way incorporated any of the new technology.
And the resources that will
be committed to it I'm told
by Dr. Borlase [assumed spelling]
will be quite limited at this point
and then we can decide once we, once evaluation
takes place as to what we want to do with it
from there, but at this point, he's
saying that it'll just be one staff month
and it will come from the unplanned hazard work.
So, I don't feel like we are ignoring
other things to evaluate the standard
to see what we can do about these
hundreds of deaths every year.
>> Elliot Kaye: The only
remaining comments I want to make,
I do want to reiterate my strong support for
the amendment and I would like to just attempt
to reassure Commissioner Adler if possible only
because we just went through this a little less
than 4 years ago, where the agency took
the steps not through an operating plan,
but we did engage staff and staff eventually
included in its operating plans going forward
for a couple of years the exact type of work
that Commissioner Robinson is attempting
through her amendment to restore.
So I don't see her amendment and this is a
positive [inaudible] from your point of view,
I don't see it as breaking new ground.
I don't see it as necessarily, no pun
intended, triggering any type of response
from any outside party because
we've already done this
and so I think it's a very prudent step.
I think it is consistent with
our statutory responsibilities.
It is a, it's a relatively small one as
Commissioner Robinson has acknowledged,
but an important one to try to do our part
and if we had not gone through what we went
through 3 years ago where we able to do this
work; it was done in an unemotional environment.
We did, thankfully we did not
receive as far as I'm aware of,
mail that would require more
employees and death threats
and that's a good thing that
we didn't have that happen.
I'm comforted by that.
I might be wrong, but I'm comforted by the
fact that this is only returning the agency
if it passes to doing what the
agency had been doing a few years ago
and I think it's an appropriate step to take.
Commissioner Adler any further comments?
Commissioner Beurkle any further comments?
>> Ann Marie Buerkle: Nothing
further, thank you.
>> Elliot Kaye: Commissioner
Mohorovic, Commissioner Robinson?
>> Marietta Robinson: Nothing further.
>> Elliot Kaye: Having heard
not further comments
on the Robinson amendment,
we'll not 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 3, the nays are 2.
The Robinson amendment has been adopted.
Are there any further amendments?
Alright having heard none,
we'll now turn to consideration
of the underlying operating plan as amended.
Is there a second?
>> Robert Adler: Second.
>> Elliot Kaye: Having heard a second
we will have any final discussion on it
and then I'll call a vote in again.
As a reminder ,we'll have closing statements.
I have no further discussion before voting.
Commissioner Adler.
>> Robert Adler: No further discussion.
>> Elliot Kaye: Commissioner Robinson.
Commissioner Buerkle.
>> Ann Marie Buerkle: Nothing further.
>> Joe Mohorovic: No thank you.
>> Elliot Kaye: Having heard
no further discussion
on the operating plan as
amended, I now call the vote.
I move that the agency that the commission
approve the fiscal year 2017 operating plan
as amended.
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robison.
>> 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 3, the nays are 2.
The operating plan for fiscal year
2017 as amended has been adopted.
We'll now turn to closing statements and as
usual the commissioners will have 10 minutes.
If you plan to try to use a lot less time
than that for many reasons including the fact
that we're going to be right back at it
pretty soon for a portable generators briefing
and if we use up all our time I think we
might end up just rolling right into that.
First I just want to thank the staff.
Mr. Hoffman you're still
here so thank you for that.
I think that the staff and certainly starting
our Executive Director, Patricia Atkins
and her staff and our office of
financial management and EXHR
and the various institution parts of the agency.
It's a huge lift to do this.
I know it takes many months.
You're priority starting on the EFYET
and operating plan process to
get the offices ready for it.
There's a lot of work that goes into it
and there's really a lot difficult choices.
There are so many different ideas that
the agency could get involved with,
should get involved with that we have to
turn our attention elsewhere at this point
because of the very limited
unnecessarily so funds that we have.
I think that the commission should
be funded at a much higher level.
