 Good morning. Good morning and welcome to this To this public meeting of the United States Consumer Product Safety Commission We have one item on the agenda this morning and that is a decisional matter on the CPSC FY 2020 performance budget request to Congress at this time, I'd like to entertain a motion if anyone has one with regards to deferring or delaying this Particular hearing there's been some conversation that it may make sense to defer this either to a later hour today Or tomorrow morning depending if schedules allow So I'll entertain a motion if anyone has one and if not then we will proceed as as planned Okay, hearing no motions, then we will continue as planned I Will begin just by saying it's highly unusual for us to be holding a public hearing on our budget request Which is classified as a for official use only until the president submits it to the Congress next week With that in mind Melissa Hampshire the acting general counsel this week has provided all of us with guidance regarding this morning's hearing I would ask Melissa to closely monitor the hearing to avoid any digressions Since we are limited in what we can what we are able to discuss publicly Essentially we are here to discuss the commissioners amendments and staff proposals to staff proposals and not the underlying proposal itself Before we turn to those amendments if anyone has any questions for staff We can bring mr. J Hoffman mr. Baker to the table and they are at the table already It's my understanding and let me just tell you much I appreciate the fact that both your offices as well as OEX and General counsel have really spent an inordinate amount of time in the commission office is helping to prepare each commissioner For today's hearing so I do want to express my appreciations for that So at this time I will open it up to questions from the commissioners I Do not have any questions commissioner Adler so madam chairman I did want to put in a motion and I think this is the appropriate point to do that In light of where the budget document is at this point. I think what which is the point of submission of the Congress I feel no need to have an fo u o designation on the budget document and I realize that's Something that's exceptional, but this will be done for a narrow purpose So I would like to move that we lift the fo u o designation from the package and discuss it in public session Is there a second? Commissioner Adler, I'll recognize you for your motion and ask you to describe it You have up to three minutes to describe it and then after the conclusion. I'm sorry. You already did So once it's been seconded which it has been we will move to consideration of commissioner Adler's motion So I really don't have much to add other than I've looked at all the controlling authorities about whether we must have an fo u o designation for the package and at this point I don't believe that we do and so at least for purposes of this one discussion on this one budget document I would again urge my colleagues to vote to lift the fo u o designation So at this time each commissioner will have the opportunity to question the sponsor of the Emotion and I will begin the line of questioning So I guess my question to commissioner Adler is has this ever happened before that the agency on an f u o f u o budget That we have lifted that designation to the budget Well, thank you for asking that now I get to go into my memory banks And I will just tell you back in the day when the Commission was addressing budget documents We had all of our meetings in open and public deliberation I'm sorry the and I should have explained this I'll ask my questions We'll go around the dais with questions and then at the end will give you the opportunity My concern with regards to this as we've received a very clear guidance from OMB that their preference to this agency is that we do not have An open meeting that this is an f u o u o budget And I guess I would ask you to consider that in in the decision in this motion to to open this hearing and waive the designation has that ever been done before and I Guess my last question would be is there a concern by Defying what OMB's guidance to this agency is that we would number one set an unpleasant president and number two be I Think jeopardizing the agency and the position of the agency and our relationship with OMB Well again, thank you for that and I will say a couple of things first of all This agency unlike some other agencies has a provision called 27 K Which gives us more independence in terms of submitting our budget and requiring us to submit it Simultaneously to the Congress and there's language in 27 K that says when at least when it comes to legislation that we are not required to get pre-approval from any any outside Entity, but I do want to underscore your concern about Being harmonious with OMB and I think to the extent Anybody from OMB watching this discussion would be concerned. I think their concerns are are not going to be terribly Raised or met because I think what they'll find is that this is a very narrow focus of our discussion, but I do think that There's ample precedent in history as I say back in the day the Commission had all of its deliberations about the budget With similar guidance from OMB I should add where the Commission actually deliberated and voted on the budget in its entirety in public I just want to reclaim my time and then I'll ask Commissioner K if he has any questions and To that point that this has happened and there's a lot of precedence for this I am not certain about that and I think that is something we should understand because in at least in recent history There has been no precedent that this budget document would be open that this that the designation would be Waved and that we would have an open hearing on this topic. In fact a public hearing whether or not the document is If the security is waived or not This has never happened and I've been here six years now Back in the day. I don't know that but I know in most recent history. There is no record of this ever happening Commissioner, okay. Do you have any questions for Commissioner Adler? Thank You madam chair and thank you to Commissioner Adler for offering this and Commissioner Adler, could you just maybe expand a little bit on the practice that did occur and what that time period was? To the extent that you remember that please Yeah, again, we had similar guidance from OMB and back back in those days But in light of the Sunshine Act and in light of the Commission's Independence in the strong language that was contained in 27k the Commission on an ongoing basis year after year would have Open deliberations to the point where we would say you'd see people saying I'll give you $20,000 for this project if you'll give me an advanced expert bit additionist sorry if you'll give me three extra FTE's on that I'm not sure that was a prettier sight than this and as I say I'm Perfectly comfortable trying to stay within the spirit of OMB guidance. I think this is a unique situation Prompted in part by my concern that when you the chairman gave your remarks at Iqviso about Furniture tip over I think too many people took that as official Commission policy and It was done in a public setting and I feel that we need to have an equally public discussion about whether that is the official policy Of the Commission So I think it's important that we have this discussion at least today on this budget Thank you, and I do Agree with the chair that this has not been the practice in the time that I've been at the agency But clearly it used to be According to your recollection Do you have some sense of when it changed when it went from the process you're describing to the process that we have Following the last seven years. So I left the Commission for a period of 25 years it changed sometime after I left Thank you It isn't it's not an easy thing to go ahead in my mind and to wave the FOU Designation as a general matter I will say one thing that I do find compelling in this particular Circumstances that it happens to be as a factual matter that the president released his top-line budget numbers on Monday, and so we are even if our agency's specific numbers were not released the budget itself has already been Publicly disclosed and that does bear on my thought process in this no other questions for the commissioner at this time now Thank you. Thank you commissioner K. Commissioner Bianco. Thank you Commissioner Adler, thank you for bringing this motion I can think of nothing that should be more publicly disclosed than how the agency is going to spend Whatever money whatever taxpayer money that OMB and the president decide to provide the agency To carry out its mission. So I do agree that this should be public I also don't see the concerns as Strongly as maybe some others do I've compared the last three years including this year's Proposed public document and they're almost word-for-word with the exception of a few pages and a few numbers here and there so I don't think that this is going to be any big surprise and I Don't think the OMB guidance applies here in fact not only is it guidance But it does specifically say Certain agencies headed by a collegial body are required to hold their meetings open to public Observation unless the agency properly determines that the matter to be discussed warns the closing of these meetings and so on and so forth I I see no reason that the how we're going to be using taxpayer dollars should be closed and finally Whether it's been done before I Appreciate the precedent but one of the frustrations I've had being someone new to the agency is that I hear that a lot Well, this we're going to do it this way because this is the way the agency has always done it and while that is good in many instances the It's not lost on me that the world has changed the consumer products have changed and that best practices Constantly evolve so that to me is not a basis to keep things designated Confidential that in my opinion should be discussed publicly. So thank you Commissioner Adler and I would support that motion Commissioner Feldman Thank you As has been mentioned It feels like we are in a bit of an unusual situation today This is the first time that I've had to meet as a member of a collegial body to discuss in Public a budget request like this but listening to the conversation today and taking a look at how the agency Decision-making procedures and directives Speak to this situation It would seem to me that that there's no treatment within the DMPs or or any Commission directive to Treat internal budget documents as privileged perhaps that is something that we might want to take a look at But under the DMPs, it would seem to me In terms of a straight reading there that Commissioner Adler is absolutely within his rights to request a decision All instead of how we have normally treated this budget process Voting on a budget request Internally via via ballot behind closed doors. I think all of us when at some point in getting here Have spoken to a commitment to agency transparency And and to do everything that we can to operate this agency in in in the open sunshine I think that's a good thing. I think that leaves us in an awkward situation Where we are here today to talk about amendments to an underlying document that's marked fo uo and it It seems that not lifting the fo ua designation at this point Would would not serve the underlying goal of full transparency. Therefore, I am inclined to support Commissioner Adler's motion here But I want to respect CPSC's role as an independent agency and to preserve the relationship and the deal that was cut with OMB with respect to The the the budget number that that that's in front of us today I'm inclined to support your motion as I said, but I do want to respect that we not dive into specific conversations about Negotiations with the with OMB over the the pass-back amount And to the extent that we're entertaining amendments here. I think it's critical that we Do so within I towards preserving the agreed-upon limit that that that exists that that that that set out there I think, you know reorganizing certain priorities within You know within the agreed-upon limit would be appropriate. I think that's consistent