 Good morning and welcome to this public meeting of the United States Consumer Product Safety Commission First on the agenda today is a decisional meeting on a final rule for a sling carriers promulgated under Danny's law Section 104b of the Consumer Product Safety Improvement Act We have two staff members here with us today in case there are any questions during the opening round We have Hope Nesteric from the office of the exact from hazard identification and reduction and mr. Matthew Mercier from the office of the general counsel. Thank you for joining us We'll start with any questions we have and then we'll turn to consideration of the rule I don't have any questions commissioner. Adler. No questions. Thank you commissioner Robinson. I Do have a couple questions the First of all has the ASTM shown a willingness to adopt the one little modification that we have Yes, they have we we've received letters from ASTM and from the baby carry industry alliance and Indicating that they are going to meet they're actually meeting next Tuesday and They will be discussing that terrific and also I wanted to Ask you mr. Nesteric I assume that you know we've been you know we we understand that this package is going to have an effect on the tiny little mom-at-home kind of businesses if you will And there's been there was some discussion I know you've been talking with BCIA and I appreciate all the work you've done with them But what is your opinion about if we extended the effective date to say another six months? If that would help in terms of mitigating the cost to these small businesses that this rule would entail I Believe in the package. We actually listed that as one option that has further extending the effective date and So commenters were generally in favor of the 12-month effective date. We didn't have any that requested a later one So it would Spread the costs over but over a longer period But but it's not going to affect the costs themselves as I read it Okay, and What are the alternatives that you listed and I really appreciate the thought that went into the the possibilities that we have here? because obviously we're very sensitive both to protecting our tiniest consumers and and you know not Imposing an undue burden on small businesses but one of the the alternatives that you listed was exempting wraps slings and I Share your concern that then they wouldn't have to meet the labeling and instruction requirements That I think are so important, but I just wanted to clarify that that make sure I'm right that in addition to the The labeling and the instructions that those those wraps slings would have they also are going to be subject to the The regulations in terms of the performance and the material strength and so forth. That is correct. Okay It's my understanding that BCIA or the baby carrier industry alliance the trade association for the industry has been very involved in This process with the CPSC and I know that Mr. Cohen on their behalf submitted a letter on December 13 Which included a respect a request to collaborate with the CPSC on a targeted information Education campaign I love the title of it visible and kissable They indicated they've been working with a small business ombudsman on this issue And I just wondered what your thoughts are with respect to the request From the baby carrier industry alliance and what resources would be needed at the agency to implement such a campaign I Think that's something we might prove the resources That's something we haven't really looked at and we'd need to consult with the department or the office of communications For their resources on the information and outreach campaign So that's something we could get back to you okay, and I assume that you're very much in favor of such a Information education campaign. Okay. I have nothing further. Thank you so much for your work on this Mr. Berkel I don't have any questions. Thank you. Commissioner heroic Thank You mr. Chairman. Good morning I have first question is how would you characterize generally the incidents and injuries we've seen with these particular products we've seen a wide variety of injuries and incidents we have everything from What we call the Consumer missteps, which are the slips trips and falls with while you're carrying the child in the In the sling, but there's also the suffocation incidents And we also have some incidents where there's one for example where the fabric ripped and the child fell out We have done some recalls in the past over hardware that has had some problems So there there have been falls there have been suffocations where they're falling from the carrier falling from the carrier based on performance attribute attributes of the carrier or would you characterize them as Consumer misuse in some of these wraps can at least for me can seem to be pretty complicated in terms of how to how to apply one or Where one properly both both both and in terms of the voluntary standard and the Manner with which it addresses the injury patterns that we've seen you did mention the slips and falls That would be addressed by the label, correct And I don't have the language of the label in front of me Do you happen to have the language that's offered in the label somewhere where you might be able to provide that I? Actually, don't think I brought that with me Just trying to remember how it Hold on. Let me see how it addresses the hazard Sorry, mr. Chairman. I was so weighed down by the fireworks package that I'm not strong enough to also have carried down our slings package Unfortunately, we don't have a copy of that and But it was I recall it's generally something of being careful not to slip and fall right yeah We it does talk to keeping the one hand on the baby while moving and okay All right. Thank you, mr. Chairman Is that it okay? All right having heard no further questions. We will now excuse staff from the table and turn to consideration of any amendments or motions I will start with an amendment. I believe it's already been circulated My amendment is pretty simple. I'll offer a brief explanation and then ask for a second on page 30 of the draft final rule I offer To strike the word staff and replace it with the words the commission in the following sentence The staff generally recommends designing the hazard out of a product or guarding the consumer from the hazard rather than employing Warnings because a warning's effectiveness depends on persuading consumers To alter their behavior to avoid the hazard the point of this amendment is to Bring more attention to what's called the safety hierarchy And the safety hierarchy as CPSC staff well knows is a foundational concept in injury prevention science And it's understood taught and utilized all throughout the federal government and industries around the world The safety hierarchy simply stated as eliminate guard worn is a system of priorities that places elimination of hazards as the most Preferable solution for enhancing safety Eliminating a hazard is the gold standard and should always be the first choice because it is the most effective When that's not feasible the second choice for injury prevention is to prevent access or to guard Any given hazard by placing a guard in between the user and the hazard Guarding consumers from hazards or relying on warning labels are only used if hazard elimination is not possible When a guard is not feasible the third and least desirable choice is a warning label And it's only used as a last resort because again, it's the least effective method of preventing injuries Since the concept of the safety hierarchy is so important to commission activities I believe the commission should be actively promoting the universal understanding of this pivotal concept whenever possible So I've offered this one small change to the draft final rule To give the full weight of the commission's authority in this sentence So you have a second Second. Thank you having heard a second will now turn to consideration of my amendment commissioner Adler. I Strongly support this Amendment and I'm glad that you've brought it to our attention In fact, I think it's such an important message and it's it is the traditional public health Message that's been around as long as I've been around and Dealing with health and safety so that at some point in addition to voting to approve that now I could see us putting that as a policy statement in CFR. So I strongly support it Commissioner Robinson no question Commissioner Birkel no questions Commissioner Marovic You know when I was thank you chairman When I was looking at this language and originally in the draft I Choked on it a bit and I really gave it a lot of thought As one and it's coincidentally last night. I was with my old boss guy named Jean Ryder who had taught me so much about appreciation for designing out hazards and how critical that is to a Hazard mitigation a successful hazard mitigation system, and I won't go into all the other details of it So I would feel that I'm well versed in appreciating the the successful approach of focusing on design first and Not not relying on consumers to make reasonable behavior, but the reason I choked on it Originally