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Case number 21-1180, Finbin LLC petitioner versus Consumer Product Safety Commission.

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Ms.

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Hartnett for the petitioner, Mr. Winnie for the respondent.

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Good morning.

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You can start Ms.

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Hartnett when you're ready.

[00:00:19] Speaker 01:
Good morning, your honors.

[00:00:20] Speaker 01:
Excuse me, and may it please the court, Kathleen Hartnett on behalf of petitioner Finden, I would like to reserve three minutes for rebuttal.

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Your honors this case is about an agency that out of a perceived sense of urgency, acted in excess of its statutory authority and contrary to the evidentiary record before it.

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to promulgate an overbroad rule banning all previously unregulated sleep products for infants existing or future.

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This is precisely the type of agency action that the APA is designed to prevent.

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Section 104 of the Consumer Products Safety Improvements Act of 2008, referred to as the CPSIA, is the authority invoked by the Commission as the basis for the rule we challenge.

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Section 104 is a streamlined authority that allows the commission to transform voluntary standards for durable nursery products into mandatory ones by accepting them as is or increasing their stringency.

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Section 104 does not apply where there's not an applicable voluntary standard.

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If there is no voluntary standard for a certain class of products, the commission may regulate the products at issue under its general powers under the CPSA, the Consumer Product Safety Act.

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The commission concedes both in the final.

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How do you reconcile that view with the feature of B2, which has a reference, which requires the commission to, at the end of a process, to have promulgated standards for all

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such product categories and the such refers back to the nearest reasonable reference in B2 which is durable infant or toddler products.

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Thank you, Your Honor.

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That is the part of the statute that the government focuses on, the timetable section.

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And I would jump back to the B1 first, but I'll answer your question directly about B2.

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B2 has to be read in reference to section one, because prior to the such product categories, it's talking about the rulemaking required under paragraph one.

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And so it refers back to paragraph one, where the commission's authority is to first assess

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And this is B1A, the effectiveness of any voluntary consumer product safety standards for durable infant or toddler products.

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So it's by reference to existing standards.

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And then in B1B to then promulgate consumer product safety standards that are the same as such standards or more stringent.

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And so the timetable, the provision paragraph two has to be understood only in reference to B1, which expressly references.

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And so the point of B2 was to tell the commission, and this was a matter of urgency at the time, and I can provide a little more of that context, to go through these voluntary standards that exist methodically and quickly and make them into mandatory standards and make them more stringent if the commission saw fit.

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B2 does not create a new power to regulate where there is not a voluntary standard already existing.

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And the such standard refers back to one.

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Well, the such in B2 refers to the entire category.

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Well, it says, oh, sorry, Your Honor.

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No, go ahead.

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Well, just the such products in the thereafter sentence.

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Thereafter, they shall periodically review and revise, blah, blah, blah.

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That says such products.

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And that refers possibly back to the first sentence of B2.

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And then the first sentence of B2 says has promulgated standards for all such product categories.

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Again, that's by reference to the rulemaking required under paragraph one.

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So essentially the second Well, but the but the closest the nearest antecedent is the clause which references categories later in that sentence categories of durable infant or toddler products, right, which is the entirety of the of what 104 is about.

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Well, just not just sub areas where there's an existing standard.

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No, Your Honor, I just I think it's important to look at the beginning of the sentence in paragraph B two, so it's not later than one year after August 4 2008, the commission shall commence the rulemaking required under paragraph one, so it kind of incorporates by reference be one which is the authority and shall promulgate standards for no fewer than two.

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categories every six months thereafter, beginning with the highest priority until they've promulgated for all such categories.

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So again, I think it's very clear when the whole paragraph of B2 is read, that that's referring back to what is the subject of the rulemaking in B1.

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And B1 is about existing voluntary standards.

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And if I may, I think it's really important to take a step back in the context.

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I think the statutory text is clear when you kind of look at

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B1 first, the authority, and then look at B2 as the timetable, which is what Congress was saying.

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But the entire point was, so the CPSA existed since 1972.

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And under the CPSA, the Commission can promulgate mandatory consumer product standards and in some cases ban products altogether across all products, including durable nursery products.

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And we talk about this at five to seven in our brief for that process.

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The key aspect of the CPSA that helps understand Section 104 is that under the CPSA, the general power, the commission may not enact a mandatory standard if there already is a voluntary standard that reduces the risk of injury and for which there's substantial compliance.

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And so that limited the commission's ability to enact mandatory standards if there was actually a voluntary standard already covering the space.

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Flash forward to 2008.

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That's when the CPS IA was enacted in the genesis of that act as the government's brief acknowledges was a bill introduced the prior year, trying to make the mandatory the voluntary standards mandatory to make sure that they were enforceable and strong enough.

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And so this is, you know, we reproduce Senator Klobuchar's explanation for example of the bill at pages 15 to 16 of our reply brief and that makes clear the purpose.

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It was not to be filling in gaps where voluntary standards did not exist.

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It was to strengthen and to make binding existing voluntary standards for durable products.

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And so it just simply not the case that section 104 was meant to fill gaps where there wasn't a voluntary standard and that the government's entire argument is based on the premise that somehow it will be powerless to help to regulate new products if they don't happen to already be subject to a voluntary standard, but that's just not the case.

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They have that power already under the CPSA.

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And I think it's very, you know, one thing I would direct the panel to if they haven't already viewed it is there's a video of the commission's voting meeting in the administrative record as well as minutes of that meeting.

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And I think it became very clear by the end of that meeting, the chairman of the CPSC just found that the CPSA alternative of making rulemaking was too slow for his liking.

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I think he made it, he referred to it as a

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stampede of turtles through a bat of peanut butter or something like that.

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And so I think the idea here is that that's rulemaking and so there was a way to do it, it was maybe take longer than they wanted to, but the way to do this was not to take an expedited provision that was a tailored authority meant to transform voluntary to mandatory and say that could be a way to regulate a new.

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I see my time.

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Please speak and you have really helpfully said, you know, step back and sort of describe the purpose of the legislation and the ability to quickly convert existing voluntary standards, but just stepping maybe even further back and explaining why that would make sense.

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as a congressional objective.

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If the, I mean what the government argues here is that the the standards might be most needed in the area where even getting a voluntary standard off the ground is very contentious and

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So the notion that there has to actually be an affirmative standard as opposed to either a voluntary standard or the voluntary standard effectively being zero, it has some coherence as a narrative.

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And I've heard you and I've read the legislative snippets in the briefs that there's a narrower project, but it seems like

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one has to swallow something that's really pretty counterintuitive in terms of congressional purpose to credit that reading.

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Yes, Your Honor, thank you for the question.

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I do think that it's important to see what there was a specific problem being targeted though in 2008, and it was that there was a series actually was also about recalls and making recalls stronger, but the sense that there were these voluntary products out there that were subject to these voluntary standards, and that to get you essentially could not make a mandatory standard under the CPSA, if the industry was kind of going along with that.

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Congress was not at that time thinking about what do we do if there's not a voluntary standard in this space and there are other powers there is the CPSA of course and that does take time just like a lot of rulemaking does but the CPSC had time to do that here, I think, and I can explain a little more about the specifics of this rulemaking kind of maybe the agency failure that kind of led to us to the point we're at where they had to cram this in.

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Anyway, there is just there's the option there for the for the Congress gave the powers.

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There's also the recall power.

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And there's actually power under Section 12 of the CPSA to go into court and seek an injunction if a product is viewed to be imminently unsafe.

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And so and the CPSC has used the recall power at times.

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There was the boppy of child product that recently was recalled.

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And so there are powers available if there's an imminent need to regulate more quickly.

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But the thing that just was never done in the history of this Section 104

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it's been used up to 50 times since this came was enacted in 2008 was ever to sweep in a category of products that was not previously subject to a voluntary standard.

[00:10:14] Speaker 02:
Oh it's curious I realize this is counterfactual but what if the commission had started this rule making and with reference to the bassinet standard and just said that is the relevant voluntary standard here

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And we think it's the standard that best applies to baby boxes.

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And our concept is that baby boxes are effectively basically where they ended up.

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They're effectively non-compliant bassinets.

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If they had started the rulemaking with reference to ASTM's bassinet standard and said, we are

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you know, just going to tweak that standard and clarify that it applies to bassinets.

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I mean, it applies to baby boxes.

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That would resolve your statutory objection or not?

[00:11:12] Speaker 01:
No, Your Honor, I don't think, if the voluntary standard literally did not cover, it defined bassinet so they are currently just defined and didn't excluded this other set of products.

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I mean, there is a question maybe in some hard cases of what is just the same product but a different variation on it versus what is a different product.

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I think here the commission is taking the position that this is in fact a different product line.

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So that's kind of not as clearly presented.

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And also just looking back through the history of the rulemaking.

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And I do think that the, not just the statutory history,

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Genesis of this rule is important, and we start this at page 10 of our opening brief we talk about the 2013 bassinet standard and how the Commission in that in that standard itself carved out inclined sleep products is not being part of that standard so not but not other flat products.

[00:11:57] Speaker 01:
Yeah, at that time, I guess they weren't even really necessarily addressing that issue.

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It was really more of a carve out of the other input.

[00:12:02] Speaker 02:
Right, but in a way, that's what made me start thinking about this because there wasn't ever a carve out from the bassinet standard of other flat sleep products.

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And so I guess I'm sort of still, I mean, you're right that the commission is taking the position that this is a distinct product category, but I'm just trying to understand the sort of the nature and scope of your statutory argument

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um going forward and whether so whether it's just a little bit of an anomaly that it's referred to as not from the beginning as the relevant standard but really at the end of the day it is the relevant standard uh your honor there there are a set of products this is um yes i think i i see your point and i think that the point here is that there have been products that have been generated since 2008 that didn't fall neatly into one of the categories that congress listed so this is at the end of

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15 USC 2056 little a without a parentheses.

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And this is like addendum, sorry, in our brief addendum 10 to 11.

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There's a definition of durable infant or toddler product that's broad, but then also includes several examples, full-size cribs, non-full-size cribs, et cetera.

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And so, right, you would only have this many standards if those were all the categories, but they keep adding in kind of, so that we've had 50 rulemaking is because there are more products than just the kind of broader categories at issue here.

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And so I think what's important is also very important is that the bassinet standard in 2013 ASTM actually revised its voluntary standard that it was asked to and did to comport have the voluntary standard align with what the scope was at the end of the day of the rule that was being issued.

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And so there's just been this understanding, due to the collaborative nature that Congress intended between industry and the commission here, is that every single other time there's been a scope issue at the point of the rulemaking by the commission, they've worked with industry to get the voluntary standard to align with the scope.

