[00:00:00] Speaker 00:
Phase number 21-1071, Lisa Moulisse, Petitioner versus Consumer Product Safety Commission.

[00:00:07] Speaker 00:
Mr. McLean for the petitioner, Ms.

[00:00:09] Speaker 00:
Dixon for the respondent, Mr. Fee, Amicus Currier for the American Society for Testing and Materials.

[00:00:22] Speaker 08:
Good morning, Your Honors.

[00:00:23] Speaker 08:
May I please report?

[00:00:24] Speaker 06:
Good morning, Counsel.

[00:00:26] Speaker 06:
You may proceed.

[00:00:28] Speaker 08:
Good morning.

[00:00:29] Speaker 08:
I'm Jared McClain with the New Civil Liberties Alliance on behalf of Lisa Melisse, the petitioner in this case.

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As an expectant mother, Lisa Melisse tried to see the binding standards that govern the safety of the products that she was looking to buy for her child's nursery.

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But the Consumer Product Safety Commission, the agency tasked with assisting consumers and evaluating risks,

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only makes two copies of those safety standards available, both of which it keeps near its office in Bethesda, Maryland.

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And even for those citizens fortunate enough to be able to travel to Bethesda, Maryland, they are expected to memorize these intricate and technical safety standards because the commission forbids photocopying and otherwise disseminating the law.

[00:01:14] Speaker 06:
So council, would you address the jurisdictional issues?

[00:01:19] Speaker 08:
Yeah, I'd be happy to, your honor.

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Since it's jurisdiction, we should start with the statute and both the CPSA and the APA treat the terms promulgate and publication as distinct terms.

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I think ASTM's letter suggests that the terms are synonymous, except promulgate means the agency's formal proclamation that a rule is final and will take effect.

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It's the final agency action that's consummated through the rulemaking process.

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That's the rule from Bennett versus Speer.

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A rule cannot be final for review until an agency has consummated the decision-making process.

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It must not be a merely tentative or interlocutory nature.

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It must determine rights or obligations or trigger legal consequences.

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And what the agency did here was use a direct final rule process

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rather than a formal notice of comment with a separate publication of a final rule.

[00:02:18] Speaker 06:
And so are you addressing statutory timeliness?

[00:02:24] Speaker 08:
Yes.

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So under under 2060 a an interested person, a consumer has 60 days to petition from the date of promulgation.

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And our argument, your honor, is that there was no final agency action.

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There was no promulgation in this case.

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until the effective date.

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And I know that's not typically the rule, but this isn't a typical promulgation.

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This was a direct final rule.

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And what the agency said in its direct final rule was that the agency was proposing a rule and providing an opportunity for comment.

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And if one of those comments were adverse, the agency would pull the rule because direct final rulemaking is typically used for uncontroversial rules.

[00:03:05] Speaker 06:
And in the event- Let me just be clear, counsel.

[00:03:09] Speaker 06:
The reference that's in the federal register refers to a significant adverse comment within 30 days.

[00:03:22] Speaker 06:
Correct.

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And it describes

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what it means by a significant adverse comment.

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So it says, the commenter explains why the rule would be inappropriate, including an assertion challenging the rules underlying premise or approach or a claim that the rule would be ineffective or unacceptable without change.

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So two questions, one, did your letter

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do any of that?

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And secondly, when did Mrs. Melisse file a comment?

[00:04:06] Speaker 08:
Well, addressing your first question first, Your Honor, our letter did suggest that there was a problem with the agency's rule that the agency still needed to address because the agency- Who's our letter?

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Who's the R in our letter?

[00:04:20] Speaker 08:
The letter was filed by my co-counsel in this case, by the New Civil Liberties.

[00:04:28] Speaker 04:
Did it say it was on behalf of Ms.

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Maliche?

[00:04:31] Speaker 08:
It did not, Your Honor.

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It was done by the organization itself in its own capacity?

[00:04:36] Speaker 08:
Correct, Your Honor.

[00:04:38] Speaker 04:
I thought Judge Rogers had asked you where Ms.

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Maliche, I'm sorry if I'm not pronouncing her name correctly.

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Malice, it's okay.

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Malice, I apologize.

[00:04:47] Speaker 04:
getting her more Italian than I should have.

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Where did Miss Melisse file a comment?

[00:04:54] Speaker 08:
Your Honor, Miss Melisse did not file a comment.

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And we don't even need to deal with that rule about substantive comments.

[00:05:02] Speaker 08:
Well, we do, Your Honor, because the

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The agency put the public at large on alert that this rule would become final only if it did not receive adverse comments.

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So any member of the public who's looking on regulations.gov and following the rulemaking process would see that this comment was filed and the only way to know whether the agency has considered this to be an adverse comment is

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through the agencies in action.

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Some other agencies will file a confirmatory notice after the comment period to confirm for the public that there were no adverse comments, but the way CPSC structured its direct final rule was to say if we have not filed anything else before the effective date, then we have not

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filed an adverse comment and the rule will take effect on the effective date.

[00:05:50] Speaker 04:
And so until that point- Do you have any case where we filed the, we applied the incurable prematurity doctrine to someone who hadn't filed for further consideration or reconsideration?

[00:06:03] Speaker 08:
I do not, your honor.

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But I just point out that there's also no cases that deal with direct final rules because direct final rules

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by their very nature remain tentative and are not final agency action until the agency confirms that it has not received any adverse comments.

[00:06:26] Speaker 04:
And- Sorry, so the agency, does the agency here routinely then publish in the federal register?

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We didn't receive any material adverse comments.

[00:06:36] Speaker 08:
So some agencies do, and the way that CPSC- I'm talking about this agency here.

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No, this agency only lets the public know through its silence.

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If the agency has not filed a subsequent publication in the Federal Register by the effective date, then the rule will take effect as proposed.

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And I just point out, Your Honor, too, that

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under a construction that equates promulgation with publication and the direct final rule process, the public would be forced basically to choose between commenting or filing a preemptive lawsuit, a preemptive petition for review in court.

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And that's why we brought up the incurable prematurity doctrine because the same principles apply here in that I believe Judge Ginsburg

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pointed out that the purpose of the doctrine is to avoid needless litigation over agency action that is not yet final and might be mooted by a subsequent action by the agency that the agency has already been taken, has already been asked to engage with.

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And any member of the public who would go to regulations.gov would see that there's a comment,

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multi-page comment raising serious constitutional arguments with the agency's practice and would be processed, but not challenging the substance of the standard at all.

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Correct, Your Honor.

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But I point out, Your Honor, and the first argument in our brief is that it's very difficult to challenge the substance of the standard because the agency has not made the standard available to the public during the rulemaking process.

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And so anyone who wishes to participate is forced to go to a third party and purchase a copy of the standard.

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And they'd also be, they might also purchase a red line copy of the standard, which compares

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the proposed standard, not to what the correct binding safety standard is that CPC has adopted, but instead compares it to a different ASTM standard that was never incorporated into law.

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So the arguments that were raised in the adverse comment were to process, but they were also to the public's ability to question the substantive.

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So when did this become final in your view?

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In our view.

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If you don't publish anything else, how do we know?

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In our view, the rule would become final agency action when the agency had not published anything else by the effective date.

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So the clock would begin to run for judicial review on the effective date.

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And if you look at the text of the rule, that supports our theory because the text of the rule says that the rule will not be deemed incorporated by reference into the federal register until its effective date.

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So the rule, by its own terms, remained tentative until the effective date and was not incorporated into the Federal Register and finally published until its effective date.

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And I recognize that this isn't the typical formal rulemaking process, but that there's a reason that direct final rules are not typically challenged in this court.

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Can you direct us to any time when our court or any court has said that

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promulgation is the effective date rather than the date of notification in the federal registry?

[00:10:08] Speaker 08:
Well, in this case, Your Honor, the dates are the same.

[00:10:15] Speaker 08:
There was the initial proposed rule that was filed.

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At that point, it's just a proposed rule.

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And the rule actually becomes formally incorporated by reference on its effective date.

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So I understand Your Honor's question that in most instances there is a formal final rule published and then there's a lag and then there's an effective date that the agency might set 90 days or a year down the road and you have to sue from the publication of the final rule rather than the effective date.

[00:10:44] Speaker 08:
But in the direct final rule context on which admittedly there is no case law on direct final rules.

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But in the direct final rule process, the way that CPSC has structured this specific direct final rule, the rule remained tentative until its effective date, and it was not incorporated by reference into the Federal Register until its effective date.

[00:11:06] Speaker 08:
So this is a bit of a unique circumstance in that respect, Your Honor.

[00:11:10] Speaker 04:
Tell me what you mean.

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by direct final rule.

[00:11:14] Speaker 04:
You mean just without notice and comment?

[00:11:16] Speaker 04:
Is that what you mean by that?

[00:11:17] Speaker 04:
Because it was definitely promulgated in the federal register and announced in the same way that a final rule would be after notice and comment rulemaking.

[00:11:27] Speaker 08:
So the direct final rule process sort of collapses the notice of proposed rule and the final rule into the two steps that are typically, there's two publications and the direct final.

[00:11:37] Speaker 04:
In both situations.

[00:11:39] Speaker 04:
I just don't know how this is any more

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a direct final rule than an agency publication of a final rule.

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after it has completed notice and comment rulemaking.

[00:11:48] Speaker 04:
We're at the same point.

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Congress doesn't require notice and comment rulemaking here in this context.

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And so in this context, just assume at least, if you disagree, you can explain why later.

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Assume there's no notice and comment obligation here.

[00:12:02] Speaker 04:
This final rule is the same as any other final rule.

[00:12:04] Speaker 04:
I don't understand why it's more direct final rule and why that would change all these jurisdictions.

[00:12:08] Speaker 04:
I'm just not understanding why that changes all our precedent in the jurisdictional calculus.

[00:12:13] Speaker 08:
Well, so in the direct final rule process, by its terms, the rule remains tentative and open to the agency.

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The agency says, if we receive adverse comments, we will pull this rule.

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And I direct the quote.

[00:12:27] Speaker 04:
Any case that is said when these things are published in the federal register, they're not a final rule.

[00:12:32] Speaker 04:
They're tentative for benefit purposes.

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They couldn't even be challenged until the effective date.

[00:12:38] Speaker 08:
Yeah.

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Admittedly, Your Honor, there is no case law on direct final rules.

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And I direct the court to, there is a law review article that goes into detail.

[00:12:48] Speaker 04:
Yeah, I got that.

[00:12:49] Speaker 04:
But you don't have any case law that's drawing this distinction that you're advancing to us.

[00:12:53] Speaker 08:
I'm not, Your Honor.

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And I do not, Your Honor.

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And I'd suggest that that's because the direct final rule process is typically challenged, is typically reserved for rules that are deemed by the agency to be non-controversial.

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And they're not expecting public comment.