I think there is certainly many different
projects that are either not in here
or even that are in here like ATVs
that if we had a much higher level
of funding we would be able to resolve
those and remove the uncertainty
for everybody industry in
particular with those steps.
There is though a tremendous amount
of great work in this operating plan
and even well beyond the amendments that
were adopted today, the core operating plan
that staff provided speaks to addressing
or at least moving forward addressing
critical safety hazards that continue
and I think the commission
has a role to play in it.
I'm pleased that staff has
always every year able to get
so much work out of such limited resources.
I can only imagine what you can
do if we were properly funded,
but I commend you for the efforts.
I do want to thank my fellow commissioners,
a lot of work went into this even
as took our break the special assistance
and especially my office, Alison Stinely,
Jacqueline Campbell, Jonathon Midget and
[foreign name spoken] for the shuttled diplomacy
and late nights to try to
get where we were today.
Thank you.
Commissioner Adler.
>> Robert Adler: I honestly don't
think we can thank staff enough.
Sometimes this is such incredible amount
of work that's gone into the development
of an operating plan and simply saying thank
you doesn't somehow convey all of the gratitude
that I think we and probably consumers
across the land if they knew what was going
into this would want to extend to you.
I note that there are 7 amendments
that have been adopted today.
Imagine the amount of work that went
into each and every one of those.
I'm speaking only on behalf of the amendment
that I submitted and you can see the amount
of work we did in front of the meeting
today and multiply that by about 10 or 20
and you get an idea of how much
work this staff has put in not just
on the underline operating
plan, but in dealing with all
of the individual commissioners
concerns and complaints.
So, I think it's turned out to
be a very good operating plan.
No surprise given the quality of the
staff that's been working on this
and all I can do once again is commend
you for doing an excellent job and again,
I want to thank my fellow commissioners
and I think also it's important
that we never can thank our individual
staff enough, so I'd like particularly
to thank Sarah Kline [assumed spelling], Jen
Feinberg [assumed spelling], and a new addition
to our staff who is not here, oh there
she is Maurine Kentoff [assumed spelling],
so a.k.a. Mo.
So if you haven't met Mo yet she's sitting in
the back and she's just a wonderful addition
to my office and I thank all of you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I reiterate what
I said when we had the briefing on this.
Thank you so much to staff for the
incredible effort that went into this.
It was timely, it was descriptive
and transparent
and I very much appreciate this effort.
I also want to thank not only my staff,
but the staffs of the other commissioners.
I really am impressed with the group of
personal staffs that we have working together
and how thoughtful they consider each other's
positions, but obviously particularly I want
to thank Dotty Yard and Heather
Bramble for their work on this.
Boez Green [assumed spelling] is off with
his daughters seeing his family in Israel
so he did not participate in this and, but
the two of them just did an incredible job
and I really am very grateful for that.
I'm delighted with the op plan that we voted
on today and I'm really excited about the work
that we have committed to doing, as
is often the case, we debated a number
of amendments here today and I just
want to thank my fellow commissioners
for the thoughtful amendments that they
offered and I was happy to give my support.
I also think my fellow commissioners
for their support on my amendment.
Just because we can't to do everything
doesn't mean we shouldn't do the tiny bit
that we can I do think that this amendment small
as it was will help and in making guns safer
and I look forward to our
staff's report on this.
And with respect to the amendments by
Chairman Kaye and Commissioner Adler,
I'm very much looking forward to the work
that staff is going to do on this front.
I do have to say that to anybody
in congress who may be listening
to this, I hope you look at this op plan.
We are a never ending list of projects
that are related to consumer product safety
that we all would like to do with CPSC and
we'd like to resolve things more quickly
but our reality is we're small and
we have very limited resources.
But I really hope that congress
looks at this op plan and understands
that if we do not receive every dollar that's
allocated to this plan it will be necessary
to defer very important safety projects
and deferring those safety
projects has real significant
and potentially dangerous consequences
for industry and consumers alike.