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And so this is the first time that that hasn't happened.

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And that was available to the commission, but it just was not able to do it, I think, here largely because it actually is a distinct product category.

[00:14:02] Speaker 02:
It is not happening now.

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I'm sorry to interrupt.

[00:14:05] Speaker 01:
Oh, no, please.

[00:14:06] Speaker 02:
Isn't that happening now with that we got the 28 J letters and I recognize that you thought that that was an inappropriate authority to raise in a 28 J letter, but it was helpful to me to know that ASTM is coming up with a standard and would it provide the referent?

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And I realize again, it wasn't there at the beginning

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but it seems like it might come in lately and provide the voluntary standard for purposes of your statutory theory under 2056A1B1.

[00:14:52] Speaker 01:
Yes, and I think what's happening here is this is the part of the

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This is actually falling on, there's a provision of the statute that to the extent that there's already a voluntary standard that has been approved and is now mandatory, say the voluntary standard itself evolves, that the voluntary standards organization needs to alert the commission to that and then the commission again has a chance to either accept it or make it more stringent.

[00:15:18] Speaker 01:
And so what's happening now is the bassinet standard is being revised somewhat.

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to encompass some, but not all of the products at issue in the current that are banned by the rule.

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And so, for example, it will not be something that allows in bed sleepers.

[00:15:31] Speaker 02:
So that's only going to be- Your client is not marketing in bed sleepers.

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Your client is marketing baby boxes.

[00:15:39] Speaker 01:
Well, currently our client is suspended its operations because the rule has put it out of business if it takes effect.

[00:15:45] Speaker 01:
Our client does make baby boxes.

[00:15:47] Speaker 01:
Our client actually is more broadly interested in the flat infant product market and would like the option to be able to market its baby box as an in-bed sleeper, likely with some modification.

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And of note, the commission's own letter in December 2019 acknowledged that baby boxes could be in-bed sleepers.

[00:16:05] Speaker 01:
So our view is we have standing to bring a challenge not only as a baby box, but also as potentially an in bed sleeper and more broadly as a company that is interested in making innovative flat sleep products, which this again shuts down because it doesn't even just take off the market these dozens of undefined products that are banned, but also anything in the future that would evolve.

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You clearly your client.

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Oh, go ahead.

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You go ahead.

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You finish up.

[00:16:31] Speaker 02:
I was just gonna think the client clearly has standing with respect to the baby boxes, but I was a little confused why the briefing focused as much as it did on in bed sleepers.

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Is it a non-severability argument that you're making?

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I mean, you mentioned that it's both because Finbin is interested in making in bed sleepers.

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And if we didn't find that just for purposes of argument to be sufficiently

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imminent to support standing vis a vis the in bed sleepers, I took it this the alternative argument was that it was the treatment of in bed sleepers was illustrative of the arbitrariness of the commission's approach here and I still wasn't sure how that linked

[00:17:15] Speaker 02:
to your client's claim unless it's some kind of severability argument that if it's irrational or arbitrary with respect to in bed sleepers and you carve that out, then you can't accept the extension of the bassinet rule to other flat sleepers like baby boxes.

[00:17:33] Speaker 02:
But help me out with understanding why the in bed sleeper issue takes up as much real estate in your argument as it does.

[00:17:44] Speaker 01:
I think it does to begin with the commission dealt with this class of products as a massive products right so they were they were actually not themselves separating them out and actually discreetly looking at each of the products or maybe sub product lines, if not every single product itself to actually assess which one of them poses potentially this risk or not they were lumping them all together.

[00:18:01] Speaker 01:
And so that's part of our point.

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Our entire argument is that baby boxes and in bed sleepers and baby tents and all these other products were all lumped together by the commission and not analyzed separately.

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And that type of one size fits all rulemaking for the reasons we described in our brief is not appropriate.

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I think there also is a severability issue.

[00:18:17] Speaker 01:
I think, for example, I guess the commission cites cases like North Carolina versus FERC, but those cases make clear that the commission's order where it's a unitary one is not subject to being severed.

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And so here,

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Our view is that the commission treated all these in lumped together as one product class.

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We object to that.

[00:18:38] Speaker 01:
We actually, Finbin does, and again, I would direct the court also to the portion of the, there's a December 2019 letter from the commission itself acknowledging that baby boxes can be used as in bed sleepers.

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And so I think Finven sees it standing as both being a manufacturer of baby boxes, its primary product.

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It also sees itself as someone who could have their baby boxes used as in bed sleepers if they were permitted to market them as such.

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And they also would like to be able to make other flat sleep products in the future.

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They're an innovative company.

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But on the other hand, the main point of our argument was both that it affects us.

[00:19:11] Speaker 01:
It shows the rationality of the entire rule, the way they did it.

[00:19:14] Speaker 01:
And it is not severable because the commission treated it all as one big blob of products.

[00:19:22] Speaker 03:
Can you explain to me one thing just about how baby boxes are used?

[00:19:28] Speaker 03:
Are they meant to be put on the floor on beds?

[00:19:34] Speaker 03:
It's because it's not great.

[00:19:35] Speaker 03:
I don't know whether it's dangerous on the floor because someone will step or trip over it, but obviously the commission doesn't want things on beds.

[00:19:42] Speaker 03:
I just don't know how they're envisioned to be used as sleepers.

[00:19:48] Speaker 01:
Thank you, Your Honor, I think that they are like any kind of baby product subject to sort of the care of the parent but I think the idea is to provide a clean and sleep sleeping place, sleeping place often for people that are not in a environment where there's a lot of, you know, other amenities or furniture or things like that like for there's been a reason that these products have been ones that have been used by state and local governments and times to be a kind of an aid to a new family to have a safe.

[00:20:12] Speaker 01:
a clean place to sleep either on the floor or some other step stable surface, where the baby can actually be safe and enclosed and so I think that that's the idea and I think like I said that the Finden would want the opportunity to market itself as an in bed sleeper but that's even another hurdle to climb given what they're kind of dealing with at the commission.

[00:20:30] Speaker 01:
So at this point, you know that what they

[00:20:32] Speaker 01:
their first and foremost use is to be on a flat surface to be able to give the baby a clean and flat place.

[00:20:38] Speaker 01:
And again, the commission's whole point is, and the kind of throughout the administrative record you see, back is best, flat is best.

[00:20:44] Speaker 01:
And as the Commissioner Biaco said at the final voting meeting, she's having a hard time understanding how if flat is best and back is best, we would then bar as a matter of law all of these

[00:20:54] Speaker 01:
flat sleep products that people have used to ensure the safety of their infant often in situations where there's not other amenities available to make it even more comfortable, such as a full-size crib or other things like that.

[00:21:07] Speaker 03:
And on your website, your client's website, they describe their product as a baby box bassinet.

[00:21:18] Speaker 03:
And the other, at least, rigid flat sleepers that are covered by this rule are also called

[00:21:26] Speaker 03:
either compact or portable bassinets.

[00:21:30] Speaker 03:
And so just following up on Judge Pillers point, if they had started with the bassinet voluntary, or the bassinet's now mandatory standard, started as a voluntary standard, so meets your statutory concern, and simply said, we're amending the definition,

[00:21:54] Speaker 03:
to include all products marketed as bassinets or that are flat sleepers, rigid sided, some way that would encompass baby boxes.

[00:22:07] Speaker 03:
Would you have had your statutory objection?

[00:22:11] Speaker 01:
Your Honor, I mean, I guess I'd have to, the specifics would matter, but I think yes, to the extent that the scope, that the products covered by the voluntary standard, there was a delta between that and what the CPSC's ultimate standard is.

[00:22:24] Speaker 01:
And I think that that is just, and I can go through the kind of the history of the rulemaking.

[00:22:27] Speaker 03:
Was there an express carve out of other

[00:22:33] Speaker 03:
rigid-sided, firm-sided, however you want to describe it, flat sleepers from the definition of bassinet, or is that simply what they conceptualized at the time?

[00:22:43] Speaker 01:
The main carve-out at the time was the, I mean, it was supposed to be... You're trying to find it.

[00:22:48] Speaker 03:
Yeah, yeah.

[00:22:49] Speaker 03:
So there was no express carve-out of other forms of flat sleepers, particularly those that marketed themselves as bassinets.

[00:22:57] Speaker 01:
Yes, Your Honor, in rebuttal too, I'll make sure I have that site for you on that from the bassinet rule because I do think it's important that the commission itself has recognized this as a separate product plus and this why it actually carved it out from the bassinet standard.

[00:23:09] Speaker 01:
It's why it was working on the standard for some time.

[00:23:12] Speaker 03:
When you say when you clarify from the beginning by this is the this this whole group here that you say they sort of shouldn't have grouped together to begin with of

[00:23:23] Speaker 03:
unregulated other sleepers?

[00:23:25] Speaker 03:
Or is the this the flat sleepers, firm sided flat sleepers?

[00:23:33] Speaker 01:
That's a fair question, Your Honor.

[00:23:34] Speaker 01:
I think it's both.

[00:23:35] Speaker 01:
The 2013 BassNet standard carved out the inclined sleepers because that was the issue at the time.

[00:23:40] Speaker 01:
The in-bed and these other flat products all were emerging as well.

[00:23:43] Speaker 01:
And so what happened is now at the ASTM level, there was both an effort to make an inclined sleep standard and an in-bed sleeper standard.

[00:23:50] Speaker 01:
So there were two separate subsets coming out of that.

[00:23:53] Speaker 01:
And what happened was instead of

[00:23:55] Speaker 01:
So then the inclined sleeper progressed.

[00:23:57] Speaker 01:
The agency did the 2017 NPR.

[00:24:00] Speaker 01:
It never completed that process.

[00:24:02] Speaker 01:
It then had some additional issues with the rock and play come up and kind of redoubled their efforts in 2019 to do inclined.

[00:24:10] Speaker 01:
At that point, they actually kind of didn't even very clearly in the rule itself, the 2019 NPR explained that flat products were in.

[00:24:17] Speaker 01:
only by a few words here and there, and it was not really until the December 2019 letter from the staff to the ASTM that it really became clear to industry that, oh, wait, this is not just about making the inclined sleeper product more exacting.

[00:24:31] Speaker 01:
This is actually going to sweep in everything.

[00:24:33] Speaker 01:
And that's when you started getting the flood of comments from industry.

[00:24:36] Speaker 01:
But just to be very clear to answer your question, from the industry's perspective,

[00:24:39] Speaker 01:
And I think it was the Thursday bassinet and the commission's perspective, the carve out was the inclined.