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And when there is an adverse public comment, the agency is required to pull the role and engaged in the formal rulemaking process.

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So there's typically not an opportunity for judicial review because if the agency follows the terms of the process that it sets out, the case never ripens for judicial review.

[00:13:24] Speaker 06:
So your argument then, in a nutshell, I don't mean to misrepresent in any way and correct me if I'm wrong, is that taking

[00:13:36] Speaker 06:
This direct rule process, as the agency has described it in the Federal Register in September of 2019, the rule became effective December 22nd.

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And there was no way for your client to have

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provided any significant adverse comment because the rule itself was not sufficiently available to you?

[00:14:21] Speaker 08:
Correct, Your Honor.

[00:14:22] Speaker 08:
I sort of separate that, parse that out a little more and say that

[00:14:28] Speaker 08:
that the reason that our comments were limited to the unavailability of the rule was because the rule was unavailable.

[00:14:38] Speaker 08:
But I'd say as to the direct final rule process, our argument is that by the very terms of the direct final rule that was published by CPSC, when they published the rule, they said that this will only go into effect if we do not

[00:14:56] Speaker 08:
receive adverse comment and we will let you know through our inaction that we have not received adverse comments so there was no way for the public to know that there was final agency action until the effective date.

[00:15:10] Speaker 08:
that a rule must not be merely tentative or interlocutory.

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And by its nature, this rule is interlocutory.

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And the rule specifically stated that it would not be incorporated by reference into the federal register, which would put the public on notice that this rule now triggers legal consequences.

[00:15:28] Speaker 08:
That did not happen until the effective date in this case.

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And I recognize that that's different than the typical rulemaking process.

[00:15:35] Speaker 08:
And Your Honor, I see that

[00:15:37] Speaker 08:
I'm well past my rebuttal time and into.

[00:15:40] Speaker 06:
Well, you're trying to help the court understand this process.

[00:15:44] Speaker 06:
So I don't think you're holding you in that.

[00:15:48] Speaker 06:
Yeah.

[00:15:49] Speaker 04:
Thank you, Riley.

[00:15:51] Speaker 04:
In 2056A, Congress itself says in this context where you're not challenging the substantive standard, underlying standard itself, your whole case is about an amendment to the standard.

[00:16:05] Speaker 08:
Yeah, a revision, Your Honor.

[00:16:06] Speaker 04:
Yeah.

[00:16:08] Speaker 04:
And Congress said it's gonna take effect unless the commission decides that it doesn't improve safety, right?

[00:16:18] Speaker 04:
So it actually makes things worse, not better.

[00:16:20] Speaker 04:
That's essentially, otherwise the commission has no choice.

[00:16:26] Speaker 04:
Do you read this federal register language

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as defying this congressional command or putting into effect this congressional command.

[00:16:37] Speaker 04:
Unless we get a comment that shows that this is less safe, it's going into effect.

[00:16:43] Speaker 04:
Or you think they were adding something else in, unless you think it's less safe or you don't like the process, it won't affect.

[00:16:51] Speaker 08:
Yeah, Your Honor, the language that you're referring says that it'll go into effect if the agency determines that it's going to make things more safe after 180 days or a separate time that the agency publishes to the federal register and the agency invites Pope.

[00:17:09] Speaker 04:
The only basis on which they cannot let it go into effect that it's less safe.

[00:17:13] Speaker 04:
Correct.

[00:17:14] Speaker 04:
And there was nothing in your comments that was about less safe.

[00:17:21] Speaker 08:
Our comments were that it's impossible for the public.

[00:17:27] Speaker 04:
We don't know.

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That's not a comment that is less safe.

[00:17:31] Speaker 08:
But that is a comment that is asking the agency to withdraw the rule and go through the floor.

[00:17:38] Speaker 04:
But they got a congressional command here that it takes effect unless it's less safe.

[00:17:42] Speaker 08:
unless the agency sets a different date in the federal register.

[00:17:46] Speaker 04:
And when they do that, they can do, they don't have to have it take effect for all different reasons.

[00:17:50] Speaker 04:
I would have thought this congressional, they could maybe have a different timeframe, maybe a shorter one if it was urgent for public safety.

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But we're dealing here with a particular category of products that Congress wanted safety over everything and wanted the agency to move quickly.

[00:18:07] Speaker 04:
Your theory is that the agency could have said,

[00:18:11] Speaker 04:
Oh, this won't take effect for procedural reasons.

[00:18:15] Speaker 04:
We won't have safer baby bath seats for six months or a year while we deal with this procedural issue.

[00:18:25] Speaker 04:
Do you think they have a duty to do that under the statute?

[00:18:30] Speaker 04:
I think that reading the statutory scheme as a whole, Congress- Do you think they have a duty to do what I just said under the statute?

[00:18:38] Speaker 04:
to hold up on making BFF seats safer for six years a year while they address a procedural debate?

[00:18:46] Speaker 08:
Well, I'd suggest, Your Honor, that the procedural debate and the standard being available during the public comment period, the agency itself determined that public comment would help ensure that this.

[00:18:58] Speaker 04:
I would just like a yes or no question.

[00:19:00] Speaker 04:
So you read this statutory language as saying safety will be cast aside and postponed if there's a challenge on another ground and challenge the substantive safety.

[00:19:10] Speaker 04:
It may be a procedural one.

[00:19:11] Speaker 04:
You have a procedural one here, no doubt.

[00:19:15] Speaker 04:
That's your view of the statute.

[00:19:16] Speaker 08:
My view of the statute is that I agree.

[00:19:20] Speaker 08:
Yeah, I agree with your honor that the statute is designed to promote more safe standards and the the agency decided that

[00:19:30] Speaker 08:
by opening this up to public comment, it might promote more safety standards that are safer and the public might have something to say.

[00:19:37] Speaker 08:
And our point was that there's no way for the public to properly engage in that process and ensure that these are the safest safety standards unless the standard is available during that process.

[00:19:52] Speaker 04:
When did ASTM post this standard on its website?

[00:19:56] Speaker 08:
After we, my understanding, your honor, is that ASTM has changed the structure and nature of its reading room after we filed our petition for review in this case, as the CPSC has also changed the nature of its reading room in that now it now exists that if you do contact the agency, they are now, they do now seem willing to provide access to their Bethesda reading room, but that access is still limited to its Bethesda reading room.

[00:20:27] Speaker 08:
And that was all in response to this petition for review, Your Honor.

[00:20:31] Speaker 04:
And Ms.

[00:20:33] Speaker 04:
Melisse attempted to review this in the reading rumor from ASTM prior to?

[00:20:43] Speaker 04:
Correct, Your Honor.

[00:20:45] Speaker 04:
On what date?

[00:20:46] Speaker 08:
She contacted, Ms.

[00:20:49] Speaker 08:
Melisse contacted exact date, it was in January at some point in preparation for

[00:20:57] Speaker 06:
It's in her affidavit.

[00:20:58] Speaker 08:
It's in her affidavit.

[00:21:00] Speaker 08:
Yeah.

[00:21:02] Speaker 08:
And what she was told by CPSC was we get calls like this all the time and we can't make the rules available because basically that's ASPM's intellectual property and they have to make money somehow.

[00:21:12] Speaker 02:
But she didn't even contact them until after the effective date.

[00:21:16] Speaker 02:
She didn't contact them during the comment period, right?

[00:21:20] Speaker 08:
Correct, Your Honor.

[00:21:21] Speaker 02:
So, I mean, explain to me

[00:21:28] Speaker 02:
I mean, we have a situation where she doesn't make a comment to the extent that she seeks to know what the standards were.

[00:21:38] Speaker 02:
She doesn't do so until after the comment period has expired and the regulation is now effective.

[00:21:49] Speaker 02:
So, you know, why are we here?

[00:21:53] Speaker 08:
We're here, Your Honor.

[00:21:55] Speaker 08:
I note that during the comment period, Ms.

[00:21:57] Speaker 08:
Valise would have been at the beginning of her first trimester and not exactly looking at infant Batsy safety standards yet.

[00:22:05] Speaker 04:
But she doesn't have a stand in them.

[00:22:08] Speaker 08:
Excuse me.

[00:22:09] Speaker 04:
Sounds like she wouldn't have had standings.

[00:22:11] Speaker 04:
I'm getting very confused.

[00:22:12] Speaker 04:
You're saying that during the relevant time period, she wasn't injured because she didn't wasn't thinking about baby.

[00:22:18] Speaker 08:
When the common period open she was she was pregnant and but she was she wasn't she wasn't.

[00:22:26] Speaker 04:
One can think about baby safety and not the trimester right here.

[00:22:32] Speaker 08:
No, you're absolutely correct, Your Honor.

[00:22:35] Speaker 08:
But I note that the standing in this case is conveyed on this release through statute, which says that consumers are able to petition for judicial review of these standards that are promulgated by the agency.

[00:22:49] Speaker 08:
And under our theory, the

[00:22:52] Speaker 08:
The rule did not become.

[00:22:54] Speaker 04:
She claimed to be aggrieved by the standard.

[00:22:56] Speaker 04:
She claims to be aggrieved by the process.

[00:22:59] Speaker 04:
And then it's a process that you're saying she didn't, she wasn't actually yet interested in at the relevant time.

[00:23:10] Speaker 08:
I understand your comment, Your Honor.

[00:23:13] Speaker 08:
And I think my response.

[00:23:15] Speaker 04:
Go ahead.

[00:23:16] Speaker 08:
Sorry.

[00:23:17] Speaker 08:
I understand your question, Your Honor.

[00:23:19] Speaker 08:
My response would be that,

[00:23:22] Speaker 08:
Ms.

[00:23:22] Speaker 08:
Melisse was pregnant and was in the consumer market for consumer products during the rulemaking period.

[00:23:30] Speaker 08:
And she filed her suit within 60 days of the rule becoming a final agency action as 2060 requires.

[00:23:39] Speaker 08:
And so she meets the statutory burden for standing in this case.

[00:23:44] Speaker 08:
If the agency were to have raised that Ms.

[00:23:48] Speaker 08:
Melisse didn't personally file a comment, perhaps that would be a different case, but the agency did not raise that as a defense in this case.

[00:23:56] Speaker 08:
And that, I believe, would be a forfeitable.

[00:23:59] Speaker 04:
If it's jurisdictional, of course, we have to raise it ourselves.

[00:24:01] Speaker 04:
You agree with that?

[00:24:03] Speaker 08:
If what, Your Honor?

[00:24:04] Speaker 04:
If it's jurisdictional, we have to raise it ourselves.

[00:24:06] Speaker 08:
No, I agree with you.

[00:24:07] Speaker 08:
And that's why I'm suggesting the court that under the statutory jurisdictional requirement, Ms.

[00:24:13] Speaker 08:
Melisse does qualify.