is because it seemed to me to be very paternalistic But the more I thought about it I thought coming from staff and and mr. Chairman This is why I'm not going to be able to support your amendment coming from staff who are our technical experts in in safety in Hazard mitigation they are the perfect Person they are the perfect Object of the sentence say that the staff generally believes because they are the experts so if it is their goal as it should be to identify and to Remove from the marketplace consumer the potential for consumer injury and and fatalities I think it's perfectly appropriate for staff to have that to make that statement But I think what what at least the way I interpret what you're doing here with the Commission is it's now putting the Commission in that paternalistic role and in some of these cases, I think that where a Market failure does not exist where a consumer is well aware of The injury and the potential for injury or fatality that a consumer product or using a certain consumer product presents that They're acting responsibly They're willing to accept a particular risk Involved and to suggest that it's the Commission's approach that we should be designing out hazards That starts to drift far more from the Commission's perspective into the nanny state taking away consumer choice taking away Liberty when consumers choose to do anything from riding skateboards to Hang gliding I don't think anybody gets on a hang glider and jumps off the side of a cliff and doesn't appreciate the fact that They might come crashing down to earth So I think that they're making an informed decision in this case suggesting that the the Commission should be representing this position is a matter of Policy I think and I think it's an area where we might have healthy disagreement on where that line is in terms of willingness to be paternal in our approach So why while I I don't Reject or have any problems with the statement as it stands from a technical expertise perspective I have a difficulty with it with it being the the position of the Commission and I could appreciate as Commissioner Adler pointed out that he appreciates that approach of Taking a more aggressive stand perhaps if aggressive is the right way of putting it and Removing from the consumer their ability to make an informed choice, but so for those reasons I'm not going to be able to support the amendment, but I appreciate the thought behind it and I appreciate also The fact that that that you agree with this kind of approach and deem it the most effective So I hope we can adjust agree to disagree without being disagreeable about the point But for those reasons I won't be able to support the amendment. Thank you Chairman. Thank you Commissioner Mo Rovick Absolutely, I know that we can continue to disagree without being disagreeable. I'm glad you didn't choke on it That's important for your safety In closing I do want to say that I think that you In some ways overlook the great work that is done in industry Consistent with this philosophy there are many companies that apps in any federal involvement whatsoever are on their own Following the safety hierarchy and looking for ways to design out hazards And so all we're doing is really amplifying that effort making it clear that it that is the preferable way to go and ensuring that For those who may not know who may not have given it the thought that they realize that these are the ways to do it that if Maybe because we've heard sometimes companies start with warning labels and maybe for them It's just they don't know that there are other options that might be better serving their customers in the long run So I think that it adds clarity to the marketplace It does represent Where the Commission has been probably for decades. I would turn to Commissioner Adler for that for him his nodding ascent And so I feel like it it only in trines where we already are Having heard no further comment. I'll call for a vote on the amendment commissioner. Adler. How do you vote? Hi, Commissioner Robinson? Mr. Berkel hi Mission of Roeva nay, and I vote aye The a's are for the nays is one the amendment has been adopted Are there any further amendments or motions? Yes, Mr. Chair? I have an emotion motion Berkel if you could please explain your motion My motion, and I believe it's been distributed already by staff I move that consideration of the draft final rule for sling carriers be postponed for a period of one year and Excuse me. I have several reasons for making this motion and I'll just explain a few of them And then turn to my colleagues for any questions they might have on the topic I think first of all we're on the cusp of a transition from one administration to another and From the 114th to the 115th Congress I don't believe that we should be in an hurry to pile on more regulations right now Particularly in my concern, especially with this is where the benefits if any are so slight The chairman of our House and Senate authorizing committees wrote a letter after the fall elections asking us to avoid Focusing our attention and resources in the coming months on complex partisan or otherwise Controversial items that the new Congress and the new administration will have an interest in reviewing we should heed this direction from Congress I Believe the rule fits into the controversial Category for a number of reasons number one This is a rare situation here at the CPSC in which our staff has concluded that this rule will have a Significant adverse impact on a substantial number of small businesses in my three years as a commissioner This is the only rule where the staff has made such an affirmative Determination and I understand it has happened only a very few times in the history of CPSC This is not an academic point It appears very likely that this rule will be putting dozens if not hundreds of small businesses Small companies out of business Often times you'll hear from the dais Numbers large numbers we talk about the cost of regulation This is very real where we're talking about putting out of business some small companies Number two There's a serious legal question as to whether the products to be covered by this rule should even be included within the class of Durable nursery products for one subset of slings the commission admits that it quote considered the possibility of exempting wraps and other all-fabric carriers without load bearing hardware or Seams and quote number three as discussed in the federal draft a register notice CPSC was unable to develop Performance tests or requirements that could address the infant positioning hazard I brought this up during the NPR discussion that We're not really addressing the hazard and that's not due to want of trying. It's because we can't address that hazard And that's those are the prime primary reason for the fatalities with this product So thus this This rule is not going to prevent the main hazard posed by slings Number four most of the non-fatal injuries that we count account in association with slings actually result from caregivers falling While wearing a sling those injuries again are not going to be addressed by this rule. So again, we're talking about Without securing commensurate benefits imposing a very high burden on these small companies Number five the staff notes that it has conducted only limited testing of wrap slings But of these the staff indicates it has found no wraps that failed the test for static or dynamic load testing Or failed the test for occupant retention Number six for most manufacturers the primary cost of the rule will be related to testing and some of the tests are Destructive meaning that representative samples of the product will be destroyed during the course of the testing I want you to think for a moment about weaving a Sling that retail maybe would cost five or six hundred dollars According to our economists and then having to submit it for testing and in the process of that testing all of that work is destroyed a Number seven in general once the mandatory standard becomes effective Sometimes we have the benefit or we can afford the benefit to small companies for small batch in a that small batch Exemption unfortunately because this is a 104. We can avail ourselves of that exemption So those are my reasons for the why I consider it controversial I just a couple other points quickly and I'll open it up to my colleagues I would prefer and I said this in my statement following the NPR that This product class not be considered a 104. I'm aware that the Commission majority does not agree Nevertheless, there's no exigency that requires us to mandate the standard right now Section 104 and Congress and I will admit Congress has put us between a rock and a hard place do this Don't do that, but I think it's our I think as as regulators We need to use our discretion to decide based on our data what 104 should be our priority Deferring consideration of this standard I think also would give the voluntary standards committee time to address the staff's proposed addition to the voluntary standard and as Hope pointed out earlier. They are willing to do that and then that would give us a standard and