with the guidance that OMB sets out in circular a-11 so Those are my thoughts Thank you Commissioner Feldman, I just have a couple more questions about your motion Commissioner Adler I guess again, I'll reiterate my concern and some of my colleagues have addressed it But I feel that we are in defiance of OMB and that we are disregarding their guidance to us Yes, we are an independent regulatory agency But I value the relationship with OMB and there is a process and from what I'm hearing from this dais this morning There's some confusion as to what the purpose of this budget is which is to finance this agency Versus what our operating plan is and that is how we use those monies and how we designate those monies and that Historically and I do agree with Commissioner Kay on that issue being public and that has historically always been a very Very public discussion about how this agency will use its money how we will move our FTE's around how we will take what OMB has given us and how we will implement that money This is a part of a process here, and we are just I think Putting a stick in the eye of OMB and defying what they what the guidance is to us and saying Your process be darn, and we will and we will proceed as we see fit Not as you see fit, and I am very concerned about what that does to our relationship with OMB which here to for I Think has been very good, and I've appealed the last two budgets and and both of those budgets have come back with a higher number So I have grave concerns about that, and I'd like you to address those issues. Well. Thank you very much, and I would Challenge the premise of your statement, which is that it's defying OMB I think what we're doing is carrying out a strong congressional mandate that applies to this agency is embodied in section 27k and I think as I say anybody from OMB watching the discussion today I think they would find themselves not in the least concerned about the Discussion we have and I think that Commissioner Feldman putting a boundary about what the discussion is going to be makes exact perfect sense to me, so I Do think that we're perfectly appropriate at this point in lifting the fo uo Designation and I think as I say at the end of the discussion Anybody from OMB would probably have a big yawn about any defiance of them, but this is also carrying out our mandate under the Sunshine Act and under the Transparency approach this agency's always taken to have at least a limited discussion about some of the issues in the budget And and reclaiming my time I'd like to just talk a minute about the apparent confusion about the Role of the budget and financing this agency versus the role of the operating plan and Where that is the appropriate forum to get into these kinds of discussions if you could comment on that yeah So Speaking as a commissioner and not as the chairman There are only a few points in a given fiscal year when we get to put in concrete proposals One of those is the budget one of them is the operating plan one of them of them is the mid-year review to cut us off From putting in substantive proposals into the budget Rather than in putting those into the out plan it makes no sense to me there there will be follow-up I think from all of us to the out plan and in mid-year review I'd like to reclaim my time I believe the the time for us to have inserted our thoughts and our wishes was in the Was in September when we submitted our budget to OMB not now that the ship has sailed Well again reclaiming whether I have any time or not what makes this unique I repeat is that when the chairman gave a speech to Iqviso one of the things you did was to lay out I thought a very thoughtful approach on furniture tipover But that was done in a very public setting and I had no advance notice about what was going to be said Let me let me finish if I might and so I think we need to have a At least as public a discussion about what our policy is going to be on furniture tip over here as we did Was done at Iqviso and I will just say that I believe that you as acting chairman and commissioner K both understand the What shit the chair that is the that is the speech we give at Iqviso It is an opportunity not to for me to outline the agency's policy But for me to outline my priorities and what I think this agent should be focused on Which we will continue to do in the operating plan and that is the topic of tipovers Which we consider to be one of the top hazards that we deal with in this agency So I have it every right to do that I'd never once said it was the policy of this commission, but rather it was my own views commissioner K Thank You madam chair and You're correct. I sat in your seat, and so I completely understand your frustrations And I'll just reiterate that what makes this unique for me In this instance is just that the budget has already been released and again I understand our number has not been released, but I do think that that has factually changed the analysis for me and so but everything else you're talking about and the Wanting to respect certain relationships and how we've done things and Certainly the progress of the chair. I completely agree with I would only push back a teeny bit gently on the idea of Including substance at this stage. I recognize that that's not ideal But I do think we first of all have at least one new commissioner from when we did it last time or at least Commission to well, I think you might have been here at the one we did the September one But certainly in terms of onboarding and people understanding and so it might be that we are a little bit Earlier in the game next budget cycle, but I do think considering where we all are right now that it's certainly Important that we have a chance to air these issues as commissioner Adler mentioned, but I've no further questions for him Thank you. Thank you commissioner K. Commissioner B. Oko. No further questions. Thank you. Mr. Feldman No further questions. Thanks Having heard no further discussions. We'll move to vote on the motion commissioner. Adler. How do you vote? I vote aye Mr. K. I Mr. Biakko I Mr. Feldman I and I vote no the a's are for the nays are one the commissioner. Excuse me the motion by commissioner Adler is adopted I think at this point we will now turn to any Amendments that the commissioners may have with regards to the FY 2020 budget And I believe we will begin with Mr. Commissioner K. I will recognize you for your amendment I will ask you to describe it up for two three minutes and after conclusion of that I will ask for a second Commissioner K you can proceed. Thank you. Thank you madam chair, and I'll just keep it simple And even though we did waive the designation. I think maybe by habit I'll probably still speak more at a higher level anyway The purpose of my amendment is to adjust the top line of our budget request and in a manner that would Go upward and I think reflect really the bare minimum of What this agency knows it needs and I think that's important to emphasize what we know we need To be effective on the hazards in front of us and the hatches hazards that are coming We have spent many years Trying to work within the framework of how the back and forth occurs with OMB and We did that certainly during my predecessors time Both of my predecessors times that I witnessed my time and your time and unfortunately I just don't think that we are having success with that and I do view the number sadly that we get from OMB despite best efforts from our staff and the OMB staff I do think that that has become an anchor for us that has an impact on the hill and Though we hope always that there would be potentially some deviation upward from the hill It seems we're stuck in this space and we also know as a Matter of how we've been funded that it is eroding our ability to meet our core functions And every year that we don't keep pace with inflation and we aren't able to keep pace with costs We are able to do less and less for the American people on things that we both know about now and we'll learn about and I think that because we are an independent agency. We can respectfully disagree with the office of management and budget and Put forth a number to the United States Congress that is more reflective of what would be needed to be done To serve the American public. Thank you. Thank you commissioner Kay. Is there a second? Second Having heard a second will now move to consideration of commissioner Kay's amendment for discussion of the amendment I will recognize each commissioner in the usual seniority order Except for that. I will call upon the amendment sponsor last commissioners may ask questions of the sponsor if they wish They may yield part of their time to the sponsor if an immediate answer is needed Each commissioner will have five minutes for discussion of the amendment. So I guess I Have more of a comment than a question and well, I of course welcome a higher appropriation from Congress. I See this amendment is really not necessary today I think today's proposal is to outline how we would allocate resources if we are funded At the level of the president's budget It does not prevent Congress from leaving us more or from for us advocating for more from the Hill And I think that the appendix included in our underlying document is very clear It highlights what the unfunded priorities for this agency are and it signals to everyone loud and clear That we can always use more money. I've been very vocal on that issue and Thus I have appealed to OMB twice and two budgets that I've received from them I've made appeals that we need more money just to keep current with the inflation However, I just don't think at this point this amendment is necessary Although conceptually and I don't think it's any kind of a mystery. I do support a higher appropriation number for this agency Commissioner Edler. I'm sorry Thank You madam chairman I Only support the notion contained in the amendment and I Want to go out of my way again to thank the chairman for her vigorous Lonely courageous efforts to get more money for this agency I think you've been successful and a lot of other agencies and departments have been Welfly unsuccessful and I attribute a lot of that to your your skill and your friendships that you formed Around the government There's no doubt in my mind that we need extra funding There's no doubt in my mind that we probably need funding even beyond what commissioner K has requested And this is one of those where I really do lie awake at night fretting about what the proper approach would be because to me at some point this does feel like the point you were making about the amendment I put in earlier that it It's a it's an important gesture I would hope that commissioner K would write a vigorous descent to any vote that we take but I am I'm Conflicted about whether I want to to vote for it in other words whether My voting for this amendment would add the slightest until a bit of a hint of extra oomph To getting a higher budget for us if I thought that it would I would immediately and wholeheartedly support it but at least at this point I've got Many of the same reservations that you've expressed madam chairman Thank You commissioner other Mr. Bialco, thank you Thank You commissioner K for this proposed amendment. I too. I'm glad you brought this to to us for consideration I think that Asking for an additional amount of money is never a bad thing I also have the same reservations that commissioner Adler does about at this point asking for a specific number I don't know that we would be successful However, what I see in your amendment as important is that you are Speaking and please correct me if I'm wrong, but you're speaking to some priorities that you think the Commission should have that At least as this document that will now be public is drafted. We've left As for lack of a better term not a priority So I do agree that some of the unfunded the priorities that will be left unfunded are important and to the extent This amendment or any of the other amendments proposed today can do anything to To help that out in that regard I would support it. Thank you commissioner Bialco commissioner Feldman Thank you acting chairman I must reluctantly vote no on this amendment out of respect for the agreed-upon