[00:24:15] Speaker 08:
And if there were some quibbling about whether or not she personally filed an adverse comment in this case, it was incumbent on the agency to raise that.

[00:24:25] Speaker 04:
And now that she can see it online for free now, and this isn't a damages action.

[00:24:33] Speaker 04:
And I haven't heard that since it's available online for free now that she has identified substantive concerns with the safety of the standard.

[00:24:45] Speaker 04:
So what remedy are you seeking?

[00:24:50] Speaker 04:
You ask us to get rid of a rule that makes bath seats

[00:24:55] Speaker 04:
safer because of a process that she now knows wouldn't have changed.

[00:25:02] Speaker 04:
She doesn't claim, at least doesn't argue, would change her view of whether this rule should have gone forward because it makes bath seats more safe.

[00:25:13] Speaker 08:
Your honor, Ms.

[00:25:14] Speaker 08:
Feliz would be satisfied if this court kept the rule in place but remanded

[00:25:18] Speaker 08:
for a rulemaking process with the standard open to the public and required that the agency.

[00:25:25] Speaker 04:
She can see it now free online.

[00:25:28] Speaker 04:
And so, I don't know what remedy we're supposed to provide.

[00:25:34] Speaker 08:
Your honor.

[00:25:36] Speaker 04:
She doesn't say that had I, look, I didn't see any argument in your brief that had I seen then, and had I been interested then,

[00:25:45] Speaker 04:
And what I see now, I would have made X, Y, or Z common.

[00:25:50] Speaker 04:
I see no prejudice argument.

[00:25:52] Speaker 04:
I see no argument that anything would have changed whatsoever.

[00:25:55] Speaker 04:
And you argue for vacatur.

[00:25:58] Speaker 04:
You're now abandoning that, I take it?

[00:26:02] Speaker 08:
The reason we were arguing vacatur, Your Honor, is because we believe that we couldn't know whether this is what would be the safest safety standard without the rule being available to the public during

[00:26:13] Speaker 08:
during the commenting process.

[00:26:17] Speaker 08:
And the purpose of the commenting is to promote robust and diverse comments to protect the rights of the consumers and to develop the factual record before this court reviews.

[00:26:33] Speaker 08:
And we weren't able to have that happen in this case.

[00:26:36] Speaker 08:
And so that was our idea, but we do recognize that it

[00:26:42] Speaker 08:
We do recognize the problem with vacating the rule entirely and not having a safety.

[00:26:49] Speaker 04:
I'm still not because again, the rule is available free online.

[00:26:52] Speaker 05:
Oh, sorry.

[00:26:55] Speaker 04:
I haven't heard.

[00:26:55] Speaker 04:
I didn't see in your brief and I haven't heard today, but maybe you want to tell me now any substantive objection to the bath seat standard with a had I known

[00:27:08] Speaker 04:
then, and had I been interested then, you said she wasn't, but had I been interested then and had I known then what I know now from looking at the free online version of the standard, here's what I would have told the agency to make bath seats safer.

[00:27:26] Speaker 08:
So I guess the point that I skipped over the last time, Your Honor, we do not believe that the

[00:27:36] Speaker 08:
The standard still is not available for free online because it's available through ASTM's reading room.

[00:27:41] Speaker 08:
Only the agency itself has not made the standard available for free online.

[00:27:45] Speaker 08:
And there is nothing, there is no legal mechanism requiring ASTM to keep the standard online for free in its reading room.

[00:27:54] Speaker 04:
And- Has she or you as her counsel looked at the standard?

[00:27:58] Speaker 04:
I have, your honor.

[00:28:00] Speaker 04:
Okay, and you're her attorney, so you can-

[00:28:02] Speaker 04:
described to her and advised her if there was something about it that was unsafe, some argument for her to make.

[00:28:09] Speaker 08:
Yeah, Ms.

[00:28:10] Speaker 08:
Melisa does not personally have a substantive challenge to the safety standard itself.

[00:28:16] Speaker 08:
Ms.

[00:28:16] Speaker 04:
Melisa's check.

[00:28:18] Speaker 04:
Even aware of now that she could look at this online for free.

[00:28:22] Speaker 08:
Correct, Your Honor.

[00:28:23] Speaker 08:
And Ms.

[00:28:25] Speaker 08:
Melisa's position is that

[00:28:27] Speaker 08:
The safety standard would benefit from being publicly available because it would open it up to robust public comment and by keeping the law hidden and it's doing a disservice to parents and children who are looking to buy these products because we can't be certain that these are the safest standards that we could have.

[00:28:51] Speaker 04:
Well, that's not what's going on here.

[00:28:52] Speaker 04:
There's a technical amendment by ASTM.

[00:28:55] Speaker 04:
The statute tells the CPSC what to do with that.

[00:28:59] Speaker 04:
If she thinks they could be even safer than this, she needs to petition for rulemaking.

[00:29:07] Speaker 04:
This wasn't an open-ended comment period.

[00:29:13] Speaker 04:
It's like, here's a new change in standards by ASTM.

[00:29:18] Speaker 04:
We think it doesn't make bath seats less safe, makes it more safe.

[00:29:24] Speaker 04:
So we're going to go forward with it unless someone tells us it makes us less safe.

[00:29:28] Speaker 04:
And it sounded to me like your argument now was, well, you know what?

[00:29:30] Speaker 04:
We don't disagree with that, but these things could be even safer.

[00:29:34] Speaker 04:
if you open it up to public rulemaking, that sounds like a petition for rulemaking is needed to me.

[00:29:40] Speaker 08:
At the core, Your Honor, Ms.

[00:29:41] Speaker 08:
Melisa's argument is that binding safety standards need to be publicly available both during the rulemaking process and after promulgation.

[00:29:50] Speaker 08:
And without access to the law, the public is deprived of its right to see the law, its right to disseminate the law, its right to argue for more stringent safety standards.

[00:30:03] Speaker 08:
the whole plethora of rights that come along with the right.

[00:30:05] Speaker 04:
Just kind of a going forward, the agency should comply with what she would say the constitution and statute requires.

[00:30:13] Speaker 04:
Going forward, the agency should comply with the law.

[00:30:17] Speaker 04:
That's her interest?

[00:30:19] Speaker 08:
Correct your honor Mrs. Melissa's interests is within the agency not relinquishing its control on the wall and this police believes that the CPSC needs to make its binding safety standards publicly available in the way that all other laws publicly available.

[00:30:34] Speaker 08:
The CPSC, the FOIA amendments to the APA, the Federal Register Act, all of these laws were put in place to promote more public access to the law.

[00:30:44] Speaker 08:
And they cannot be read in combination to somehow create this exception that allows the agency to hide its law behind a paywall.

[00:30:53] Speaker 06:
All right, so why don't we hear from the agency and we will give you some time on rebuttal because we took up a lot of your time on these thresholds.

[00:31:04] Speaker 08:
Thank you.

[00:31:04] Speaker 06:
I appreciate that issues of concern to the court.

[00:31:10] Speaker 06:
Right.

[00:31:10] Speaker 06:
Council or the agency.

[00:31:14] Speaker 03:
Good morning.

[00:31:15] Speaker 03:
And may it please the court, Courtney Dixon for the consumer product safety commission.

[00:31:19] Speaker 03:
I'll start with the jurisdictional question that the court has asked about.

[00:31:23] Speaker 03:
Um, with respect to the incurably premature point, your honors are correct that it was in CLA who filed the comment to the, um, the commission.

[00:31:31] Speaker 03:
It was not miss Melissa herself.

[00:31:33] Speaker 03:
or in CLA reporting to act on her behalf.

[00:31:36] Speaker 03:
And this court has made clear in its case law that the incurably premature doctrine is a party specific doctrine.

[00:31:44] Speaker 03:
It's a timely objection to an agency rule renders that rule non-final with respect to the requesting party.

[00:31:52] Speaker 03:
So Ms.

[00:31:52] Speaker 03:
Melisse herself could not take advantage of that doctrine to save the rule from untimeliness.

[00:32:03] Speaker 03:
If there are other questions on the jurisdiction point, I'm happy to address those.

[00:32:07] Speaker 04:
Well, what do you do about the federal register thing, which seemed to say, unless we receive a significant comment?

[00:32:14] Speaker 04:
So Your Honor, this, of course, is a fact.

[00:32:15] Speaker 04:
And so if you get a significant comment, is the rest of the world to think it's now a non-final rule and we can't file a petition, even though we didn't file the comment?

[00:32:26] Speaker 04:
Or is it specific to the part?

[00:32:28] Speaker 04:
It's a little bit unusual, normally, reconsideration.

[00:32:33] Speaker 04:
So it's not framed like this.

[00:32:36] Speaker 03:
There's two responses to that, I guess, first with respect to this court's case law.

[00:32:39] Speaker 03:
And then I'll respond to some petitioner-specific arguments in this regard.

[00:32:43] Speaker 03:
First, this court's case law states that the default rule is that a rule is promulgated on the date that it is published in the Federal Register.

[00:32:51] Speaker 03:
And here that happened in September 2019.

[00:32:53] Speaker 03:
And indeed, Petitioner herself, in her petition for review and in her brief, describes the promulgation date of the rule as September 2019.

[00:33:02] Speaker 03:
This court has explained that statutes and regulations can set a different promulgation date outside of the default rule, but there's no statute of regulation that does that in this respect and petitioner hasn't identified any.

[00:33:15] Speaker 03:
So under this court's default rule, the best argument or the best answer for when the rule is promulgated is the date it was published in the Federal Register, this September date.

[00:33:25] Speaker 03:
And as Your Honor's questions earlier reflected, I'm not aware of any cases in which the effective date of the rule is seen as the date of publication.

[00:33:33] Speaker 03:
With respect to the question.

[00:33:35] Speaker 06:
So let me be clear.

[00:33:37] Speaker 06:
What does that mean as to anyone who wants to challenge the rule.

[00:33:42] Speaker 06:
That's what I'm trying to understand.

[00:33:44] Speaker 06:
You're saying it took effect in September.

[00:33:47] Speaker 03:
It was promulgated in September, Your Honor.

[00:33:49] Speaker 03:
It took effect in December.

[00:33:51] Speaker 06:
And Your Honor's question- I understand that, but I want to understand what the significance you attach to the promulgation date.

[00:34:00] Speaker 03:
Certainly.

[00:34:00] Speaker 03:
And I think this perhaps goes to Judge Millett's question as well, and then some of the things that Petitioner was saying in his presentation.

[00:34:08] Speaker 03:
At the time that the agency published this rule in the Federal Register in September, the agency said, you know, ASTM has revised its standard.

[00:34:15] Speaker 03:
These are our procedures for considering revised standards.

[00:34:18] Speaker 03:
These are the changes that ASTM has made to its standards.