[00:24:46] Speaker 01:
And then this emerging in bed sleeper was coming, which the commission was participating in that standard setting process.

[00:24:51] Speaker 01:
And then it got to the end of the day at this role.

[00:24:53] Speaker 01:
And frankly, out of a sense of, again, perceived urgency and worry about having another rock and play issue from both a PR perspective and obviously an infant health perspective just swept it all in here.

[00:25:04] Speaker 01:
But there were other powers available to it were to really find these products to be an imminent threat.

[00:25:08] Speaker 01:
And I guess our point is just.

[00:25:11] Speaker 03:
If I could just please finish your sentence.

[00:25:13] Speaker 01:
Oh no no no please.

[00:25:14] Speaker 03:
If I could just clarify your client prior to this time did not market its baby box bassinets as in bed savers, correct?

[00:25:26] Speaker 03:
You say it may want to in the future, maybe with some modifications, but as of

[00:25:31] Speaker 03:
the time this petition for review was filed, your client had not marketed baby boxed bassinets as in bed sleepers.

[00:25:39] Speaker 01:
I think I will confirm that.

[00:25:41] Speaker 01:
Again, let me just make sure I get that to you.

[00:25:44] Speaker 01:
But I think that the point is that that would just be another hurdle for them to have climbed at the time.

[00:25:48] Speaker 01:
At this point, they're just trying to get a product that they would like to be able to do that.

[00:25:51] Speaker 01:
They believe that their product potentially is modified would be an appropriate in bed sleeper.

[00:25:55] Speaker 03:
What they were talking about at the time.

[00:25:57] Speaker 01:
Yeah, yeah, no.

[00:25:57] Speaker 01:
And part of the reason why was because the embed sleeper just pretend added another issue of what they're trying to do is fit in some standard that they can fit in.

[00:26:04] Speaker 01:
But they, this is not, you know, made up here, they would actually like to have their product used by as many people possible because they really believe in their product and they into the extent that there are bed sharing parents.

[00:26:13] Speaker 01:
that would prefer to have a modified version of this to be an in-bed sleeper or even use it as is, they would like that.

[00:26:19] Speaker 01:
But you're right, yes, the main marketing of the product was as a baby box, not as an in-bed sleeper again, because that just raises additional issues.

[00:26:26] Speaker 01:
Would they like to be able to do that tomorrow if they could do it?

[00:26:29] Speaker 01:
Yes, they do, because they want their product to be used as widely as possible due to its unblemished safety history in over 80 years, as we point out in our brief.

[00:26:39] Speaker 03:
I just wanted to clarify, it sounds like this is true, but I just want to

[00:26:42] Speaker 03:
confirmed because we always have to make certain on standing your clients have suspended their operations, even though the effective data this rule has not yet kicked in and you use the use the word suspended in your standing description does that mean that if you were to prevail and either the rule as a whole is applied to baby boxes were to be.

[00:27:05] Speaker 03:
overturning that your client would intend to presume operations?

[00:27:10] Speaker 01:
Yes, Your Honor, that's correct.

[00:27:12] Speaker 03:
I just wanted to clarify.

[00:27:12] Speaker 01:
Yeah, there's like a, you know, a production chain lag.

[00:27:15] Speaker 01:
And so I think the last thing they wanted to do was create a production chain that they couldn't satisfy.

[00:27:19] Speaker 01:
So that's the issue there.

[00:27:21] Speaker 03:
Okay.

[00:27:23] Speaker 03:
I just have one other question.

[00:27:24] Speaker 03:
I know it's not with like, so we'll take as given, it's not what the agency did in this case.

[00:27:29] Speaker 03:
But the talk, they've been talking here about, you know, the more stringent clause, but the one before it that says,

[00:27:36] Speaker 03:
voluntary standards that are substantially the same.

[00:27:41] Speaker 03:
If they were to amend the definition of bassinet and the existing bassinet safety standard in a way that included all flat sleepers with firmer rigid sides, would that qualify as implementing the standard in a way that is substantially the same?

[00:28:04] Speaker 03:
Would it still need a stand?

[00:28:07] Speaker 03:
No, I'm telling you, all they do, no.

[00:28:09] Speaker 03:
But no, no.

[00:28:10] Speaker 03:
I'm sorry, no.

[00:28:11] Speaker 03:
It would include, as we're needing a stand, things that don't already have a stand.

[00:28:14] Speaker 03:
So it would cover baby boxes in these portable or compact bassinets.

[00:28:19] Speaker 03:
So they would keep their, they would say in their definition that, I know the defined bassinets now is having a stand, but they would say, maybe they would add a whole new cause.

[00:28:30] Speaker 03:
We say that this bassinets are defined as flat sleepers,

[00:28:35] Speaker 03:
you know, the 10, less than 10 on incline, firm, rigid-sided.

[00:28:40] Speaker 03:
And then it would say, to qualify as a lawful bassinet, you would have to have the stand.

[00:28:46] Speaker 03:
But they would start off by saying, what we mean by bassinets that are covered, that are subject to this standard, define that in a way that would include baby boxes.

[00:28:57] Speaker 03:
Would that be substantially the same?

[00:28:58] Speaker 03:
I don't know.

[00:29:00] Speaker 03:
I'm just curious as to what substantially the same was.

[00:29:02] Speaker 03:
No one's talking about it here.

[00:29:03] Speaker 03:
And I realize it's not what they've invoked.

[00:29:06] Speaker 01:
No, I understand what you're saying.

[00:29:07] Speaker 01:
This is in the just in B1A.

[00:29:10] Speaker 01:
Sorry, just B1A.

[00:29:12] Speaker 01:
But B1B1.

[00:29:14] Speaker 01:
Yes.

[00:29:14] Speaker 01:
Yeah.

[00:29:20] Speaker 01:
I think substantially the same has essentially been, it means the same.

[00:29:25] Speaker 01:
I mean, I think that that might be a more stringency.

[00:29:28] Speaker 01:
I guess that's, it's not more stringent.

[00:29:30] Speaker 03:
That sounds more like, right, it's not stringency.

[00:29:32] Speaker 03:
That's addressed in the next provision.

[00:29:33] Speaker 03:
So I was really trying, and I don't, maybe there haven't been any cases of it.

[00:29:37] Speaker 03:
I was trying to understand what leash is given to the agency by the substantially the same.

[00:29:42] Speaker 03:
Like where can it move in that area?

[00:29:46] Speaker 03:
I think very little frankly I mean I think the way it's actually but maybe very little but but in what way it's you can't just you can't refer to stringency because then it would be redundant so it must refer I don't know whether that refers to scope.

[00:29:58] Speaker 03:
As opposed to stringency or maybe there's another category of things.

[00:30:03] Speaker 01:
I'll take that back to and try to give an example, if I can, from the 50 prior rulemakings.

[00:30:07] Speaker 01:
But I think it would be something like, say the standard was in inches, and it was going to be expressed in centimeters, and there was a slight difference in that, or something like that.

[00:30:13] Speaker 01:
I think the way it's been understood is substantially the same means to the extent there's a minor wording issue or something like that to kind of describe the same concept and have it be substantially the same in effect.

[00:30:23] Speaker 01:
So it's sort of de minimis changes.

[00:30:25] Speaker 01:
That's my understanding, but I will look back through the list to make sure I'm not misrepresenting that.

[00:30:29] Speaker 03:
Well, it's not the one that's an issue in this case.

[00:30:32] Speaker 03:
I'm cold calling you on that one.

[00:30:35] Speaker 01:
It's fair enough.

[00:30:35] Speaker 01:
And I just think it's important here.

[00:30:36] Speaker 01:
This is just an important power.

[00:30:39] Speaker 01:
Obviously, infant safety is important.

[00:30:41] Speaker 01:
Our client believes in that.

[00:30:42] Speaker 01:
But this is just a situation where things went haywire at the commission after 50 times of doing it or almost 50 times of doing it the right way.

[00:30:49] Speaker 01:
And so the right thing to do here is to go back and try to do this the right way, either through a voluntary standard

[00:30:54] Speaker 01:
through the use of its other powers or making rules under the CPSA, which again is just something agencies have to do.

[00:31:01] Speaker 01:
And I think the section 104 power wall convenient was never intended to be a tool for going around and banning wide swaths of products without the type of cost benefit analysis that the commission usually is subject to when it's not operating under section 104.

[00:31:14] Speaker 01:
And so thank you for your consideration.

[00:31:16] Speaker 01:
And we respectfully submit that the rule should be vacated with respect to previously unregulated flat sleep products.

[00:31:22] Speaker 02:
Just on the ASTM bassinet standard, we don't actually have the text of how the voluntary standard defines a bassinet in our record, do we?

[00:31:36] Speaker 02:
It's behind a paywall, it's not in this federal register.

[00:31:40] Speaker 01:
You know, I know that that's an issue that some actually were raised in the comments that the, the, the final rule in the, in the joint appendix does explain how it is different from the scope so that's part of its obligation when they do the 104 is to kind of go through and explain, this is the voluntary standard and this is the, this is how it's different and so there is a part of the.

[00:32:02] Speaker 01:
there is a part of the final rule that kind of walks through all the Delta between, and just candidly agrees that it's broader in scope than the bassinet standard in addition to lots of other ways in which it's different.

[00:32:15] Speaker 01:
It is in the JA.

[00:32:17] Speaker 01:
And I believe that there's also the, right, we also did put in two ASTM standards.

[00:32:21] Speaker 01:
So there's the bassinet standard.

[00:32:23] Speaker 01:
There's JA789 is the bassinets and cradle one, and then JA805 is the inclined one.

[00:32:32] Speaker 03:
I think it's also reproduced in this federal regulation.

[00:32:35] Speaker 03:
That's where I read it in there too.

[00:32:37] Speaker 03:
In this very federal regulation, don't they reproduce in there?

[00:32:40] Speaker 01:
Yeah, and I want to make sure, I mean, what they have to do is actually explain the Delta between what they're doing and what the voluntary standard is.

[00:32:46] Speaker 01:
So what they actually were doing was going through and saying, oh, this is how the inclined sleeper standard is not going to be like what we're doing because we're going to be just imposing the facet of that standard.

[00:32:54] Speaker 01:
So the way that the commission kind of lays out what it's doing to the voluntary standard that it's reviewing kind of shows you how it's doing the Delta there.

[00:33:01] Speaker 01:
Yeah, exactly.

[00:33:04] Speaker 03:
Thank you very much.

[00:33:10] Speaker 00:
One or two more quick ones.

[00:33:11] Speaker 00:
We've been talking a lot about the level of generality at which the commission must act.

