 Okay, we're now going to resume thank you for your patience as we attempted to try through the staff, through our own staff to work out an adjustment to Commissioner Adler's amendment. I'm going to recognize Commissioner Adler now. Commissioner Adler. So thank you Mr. Chairman and I want to thank my colleagues for bearing with me as we attempt to move towards a resolution of this and to develop a stronger consensus. So what I'm going to do is withdraw the original motion and provide a substituted motion and the critical words that are different are the words that say that we have directed staff to develop a protocol subject to commission approval prior to the commission consideration of the 2017 mid-year review for developing an appropriate protocol and for assessing the appropriate procedures to follow in implementing this as a program. So with that I move the amended motion and seek a second. Is there a second? Second. Having heard a second we'll now turn to discussion but Commissioner Adler do you want I understand you might want some time and I'm happy to yield it to you to further explain your thought behind this amendment. Yeah I was caught a little short when you when I put my motion in and usually we then get to explain the motion but then just sort of moved on and I didn't get a chance to read a few remarks that explain why I think this is so important. I think we all know that voluntary standards have gained increasing importance in CPSC activities over the past 30 plus years. This has resulted in part because of legal changes to the Consumer Product Safety Act that direct us to give preference to voluntary standards over mandatory standards under certain conditions. It's also occurred because we've been directed to build mandatory standards for certain children's products on a framework of voluntary standards and perhaps as important if not more so it's occurred because the agency in the voluntary standards community have increased our cooperation in collaboration with each other and I say this is an observer of the product safety scene for over 40 years. I think relations between CPSC and the voluntary standards community have never been better. That said they can still be dramatically improved and I want to point out as I did before one glaring shortfall in the voluntary standards process that folks in the voluntary standards community see as clearly as we do and that is the lack of meaningful consumer input in far too many voluntary standards proceedings and the reason simple unlike industry participants consumers and consumer groups for the most part don't have the resources to participate in such proceedings nor do they have the same access to technical information that would enable them to engage at the same level as industry participants and here's the critical point. The result is too often voluntary standards are developed that don't provide a full measure of safety to adequately protect consumers and that's the point of this amendment. I've had numerous conversations with friends in the voluntary standards community and as I say a lot of them share this concern. To address this imbalance some standards development organizations have begun providing limited funding for travel and other expenses to consumers and I particularly want to acknowledge the efforts of ASTM ANSI and UL in this regard. Their efforts have helped but not solved the problem. There's still too many standards development organizations and including a number that want to work with CPSC in developing voluntary standards that failed to provide any support whatsoever to consumers and NFPA was cited as one of the examples the Portable Gas Manufacturers Association the window covering manufacturers association none of these provide any resources in support of consumer involvement in their standards development proceedings. My amendment seeks to have CPSC establish a program to provide resources for technical and other supports to consumers and consumer organizations for voluntary standards that are important to the agency and I'm not going to read this next point because it's been mooted by comments that Commissioner Mohorovic made but I did want to make one final point again. We've had a regulation on participation in voluntary standards that's been on the book for many decades which gives the commission the authority to provide funding support for voluntary standards development. It's never been implemented in the years since its adoption but given our increased and increasing involvement in standard and voluntary standard development I think the type of time is ripe for us to help ensure that more balance is added to these efforts. Thank you Commissioner Adler and thank you for your flexibility in terms of your amendment and also to the other commissioners for trying to find a path forward. I think that we'll get there and I appreciate that we were able to or hopefully that we're able to do that. I plan to support the new the new amendment that you've introduced Commissioner Robinson. Thank you for this. Commissioner Burkle. I have nothing further. Thank you. I do just want to express my appreciation to the Chairman and Commissioner Adler for taking a step back and coming up with this amendment. Commissioner Mohorovic. Thank you Mr. Chairman. I want to appreciate Commissioner Adler for his reconsideration his friendly amendment to his amendment to give us a better idea of what potentially we're about to to vote on in the future with regards to reallocation of our allocated of our funds. I would like to point out that there is a very important stakeholder who will have the opportunity to consider what we're what we're attempting to do with our appropriated dollars and that is Congress who have not voted for voted in final our FY 17 appropriation but only a continuing resolution to fund us through the end of the year. So they'll have the full opportunity to consider whether or not they want to send us additional language to encourage us or potentially discourage us from reallocating appropriated resources or to inquire whether or not we should put a particular amended line item in our requested funds to identify how much we plan on sending outside of the CPSC to private parties. I have no further comments Commissioner Adler. Well that certainly commissioners Mohorovic's remarks certainly don't sound like a friendly disposition towards this approach. If anything it sounds like we can expect a phone call or a visit to the hill