 Good morning everyone and welcome to this public meeting of the United States Consumer Product Safety Commission We have one item on the agenda this morning And that is a decisional meeting on the desk on the staff's recommendations for amendments to the Commission's fireworks regulations We have staff members with us here this morning in case that there are any questions before we take a vote The CPSC staff members at the table are dr. Rodney Valeri Did I say that right? It's Valier Valier Dr. Andrew Statenick and who is the associate executive director for lab sciences and Ms. Meredith Kelch office of general counsel So welcome to all of you and thank you for being here and thank you for Really, I know we've all had questions over the last year year and a half two years and Appreciate your availability to answer those questions each commissioner may have up to five minutes for staff questions And we'll go multiple rounds if necessary Following questions for staff we will turn to consideration of staff's recommendations so I will begin with the round of questions and I don't have any questions at this time Commissioner Adler Thank you very much madam chair, and I just wanted to show everybody that this has been a weighty issue if nothing else Physically and metaphysically, and I only really have one question and that's just I forgot where things stand with the DOT standard Has DOT now officially? Developed a standard that reflects what the APA requirements are for fireworks Um To my knowledge DOTs they put out a notice of proposed rulemaking Which is similar to what the prep staff proposed in this briefing package. It's currently in the comment period which closes October 15th I believe So so the DOT reflects what is in the staff briefing package Which would mean allowing a contamination level of metallic compounds up to 1% So the updated APA standard 87-1 which is what DOT is now proposing to incorporate by reference in place of 87-1 Includes a 1% contamination allowance in the appendix to the APA standard The appendix specifically has a statement saying it is not incorporated by reference by DOT So Given the short nature of the NPR DOT put out It's not clear whether they would be explicitly Incorporating by reference that limit or sort of Indirectly by incorporating by reference the APA 87-1 a standard which includes that in a non-required appendix That is a brilliant exposition of the law. It adds to my general confusion about this, but I very much appreciate Thank you. I have no other questions Thank You commissioner Kaye. No questions. Thank you madam chair commissioner Bianco I do thank you at the we were all here about this time last year and at the end of that hearing I had asked I Said I would be interested in getting some more data because at that time My understanding was that we had talked to 20 or 30 people following up from some of the niece data that we had and That I was hoping that we Could get more data because and I'm reading from the transcript because at this point It strikes me as a lot of the recommendations that were made are based on a very small data point I think I counted 26 times that the staff used either cannot quantify Unquantifiable and so forth and so I was hoping that we would get more data Have we gathered any more data since the last time we met here? No, we have not. Okay. Thank you. That's all I have Thank you commissioner Feldman Thank you, and thank you for holding the meeting this morning. I Just want to thank staff for all the hard work that they put into this It's it's voluminous and clearly a lot of effort has gone into preparing the briefing package that's come up I have no questions at this time, and I'm gonna reserve the right to offer a comment for the record at some point later on But having having no questions right now. I think we can keep this moving Thank you Having heard no further questions staff has dismissed That was easier than probably anticipated and again just to comment on behalf of all my colleagues Thank you for all of your work on this package Run as fast as you can At this time I move that we consider the staff's recommendation for a final rule as reflected in the briefing package Do I have a second? Second thank you I wish to explain one point about my motion that is before the Commission if we approve the staff's Recommendation for a final rule today, then the office of general counsel will prepare the text of a federal register notice It is my understanding that the text of the federal register notice would return to the Commission for a further vote Under our rules, however, there would be limitations on the extent to which that text could be modified Therefore, I understand that one or more commissioners may wish to amend my motion So that there is more flexibility to change the text of the final rule. Is there a amendment to that effect? There is but before I offer it madam chair if I could just seek a clarification what Would the limitations be for the Commission so it sounds like We would definitely see it again, and we would definitely vote on it again I'm just not clear what the limitations would be if somebody could explain that place We could have general counsel rather than me giving in my opinion. We'll ask general counsel to opine To briefly summarize the limitations are that the vote on the federal