>> 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 proposed safety standard
for portable generators.
For the discussion, the CPSC staff members
are Ms. Janet Buyer, mechanical engineer
in the Office of Hazard Identification
and Reduction and Ms. Barbara Little,
an attorney in the Office
of the General Counsel.
Thank you both for joining us again.
We'll start with five minutes if there
are any questions per commissioner
and then we'll turn into the decisional itself.
I don't have any questions.
Commissioner Adler, do you have any questions?
>> Robert Adler: I have no questions.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: No questions, thank you.
>> Elliot Kaye: Commissioner
Buerkle, any questions?
>> Ann Marie Buerkle: I do not
have any questions, thank you.
>> Elliot Kaye: Commissioner Mohorovic?
OK, with no questions we can
let the staff lead the table.
>> Marietta Robinson: That was a
fist bump between Janet and Barb.
>> Elliot Kaye: And we'll now--
>> Janet Buyer: You said it.
>> Elliot Kaye: We'll now move to
consideration of the underlying package.
Are there any amendments?
And actually, I'm going to offer the first
amendment which is a manager's amendment.
I'm going to describe it briefly
and then ask for a second,
and then we can go into a discussion of it.
This manager's amendment is intended to collect
a combination of additional questions and points
that the commissioners wanted to add including
my office into the rulemaking itself to try
to spur some more request for
comments on some key issues.
We have circulated the amendment.
Is there a second?
>> Marietta Robinson: Second.
>> Elliot Kaye: Having heard a
second, we'll now turn to discussion.
I have no further comment
on the manager's amendment.
Commissioner Adler?
>> Robert Adler: I have no comments.
I've read it and I like it.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: I would just like to thank
particularly Commissioner Mohorovic for his
and his staff's contribution to
this and you Chairman Kaye for yours
and your staff's contribution to this.
I very much support it.
We're always interested in the comments that our
stakeholders have, and I certainly hope that all
of them will very actively participate in
the comments, and I think it's important
that we focus them on things
that we are interested in hearing
and considering before the final rule, and
I thank you for working with your staffs
and with mine to put this
together, and I support it.
>> Elliot Kaye: Excellent.
Commissioner Buerkle, any comments
on the manager's amendment?
>> Ann Marie Buerkle: I do
not have any comments other
than just seconding Commissioner Robinson's
comments that I appreciate the work
that your office, Commissioner
Mohorovic's office
and Commissioner Robinson's office have done
on this amendment, and I intend to support it.
I'm a strong advocate towards seeking
stakeholder comments are a core
to adding this amendment to the package.
Thank you.
>> Elliot Kaye: Thank you.
Commissioner Mohorovic.
>> Joe Mohorovic: Thank you, Mr.
Chairman, and this is an example
of being not just the spirit
but the letter of compromise.
So thank you for your office's openness
to more contributions, to questions,
to have solicited for public comment, and I do
want to recognize an incredible amount of work,
long evenings and early mornings
among all of the special assistance
in coming to compromised language.
I plan on supporting it and value
the process and your openness
to it, Mr. Chairman and my colleagues.
>> Elliot Kaye: Great, thank
you, Commissioner Mohorovic.
Having heard no further comments on the
manager's amendment, 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: Aye.
>> Elliot Kaye: Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The yeas are five, nays zero, the
manager's amendment has been agreed to.
Are there any additional amendments?
>> Joe Mohorovic: I do have
an amendment, Mr. Chairman.
>> Elliot Kaye: Mohorovic, you're recognized
three minutes to describe the amendment.
>> Joe Mohorovic: The amendment that I have and
has been circulated among the commissioners has
to do with something that I brought up
at the hearing a couple of weeks ago
with ex-ante retrospective review.
That is the idea that perhaps this rule
would be a good opportunity for us to think
on the front end how we might
evaluate the rule's effectiveness,
what data points we might use
to judge this on the front end.
I think the benefit-cost analysis provides
us ample opportunity to start to look at ways
to do that, and this particular amendment
does suggest some language in the preamble
and also solicit it-- solicits
additional comments and--
from the public in terms
of how they might recommend
if we should incorporate an
ex-ante retrospective review plan,
and if so, how to do so.
With that, I'll yield any questions.
>> Elliot Kaye: Is there a second for
Commissioner Mohorovic's amendment?
>> Marietta Robinson: Second.
>> Elliot Kaye: Having heard a
second, we'll now turn to discussion.
I'll start with the first five minutes.