on his part and I would just urge him to at least until we've come up with a specific approach here maybe to withhold that approach and see what the staff comes up with and see whether he agrees with it. Mr. Robinson further. Yeah. Mr. Berkel anything further. Nothing further. Commissioner Mohorovic anything further. Having heard nothing further on the other amendment will not take the vote. Commissioner Adler how do you vote. I. Commissioner Robinson. I. Commissioner Berkel. I. Commissioner Mohorovic. I. And I vote I. The a's are five nays are zero the other amendment has been approved. Are there any further amendments. I have one Mr. Chair. Commissioner Robinson. I am asking that we amend the operation plan to add on page seven under other planned voluntary standards activities. The non integral firearm locking devices and youth resistant firearm security containers. When I first came to the commission I asked about why we weren't doing more to make guns safer and I was initially told please do not mention the word gun and I did not for a long time and I fully appreciate that the CPSC is explicitly been told by Congress that we do not have jurisdiction over guns or ammunition. However we do have jurisdiction over too small but critically important areas involving gun safety and I have to think particularly child safety drove those exceptions. Gun locks that are added to guns after manufacture to prevent it from being fired unless the locking device is removed and gun safes which are secure and protective storage container for firearms are the two exceptions when it comes to guns. So although we cannot do much to make guns safer I believe we should do all that we can to make them as safe as possible and I would like to thank Ted Alcorn who is the research director at every town for gun safety who presented testimony at our priorities hearing and that led to an ongoing conversation with him over the past months and he introduced us to a number of key people in the field doing amazing research and work on ways that we can encourage more people both to use gun locks and safes and making sure that they're working properly but also he introduced us to people who are doing some very exciting work in the area of gun locks and safes and some of the technology that they're introducing. In 2001 the CPSC tested 32 models of gun locks and because I'm going to be talking about data in a moment I would just like to emphasize here that there were not and I can't fathom how there will be data on gun locks being safe but there was there were no data at that time but we took 32 models of gun locks and 30 of them failed our tests. This prompted a series of recalls and gun locks were distributed as part of a national safety education and outreach effort and in 2004 ASTM passed a voluntary standard both with respect to gun locks and gun safes. Now while those standards were reaffirmed in 2009 and 10 and 2016 there was absolutely nothing that went into that process according to ASTM other than merely polling the members of the committee so there was no consideration of anything substantive with respect to those standards. The gun lock standard for ASTM is F-236904 and then 2016 obviously and it's a standard safety specifications for non-integral firearm locking devices. This standard appears to contemplate only locks using a key or a mechanical combination lock. It doesn't allow for gun locks using electronic locks or locks using biometric or Wi-Fi technology and the gun safe standard again passed in 2004 is for lockable containers that completely contain firearms and again just has the technology that was in place in 2004. Now as I mentioned I don't think we're going to ever have the data that we need to support whether gun locks work. I'm having trouble thinking that any emergency room employee is going to put in the narrative that we look at in our nice data that a child was shot or somebody was shot by a child because the trigger lock failed. But here's what we do know. We do know that in the 12 years since the standard was examined substantively and passed there have been huge improvements that have taken place with respect to technology. And we also know the horrifying statistics that there are more than 2 million American children living in homes with guns that are not stored safely or securely and each of those children has friends who visit those homes. Less than 15 percent of the gun owning households report storing their firearms unlocked and loaded and those households account for more than two thirds of unintentional child shootings. And that's where my focus is. To date during this year alone we've had 199 children as of two days ago who have unintentionally killed or injured someone with a gun. And I was just told by Daddy Yard that as of this morning two days later we can increase that by four. It's up to 203 in 2016. I've spoken with people at the Harvard School of Public Health that are using the national violent violent death reporting system examining unintentional firearm deaths involving children. And they looked at 16 states between 2005 and 2012 and they found that above deaths not injuries just deaths that 229 of the unintentional firearm deaths of children were between zero and 14 in those 16 states. And then as they looked at the way in which the incidents were classified many of the deaths that were caused by children with access to guns were labeled homicides so they were not captured in the data. And when they moved that to unintentional which was the correct classification the number was 80 percent higher. In recognizing the limitations of that study the researchers pointed to the brevity of the narratives which did not provide enough qualitative data. Researchers noted that the vast majority of deaths appeared to occur when a child found a gun in the home that was improperly stored. However the narratives did not provide information on how that happened. Whether the gun lock and storage lock failed or if the gun was not properly locked or stored. There have been several studies with respect to suicides and I certainly appreciate that that is outside of CPSC's jurisdiction. However the while these studies have focused on suicide attempts the results show that keeping guns locked properly unloaded and safely stored results in a significant decrease particularly in firearm injuries and deaths particularly with children and teenagers. So the while studies show that certainly guns safely stored and