[00:33:19] Speaker 00:
And you have a sort of intuitive idea that it's at a pretty low level.

[00:33:24] Speaker 00:
We're talking about bassinets being different from cribs, being different from baby boxes, being different from inbred sleepers.

[00:33:33] Speaker 00:
But what in the statute prohibits the agency from ratcheting up the level of generality a little bit and just saying, okay, we think the relevant product is infant sleep products.

[00:33:51] Speaker 01:
I think what prohibits that is the reference to the voluntary standards as the baseline for what it has to do.

[00:33:56] Speaker 01:
And so again, just kind of taking that, I think that the issue is, and the reason why there have ended up being 50 of these is because as time has evolved since 2008, it's not just that neat list that's in the statute.

[00:34:07] Speaker 01:
It's become more complicated and there've been subsets of product lines that have their own needs.

[00:34:11] Speaker 01:
And so I think just understanding this truly as something that is like the voluntary process is churning things out.

[00:34:16] Speaker 01:
And then the CPSC is gonna look at it to decide, is this enough or do we need more?

[00:34:20] Speaker 01:
That's what's going on here.

[00:34:21] Speaker 00:
I mean, this may be another way of expressing the question that Judge Pillard and Judge Millett have already asked you.

[00:34:29] Speaker 00:
But if the commission starts with infant sleep products as the relevant product slash unit of inquiry, they're going to create overlap with existing standards, including the one for bassinets, no?

[00:34:48] Speaker 01:
To date, they've managed to do this where I mean they sometimes note in their in their rule makings of like how it does or doesn't dovetail with a different one.

[00:34:54] Speaker 01:
So for example, if you're not using the bassinet that in a stand position, for example, like that rule said that you're not you're not going to be a bassinet.

[00:35:00] Speaker 01:
If it's something where you can remove the thing and put it separately, then you're not a bassinet anymore.

[00:35:04] Speaker 01:
So I think the commission is mindful when it's doing these things of explaining kind of to the extent there's overlap with another standard arguably which one applies.

[00:35:11] Speaker 01:
But I think the key to your point there is, Your Honor, yes, they could actually decide infant sleep was the right level of generality.

[00:35:18] Speaker 01:
But what they would have to do then is work with the ASTM to ensure that that was overlapping with an existing voluntary standard.

[00:35:24] Speaker 01:
And then that would be what gives them the power under 104.

[00:35:27] Speaker 02:
And otherwise they- Fully overlapping in your view in scope.

[00:35:32] Speaker 02:
It has to be coterminous in scope with an ASTM standard in order for the commission to regulate under section 104.

[00:35:39] Speaker 01:
Yes, it does.

[00:35:39] Speaker 01:
And that's been that's been the commission's understanding of its own authority, not just the legislative history I cited not just the text but our reply brief at 17 to 18, for example, discusses recent CPSC reports to Congress and years of their strategic plan, where they describe their authority exactly that way, which is that we take the scope of the standard, and we then we decide whether to take it or make it more stringent.

[00:36:00] Speaker 01:
And so that's been their unbroken practice that's

[00:36:02] Speaker 01:
truly been what they've done every single time.

[00:36:04] Speaker 01:
And every time to date that they've had a scope difference, even relatively minor one, ASTM and them, they have worked out together how to have the two standards align.

[00:36:13] Speaker 01:
And that's because everyone understood until this rulemaking that the way section 104 worked was to track off of what the voluntary standard was and to make it mandatory.

[00:36:21] Speaker 00:
So that puts a huge amount of pressure on the distinction

[00:36:29] Speaker 00:
you want to draw between stringency and scope, right?

[00:36:35] Speaker 00:
So, I mean, why wouldn't we think of stringency, I'll pick a synonym, just, you know, intensity, right?

[00:36:43] Speaker 00:
It's a vertical concept.

[00:36:45] Speaker 00:
You have a regulation that applies to some set of things, and you make the regulation more onerous, but only with respect to that set of things, as opposed to scope, right?

[00:36:58] Speaker 00:
expand the regulation to other kinds of things.

[00:37:02] Speaker 00:
Why might stringent not be at least ambiguous on which of those two dimensions the agency can act on?

[00:37:12] Speaker 01:
Thank you your honor I think in our brief we tried to our best to do that textual analysis we looked at the definition we do use strictness and the government really didn't have a response to that.

[00:37:21] Speaker 01:
I think it's also very important to just pay so even if there's possibly some ambiguity in that, let's look to what Congress use it twice else in the same CPS IA as section 104.

[00:37:30] Speaker 01:
And I think it's really telling how it used that term.

[00:37:32] Speaker 01:
we talk about this at our brief at page 31, when they were talking about making a more stringent lead paint band, which was a different part of the CPSIA, there they were talking about moving from a 0.06% to a 0.009% lead content, right?

[00:37:45] Speaker 01:
So that just kind of gives you a sense of this is about calibration, not scope.

[00:37:49] Speaker 02:
I also- Well, but lead is an easy case for that, right?

[00:37:51] Speaker 02:
Because lead is the danger, whereas here the dangers are myriad.

[00:37:55] Speaker 02:
They're being stepped on, falling off a surface, being inclined, folding over, turning.

[00:38:02] Speaker 01:
No, I appreciate there could be harder that that's the easy case probably for what stringency is like ratcheting it up a point oh whatever, but I also would direct you to 15 USC 2056 B, which was section 106 of the CPSIA at the same time that the Congress was doing this with the durable nursery products they were also saying with the toy standards, look at the existing voluntary standards, and you either take them or make them more strict, more stringent.

[00:38:25] Speaker 01:
And so, again, I just, I really would commend and you may already have of course done this is to look at the CPSIA, and this is in like the House reports we cite and otherwise to just see what the provisions of that act were, because this wasn't coming in and saying, fill gaps or create regulation and new in different areas, this was all about finding this this problematic system where the voluntary standards out there we're just not cutting it because they were not enforceable.

[00:38:47] Speaker 01:
and the Congress wanted to give the commission a power with respect to durable nursery products and with respect to toys, to not have to just rely on the industry where there was a voluntary standard.

[00:38:56] Speaker 01:
And that's really what's going on here.

[00:38:57] Speaker 01:
So stringent, I think, when we look at what this Congress was doing in the CPSIA, it becomes very clear that they weren't talking about opening up new areas of regulation, particularly given that the agency already had that power.

[00:39:07] Speaker 01:
And that wasn't the problem that was before Congress in 2008.

[00:39:09] Speaker 03:
Thank you.

[00:39:14] Speaker 03:
One of his responses is,

[00:39:17] Speaker 03:
Going from no regulation to regulation is a vertical increase in stringency.

[00:39:24] Speaker 03:
Nothing to something is more stringent.

[00:39:28] Speaker 03:
And so they were, again, kind of doing things in reverse order from what happened here.

[00:39:34] Speaker 03:
If we start with the bassinet standard, and we say, wow, the standard

[00:39:40] Speaker 03:
because of its definition that it includes this base or stand has left these things at zero level of regulation.

[00:39:50] Speaker 03:
And so we need to change the bassinet standard, at least for things that call themselves bassinets like baby boxes or compact affordable bassinets.

[00:40:02] Speaker 03:
We need to fix that.

[00:40:04] Speaker 03:
We need to repair that so that they are subject to the same stringency of regulation

[00:40:09] Speaker 03:
As other I could pass on and say those that have stands already that would count that would you might have other objections, but that would count as a change in stringency, would it not.

[00:40:22] Speaker 01:
I mean, the examples of the, and we put this in 30 to 31 of our brief, but examples of like more stringent would be like there was one example of the carriage stroller rule where they wanted to have the testing about the risk for the head, the head possibly getting trapped as being a stronger testing mechanism.

[00:40:36] Speaker 03:
And then we also had- I saw the examples.

[00:40:40] Speaker 03:
I'm asking mine where they say, wow, there's these things that are marketed as bassinets.

[00:40:46] Speaker 03:
They're flat sleepers.

[00:40:47] Speaker 03:
They're rigid sided, just like bassinets.

[00:40:49] Speaker 03:
But because of our definition,

[00:40:52] Speaker 03:
they're having the stringency of their regulation is zero at this point.

[00:40:57] Speaker 03:
And we want to move it up to the same level as bassinets that have stance.

[00:41:04] Speaker 03:
And so if that's what they do, is that simply an increase in stringency of regulation from zero to the same as all other bassinets.

[00:41:15] Speaker 01:
No, it's not, Your Honor.

[00:41:16] Speaker 01:
And it is because the way that the standard is written, it needs to track the voluntary standard.

[00:41:21] Speaker 01:
And so that just is how this statutory scheme is written.

[00:41:23] Speaker 01:
And that is something that the industry views as a separate product category.

[00:41:27] Speaker 01:
That's something until the final part of this rule where they swept this in here was viewed as a separate product category.

[00:41:31] Speaker 01:
And I think it's important you've noted that the potential marketing is a bassinet and that these other products are called compact bassinets.

[00:41:38] Speaker 01:
That's a different, I mean, that's a word bassinet.

[00:41:40] Speaker 01:
That's not the technical, there's a technical definition of it and there's common parlance here.

[00:41:44] Speaker 01:
And so, to the extent that that's one of the things the agency said it was concerned about here is that as to some of these products not all of them for sure.

[00:41:51] Speaker 03:
Their market is fast and that's and they're worried about consumer confusion, maybe consumers assuming that they have the same safety protocols as other.

[00:42:00] Speaker 03:
bassinets that's certainly legitimate thing for the commission to address.

[00:42:05] Speaker 01:
I would say if anything it's limiting the rule in the first place to the best having a bassinet have to have a stand that's more of a potentially counterintuitive thing than having a thing that's a solid sided box or other container to actually be called a bassinet and the compact bassinets as you know, or may know, or like soft sided and can be transferred with people

[00:42:22] Speaker 01:
to help protect the safety of their infant.

[00:42:25] Speaker 03:
And again, I think that I'm just asking whether that change as I've described it, which feels to me like a vertical change as opposed to the horizontal scope change from zero to the same as other things marketed as bassinets.

[00:42:38] Speaker 03:
Why that wouldn't count as an increase in stringency and you're saying because it's not with the voluntary standard or recovers but of course stringency allows you to change the stringency of a voluntary standard so I think it's because it has a different

[00:42:54] Speaker 01:
a different intent and purpose.

[00:42:56] Speaker 01:
I mean, I do think there could be some, I mean, I think here that the fact that the industry itself has kind of seen this as a different product set and until this role that was recognized as that makes a difference, that they're the kind of stand bassinets and that there are other in bed or sleep products or things that are like, I guess it's more accurate to call them like stand-less sleep products, but I think it just really is a different intent.