I think we've been in the news more than,
practically any other agency recently
because of dangerous and new
products and newsworthy recalls
that clearly show what an excellent job
CPSC can do in protecting consumers,
but also the need for us to be able to
quickly respond with technical solutions
and innovative ways of ensuring safety and
we need appropriate funding to do that.
Heather Bramble was saying to me
yesterday that this is her favorite thing
that she does here at the agency.
We deal with so many distinct
projects, but the op plan is the macro
of what we do here at the agency.
And I completely agree with her and every time
we do the op plan I find myself reenergized
with respect to what we do here at the agency.
We're 3 weeks out from a really ugly election.
The ugliness of the past year, months,
weeks, days has been so disheartening
and deeply troubling to everyone I know.
We find ourselves apologizing
constantly to people both in this country
and our friends outside of this country
for the spectacle that we've made
of our election cycle this year and
it's the first time in my lifetime
that I've seen quickly a great country
can become diminished so quickly.
Yesterday morning I found a smile in
listening to an MPR piece on some Canadians
who put together a video that if you haven't
seen it you should, to tell us how great we are.
I love that someone tweeted
that it's always nice
to have a kind upstairs neighbor
when mom and dad are fighting.
And today, we, I look at what we did
today though and we have a small,
but acratically important reminder
of what makes this country great.
We have an agency comprised
of talented, dedicated people.
We're fulling a public health and safety mission
that congress in its wisdom assigned to us
and [inaudible] wisdom I probably should say
and looking at the op plan for this agency
for this upcoming fiscal year
emphasizes the real life consequences
that our work has on people's life.
And I would just say that I'm grateful
and humbled to be a part of the process.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: I too want to echo my
colleagues comments and gratitude to the staff
for putting together this op plan, particularly
Patricia [inaudible], Jay Hoffman, James Baker,
and the Office of Financial Management.
I recognize how hard and how trying it is to
produce an operating plan without the certainty
of a full appropriation from congress.
I do appreciate you efforts
and the time [inaudible]
of this document just like
that [inaudible] challenge.
I also want to thank this morning
John McGoogan and Kevin [inaudible]
for facilitating [inaudible] a meeting
via phone and thank you to my colleagues
and to the entire staff for
understanding my need
to participate remotely during
this time with my mother's illness.
I do so appreciate it and I just want
to make sure everyone understands.
You kind thoughts and words
that I've received from so many,
I just want to let you know how much I
appreciate that and what it means to me
as a commissioner, so thank you very much.
Although the operating plan was
provided to us in a timely way,
I wasn't able to support
it for a number of reasons.
To begin with, the plan contemplates final rules
for the highly controversial voluntary
recall notices on [inaudible].
I puzzled at this point what's going
to happen with these proposals.
Many of you are familiar with what happened
with at the right agenda in the fall
where Commissioner Adler indicated he would
offer compromise proposals on both subjects.
And while I remain somewhat open to
those compromises, I'm unclear as to how
such compromises would be acted upon.
Would we abandon regular order and ignore the
scheduled comments from outside stakeholders?
The operating plan reflects that [inaudible]
staff would transmit fire rule packages
to the commission in the current fiscal year.
That staff from all affected
offices have informed me in meetings
that they have no resources
[inaudible] to either project.
The MPRs should be terminated.
We should start over again.
But before we do that, and I've been
opposed to both of these their inception,
but even apart from the content of
these proposals, they should be delayed
and during the course of the
preparation for today's hearing,
I floated some amendments among my colleagues
and couldn't get support from the majority
that would have moved the MPRs, the voluntary
recall notices [inaudible] excuse me,
back to DATRs.
And I offered those 2 amendments because
we have promised, or I should say,
the chairman has promised a public
workshop on recall effectiveness.
The exchange of information during such
a workshop would be relevant to any rule
on voluntary recall [inaudible], and
similarly I understand from the [inaudible]
that they will be updating our [inaudible]
information staff later, as little as this year
and so it appears possible
that revisions will address
and possibly move [inaudible] suggestions.
Hence it would make sense to
hold off on both of those,
the 60 and the MPR on voluntary recall notices.