locked bring about a reduction in firearm related incidents including injuries and deaths especially among children and we what we need to make sure of is that if adults are engaging in responsible firearms storage and locking that those devices work properly. At this point what I'm asking is that we allocate some CPSC resources to try to to ascertain whether the standards past 12 years ago which is a lifetime ago when it comes to technology are what should be in place in 2016 in terms of actually making gun locks and gun safes safe so that we can hopefully drive down these numbers of unintentional deaths of our children. Thank you Commissioner Robinson. Is there a second? Second. Having heard a second we'll now turn to discussion of the Robinson Amendment. I want to commend Commissioner Robinson for this amendment which I plan to support. It were almost four years on the anniversary of Sandy Hook and after that occurred Vice President Biden reached out to a number of agencies to see what could be done through the White House and through other agencies to try to certainly tackle at a holistic level gun violence as you mentioned CPSC has a very small part in that and that was the area that Vice President Biden discussed with my predecessor Chairman Tenenbaum which was trying to see if the gun lock and gun safe voluntary standards could be enhanced. Chairman Tenenbaum did get the CPSC engaged staff did start to engage on the voluntary standards bodies. I think that and I hope it's changed the frustration that I certainly felt was that there was a lack of technical expertise to try to bridge the gaps that folks recognize in the substandard aspect of these standards to try to have better product. I did end up visiting with a couple of individuals out in South Dakota who had demonstrated pretty handily how easy it is to defeat these so I think you're on to a real safety issue. The question is whether between our staff or somebody on the outside will the right parties come to the table with the right knowledge to give the subcommittee something to work with? I have Len Morse in particular of ASTM has gone way above and beyond to try to drive groups to the table to want to improve these standards and certainly the participants in the normal rounds were ready willing able to consider something that was validated. We just didn't have anybody step forward who had concrete suggestions to enhance the standard so while I am thrilled to support the amendment I do hope that somebody steps forward so that something can be made of it and I'm happy to yield if you want to address that particular point. Yes I would love to. I also spoke with Len Morse who expressed that being very open to reopening the standard but I have also spoken with individuals who would very much like to participate in such a standard standards committee and have a great deal of technological expertise and have come up with some really quite fabulous improvements since four years ago. So I'm very excited about those people's participation in this and I think it could be very it could really enhance safety. I think that's fantastic and thank you for doing that legwork to try to draw drum up that business for it. As we've discussed on other occasions from my perspective at least the final step would be to not only have ASTM improve their standards but to have California we're back to talking about California to have California amend their lock in safe standards or at least adopt what ASTM has done so that similar as we see on upholstered furniture it does seem that California drives the market and obviously whatever my office can assist with we're happy to continue to do that. Appreciate that. Commissioner Abner. I support Commissioner Robinson's amendment. As I've listened to her explain it I've gained a degree of reassurance that this is a very carefully honed amendment but I somebody who has lived through the trauma of the agency's consideration of anything relating to guns or bullets. I did want to just express a word of caution but I need to preface what I'm going to say by making certain that I put on record that I am somebody who strongly dislikes guns. I think one of the worst decisions the United States Supreme Court ever made was when it handed down the Heller case that found a constitutional right for individuals to keep and bear arms for self-defense. I think the statistics as Commissioner Robinson said are clear in one respect contrary to the arguments made by gun advocates the data against guns are overwhelming and clear for every criminal that's killed in self-defense 34 innocent people die from the irresponsible use of guns so my concern is not with trying to reduce gun hazards. My concern is you have the message in the medium and I'm just not sure where the proper medium for doing much beyond what Commissioner Robinson is proposing and I would just take us all back in history in 1974. We were petitioned by a citizens group to ban bullets as hazardous substances under the FHSA which is interesting because FDA which was the previous enforcing body had always exercised jurisdiction over bullets. They never tried to ban them they never tried to regulate the intended use of bullets but they said if a bullet unexpectedly explodes or unexpectedly triggers that creates a hazard to folks and FDA reserved the right to exercise jurisdiction over defective bullets so when it came to us as a successor agency we admitted we had jurisdiction but the commission by a four to one vote and I will point out my boss David Pittle was the dissenter they denied any right to regulate properly functioning bullets. Commissioner Pittle said let's at least explore the petition. We were sued because of this decision and the district court said no you're wrong you have to fully consider the petition on its merits and here's my concern there was a firestorm of protest we got hundreds and hundreds of thousands of comments within weeks of the judge's ruling we sort of ground to a halt to be honest we actually had to hire staff just to open all of the letters that came in and we had one staff person whose job was to put the death threats separate from the rest of the comments that came in but before we could fully address the petition Congress in its full majesty and they can act quickly when they want to stepped in and removed any and all jurisdiction over bullets from the agency so here's my concern at the end of the process consumers were actually worse off than when the