I do want to commend the commissioner for
this, and speaking of the spirit of compromise,
I know that your office and Mr. Gentine
in particular on your behalf really bent
over backwards try to accommodate all
of the different offices' concerns,
and that's very much appreciated.
When we put this concept in as a
possibility in the rule review plan
that the commission approved, I
think it was earlier this year, we--
I think there was an expectation or at
least I had an expectation especially
since during the time that Professor
Sunstein had been running OIRA
that there would probably be more
activity on this particular area
than there has been in the federal government.
So one of the aspects that I'm curious to see
if commenters will end up that responding to,
if we approve your amendment, is
why hasn't there been more activity
in the federal government.
This has been an issue that
Professor Sunstein has pushed.
I believe ACUS has even written
about it in the last few years.
And so-- And I actually yield if you
happen to know why there hasn't been--
since at the time that Professor
Sunstein was at OIRA and has left--
if you happen to know why this hasn't been or
why they adopt it in the federal government.
>> Joe Mohorovic: No, Chairman, it's a great
question and obviously not a loaded one.
And just to share in the questions
too, I've been, and my staff also,
have been actively looking at all
the academic materials et cetera.
There are some horizontal views
of the federal government in terms
of the exposed retrospective reviews
and some examples of best practices.
I think OIRA does a nice job of trying to
identify and highlight the great successes.
But in terms of that ex-ante
retrospective review,
there aren't a tremendous amount
of examples for us to look at.
So I think our permissive language in our
commission policy I think is appropriate
and this amendment as well does
not suggest that it's a must.
I'm obviously a strong proponent
of it but it's soliciting whether
or not this would be a good candidate
forward given the very technical nature
of this particular rule.
So I hope we get some feedback from it
but sorry for not understanding more.
>> Elliot Kaye: Yeah, definitely, and one
of the areas that I'm most interested in,
both in terms of the request for
comments that we just approved as part
of the manager's amendment but also
in relation to this, is whether
or not we should have some mechanism in
the rule as we go final that would push
as technology increases and
it becomes more feasible
to lower the CO levels even more should we
have some mechanism built in to modify the rule
to address the hazard even further because
even the staff package is acknowledged.
The staff package acknowledges that
this rule, if adopted by the commission
on final form, I think we'll get to about 50%.
It's projected about 50% of the deaths
and injuries, and I hope we can do better
at some point if technology allows.
Commissioner Adler?
>> Robert Adler: Thank you.
I appreciate Commissioner Mohorovic's
work, and I particularly want
to thank his special assistant Mike Gentine
who has been incredibly helpful
in explaining things to me.
The only observation I would make is
that retrospective rule review
has been something we have done
at the commission for many years.
In part, we're legally obligated to do
that by the Regulatory Flexibility Act,
but also we've tried to follow executive orders
which call for retrospective rule review.
And the thing that I've-- I appreciate
about Commissioner Mohorovic's approach is
that it doesn't ex-ante point
us in one particular direction.
I think in past years, the debate has been,
with respect to narrowing or withdrawing rules,
and that's a perfectly appropriate
thing to do, rules can go stale.
But in other occasions, we may need to modify
something, we may need to streamline it,
we may need to expand it, or in some
cases we may need to withdraw it.
We have a rule on our books
right now that is 63 years old.
That's a general wearing apparel standard,
and someday I hope we can take a look at that.
That said, I greatly appreciate Commissioner
Mohorovic's initiative and I plan to support it.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: Earlier this year in
April, we voted unanimously to pass our plan
for retrospective review of existing
rules, and this plan consist--
was consistent with Executive
Orders 13579, 13563, and 13610.
And as Commissioner Adler just
said, we have tried to comply
with the executive orders even though
as an independent agency we
are not compelled to do so.
The plan that we approved in April outlines
the process and criteria for determining
which rules are to be considered for review
and includes an opportunity for stakeholders
to weigh in on what rules
they think we should review
through our agenda and priorities hearing.
The prioritization process is
systematic and it involves staff
across directorates including subject
matter experts who will review the data
and information provided from
a range of sources to identify
which of the rules we should
consider for review.
And while retrospective review may be
included as provisions in new rulemakings,
the agency considers retrospective review
when developing our operating
plan and our performance budget.
I am going to support this amendment as
worded, and I appreciate Commissioner Mohorovic
and his staffs' flexibility
in putting this into language
that I think is appropriate
to put into the rule itself.