[00:43:14] Speaker 03:
I mean, they call it the bassinet standard and the statute obligates them to go back at periods periodically and review and make sure existing standards

[00:43:23] Speaker 03:
are providing the highest level of safety feasible.

[00:43:26] Speaker 03:
So if they've gone back to their bassinet standard, and I know they took the most security as possible here, but if effectively what they did was go back to their bassinet standard, then at least as to your client's product.

[00:43:39] Speaker 03:
say, wow, it's not providing the best, the highest standard of safety feasible for these, this category of things that we're going to call flat bed, firm sided sleepers.

[00:43:59] Speaker 03:
we need to fix it because this component that defines bassinet is having a stand already has resulted in this proliferation of products that serve sort of the same function as a bassinet but aren't riding the same safety level.

[00:44:16] Speaker 03:
And so we need to fix that.

[00:44:18] Speaker 03:
If they had done that expressly in that terms and it changed the definition of bassinet to encompass your products and then

[00:44:29] Speaker 03:
still required the stand as a safety requirement.

[00:44:33] Speaker 03:
That would have just been an increase in stringency, would it not?

[00:44:36] Speaker 01:
Your honor, I don't believe it would be.

[00:44:39] Speaker 01:
It really is a different product use in case.

[00:44:41] Speaker 01:
I mean, the baby box, you could be lying on the floor and reaching your arm over and touching the baby if you don't have a sleep, depending on your sleep situation.

[00:44:48] Speaker 01:
There are many reasons why in the in-bed sleepers present their whole other range of things, which is actually to try to take the reality of bed sharing and to make it more safe.

[00:44:57] Speaker 03:
I understand your arguments about that and your clients.

[00:45:00] Speaker 03:
would you say are your client's future intentions?

[00:45:02] Speaker 03:
I really just wanted to focus on these baby backs gas nets for this purpose.

[00:45:08] Speaker 01:
Yeah, well, in that case, I also don't, I do think that would not be an increase in stringency.

[00:45:12] Speaker 01:
That's certainly not how stringency has been understood in the application of this rule to date.

[00:45:16] Speaker 01:
That would be taking a product, that would be a different product that could be used in a different way and actually putting it, shoehorning it into the standard.

[00:45:23] Speaker 01:
And every time that there's been some change in the scope like that to date, the commission has worked with the voluntary standards organization either to cut that

[00:45:30] Speaker 01:
that product out and wait for that voluntary standard to emerge and then regulate that or to conform the standard.

[00:45:35] Speaker 01:
And that didn't happen here.

[00:45:36] Speaker 01:
And that is what section 104 requires.

[00:45:38] Speaker 01:
It's really critical that the agencies be held to, I mean, here, this is an obviously important area of infant sleep.

[00:45:43] Speaker 01:
No one wants infants to be harmed.

[00:45:45] Speaker 01:
But the type of analysis they did was a very much a shortcut than what they would have had to do were they trying to ban these products through the banning authority or for regulating them anew.

[00:45:53] Speaker 01:
And so I think the question here, A, obviously the commission didn't do what you were suggesting, and that would have presented a different question, maybe allowed for more commonance liberation.

[00:46:00] Speaker 01:
But what they did here was instead essentially kind of panic and try to put in products that didn't get fully through the voluntary process.

[00:46:10] Speaker 01:
And they didn't otherwise, weren't the subject of the type of regulation that normally is required if they're regulating anew.

[00:46:15] Speaker 01:
And so in that situation, I think that's why stringency

[00:46:18] Speaker 01:
did not mean to create this new power for the CPSC that was not the problem that was being solved for in 2008.

[00:46:25] Speaker 01:
And that is one that they could have that they just did this from the beginning the right way they could have done this through their normal powers under the CPSA.

[00:46:31] Speaker 03:
So can I also ask them what I just want to make sure I think this is what you said to Judge Katz's.

[00:46:40] Speaker 03:
So in defining what is a relevant product category, that is really, that has to start with the voluntary organizations.

[00:46:48] Speaker 03:
The commission itself can't say, here's what we think the relevant product category is and define that relevant product category.

[00:46:57] Speaker 01:
Under Section 104, I think that that is, I mean, Congress provided for several product categories in the list at the end of 2056A, but then because B1 makes clear that it's by reference to existing voluntary standards, that is true.

[00:47:11] Speaker 01:
Yes, I think, and it's really not a limitation here.

[00:47:13] Speaker 01:
It's actually just the problem that was being solved for.

[00:47:16] Speaker 03:
That list only includes, and because it includes, I think everyone who's recognized this commission can add

[00:47:21] Speaker 03:
That list, but you're saying they can only do so to the extent voluntary organizations start the process first.

[00:47:28] Speaker 01:
Under 104 and that that's what's happening.

[00:47:30] Speaker 01:
I'm only talking about.

[00:47:31] Speaker 01:
Yes, correct your honor, your honor.

[00:47:33] Speaker 03:
And then if you had a new product category.

[00:47:36] Speaker 03:
And.

[00:47:40] Speaker 03:
It was.

[00:47:40] Speaker 03:
Definitely hazardous.

[00:47:44] Speaker 03:
We'll just call it new category, a sleep product X. So I don't want to suggest it for any of the existing ones.

[00:47:50] Speaker 03:
And it just, kids are dying and getting injured.

[00:47:55] Speaker 03:
Babies are right and left.

[00:47:58] Speaker 03:
But because they contribute enormous amounts of money, this company does, to all the volunteer organizations and have enormous pull within them.

[00:48:08] Speaker 03:
no voluntary standard ever starts.

[00:48:11] Speaker 03:
And I think your position is that then the CPSC would have to go through its ordinary, lengthy, slow regulatory process.

[00:48:24] Speaker 03:
Is that correct?

[00:48:25] Speaker 01:
To be able to regulate that product.

[00:48:28] Speaker 01:
That's one of their options.

[00:48:29] Speaker 01:
And it's not that, it is lengthy and slow like many rulemakings are, but no more than actually what occurred here if they had just done that.

[00:48:36] Speaker 01:
Just to be clear, this has taken since 2019.

[00:48:38] Speaker 01:
There's also 15 USC 2061, that's section 12 of the CPSA that allows the commission to go in and get an injunction against imminent and unreasonable products that pose an imminent and unreasonable risk of death.

[00:48:49] Speaker 01:
There's section 15.

[00:48:50] Speaker 03:
Can it define under that provision?

[00:48:54] Speaker 03:
go get the injunction provision can it define the category there even if it hasn't been defined yet by volunteer organizations there it could define the path it could define there the product category that it needs to enjoy yes because of the showing that needs to be made the product category here under

[00:49:09] Speaker 01:
And I would also, the recall power, 15 USC 2064, the recall power section 15.

[00:49:14] Speaker 01:
Again, that is where they can go in and do a recall if there's a substantial risk of injury.

[00:49:18] Speaker 01:
Yes, that's true.

[00:49:19] Speaker 03:
In both of those, they can define the product category.

[00:49:22] Speaker 03:
They just can't do it here under section 104.

[00:49:24] Speaker 01:
That's correct, because the problem that Congress was solving for in 2008 was truly to make voluntary standards mandatory.

[00:49:32] Speaker 01:
I understand that.

[00:49:32] Speaker 03:
The voluntary standards argument is distinct from defining product categories, though, but you're saying it's one and the same for purposes of other four, but it's not one and the same for purposes of these other provisions, emergency provisions, or even for just general rulemaking under

[00:49:48] Speaker 03:
the 2056 without the A on it?

[00:49:53] Speaker 01:
It's 2056 without the A. Your Honor, the answer is just yes, and I think it's just not anomalous.

[00:49:58] Speaker 01:
It's that the background thing is that when you want to regulate something, take it off the market, ban it, you have to make a certain level of a showing.

[00:50:04] Speaker 01:
And if you don't want to do that, and you're actually just trying to transform something that's already been agreed to into mandatory,

[00:50:09] Speaker 01:
potentially by increasing the stringency, again, by putting on a larger warning label or making the testing regime stronger.

[00:50:15] Speaker 01:
Those are things that have been the examples in the past of making it more stringent.

[00:50:18] Speaker 01:
Those are things where you can go through 104 and it can be faster.

[00:50:22] Speaker 01:
And it can actually be faster in 2061 or 2064 if you actually have the showing here.

[00:50:26] Speaker 01:
There's just not that showing available to them.

[00:50:28] Speaker 01:
And that's why I think that they deliberately chose to use this as kind of a back door to get in this regulation when there are other ways that they could have done it.

[00:50:36] Speaker 01:
And that's just the reality of what happened here.

[00:50:38] Speaker 02:
I hate to ask another question.

[00:50:42] Speaker 02:
One more question, which is, am I right that before this rulemaking, that ASTM had considered a voluntary standard for baby boxes, but just hadn't arrived at one?

[00:50:55] Speaker 01:
I believe they were in the process of constructing kind of a standard for in bed sleepers.

[00:51:02] Speaker 01:
But not baby boxes.

[00:51:06] Speaker 01:
I believe that would have been able to be swept into that standard itself, the in bed sleeper.

[00:51:10] Speaker 02:
Right, but at least your client wasn't marketing its baby boxes as in bed sleepers.

[00:51:17] Speaker 02:
But there wasn't any separate undertaking by ASTM for baby boxes or for non, bassinets with no stands.

[00:51:28] Speaker 01:
There's the compact bassinet effort, I think that was, it's kind of both related to, it's partially related to this amendment of the mandatory rule that was brought to your attention right now.

[00:51:39] Speaker 01:
So not to overly complicate things, but there really are different, there's the bassinet as the commission has kind of defined it, meaning something with a stand, which also tracks the voluntary standards.

[00:51:49] Speaker 01:
There's the in bed sleepers, which can be overlapping, but also- And then there's the compact bassinet.

[00:51:53] Speaker 02:
I guess I'm thinking about the compact bassinet.

[00:51:56] Speaker 02:
wondering under your view, if a voluntary standards agency disavowed and said, look at these compact bassinets, not a problem.

[00:52:06] Speaker 02:
We're not going to come up with any standard because we just think there's just no danger that can come from them.

[00:52:11] Speaker 02:
It's a cardboard box.

[00:52:14] Speaker 02:
Then that would be the zero standard in your view that would enable the commission to regulate

[00:52:22] Speaker 02:
from zero, but only if there was some kind of affirmative disavowal of an intent to come up with a substantive standard or requirement.