petition was filed because we no longer had any ability to seek recalls of defective ammunition we spent lots of very scarce precious dollars and staff months on bullets that I would have preferred to see devoted to other hazardous products so we ran head first into the doctrine of unintended consequences so in short as much as I would love to see a strong federal response to control and regulate the irresponsible use of guns I don't think we have the staff or the dollars to get in any in-depth approach to addressing this so that's why I'm fine with Commissioner Robinson's amendment I just want to express at this point one note of caution commissioner berkel thank you mr chairman and I too want to commend my colleague commissioner robinson and all of the work that she's done on this issue I don't have any questions this morning thank you commissioner marova thank you mr chairman I don't have any questions for commissioner robinson with regards to her amendment but I would like to comment that along with every responsible gun owner I certainly share commissioner commissioner robinson's concern about kids getting unsupervised access to guns the outcomes as we've seen far too often are beyond tragic however I have not seen the data to suggest that failure of gun locks or gun safes is driving those terrible outcomes if that data existed and our staff agreed with the credibility of that evidence I'm left wondering why our staff was not compelled to recommend participating in the voluntary standards commissioner robinson recommends we direct staff resources towards so in the absence of that kind of information I cannot make a decision on whether or not it is an appropriate use of agency resources to redirect and involve our staff in those voluntary standards at the exclusion of others where there may be a more clearly demonstrated need so for those reasons I cannot support commissioner robinson's amendment thank you mr chairman thank you commissioner marova commissioner robinson I'd just like to quickly respond first follow the commissioner adler's comments and I am I certainly didn't live through it but I've heard the horror stories about bullets I'm not for a moment suggesting that we're expanding jurisdiction here but rather making sure we're making safe those limited things that are within our jurisdiction and I share with you the sort of I don't know the the exact word I want to use but my Swedish son-in-law sent me an email a while back about about the city utah where I have a vacation home and the subject line was things about your country I will never understand and it was an article about the state of Utah deciding to have a state gun not a state flower not a state bird but a state gun and we have one there that's just an aside but let me just say with respect to the data commissioner marova yes I would love to have data one way or the other again I've circled this many many times I cannot imagine where that data will come from we certainly had none when we tested 32 guns and 32 of the locks on those guns failed we just have done nothing like that in 12 years well longer than that 15 years in terms of deciding whether this standard is it is what it should be but what we do know is it hasn't in any way incorporated any of the new technology and the resources that will be committed to it I'm told by dr borlase will be quite limited at this point and then we can decide once we once the evaluation takes place as to what we want to do with it from there but at this point he's saying that it'll it'll just be one staff month and that it'll come from the unplanned hazard work so I don't feel like we are ignoring other things to evaluate this standard to see what we can do about these hundreds of deaths every year the only remaining comments I want to make I do want to reiterate my strong support for the amendment and I would like to just attempt to reassure commissioner adler if possible only because we just went through this a little less than four years ago where the agency took the steps not through an operating plan but we did engage staff and staff eventually included in its operating plans going forward for a couple of years the exact type of work that commissioner Robinson is attempting through her amendment to restore so I don't see her amendment and this is a positive about it from your point of view I don't see it as breaking new ground I don't see it as necessarily no pun intended triggering any type of response from any outside party because we've already done this and so I think it's a very prudent step I think it is consistent with our statutory responsibilities it is a it's a relatively small one as commissioner Robinson has acknowledged but an important one to try to do our part and if we had not gone through we went through three years ago where we were able to do this work it was done in an unemotional environment we did thankfully we did not receive as far as I'm aware of mail that would have required more employees and death threats and that's a good thing that we didn't have that happen I'm comforted by that I might be wrong but I'm comforted by the fact that this is this is only returning the agency if it passes to doing what the agency had been doing a few years ago and and I think it's an appropriate step to take. Commissioner Adler any further comments? Commissioner Birkel any further comments? Nothing further thank you. Commissioner Morova? Commissioner Robinson? Having heard no further comments on the Robinson amendment we'll now call the vote. Commissioner Adler how do you vote? I. Commissioner Robinson? I. Commissioner Birkel? No. Commissioner Morova? No. And I vote I. The yeas are three the nays are two the Robinson amendment has been adopted are there any further amendments? All right having heard none we'll now turn to consideration of the underlying operating plan as amended uh is there a second? Second. Having heard a second we will have any final discussion on it and then I'll call the vote and again as a reminder we'll have closing statements I have no further discussion before voting. Commissioner Adler? No further excuse me no further discussion. Commissioner Robinson? Commissioner Birkel? Nothing further. Commissioner Morova? No thank you. Having heard no further discussion on the operating plan as amended I now call the vote I move that the agency that the commission approve the fiscal year 2017 operating plan as amended. Commissioner Adler how do you vote? I. Commissioner