last but not least Disabling right now consideration or deferring the Promagation of this final rule doesn't disable our staff from dealing with the slings that could Pose a substantial product hazard. They always have and in the letter from the Hill They always have the option of enforcement and so that doesn't go away if we defer this rulemaking And so for that those reasons I asked my colleagues to support my amendment to defer this rulemaking Do I hear a second on Commissioner Burkle's motion second having heard a second will now turn to consideration of the motion I Have a question for Commissioner Burkle To understand the motion better. Is it your intent? that we would Postbone consideration, but then vote it out in a year or are you saying and assuming it during that time that ASTM would Harmonize with this one provision or is it your goal that we actually don't consider this as a 104 and to take that Time to remove it from the list I Would be prefer the second option what you're saying I think in the interim it would be incumbent and really helpful if staff could gather the data if the standard was updated To meet our what we're putting out in the mandatory standard and then provide us with the data and to see where we're at I think that would be a more thoughtful way to proceed and What to make then of the Primary association that represents not all but many of the smallest manufacturers the baby carriers Who came to us and asked us to promulgate this fun a rule what to make of that request? How do you reconcile their desire that we do create a federal mandatory standard with your desire to push it off? Well, I think they're looking for certainty I think any company where the large or small is looking for certainty and so knowing That this was now a mandatory standard. They know what they'd have to deal with But I can't imagine across the spectrum if you talked any company and you said you have the choice between a voluntary standard Which is the exact same rule as our mandatory standard, which would you prefer? I got to believe they'd go with the voluntary standard Okay, thank you for that commissioner other Thank You mr. Chairman and you ask in the most diplomatic way imaginable question I'm gonna be a little bit blunter about and that is if we put this off this consideration off for a year If you had to assess the probability that you commissioner Burkle would be voting for this What would you assign that order of probability? To be honest, I think there are other 104s that demand priority I think that would be a more thoughtful way to legislate and to regulate I should say and and I think Going to the staff and saying prioritize based on our data based on the fatalities and the injuries What's the best way to proceed? What's the next 104 we should handle and I have a feeling slings wouldn't be among those Not sure I got an answer, but I really appreciate the thoughtful answer. You did give Mr. Robinson Let me just say commissioner Burkle that I I also since we've been serving the same amount of time on the Commission I share your concern about the impact on small business and when we voted for the NPR two and a half years ago I discussed the fact that this this was the first time where there has been a substantial impact on small business And I questioned whether we needed To pass this rule I became convinced when Ms. Nestrick came in and showed me some of the products and the kinds of failures that we'd had so it wasn't just the Incident reports, but the recalls and the kinds of failures with the Material failing with the seams failing with the rings failing that that had resulted in injuries to children Which caused me to take this a little more seriously This is a unique product and it's been unique for I'm I read as long as two million years That it's the kind of product that that it can be manufactured If you will produced in a home as opposed to as opposed to any sort of assembly line thing So it's a very unusual product and I understand that I do disagree with you in terms of Of how I interpret and we're all just left with our own interpretation the letter from Congress I take anything that we get from Congress very very seriously Senator Thune and congressman Upton certainly correctly pointed out that we will soon have a new chair and That are they've told us our actions will receive an enhanced scrutiny But I certainly don't think and they were explicit about saying that we shouldn't stop doing our jobs routine product safety enforcement on behalf of American consumers and told us to use their words that We should avoid focusing our attention and resources on complex partisan and otherwise Controversial items that the new administration will have an interest in reviewing And as I look at this, I just don't think I don't see this issue as being complex partisan or otherwise Controversial certainly the sling FR is not a new issue The ASTM has been working on the standard since 2012. We as I said issued our NPR two and a half years ago No one surprised by it. It certainly isn't a particularly complex issue And we've reviewed the products the data and I was delighted that we had a hundred and eighty eight comments that we've reviewed Very thoroughly and I just don't see this as controversial in this case with a tiny exception having to do with the seams of a warning level We're just adopting the ASTM voluntary standard and I I don't see this as a partisan issue I I don't know what being a Democrat or Republican has to do with how you look at this rule We share whatever our politics a concern about small businesses, but also a concern about the about the consumers So and I think it's important when we look at what well as you pointed out It's important that we look at whether this is a durable infant product in Determining what we may and may not do Pursuant to our instructions from Congress with respect to relieving the burden on on small business and businesses And I will say that I think the fact that the the slings have been on the list of durable infant products dating from when Before this Constitution of the Commission was in existence dating from when the CPSC first passed its registration card Rule back in 2009 the NPR specifically Included slings as a potential product for the registration card rule and we received comments on that And that Commission decided that certainly that this was a durable Infant product and we know that slings are often used for multiple children in one family and are passed around from family to family And I think they're a perfect example of durable infant products We also know that they're associated with serious injuries and deaths So in looking at the protection of and obviously it's the it's the Brand-new newborns that we're really looking at with this product And so when we look at that compared with the impact on small businesses I certainly understand that small business was will face increased costs and third-party Testing and I've looked at how we might be able to really leave some of that at the CPSC There are certainly other ways in which that could be relieved But is there anything we as a commission can do and I I just with the restrictions that are that are placed on us By Congress we may not exempt or otherwise change the testing requirements for small batch manufacturers If it's a 104 And I just don't see how delaying this rule for a year is doing anything to help these small businesses If we're saying don't pass the rule I Don't think that that's acceptable given the the risk that we have at this product and that it is a durable infant product And staff has worked so hard to put this together So I cannot support For the delaying this Commissioner Marvorek Thank You Chairman. I'm going to support this this motion this amendment to delay consideration for any for a year's time First of all primarily because I would like to solicit some better clarity from Congress on this issue of What is what is a section 104? Durable nursery product. I know the Federal Register the work of the Commission in 2009 has been Has been cited here today The Commission I think had a more for my reading of of the Federal Register notice Was very clear that it was a discreet set of products But this Commission now has Opined widely on really extending the boundaries of that definition So I would like to have a year's time to hold off on this which is certainly one of those products That to me is very close to the line on whether or not it is in fact a 104 product category and I would hope that we would get some better clarity from Congress on this point to help us refine our thinking as the definitions provided in CPSIA are Less than than helpful in some of the considerations for other products What was what else was brought up today, which I which I'm not fully convinced of I think chairman You brought up the fact that the Association has been very strongly in support of this We know the Association is made up of small business Members primarily not large players. So therefore there seems to be less concern about the The costs that will be imposed on small businesses. I don't share that I don't share. I'm not convinced of that