I am disappointed that the majority wouldn't
go along and support those amendments,
but again I just wanted to express my
concern about those 2 MPRs the remain
on the book and this plan as final rule.
These issues quite frankly have become
an embarrassing mess to the agency
and it really has been through
no fault of the staff.
In previous years, the chairman [inaudible]
he did not regard these as priority issues
and now if feels as if they've
become more of a priority issue.
So I'm sensing a different attitude on the
chairman's part as well as the determination
on the part of the other
commissioners to move this forward
and I truly hope given the lack priority
and transparency in this process,
that this is not going to
be a midnight rulemaking
but rather a good faith effort
at trying to compromise.
But I do believe that moving them to DHER
would have been a more prudent action for both
of those MPRs for the commission.
Also, it concerns me [inaudible] tip over AMPR.
It was not forecast in our 2017 budget and quite
simply this AMPR is premature and inappropriate.
The staff recently sent us a
briefing package on this subject
and it does not support moving
forward with rulemaking.
The existing voluntary standard
is barely 2 years old
and there is no evidence whatsoever
that the standard is inadequate.
I've asked staff explicitly whether they are
aware of any deaths or injuries resulting
for tip overs of dressers or other
clothing storage units that comply
with the 14 standard and the answer is no.
It's inappropriate to press for imprudence
to a voluntary standard at this point.
We would be far better off helping
manufacturers to improve their designs
and meet the current voluntary standard
rather than moving the goal post again, so.
On portable generators, the operating plan
contemplates upon a rule in the [inaudible].
This is another area where I think
we should hold off on the rulemaking.
Our staff has been working for years
on [inaudible] carbon monoxide
emissions support of the generators.
I appreciate their intensive work.
We've met with them on a regular
basis to learn about the progress
and they're engaging in this area.
Their efforts have spurred a tremendous
amount of activity in this private sector.
Only recently, [inaudible] the
breakthrough of the industry promising
to open voluntary standard
and address the CO hazard.
Some argue that the industry won't move forward
until we actually propose [inaudible] standard.
That argument is contradicted by
the industry's recent activities
in voluntary standards commitment.
[Inaudible] proposing standard
required the industry to vote resources
and it's actually causes them to misdirect their
resources on the wrong thing instead of focusing
on a voluntary standard they must
work to address the staff's proposal.
In the case of portable generators,
there are additional reasons
to support voluntary standards in
preference to mandatory regulations.
There are serious questions about a legal
authority who regulate carbon monoxide emissions
and while I will get to those concerns in
greater depth in this afternoon's hearing,
I will say that if we pursued a voluntary
standard we could alleviate any legal issues
that should be, that would be a much
nonpreference to follow the voluntary standards.
Speaking of ROVs, I would encourage the
staff to save some of their own time and,
we talked about this chairman, and
resources by combining a briefing package
on the voluntary standards with a
recommendation to terminate rulemaking
if they consider that's the appropriate outcome.
With regards to upholstery furniture, the
commission staff has labored for years
to try develop a regulation in this area.
In the 16-Ops plan [inaudible] amendment asking
for a report on the [inaudible] standard TB17
and a comparison for our
own rulemaking proposal.
Staff [inaudible] insignificant report
with remarkable conclusions including
a recommendation determining rulemaking
in this area and I think we need to
seek public comment on that document
and further chairman suggestion, that is
something that I will pursue and discuss
with him as we go forward here and
possibly come up with something at midyear.
This is concerning as what's in the
op plan as what's not in the op plan.
There are no resources dedicated to
the workshop on recall effectiveness
for the section 15B reporting and I understand
[inaudible] run out of the chairmans office,
but I think it's naïve
that the staff will this part
at some point [inaudible] along the way.
These are important topics that deserve
serious attention not just check the box.
Once again, there's no funding for an
information and educational [inaudible].
I know this is not a popular option for
staff nor some of my fellow commissioners
and I understand in comments made that
the chairman believes there is no,
that educational campaigns are ineffective,
but it seems there are some exceptions to that.