[00:34:20] Speaker 03:
It summarized those changes and explained its findings that these standards either, these changes either improve the safety of infant bath seats or their- Okay.

[00:34:29] Speaker 06:
I understand the agency said we're invoking the good cause exception.

[00:34:35] Speaker 06:
Okay.

[00:34:36] Speaker 06:
But then it goes on with this paragraph to which I alluded in questioning counsel about this significant adverse comment.

[00:34:48] Speaker 06:
So what does that do to the promulgation of the rule?

[00:34:52] Speaker 03:
Great.

[00:34:52] Speaker 03:
So in that Federal Register of Notice as well, Your Honor, the agency explained that it was going to incorporate ASTM standard by reference.

[00:35:00] Speaker 03:
And then it said, you know, this is going to take into effect in December unless we receive a significant adverse comment that

[00:35:06] Speaker 03:
you know, calls into question this approach.

[00:35:09] Speaker 03:
You know, there is, you know, the public can have it say it if it wants, we've explained our process.

[00:35:15] Speaker 03:
So at that time, take petitioner herself.

[00:35:18] Speaker 06:
Let me just say council, with all due respect, it says, unless we receive a significant adverse comment within 30 days, the rule will become effective on December 22nd, 2019.

[00:35:30] Speaker 03:
Yes, Your Honor, and that's the effective date of the rule.

[00:35:32] Speaker 06:
And if petitions... So what is the significance of the September promulgation?

[00:35:37] Speaker 06:
That's what I'm not clear from your argument.

[00:35:41] Speaker 03:
Right.

[00:35:41] Speaker 03:
So that's when the agency published its rule.

[00:35:44] Speaker 06:
You gave notice.

[00:35:45] Speaker 06:
Here's what our rule is going to say.

[00:35:49] Speaker 03:
And it explained its reasoning and that would become the final rule of the agency unless the agency, you know, withdrew that and then would proceed, presumably depending on the significant adverse comment, if the agency could, depending on how it fit with its substantive rules, the agency could- Okay, I just want to be sure we're talking the same language.

[00:36:08] Speaker 06:
So it publishes notice of its proposed rule in September, all right?

[00:36:13] Speaker 06:
And it says it's going to take effect in December, unless,

[00:36:18] Speaker 06:
So the key day here is the December date, is it not?

[00:36:22] Speaker 03:
That's the date that the rule was set for the effective date of the rule, Your Honor.

[00:36:25] Speaker 03:
But again, the promulgation date, the date that this rule was published in the Federal Register was the September date.

[00:36:31] Speaker 03:
And this court has stated that is the presumed date that a rule is in fact promulgated.

[00:36:36] Speaker 03:
And what do you think that means?

[00:36:40] Speaker 03:
Your Honor, it is when the rule, just like a final rule would be published in the Federal Register.

[00:36:46] Speaker 06:
You're using the two terms as synonymous.

[00:36:48] Speaker 06:
And I'm suggesting that at least based on what the agency put in the Federal Register, it drew a distinction.

[00:36:55] Speaker 06:
Your Honor, it's not infrequent that the agency and agency- I'm not suggesting it's frequent or infrequent.

[00:37:00] Speaker 06:
All I'm talking about is this rule.

[00:37:02] Speaker 06:
And in my view, this is complicated enough without equating promulgation and effectiveness.

[00:37:09] Speaker 03:
Well, your honor, I guess what I was gonna say, it's not infrequent that an agency will publish a final rule and then set the effective date of the rule to be any amount of days in the future to then provide the public- Irrelevant.

[00:37:20] Speaker 06:
That's all I'm trying to say, counsel, is that's what the agency said.

[00:37:25] Speaker 06:
Now tell me how it works in this situation.

[00:37:28] Speaker 06:
All right, counsel has said, we read this too, but it's impossible for us to do anything

[00:37:37] Speaker 06:
in accordance with what the agency wants because we haven't been able to see the rule.

[00:37:44] Speaker 06:
And I, excuse me.

[00:37:46] Speaker 03:
And I would disagree in several respects, but I guess I'll, I'll just say, you know, if Ms.

[00:37:52] Speaker 03:
Melisse look at the September date, the September rule that was published in the federal register, which was titled direct final rule.

[00:38:01] Speaker 03:
Again, it explained the changes, the commission's process.

[00:38:03] Speaker 03:
It explained that the agency was going to incorporate it by reference and

[00:38:07] Speaker 03:
It set out, again, its reasonings for all of that.

[00:38:10] Speaker 03:
Had Ms.

[00:38:10] Speaker 03:
Melisse thought, hey, this standard needs to be published itself.

[00:38:14] Speaker 03:
ASTM standard needs to be published itself in the federal register, which is her merits argument here.

[00:38:19] Speaker 03:
And I can't provide a comment because it's not published here.

[00:38:23] Speaker 03:
Then Melisse could have submitted a comment to the commission.

[00:38:27] Speaker 03:
I mean, NCAA submitted one to the commission.

[00:38:29] Speaker 03:
And then there might be a question of whether that comment submitted within the 30 days rendered the rule non-final as to her.

[00:38:36] Speaker 03:
Of course she can't take advantage of that because she didn't file a comment.

[00:38:39] Speaker 03:
She also she had all the information she needed before her at that time to file the challenge she's filed right now.

[00:38:45] Speaker 03:
Again, her, her merits argument is that in September, the agency needed to have

[00:38:51] Speaker 03:
provided the full text of ASTM standard itself online.

[00:38:55] Speaker 03:
She could have made that exact argument in a petition for review file within the 60 day window.

[00:39:00] Speaker 03:
So she could have found a comment, she could have found a petition for review.

[00:39:03] Speaker 03:
What she couldn't do is what she did here, which is to just stay silent for five months and say, hey,

[00:39:08] Speaker 03:
I'm really interested in what the agency is doing here.

[00:39:11] Speaker 03:
I hope I think it's wrong.

[00:39:12] Speaker 03:
I wanted to change its mind, but I myself am not going to see or do anything.

[00:39:17] Speaker 03:
And so I think that's the situation that we're in with respect to the timeliness of her petition.

[00:39:24] Speaker 04:
But how does a comment to follow up on John Draghi's question, how does a comment

[00:39:30] Speaker 04:
I'm trying to understand the interaction between your language and the federal register and 2056A, 2056A, B, how am I going to get this?

[00:39:43] Speaker 04:
Or B. The statute.

[00:39:46] Speaker 04:
Is that really the statute?

[00:39:47] Speaker 04:
It says there's already a standard adopted here.

[00:39:52] Speaker 04:
That's water under the bridge.

[00:39:53] Speaker 04:
They can't challenge that.

[00:39:55] Speaker 04:
This is just some amendments or updates were made to the standard.

[00:39:59] Speaker 04:
So the baseline standard is not an issue here.

[00:40:02] Speaker 04:
It's just these updates.

[00:40:04] Speaker 04:
And when there's updates like that, they go into effect with pursuant to congressional command within 180 days unless

[00:40:17] Speaker 04:
the commission finds could do it based on a comment or on its own, that it makes things less safe.

[00:40:23] Speaker 04:
So Congress here, there were listed categories, the expedited judicial review ones, and ones where Congress was most urgent about things that will make things safer going into effect immediately and nothing getting in the way.

[00:40:37] Speaker 04:
But then your federal register notice doesn't seem, seems to say the rule would be inappropriate, including an assertion challenging

[00:40:46] Speaker 04:
the underlying premise or approach.

[00:40:51] Speaker 04:
And so you were just talking about had she filed an objection that said your approach makes, I can't tell if it's more safe, less safe or the same because of your approach by incorporating by reference and not telling me what the standard is.

[00:41:08] Speaker 04:
Is it your view that had she filed something like that

[00:41:13] Speaker 04:
using your approach language from the federal register notice, it would have made the rule no longer final, and Congress's command about effectiveness would have ceased to apply?

[00:41:25] Speaker 03:
I think that there would be a question at that point, whether the incurably premature doctrine applies in this context.

[00:41:34] Speaker 03:
Of course, we're not

[00:41:35] Speaker 03:
Dealing with that question here because petitioner herself did not file a comment.

[00:41:38] Speaker 03:
I think that your honor's question is getting at kind of the reasons why the commission did reject NC LA's comment here and did not consider it a significant adverse comment because the comment that in at least with and didn't withdraw its rule and let the rule go into effect because

[00:41:56] Speaker 03:
in CLA's comments said, you know, hey, you shouldn't use these private voluntary standards that are, you know, behind a paywall as they characterized it.

[00:42:05] Speaker 03:
And you should publish it in full in the Federal Register.

[00:42:08] Speaker 03:
And the commission said, well, one, we're constrained to use ASTM standards at this point.

[00:42:13] Speaker 03:
So you're not taking into account our substantive requirement under the 2056A B4B language that you're on or read.

[00:42:20] Speaker 03:
And there's the secondary point of also, you know, we're allowed to use incorporation by reference and the NCLA's comment hadn't fully taken into account the incorporation by reference procedures.

[00:42:32] Speaker 03:
And so the commission determined that NCLA's comment was not in fact a significant adverse comment that would have required it to withdraw its rule in light of

[00:42:41] Speaker 03:
Congress's command in the statute.

[00:42:43] Speaker 03:
I was going to say it's a little bit of a counterfactual perhaps to know if someone had filed

[00:42:52] Speaker 03:
comments saying, questioning, I don't think that this improves the safety of infant bath seats, or I don't think that you should be using ASTM standard at all.

[00:43:00] Speaker 03:
The commission may have considered some of those not significant because of it's not matching the statutory standards.

[00:43:07] Speaker 03:
The commission might have considered them and taken a different approach.

[00:43:10] Speaker 03:
It's a counterfactual to know, but in this circumstance, NCLA's comment didn't change the rule that the commission had promulgated.

[00:43:20] Speaker 04:
And just to understand how this whole thing works, if someone had come in and filed a comment that said, just assume a hypothetical change, you're increasing the size of the circle where the legs go through.

[00:43:33] Speaker 04:
And now I think it decreases safety because now a baby's head could get stuck in that hole or something like that.

[00:43:41] Speaker 04:
So you get something that is addressed to substantive safety.

[00:43:45] Speaker 04:
One does that does the agency, because you said before, make it not final as to her would a comment like that make it not final as to say that manufacturer, or would it make it non finalist everybody or would you withdraw it.

[00:44:01] Speaker 04:
to study or what if you just didn't agree because that had been tested.

[00:44:05] Speaker 04:
I'm just trying, how does it work if you actually had something that was talking about the measurements itself?

[00:44:10] Speaker 03:
I can't say for sure because here there wasn't.

[00:44:14] Speaker 04:
Well, but you represent the CPSC and surely it's happened that someone has filed a comment that

[00:44:19] Speaker 04:
address the safety.

[00:44:20] Speaker 04:
Is that not, maybe not?