[00:52:33] Speaker 01:
Yeah, I don't even know if there has to be an affirmative disavowal, there just has to be one that doesn't exist.

[00:52:36] Speaker 01:
And so it would be within the commission's right to, like, even if it just looked at the landscape and said, there's not a voluntary standard here, you guys are dawdling, we need to make a standard.

[00:52:45] Speaker 01:
They have that power available.

[00:52:46] Speaker 01:
And if it's something that's at a risk of, you know, something at a recall.

[00:52:49] Speaker 02:
Who's the they in your sense?

[00:52:50] Speaker 02:
ASTM has the ability to make a standard, not the commission.

[00:52:53] Speaker 02:
The commission can't make a voluntary standard, can it?

[00:52:55] Speaker 01:
The commission can make a rule that would cover like the magnets is a good example of this there's the the magnets case where kind of also was vacated for sort of different reasons but also arbitrary and capricious reasons that are similar here, but but basically the.

[00:53:09] Speaker 01:
Take a step back the commission can make its own standard by using its normal rulemaking powers, so the commission is not powerless to make a normal.

[00:53:16] Speaker 02:
I'm talking about under section 104 oh sorry no yes I'm talking about under section 104 in your view if if a voluntary standard setting organization looked at a subcategory and said.

[00:53:26] Speaker 02:
Okay, we think of this as a distinct subcategory, and we think that there's no need for a voluntary standard here.

[00:53:32] Speaker 02:
So they've touched it.

[00:53:33] Speaker 02:
They've done the consultation that, in your view, is encouraged by Section 104, but they've decided that the standard is zero.

[00:53:40] Speaker 02:
They haven't actually published anything, but they've just, and in a way, that's not far from what's happened here with Compact Bessonets, right?

[00:53:47] Speaker 02:
I mean, before the latest development in the 28-J letters.

[00:53:50] Speaker 02:
I'm just trying to understand, you know,

[00:53:53] Speaker 02:
poke a little bit more at the idea that Judge Millett's questioning was asking about, which is why isn't this more stringent than a zero standard, especially given that ASTM was somewhat active in this area at the time this rule was promulgated?

[00:54:08] Speaker 01:
Yeah, I think the more stringent, to try to answer both those related points, the more stringent, the way it works is more stringent than the voluntary standard.

[00:54:16] Speaker 01:
And so it kind of presumes there is one.

[00:54:18] Speaker 01:
That was the whole idea here was that we're going to take ones that are there and assess them.

[00:54:23] Speaker 01:
I think in the case that you're describing, if there's zero voluntary standard, then it's not like actually making a zero more stringent.

[00:54:29] Speaker 01:
The idea there is that you're not having a problem with a voluntary standard that's going to impede your normal rulemaking.

[00:54:34] Speaker 02:
Well, you're having a problem with the with the voluntary standard setting organizations, lack of stringency with respect to a product subcategory.

[00:54:41] Speaker 01:
In that case, Your Honor respectfully I would say that that would be a problem with a standard setting organization sort of not either getting it together to make the standard quickly enough, or just deciding to try to, you know,

[00:54:52] Speaker 01:
have some space be absent of any standard.

[00:54:55] Speaker 01:
And there, there's just not the problem that created section 104 in the first place.

[00:54:59] Speaker 01:
There, the commission can go make the rule and not have to worry about it getting thwarted because part of the whole process of the normal CPSA, they have to answer that question before they can pass that rule.

[00:55:09] Speaker 01:
Is there a voluntary standard here covering the space?

[00:55:11] Speaker 01:
They would easily be able to check that box.

[00:55:12] Speaker 01:
And then they could, I mean, the industry wouldn't want this, right?

[00:55:14] Speaker 01:
They could actually just be subject to a mandatory standard by the commission that doesn't track what they would otherwise have done if they had gotten their act together.

[00:55:22] Speaker 02:
And so I think in the hype might have started by the commission under its background rulemaking power.

[00:55:26] Speaker 01:
Correct.

[00:55:27] Speaker 01:
Yeah.

[00:55:27] Speaker 01:
So there's an incentive.

[00:55:28] Speaker 02:
There's just an anomaly with, and I don't want to be argumentative with, to the extent that the commission did ask ASTM, can we remove inclined in

[00:55:37] Speaker 02:
in the voluntary standard, precisely so that the voluntary standard would match what we're doing in this rule, and ASTM was unwilling to do that.

[00:55:46] Speaker 01:
But I think it's really important to look, that's just a completely different scope.

[00:55:49] Speaker 01:
The prior examples of that were ones of cooperative trying to figure out like, let's do some tweaking here to make sure that we're not like, there's a one part of a product that's not cut in.

[00:55:57] Speaker 01:
This was a massive, this was really a change in scope and direction for the voluntary standard.

[00:56:01] Speaker 01:
And so it is what it is, right?

[00:56:03] Speaker 01:
In the sense that now there's, if there's

[00:56:05] Speaker 01:
not a voluntary standard on point that leaves the industry vulnerable to the commission coming in to regulate.

[00:56:11] Speaker 01:
But this was not a situation of the, from my understanding, at least looking through the record, I think it's pretty clear of the ASTM unreasonably trying to deal.

[00:56:18] Speaker 01:
They just objected to on principle trying to sweep in a new product category where they believe that there were actually just important, that there was already a standard for that product being developed and that the right way to do it would have been to either confront that voluntary standard once it emerged.

[00:56:31] Speaker 01:
But the ultimate thing at the end of the day here was a ban.

[00:56:34] Speaker 01:
It was a ban of these products.

[00:56:35] Speaker 01:
And I think that the voluntary organization was unwilling to say, sure, insert me into your rule and have us banned.

[00:56:41] Speaker 01:
That wasn't really what the point was.

[00:56:43] Speaker 01:
The point was to find a way to make these products something that are safer.

[00:56:45] Speaker 02:
And that is just taking- And to ban products that aren't.

[00:56:49] Speaker 02:
I mean, is your ban argument that because there is explicit

[00:56:54] Speaker 02:
ban authority elsewhere in the statute that it cannot, the operation of a rule under section 104 cannot be to ban a product.

[00:57:03] Speaker 02:
I'm having a little bit of trouble understanding what role ban plays in your view, in your argument.

[00:57:11] Speaker 02:
I saw it in your brief.

[00:57:13] Speaker 01:
Yeah, I think the main problem for the class of products that we're talking about here is that there is not a voluntary, that they were not within the scope of the voluntary standard.

[00:57:20] Speaker 01:
I think the ban, to my mind, is more part of our arbitrary and capricious argument that even if you're going to actually look at these products here, you might want to, you're overlooking the fact that bed sharing is a reality and that these are actually making things safer.

[00:57:31] Speaker 01:
And so I think that's just really critical and important that these are products, and I know we were talking about our box, but I,

[00:57:37] Speaker 01:
If there is an issue of standing too, we would respectfully request the ability to put in a declaration or something on that point because I think there really is an important aspect of the issue here.

[00:57:45] Speaker 01:
We also have other, you know, another, like the Juvenile Products Manufacturers Association I know would stand ready to become involved in this lawsuit because we're past the 60 days of the initial suit if there ends up being a standing issue that comes up late in the day.

[00:57:57] Speaker 01:
So I think there's just a desire to get a resolution on this question.

[00:58:01] Speaker 01:
But I do think that what's important here is that, you know,

[00:58:05] Speaker 01:
there was an ability for this to have been done the right way at the end of the day.

[00:58:08] Speaker 01:
This ended up coming in at the end.

[00:58:10] Speaker 01:
I really recommend to you the voting meeting to kind of see an example of essentially an agency kind of gone wrong here at the end.

[00:58:16] Speaker 01:
And I think the answer is to try to quickly try to get this back on track so that we can have voluntary standards, have mandatory standards so that infants can be safe, but that large swaths of products are not being taken off the market, which is not at all what Congress intended when it enacted section 104 in 2008.

[00:58:33] Speaker 03:
Do my colleagues have any further questions?

[00:58:37] Speaker 03:
Sure.

[00:58:37] Speaker 03:
OK.

[00:58:37] Speaker 03:
So Ms.

[00:58:37] Speaker 03:
Hardin, we've kept you up a little bit beyond your allotted time.

[00:58:41] Speaker 03:
But if you're still willing to talk to us more, we'll give you some time.

[00:58:44] Speaker 01:
I certainly appreciate the opportunity.

[00:58:45] Speaker 01:
And thank you.

[00:58:48] Speaker 05:
OK.

[00:58:48] Speaker 05:
Good morning, Your Honor.

[00:58:49] Speaker 05:
May it please the court, Daniel Winnick for the Consumer Product Safety Commission.

[00:58:53] Speaker 05:
To the extent Finbin's statutory authority argument was presented to the agency, it fails on the merits.

[00:58:58] Speaker 05:
And that's true both because it's inconsistent with the text and the purposes of the statute

[00:59:02] Speaker 05:
And because the agency's contrary conclusion is entitled to Chevron deference with the commission sorry for you.

[00:59:09] Speaker 03:
Dive in too deep here to your argument there can I just ask you to do you have any update on this as TAM standard, what is the timeframe for the government for them, because they have to publish it in some form, or, and then the government responds.

[00:59:26] Speaker 03:
I don't even know what the normal timeframes is or timeframes are, excuse me, or whether there's anything you can tell us about this case.

[00:59:34] Speaker 05:
Yeah, I don't have an update from what was said in the letter.

[00:59:36] Speaker 05:
So the process is they have to publish the standard and then separately they have to provide a formal notice to the commission that the standard has been published.

[00:59:45] Speaker 03:
How long does that usually take after?

[00:59:47] Speaker 05:
I don't know how long it happens after publication.

[00:59:49] Speaker 05:
I don't think very long.

[00:59:51] Speaker 05:
At last I heard the, and I think what we said in the letter is that,

[00:59:54] Speaker 05:
The commission believed that the publication and the notice could happen as soon as the month of March.

[01:00:00] Speaker 05:
It's possible it takes longer.

[01:00:02] Speaker 05:
There's some ongoing process to continue sort of, I think, tweaking the standard, even though it has been approved.

[01:00:09] Speaker 03:
Once the notice is- That's right.

[01:00:11] Speaker 03:
This is a black box process for me, as far as I can tell.

[01:00:15] Speaker 03:
So we're pre-commissioned at this point.

[01:00:18] Speaker 03:
We're just within ASTM.

[01:00:19] Speaker 03:
And after it's approved a standard, it still takes them

[01:00:24] Speaker 03:
a month or so to publish it?

[01:00:25] Speaker 03:
Is that pretty normal?