Yet we don't have to take into [inaudible]
industry investment [inaudible].
It seems to me we should
partner with an industry
and there could be some real benefit
derived with a robust [inaudible] campaign
that would advance the safety critical
message, excuse me the critical safety message
and the importance of these of imported products
to families [inaudible] children are present.
I think we should have an
effective I and E campaign
if we can get behind that in the agency.
Another issue that remains of concern
to me is chief senior staff
positions [inaudible] also troubling.
We're putting forward a plan here that
expands initiatives [inaudible] on numerous
of how our director has had
no permanent leadership.
That's a void and it needs to be addressed
and do hope we will fill these
positions as soon as possible.
In closing and I do want to thank my staff
because they have been [inaudible] they've put
at an extra disadvantage with my absence
this week and how they've worked to get all
of the information to me and our phone calls,
so I do appreciate their work and I thank them.
In closing, while there were changes
that if adopted it would have made
this plan more acceptable to me,
my fellow commissioners have made it clear
that they will not accept the necessary
changes [inaudible] would have been an exercise
in futility.
Many of the amendments adopted here today give
me even greater concern including crib bumpers
being treated as a durable nursery product.
The use of our resources to work
on closer [inaudible] flammability.
In this end, this is a document that is much
more reflective of the majority's policies
and therefore not one that I can support
as it takes the agency down a path
that I don't believe is the
appropriate role of government.
I think the role of our agency is protect
consumers from unreasonable risks and not to use
as [inaudible] rulemaking and
questionable compliance activities as a tool
to bully industry into doing what
we want [inaudible] agent activity
that can be interpreted as an abuse in power.
Our policy decisions and agency
actions should address actual risk
and should be driven by sound, science and data.
Thank you.
>> Elliot Kaye: Mr. Mohorovic.
>> Joe Mohorovic: Thank you Mr. Chairman.
I'd like to associate myself with the thoughtful
appreciation expressed by my colleagues
for all the staff that contributed
to this operating plan and of course
to this decisional hearing today.
I would like to recognize and thank my staff
Bryce Dustman, Mike Jentine [assumed spelling]
and Ryan Radford also for their late
nights and tireless work on this effort
and Commissioner Buerkle
eluded to it very briefly,
but I'd like to reemphasize the
appreciation for the regular timing
with which this operating plan was delivered
to the commission, deliberated and considered,
so special thanks to our executive director
for that, as well as, to Commissioner Robinson
for her unending support for that kind
of a process and was well to the chairman
for agreeing to put this in
regular order, so I very much hope
that we see our operating
plans at the same timeframe.
But I did vote against the FY17
operating plan for several reasons.
The first point that I'd like to make is
that I shouldn't really be shocked to find
that there's midnight regulations at the CPSC.
For those that have visited my office, I
have a not too subtle reminder and warning
that by virtue of having Wilson Pickett's
Midnight Hour album at my entry way as a bit
of a prediction that after 2 years
of saying we're not going to move
on the voluntary recall rule and 6B
rule, it looks like low and behold
through this operating plan and through
the expressed desires of the majority
that we will move on those particular rules.
So for 2 1/2 years that I've been on the
commission, I've been voicing my concern
that the proposed voluntary recall and 6B rules
which are among the most controversial proposals
this agency has ever offered would spring
to life in the waning moments
of this administration.
I've been worried that just when
our stakeholders have been lulled
into thinking the rules were harmlessly
asleep, that these 2 regulatory snakes
and the consumer product
grass would pop up and bite.
And my spidey sense started tingling first
when our regulatory agenda came to us,
and it went on to full burning when
our hearing on that agenda revealed
that my colleagues had been working on a
plan for those rules and that they hoped
to have wrapped up by right around the
current administrations Midnight Hour.
So, when this operating plan came to us,
contradicting the assurances we've given the
public contradicting what we've told congress we
were up to in doing, contradicting the
budget the request we made for the year
and even contradicting the advice of the most
progressive chairman this agency has ever had,
I still was hardly surprised.