[00:44:21] Speaker 04:
You don't get them?

[00:44:22] Speaker 03:
I can't speak with respect to ASTM standard as it's been incorporated with this, with respect to this particular rule.

[00:44:28] Speaker 04:
I'm not aware of a circumstance because the agency has- I'm not talking about the hypothetical because I don't want to suggest anything about ASTM and rule one way or the other.

[00:44:37] Speaker 04:
That's not my area of expertise.

[00:44:39] Speaker 04:
I'm just saying if there's some standard that's adjusted and someone thinks and manufacturer thinks this makes it worse, not better, what happens then?

[00:44:48] Speaker 04:
Because you had said before, had you filed a comment, it might make it not effective as to her, which makes me think that if someone files a comment, it just suspends the application of the rule as to that filer.

[00:45:01] Speaker 03:
Again, it's hard for, I don't know how that would play out in practice.

[00:45:07] Speaker 04:
And it might, if the commission has never gotten under this, not under this bath seat rule, but under the statute here,

[00:45:15] Speaker 04:
It's never gotten a comment that says that makes it less safe, not more.

[00:45:19] Speaker 03:
I am not aware of a situation.

[00:45:22] Speaker 03:
That's not to say it hasn't happened.

[00:45:23] Speaker 03:
I'm saying that I am not aware.

[00:45:25] Speaker 03:
And I also, again, don't know how it would play out in this particular context where you have the specific infant bad seat standard.

[00:45:31] Speaker 03:
Again, there's a specific process prescribed.

[00:45:34] Speaker 03:
And a version of ASTM's bad seat standard has been incorporated as the commission standard for over 10 years.

[00:45:39] Speaker 03:
There have been at least two other circumstances in which the commission updated ASTM standards through the process that we've been discussing.

[00:45:46] Speaker 03:
Had a manufacturer said, you're wrong about your evaluation of this standard substantively.

[00:45:53] Speaker 03:
It doesn't improve the safety of infant bath seats.

[00:45:55] Speaker 03:
I imagine the commission would take that seriously and might reconsider its approach.

[00:46:01] Speaker 04:
I can't say for sure.

[00:46:02] Speaker 04:
It compiles a substantive comment.

[00:46:04] Speaker 04:
Let's say it's one that complies with the terms here.

[00:46:08] Speaker 04:
Is that a matter of public record that all of industry would know that's there and the standard isn't going to take effect?

[00:46:14] Speaker 04:
Or how are they?

[00:46:15] Speaker 04:
Would everyone know?

[00:46:17] Speaker 04:
How would someone know?

[00:46:19] Speaker 03:
It might be on the, on the rulemaking docket.

[00:46:22] Speaker 03:
I, again, I'm not, I'm not certain, your honor.

[00:46:24] Speaker 03:
Um, but there's, there's a 30 day comment period.

[00:46:27] Speaker 03:
And of course, again, I had the commission received a substantive standard calling into question the safetyness of infant bath seats.

[00:46:33] Speaker 03:
The commission would have.

[00:46:34] Speaker 03:
taken it seriously.

[00:46:36] Speaker 03:
But again, in the circumstance we have here- The public record comments.

[00:46:40] Speaker 03:
I'm sorry?

[00:46:41] Speaker 04:
The public, the common period comments are all on a public record.

[00:46:45] Speaker 03:
I'm not certain for sure.

[00:46:47] Speaker 03:
They might be on a public docket, but I'm speculating I don't know, Your Honor.

[00:46:54] Speaker 03:
But again, here with respect to Ms.

[00:46:55] Speaker 03:
Melisse, she didn't submit a comment.

[00:46:57] Speaker 03:
She didn't file her petition within 60 days.

[00:47:00] Speaker 03:
And the comment that NCLA submitted

[00:47:02] Speaker 03:
doesn't change that.

[00:47:09] Speaker 03:
I'm happy to address the questions on the merits as we explain in our brief.

[00:47:12] Speaker 03:
The standard is

[00:47:13] Speaker 03:
I just wanted to make sure that I'm not missing anything.

[00:47:34] Speaker 03:
Your honor, it's not reflected in the record here.

[00:47:36] Speaker 03:
My understanding from the agency is that it was posted in ASTM's reading room in January 2020.

[00:47:41] Speaker 03:
That was before the petition for review was filed in this case.

[00:47:46] Speaker 04:
But after the effective date?

[00:47:47] Speaker 03:
The effective date was December 22nd, your honor, and it was January 2020 when it was posted in the ASTM's online reading room.

[00:47:54] Speaker 04:
So during the comment period, unless you had the financial wherewithal to pay for the standard,

[00:48:03] Speaker 04:
You couldn't see it, you're a member of the public, you couldn't see it because we don't have the financial weather and you don't live in DC, or the MDBA area.

[00:48:11] Speaker 03:
It was available for inspection, you know, in the DC area.

[00:48:14] Speaker 04:
If they can't afford the money to pay for the standard, it may well be that they can't afford a plane ticket and a hotel into Washington DC to come look at it.

[00:48:23] Speaker 03:
The incorporation by reference requirement, for one, it takes place, it's whether something is published in the Federal Register for purposes of the effective date.

[00:48:32] Speaker 03:
There's not a requirement from OFR that something be, that all the incorporation by reference standards be met even at the proposed rules making stage.

[00:48:43] Speaker 03:
Certainly the agencies, agencies across the federal government and the CPSC.

[00:48:47] Speaker 04:
I'm very confused here.

[00:48:50] Speaker 04:
The September publication of the final register was not proposed rulemaking.

[00:48:54] Speaker 04:
That was announcing the final rule.

[00:48:56] Speaker 03:
Certainly, I guess I mean the effective.

[00:48:58] Speaker 03:
It wasn't available prior.

[00:49:02] Speaker 03:
The fact that it wasn't available prior to the effective date, Your Honor, I guess is what I'm trying to say.

[00:49:08] Speaker 04:
But I think what's the comment if they can't see it?

[00:49:12] Speaker 03:
Well, first of all, with respect to this case here, petitioners haven't identified any substantial.

[00:49:18] Speaker 04:
I'm just asking you how the commission thought this was going to work.

[00:49:22] Speaker 03:
Again, a version of ASTM standard has been incorporated.

[00:49:24] Speaker 04:
I thought how the commission thought in September 2019 this was going to work.

[00:49:30] Speaker 03:
Again, ASTM standard has long been the commission standard and manufacturers have been using this standard.

[00:49:37] Speaker 03:
manufacturers certainly are.

[00:49:39] Speaker 04:
I thought from the statute that consumers and the public had an interest, but I take it no.

[00:49:44] Speaker 03:
they do have an interest your honor and again there's no there's not any suggestion here that a consumer had an objection to a the substantive requirements they couldn't see it unless they lived in this area inside the beltway i also don't know your honor there's no suggestion that a consumer couldn't couldn't see it petitioner herself didn't try to contact the commission to inspect you tell me you just i just asked you how the commission thought this was going to work and i can't get an answer from you how did the commission think the consumer that

[00:50:10] Speaker 04:
loves their baby as profoundly as can possibly be, but doesn't have a lot of resources and lives in California, Arkansas, Nevada, pick your state, Montana.

[00:50:22] Speaker 04:
How are they gonna comment?

[00:50:24] Speaker 03:
So I guess I'll back up and I apologize if it was seeming that I was avoiding your question.

[00:50:30] Speaker 03:
I wanna emphasize as well that when the agency published its direct final rule in September, as I noted earlier, it quoted

[00:50:40] Speaker 03:
the changes that ASTM had made to its standard.

[00:50:43] Speaker 03:
It described those changes with some detail and it explained its findings of how it believed that those standards improved the safety of infant bath seats.

[00:50:53] Speaker 04:
Does your explanation make any sense to someone who doesn't have the underlying standard as well?

[00:51:00] Speaker 03:
I guess it's a little hard to know what would have necessarily made sense in the sense that this is a technical manufacturing standard that's supposed to be used by manufacturers to manufacture bath seats.

[00:51:10] Speaker 03:
The agency, for example, quoted some things that are certainly understandable to a consumer.

[00:51:15] Speaker 03:
For example, the agency quoted in full some wording changes that ASTM had made with respect to its label to say, you know, to use more direct language of stay in arms reach of your baby, as opposed to keep your baby in arms reach.

[00:51:28] Speaker 03:
Those changes are quoted in full.

[00:51:30] Speaker 03:
There are quoted definitions of- Tests that were conducted.

[00:51:34] Speaker 04:
I'm sorry?

[00:51:35] Speaker 04:
Are the tests that were conducted described?

[00:51:39] Speaker 04:
I don't know how you can know any of this is relevant.

[00:51:41] Speaker 04:
You don't know how it was tested.

[00:51:44] Speaker 03:
I guess by tests that were conducted, I'm not sure exactly what you mean, Your Honor.

[00:51:50] Speaker 04:
A description of a bunch of technical mumbo jumbo without any sense of what was tested, how it was tested, what these numbers mean, or even what the underlying standard is, seems to me.

[00:52:00] Speaker 04:
I guess we're in for consumers.

[00:52:06] Speaker 03:
Again, you're in the context genre of the 2056A, B4B of these are the revisions that ASTM has made to a standard that's already incorporated into law.

[00:52:17] Speaker 03:
And we're looking at these revisions and determining whether they, we can't accept these provisions unless they do not improve the safety of infant bath seats.

[00:52:27] Speaker 03:
And so,

[00:52:28] Speaker 03:
The commission then was quoting the revisions and explaining the revisions and how the revisions would be clarifying information.

[00:52:35] Speaker 04:
I can't tell from reading the federal register.

[00:52:37] Speaker 04:
I look at that and I can't tell what's going on to make an informed judgment about whether safety is improved just by reading that without having to deal with the underlying standard is what tests were, what kinds of tests were applied and deciding what changes to make or not, what tests weren't done.

[00:52:56] Speaker 04:
any of that?

[00:52:57] Speaker 03:
Well, the commission explains, for example, that, you know, I think it's probably depends on the nature of the changes as well.

[00:53:03] Speaker 03:
And that if, for example, here, the commission says that wording was moved from an explanatory parenthetical into enforceable testing requirements.

[00:53:12] Speaker 03:
So something that was just prior and explanation is now more clearly set forth in the test itself.

[00:53:17] Speaker 03:
So it's more clear to manufacturers who are making this.

[00:53:20] Speaker 03:
What is is being if why you're conducting the test, what needs to be done?

[00:53:25] Speaker 03:
That that's explained.

[00:53:26] Speaker 03:
I think for one, if you're a manufacturer, you most likely possess a copy of this standard.

[00:53:32] Speaker 03:
You already own it and you're going to understand.

[00:53:33] Speaker 04:
No, I'm talking about consumers here.

[00:53:35] Speaker 04:
I'm not talking about manufacturing.