funding level with OMB I agree with and I support all the underlying programs that your amendment seeking to fund I would be a solid yes on this amendment if it sought to identify budget neutral offsets from within the existing top line allocation unfortunately does not the Budget request that we're voting on today is as the acting chairman laid out one step in a larger process I I support continued advocacy to fund these items with respect to outreach to congressional Appropriators, but because of the way that this is drafted right now and out of respect For the the negotiation process with OMB and the top line that we've mutually agreed upon I'm reluctant no on this amendment Thank you commissioner Feldman does anyone have any other questions of commissioner k commissioner k you may May I speak thank you. Well the good news is i'm hearing unanimity The bad news is the wrong kind What I would ask my colleagues recognizing where the votes might be going is to See how this will have the vote it will obviously go down But see how this process plays out over the next number of months And if it turns out that unfortunately We are not funded at a materially different level than we have been for the last number of years in the need to meet inflation and any Welcome staff salary increases anything that we can't Accommodate does continue to eat into our base and our ability to provide core safety work I would ask that you would consider As we go into the next budget cycle us asserting our independence a little bit more And having a willingness to start in the earlier part of the process To maybe have a higher number that would be my request other than that. I have no further comments. Thank you Thank you commissioner k hearing no further discussion. We will now move to Vote on commissioner k's amendment commissioner edler. How do you vote? Um, I abstain from the vote I vote I I vote no but let me also just say I wish I was as articulate as commissioner feldman because he couldn't have said it better But I'm I'm sorry for this particular amendment. I would have to say no In commissioner feldman I vote no And I vote no The a's are one the nays are three and there's one abstention the amendment by commissioner k is not adopted Are there any other additional amendments here at the dais this morning? Madam chair, I have a joint motion from commissioner k and myself regarding furniture tip over Commissioner edler will recognize you for your amendment ask you to take three minutes to describe it and at the conclusion I will ask for a second Uh, so uh, commissioner k and I have a proposed an amendment to the budget Request to congress that would add as a project the drafting of a notice of proposed rulemaking for children's clothing storage units under section 104 of the consumer product safety act Let me first tell you what it isn't and then I'll tell you what it is We have not proposed to halt or slow work on the development of a broader rule under section seven and nine of cpsa To address furniture tip overs We understand that this is a Proposal that's limited to a subset. We think it's a substantial subset But it's a subset of clothing storage units that prevent hazards present hazards to children But just because we can't protect all kids doesn't we mean we shouldn't protect as many as we can as quickly as we can Uh, and I want to note in passing that uh, I think we're all aware that there's a piece of legislation called the sturdy act Which if it were enacted would solve a lot of our problems because it would enable us to promulgate in a very streamlined fashion A consumer product safety rule for clothing storage units that would protect all children because it would address all clothing storage units Um, what we propose to do is just apply the technical and engineering research. It's underway already for a rule under section seven and nine Uh, but this is a much much faster and more efficient approach to doing that And let me just note in the 10 years that we've had section 104 The agency's drafted roughly 20 Safety standards under section 104 in that 10-year period. We have drafted one standard on the provisions of seven and nine Uh, the metaphor I use or the analogy I use is this is inciting a stampede of turtles through a vat of peanut butter the pace When you look at the differences between drafting a rule under section seven and nine and drafting a rule under 104 They're just huge differences We have well over a dozen findings and steps that we have to make in order to draft the section seven nine rule And I got to admit over the years of watching these rules being drafted I have yet to see a single rule that was improved by these cumbersome procedures And in sharp contrast section 104 applies the traditional Common informal 553 rulemaking provisions of the administrative procedure act with one additional step Consulting with outside group groups and one additional finding namely that the Standard be more stringent Than a voluntary standard And I would also note to date With all our 20 rules. We've never had a legal challenge to any of the 104 rules And I want to repeat what I said, the madam chairman I very much appreciated the language you used and the proposals you made at ikviso I would not necessarily quarrel with your call to Raise the weight of for measuring tip overs from 50 pounds to 60 pounds or lowering the height requirement to 27 inches But there's still some issues that remain to be addressed. For example Children not just hanging gently from a clothing storage unit But climbing up at children pulling out multiple drawers from a clothing storage unit And clothing storage units being placed on carpets and rugs with uneven surfaces In other words, there are a lot of issues that remain to be addressed that I think We need to do either for a 104 or a section seven and nine rule Uh regrettably the voluntary standard process has not been moving very fast And we've seen a fair amount of foot dragging from the industry and I find that very sad So I think we are at a point for decisive action By the way, nothing would make uh commissioner k or me happier than being able to find a good drafting of a An astm voluntary standard That would allow us not to do a 104 rule and not to do a section seven and nine rule But i'm not holding my breath I know we've all met with parents of kids killed by tip overs And of all the meetings i've attended many of which keep me awake at night This one lingers even during the day I think the parents group made such a compelling case in such a thoughtful substantive Manor uh that I think I found it compelling and I hope everyone else would in closing If we're to carry out our critical mandate to protect our most vulnerable consumers Commissioner k and I believe it essential that the commission declare now Our intention to use the full panoply of tools available to us to meet our mandate Thank you. Thank you commissioner adler. Is there a second? second Having heard a second we will now move to consideration of commissioner adler's amendment For discussion of the amendment once again, I will recognize each commissioner in the usual seniority order Except for that I will call upon the amendment sponsor last So I will begin with myself I I don't intend to support this amendment. I I frankly don't think this is what congress intended when they Enacted section 104 the consumer product safety improvement act I don't think they intended to allow this type of regulation I don't agree that a clothing storage unit such as a dresser becomes a durable nursery product Just because it is put into a child's room And let me pause here for a minute just to say that the tip over issue is a priority of mine And I frankly think of this agency We are right now in the middle of some significant testing That is already been outlined to address some of the very issues you speak of in terms of Dynamic testing the drawers how kids climb on dressers to address some of those and answer some of those questions I just don't think that this is the proper mechanism to get to to a solution There's another problem too with with commissioner adler's amendment commissioner k's amendment that there is always already a voluntary standard That seeks to prevent tip over of clothing storage units But it does not and there's no specific provision in that that applies to children's dressers or even identifies any subset Of products that are intended for children under age five It is a standard of general applicability And it would be highly artificial to say the very least to carve out a subset of those dressers and adopt a mandatory standard just for those dressers And again, my opposition to commissioner adler and commissioner k's amendment does not mean that I am unconcerned about tip over deaths and injuries as was outlined by commissioner adler at ecfasso. I did make it a priority of mine and I have Indicated what my preference is that we direct the astm the voluntary standard to to Begin and to get to 60 pounds and to end the fruitless discussion That's going on for many months to commissioner adler's point. There has been a delay We needed to to jump start that and I believe we have And also they will be balloting for the 27 inches and above so that part of the standard will be changed But this is a multifaceted approach that One there is not one silver Answer to this issue there is not and it will require the commission and the agency to look take a multifaceted approach And that will mean a very stringent educational campaign as well But I don't think that what commissioner adler and commissioner k are proposing will move things along any quicker In fact, my concern is that any distraction that would have in the current voluntary standard and trying to carve out a narrow Selection of dressers designated for children would actually distract the voluntary standard Participants from doing what now they have a clear Direction and mandate to do and that is to get to the 60 pounds To to look at dressers that are 27 inches and above and beyond that What our staff is doing to do all of the testing that needs to be done to hopefully provide us with some answers I've met with the parents the pats. We've met with them attic for so we've met with them in my office and They have the most compelling argument to do something about this issue and we've taken that to heart as an agency I just unfortunately can't agree with this approach. I think it It just doesn't get to the heart of the answer and it it's just not the right way to go I don't think congress ever intended the 104s to be used that way commissioner k I guess I would first yield to commissioner adler if you had something you wanted to say I do have a couple of thoughts First of all, if ever there were a situation where congress approved of our moving ahead on a standard like this, this would be it I've talked to The parents of danie keiser for whom section 104 and the section 104 provisions apply The idea that we would have this artificial narrow limiting of a standard It would be alien to them and I just want to go back to what the scope of the voluntary standard The standard that's under consideration right now And read what it's intended to do It's intended to reduce Injuries and deaths of children from hazards associated with kip over From clothing storage units such as chest door chests and dressers This is intended to cover children up and to including age five This is precisely the group that our amendment is addressed to so I have little doubt that That the people who wrote section 104 when they wrote it the idea that we could not Take the provisions that are specifically designed to protect kids and use them to do a 104 rule I think would be alien to them And I may just add one quick thing. I don't believe we have a clear mandate or at least I don't think think that We are sending a clear mandate to move to 60 pounds when I've talked to staff They say 60 pounds is better than 50 pounds, but we're not sure that's the right test Because it doesn't reflect the dynamics of children climbing up clothing storage units I apologize. I'm happy to hear to the chair. Thank you commissioner k First of all, we've gone out of order because it was as you two are both the sponsors of this amendment