I'm not convinced that the small business entities as reflected in the comments we've received from SBA Specifically, but I don't believe that small businesses want to see a mandatory rule Applied here, and I think we should be careful that just because an association Tells us that they're in support of it that that means it's universally Desired I think that this this city has a long history Million-dollar homes and Chevy Chase are funded by manipulation of standards processes procurement Etc. And because we have a standard that the association wants to get behind That doesn't necessarily and I'm not trying to imply that that standard was manipulated, but it does happen the standards process rules are sometimes Manipulated by parties who want to eliminate competition And that's a strategy that players will sometime employ if they're already absorbing the cost of Third-party testing for whatever their reasons their distribution channels may require it Then they'll want to impose those costs on everybody else who may be going direct to consumer through some other distribution channels that don't find it necessary To present a third-party test report to demonstrate compliance with the performance elements of the standard while I recognize that staff is Suggesting the voluntary the labeling become permanently affixed But it's not just third-party testing. We have to be mindful and we have to be sympathetic to the certification obligations employed here There are some but there are not nearly the amount of textile mills in the United States that there used to be the South North Carolina used to have Dozens was a strong presence the the Northeast mostly with Footwear, but also with some textile producers. You've got these products are being imported. They're going to have certification obligations. This commission is already Opined in in a proposed rule to have mandatory certifications and mandatory Listings of multiple elements in that certificate and that needs to be provided every time they're bringing in new shipments of Materials, so it's not just the third-party testing, but it's incredible paperwork burden So I think we need to be sympathetic to those costs as well and mindful of them So if we have a product category that is not enumerated in section 104 of CPSIA, it's close to the line I think we ought to get real clarity and especially in this case because this This sector is a small business sector and they can't absorb those costs They can't immediately turn on the kind of paperwork burden that certification Brings with it as well So I think a year is a good period of time to hopefully solicit and receive some better clarity from from Congress in terms of their Intent of the categories applicable for 104. Thank you chairman Mission buckle thank you, mr. Chairman. I'm going to now try to recollect what commissioner Robinson said and a rebut just a few of those Those claims that you made I think first of all with regards to failure of slings In the package it indicated staff had tested about 40 slings 40 or so and in all of those tests We're done none of those failed so I'm not sure if those failures occurred before there was a voluntary standard And I'm familiar with the the failures that that you were shown because we were shown them as well So I think there is some indication that the industry is slowly complying with and the small businesses are slowly complying with The standard, but I do think it is controversial We are promulgating a rule that does not address either the hazard of positional aphyxia or the trips and falls that causes so many of the other injuries and We're doing that at the peril of several small businesses Maybe hundreds of putting them out of business that in my mind is controversial and again. I to commissioner Morovic's point This may be and in a very valid reason to go back up to the hill and say is this really what you meant by the 104s You know I think there's an argument that this is not a 104 that this Some of these more constructed slings could have gone into the soft infant carrier Category rather than being considered a sling. I think this is highly controversial I don't think this agency ever would want to be responsible for putting small companies out of business But our own economists tell us the cost of testing could exceed their revenues The estimate is 10% and so For that reason I consider it highly controversial. I know that commissioner other has comments I believe and others might so we'll go another round. I will not be supporting the motion. I appreciate you offering it I do think that And I want to address a couple of points in particular that commissioner Morovic raised first I do think commissioner Morovic that Congress Already was consulted in essence on this rule The commission had already added this to the list of durable products in the product registration rule by the time in 2011 when Congress tweaked CPSIA through 1 12 28 By trying to find some testing burden relief while still assuring compliance Congress created is of course, you know the small batch registry Which could have provided relief in many of these instances for folks that were talking about here But Congress exempted intentionally the 104 rules from that registry again with full Knowledge at that point that this had already been added to the list I can understand that if that if we had acted after the That Congress may not have been aware, but I believe Congress was fully aware and Likely took that into consideration or we assume they took that into consideration when this was drafted If that's not good enough for you though, and you still think congressional Congressional Inquiry is necessary I would only ask that as you go about doing that that you talk to those individuals who actually Drafted and convinced their colleagues to enact 104 and I really mean Mostly Congresswoman Chukowski and her staff and the people that she worked with to understand What their intent was and what went into 104 and to go back to 2001 when Congresswoman Chukowski originally introduced the legislation and then carried that forward every Congress Which she was thinking about as you look not only to what it means to be durable But also what was intended in 104 and whether that in her mind and in her colleagues mind was a static Thought or whether it was intended as new products come on the market or new and this is obviously not new But as new products come on the market and as parents continue to have that mismatch Expectation that these things are tested where there's some standard in place before those products come on the market only to realize down the line after tragedy strikes that there isn't one that Congresswoman Chukowski was trying to get ahead of that that she was trying to create a process that was consensus-based that involves collaboration that involved Advocacy and involvement from across the safety community to make sure that these products are given the type of standards that they deserve And I think that this reflects this process reflects that and I would think we would do a disservice Back to Commissioner Berger. I think we would do a disservice to all the work that was put in by the safety community Not to take that rule and turn it into a finer rule So I'm not prepared to support the motion commissioner Radler. I can see that the questioning round very Rapidly converted itself into a comment round. I do have some closing remarks Which I'm not going to give now But I did want to respond to some of the comments that were made and I do want to say that Commissioner Birkel and Commissioner Rojahorovic. I think you've both made some very very Important and reasonable points. I don't agree But I think you've made a very very thoughtful case and I this is a tough Decision for me to make My problem with saying controversial is that what that does is it and you've given reasons But I not sure I agree with them But I don't think something becomes controversial just because we're going to have disagreement among the commissioners And I do think this is part of that 104 rulemaking mandate that we have that we are methodically working our way through With respect to whether slings fall within the definition of infant carriers I would note in passing and this is just an additional data point that The ASTM subcommittee that deals with infant carriers bouncers and baby swings certainly considers slings to be within that category So I think the industry itself is telling us that slings belong within the category Infant carriers, maybe you would think they shouldn't be but I do think they fit within that category And I have to say how delighted and thrilled I was to hear my colleague Commissioner Mohorovic say that just because the trade Association supports something doesn't mean that That we have to defer to that and I would say that just because they oppose something We ought also to take that with a grain of salt So I will be only too delighted to remind him of that concept from time to time. Thank you Mr. Robinson Yes, let me first say that the the Commissioner Berkeleth that the The slings that were tested as I understand at the 40 that were tested were wraps