In this case, what we're really asking for in
the amendment is for public comment, first,
on the appropriateness of including
retrospective rule review in this NPR.
And then if we put it into this
rule, what criteria we should use
for determining the need for rule review.
When Commissioner Mohorovic first came into me
with this, I said, "Well, it's hard to imagine
that we're going to look at this."
And then, you know, 10 years
from now say, "OK, never mind.
Have at it.
Go ahead and emit carbon monoxide again."
But obviously, there are many more purposes
to a retrospective rule review than this,
and gathering this data makes sense,
and I'm sure that it will help staff
in putting together our final
rule in terms of what we should do
in by way of review going forward.
So I will support this.
Thank you.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chair.
I also will be supporting this amendment, and I
want to thank Commissioner Mohorovic's office,
Mike Gentine, as well as my staff and all
of the commission staff who worked hard.
This amendment as well as the others especially
with being out there, they had to do a lot
of telegraphing and additional email detail.
Again, I want to thank them.
I do think it is good governance to ensure
that the rules we promulgate are effective
in addressing hazards, and
retrospective review is a part of that.
And I do have some concerns about the reason
for a retrospective review, and not only is it
to see if we can tap into
additional and improved technology,
but also it is to see whether or not
that standard or that rule, I should say,
is actually advancing the cause of safety
and if we're doing it in a prudent way,
and it couldn't be done any other way.
So, I look forward to supporting
this amendment, and again thank you
to all the staff for your work on this.
>> Elliot Kaye: Mr. Mohorovic?
>> Joe Mohorovic: Well, thank you.
I want to thank again all my commissioners
for their input into the final language.
I think it's-- the comments that were just
represented by my colleagues are smart ones.
And we should think about retrospective
review and ex-ante in particular,
as really getting to the optimism
that we have for this rule.
I will expect that this commission will vote
to approve an NPR here in a matter of moments
and I'm very enthusiastic about this rule.
I have very high expectations and I think
the commission has high expectations.
And for those reasons, I think and I appreciate
Commissioner Adler mentioning the Reg Flex Act,
some of them have horizons 10
years out and really far out.
I think, you know, with this particular
rule, we're really expecting to see,
if in fact it goes into effect,
the benefits, the welfare,
the-- benefits in the very short term.
So, we do the best that we can to come up
with performance standards but the purpose
of the ex-ante retrospective review is to
make sure that it's achieving the goals
for the public that we hope that they do.
So with that, thank you all for
your input, and Mr. Chairman.
>> Elliot Kaye: Thank you
Commissioner Mohorovic.
Hearing no further comments on the
amendment, we'll 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: Aye.
>> Elliot Kaye: And I vote aye.
The yeas are four, the nays zero.
I just want to ask Commissioner Buerkle,
just-- this is on the Mohorovic amendment.
>> Ann Marie Buerkle: I'm very sorry.
>> Elliot Kaye: OK, I'll ask again,
Commissioner Buerkle how do you vote
on the Mohorovic amendment?
Commissioner Buerkle, are you still on the line?
>> Ann Marie Buerkle: Yes, I am.
Aye, Mr. Chair.
>> Elliot Kaye: Oh sorry, OK, OK.
Now, the yeas are five, nays zero.
The Mohorovic amendment--
>> Joe Mohorovic: That was exciting.
>> Elliot Kaye: -- has been adopted.
Are there any more amendments or motions?
>> Marietta Robinson: Somehow I think we know
Commissioner Buerkle's vote on the next round.
>> Elliot Kaye: I think she did telegraph that.
Having heard no further amendments or
motions, we'll now turn to the final vote.
Any further comment on the underlying package as
amendment before-- amended before we vote on it.
Commissioner Adler?
>> Robert Adler: I have no further comments.
Thank you.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: No.
>> Elliot Kaye: Commissioner Buerkle?
No further comments?
>> Joe Mohorovic: No, thank you.
>> Elliot Kaye: Mr. Mohorovic, OK.
Having heard no further comments we will
now vote on the staff package as amended.
Commissioner Adler, how do you vote?
>> Robert Adler: Aye.
>> Elliot Kaye: Commissioner Robinson?
>> Marietta Robinson: Aye.
>> Elliot Kaye: Commissioner Buerkle?
We'll come back to you.
Commissioner Mohorovic--
>> Ann Marie Buerkle: No, I apologize.
I'm having trouble with this phone.
I'm a no vote.
Thank you.
>> Elliot Kaye: OK.
Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Elliot Kaye: And I vote aye.
The yeas are four, the nays is one.
Staff package as amendment--
as amended has been approved.
Congratulations to the staff.
We'll now turn to closing statements,
and we'll have up to 10 minutes.
I do want to really thank the generator team
for your diligence and your fantastic work.
I think you've made-- you've really
set the standard and you're going
to make a real difference should
we go final with this rule.
And even the step that we've taken today
is going to change industry perceptions,
it's going to change consumer expectations
about what these machines should
do and what they shouldn't do.
And so, it's been a-- it's a tremendous effort
and I hope you're really
proud of what you've done.
I certainly am very proud and I
know the commissioners are too.
From the proof of concept work that
began with the University of Alabama,
the modeling experiments at NIST, and the heavy
engagement with the voluntary standards bodies
and other stakeholders, CPSC staff
has really delved into the details
and produce an incredible
path forward on safety.
Of course, this is a notice
to proposed rulemaking.
It's not a final rule.
And as we mentioned in earlier comments,
we are soliciting additional information
on key concepts related to this rule.
So there's a lot of work to do
before we get to a final rule.
Staff will definitely continue to engage with
stakeholders and I do want to reiterate that.
As voluntary standards work
continues, staff will be at the table
as a very willing and able participant.
I do want to express my appreciation
to my fellow commissioners.
I think this has been an excellent example,
at the commission level, of compromise
and maybe everyone didn't get what they
want, but I think we can all feel very proud
of the additions to the package
and how it's moving forward.
I do also want to thank your staffs because they
obviously do the hard work behind the scenes
in making sure that everything
gets negotiated out.
And I want to thank Jacqueline
Campbell in particular from my staff
for all the work that she's done.
In closing, I do want to just
reiterate one more time how proud I am
and especially to Janet Buyer.
Janet Buyer, and Jay Howell is no longer with
the commission, and I did a lot of traveling
in 2013 to a number of different manufacturers
across the country to try to learn more
about what they were doing and to urge them
to try to step up and help solve this problem,
and many of them have taken that to heart
and are moving forward with solutions.
This is a tremendous advancement for
safety, as I mentioned, by the CPSC.
And it's something that I'm sure
that we'll continue to champion
for many years as we address this.
The deaths and injuries from this hazard that
we-- that is just happening too much in America,
especially during storms and other power
outages, but it's a solvable problem
and we're taking a major step forward today.
Thank you.
Commissioner Adler.
>> Robert Adler: Thank you
very much, Mr. Chairman.
And I want to join in congratulating
staff on a job superbly done.
I said last week that I think this stance
is the platinum standard for drafting work,
and I can't thank Janet Buyer and all of her
team for the superb work that they've done.
I think this shows that a
tiny agency can do big things.
This is an exceptionally hazardous
product when not used properly.
And as my colleague Commissioner
Mohorovic has pointed out,
this is pretty much a hidden hazard.
People really don't anticipate
just how much CO is emitted
when they've got a portable generator operating,
and this ought to dramatically reduce
the amount of CO that is issued.
So, again, I want to thank all of my colleagues.
I want to thank the CPSC staff, and I want to
particularly thank my own staff Sarah Klein
and Jen Feinberg for the
excellent work they've done.
Thank you.
>> Elliot Kaye: Commissioner Robinson.
>> Marietta Robinson: I also want to add my
thanks once again to the staff and to Ms. Buyer
and Ms. Little particularly for the
outstanding work, years of hard work
and collaboration has gone into
this package across directorates,
and I could not be more pleased
to have voted for this NPR.
It's just a superb package and I thank
you so much for your hard work on this.
It's important to note that
the completion of this NPR
for portable generators was a onerous task
because it had to meet both the requirements
of the APA and the requirements that
we uniquely have under Section 7
and 9 of the Consumer Product Safety Act.
And I particularly would like
to thank the staff of their--
our economics department for their hard work
on meeting the requirements that were required
of both the APA and Section 7 and
9 in coming up with this package.
It was extremely hard work
and it was excellent work.
As an agency, we know all too well the
hazards posed by portable generators
and the resulting carbon monoxide poisoning.
Our efforts to address this
hazard have spanned a decade
which I don't need to tell anyone in this room.
CPSC spent years working with the voluntary
standards committees trying to ensure
that robust performance standards
would be put in place
that would make portable generators safer,
but the voluntary standards
remain completely insufficient.