So I think just procedurally We probably I should second the motion Just because you probably shouldn't second your own motion Just for the record. So I will second the motion. Is it okay with you? Absolutely, however, you'd like to proceed And then I will proceed to commissioner k Okay, thank you, madam chair I'm pleased to join commissioner adler in proposing this amendment I don't think I need to spend a lot of time on it because he covered it so well I would Say that I agree that there should be a multi multifaceted approach and if there's any issue that Should call for us Using all the authorities that either we have or we believe we have I think that this is one of them It doesn't as commissioner adler said it doesn't in any way conflict With other work that we're doing in fact it complements it well I do think that it would sharpen our ability to move more quickly on figuring out the core technical issues that need to be resolved And I don't believe that it really Should cause any Additional work or distraction in the voluntary standards body because it's our burden as commissioner adler said to consult with the Voluntary standards body and I think by the fact that there already is the standard that can qualify as consultation So I don't think that we would need additional Work Certainly anything that would be particularly onerous for a 104 in the voluntary standards body. So I hope that We could those who would be inclined not to support it would reconsider And realize that we really should be sending the message and marshaling all of our resources and figuring out Anything that we can do to finally solve this problem. Thank you Thank you commissioner k commissioner bielko. Thank you um commissioner adler and k I think that this is a very important proposed amendment For some of the reasons that you both just raised including commissioner adler. I too was um Disturbed I guess With the acting chairs Announcement at icfasso She I realize it's a priority of hers and I and I do think it should be a priority It's a priority of mine and it sounds like it's a priority of the agencies But she did at that time Suggest that she directed staff But I believe that to direct the staff we need to have some something to direct the staff With and we haven't had at least I haven't participated in in any discussion So I would like to see us move that forward I too believe the voluntary standard is not working And I don't think that this proposal was a distraction to that I think they've been distracted for years and haven't um really reached an answer and I know I have some ideas that I have not only raised and conveyed to the staff but Haven't had a chance to really expand upon so I I do think that this is an important Thing that we should be spending our resources on the trouble I have with your amendment is that I can't legally get there under 104. I think that To try to put this under a durable good if it's marketed for children's Use or for use in a children's child's room. Lee is too subjective. It leaves too much room for um labeling Loop holes if you will and it does lead to several things that we would need to change as you point out including the CFR 1130.2 which is the requirement for consumer registration of durable infant and toddler goods So we would have to overcome that I I would like to see us simply direct the staff To move on this and develop a rule that we can mandate for these products to address the problem because The way it stands now it doesn't appear to be Working Thank you commissioner Feldman. Thank you acting chairman And thank you commissioner adler for bringing this up I do echo your diagnosis of the underlying problem and I am very concerned about the issue of tip over I've met with the families. I hear and understand the frustration about how long this process is taken It is something that this agency has been grappling with Long before I joined this body um and I I Echo the concerns that i'm hearing raised by you commissioner adler and commissioner biakko About the way in which the acting chairman's announcement at ikviso was rolled out But maybe more so the the way it's being understood and and discussed Among groups and and industry It's not the agency's position to move from 50 to 60. It this is not something that we voted on It's not commission capital c policy But I I I think that there is still a lane for the the the the full commission here to vote and act um I understand from industry and expert agency staff that simply moving forward from 50 to 60 Doesn't fully answer the question in terms of addressing the idis and the data from the field that they're seeing This the the dynamics at play with tip over incidents appear to be more complicated than the simple static hanging of a of a weight That test method may not adequately address the uh the the underlying hazard that that that we would need to solve in order to um In order to present a solution that that offers real and meaningful change to protect to protect children um But I I I I I I want to move forward with a mandatory standard um if only to encourage discussion in the subcommittee to uh to to get to a place where where they're contemplating a A more strenuous voluntary standard, but if not to backstop Uh to backstop the matter with with a real and meaningful mandatory standard that I think we would be well within our rights under section seven Uh to address the current voluntary standard Uh does not Adequately reduce the risk of injury and we're seeing that in incidents And I also question whether the the existing voluntary standard Uh is one with which there's substantial compliance. There seems to be an awful Large number of non-compliant product that we continue to see in the marketplace and that's of great concern Those are the two threshold questions that we as a commission would need to get at In order to move forward under section seven of our act And I think that that's something that uh is worth considering Um, I appreciate chair, uh chairman headler commissioner adler's Amendment, I do not think 104 is the right route here. I question How we would go about making a determination Of certain product falling within the definition of durable nursery product And to the extent that we were to pursue a section 104 rule here I think that you were only touching a narrow subset of the broader product category and not fully addressing the issue I'm wondering whether then you are creating a perverse market incentive for furniture manufacturers to um Market product as adult product that they otherwise would would Market with all kinds of indicia that it's intended as a child's product um And I question Based on a review of the idei's and incident data that exists That of the product that we see involved in in Injuries and fatalities How much of that would actually rise or fall within the definition of durable nursery product? I don't have a good answer for that and therefore I question whether going the 104 route is more of a solution in search of a problem I don't know what the ultimate impact would be but like I said Uh, I I I do support moving forward and accelerating the commission's efforts with respect to a mandatory standard That's why I have offered along with commissioner biakko Uh, my amendment three which would uh do something very similar to uh the Mandatory standards table that's included in the underlying document here. Um, and and what our amendment would do would simply be to uh for fy 2020 Contemplate moving from uh data analysis to moving forward with a full ampere with respect to csu tipovers Um, I also would support uh Beginning that process even sooner than waiting for 2020, but that's what we're talking about today Thank you commissioner adler Thank you very much, and I appreciate hearing the strong support from all of our colleagues about the need to move forward quickly And the need to move forward on a mandatory standard At least as a way of getting attention of those involved in the development of the Voluntary standard in sending a signal to them that uh that progress has not been good and that we would expect a greater progress Just a quick word about the legality of using section 104 if you read section 104 carefully, which I have It provides for the adoption of any voluntary consumer product safety standard for Durable infant or toddlers products in other words these words clearly cover any Voluntary standard that is for durable infant toddler products whether or not the standard also Covers products that are not durable or infant products It requires only that they be four durable infant products Which clearly the astm voluntary standard is and it never says and there's no Hint in the statute that the voluntary standard be intended only for such products And I worry about poison pills I worry about uh the development of a voluntary standard say for example for infant bed rails Where somebody would then say well we want this to extend to include Infant bed rails that are used in hospitals Which is clearly outside of our jurisdiction and then if you say well since it's broader than what we intend to regulate We can't we can't regulate it seems to me that as long as it's clearly focused on the product that we're intending The fact that there are additional products that we can't touch To me shouldn't be an argument against the legality of doing it. You may as a matter of policy Disagree, but I would at least urge you to to to consider the legality of it and the only and again I I appreciate the comments of my colleagues and my only further response would be that It is quite accurate that we cannot protect all But to me that doesn't mean we shouldn't try to protect those that we can and move vigorously To protect the rest in due course and again, I thank my colleagues Thank you commissioner adler. Is there any further discussion? May I respond briefly let us go excuse me. Let us go in order commissioner k. No, thank you. Mr. Ryoko. No, thank you Yes, please In I appreciate commissioner adler's comments In discussing the legality of moving forward with a designation of durable nursery products on a section 104 rule I I I would leave the legality of that to an article three judge But it is my view That moving forward in that direction is certainly opening the agency up to to challenge I I don't have confidence that that the agency is going to get it exactly right with respect to What falls within durable? Nursery product. I think what I fear your amendment would be setting the agency up for Is a bit of a false economy where yes under the expedited procedures of section 104 We could move more quickly to a Voluntary to a mandatory standard theoretically Given the the the challenge that that route is likely to engender I I worry about how long the litigation process would delay us ultimately getting to a In enforceable mandatory standard that withstand scrutiny I also have concerns about Your amendment proceeding under the 104 route Taking staff resources away from pursuing a mandatory rulemaking on section 7 or 9 Which I think we would be on stronger grounds to proceed And which has the added benefit of being broadly applicable through the entire product line And not just a small subset of clothing storage units So thank you Mr. Adler Just to briefly respond First of all with respect to This being a matter for an article 3 corp for as a starting point I think it's got to be something for the commission to make its own legal decision And I've noticed my colleague here is not shy about Offering interpretations of the law and the commission sits down and we decide whether or not we want to proceed with those And it that is a proposition with which I'm in strong support The second point I would make is that to the extent there's a legal challenge to a 104 I can virtually guarantee there will be a legal challenge to any section 7 and 9 rule since we've had it for almost every one of those So i'm not sure that gets us any any loss But you do raise one concern that I have and I and I freely Acknowledge that it is a a hypothetical concern and that is whether in drafting a 104 will we in any way diminish What we're doing on a 7 and 9 rule and so as far as i'm concerned part of the mandate to staff ought to be Do work on developing