And there are so many other different kinds of slings out there and we're delighted that those passed But that doesn't mean that they should be precluded from the the rule And we just need to make sure that if indeed people are more and more complying with the voluntary rule that indeed they continue and I think that that will do this I would also say that Congress expressly directed us to do 104s and they had the full opportunity to carve out slings and and public law 112 28 But did not which means to me that we need to continue to To regard these as durable infant products and therefore go forward with the rule now now I will say I mean a while we can't do a small batch exemption and certainly in this rulemaking I I've looked at this thoroughly to see if we could maybe reduce the frequency of the periodic testing So that we could as I as I understand from our from our economics Department we could reduce the cost by up to 60 percent if we could reduce the frequency But we can't do that in this rulemaking But I certainly would be amenable to discussing going forward finding a way to reduce the frequency for the testing So that we might be able to alleviate this, but it would be outside of this rulemaking. Thank you Commissioner Moherovic Thank You mr. Chairman With regards to the 104s generally we do have some enumerated Congressionally some statutorily enumerated product categories that because of Some very smart rationale that I better understood from visiting with staff Yesterday or the day before on this point why we why we're moving forward on swings as opposed to some of the others That still we do not have we have not converted voluntary standards into a mandatory stool Mandatory rule is allowed in section 104 So I have a better appreciation for why we're on Swing on slings right now, but the the comment that I wanted to make with Generally addressing some of the others that have been made today by my by my colleagues and very thoughtfully with regards to 104s and an appreciation for why we have Expedited rulemaking why there isn't a small business exemption for 104s because I agree that generally with the category of Durable nursery products these product categories are of the highest risk to our most vulnerable consumers Products like cribs and high chairs and strollers, but you know with this particular voluntary standard And it's been mentioned that with it that the the standard and those who have contributed to the development of the standard Have done everything to try to address the injuries and the hazards associated with it This particular voluntary standard is Not going to do a tremendous amount for safety These products are already children's products. They can't have small parts Can't have lead can't have lead paint So that some of the more critical Standards for safety for children Already applied to these product in the absence of a mandatory rule in the performance ass the performance elements Staff has test tested these products, and they're not finding products failing I mean really the performance elements of the standard is getting to Literally bursting at the seams whether these products You know burst at the seams and kids are just flying out of slings because they're just tearing open like tissue paper and Falling to the ground and and and there needs to be a standard to make sure that these things have the physical strength To to withstand the weight of a carrier and the weight of Of an infant and how it's and how it's worn by a mother I mean to put in a label where we have the the the most serious incidents associated with this product or a slips and falls to put a label on it and Tell consumers when you're carrying your baby don't fall down You know that's I don't think you need a label to warn a mother to not or a father Sorry, or any caregiver To not fall down while they have an infant in a sling I don't think that's going to do very much to address the real hazard pattern that we're concerned about With these products, and I know it's been mentioned an I&E campaign That'll dress slips and falls as well as the proper use of the product to and and and I applaud those efforts and appreciate The industry coming to us And wanting to collaborate with us on that night. I get every impression that we're going to do that But this this ball of the having mandatory testing to this particular voluntary standard is not going to contribute to safety in a very meaningful way As much as everybody tried I think that everybody developing the standard and our staff looking at it including the Editions that they've recommended are trying to do everything they can with this particular product But putting it off is not putting off safety So for the for a lot of the reasons why We have section 104. We have the mandatory testing to it in the streamlined expedited Rulemaking associated with it. I just don't find it as applicable in this product category, and I do appreciate that the Commission Thoughtfully considered this category in writing the project product registration rule and adding it as as one where the product registration card is applicable, but I would disagree with that with that decision made in 2009 it looks like and And I would like to get some some better clarity, but I think the chairman does make some good points that that the Congress for How many years now eight years has had the opportunity While seeing this product registration card rule to express their Their discomfort, but I think perhaps this little nuance in the product registration card rule Might have missed their attention And if we bring it to their attention knowing full well that this Commission has considered Expanding product categories Perhaps far behind beyond the enumerated products that we could we could be better served by having that thank you I apologize for going over chairman Commissioner burpel Thank You, mr. Chairman just a couple of quick points number one I just want to refer to Commissioner Adler's comment about we're ticking off methodically the 104s We are but I caution all of us that we tick them off not mindlessly and in this case To the chairman's point a parent has an expectation about testing of these products Any which way that product is tested it's not going to address the hazard of a Positional aphyxia and trips and falls it causes the highest rate of injuries So we can't be mindless about this. We've got to be common use our common sense and so I think that the data just doesn't lead us to mandatory rule and lastly I would say To my colleague's point about this not being controversial I think when we as regulators put small companies out of business That's controversial and that should weigh on all of us and we should take that responsibility very seriously. Thank you Are there any further questions or comments on the amendment or motion Having her in none will now move to consideration of the burkle amendment commissioner adler. How do you vote? No, sorry commissioner motion Commissioner Adler, how do you vote? No, commissioner Robinson? No Well, it's like yeah, we seconded it a long time ago Uh, sorry, let's start again. We want to make sure the procedures are right because this thing's gonna this thing's gonna pass We're now moving to vote on the burkle motion commissioner adler. How do you vote? No commissioner Robinson? Commissioner burkle. Hi Commissioner mohorovic. Hi, and I vote no The eyes are two the nays are three the burkle motion is not adopted Are there any further amendments or motions? Having heard none will now move to final consideration of the draft package as amended Is there a second? Second having heard a second we will before we have the vote will have any final comments Uh, commissioner adler any final comments or of course will be time for closing statements Uh, I have no further comments. I do have a closing statement. Thank you commissioner Robinson commissioner burkle No, commissioner mohorovic Okay, having heard none we will move to the final vote of the draft package as amended commissioner adler How do you vote? I commissioner robinson. Hi commissioner burkle. No Commissioner mohorovic. Hey, and I vote aye the eyes are three the nays is two The staff package as amended has been approved for Has been approved and for publication of the same in the federal register We'll now have closing statements each commissioner will have 10 minutes I will go first The commission took another important safety step today to protect babies all across the country We acted to make a critical item for many families infant slings stronger more secure And easier to safely use By moving to protect the most precious among us our infants We did not act in a vacuum and we certainly did not act alone The death and injury numbers associated with these products alone speak to the need for this new standard There have been at least 17 fatalities and 90 injuries related to sling carriers between january of 2003 and september of last year Those statistics are troubling The numbers also represent real people We have a childcare facility in the ground floor of our building complex here 17 babies represents an entire classroom of infants downstairs This