Robinson? I. Commissioner Birkel? No. Commissioner Morova? No. And I vote I. The yeas are three the nays are two the operating plan for fiscal year 2017 as amended has been adopted. We'll now turn to closing statements and as usual the commissioners will have 10 minutes. Would you plan to try to use a lot less time than that for many reasons including the fact that we're going to be right back at it pretty soon for a portable generator's briefing and if we use up all our time I think we might end up just rolling right into that. First I just want to thank the staff. Mr. Hoffman you're still here so thank you for that. I think that the staff and certainly starting with our executive director Patricia Atkins and her staff and our office of financial management and EXHR and all the various constituent parts of the agency it's a huge lift to do this. I know it takes many months your priority starting on the FY18 operating plan process to get the offices ready for it. There's a lot of work that goes into it and there's really a lot of difficult choices. There are so many different ideas that the agency could get involved with should get involved with that we have to turn our attention elsewhere at this point because of the very limited unnecessarily so funds that we have. I think that the commission should be funded at a much higher level. I think there are certainly many different projects that are either not in here or even that are in here like ATVs that if we had a much higher level of funding we would be able to resolve those and remove the uncertainty for everybody industry in particular with those steps. There is though a tremendous amount of great work in this operating plan and even well beyond the amendments that were adopted today the core operating plan that staff provided speaks to addressing or at least moving forward addressing some critical safety hazards that continue and I think the commission has a role to play in it. I'm pleased that staff is always every year able to get so much work out of such limited resources. I can only imagine what you could do if we were properly funded but I commend you for the efforts. I do want to thank my fellow commissioners. A lot of work went into this even as we took our break their special assistance and especially my office Allison, Stanley, Jacqueline Campbell, Jonathan Midget and Jennifer Swamadas for the shuttle diplomacy and the late nights to try to get where we were today. Thank you. Commissioner Adler. I honestly don't think we can thank staff enough. Sometimes this is such incredible amount of work that's going into the development of an operating plan and simply saying thank you doesn't somehow convey all of the gratitude that I think we and probably consumers across the land if they knew what was going into this would want to extend to you. I note that there are seven amendments that have been adopted today. I imagine the amount of work that went into each and every one of those. I'm speaking only on behalf of the amendment that I submitted and you can see the amount of work we did up in front of the the meeting today and multiply that by about 10 or 20 and you get an idea of how much work the staff has put in not just on the underlying operating plan but in dealing with all of the individual commissioners concerns and complaints. So I think it's turned out to be a very good operating plan. No surprise given the quality of the staff that's been working on this and all I can do once again is commend you for doing an excellent job and again I want to thank my fellow commissioners and I think also it's important that we never can thank our individual staff enough so I'd like particularly to thank Sarah Klein, Jen Feinberg and a new addition to our staff who is not here. Oh there she is, Maureen Kentoff, so aka Moe. So if you haven't met Moe yet, she's sitting in the back and she's just a wonderful addition to my office and I thank all of you. Mr. Robinson. I reiterate what I said when we had the briefing on this. Thank you so much to staff for the incredible effort that went into this. It was timely, it was descriptive and transparent and I very much appreciate this effort. I also want to thank not only my staff but the staffs of the other commissioners. I really am impressed with the group of personal staffs that we have working together and how thoughtfully they consider each other's positions but obviously particularly I want to I want to thank Daddy Yar and Heather Bramble for their work on this. Boaz Green is off with his daughter seeing his family in Israel so he did not participate in this and but the two of them just did an incredible job and I really am very grateful for that. I'm delighted at this op plan that we have that we have voted on today and I'm really excited about the work that we have committed to doing. As is often the case we debated a number of amendments here today and I just want to thank my fellow commissioners for the thoughtful amendments that they offered and I was happy to give my support. I also thank my fellow commissioners for the support on my amendment. Just because we can't do everything doesn't mean we shouldn't do the tiny bit that we can and I do think that this amendment small as it was will will help in making guns safer and I look forward to our staff's report on this. And with respect to the amendments by Chairman Kay and Commissioner Adler I'm very much looking forward to the work that staff is going is going to do on on this front. I I do have to say that to anybody in Congress who may be listening to this I hope you look at this op plan we are never ending lists of projects that are related to consumer product safety that we all would like to do with the CPSC and we'd like to resolve things more quickly but our reality is we're small and we have very limited resources but I really hope that Congress looks at this op plan and understands that if we do not receive every dollar that's allocated to this plan it will be necessary to defer very important safety projects and deferring those safety projects has real significant and potentially dangerous consequences for industry and consumers alike. I think we've been in the news more than practically any other agency recently because of dangerous and new products and newsworthy recalls that clearly show what an excellent job CPSC can do in protecting consumers but also the need for us to be able to quickly respond with technical solutions and innovative ways of ensuring