the technical requirements the engineering requirements And then at some point come back to us and tell us what those added resources would be if we were to do a 104 rule But again, I truly appreciate your comments Is there any further discussion on commissioner adler and commissioner k's amendment? I actually have one thing I wanted to highlight I think it's terrific that the five of us actually agree on this point and that we want to spend our resources Pursuing this particular matter So I think we are at a point and I think it's an important point to highlight that we are looking to spend And why we're discussing this at at the budget point is that we want to spend our resources It's the procedure and how we get there, but I think it's important that we're on the same page on that So I think all of you for that Is there any further discussion? Having heard no further discussion. We'll move to a vote on the amendment commissioner adler. How do you vote? I? Commissioner k I Mr. Bioko No Commissioner Feldman no And I vote no the a's are two and the nays are three the amendment by commissioners adler and k is not adopted Madam chair, may I just ask for a A Matter of comity if you will Commissioner Feldman mentioned that he had a Related amendment with respect to furniture tip over and I would urge us to take that up next just as a logical Next step for the discussion So I will ask if there are any other amendments at the dais this morning and I will Expect to hear an answer to that I have an amendment this is Feldman and bioko three the purpose of this amendment is to recognize Exponited commission promulgation of a mandatory standard to address the risk of injury and death associated with furniture tip overs in the budget request This amendment would do Something very similar to commissioner adler's amendment that we just considered But instead of moving to a 104 consideration of a mandatory standard It would amend the mandatory standards table of the fy 2020 performance budget request to congress By striking data analysis in the fy 2020 request column and inserting npr Is there a second second Having heard a second We will now move consideration of commissioner Feldman's and bioko's amendment Again for discussion. We'll recognize the commissioners in order of seniority and commissioners may ask questions of the sponsors If they wish and may yield part of their five minutes to the sponsor for an immediate response Otherwise the sponsoring commissioner will have Five minutes for discussion of the amendment following the period of questions So I want to first of all thank commissioner feldman and fissioner be a commissioner bioko for offering this amendment Um, I think that addressing the serious safety hazards posed by furniture tip overs as commissioner bioko just mentioned Is something we all consider a priority of this agency I am still hopeful that the voluntary standard process will bear fruit Particularly with regards to increasing the test weights to 60 pounds and expanding the scope To include units between 27 and 30 inches in height within the scope of the standard I would like to just kind of reiterate that that's those are an interim steps that we talked about at if so Not meant to be of the the answer I think the agency is spending resources and will continue to spend resources Looking at many angles and many aspects of this issue in order that we can Find out what is causing these tip overs and how we can prevent these injuries and these deaths So I want to thank them for um Introducing this amendment and I plan to support it. Thank you commissioner edler Uh, thank you very much and I want to uh, thank and commend uh commissioners feldman and bioko for coming up with what could be best called a plan b Which is always important And um, I I am comfortable with this and I'm delighted to support it because uh, at least this way we have an expedited approach Uh, I'll just say that nothing prevents me from monitoring this and if it looks like we're making good progress and uh, if Providence smiles that we see the uh voluntary standards sector coming up with a good standard that would be ideal So, uh, I do Support this as a plan b with the With the added caveat that if I don't think I see good progress I may come back and gently remind my colleagues When we get to mid year review that there is an alternative approach. So thank you very much Thank you. Commissioner edler commissioner k. Thank you, madam chair and thanks to our colleagues for this amendment. I agree I think it's an excellent plan b Uh, we actually were on a glide path a few years ago to move toward an npr and for budgetary and other reasons I think we got sidetracked and so if this amendment were to pass Uh, this would be a positive, uh correction course back to I think where we were going I do think that we should follow this up though through the mid-year and the operating plan process to make sure that we are really focusing on the actual technical work that needs to be done To move this forward and identifying and helping staff work to identify Those the additional testing that might be necessary providing the resources to doing it So that we can continue to expedite this based on this new Energy that we're hoping to put behind it I will also say though that once we do identify the technical parts. I think the commission has a role to play into in Shaping how that npr looks because nprs can go on forever They can include provisions that in theory might seem really important and might scratch an economical itch or otherwise But I don't know that they're really necessary at the npr stage is a delicate balance Of putting out there for notice and comment what needs to be in there But I don't think that we need to overdo it and I think that we all Should pay close attention and make sure that the npr if one is drafted and I hope one will be Covers the bases and doesn't really have to go beyond that and I think that that's something we all should keep monitoring But happy to support this. I hope it passes It sounds like it will and I think this is a good day for trying to move forward on this issue. Thank you Thank you commissioner k commissioner bieco Thank you, and I appreciate the support and the comments that were made. I think there are lots of valid ones With which I agree. I don't want anything new to say so I'll just pass to commissioner felden Again appreciate the support and the nice comments. I would Move that we we uh proceed to a vote Any further discussion Hearing having heard no further discussion. We will move to a vote on this amendment commissioner. How do you vote? I vote I commissioner k. Hi commissioner bieco. Hi commissioner feldman. Hi, and I vote yes the Yeas the eyes are five the nays are zero and the amendment is adopted Are there any other amendments here this morning? Madam chair, I would like to Be an open discussion on feldman and bayako number four This amendment is a relatively simple amendment to address child nicotine poison prevention Enforcement in the underlying budget request It would make an amendment to the f y 2020 budget initiatives and activities entry of the performance budget request to insert An item on the child nicotine poison prevention act enforcement to Outline the broad strokes of the requirements under that act and to state explicitly that the commission contemplates using a portion of the f y 2020 request allocation for response to support the identification and removal of hazardous product liquid nicotine containers that do not comply with the special packaging requirements of 16 cfr 1700 point one five Thank you commissioner feldman is there a second second We will now move to consideration of commissioner feldman's and commissioner bieco's amendment Um, I and I will begin the line of questioning. I really don't have any questions or comments Other than say I plan on supporting the amendment. Thanks. My thanks my colleagues for offering it commissioner adler Thank you, madam chair. Uh, I also plan to support this and I do want to uh, I know it's a joint mesh Motion from commissioner bieco and commissioner feldman, but commissioner feldman I think you deserve special Recognition you've raised this issue with the commission. You've been a vigorous advocate for enforcing this provision of the law I think this will protect kids in ways that maybe wouldn't have occurred if you hadn't come on board and done it So, uh, thank you so much for bring bringing this to our attention Missioner k Thank you madam chair. I also plan to support it. I want to thank the both of you for your advocacy and passion on this issue I do I believe both of you have made a difference and that will lead to safer outcomes and i'm excited to support this amendment. Thank you Mr. Bieco, thank you, and thank you for your comments commissioners I um, I do think the agency got off to a little bit of a slow start on This particular statute and to the extent that additional resources or funding will help move that along I think we should commit them and therefore Why I joined uh, commissioner feldman in proposing this amendment Thank you commissioner feldman I have no additional comments other than to say I I appreciate the Uniformity of of support and kind words that i'm hearing right now I think that this is too important an issue for it to ever become divisive. I don't think it is That's why I'm glad that that we're in a position today to vote on this and I would move that we do so Thank you very much. I have one, um, technical change just to your amendment and it just is the consistency of the language But I would entertain any any, uh technical Changes that you would like to see addressed. It's just that So that it would be consistent to address address child nicotine poisoning prevention act And it's that's how it's referred to under purpose and then in the paragraph the last paragraph, but Underneath on page 13. It says child liquid nicotine. So then if we could proceed to consideration as modified So we'll strike the word liquid liquid out of that The phrase Are there any objections No objection. Thank you Now hearing no further discussion, uh, we will proceed to vote. Uh, commissioner adler. How do you vote? I commissioner k I vote I on the modified amendment. Thank you commissioner bielko. I Commissioner fevellman. I and I vote I the eyes are five the nays are zero and the, um amendment is passed Like commissioners fevellman and bielko. Are there any other amendments of the dais this morning? Acting chairman, I'd like to proceed to consideration of fevellman and bielko amendment number two Excuse me. We're going to just take a five minute recess. Uh, since commissioner fevellman or k left Thank you all very much. We will now resume our hearing. Um, and I believe when we left off commissioner fevellman You were about to introduce another amendment. Yes, ma'am. Uh, I was hoping that we could proceed to consideration of fevellman and bielko amendment number two This amendment would include funding for agency data and information technology priorities In the underlying budget request and it would do so by seeking to identify Offsets that don't do not negatively impact staffing or programmatic spending that's critical to the agency's Mission to protect the public from unreasonable risks of injury associated with consumer products This amendment does in large part what k one Saw to accomplish in terms of identifying items that had been Left in the unfunded portion Appendix a of the underlying document to move that to the funded document That the the key difference here is that this addresses only the Expanded data analysis and i-t systems and security upgrade items that were both allocated at two million each and would direct staff to identify Offsetting amounts from within the existing budget to make sure that That that that this amendment gets in under the agreed upon cap Um, I would move for consideration in this amendment Thank you commissioner fevellman. Is there a second? I second it We'll now move to consideration of commissioner fevellman's and bielko's amendment I will begin with my line of questioning I think it's no No mystery how much In support I am of enhancing our data and technology support Um, and I just want to make that very