[00:53:36] Speaker 03:
And a consumer, I mean, again, could have accessed ASTM standard by at the commission's headquarters or purchasing it.

[00:53:42] Speaker 03:
But I think it's a technical manufacturing standard that's intended for manufacturers to be using in manufacturing bath seats.

[00:53:50] Speaker 03:
And I think it's telling, Your Honor, that again, petitioner herself has not identified any critical comment that she would have received.

[00:53:55] Speaker 03:
There's no indication from any consumers of a critical comment that they would have provided.

[00:54:00] Speaker 03:
had they had the supposed access to the standard that they say was required and certainly within the context of this case and petitioners by 53 challenge, even assuming that it's correct that there wasn't the adequate provision of the standard that she says is required which again we don't think is correct.

[00:54:17] Speaker 03:
She hasn't shown error and that's a requirement for this kind of 553 claim.

[00:54:23] Speaker 03:
So with respect to this case, Your Honor, it's significant that she hasn't again identified any such comment.

[00:54:30] Speaker 03:
And I think it maybe belies the assertion that there hasn't been adequate notice that there isn't any such comment even proposed that someone would have provided.

[00:54:39] Speaker 06:
All right.

[00:54:40] Speaker 06:
Thank you.

[00:54:41] Speaker 06:
Thank you.

[00:54:44] Speaker 06:
So Council Amicus Curiae.

[00:54:50] Speaker 01:
May it please the court, Kevin Fee on behalf of American Society for Testing and Materials.

[00:54:55] Speaker 01:
I thought in light of all the court's questions about jurisdiction, it might just make sense for me to start with that for a minute or two.

[00:55:02] Speaker 01:
From ASTM's perspective, we see this as a relatively straightforward timeliness problem.

[00:55:08] Speaker 01:
The petition for review concedes that the direct final rule was promulgated on September 20th, 2019.

[00:55:14] Speaker 01:
And section 2060 G2, which is the jurisdictional provision at issue here, says that the petition must be filed, quote, not later than 60 days after promulgation.

[00:55:26] Speaker 01:
The petition here was filed on February 20th, 2020, and that's not within the 60 day window after September 20th, 2019.

[00:55:33] Speaker 01:
And so it's untimely for the court to consider the petition and this court lacks jurisdiction over this petition.

[00:55:40] Speaker 01:
Now, very briefly,

[00:55:43] Speaker 01:
NCLA's argument and petitioner's argument, as far as I understand it, is that their letter constituted something that was effectively requesting reconsideration of the direct final rule.

[00:55:53] Speaker 06:
Could I be clear, Council, your position then would be, or would it, that what was published in the Federal Register was contrary to the statutory scheme in the sense that it talked about this significant comment within 30 days?

[00:56:14] Speaker 01:
I don't think that that's contrary to the statutory scheme.

[00:56:18] Speaker 01:
If there was a significant comment that as Judge Malik was alluding to indicated that the safety standard was not in fact safer than the prior standard, then I presume the CPSC would have withdrawn the rule.

[00:56:30] Speaker 01:
But it was a final rule when it was promulgated in September of 2019.

[00:56:36] Speaker 06:
Well, you're saying, as I understand it, she would have to file a petition within 60 days

[00:56:44] Speaker 06:
of the September date.

[00:56:50] Speaker 01:
Yes, your honor.

[00:56:51] Speaker 01:
That is our position.

[00:56:52] Speaker 06:
And the way you're reading the federal register announcement is the commission would have received comments before then and could determine whether or not there was a significant adverse comment.

[00:57:09] Speaker 01:
The commission could have done that, your honor, yes.

[00:57:12] Speaker 06:
Just trying to understand how the process works, counsel.

[00:57:15] Speaker 01:
So my understanding of how the process should work is that the direct final rule was in fact the final rule as of September 20th.

[00:57:24] Speaker 01:
If anybody wants to challenge that rule, at least preliminary leader could have been two avenues they could have gone down.

[00:57:30] Speaker 01:
They could have filed a letter that they claimed identified a significant adverse comment, or within 60 days they could have filed a petition with this court.

[00:57:38] Speaker 01:
Here the petitioner did neither of those things.

[00:57:40] Speaker 01:
The petitioner did not file a letter

[00:57:42] Speaker 01:
suggesting that there was a significant adverse, making a significant adverse comment and it did not file a petition within 60 days of the promulgation of the rule.

[00:57:54] Speaker 01:
So unless you, one last point I wanna make on that front is I didn't allude to the fact that petitioner claims that her letter or really her council's letter constituted effectively a request for reconsideration of the direct final rule.

[00:58:07] Speaker 01:
And therefore it's the petitioner's time to file its petition should have been extended

[00:58:13] Speaker 01:
But that's the reason we identified the laminator safety glass association case to the court in our letter, adjusting jurisdiction, because that case, the DC circuit made clear that there is no reconsideration mechanism under section 2060.

[00:58:26] Speaker 01:
And so reconsideration petitions cannot extend the 60 day time limit.

[00:58:31] Speaker 01:
So we think that the DC circuit's precedents were clear on this point, that there is no basis for extending the period for filing the petition.

[00:58:39] Speaker 06:
And in that case, there was no process

[00:58:43] Speaker 06:
such as described here in the federal register.

[00:58:47] Speaker 06:
And that's why I asked you whether or not you thought it was contrary to the statute.

[00:58:50] Speaker 06:
And you thought, no, it was, as I understood your answer, it was compatible with the statute.

[00:58:56] Speaker 01:
That's right, your honor.

[00:58:58] Speaker 01:
So unless there are any other questions on it.

[00:59:00] Speaker 06:
Can I just be clear?

[00:59:03] Speaker 06:
Do you not understand that to be

[00:59:11] Speaker 06:
a process for reconsideration, it's a 30 day window.

[00:59:17] Speaker 06:
So if you get us an adverse comment, suppose, you know, someone filed saying, you know, by enlarging the size of the hole here, a lot of baby's heads will get stuck because heads are generally smaller now than they used to be 10 years ago, something like that.

[00:59:37] Speaker 06:
So the question is saying, yeah, if we get that,

[00:59:42] Speaker 06:
and presumably we think it's got some reason to explore it, then we'll pull the rule off until we can examine it.

[00:59:57] Speaker 01:
Sure.

[00:59:58] Speaker 01:
The commission could have done that certainly, your honor.

[01:00:00] Speaker 01:
But even if you analogize the period for having a significant adverse comment filed to a request for reconsideration, the Laminator Safety Glass Association case makes clear

[01:00:12] Speaker 01:
that any potential request for reconsideration under the CPSA would not extend the 60-day time limit for filing a petition with this court.

[01:00:23] Speaker 04:
So turning to the- Oh, go ahead.

[01:00:25] Speaker 04:
No, go ahead.

[01:00:26] Speaker 04:
What did you want to turn to?

[01:00:27] Speaker 01:
I was going to turn, Your Honor, to the March of this, unless you had any other jurisdictional questions.

[01:00:30] Speaker 04:
To the what?

[01:00:31] Speaker 01:
To the March of the case.

[01:00:33] Speaker 04:
Okay.

[01:00:34] Speaker 04:
Well, if someone-

[01:00:37] Speaker 04:
I'm still trying to understand, and maybe you know, if there were a substantive safety standard, like the baby's head could get stuck in the now bigger leg hole.

[01:00:54] Speaker 04:
You said the agency could, but I'm trying to understand what happens.

[01:00:58] Speaker 04:
Let's assume it's filed as a matter of public record.

[01:01:01] Speaker 04:
I guess we don't know, but let's assume it is.

[01:01:04] Speaker 04:
Once it is, does that mean, and let's assume it's filed by a consumer, not by a manufacturer.

[01:01:12] Speaker 04:
What happens then, because the agency presumably isn't within minutes going to decide what to do.

[01:01:18] Speaker 04:
So the agency is trying to figure out what to do and thinking about this.

[01:01:22] Speaker 04:
And let's say that comment is filed the last day for comments.

[01:01:27] Speaker 04:
So it's timely.

[01:01:28] Speaker 04:
But now we got a closer window to the effective date.

[01:01:32] Speaker 04:
effective dates approaching the agency still hasn't said anything one way or the other.

[01:01:36] Speaker 04:
What does that mean it's not effective.

[01:01:41] Speaker 04:
It's not effective when there's something like a comment like that is lobbed in, unless the agency says something, we should assume it doesn't meet the standard and it will go into effect.

[01:01:53] Speaker 04:
changing my hypothetical, it was filed by a manufacturer.

[01:01:55] Speaker 04:
Would it just become not effective for that manufacturer, like petitions and reconsideration usually work?

[01:02:01] Speaker 04:
Or would it be for the whole industry?

[01:02:03] Speaker 04:
I just don't know how it works if you actually have a substantive safety comment.

[01:02:07] Speaker 01:
So what I would expect to happen in that circumstance is the CPSC to evaluate whether or not the comment actually raises a significant adverse issue.

[01:02:16] Speaker 01:
And if it did, it could withdraw

[01:02:18] Speaker 01:
Well, that takes some time.

[01:02:19] Speaker 04:
So they're sitting there studying, and I'm trying to figure out whether I need to get new equipment in, rejigger my existing equipment to manufacture this thing.

[01:02:27] Speaker 04:
I didn't make the comment, what am I supposed to do?

[01:02:31] Speaker 01:
Well, Your Honor, if you're a manufacturer and you have a concern like that, I believe you should make a comment and or file a petition with this court.

[01:02:38] Speaker 04:
Well, I was going to, and I saw someone already lobbed it in, so it's there.

[01:02:42] Speaker 04:
My entire team of comments have already been made.

[01:02:44] Speaker 04:
What do I do?

[01:02:44] Speaker 01:
Yeah, I think that that gets to the point that you were talking about earlier, Your Honor, that to the extent that you consider what a letter that purports to be a significant adverse comment to be analogous to a request for reconsideration, the incurable prematurity doctrine only applies to the party who made that request.

[01:03:00] Speaker 01:
And so if you were an other manufacturer that had a safety concern, I would expect you to either file your own letter identifying a supposed significant adverse comment or file a petition with the court.

[01:03:11] Speaker 04:
And I just had a question about your license agreement.

[01:03:14] Speaker 04:
Sure.

[01:03:15] Speaker 04:
It says that someone who's going to look at this free online version cannot exploit any of the material contained on this site and whole room part without the express authorization of ASTM.

[01:03:29] Speaker 04:
So if a consumer were to look and a consumer were to have a serious concern and let's change it because I don't want to

[01:03:39] Speaker 04:
let's say it's a different standard company, it's not your client, it's company X that makes their standard company, standard creating company X. And I'm deeply worried about what standard, now that I've looked at it online, checked all these boxes, I wanna put a comment in, because I'm deeply worried about what standard creating company X has done here.