We've been working with UL since 2002 when
the first standards technical panel was formed
to address portable generators and we worked
with PGMA since they were formed in 2009.
Despite dozens of meetings, technical
summits, and meetings with manufacturers
and industry reps, neither standard
addresses carbon monoxide emissions.
And staff is not aware of any manufacturer
that even complies with either the UL
or the PGMA standard as they are.
With some exceptions as the chairman has
pointed out, industry has generally refused
to address lowering carbon monoxide
emissions even after they made--
they were made aware of technologically
feasible ways that they could do so.
The CPSC has dedicated an enormous
amount of time and resources
through our communications department on
targeted education and outreach efforts
on the proper use of portable
generators and the importance
of installing carbon monoxide detectors
in the home and yet we continue
to see tragic incidents resulting
in death or serious injuries.
We've made some progress, including the
passing of a mandatory labeling standard,
and have seen a rise in the number of consumers
who have installed carbon monoxide detectors
in the homes, but the data
are simply not reassuring.
From 2004 to 2014, there have been at least
751 generator-related carbon monoxide deaths,
and we have no doubt that this
is an underreporting number.
For each of these deaths, their staff estimates,
there are 39 generator-related injuries,
some of them extremely debilitating.
These are grim numbers and the data
clearly show that mandatory labels
and education alone are simply not enough.
And it's because of this incident data that
in 2006 the CPSC issued the ANPR and today is
with relief that I vote to issue this NPR.
In a proposed rule, the staff is focused
on addressing the main hazard posed
by portable generators, that is,
the emission of carbon monoxide.
Staff's approach appropriately
was to design out this hazard.
As a result of CPSC's rulemaking requirements,
staff not only had to identify the best
and least burdensome way to address the hazard,
but they also had to consider
alternative solutions and justify why,
and they were-- did so convincingly.
And one of the alternatives that was
considered and appropriately, I think,
rejected was the automatic shutoff strategy.
Staff studied four types of auto shutoff
systems and identified a number of issues
with the shutoff concept including
reliability and durability of these systems.
And after performing a series of tests,
staff determined that the shutoff concept
without reduced carbon monoxide emissions was
not technologically feasible nor effective
in reducing the hazard.
What is technologically feasible
at this time, however,
is staff's proposed performance standard that
sets a maximum carbon monoxide emission rate
for these poor-- four categories
of portable generators.
And this proposed performance
standard directly addresses the hazard
of carbon monoxide emissions.
The proposal to set a safety standard
limiting emissions of carbon monoxide
in portable generators is of
course not prescriptive in terms
of requiring a specific technological solution.
But instead sets out performance
requirements which have been proven
to be attainable using currently
available technology.
And I'm very optimistic that,
with this performance standard,
we will inspire new technologies
and innovation in the field
and may even be able to improve
the standard further.
As we're in this NPR stage of the process,
I'm eager to receive comments
on the proposed rulemaking.
This is the next step in the longer
journey to reduce injuries and deaths
from portable generators and the
resulting carbon monoxide poisoning.
I want to thank my fellow commissioners for
working together on their proposed amendments,
both the rule review amendment and the
manager's amendment which I strongly support.
And I would like to address in the
comment that Commissioner Buerkle made
in the fiscal year '17 operating plan
hearing where she raised concerns
about the CPSC issuing a mandatory
standard for portable generators
that included a performance test that
evaluates carbon monoxide in emissions.
And her reasoning was that
the EPA, and not the CPSC,
has the authority to regulate
carbon monoxide emissions.
I firmly disagree with Commissioner
Buerkle's understanding of this issue.
After reviewing all of the materials
including statutory and case law and looking
at how operationally the EPA and the CPSC
regulate entities and various products,
I'm confident that the CPSC has
the authority, jurisdiction,
and obligation to regulate the four categories
of portable generators addressed in this NPR
and to utilize a performance requirement that
includes measuring carbon monoxide emission
in furtherance of our public
health and safety mission.
Even if a product is regulated under EPA's
Clean Air Act, the CPSC retains its authority
to regulate if the existing regulations
are not sufficient to protect consumers.
The Clean Air Act regulates predominantly at
the regional level and was originally passed
in response to poor air quality and
was meant to address issues like smog
and later amended to address acid rain.
In theory, one of the goals of the Clean Air
Act was to protect health which it has done.
Air quality has improved since the
Clean Air Act was passed, but again,
that regulation focused more in ambient
air quality and chronic health conditions
and not the acute health risks like carbon
monoxide poisoning from portable generators
which we are addressing as the CPSC in this NPR.