But there are 2 things in this plan that
did surprise me, and worse they just came
up today not as part of the staff package
so there'll be I predict very big surprises
to everyone outside of the agency.
First I was surprised by Chairman Kaye's
amendment to regulate crib bumpers
as if they were a durable infant and toddler
product, under section 104 of CSPSIA.
If crib bumpers are durable products
I don't know what wouldn't be.
That surprises and frightens me.
Now I can't say that Chairman Kaye's
amendment represents midnight regulation,
by putting in the operating plan he is
giving everyone a loud and clear signal
of just how expansive his
view of section 104 is.
However, the fact that we can see it
coming does not make it good policy
and it does not make it an appropriate use of
the limited authority that section grants us.
Now second I was surprised by
Commissioner Adler's suggestion
that we should divert public
money into private pockets;
do it without specific statutory
authorization or congressional approval,
and do it without any guidance
or direction to staff.
But I'm very please he was kind
enough to take that suggestion
and at a minimum we should see the entire plan
and protocol staff believes is appropriate
before we vote to send one dollar
out of our very limited bank account.
On that note, one thing that troubles
me in this plan is that both before
and after today's amendments
it devotes resources away
from where I believe the agency should be.
As anyone who is paying close attention to CPSC
knows, this agency has an astonishing number
of vacancies in senior, mission critical,
leadership positions including our director
of import surveillance, our
deputy general councel,
our deputy executive director
and our director of compliance.
I suspect that even the wonderful
organizations that could benefit
from Commissioner Adler's
idea, would agree that filing
and funding these mission critical vacancies
is a better way to protect consumers.
Again, I have no doubt that we all have
only the best of intentions in mind,
but intentions aren't good enough.
We need to hold ourselves accountable not
just for our intentions, but for our actions.
So even without what has transpired today, I
could not have supported this operating plan.
It allocates resources in ways I do not
believe are our best path towards greater
consumer safety.
I have no doubt that armed with his plan our
staff will continue to do tremendous work.
My concern is not with staff's ability
to follow the direction of the commission
to follow the direction the commission gives.
It's that I believe the commission
is giving the wrong direction.
In some cases marching the
agency straight towards failure.
In closing however, my greater concern remains
with the full speed dash towards midnight
regulation what this plan represents,
particularly in the voluntary
recall and 6B rules.
We have heard for years that these
lightening rod rules were not priorities
and that we did not want to want to spring
anything on our regulated community.
Yet that is exactly what we are
poised to do because of this document.
Now I chose not to offer amendments
to stop work on these rules
or to withdraw them completely today out of
respect for my colleagues and the public's time
and because I've done so
previously and have failed and also
because my colleagues have
made it abundantly clear
that they are wedded to these looming disasters.
Even as recently as August 31st,
they told the world that they wanted
to see these rules finalized
and in the near term.
For a change in their desire to finalize
these rules, the majority is in the minority.
I respect that spirit of
perseverance but I cannot join in it.
The term "midnight regulations'
comes from a comparison to Cinderella
where the magic wears off
at the stroke of midnight
and in this case it's the
inauguration of the next president.
Midnight regulation has been
rightly criticized as a departure
for responsible government an effort to
achieve political victories at a time
when there can be no political
accountability in return.
That's exactly why I have been warning us and
the public about this possibility for years.
Every time I've expressed my concerns, I
was assured that such a move would just,
would be just not our style but it
seems styles change and so do minds.
What does not change is our responsibility
to exercise our powers appropriately.
The power to make laws and regulate
is the power to deprive people
of not only their property, but their liberty.
The most important aspect of the
appropriate use of our power is insuring
that the people can hold us politically
accountable for our decisions both directly
and through their elected
representatives in congress.
Midnight regulation is an
abdication of our responsibility
and it is one I cannot and will not join in.
Thank you Mr. Chairman.
>> Elliot Kaye: Thank you for those joining
in person for watching on the webcast.
This concludes this public meeting of the United
States Consumer Product Safety Commission.