clear Um However, it's my understanding that the appropriate offsets That and you're saying you don't want it to impact staffing or programming But have those offsets been identified? It would direct staff to identify those offsets and so This is why the these two initiatives were included in appendix a Um Because there was no offset to consider so unfortunately, I can't I can't support this amendment at this time I you know, I couldn't be any more supportive conceptually of of technology and data and and this agency being a data driven agency but the the fact that this was included in the appendix a and with Guidance that this and a clear message that this is what will not get done if we are not funded at at The level that we originally requested so We've done that and now to take those monies and and away from our mission Which sounds to me like you're being very considerate of and concerned about the mission the agency monies that affect the mission of the agency so Unfortunately, I can't support this but I certainly am open to discussing it and further reassessing it at another time And you know, we've got mid-year coming up in an ops plan, and I hope we can Flesh this out a little bit and talk to the appropriate staff and get some clarity on the issue commissioner adler Just a couple of questions So this is appendix a and as our Terrific chief financial officer reminds us that often these things do get funded because we have people who leave And the unfunded portion of their salary becomes available We have contracts that are not let and so those funds become available so The the kinds of things you're calling for here are certainly worthy and I share the chairman's enthusiastic support for addressing these my my problem is that as the chairman was saying these are unfunded these are Contingent funds and so for example, I see that you do not include any Acknowledgement of the need for pay inflation and non-pay inflation. Where do those Unfunded matters in appendix a fit into your overall scheme if you could explain that that would be helpful They would remain an appendix a in the unfunded portion. It was looking at the items that had been That had been relegated to the unfunded appendix a And looking within those all of those items are are worthy and and we spoke at some length About the importance of all of the programs that are included in Appendix a when we were considering commissioner case amendment earlier Taking a look at the importance of data and it systems to the critical function of this agency That impacts our ability to Conduct the agency business and to make informed decisions to faithfully execute our statutory mandate Led commissioner biakko, and I don't mean to speak for commissioner biakko and I to identify the agency data and it portions of appendix a as higher priority than Then then the inflation plus ups and and that's why we felt that those two items were Appropriate for inclusion in in this particular amendment to address it as we are And and if I could add to that, you know, you raised some very good points commissioner adler And that is there are times at like at mid-year and so forth that there are opportunities and there are there are Money's that can be used to offset the budget as it's Presented but we cannot do that until and unless we actually account for this in the budget So we can talk about it all we want at mid-year or ops plan But what we're going to hear at that time is we don't have the funding And I think that these two issues are too important not to put in some type of earmark for These things because without a better data system and analysis or putting more people In working on that and without a better it structure We're going to continue to get the same document pushed out of here every year And we're going to have less work done just like we're experiencing on the tip over So I think this is something that the agency needs to consider This is a 2020 budget. We're sitting here in early 2019. It needs to be earmarked It needs to be put into the budget and we can offset it as we go along and and and for that reason I think it needs to be included I actually think to a great extent. We're singing Good harmony not necessarily complete harmony, but One of the one of the strongest arguments that the chairman has made when she's gone on the hill is the need to have greater funding for pay inflation and non pay inflation and the idea that we are Going to put those at a lower priority than these very worthy projects Maybe put them at cross purposes because unless we have the pay inflation We're not going to have the staff to do these kinds of projects So i'm going to keep my fingers crossed that when we get to mid-year and we get to op plan That we will find that we do have funding for these but To ask me to place those at a higher priority than adjusting for Inflation is asking me to take a step too far You've almost persuaded me to go back and change my vote on commissioner k's Recommendation to ask for this extra just so we're clear commissioner adler. We're not asking you to place I'm not asking you to place a priority level one over the other But this is something that I think needs to be earmarked Not to the exclusion of asking for money later for for inflation and so forth But for this particular this is the foundation of this agency our data our analysis our systems and the retail reporting system which is Not Rising to the level it should be because we don't have the staff or the ability to process that information We need to put it in this budget. We need to account for it now so that we can move forward Otherwise, we're going to be stagnant If I may reclaim some of my time to address I apologize procedurally though. We're going to go the Your time to respond is at the end of unless they're yielding their five minutes. I'm delighted to yield my time Your time is up. Sorry. Thank you That's why I'm even happier to yield Sorry, I got a little overzealous there commissioner k Commissioner felman, please proceed. Thank you very much With respect to prioritizing between inflation and adjustments for inflation inflation adjustments for staffing And in other items within appendix a I agree 100 with what commissioner bayako said We are not we are not making a prioritization judgment here, but To to follow on a point that you raised commissioner eddler That that this agency begins to fall apart. Uh, if we're not able to bring staffing on board I would Posit that this agency also begins to fall apart and and not be in is Ready a forward posture to execute on our duties When our IT systems fall apart and we are coming off a week where the agency Experienced 24 hours plus of downtime of of zero connectivity to the internet zero email access um, you know, we are here to execute the statute and work on behalf of of of The american people and consumers and families. We cannot do our jobs without the the the Adequate investment in baseline IT support The the data conversation is separate and apart that is also extremely important But but I would not discount the importance of of all of the items in appendix I Okay, I'm going to reclaim my time if that's okay commissioner out there. Okay. Thank you Um So I I hear fantastic advocacy for my amendment. So if there's any desire to bring that back up I'm happy to do so Obviously on the substance. I think we all agree. It just comes down to what the actual impact of it is and why staff chose to put it in the Place that they did Unless I'm missing something about our funding level. I just don't think that we have That kind of money that doesn't impact staffing or core Safety needs and I would question if we did have that kind of money. Why is that in the budget and this isn't And so I think as a practical effect That's really why I offered my amendment earlier because I do think this does need the funding But we need to ask for it above the base So unfortunately, I'm not going to be able to support the amendment But I think on a going forward basis It sounds like we're all in the same place About trying to both increase our overall numbers to the extent that we can and find funds Without impacting other core safety work and Staff work that we're staffing and raises. I think they do deserve Uh to try to fund this type of activity. Thank you Thank you commissioner k commissioner bioco Would it make a difference on this amendment if the dollar amount Was not part of this but rather um that there would be additional funding out of curiosity What we're talking to whom are you addressing that anybody who wants to answer So I would I guess I would Ask how would that look mechanically? What would you be proposing? Understood. I was just trying to get a feel for Okay, fair enough Mr. Feldman, I have no further questions or comments Thank you. Do you have any additional questions commissioner adler commissioner k? No additional questions or comments. Thank you The only thing I would say I really appreciate the attempt to try to find some way to do it And if there's some way to figure that out I'm game to try to do that So would you be would it be feasible and I'm I asked this to all my colleagues to take the dollar amount out but to commit to Revisiting it at another time whether it's during the op plan or mid-year I I feel very strongly that it needs to be at least accounted for in the budget The fact that it was put in a particular spot in the budget Doesn't mean it can't be put back in we don't we're not I'm not proposing and I don't I don't mean to speak for commissioner Feldman, but we're not proposing for Asking for additional funds, but rather that funds be used for these purposes. It needs to be expanded So I I think conceptually I would be open to that It would just be I would at this moment in time where we sit here And where we are in this process. I'm struggling to figure out how that would work That would not trigger some type of spending that we I think are saying that is not already in there And so I think if they're away for the budget to reflect that the commission believes that these are important items Yes, I agree with that But if it ended up again having a practical impact of shifting dollars I would have to respectfully disagree for the reasons that I articulated earlier by the way alien I'm not I'm not I didn't mean to like just ask you that I can see you the easiest But anybody else who wants to comment Well, first of all, I I agree completely with what commissioner k was saying. I think aspirational language Is a good thing. I have no problem with that But at this point it still seems to me to look like zero sum and I'm not prepared short of endorsing commissioner k's amendment to approve something whether it's got specific budget Numbers or not Something that mandates that we moved to adopt this I think that the point you make is a is a good one Which is when we get around to mid-year review and we get around to further refining this I think you'll find yourselves delighted that we will see some funds for these projects And I think you'll find fairly strong support among the commissioners for Adopting these approaches that a vote there commissioner adler at mid-year The support this particular project I'm just having some fun with you. You're you're you're perfectly free to do that. I get myself in more trouble by Making Commitments that are then I upon reflection Feel I should have been more precise about but generally speaking Aspirational language. I'll just repeat aspirational language makes a lot of sense to me And I I have no problem if you could come up with some aspirational language Putting in concrete either budget numbers or concrete budget proposals That will then Take away From monies already allocated that that's where I have my my problem Is there any further discussion on the commissioner felden bialko amendment? I mean hearing no further discussion will move to vote on the amendment Commissioner adler, how do you vote? No, commissioner k. No, commissioner bialko Yes, commissioner feldman. Yes, and I vote no the yeas are two the Nays are three the amendments by commissioner feldman and bialko has not adopted Are there any other amendments here at the dais this morning? I have one more amendment madam chairman You may