I would also like to briefly
comment on a letter received by--
sent to CPSC from the Portable Generators
Manufacturers Association, PGMA.
The letter urged us to delay rulemaking
because PGMA has decided finally
to reopen their standard, and at
long last, after years of resistance,
apparently try to address the need
to lower carbon monoxide emissions.
While I'm always supportive of
voluntary standards efforts,
there is nothing in PGMA's
conduct since its inception
that provides any reason to
delay voting on this NPR.
I met with PGMA about a year
ago in October 2015.
After having been briefed by our staff
and Ms. Buyer in particular on the work we
and others were doing that was so exciting in
significantly reducing carbon monoxide emissions
in portable generators, I was hoping
that PGMA representatives would come in
and discuss the efforts its members
were making in the same direction
since this is the only real way to address
this danger, design out the hazard.
I appreciate that this would
require a significant investment,
monetary investment from industry.
But given that low carbon monoxide technology is
available, combined with the horrific statistics
on poisonings in this country, I was hopeful.
Instead, I was presented
with one focus only of its--
of PGMA's efforts, and that
was labeling and education.
This is certainly one solution that
would cause industry virtually nothing
but it has failed so miserably.
When I asked about PGMA's efforts
to lower carbon monoxide emissions,
I was told essentially that they did
not believe that lowering emissions
in portable generators is a path forward
because consumers exposed to carbon monoxide
from portable generators will still die.
Lowering carbon monoxide emissions,
they said, will only delay their death.
PGMA even suggested, without
any facts or data to support it,
that reduced emissions would somehow be more
dangerous because people might be more inclined
to move the generator into their house.
The analogies I could make to this argument
in different context are all equally macabre
and ridiculous, sufficit to say that
this argument was totally auspicious.
A portable generator can emit up
to 1500 times the carbon monoxide
than that of an idling automobile.
People may start to notice early symptoms
and realize carbon monoxide is getting
into their living space, go to shut
off the generator and be overcome.
That's how overwhelming the
emissions are presently.
Having more time before one dies allows for
so many possibilities that will save lives
and reduce injuries from neighbors or
family discovering what's going on,
recognizing early symptoms and
getting out of the environment,
mitigating the injuries,
the list goes on and on.
Our data show that there were at least 25,400
medically attended carbon monoxide injuries
between 2004 and 2012.
People can survive and without
sequelae especially
if can lower carbon monoxide emissions.
Our staff estimates that 208 of the 503 deaths
that occurred from carbon monoxide poisonings
between 2004 and 2012 could have been averted
if low emissions generators were in place.
Therefore PGMA's position that lowering
emissions will simply mean it will take people
longer to die is belied by data.
In one study, the time interval
required for carbon--
boxyhemoglobin level to reach the benchmark
representing incapacitation increased form eight
minutes to 96 minutes when using low carbon
monoxide emission prototype generator
in an enclosed garage.
This time interval further increases for
potential victims who may be in the home.
This is precious time, critical time, and can
mean the difference between life and death.
Labeling and marketing were
essentially all PGMA planned at that time
and at in our conversation even refused
to require a longer extension cord
which would make easier for the tubers to use
the generators a safe distance from the house.
So I will just say to PGMA, I'm delighted
that you're willing to reopen the standard.
I always am hopeful because I'm an eternal
optimist that something would be done
with the voluntary standard,
but there's absolutely nothing
about finally reopening the standard that
you keep us from going forward with this NPR.
Indeed the rule wasn't reopened until PGMA
knew that there was an NPR that was imminent.
So our staff has committed to and
I'm sure will continue to work
with the industry toward a voluntary standard,
and we are hopeful that we can reach it.
But if not, we should go forward with this
because this is the only way we can save lives.
Thank you again for your hard work.
>> Elliot Kaye: Commissioner Buerkle.
>> Ann Marie Buerkle: Thank you, Mr. Chairman.
I also want to thank the generator team
for all of their work and the works
that they will continue to
do as this process plays out.
Ms. Buyer, you and all of your
team really deserve recognitions
for the efforts you've put into this.
As well to my staff and all of the
commission's staff, thank you for the work
that went into today's NPR package.
I'm a strong supporter of voluntary standards
lieu of mandatory government regulations.
Whenever voluntary standards hopefully
to reduce the risk of concerns.
Congress [inaudible] this preference
for voluntary standards in our statute,
and I believe it is the course
we as an agency should pursue.