rule matters for those children. It matters for their parents As it matters for babies and parents throughout this country The rule is needed to address known hazards and to prevent needless and tragic deaths and injuries to babies The consumer product safety improvement act of 2008 directed cpsc to initiate rulemaking to issue safety standards for durable infant Or toddler products that are substantially the same as or more stringent than The applicable voluntary standard Consistent with the cpsa cpsia our actions today are the culmination of excellent teamwork And contributions from across the safety community from our fantastic staff To the safety advocates to manufacturers retailers testing laboratories and staff at astm Together representatives from these entities put in the hard work to create a baseline sling standard for use as the core of our rule We are turning the excellent product of that collaborative consensus based Process into an enforceable federal standards that parents can have confidence in There is no genuine controversy in moving ahead to ensure these products are safer Representatives from all corners of this process support this rule That includes the baby carrier industry alliance BCIA which represents many of the sling makers Who will be complying with this rule? It includes the juvenile products manufacturers association, which also represents sling manufacturers After all the safety work that has been done By so many and all the calls to adopt this rule In my mind, it would be controversial and anti safety not to adopt the rule Importantly today's safety step is also entirely consistent with congressional intent Not only is reflected in cpsia, but also when congress spoke and follow-up legislation In 2011 congress tweaked cpsia to along with other purposes Include some type of reduction in testing costs, but importantly without sacrificing child safety One step congress took was to exempt the smallest of businesses the businesses that we're talking about today From certain testing requirements However, congress specifically declined to include in the exemptions the testing costs associated with durable infant goods such as infant slings Congress took this action with full knowledge that the commission had already determined infant slings are durable nursery products and thus were subject to a rulemaking That would trigger mandatory third-party testing costs to ensure safety Thus congress made the policy decision not to exempt products such as these from these costs That is not to say though that anyone is insensitive to these costs Far from it actually We all recognize that there will be significant and real economic costs to this rule In light of that we have taken steps within the bounds of the law to address those real concerns We have provided for a longer effective date Our hope is that this extra time allows sling makers To spread their testing costs out over a longer period of time As well as to give them more time to learn about the specific requirements And on that point in particular at the request of bcaa and its members I've also directed our communication staff to work with bcaa and our safety partner in canada health canada With whom bcaa already partners on an education campaign timed with when this rule takes effect I'm also very open to additional steps consistent with the law and with safety That we can take and encourage and I encourage anyone with thoughts along those lines to reach out to my office I do want to make one specific request though about testing costs I mentioned earlier one of our safety partners the testing laboratories Many of them have been great participants in these efforts I know if they put their heads together They can find a way to help the smallest of the sling makers offset costs I'm eager to see what they might be able to come up with Slings are a critical product for many american families when used safely Many find that they promote bonding between parents and newborns Our actions today will help ensure that parents and caregivers can use slings safely I am very proud to vote for this rule Which is the culmination of the work of so many from across the safety community I look forward to turning our attention to a successful implementation of the rule With that same collaborative spirit Thank you commissioner adler Thank you very much. Mr. Chairman It's a starting point. I want to thank staff for a truly excellent briefing package. You've produced an exhaustive comprehensive analysis that addresses a number of very troubling questions In the rule in a thoroughly professional manner, and I think we're all better for that I wish regulating were a constant win-win proposition where everybody ended up better off and no one ever experienced setbacks Sadly, that's not always the case. This package illustrates the point vividly That is in order to provide adequate levels of safety for vulnerable infants It appears that we may well cause some economic distress for a number of very small manufacturers And the tradeoff is stark in this case As I review the fatality and injury picture with slings I see that in the period from 2003 to 2013 and you've heard these numbers Before staff identified 16 fatalities and 54 injuries associated with slings Since then staff has reported an additional fatality and 36 more injuries Now the good news to me is that incidents with infant slings do appear to be fairly uncommon Unfortunately when incidents do occur they can be gruesome Although i'm not clear regarding the exact number of suffocations that have occurred with slings Simply visualizing What happens when a child dies from a lack of oxygen presents a ghastly picture that is very hard to deal with And the injury picture is equally troubling When a child falls from a sling fractures inevitably occur including skull fractures along with a host of other injuries that can be quite severe So i'm convinced we have a safety problem with slings that must be addressed What concerns me is the impact on sling producers a sizable number of whom are not just small manufacturers But as staff pointed out very small manufacturers with annual sales less than 50 000 And if staff points out this may well pose a significant burden to some of these small manufacturers And interestingly the greater challenge Evidently won't be meeting the substantive provisions of the standard But rather the tests with their products at independent third party labs And on this point reading the package i see varying estimates based on which assumptions one uses to estimate testing costs But the number at a minimum seems to reside around 200 Dollars to 650 dollars per model sample Numbers like this probably don't present a serious concern even to modestly sized firms But for the very small these numbers may well pose an existential threat And here's where the issue becomes so stark It would be wonderful if there were an inverse relationship between safety and size that is The smaller the company the less likely infants would be at risk But uh and alas the opposite seems to be the case As staff notes in the briefing package of the six sling recalls since 2001 Four involve small manufacturers of which two may have been very small with revenues less than 50 000 In fact one death of a 10 year old baby involved a very small manufacturer So in any inclination that I might have to exempt or minimize the testing requirements for small Sling manufacturers must give way to the very real need to have them do this testing if we're going to protect Infants from dangerous slings I carefully reviewed the alternatives offered by staff to reduce the testing costs on small businesses Unfortunately, I've reached the same conclusions as staff None of the alternatives that we haven't already adopted and I'm glad we did adopt some to lessen the burden Seems likely to work either for practical or legal reasons So I've concluded we should go forward with the rule and hope that our forecast of the economic impact Will be wrong mitigated or short lived Having said all this I want to repeat a concern and the chairman mentioned this also that I've raised for Years now and I'm not going to stop raising this concern That is I deeply regret that our friends in the test lab community have not stepped up to offer better And deeper discounts to the struggling members of industry who face significant testing costs I remind them that many within the test lab community saw their Revenue increased significantly with the arrival of third party testing requirements in the consumer product safety improvement act Surely this increased prosperity should move some Within the test lab industry to provide greater assistance to those who lie whose livelihoods are threatened by testing costs Now I realize drug manufacturers do not necessarily stand as a good example of altruism in action But I can't help noticing that even these firms have managed to come up with the partnership for prescription assistance That provides free drugs worth hundreds of millions of dollars a year to patients in desperate need of life-saving medicine I simply do not understand why the test labs have failed to adopt some kind