proceed Thank you, and I do want to proceed to feldman and bialko amendment number one The purpose of this amendment is to address the workforce challenges and agency skills gaps with respect to emerging technology And information technology mission support functions that are included in the budget request In the underlying document strategic gold number one Spells out quite explicitly concerns about The workforce challenges and skills gaps that the agency has with respect to It understanding the data that the agency processes full grasp of The the intricacies of emerging technology be it with respect to The internet of things connected devices blockchain e-commerce platforms Therefore the the purpose of this amendment would be to within the existing budget cap and allotment for fte's Redirect the agency to designate two full-time equivalents to allow the agency to hire a chief technologist And a chief data officer in order to address those challenges These are not or should not be unfamiliar concepts to the agency. I'm certainly not the first commissioner to propose The idea of moving towards a chief data officer here at the agency It would be my hope that we could move to Uh include this amendment in the underlying document In order to To build that into the the baseline assumption going into 2020 But I do recognize The concerns that i'm hearing from Other members on the dais with respect to The the the need for a fully defined Um position description and uh and and some further discussion on where these two Uh officers would fit within the org chart It would be my hope that plugging in a chief technologist and a chief data officer as our sister agencies have done Uh that that these Employees would fit a stride of the various verticals within the agency and that they're In that their background and expertise would inform all level of work that the agency does Uh, so I hear the the the concerns that we've had offline and I do appreciate the support that has been offered for the underlying concept here Um, I based on the conversations that I've had with the acting chairman Um, I am contemplating withdrawing this amendment in exchange for a firm commitment Today to pursue of the money that's available for consideration at mid-year Uh a commitment to fund two fte's For these two positions and in the interim between now and then to to continue to work collegially to To put together some some meat on the bones with respect to the various position descriptions um that puts Me now in a bit of an awkward position as i'm prepared to withdraw The amendment the amendment's currently offered as a joint felden bachow amendment and I would defer to commissioner bachow about about how she might want to proceed I would continue with the amendment. Uh, we are looking at the budget for 2020 And I think that the two are not mutually exclusive And for all the reasons that we just discussed as to why we can't put this into the budget because we Well, it's more appropriate or I think some of the comments I heard were about addressing this at a different time I think this is very important that we're not putting this off until mid-year to use monies that couldn't be used For data to be used for two fte's that then what happens in 2020 do do they just go away? So I would I would still go forward. I think this is a very important thing The staff has assured me we do not need descriptions right now. We're only determining whether or not This is something that the budget would account for we're not asking for additional monies And I would I would still go forward myself So Having we've we've got commissioner felden you withdrew did I understand that you i'm contemplating withdrawing the amendment But we are in a procedurally Um I I don't know how to proceed and I would I would defer to Yeah, sure. Uh commissioner adler is asking for a recess. I think we should recess for 10 minutes And then we'll read adjourn we'll adjourn five minutes We will resume our hearing here this morning. Um, I think the first question is what is the amendment before us If you two have decided whether I'm sorry. It is my understanding that we're still Considering feldman back a one. Okay So we will proceed with our questions. You've introduced the amendment and um, we'll go from there madam chair I think we need to second it actually You call for that. I'm happy to second a second Second, okay, we will proceed with the questions. Um I think that there's again, it's no mystery no surprise how Fully I support enhancing our data and our technology And the capabilities that this agency has with regards to that. I've been an advocate of that for close to the six years I've been here As I expressed to commissioner feldman this morning Conceptually, I agree with this concept and I agree with what he he and commissioner bielko Are intending to do here But it is so It is just not ripe to to introduce it at this point. We have no idea about Job descriptions We have no description about where these two fte's would fit into the agency I I you know, I would ask have you met with uh, jim ralph's and it to understand any needs that it has These are ongoing discussions within the agency Have we and we've been told specifically by staff Please do not give us this type of detail at this point if this is something you want to include in the budget That's fine. We only need it generically right now and further. We are way down in fte's There is plenty of space to put them and we will develop them during mid-year and and during the ops plan as we go forward So it's my understanding. It's highly unusual at mid-year to Introduce new fte's that I'm going to defer to the media projects do not fund fte's the mid-year funds So this would have to be operation operation, okay So I just I think that this is not ripe. I think conceptually it's an excellent idea. I Could not you know, but I don't think we've done our due diligence in understanding These two fte's again where they would fit in what are the offsets and how would we move forward with these with this concept? So unfortunately, I can't I cannot agree to these amendments at this point in time So do I understand just so for procedurally we will have no chance then if it's not included if these two Fte's are not or the concept of Funding them is not included in the 2020 budget We will never see these staff members until the very earliest 2021. Is that what you mean? No, that's not what I mean What I and what I said at the outset is there seems to be some confusion about the function of the operating plan The operating plan is when we look at fte's the operating plan is when we dig deep into The financing that the agency has received and we allocate the funds and and we make a determination as to how we're Going to spend those that's the role of the operating plan it is it It does not mean that Because it's not in the 2020 budget that we couldn't proceed with it in the 2020 ops plan But it wouldn't be funded until the 2021 budget. That's how staff has explained it I think that's incorrect. I think that if 2020 it just is a question if the commission deems that Various fte's would not be funded and these two positions would be funded And there was an agreement among the commissioners This is how we wanted to proceed in our 2020 ops plan Then we're good to go. This is 2020 money. This is the 2020 budget We're talking about and we still have to do the 2020 ops plan Which is the appropriate venue to talk about fte's As well as the detail of how the money is going to be spent within the agency if I may um If this I I I'm I'm I'm trying to understand What the state of play is with respect to the conversation that we had earlier It was my understanding that we were contemplating uh an understanding and an agreement to uh postpone consideration of Of uh felbin biakko won at this time in exchange for an agreement from you acting chairman to uh pursue funding for the fte's During mid-year consideration. What I'm hearing now is that mid-year consideration is not even an appropriate place to consider fte's Therefore, I'm not sure on what basis we entered into in agreement initially and I question whether that that that agreement still stands Well, let's let's be real clear. We did not have an agreement We did not have an agreement and there was no There was no meeting of the minds in our conversation this morning The other issue we have is is that there are two people who sponsored this amendment And you are you may or may not withdraw but the amendment still stands. So the amendment is still there. Um, and so Mary has in our executive director has advised that it's unusual if not impossible for fte's But my concern to you and my conversation we did this morning was this is not We do not have the detail to which I don't even know what I would be agreeing to and I did talk to you about an rfi Or possibly a study that would allow us to understand Where our gaps in data where our gaps in it rather than just saying here are the two fte's that we need But rather than let's take an organized thoughtful approach Before we just say we need two fte's and that was that was a respectfully this morning We discussed funding for fte's at mid-year in exchange for withdrawing this amendment If that's no longer a viable option It would seem that the agreements vitiated and I would then move for a Move to a immediate consideration of feldin and biakko one. I would also note that The foundations for evidence-based policy act now puts all cfo agencies if I could reclaim my time. I apologize. This is We've seconded the amendment. This is my time to ask questions. My time has expired. It's now commissioner adler's Each commissioner has five minutes at the end of that you can respond But I just want to make it real clear. There was no agreement this morning commissioner adler um Well, one of the fascinating things about being a commissioner who's been confirmed is watching the confirmation hearings of those who have Not yet been confirmed and I was fascinated to watch the confirmations of both of you and commissioner feldin And I was particularly Caught by the emphasis you put on the need for improving data and data collection and data analysis And I found those those points first of all articulately presented and Very persuasive My problem here is not whether we can Put in an amendment like this now in the budget or at any point I think you can put in any amendment That we want at any point what I would do is if you've made the case and you want to put it on the agenda The way I would craft it is to say the commission hereby approves this subject to the next point when we can add Fds to whatever the commission's operating plan is but I think you can bring it up at any time I think it's perfectly appropriate to bring it up now My problem therefore is not the procedural one. My problem is more substantive And this is why I would urge both of you to consider withdrawing it and And it's not so much the the appropriate time but is with the appropriate analysis and documentation You'll notice that when I've put proposals before the commission. I've always prefaced that by sharing an extensive memo Setting forth my reasons for wanting to do that What's lacking here is any sort of analysis or documentation about the specific need here Because it may be for example that if you came in and you Layed out the needs that we have I might say well, let's Have jim ross job expanded or modified I don't know that we need to add an additional position as opposed to expanding the current assignment of One of our existing staff people in other words I remain to be persuaded about the specific merits of this I am completely persuaded by the general principle you conveyed and I again, I appreciate that So just a plea I would urge the two of you to withdraw this until uh, it's some later point You're able to submit sufficient documentation to persuade me Mr. Kay Commissioner Feldman, did you need time now or did you want to wait because i'm happy to yield if you Apologize I meant to yield time to you I I would I would yield to you Okay, thank you I appreciate the amendment that both of you are offering as you mentioned commissioner Feldman There has been work prior To this to consider these positions. I think that