register notice Would not be of a substantive nature so as to change the underlying action of the Commission And you don't have to give us legal advice obviously and I appreciate that but I'm I guess I'm saying as a statement that that's because of the Commission's decision-making procedure is a specific provision in there. Is that what's guiding this? That is one of the decision-making procedures says that the federal register notices and other similar documents are implementing documents and not decision-making documents, so So what the decision-making procedures attempt to do is to provide a bright line Between what a decision-making document is and what an implementing document. Okay. Thank you miss hands I appreciate that clarification and then madam chair in light of that. I would Move to amend your motion And would you like me to read the amendment? The amendment that I would offer is staff is directed to prepare a draft final rule Federal register notice for commission consideration that includes all of staff's recommendations in the briefing package dated September 26 2018 the draft final rule read federal register notice shall not be treated as an implementing document not with standing sections to L and 10a of the Commission decision-making procedures Thank You Commissioner K. I will recognize you for three minutes to introduce your motion and then I will ask for a second Okay, thank you madam chair. I don't need I don't think I need three minutes. I'm not even sure I need 30 seconds Basically, I would just Prefer that if the Commission were to see this again that we would have the full rights To consider this package as any other package that's in front of the Commission Especially because it's a final rule that as any final rule could be subject to further Action in the courts. Thank you Thank you very much Commissioner K Is there a second second Having heard a second we will now move to consideration of commissioners K Commissioner K's amendment each commissioner will have five minutes to address the amendment and if you have any questions regarding The amendment you may yield their time to Commissioner K to for an immediate answer Otherwise, we'll return back to Commissioner K at the end and he may address any of the questions. I have no questions Thank you Commissioner Adler Just a quick comment. I approve in concur with the sentiment that Commissioner K's expressed. This is a very controversial package I'm not sure we're going to get a majority Vote today, but the fact is even if we did this is one of those Issues where if we got more data is Commissioner Bianco suggests we might want to reexamine our assumptions in this But it does seem to me that we should not tie our own hands in further consideration of the package So I do support Commissioner K's Amendment. Thank you Commissioner Bianco I'm still confused and I'll tell you why I'm looking at the vote sheet And so the first page of the vote sheet says if the Commission votes to issue a final rule The office of the general council will prepare and submit for the Commission approval a federal register notice Notice for the final rule and then here are our choices for voting approve the final rule as Recommended by the staff's package That doesn't in my mind doesn't square another choice is approve the issuance of a final fireworks rule with the following changes Do not approve the issuance of a final rule or take other action I'm having trouble squaring the choice of approving a final rule and Putting it in the federal register Is that directed to me? It's directed to anybody who can answer or help me with my confusion Okay One on I start and then if somebody else wants to jump in because I'm going to explain it vis-a-vis my motion or my amendment And if somebody else wants to explain the larger procedure, that's fine. So from my understanding What we are doing today supersedes what's on that yellow paper because that was drafted and gave us different choices And we're considering something that's a binary choice in essence or would be under the motion that was presented by Chairman let me stop you so when was it superseded because this is still the same piece of paper that I had from a year ago And we haven't done a thing since a year ago except scheduled this this hearing. So that's what I'm confused Where's the superseding? Yeah, I think it's just the difference of when we try to vote by ballot versus voting in person here It's just the sequencing of the votes has to be different because you can't just take a menu of choices And just sign your name to one of them. So it's the same substantive issue We just have to amend that process to deal with voting in a decisional as to voting on paper So what we're trying to do I believe is have a vote today in the decisional consistent with sitting here up on the Dias that allows for an up-down choice on whatever is in front of us either with or without amendments But every vote we take is one up-down choice on one single question as opposed to having a menu of questions I understand that but we had this very we were supposed to vote the last time was my understanding on this Set of choices that hasn't changed I've been giving nothing new and now I come today Expecting to vote on these choices to hear that it's been superseded and we're gonna do something differently And I don't