of similar program To assist their customers and ultimately American consumers I therefore renew my plea to the test lab community Please work with these small and micro businesses to mitigate the necessary costs of making slings safer for babies. Thank you Mr. Robinson I also would like to thank staff and I'd like to thank STM and all of the commenters the 188 people who commented on our package I think this is just a wonderful example of us working with the business community and with the consumer groups To come up with a rule that's going to protect our babies I I looked at our hearing from two and a half years ago to remind myself of the things we brought up and commissioner adler Um, I brought up at that time, and I'm delighted that he did so today as well The calling out to the third party test laboratories to do some things to help relieve the burden on On small businesses. I at the time two and a half years ago Went through a history of the baby wearing back two million years and what people think that it has done For our society at or for or for the development of humankind. Let's say let's put it that way in fostering this Out of a womb experience for the baby in terms of being close to the parent And allowing parents to continue particularly moms, but boas points out to me the dads including him Wear them as well. So but it allows the parents to go on with the work that they have to do in a hands-free environment So these are these are products that have been with us forever, but we Have a particular duty here at the cpsc to make sure that we're protecting The babies in any way that we can who are carried in In these slings and find the best and most and safest and most cost effective path forward As I said, I voted in in 2014 to publish the npr this package And at that time went through why it is that I believe that slings are Durable infant products and we all know what our instructions from congress have been with respect to To our rulemaking under 104 and I reiterate that if congress didn't want us to do something with sling They certainly had the opportunity when they passed pl 112 28 to carve out slings as an exception to the 104 since we had explicitly said that they were A durable infant product and they did not do so So I think we have to read into that that they intended for us to go forward with what we're doing today We're aware of 17 deaths and 90 injuries related to slings And with the work of our staff and the stm subcommittee We believe that making the sling carrier Standard mandatory as directed in the cpsia will reduce and hopefully eliminate all deaths and injuries Related to sling carriers And that's why i'm going to fully support this rule That today the um effect on small businesses as commissioner adler has so eloquently expressed We wish that we could protect everyone But our assignment is to protect the consumers and I am delighted that our staff has so carefully gone through The alternatives it's very clear from anyone looking at this package that We all share a concern about the fact that we are going to have a substantial effect on some very very small businesses And we have um not we but our staff has very thoughtfully gone through each of the alternatives in how we could um lessen the impact on the businesses And has told us the ways that we can't even though we might want to do so So let me reiterate um To whoever the next chair is going to be that Maybe sitting here. Maybe not um that the that I am very willing to revisit the periodic testing rule Um and consider whether we should have some amendment to that because that is a regulation over which we do have control And I would encourage all producers whether small big or micro to look very closely At our component parts testing requirements And see if they can't come up with some ways to mitigate the cost of the third party testing in this instance And I would also encourage um all small and micro businesses to work with our excellent small business ombudsman If you're confused about any of the requirements, please work With with that office to see if we can mitigate some of the expenses And I just add my voice to commissioner adler's strong voice about urging Testing facilities to do their part in trying to lessen the cost For the small and micro producers I would also just like to add that I really appreciate the hard work that the baby carrier industry has undertaken to work with us And to work on the information and education campaign and as miss nester Indicated we are delighted that they are doing that and delighted to work with them in any way that our resources Allow and this is obviously very much a niche industry and if there's any group in this country I think that's plugged into product safety on the social media. It is new moms and new dads and um I would very much encourage that community to try to get information out To the the young people who are just beginning the parenting Chores and looking at how they can keep their babies safe and try to educate them in that way um So again, I just want to thank our staff the astm f2907 15 committee The baby carrier industry in developing a robust safety standard for infant slings We're reaffirming our commitment to ensuring that products used to care for our infants and children are held to the strongest safety standards And supporting this agency's sacred mission to protect the public from unreasonable risks of injuries from consumer products And I just think that once in a while we need to pause to Understand how fortunate we are in this country that we have this agency and that unlike so many countries throughout the world We are able to buy products here with the assurance that The government has done all it can to make sure those products are safe for our children. Thank you Thank you, mr. Chairman again I just want to join my colleagues in thanking staff for all of their hard work on this briefing package Across many disciplines there were many important contributions made to the package Especially hope Who was the project manager matt mercier from the office of general counsel? And then there was a real joint effort from the office of economics. So thank you all for your hard work on the package I had reservations about this rule from the beginning Although I voted to approve the publication of the npr I voiced my concerns about the limited potential effectiveness of the proposed rule The costs of the rule for manufacturers Particularly small companies and the legal doubt whether slings really qualify as a durable nursery product After reviewing the comments that were submitted in the rulemaking and the staff's analysis Unfortunately, my concerns have not been dispelled. I'm concerned first and foremost that we are putting Law abiding companies out of business because they can't afford to pay for the testing by third party laboratories as required I would be far less concerned about those steep costs If I were convinced that it was going to prevent injuries and death But I don't see that and I don't see that in the data And I hear my colleagues talk about the 17 suffocations This rule will not address As according to staff this rule will not address those suffocations And I think that's very important to realize this rule will not address the injuries that result from steps missteps by the caregivers And trips it does not going to address those two issues. Which are the leading cause of the deaths and of the injuries So most of the injuries as I mentioned are also unaddressed They are the results of slips and falls by the caregivers I believe in in educating consumers and I wholeheartedly support The efforts to make caregivers aware of the risks posed by the various types of slings But I think we can do that in any number of ways without imposing unreasonable costs on manufacturers as this rule does I believe in following the direction that congress gives us we've heard 112 28 mentioned multiple times here this morning I voted for 112 28 and I can tell you from firsthand experience No one said to me or no one indicated to me that what was In 112 28 we were talking about slings and we were talking about wraps That doesn't get down to that level of granulation And so I think it's incumbent upon us to go back to the hill and say is this what you meant Before we impose a mandatory standard on a lot of small businesses I doubt that many of those who voted in favor of cpsia had this type of rule of mind when they did so There was no voluntary standard for slings when cpsia was passed In 2008 so it can hardly be argued that congress expected us to do a section 104 rulemaking for slings Even if they would have agreed that slings are a durable nursery product I wish that section 104 gave us more flexibility than it does But I think we could exercise our discretion to avoid some of the problems we have encountered here At the very least where the consequences of the rule are so severe and the payoffs so slight We should never put that this rule ahead of others in the 104 q. Thank you, mr. Chairman You miss number of it. Thank you, mr. Chairman Going off script a bit. I guess I am motivated to address some of the comments about