safety and we need appropriate funding to do that. Heather Bramble was saying to me yesterday that this is her favorite thing that she does here at the agency we deal with so many distinct projects but the op plan is the macro of what we do here at the agency and I completely agree with her and every time we do the op plan I find myself re-energized with respect to what we do here at the agency. We're three weeks out from a really ugly election the ugliness of the past year, months, weeks, days has been so disheartening and deeply troubling to everyone I know we find ourselves apologizing constantly to people both in this country and our friends outside of this country for the spectacle that we've made of our election cycle this year and it's the first time in my lifetime that I've seen how quickly a great country can become diminished so quickly. Yesterday morning I found a smile and listening to an NPR piece on some Canadians who put together a video that if you haven't seen it you should to tell us how great we are. I love that someone tweeted that it's always nice to have a kind upstairs neighbor with mom and dad are fighting and today we have we're I look at what we did today though and we have a small but a critically important reminder of what makes this country great. We have an agency comprised of talented dedicated people we're fulfilling a public health and safety mission that congress in its wisdom assigned to us and it's then wisdom I probably should say and looking at the op plan for this agency for this upcoming fiscal year emphasizes the real-life consequences that our work has on people's life and I would just say that I'm grateful and humbled to be a part of the process. Mr. Birkel. Thank you Mr. Chair. I too want to echo my colleagues comments and gratitude to the staff for putting together this op plan particularly Patricia, Dwayne Ray, Jay Hoffman, James Baker, and the Office of Financial Management. I recognize how hard and how trying it is to produce an operating plan without the certainty of a full appropriation from congress. I do appreciate your efforts and the timeliness of this document despite that that challenge. I also want to thank this morning John the Guggen and Kim Goulet for facilitating my participation in this meeting via phone and thank you to my colleague and to the entire staff for understanding my needs to participate remotely during this time with my mother's illness. I do so appreciate and I just want to make sure everyone understands you have the kind thoughts and words that I've received from so many. I just want to let you know how much I appreciate that and what it means to me as a commissioner so thank you very much. Although the operating plan was provided to us in a timely way I was unable to support it for a number of reasons. To begin with the plan contemplates final rules for the highly controversial voluntary recall notices and 60 proposals. I'm puzzled at this point what's going to happen with these proposals. Many you are familiar with what happened at the reg agenda in the fall where Commissioner Adler indicated he would offer compromise proposals on both subjects and while I remain somewhat open to those compromises I'm unclear as to how such compromises would be acted upon. Would we abandon regular order and ignore the substantial comments from outside stakeholders. The operating plan reflects that this the staff will transmit final rule packages to the commission in the current fiscal year. Yet staff from all affected offices have informed me in meetings that they have no resources allocated to either project. These NPRs should be terminated we should start over again but before we do that and I I've been opposed to both of these since their inception but even apart from the content of these proposals they should be delayed and during the course of the preparation for today's hearing I floated some amendments among my colleagues and couldn't get support from the majority that would have moved the NPRs for voluntary recall notices excuse me back to DATR and I offered those two amendments because we have promised I should say the chairman has promised a public workshop on recall effectiveness. The exchange of information during such a workshop would be relevant to any rule on voluntary recall notices and similarly I understand from the office of OGC that they will be updating our freedom of information staff later the rules later this year and so it appears possible that revisions will address them possibly move some of the 60 suggestions thus it would make sense to hold off on both of those the 60 and the NPR on voluntary recall notices. I am disappointed that the majority wouldn't go along and support those amendments but again I just want to express my concern about those two NPRs that remain on our book and in this plan as a final rule these issues quite frankly have become an embarrassing mess to the agency and it really has been through no fault of the staff. In previous years the chairman emphasized he did not regard these as priority issues and now it feels as if they've become more of a priority issue. So I'm sensing a different attitude on the chairman's part as well as the termation on the part of the other commissioners to move this forward and I truly hope given the lack of clarity and transparency in this process that this is not and not going to be midnight rulemaking but rather a good faith effort at trying to compromise but I do believe that moving them to DATR would have been a more prudent action for both of those NPRs for the commission. Also a concern to me in the app plan is the tip over ANPR. It was not forecast in our 2017 budget and quite simply this ANPR is premature and inappropriate. The staff recently sent us a briefing package on this subject and it does not support moving forward with rulemaking. The existing voluntary standard is barely two years old and there is no evidence whatsoever that the standard is inadequate. I've asked staff explicitly whether they are aware of any deaths or injuries resulting from tip overs of dressers or other clothing storage units that comply with the 14th standard and the answer is no. It's inappropriate to press for improvements to a voluntary standard at this point. We would be far better off helping manufacturers to improve their designs and meet the current voluntary standards rather than moving the vote post again so soon. On portable generators the operating plan contemplates