Despite Commissioner Robinson's skepticism,
the Portable Generator Manufacturers
Association has advised us by letter
that it has reopened the voluntary
standards for portable generators
to incorporate performance criteria focused
on limiting carbon monoxide concentration.
PGMA's letter states that it is well along the
way in developing a performance-based standard
which will effectively address the hazard.
We should allow the industry, and
I believe Congress would agree,
the time it needs to pursue a
voluntary-- a strong voluntary standard.
Issuing the notice of proposed rulemaking
at this time is only going to distract them
from their efforts on the voluntary
standards and delay the process unnecessarily.
It is particularly true when
the rulemaking package is
as technical and as complex as this one.
In addition, the comment period is only 75
days, stretched over two holiday period.
Our experience of the proposed standards
of recreational off highway vehicles
visibly illustrates this point.
The ROV manufacturers will be the ones who came
up with innovative solutions
to the safety challenges.
And they probably would have done some
work quickly if they had not been obliged
to give priority to our rulemaking proposal.
In the case of portable generators, there
are additional reasons I believe just not--
excuse me-- there are additional reasons
to support work and voluntary standards
in preference to these mandatory regulations.
To begin with-- And I disagree
wholeheartedly with Commissioner Robinson.
To begin with, there are serious
questions about our legal authority
to regulate carbon monoxide
emissions for the generators.
Section 31 of the CPSC clearly states
that it removes the commission's authority
to regulate a risk of injury if it "could be
eliminated or reduced to a sufficient extent
by actions taken under the Clean Air Act".
In my view, it is clear that EPA can
regulate these carbon monoxide emissions
under the Clean Air Act.
In fact, EPA has already
promulgated CO emission standards
for the spark ignition engines
used to power these generators.
Those standards are part of a far
more comprehensive regulatory scheme
that is administered by the EPA.
I do not believe CPSC should be disrupting
their scheme without a strong showing
that EPA is legally unable to continue
tightening at those standards to a level
that would sufficiently reduce
the hazards of concern to us.
Beyond this threshold question, there
are other noteworthy problems raised
by notice of proposed rulemaking.
I'm particularly concerned that we are
proposing regulations in this class,
by my own calculations, significantly
outweigh the benefits,
at least for some of the generator classes.
I also question why we are proposing
higher standards for smaller generators
that the standards for larger generations are
adequate, excuse me, generators are adequate
to protect against the risk of concern.
Under the Consumer Product Safety Act,
before we adopt the mandatory standard,
we must find that it imposes a
"least burdensome" requirement
that adequately reduces the risk concern.
Pursuing our objective in the voluntary
standards arena would avoid all
of these thorny legal issues.
A consensus standard of Congress has
repeatedly instructed us to take this to court,
that CPSC should take at this point.
Thank you again to everyone, and in particular
to John McGoogan for this accommodation,
and for [inaudible] since this morning
in making my participation possible.
Thank you, Mr. Chair.
>> Elliot Kaye: Thank you, Commissioner Buerkle.
We continue to think of your mom and certainly
talking a lot about that and wishing you as well
as possibly in these circumstances.
Commissioner Mohorovic.
>> Joe Mohorovic: Thank you, Mr.
Chairman and to my fellow commissioners,
Commissioner Adler and Commissioner Buerkle.
It's a little bit lonely up here without you.
So as the chairman mentioned, and I know I
speak on behalf of my colleagues that you are
in our thoughts and we look
forward to your return.
Thank as well to the entire generator
team, especially Ms. Buyer, Ms. Little,
and the entire team for a job very well done,
and those beyond the team that contributed
to this notice of propose rulemaking.
I want to also thank my colleagues
for supporting my amendment.
I believe a culture of retrospective
review is an important hallmark
of a sophisticated effective
administrative stay.
As we all know, part of CPSC's mission is to
protect the public against unreasonable risks
of injury associated with consumer products.
We often focus on the word
"protect" as we should.
But we cannot loose sight
of the word "unreasonable".
Our job is not to replace
consumer's own judgment
as their best protection against all risk.
Our job is to facilitate that judgment
by addressing unreasonable risk.
We're supposed to supplement responsible
decision-making not supplant it.
There are some hazards that consumers
fully understand and choose to encounter.
Sometimes they even increase their
risk by disabling safety features.
Those choices are the consumers to make.
Even if we would make different choices,
they are not necessarily unreasonable.