third party test burden and sometimes I have these moments Serving in this position where I think to myself Only in washington Only in washington only the federal government can get away with saying You know, we're going to needlessly impose Millions of dollars of regulatory burden and then in the next breath blame the testing industry for For doing the testing later and blame them for not doing it for free I mean only in washington can we say that and I have the utmost respect and admiration for all of my colleagues And I know you know that because we've worked together for for years, but I take great issue with Imposing needlessly imposing millions of dollars of burden Reams of paperwork burden Reams of procedural burdens at the border that's going to that's going to slow down Commerce that's going to directly impact small business and then blame The testing industry for doing the testing that the federal government required when we don't even really need to require it And in fact, we're not even willing to go back to congress To ask them are you sure this is a 104 rule? You know, are you really sure this is? Because with this comes a lot of consequences a lot of burden In the other product categories a lot of that absolutely necessary cribs high chairs strollers But this one as commissioner berger pointed out the voluntary standard Developed with all the best intentions that it did Will not address the injury patterns that we've seen tries to but you know To try to get a voluntary standard to have somebody not fall down While they're using a product is very difficult to do And you know, we're going into this thing with eyes wide open our talented staff made it absolutely clear to this commission How impactful this will be for those small entrepreneurs So when this full rule gets done, we're doing it completely with wide eyes We're open. We know what the consequences are and we're pointing our regulatory gun Right lock set in right on american small business And you know, if we really cared about the small about the testing burden, why don't we test it? We got a multimillion-dollar testing facility We want a third-party testing because congress said we want third-party testing So then you can sure it would be done independently nothing would be more independent than testing it at the federal lab I hope you'll consider Testing it for free out of our budget. We can do it. We've got better testing We've got better testing technicians And laboratory the shiniest new equipment than any third-party testing lab If you really care about it, you ought to consider doing it for free We ought to we ought to test it all for free at our at our at our laboratory But I just it's just one of those moments that I think you know only in washington Can we impose these costs and then and then blame somebody else for For executing what we're mandating but I want to thank staff Primarily for their hard work in this package. I regret that i'm unable to support it That shouldn't be seen as a reflection of staff's terrific efforts and the efforts of all of those who contributed to the voluntary standard I believe that the commission directed Our staff particularly toward the wrong goal In section 104 of the cps ia of 2008 congress directed this agency to take a closer look at quote durable infant or war toddler products and quote These products things like cribs high chairs strollers Had been involved in a number of cpsc initiated recalls in the years leading up to cps ia And they had been a major target of parents frustration in the year of the recall To help us ease that frustration congress gave us section 104 created a lot of work required a rule on registration cards and for dozens of Specified products, but it also came with a very handy tool It allowed us to skip our normal rulemaking processes and bootstrap Voluntary standards that procedural shortcut is a very powerful tool But as spider-man and as I keep reminding everybody with great power comes great responsibility We have the responsibility to use section 104 as express process For its express purpose establishing performance standards for durable Durable infant and toddler products. So there are three components Of responsible rulemaking under section 104 So if applied to this product category first, we can only use it to regulate infant or toddler products Those that are quote intended for use. So that may be reasonably expected to be used by children under the age of five Check we can't use 104 for lawnmowers or fireworks, but clearly sling carriers are infant products and meet that part of the standard two We can only use it to turn an existing voluntary standard into a mandatory one with some editing if necessary If there is no voluntary standard, there is no section 104 rule But again, there is a voluntary standard for sling carriers. So there's no problem here Third and this is where I see an insurmountable problem. It's that The products must be durable And on this point cps ia definition doesn't help us much The act defines a durable infant or toddler product is quoted a durable product in quote Intended for kids under five. There is no section 104 definition of the word durable But even as the only non-lawyer in the commission I know that the basic rules of statutory construction tell us two things about what congress intended first congress meant something By using the word durable. We should not read words out of a statute We should not turn them into quote mere Surplusage which has to be the most lawyerly term ever except for just positive, which I hear a lot and I always have to look up Second give you use that a lot. I heard you chuckling in the absence of a definition We should give the word its ordinary or natural meaning We shouldn't come up with whatever torture definitions fits our purposes So if section 104 and the members of congress who over and over again talked about enhancing the safety of durable infant and toddler products Use that word in its ordinary sense. We need to look at what the ordinary sense is The department of commerce considers a product to be durable if it has an average expected useful life of at least three years There are three key terms there beyond the number average expected and useful There are military buffs who collect and eat leftover rations from vietnam korea and even world wars They are these are 50 60 70 year old meals that people consume survive and I guess enjoy more or less That doesn't make food a durable product We generally expect people to eat food relatively soon after its production And most food doesn't have an average useful life of longer than three years except maybe a twinkie By and large. Thank you. By and large textiles on their own are not durable Of course your grandmother's handmade quilt will stay in the family for generations But the exception does not make the rule many of these products covered by the rule will be 100 fabric Simple bands of cloth that can be wrapped and tied to create a carrier Many others will be ring slings bands of cloth with one or more rings to help form the structure Such products simply do not meet the common definition of durable And so they are beyond our authority to regulate under section 104 Even the more elaborate slings are still a far cry from the products that are actually listed in section 104 Those products cribs cribs beds strollers and the like Are generally sturdy bulky products made of wood plastic or other genuinely durable materials They generally require extensive assembly slings can go from a box to a baby in a matter of seconds Slings do not walk like ducks. They don't quack like ducks ergo. They are not ducks I understand completely the impulse to try to stretch the definition as far as possible Of 104 durable nursery products to use section 104 to regulate anything an infant or toddler might touch Doing so allows us to skip the detailed analysis and findings required under section nine of the consumer product safety act But we should remember two things first Skipping the hard stuff isn't always a good idea Section nine ensures that the economic harm of our regulation won't dwarf their safety benefits Every time we use section 104. We risk making mistakes. We could not otherwise make Second even where the shortcut is desired by the commission. We still have to have the legal authority to go that route Taking the path of least resistance may feel good right now But it won't feel so good if congress or court admonishes us for taking unfair advantage of a powerful but limited procedural tool One of my favorite quotes one i've used over and over at the cpsc comes from justice felix frankfurter He wrote that quote the history of liberty has largely been the history of observance of procedural safeguards end quote In section 104 of cpsia the word durable Is a procedural safeguard And to foreshadow a bit We've seen what happens when you take a safeguard off People get hurt People lose fingers sometimes In our case liberty and the rule of law get hurt. Thank you, mr. Chairman This concludes this portion of the public meeting We will take a break until 11 o'clock and resume with the second part of our agenda. Thank you