[01:00:28] Speaker 05:
It is at least partly a black box process to me as well.

[01:00:30] Speaker 05:
But what I understand to be the case is that the members of the committee have sort of voted to approve this standard, but the actual text is still being revised.

[01:00:42] Speaker 05:
And that's sort of an ongoing and collaborative process.

[01:00:46] Speaker 05:
It surprises me that it takes as long as it has as well.

[01:00:49] Speaker 05:
But so our understanding is as early as sometime this month,

[01:00:54] Speaker 05:
it could be published and notice could be given to the commission.

[01:00:57] Speaker 05:
Once notice is given, that starts a 90-day window under the statute for the commission either to do nothing, in which case the standard takes effect as a revised version of the commission's mandatory bassinet standard 180 days after the notice is given, or the commission can affirmatively disapprove

[01:01:19] Speaker 05:
the new standard, in which case nothing happens to the mandatory bassinet standard and we all go onward.

[01:01:25] Speaker 05:
But so those are all clocks that are triggered once notice is formally given to the commission.

[01:01:31] Speaker 03:
Have you seen the content of this ASTM or you've just been told there's something out there?

[01:01:36] Speaker 05:
I haven't laid eyes on the content.

[01:01:38] Speaker 03:
Personally, has the commission seen it at this stage or not?

[01:01:42] Speaker 05:
The commission has seen it, yes.

[01:01:43] Speaker 03:
Does it apply in baby boxes?

[01:01:46] Speaker 05:
The compact bassinet standard, yes, it does apply to baby boxes.

[01:01:49] Speaker 05:
And in fact, there are already additional proposals to modify even the modified version of the standard to add some sort of particular requirements for baby boxes having to do with, I think, the lid or the waterproofing or something like that.

[01:02:03] Speaker 05:
So these are all ongoing processes.

[01:02:06] Speaker 05:
But yes, it would, if it, you know, if it were adopted as

[01:02:10] Speaker 05:
as a revised version of the commission's mandatory bassinet standard, certainly cover baby boxes.

[01:02:20] Speaker 05:
Happy to address anything further on that, otherwise.

[01:02:21] Speaker 03:
If you said the agency, the commission could say, we like it or we don't, excuse me.

[01:02:31] Speaker 03:
But I assume at that point they could say, well, we like it as a start, but it needs to be more stringent.

[01:02:39] Speaker 03:
And that stringency would be, for example, this rulemaking.

[01:02:44] Speaker 03:
This is the increase in stringency that we would want over that ASTM standard.

[01:02:50] Speaker 05:
So what the statute provides is that they are to determine whether the proposed revision does or does not improve the safety of the consumer product covered by the standard.

[01:03:05] Speaker 05:
That's sort of as a formal matter, the determination that they make.

[01:03:08] Speaker 05:
So, you know, this is getting pretty pretty speculative I suspect that if the commission did not, if the commission regarded the ASTM is revised version of the bassinet standard as sort of insufficiently protective.

[01:03:23] Speaker 05:
vis-a-vis what the commission has already adopted, this infant sleep products rule.

[01:03:27] Speaker 03:
Well, that's my question.

[01:03:28] Speaker 03:
What is the baseline to which you're comparing the voluntary standard to decide whether it's more protective?

[01:03:34] Speaker 03:
Is it more protective than existing federal regulation, or is it whether it's more protective than existing voluntary standards?

[01:03:41] Speaker 03:
At which point it would definitely, if it does anything, it would be more protective than existing voluntary standards, because there was no voluntary standard before.

[01:03:49] Speaker 03:
Yeah, we have to embrace it as as its own i'm not suggesting that I just that first comparison is it it's to existing federal regulation or to existing voluntary standards.

[01:04:00] Speaker 05:
I don't think the statute specifies that, Your Honor, and I don't want to get ahead of any view the Commission might take on that legal question.

[01:04:07] Speaker 05:
I mean, I think in substance... So that hasn't been clear.

[01:04:09] Speaker 03:
It's not clear.

[01:04:10] Speaker 05:
I don't think it's clear from the statute.

[01:04:11] Speaker 05:
I think in substance, the inquiry provided by the statute is that the Commission is to decide whether it thinks what ASTM has done is an improvement or whether

[01:04:20] Speaker 05:
It doesn't.

[01:04:20] Speaker 03:
Yeah, it's an improvement over what is the- Understood, Your Honor.

[01:04:24] Speaker 05:
I don't- I don't think the statute is crystal clear on that.

[01:04:26] Speaker 03:
Okay.

[01:04:26] Speaker 03:
You're not aware of the commission's view on that.

[01:04:28] Speaker 05:
I'm not aware of the commission's view on that, I know.

[01:04:30] Speaker 03:
Okay.

[01:04:30] Speaker 03:
All right.

[01:04:31] Speaker 03:
I won't ask you to go out on a limb on any of this.

[01:04:35] Speaker 05:
I appreciate it, Your Honor.

[01:04:37] Speaker 05:
So, Finden's statutory authority argument, again, to the extent it was presented to the agency at all, is inconsistent with the text and the purpose of the statute and- It doesn't matter that they didn't present it to the agency, right?

[01:04:49] Speaker 03:
I mean,

[01:04:50] Speaker 03:
I didn't see you grappling with this in your brief.

[01:04:54] Speaker 03:
Our case law is pretty clear when the agency itself squarely and in this regulation repeatedly addressed its authority in this regard to regulate.

[01:05:05] Speaker 03:
And it was a necessary predicate of their decision that we can go ahead and review it.

[01:05:11] Speaker 05:
So we certainly don't disagree that if the agency considers the exact same argument that that satisfies the requirements.

[01:05:18] Speaker 05:
I don't think that what the agency considered here was the exact same argument.

[01:05:21] Speaker 05:
The comments that were raised were separate, but I. I'm sorry, go ahead.

[01:05:25] Speaker 05:
No, I was just going to say I acknowledge they were quite closely related and I'm happy not to not to dwell on the issue.

[01:05:30] Speaker 03:
Do you disagree that it was necessary predicate of their decision here to have made this determination that they could do something here that they really hadn't done before?

[01:05:39] Speaker 05:
So it was certainly a necessary predicate to that they had statutory authority.

[01:05:45] Speaker 05:
I think as Korotov says, agencies don't have the obligation to anticipate every possible argument that might be made against their statutory authority.

[01:05:53] Speaker 05:
But we certainly agree that the commissions, what the commission said on this issue, sort of roundly rejected the argument Finbin is making.

[01:06:01] Speaker 05:
And that's why the commission is entitled to Chevron deference on this issue to the extent the text and the purpose of the statute are not already

[01:06:09] Speaker 05:
clear in the commission's favor.

[01:06:11] Speaker 05:
So the text, starting with subsection B1, directs the commission to examine and assess the effectiveness of, quote, any voluntary consumer product safety standards, plural, for durable infant and toddler products, and then to promulgate consumer product safety standards, again, plural, that are either substantially the same as such voluntary standards or more stringent than such voluntary standards.

[01:06:33] Speaker 05:
That language describes a regulatory project spanning

[01:06:37] Speaker 05:
The whole group of durable infant or toddler products congress didn't say for each product covered by a voluntary standard determine whether to mandate it or make it more stringent.

[01:06:47] Speaker 05:
It said look across the whole set of products assess the set of any voluntary standards that may exist and put in place mandatory standards that are either the same as.

[01:06:56] Speaker 05:
or more stringent than the voluntary ones.

[01:07:01] Speaker 00:
You have some other features of the statute that cut in your favor, including B2, but just within B1, don't you think the more natural reading of stringent is the vertical meaning we've been talking about as opposed to the horizontal meaning?

[01:07:22] Speaker 00:
Right.

[01:07:23] Speaker 00:
Make, make the standard tougher for the products to which it applies as opposed to extend the standard to other products.

[01:07:35] Speaker 05:
So I think that could be true in isolation, but, but two points.

[01:07:38] Speaker 05:
One is that it's perfectly natural to read more stringent as applying here in the sense that the, you know, what the commission has done is to impose a mandatory standard where there was none.

[01:07:49] Speaker 05:
That is a more stringent.

[01:07:50] Speaker 05:
standard.

[01:07:51] Speaker 05:
And again, as your honor noted, to the extent there's any doubt about how to understand that language in subsection B1, I think it's resolved by subsection B2, which in the clearest possible terms directs the commission to promulgate mandatory standards for quote, all categories of durable infant or toddler products.

[01:08:09] Speaker 05:
It's also, by the way, bolstered by subsection B4A, which says that when the commission promulgates a consumer product safety standard,

[01:08:17] Speaker 05:
under this subsection that is based in whole or in part on a voluntary standard, the commission shall notify the organization and so on.

[01:08:23] Speaker 05:
And there would be noting for that clause when it, when it propagates a mandatory standard based on a voluntary standard, if as Finbin argues, all mandatory standards under section 104 have to be based on a voluntary standard.

[01:08:36] Speaker 05:
And even if the text were susceptible to Finbin's interpretation, it would really flout the purpose of the consumer product safety

[01:08:43] Speaker 05:
Improvement Act, which was to remove durable infant or toddler products from the ordinary regime of reliance on voluntary standards and direct the issuance of mandatory standards for those products that Finbin's argument would leave the commission disabled from exercising the particular authority granted by Congress as to, you know, exactly that set of products for which it is most necessary, which is to say those for which there's no voluntary standard in place at all.

[01:09:11] Speaker 02:
And again, even if just just pause there for a second, because the you know, Finbin is arguing that you always have the twenty fifty eight authority and that's where you're supposed to go where there isn't a standard already in place.

[01:09:24] Speaker 02:
And under the twenty fifty eight authority, although there's more justificatory burden, it isn't just saying rely on voluntary standards.

[01:09:30] Speaker 02:
You can.

[01:09:30] Speaker 02:
promulgate mandatory standards, and I trust have done so in dozens, hundreds, many instances.

[01:09:37] Speaker 02:
What is it about the difference between the 2058 authority and 2056A authority that animates this, that makes this case so important for the commission?

[01:09:53] Speaker 02:
Is it so onerous, the process under 2058?

[01:09:56] Speaker 02:
And in what ways, what ways that are relevant to the commission?

[01:10:00] Speaker 05:
So it is onerous.

[01:10:02] Speaker 05:
But even aside from the need to satisfy the requirement of showing essentially that voluntary standards don't suffice, what's quite important is that the ordinary authorities require cost benefit analysis.

[01:10:14] Speaker 05:
And the statute here requires the opposite.