the final rule in the current fiscal year. This is another area where I think we should hold off on the rulemaking. Our staff has been working for years on way to limit government offside emissions from portable generators. I appreciate their intensive work we've met with them on a regular basis to learn about their progress and their engagement in this area. Their efforts have spurred a tremendous amount of activity in the private sector. Only recently there is a breakthrough with the industry promising to open the voluntary standard and address the CO hazard. Some argue that the industry won't move forward until we actually propose a mandatory standard. That argument is contradicted by the industry's recent activities and voluntary standards commitments. Moreover proposing a standard requires the industry to vote resources and it actually causes them to misdirect their resources on the wrong thing. Instead of focusing on a voluntary standard they must work to address the staff's proposal. In the case of portable generators there are additional reasons to support voluntary standards in preference to mandatory regulations. There are serious questions about our legal authority to regulate carbon monoxide emissions and while I will get to those concerns in greater depth in this afternoon's hearing I will say that if we pursued a voluntary standard we could alleviate any legal issues that should be that would be my strong preferences to follow the voluntary standards. Speaking of ROVs I would encourage the staff to save some of their own time and we've talked about this with the chairman and resources by combining a briefing passage on the voluntary standards with recommendation to terminate rulemaking if they consider that that's the appropriate outcome. With regards to upholstered furniture the commission staff has labored for years to try to develop a regulation in this area. In the 16 ops plan approved last February I sponsored an amendment asking for a report on the California standard to be 117 and a comparison to our own rulemaking proposal. Staff produced a very significant report with remarkable conclusions including a recommendation to terminate rulemaking in this area. I think we need to seek public comment on that document and for the chairman's suggestion that is something that I will pursue and discuss with him as we go forward here and possibly come up with something at mid-year. Just as concerning is what's not what's in the ops plan is what's not in the ops plan. There are no resources dedicated to the workshop on recall effectiveness for section 15 deer reporting and I understand it's being run out of the chairman's office but I think it's naive that staff will not be required at some point to join along the way. These are important topics that deserve serious attention not just check the box. Once again there's no funding for an information and educational campaign for windowpuffs. I know this is not a popular option for staff and more some of my fellow commissioners and I understand in comments made that the chairman believes there's no that education campaigns are ineffective but it seems there are some exceptions to that. Yet we don't hesitate to assist an industry investment by any campaign. It seems to me we should partner with with industry and there could be some real benefit derived that with a robust sustained I&E campaign that would advance the safety critical message excuse me a critical safety message on the importance of using for these products to families and whatever children are present. I think we could have an effective I&E campaign if we could get behind that in the agency. Another issue that remains of concern to me is key senior staff positions remaining vacant also troubling. We're putting forward a plan here that expands initiatives and cheeks on new ones while numerous of our directors have no permanent leadership. That's a void and it needs to be addressed and I do hope we will fill these positions as soon as possible. In closing and I do want to thank my staff because they have been give them on Nancy already. They've been put at an extra disadvantage with my absence this week and how hard they work to to get all of the information to me in our phone calls so I do appreciate their work and I thank them. In closing while there were changes that if adopted this would have made this plan more acceptable to me my fellow commissioners have made it clear that they will not accept the necessary changes and not offering them would have been an exercise of utility. Many of the amendments adopted here today give me even greater concern including crib bumpers being treated as a durable nursery product the use of our resources to work on a culture first flammability. In the end this is a document that is much more reflective of the majority's policy and therefore not one that I can support as it takes us down this agency down a path that I don't believe is is the appropriate role of government. I think the role of our agency is to protect consumers from unreasonable risk. It is not to use the threat of rulemaking and questionable compliance activities as a tool to bully industry into doing what we want or worse to engage in activity that can be interpreted as an abuse of power. Our policy decisions and agency actions should address actual risks and should be driven by sound science and data. Thank you. Mr. Marvorevich. Thank you Mr. Chairman. I'd like to associate myself with the thoughtful appreciation expressed by my colleagues for all the staff that contributed to this operating plan and of course to this decisional hearing today. I would like to recognize and thank my staff Bryce Dussman, Mike Gentine, and Ryan Radford also for their late nights and tireless work on this effort. Commissioner Burkle alluded to it very briefly but I'd like to reemphasize the appreciation for the regular timing with which this operating plan was delivered to the commission deliberated and considered so special thanks to our executive director for that as well as to Commissioner Robinson for her unending support for that kind of a process and it was well to the chairman for agreeing to put this in regular order so I very much hope that we see our operating plans at the same time frame but I did vote against the FY17 operating plan for several reasons. The first point that I'd like to make is that I shouldn't really be shocked to find that there's midnight regulations at the CPSC. For those that