[01:04:03] Speaker 04:
Is that exploiting

[01:04:06] Speaker 04:
the material and so they would have to have the permission of assuming they have the same license agreement you do.

[01:04:12] Speaker 04:
Right.

[01:04:12] Speaker 04:
You would have to have the permission of the company to make that comment.

[01:04:17] Speaker 01:
I absolutely don't think that would be exploiting in the context of that license agreement.

[01:04:21] Speaker 04:
What does exploit mean?

[01:04:23] Speaker 04:
Can you tell me what exploit means in your license agreement?

[01:04:25] Speaker 01:
I would say exploit means just you exploit in a commercial manner is what the license agreement is referring to.

[01:04:32] Speaker 01:
It doesn't say that.

[01:04:33] Speaker 04:
In any way exploit.

[01:04:34] Speaker 01:
Right.

[01:04:35] Speaker 01:
Your honor, I think another important point maybe to make on this front is to the extent that any agreement such as terms of conditions, it'll clicks with the fair use requirements.

[01:04:48] Speaker 01:
For example, there was preemption for that.

[01:04:52] Speaker 06:
I'm sorry, council having trouble hearing you.

[01:04:55] Speaker 01:
I'm sorry, your honor.

[01:04:56] Speaker 01:
There's a preemption doctrine that provides

[01:05:00] Speaker 04:
I'm a simple consumer.

[01:05:01] Speaker 04:
I don't know copyright law.

[01:05:04] Speaker 04:
And I just read this in any way exploit.

[01:05:07] Speaker 04:
And I'm, I'm going to have to take, and I want to tell the CPSC as soon as possible that I think there's a real problem with this company access standard.

[01:05:17] Speaker 04:
And I'm supposed to know that exploit has to be interpreted with the fair use provision.

[01:05:24] Speaker 04:
And so you can make this a lot clearer.

[01:05:30] Speaker 01:
Fair, your honor.

[01:05:30] Speaker 01:
I think that there probably is room for improvement on some of the language in the license agreement.

[01:05:36] Speaker 01:
Realistically, so the court has the context, that license agreement, ASTM, doesn't enforce against consumers ever.

[01:05:43] Speaker 01:
What that is there for is to ensure, for example, that there's interest.

[01:05:47] Speaker 04:
I'm not going to know that as a consumer rating it.

[01:05:50] Speaker 01:
Yes, I understand that, your honor.

[01:05:52] Speaker 01:
You're right.

[01:05:54] Speaker 04:
But I guess it's possible if a consumer's- They really want this to be free online.

[01:05:58] Speaker 04:
They might want to do a real careful read of that license agreement because there's a lot of stuff that would scare even me off living on less informed consumers.

[01:06:08] Speaker 01:
That's certainly not the intention, Your Honor.

[01:06:10] Speaker 04:
That license agreement is really only there for... It's not really free if people feel like they're going to get... They can't either use it for what they want to use it for or they feel like they have to agree to a lot of standards that are going to sound pretty onerous to them in the process.

[01:06:25] Speaker 01:
That's fair, Your Honor.

[01:06:26] Speaker 01:
The reason that's there is to prevent foreign entities from making unauthorized copies of these standards and selling them online and providing a jurisdiction.

[01:06:34] Speaker 04:
Those are completely legitimate concerns.

[01:06:35] Speaker 04:
It's just not how this license agreement seems to be read, at least to the lay person.

[01:06:39] Speaker 01:
Fair enough, Your Honor.

[01:06:41] Speaker 01:
But really, at the end of the day, Your Honor, I think what the petitioner's argument wound up at was it is asking this court to adopt a rule that federal agencies must publish thousands of privately authored standards that were admittedly copyright protected

[01:06:55] Speaker 01:
without the copyright owner's consent based solely on the fact that a federal agency such as CPSC happened to incorporate the private legal authored work by reference.

[01:07:06] Speaker 02:
Can I ask a factual question?

[01:07:10] Speaker 02:
Yes, Your Honor.

[01:07:10] Speaker 02:
When did the ASTM become aware of the comment that was filed by the NCLA in this case?

[01:07:20] Speaker 01:
Your Honor, I don't believe that the ASTM became aware of

[01:07:24] Speaker 01:
that comment until after actually the petition in this case was filed.

[01:07:28] Speaker 01:
We didn't learn of this petition even until I believe May of 2020.

[01:07:33] Speaker 02:
So when comments were made, was there a process in place for ASTM or anyone to go onto the commission's website and see the comments kind of as they were coming in?

[01:07:54] Speaker 01:
I don't believe that ASTM certainly has a forum where parties can see the comments that were made by others in response to rulemaking.

[01:08:05] Speaker 01:
What ASTM does as a policy with respect to works that are incorporated by reference by the federal government is they work with the agencies and are willing to put them available on their online reading room even before they're incorporated by reference during the comment period.

[01:08:21] Speaker 01:
so that the public has easy and free access to review those in connection with the rulemaking process.

[01:08:29] Speaker 01:
In addition, once they become effective, ASTM has a process in place to make those works available online in the reading room going forward once the ASTM becomes aware of the effectiveness of the regulation that incorporates their work by reference.

[01:08:47] Speaker 04:
That's a new policy.

[01:08:48] Speaker 04:
That wasn't in effect here.

[01:08:50] Speaker 04:
But Your Honor, that actually- This is just a yes or no question.

[01:08:53] Speaker 01:
No, but the answer is no.

[01:08:55] Speaker 01:
That is not a new policy.

[01:08:57] Speaker 04:
How come it wasn't posted free online until January?

[01:09:02] Speaker 01:
Well, the reason it wasn't posted online during the comment period was because the way that the system works is the federal agencies notify ASTM of their intent to incorporate by reference an ASTM standard.

[01:09:16] Speaker 01:
And once ASTM receives that notice, it then puts the

[01:09:20] Speaker 01:
the standard issue in its reading room.

[01:09:23] Speaker 01:
For whatever reason, the CPSC in this particular instance did not notify ASTM of its intent to incorporate this new work into a rulemaking, a final rule until, well, never did actually.

[01:09:35] Speaker 01:
And that's, I think as we alluded to in our brief, we've now worked with the CPSC to ensure that that process is followed going forward.

[01:09:44] Speaker 04:
So normally you get notice from agencies and there was just some sort of glitch in this case.

[01:09:49] Speaker 01:
That's correct, your honor.

[01:09:51] Speaker 01:
And it's a long been the policy of ASTM as well to ensure that works that it becomes aware of that are incorporated by reference by the federal government are available online for free during the timeframe that they are incorporated by reference in any standard or into any regulation.

[01:10:09] Speaker 01:
So realistically, there should not be, and I don't think really ever is a real problem with persons getting access to these standards.

[01:10:18] Speaker 01:
One other point I wanna just make

[01:10:20] Speaker 06:
I just asked, so in this instance, for example, in September, the standard would have been available on your website, your client's website?

[01:10:34] Speaker 01:
The standard would not have been available in the free online reading room in September because the CPSC did not notify ASTM of its intention to incorporate that standard at that time.

[01:10:43] Speaker 05:
Okay, but had it notified?

[01:10:45] Speaker 05:
than it would be.

[01:10:46] Speaker 05:
That's your representation.

[01:10:48] Speaker 01:
Yes, Your Honor.

[01:10:49] Speaker 01:
That is the process that ASTM has in place with federal agencies that incorporate its standards.

[01:10:56] Speaker 01:
So getting back to the petitioner's argument, it finds no support in the Copyright Act, the Freedom of Information Act, or the Constitution.

[01:11:06] Speaker 01:
In taking this drastic step requiring all these standards to be published online by the CPSC without restrictions,

[01:11:13] Speaker 01:
would dramatically undermine the private standards development ecosystem that Congress sought to advance when it enacted the National Technology Transfer and Advancement Act.

[01:11:23] Speaker 01:
As a result, we believe the petition should be denied.

[01:11:27] Speaker 01:
Petitioner attempts to rewrite the Copyright Act and altered a decades-long private-public partnership based on her claim that a single ASTM standard was not reasonably available under the Freedom of Information Act.

[01:11:39] Speaker 01:
but the Office of Federal Register has consistently found that ASTM standards are in fact reasonably available, including the standard issue in this case.

[01:11:47] Speaker 01:
And that's hardly surprising because anyone with access to a cell phone or internet access can easily access the standards at issue almost instantaneously and for free.

[01:11:59] Speaker 01:
In addition to the online reading room, ASTM makes the standards available for purchase at reasonable prices, ranging from 35 or so dollars up to approximately $80.

[01:12:11] Speaker 01:
This goes far beyond what is required by the reasonably available standard.

[01:12:15] Speaker 01:
The plain language of reasonably available does not require the government to provide unlimited and free online access.

[01:12:22] Speaker 01:
The term reasonably available.

[01:12:24] Speaker 04:
How often do you update these types of standards?

[01:12:26] Speaker 04:
Does that tend to be like kind of a yearly thing?

[01:12:28] Speaker 01:
No, Your Honor, I think that as soon as we receive notice of either an intent to incorporate a standard by reference or that a standard has been incorporated,

[01:12:39] Speaker 04:
No, no.

[01:12:40] Speaker 04:
When you're developing the standards, how often are you?

[01:12:42] Speaker 01:
Oh, I'm sorry.

[01:12:43] Speaker 01:
I misunderstood your question, Your Honor.

[01:12:45] Speaker 01:
That depends on the committee.

[01:12:46] Speaker 04:
The technology's always changing.

[01:12:47] Speaker 01:
Yeah.

[01:12:48] Speaker 01:
That depends on the committee, Your Honor.

[01:12:49] Speaker 01:
Do you think frequently it's two to five years would be most standards are updated?

[01:12:56] Speaker 04:
What about baby bath?

[01:12:57] Speaker 04:
Had it been two years since you've done a baby bath update?

[01:13:00] Speaker 01:
I think it was actually less, Your Honor.

[01:13:02] Speaker 01:
I think there was a 2018 update and then a 2019 update.

[01:13:09] Speaker 01:
OK.

[01:13:10] Speaker 01:
Getting back to the plain language of the Freedom of Information Act, reasonably available does not mean available for free.

[01:13:17] Speaker 01:
The ordinary meaning of reasonable includes the possibility of a non-zero expense.

[01:13:23] Speaker 01:
Still less, reasonably available does not mean available for free online and without any restrictions on its use.

[01:13:29] Speaker 01:
No regulation could have met that condition when the Freedom of Information Act was enacted, Section 552 was enacted in 1967.

[01:13:39] Speaker 01:
The petitioner attempts to avoid a finding of reasonable availability by arguing that this court can only consider availability directly from the CPSC.

[01:13:47] Speaker 01:
But Section 552 of the Freedom of Information Act does not say that.