know where that came from. Yeah, and I guess that is you know gonna be sustainable at all I just think it's the difference like I said between trying to work a ballot sheet or a sheet to where we Vote on paper versus having to fit it into a decision I don't think is anything more than that from my perspective, but if somebody else wants to jump in they certainly can I Would only offer that We have before us staffs recommendations For a final rule if we vote up or down on the package Then we vote up or down on accepting staffs recommendations and What's here before us this morning is when the package came up? It didn't have a federal register notice So I think that is where some of the confusion is we're voting that that federal register notice for the final rule come back To the Commission and it's my understanding your amendment is will provide the Commission the ability to have a look at and Perhaps have more the ability to engage and to make changes in that federal register notice Whereas the current meant my motion would not allow that flexibility correct Okay, if that's the distinction and I heard you I have no questions. Thank you Mr. K. Is there anything you wish to add to your amendment? No, thank you madam chair But this time we will take a vote on Commissioner K's amendment He directed staff to prepare a final rule. I won't reread it, but we all have it before us Commissioner Edler, how do you vote? Yes, Commissioner K? Yes Mr. Biakko no Commissioner Feldman no and I vote no the no's are three the eyes are two Commissioner K's amendment is not passed Are there any other amendments? Are there any other amendments before or motions before the Commission? So at this time we will vote on the my underlying motion in the package that is before us Missioner Edler, how do you vote? Yes, Commissioner K? I'm going to abstain Commissioner Biakko no Missioner Feldman no and I vote no The no's are three the eyes are one and the abstention by Commissioner K is one So the package before us does not Pass and there will be no federal register notice because So what has taken place here this morning? There will be no federal register notice Commissioner K's amendment did not pass so it is not part of the discussion, but since the underlying motion failed as well There will be no federal register notice coming to the Commission we will now Take time for closing argument or closing statements if anyone has them Commissioner Edler I Don't have much of a closing statement other than I wanted to reiterate my great Appreciation to staff and I also want to express my appreciation to the very stakeholders that have come in to advance with great Intensity and passion their perspectives on this it is not the case that at least as far as I'm concerned I'm sure my colleagues as well haven't looked at this haven't pondered it haven't Deliberated at great length and agonized over what the proper course of action is this is just not an easy decision I certainly respect the views of my colleagues who voted no and This will be something that I hope at some point in the not too distant future We will revisit but again, I just want to thank everybody who participated in this and let you know We really did take what you said seriously Thank You Commissioner Edler Commissioner Kaye. No statements. Thank you, ma'am chair. Thank you Commissioner Bianco Not really a closing statement, but I would note that I cannot support this package because I think it is not only Substinitively but procedurally deficient. However, I do want to note that Like Commissioner Edler, I studied this probably more than any other issue since I've been at the CPSC and really Struggled to find a way to move forward. What is conceptually perhaps a very good point It there just was not in my opinion enough science to back it I will also point out that in my meetings with All of the stakeholders that participated there are some points in the staff's package that Everyone agrees on and I would like to see hopefully that the stakeholders will move forward with a voluntary Standard or at least put into place the things that they agree on Despite the fact that the way the package came up to us. I I cannot support it at least in its current its current state So, thank you. Thank you, Commissioner Bianco. Commissioner Feldman Thank you. I have no additional comments at this time But would want to reiterate my statement earlier about my deep appreciation for all the hard work that staff has put in on this Thank you Thank you again as heard by my colleagues to the staff for all of their work on this package and to Commissioner Edler's point This is an issue that we've had a tremendous amount of engagement from the stakeholders They've provided a lot of clarity on this issue We had a public hearing on this issue and it is not one that any one of us took lightly or didn't Didn't understand what was trying to be accomplished And so I just want to thank all the stakeholders for their role for all of their feedback for taking the time to come Meet with us as well Thank you to the office of the secretary office of the executive director office of general counsel into rock grant our Audiovisual specialist for facilitating this hearing at this time We will conclude the public meeting of the United States Consumer Product Safety Commission. Thank you very much