there warranted positions to consider Ideally, of course, we would have more information upon which to base this decision But for me, I think it came down to funding and I would have been comfortable Adding it to the budget if it had been above our base and so if that's something you're willing to reconsider Then you can count me in If not, then I'll have to part ways with you just at this particular moment But hopefully we'll come right back together and to the extent that your office does Seek additional assistance or input from my office in terms of how you want to move forward And what additional information you may want to come up with or questions you might want to ask Please consider us available at your discretion. Thank you Um Just to be clear. Um, at least I do not believe nor was this amendment intended to be It suggests we needed a study or anything else that will just further delay what we all know we need here This is not something that hasn't been discussed before. Yes, commissioner Adler I have seen your memos usually at the point when we're ready to vote on how those positions will be Used and and the duties and so forth. We're not at that point We are under strategic goal number one and we're simply asking that the workforce include The positions for these two types of people which we do not have and we have A great need for if the objections are we we don't know what we need. I find that even more Reason to make sure that it is earmarked to use for our data systems and again I find it remarkable that the objections That we're hearing particularly from our acting chair is that she doesn't know what We would do with these people or how they would work towards data that she is Data system that she has supported for six years. So I I respectfully disagree with the comments But I appreciate them. Thank you Thank you I had a question that I was hoping to direct to the general council if that's if that's uh within the I think it depends on your question in terms of the response My question is with respect to the requirements of the foundations for evidence-based policymaking act Are you familiar with that statute? Not off the top of my head. No, okay. And and and my next question then would be Whether or not as I understand that statute Requires all CFO agencies to have a chief data officer on board Is that accurate? Commissioner Feldman, um, I would respectfully request that any legal questions that you have concerning interpretations of specific statutes Be not in a public meeting um I'm certainly happy to Uh respond to your question, but not in a public meeting. I appreciate that Well, as I understand it There is a statute that exists on the books that puts a clear statutory directive for CFO agencies Like cpsc to have a chief data officer, which I understand we Do not have on staff at this time. Is is that correct? That's we have a chief information officer And you know without getting into the legalities of interpretation of the statute and what our employees are and how they're classified I don't think we should be responding to that in a public meeting Okay Well, it it it would be my understanding that moving forward with with uh feldman one and and back a one Would be in in support of fulfilling our statutory obligation under this statute My next question goes back to the previous discussion with respect to the appropriate place to consider FTE allocations And it the record now seems to support that pursuing those types of of allocation decisions Don't uh that that doing that at mid-year is not the appropriate place Is if the appropriate place to address ft is an appropriate place to address FTE allocations during consideration of a budget I would argue that the appropriate time is the operating plan And how does it get funded we have to vote on the next budget to fund that The 2020 ops plan will take the 2020 money that's been allocated to this agency So we we right now we are talking about how much money this agency will get financed To us Then the operating plan takes that money whatever that amount is And it will allocate it in a spending plan in the operating budget operating plan May I Have a little second of your time to respond. I think it's uh totally appropriate to bring it up. That's not my objection My objection is that I need some underlying support and documentation But I do think especially Because we have so few Points inflection points where we can have amendments adopted that we Should be able to take advantage of those. So I think it's appropriate. It's just not not It's pretty mature and I agree with the chairman about that Reclaiming my time. I appreciate that I would reiterate the statement that I made earlier that the concept and roles of a chief technologist and chief data officer Are not unfamiliar to this agency or this body These are these are positions that our sister agencies have moved to fill If among other reasons to to make good on their statutory obligations under the foundations for evidence-based policymaking act But understanding commissioner adler that that that consideration of the Budget request is in fact an appropriate place to consider Arrangement and allocation of FTEs I would then move for consideration and and the a's and nays on the underlying amendment Is there any other discussion on commissioner bioko commissioner feldman amendment? Having heard no further discussion. We will now call a vote on their amendment Commissioner adler. How do you vote no commissioner k? No Commissioner bioko. Yes Commissioner feldman. Yes, and I vote no the a's are two the nays are three The amendment by commissioner feldman and bioko has not been adopted Are there any other amendments from the dais this morning? So having heard no further amendments or motions. We will now turn to consideration for the fiscal 2020 budget request to congress as amended here this morning Each commissioner will have up to 10 minutes for closing remarks after the conclusion of all of our votes But at this point does anyone else wish to be heard for discussion before we vote on the budget as amended I do not have any comments commissioner adler I know further comments commissioner k. No, thank you madam chair mr. Biako No, thank you mr. Feldman No Have you heard no further comments? I will now call the vote again This is to adopt the 2020 budget request to congress As amended by the commission here this morning commissioner adler. How do you vote? I? Missioner k. No Commissioner biako. No Missioner feldman. No And I vote yes the a's are two the nays are three the budget will not be Adopted as amended here this morning We will now have up to 10 minutes per commissioner for any closing remarks And I will ask commissioner adler begin. I will reserve my time for closing I Don't have a lot of comments. I am somewhat saddened that that we were not able to get Even if people's amendments are not adopted support for the The budget overall this is the kind of thing Madam chairman that I think sends a signal to the world that is a bit distressing I certainly understand the strong feelings of my colleagues But this is one of those points where we're up to me I would say we all have to learn to compromise in favor of a broader Approach so I look forward to whatever the next next step is I did want to make one comment on the general tenor of the meeting today Which as far as I'm concerned was almost a model for when people have strong and conflicting Views and values and yet I thought we were all on excellent behavior In the face of some really strong disagreements. I want to commend all of my colleagues for expressions of thoughtfulness and Limiting remarks to substantive points This this really to me is a model for how a collegial body ought to operate And so again, I want to commend all of my colleagues. I have no further comments. Thank you. Commissioner adler commissioner k Thank you, madam chair. I'm going to Not give a statement now and just publish a written statement. Thank you madam chair Thank you. Commissioner bico I do not waive my Opportunity to issue a written statement, but I do want to say a couple things One is I do believe and agree that the vote here is distressing But what it signals to me is that The Agency is intent on keeping Keep doing the same thing they've been doing for years upon years upon years Which could be and I'm speculating but it could be why we're not seeing Increases in our funding because we're not doing anything new I think that it is important that we If we're an agency and we truly need and support increased data analysis increased Voluntary standards and mandatory standards and enforcement and all the things that we are charged with under the statute If we truly support those things we will make sure they are funded because without funding and without air marking Funding for those things We will be exactly the same as we were last year and exactly the same as we will be Next year and so I I can't vote on the budget without air marking Some of those funds for moving this agency forward and therefore that is why I voted no commissioner Feldman Thank you. I would echo the Everything that's been raised in closing statements right here about the distress that we weren't able to get to yes today I would note That the deadline to get the budget to omb is monday that gives us A good number of time plus a weekend to continue work and I hope that we will To ultimately get to yes on this on the underlying budget I would would note that the the document that was put before us today was one in which Uh None of us on the dais really had a meaningful opportunity to contribute to Which is why I was glad that we were able to in open session pursue Amendments, which is something that we don't normally have but as as members of this body and and as as participants in a collegial body I think it's important that we all have an opportunity to put our stamp and shape the underlying document within the within the agreed upon overall spending limit with with with with omb I don't waive my right to To issue a written statement at some point in the future But it's my hope that that we're going to continue to work to to ultimately get to yes on this And I yield the balance of my time Thank you very much. Thank you to all of my colleagues. Um, I just want to begin by thanking staff Jay and james and the office of oex spend an inordinate amount of time Trying to brief and prep the commission offices and thank you for that. Thank you for preparing the budget back in september Where I feel that there was Not commissioner feldman. He wasn't here, but the rest of us had input on that budget I'm not going to I'm not going to Talk an issue all of my comments here Some of them had to do with the fact that I was hopeful that we would reach agreement and pass a budget But we did not do that this morning. So Well, you'll have to stay tuned for that I do want to just say one thing and that is that I have a great amount of appreciation And a great amount of respect For the staff and their expertise And the way they lead this agency And on some occasions not all but some I defer to them and their expertise I defer to them to tell me what what is needed And I do have an idea of what where the gaps are and what we need to pursue in this agency However, I think we can be far more Effective if we work with staff and not against staff And and that's where I feel that there is a bit of a rift here and I feel that staff Does a fine job and I think that some of my colleagues would agree with that But I think we have a Outstanding staff here at the CPSC And they are committed to safety and they are committed to helping us accomplish our mission of safety And so for that I greatly appreciate that and I want to say thank you publicly to them for the work they do and I Hope that we can reach an agreement on this 2020 budget We may or we may not get there, but I think we as as commissioner edler said this morning I think we've had a good robust discussion here at the dais And I appreciate my colleagues for their thoughts for their willingness to discuss and debate And hopefully we will get to a good conclusion And get this budget to omb As we are required to do By monday the 18th of march 2019 with that we will adjourn this meeting