[01:13:51] Speaker 01:
It only requires that the works be reasonably available, and it does not limit the availability to the agency incorporating the work by reference.

[01:13:59] Speaker 01:
As a result, petitioners wrong to assume that ASTM's considerable work in making its incorporated standards widely available should be disregarded by this court.

[01:14:08] Speaker 01:
As I mentioned earlier, ASTM standards are much more widely available now than any standard or regulation could have been back when section 552 was passed.

[01:14:18] Speaker 01:
And under any credible interpretation of reasonable availability, the standard issue is reasonably available.

[01:14:26] Speaker 06:
All right.

[01:14:27] Speaker 06:
Thank you, council.

[01:14:28] Speaker 01:
Thank you, your honor.

[01:14:32] Speaker 06:
All right.

[01:14:34] Speaker 06:
Council for Dishonor?

[01:14:39] Speaker 06:
Thank you.

[01:14:41] Speaker 08:
Thank you, Your Honor.

[01:14:42] Speaker 08:
I appreciate it.

[01:14:43] Speaker 08:
Um, on Council for ASDM's last point, our position is that to be incorporated by reference into the federal register, it's deemed to be published in the federal register.

[01:14:56] Speaker 07:
It must must be published elsewhere.

[01:14:58] Speaker 08:
And our position is that that publication elsewhere must be done by the federal government or otherwise within the public domain.

[01:15:05] Speaker 08:
The law, we've suggested free availability online because to us it seems like the most efficient and cost effective way to do so but if the agency were to instead just make the law available the way that all other laws are available.

[01:15:18] Speaker 08:
That would also satisfy the standard in places where Congress has allowed for cost.

[01:15:24] Speaker 08:
To access the law, Congress has allowed for the incremental cost of dissemination.

[01:15:28] Speaker 08:
And that is a much cheaper cost than the market rate the ASTM sets in this case.

[01:15:34] Speaker 06:
Is something for Congress to consider?

[01:15:37] Speaker 08:
Well, we think that Congress did consider it when it set this reasonable availability standard.

[01:15:44] Speaker 06:
And we think that under the claim of- You agree that, oh, your point is reasonable availability means for free.

[01:15:52] Speaker 08:
We think that reasonable availability means that it must be published somewhere within the public domain, which by its nature is free.

[01:16:00] Speaker 06:
And the public domain you define as what?

[01:16:04] Speaker 06:
I'm thinking of the history of this country.

[01:16:08] Speaker 06:
And laws were not in the public domain.

[01:16:11] Speaker 06:
And I'm not saying that's good or bad, but I'm just trying to understand where you're coming from.

[01:16:16] Speaker 08:
Well, I think, Your Honor, dating back to the founding laws were always within the public domain because- They weren't.

[01:16:23] Speaker 06:
They were in the house.

[01:16:24] Speaker 06:
Somebody lived in Georgetown and you couldn't get them.

[01:16:27] Speaker 06:
I mean, there were terrible problems of access to public laws.

[01:16:32] Speaker 08:
I was interpreting Your Honor's question to mean public domain and like the ephemeral sense of- I'm just trying to say it's not as clear cut historically.

[01:16:43] Speaker 08:
Yeah, I appreciate that, Your Honor.

[01:16:45] Speaker 08:
And what we've argued in our brief is that the current standard of two physical copies available in Bethesda doesn't even meet the standard of 1795 when the government was distributing the law through the newspapers.

[01:16:57] Speaker 08:
And we've argued that what is reasonable evolves with time.

[01:17:01] Speaker 08:
And as the machinations improve to allow the government to make the law more accessible to the people, access to the law should improve as well.

[01:17:10] Speaker 06:
Well, in this day and age, it's the year we've all been through.

[01:17:13] Speaker 06:
we know there are many ways to make things publicly accessible.

[01:17:19] Speaker 06:
And the reading room in Bethesda may be fine if you can access it over Zoom.

[01:17:26] Speaker 08:
And perhaps that would be that is, and that's why we think reasonable, to some extent reasonable available is a squishy standard because there are, like your honor just mentioned,

[01:17:39] Speaker 08:
There are things the agency could do to make the role reasonably available.

[01:17:43] Speaker 08:
But what the agency can't do is relinquish control over that availability.

[01:17:53] Speaker 08:
My colleague for ASTM said that they wouldn't interpret exploitation in their licensing agreement to mean fair use, but in that licensing agreement, you also have to give up any copyright claims.

[01:18:06] Speaker 08:
So how are you supposed to present a fair use defense if and when ASTM goes to enforce this licensing agreement against you?

[01:18:13] Speaker 06:
And- Let me ask you, did you have any response to any of the jurisdictional arguments that remained?

[01:18:23] Speaker 08:
Yes, I did, your honor.

[01:18:24] Speaker 08:
Thank you for asking.

[01:18:25] Speaker 08:
As a preliminary matter, we would just, if this case, if this court thinks that it needs to decide this case on jurisdictional grounds, we'd appreciate an opportunity for supplemental briefing that exceeds the 250 words that were allowed in the 28-J response.

[01:18:42] Speaker 06:
But- Well, we gave you public notice that we would- No, I'm serious, counsel.

[01:18:50] Speaker 06:
We didn't even have to do that because you know that.

[01:18:52] Speaker 06:
as an attorney, first of all, does the court have jurisdiction?

[01:18:56] Speaker 08:
Yeah, Your Honor, and I would say that the first place that I point you is to the Federal Register, where not only was the rule styled as a conditional rule that may or may not take effect pending some further inaction by the agency, the Federal Register also says this rule is approved by the Federal Register as of December 22nd.

[01:19:18] Speaker 04:
Sorry, the Federal Register says the action, this is a direct final rule.

[01:19:22] Speaker 04:
Your honor, I believe- That's filed as a proposed final rule or a conditional final rule.

[01:19:30] Speaker 08:
Your honor, I think a response to that is that in last year's Little Sister of the Poor case in the Supreme Court, the Supreme Court said it's completely immaterial what the agency decides to call its rule.

[01:19:42] Speaker 08:
What matters is what the rule says and what the rule is actually doing.

[01:19:46] Speaker 08:
In this case, even though they've called it a direct final rule, it is in fact a conditional rule.

[01:19:51] Speaker 08:
And by the terms that the agency set out, and I note, Your Honor, that we filed our petition in February within 60 days of the effective date, which in our view was when the rule was formally promulgated, the agency did not object to that.

[01:20:04] Speaker 08:
So, I read that to think that the agency was under the same impression that Mr least did the agency looked at what it wrote in the Federal Register and said, you know what this rule did not become final until December 22.

[01:20:17] Speaker 08:
And so everybody was proceeding under the same assumption that this that promulgation was the effective date in this case and I recognize that that's not typically the case when the rule.

[01:20:26] Speaker 08:
goes through the formal rulemaking process.

[01:20:28] Speaker 08:
But when the agency is going to propose a direct final rule, which is in effect a conditional rule, it does not become final agency action.

[01:20:37] Speaker 08:
And it does not consummate.

[01:20:40] Speaker 08:
It's not a consummated agency action through the rulemaking.

[01:20:43] Speaker 04:
If no letter had been filed, no comment had been filed at all.

[01:20:48] Speaker 08:
Yeah.

[01:20:48] Speaker 08:
Oh.

[01:20:49] Speaker 04:
It would have remained a direct final rule.

[01:20:55] Speaker 08:
It brings me back to the point that you were asking of my co-counsel and the comments that are filed are available on regulation.

[01:21:01] Speaker 04:
Well, I'm asking you a different question.

[01:21:03] Speaker 08:
Right, right.

[01:21:04] Speaker 04:
Because time is very late here.

[01:21:06] Speaker 04:
We've given you way extra time here.

[01:21:08] Speaker 04:
So if no comment at all had been filed, not by you, not by any, it would remain a direct final rule.

[01:21:16] Speaker 08:
If no comment had been filed, there would be no reason for the public to believe that the rule was not.

[01:21:21] Speaker 04:
The condition wouldn't have been met and it would remain a direct final rule.

[01:21:24] Speaker 08:
Correct.

[01:21:26] Speaker 08:
Right.

[01:21:26] Speaker 08:
And, and we don't believe that the rule hat that only that you're only securing that right for the commenter we think what a comment is filed that puts the public on notice on regulations that go that.

[01:21:38] Speaker 08:
This might be pooled pending further agency action.

[01:21:41] Speaker 08:
The agency has to review this to see whether or not the agency deems it to be an adverse comment.

[01:21:47] Speaker 08:
The public is then on notice that we're in this tentative stage and we don't know whether the rule is going to become final until it's effective date when the agency has failed to act.

[01:21:55] Speaker 02:
I'm not sure I understand your response to Judge Millett's question.

[01:22:00] Speaker 02:
I'm sorry.

[01:22:01] Speaker 02:
If no one had filed any comment at all,

[01:22:05] Speaker 02:
what would have been the effective date?

[01:22:08] Speaker 02:
I'm sorry, what would have been the promulgation date of the rule under your theory?

[01:22:15] Speaker 08:
Again, it's a different case, but I do think that there's a strong, a much stronger argument that could be made that had no comment been filed, that there was constructive notice to the public as of the end of the comment period, that there were no adverse comments and the rule would take effect.

[01:22:31] Speaker 08:
And then

[01:22:32] Speaker 08:
that constructive notice would place the public on notice, obviously, that there was going to be final agency action.

[01:22:40] Speaker 08:
And so it's a different situation.

[01:22:43] Speaker 02:
Give me a date, please.

[01:22:45] Speaker 02:
If no comment had been filed, what would have been the promulgation date that would start the clock ticking for jurisdictional purposes under your construction of everything?

[01:22:58] Speaker 08:
Under our construction of everything,

[01:23:02] Speaker 08:
December 22nd would remain the promulgation date because there is no way for the public to fully know.

[01:23:09] Speaker 08:
And that's why other agencies file a confirmatory notice in the federal register to alert the public that the rule will in fact become final as proposed.

[01:23:17] Speaker 08:
And that's not the path CPSC took.

[01:23:20] Speaker 08:
And I appreciate your honor's question.

[01:23:21] Speaker 08:
And there could be a stronger argument that if there were no adverse comments filed by anyone, there was no public notice that this might be pulled

[01:23:32] Speaker 08:
under that theory, but the way that the rule was published in the federal register, it says this will be deemed published in the federal register as of December 22nd, 2019.

[01:23:43] Speaker 08:
So that has to be the final agency action in this state because that's how CPSC structured its rule.

[01:23:49] Speaker 08:
And that rule shouldn't be now construed at this later date to impede the rights of the public to file a challenge to that agency action.

[01:23:59] Speaker 06:
All right.

[01:24:00] Speaker 06:
I think we have your argument.

[01:24:02] Speaker 06:
We will take a case under advisement.