have visited my office I have a not too subtle reminder and warning that by virtue of having Wilson Pickett's midnight hour album at my entryway as a bit of a prediction that after two years of saying we're not going to move on the voluntary recall rule and 6B rule it looks like lo and behold through this operating plan and through the expressed desires of the majority that we will move on those particular rules so for two and a half years that I've been on the commission I've been voicing my concern that the proposed voluntary recall and 6B rules which are among the most controversial proposals this agency has ever offered would spring to life in the waning moments of this administration I've been worried that just when our stakeholders had been lulled into thinking the rules were harmlessly asleep that these two regulatory snakes and the consumer product grass would pop up in bite and my spidey stents started tingling first when our regulatory agenda came to us and it went on to full burning when our hearing on that agenda revealed that my colleagues had been working on a plan for those rules and that they hoped to have wrapped up by right around the current administration's midnight hour so when this operating plan came to us contradicting the assurances we've given the public contradicting what we've told congress we were up to and doing contradicting the budget request we made for the year and even contradicting the advice of the most progressive chairman this agency has ever had I still was hardly surprised but there are two things in this plan that did surprise me and worse they came they just came up today not as part of the staff package so there they'll be I predict very big surprises to everyone outside of the agency first I was surprised by chairman k's amendment to regulate crib bumpers as if they were a durable infant and toddler product under section 104 of cpsia if crib bumpers are durable products I don't know what wouldn't be that surprises and frightens me now I can't say the chairman k's amendment represents midnight regulation by putting it in the operating plan he is giving everyone a loud and clear signal of just how expansive his view of section 104 is however the fact that we can see it coming does not make it good policy and it does not make it an appropriate use of the limited authority that's that that section grants us now second I was surprised by commissioner adler's suggestion that we should divert public money into private pockets do it without specific statutory authorization or congressional approval and do it without any guidance or direction to staff but I'm very pleased he was kind enough to take that suggestion and at a minimum we should see the entire plan and protocol staff believes is appropriate before we vote to send one dollar out of our very limited bank account on that note one thing that troubles me in this plan is that both before and after today's amendments it devotes resources away from where I believe the agency should be as anyone who is paying close close attention to cps he knows this agency has an astonishing number of vacancies in senior mission critical leadership positions including our director of import surveillance our deputy general counsel our deputy executive director and our director of compliance I suspect that even the wonderful organizations that could benefit from commissioner adler's idea would agree that filling and funding these mission critical vacancies is a better way to protect consumers again I have no doubt that we all have only the best of intentions in mine but intentions aren't good enough we need to hold ourselves accountable not just for our intentions but for our actions so even without what has transpired today I could not have supported this operating plan it allocates resources in ways that do not believe our our best path towards greater consumer safety I have no doubt that armed with this plan our staff will continue to do tremendous work my concern is not with staff's ability to follow the direction of the commission to follow the direction the commission gives it's that I believe the commission is giving the wrong direction in some cases marching the agency straight towards failure in closing however my greater concern remains with the full speed dash towards midnight regulation that this plan represents particularly in the voluntary recall and 6b rules we have heard for years that these lightning rod rules were not priorities and that we did not want to spring anything on our regulated community yet that is exactly what we are poised to do because of this document now I chose not to offer amendments to stop work on these rules or to withdraw them completely today out of respect for my colleagues and the public's time and because I've done so previously and have failed and also because my colleagues have made abundantly clear that they are wedded to these looming disasters even as recently as august 31st they told the world that they wanted to see these rules finalized and in the near term or a change in their desire to finalize these rules the majority is in the minority I respect that spirit of perseverance but I cannot join in it the term midnight regulations comes from a comparison to cinderella where the magic wears off at the stroke of midnight and in this case it's the inauguration of the next president midnight regulation has been rightly criticized as a departure from responsible government an effort to achieve political victories at a time when there can be no political accountability in return that's exactly why I have been warning us and the public about this possibility for years every time I've expressed my concerns I was assured that such a move would just would be just not our style but it seems styles change and so do minds what does not change is our responsibility to exercise our powers appropriately the power to make laws and regulate is the power to deprive people of not only their property but their liberty the most important aspect of the appropriate use of our power is assure ensuring that the people can hold us politically accountable for our decisions both directly and through their elected representatives in congress midnight regulation is an abdication of our responsibility and it is one I cannot and will not join in thank you mr chairman thank you for those joining in person for watching on the webcast this concludes this public meeting of the united states consumer product safety commission