In the case of carbon monoxide
poisoning from portable generators,
I believe there is an unreasonable
risk we should address.
Each year, we see dozens of
CO-related deaths from generator used.
What I find compelling in these
tragedies is not just their number
which is staggering, but also their nature.
These incidents demonstrate that consumers
don't fully appreciate the hazard posed
by CO emission from generators.
It is a latent hazard.
I appreciate Commissioner Adler pointing
out again that has been an emphasis of mind
with this particular hazard category.
It is a latent hazard rather than a patent one.
This hazard is addressable.
There is a technological path
towards less hazardous generators.
And that path is reasonable.
The proposed rule asks industry to do
something that is well within their reach.
And so we have the opportunity to
meaningfully address a hazard that has resulted
in hundreds of preventable deaths.
We should take that opportunity.
As a conservative who believes in the
power of free market to correct itself,
I'm usually reluctant to support regulation.
Most of the time, I believe that government
intervention however well meaning can create
as many problems as it solves.
But sometimes government is in the
best position to solve a problem.
I believe this is one of those times.
Usually government's most appropriate role
is to correct an information imbalance.
When one player in a market has
far more information than others,
the market doesn't function properly.
In some ways, the problem with CO from portable
generators is an information imbalance.
Generator manufacturers, safety experts and
regulators have the specialized experience
to know how serious the hazard
is, consumers do not.
Certainly many consumers understand that
engines including generator engines produce
carbon monoxide.
That's why many consumers take
steps to mitigate the hazard.
However, I believe many consumers do not
understand just how much carbon monoxide
generators produce or how
quickly the hazard can emerge.
That's why even some consumers who have taken
steps to mitigate the hazard are included
in our various sobering statistics.
This size of this knowledge gap,
the gap between the perception
of a hazard and its reality is startling.
For example, consumers understand that running
a car in a closed garage is a lethal mix.
Based on the number of incidents we
see with generators in open garages,
consumers may assume the CO
hazards from cars and generators
and the mitigation strategies are roughly equal.
Our staff has generated-- has
demonstrated just how inaccurate
and how deadly that assumption is.
Our staff has shown that a 5 kilowatt generator
can produce as much CO as hundreds of cars.
And open door isn't enough and a
close one is a recipe for disaster.
Our task is to help consumers
close their knowledge gap.
As with any gap, we can try to
close it from either direction.
We can give consumers more knowledge
or we can bring the hazard closer
to consumer's current understanding.
We are trying to close the gap.
On the consumer side, we have
ongoing targeted education campaigns
and we require warning labels in generators
that is clear and direct as any label I've seen.
Unfortunately though, the
incidents remain pretty consistent.
In closing the gap from the
education side isn't working,
we have to explore closing
it from the hazard side.
We have to look for a solution
that will address the hazard
with as little market disruption as possible.
This package demonstrated-- demonstrates
that we have at least one viable way
to address the hazard of
portable generator CO emissions
through the use of existing technology.
We can reduce generators emissions to a level
that is closer to consumer's expectations.
More over, off-the-shelf
proven technology is available,
a cost that I believe the
market can reasonably bare.
Our statute tell us to prefer
performance standards to design mandates
and this proposal is a performance standard.
Right now, there might be only
one technological game in town,
but it doesn't have to stay that way.
I believe in the power of American
innovation and I would not be at all surprised
to see someone build better low CO
amounts trapped in the near future.
In the interim, even if everyone
uses the same approach,
at least that approach is
readily available to everyone.
In this proposed rule, we are not
mandating a proprietary technology
that would unfairly restrict
access to the market.
This is how CPSC regulation should
function and it's an approach I can support.
In closing, one of my favorite quotes
about this agency's mission comes
from one of our earliest court cases.
In Aquaside-- Aquaslide N Dive Corp versus CPSC,
the aptly named Judge Wisdom wrote that quote.
"An important predicate to Commission
action is that consumers be unaware
of either the severity, frequency,
or ways of avoiding the risk."
If consumers have accurate information
and choose to incur the risk,
then their judgment may well be reasonable.
I do not believe consumers fully appreciate
either the severity of generators see a risk
or the ways of avoiding the risk.
I do not believe consumers' partial
understanding is based on accurate information.
And so, I believe this risk is unreasonable
and commission action is appropriate.
With that, go Cubs.
Thank you, Mr. Chairman.
>> Elliot Kaye: On that note this
concludes this public meeting
of the United States Consumer
Product Safety Commission.
Thank you.