[01:10:16] Speaker 05:
So the Supreme Court's decision in textile manufacturers versus Donovan has a nice explanation of the difference between a cost benefit standard and a feasibility standard.

[01:10:28] Speaker 05:
They're really night and day.

[01:10:30] Speaker 05:
And what Congress has said here is we don't want cost benefit analysis.

[01:10:34] Speaker 05:
You don't have to consider whether the costs of regulation is measured by behavioral change and so forth outweigh the benefit.

[01:10:43] Speaker 05:
We want you to make these products as safe as they can feasibly be made.

[01:10:48] Speaker 05:
It's a fundamentally different standard.

[01:10:49] Speaker 05:
And so that is really the basic problem with Finbin's argument that we should just resort to our more general authorities is that Finbin wants to evade

[01:10:59] Speaker 05:
congressional command that the commission has to make durable infant or toddler products as safe as they can feasibly be, which is a quite different standard.

[01:11:08] Speaker 05:
And again, even to the extent the purpose of the statute doesn't adequately clarify the text in the commission's favor, the commission's conclusion that it can issue a standard under section 104 without waiting for action by ASTM would be entitled to

[01:11:25] Speaker 05:
Chevron deference, the commission resolved that issue quite clearly, and it is at a minimum, a reasonable construction of the statute.

[01:11:35] Speaker 03:
One thing that confuses me is in 2056A, B1, talking about the sort of voluntary standard process, talks about the regulation of products.

[01:11:53] Speaker 03:
And then in B2,

[01:11:56] Speaker 03:
which I think might be the first time in the statute.

[01:12:01] Speaker 03:
It talks about categories of products.

[01:12:07] Speaker 03:
I don't think the voluntary standards are doing it one product at a time.

[01:12:17] Speaker 03:
They must have some conception of a grouping of products that they base their standard on.

[01:12:21] Speaker 03:
But that's not how it's framed here.

[01:12:24] Speaker 03:
And so I'm just confused about what's the difference between a durable product that's

[01:12:31] Speaker 03:
voluminous enough towards it in numerous enough, I guess, to warrant perhaps a voluntary standard.

[01:12:39] Speaker 03:
And then what these categories are that are talked about in section two, which would seem to be something categories are drawn by the commission itself, because they're not referenced in B1.

[01:12:54] Speaker 03:
And just how that fits into your sort of vision of this statute.

[01:12:59] Speaker 03:
Or am I getting distracted?

[01:13:01] Speaker 05:
No, I mean, I think statutory categories is not a statutory term of art.

[01:13:08] Speaker 05:
Clearly the commission has the authority to sort of determine how to break the universe of durable infant or toddler products down into various categories.

[01:13:17] Speaker 05:
What the commission did here was essentially to respond to, I think, just kind of an artifact of the way the categories had evolved through the voluntary standard setting process, which is that because

[01:13:29] Speaker 05:
sleep products had been separated into, you know, five different categories, full-size cribs, non-full-size cribs, you know, bassinets defined as products requiring a stand, bedside sleepers and play yards.

[01:13:44] Speaker 05:
The commission noted that there was a, you know, a subset of infant sleep products that just sort of fell outside those categories that had been articulated in the voluntary standards.

[01:13:54] Speaker 05:
And so what the commission did here, really you can think of as say,

[01:13:58] Speaker 05:
saying, okay, so there have been these five categories defined.

[01:14:02] Speaker 05:
We don't think it is appropriate that that leaves a subset of infant sleep products completely without regulation.

[01:14:09] Speaker 05:
And so we're gonna define basically a residual category of products to make sure that all sleep products are ultimately required to satisfy a minimum safety standard.

[01:14:19] Speaker 03:
I guess, I mean, Subsection F doesn't use the word category.

[01:14:21] Speaker 03:
It describes full-size probes and non-full-size probes, even talking about as a product.

[01:14:25] Speaker 03:
That's what I'm just saying.

[01:14:26] Speaker 03:
It doesn't use the word category in the definition of durable products.

[01:14:30] Speaker 03:
Yes, and I think- So that's why I just didn't know what the row category was doing here, but it does seem like you definitely created a category here.

[01:14:38] Speaker 05:
Yeah, and I think, again, category, I don't think is sort of a relevant statutory term of R. I think what the commission's authority, as Your Honor noted, in Subsection B1 is to regulate

[01:14:48] Speaker 05:
products.

[01:14:49] Speaker 05:
I think, you know, B2 reflects the fact that in order to promulgate regulations, you sort of naturally have to break things down into categories because you're not issuing a standard for one product.

[01:14:59] Speaker 05:
But I think certainly the commission has some leeway, considerable leeway in deciding how to break down the universe of durable infant and toddler products.

[01:15:08] Speaker 02:
Dr. Winick, under your view of the statute, well, actually even under Finben's view of the statute,

[01:15:16] Speaker 02:
Could the commission decide that the five identified, statutorily identified categories of infant sleep product are the only ones that are sufficiently safe and just treat that as the universe of infant sleep products?

[01:15:37] Speaker 02:
So, and I guess as Finven would argue, so effectively drive all others out of business without any findings, cost benefit analysis, feasible alternative consideration.

[01:15:47] Speaker 02:
But I guess I'm wondering why isn't that fully open to the commission and whether it is open to the commission even under section 104 as petitioners understand it.

[01:16:04] Speaker 05:
Let me try to answer that.

[01:16:06] Speaker 05:
What the commission has the statutory authority to do is issue mandatory safety standards for durable infant or toddler products, right?

[01:16:13] Speaker 05:
If something is not, if the commission hasn't issued a mandatory standard for a durable infant or toddler products, it is not, you know, in any way regulated or banned or whatever you want to call it by, you know, under section 104.

[01:16:27] Speaker 05:
I think what FINBIN frames is the risk, at least so far as I understand it, is actually that the commission could sort of

[01:16:36] Speaker 05:
define a broad category of things and say, you know, you have to satisfy a safety standard.

[01:16:42] Speaker 05:
And they understand that in this case to be a ban.

[01:16:45] Speaker 05:
I think for the reason raised by a question your honor asked earlier, you know, section 104 defines the full scope of the commission's, you know, special statutory authority as to durable infant or toddler products.

[01:16:58] Speaker 05:
It doesn't distinguish between standards and bans.

[01:17:00] Speaker 05:
And so I don't think it's actually analytically relevant whether something can be thought of as a ban.

[01:17:06] Speaker 05:
But setting that aside, this can't possibly be thought of as a ban on baby boxes.

[01:17:12] Speaker 05:
There's nothing.

[01:17:13] Speaker 02:
So putting aside the somewhat tendentious or dramatic use of the term ban, is there anything that would prevent the commission?

[01:17:22] Speaker 02:
I mean, maybe this is just what the commission did, from saying, here are these five categories that are actually mentioned in the statute.

[01:17:28] Speaker 02:
Each one of them has a corresponding voluntary standard.

[01:17:32] Speaker 02:
And we think that's the waterfront.

[01:17:35] Speaker 02:
And so, you know, market under one of these or don't market and.

[01:17:44] Speaker 02:
is, I mean, that's not, as you say, the discussion was different.

[01:17:49] Speaker 02:
And as you described it, it's an artifact of the way the voluntary standard setting process evolved and the regulatory process.

[01:17:57] Speaker 02:
But looking at this on a clean slate, just trying to understand the implications of Ms.

[01:18:01] Speaker 02:
Hartnett's statutory reading.

[01:18:04] Speaker 02:
Is there anything, I mean, it's really a question for her, I guess, but is there anything about that kind of position on the part of the commission that would be

[01:18:14] Speaker 02:
impermissible for reasons that I'm missing.

[01:18:18] Speaker 05:
So let me, let me first explain what I think the commission did here and then try to, um, it says whether it would be okay under a Finbin's argument.

[01:18:26] Speaker 05:
I think what the commission did here is essentially just that.

[01:18:29] Speaker 05:
I mean, so actually as a, as a formal matter, if you look at the text of the rule itself, the, the, the rule text, what it did was to revise the list of kind of categories of durable infant or toddler products in the consumer registration part of the rule.

[01:18:44] Speaker 05:
which is kind of where the commission lays out its categories, to change the one for bassinets and cradles to read bassinets and cradles, comma, including bedside sleepers and infant sleep products.

[01:18:56] Speaker 05:
And so essentially what they said is, look, anything that is being sold, you know, marketed and intended for sleep in, in infants, you know, five months or, or younger has to just as a minimum matter, comply with the bassinet standard.

[01:19:10] Speaker 05:
In terms of whether that would be allowed under Finbin's understanding of the statute, I don't think it would because the point Finbin is making really the central point is that they don't think the commission has statutory authority under section 104 at all as to products for which there is not an existing voluntary standard.

[01:19:29] Speaker 05:
So setting aside the compact bassinet standard that is now being issued by ASTM,

[01:19:38] Speaker 05:
baby boxes and other, you know, flat infant sleep products covered by this rule are not subject to an existing voluntary standard.

[01:19:44] Speaker 05:
And therefore Finbin's argument is that the commission just lacks any statutory authority over them under section 104, even though.

[01:19:53] Speaker 02:
But they are, for the very reasons that the commission embraced in its rule.

[01:19:58] Speaker 02:
And this isn't the way the commission described it in the rulemaking process, but you're basically at the end of the day saying there is a voluntary standard that applies to them.

[01:20:06] Speaker 02:
It's the bassinet standard.

[01:20:08] Speaker 05:
So that's sort of the commission wants them to be subjected to the requirements of the bassinet standard.

[01:20:13] Speaker 05:
They are not as a formal matter within the scope of that voluntary standard as it's understood by like under the current voluntary standard because the voluntary standard defines

[01:20:23] Speaker 05:
a bassinet, and this is at 790 of the Joint Appendix as a product that has a stand.

[01:20:29] Speaker 02:
Right.

[01:20:29] Speaker 02:
But it's basically saying if you want to market something, it has to either meet the definition of a crib, of a bassinet or a cradle, a play yard, a bedside sleeper, period.

[01:20:43] Speaker 05:
I think that's a fair summary of the effect of the rule.

[01:20:46] Speaker 05:
Yes, it's to say for products marketed and intended for infant sleep that are not covered

[01:20:51] Speaker 05:
formally by one of the existing voluntary standards, you're going to have to meet the requirements of the bassinet standard, including the definition of a bassinet, which is how the rule imposes the requirement of having a standard base.

[01:21:04] Speaker 05:
Yes.

[01:21:05] Speaker 05:
And again, that is simply to ensure that there's not some residual category of infant sleep products that simply by virtue of how the voluntary standard setting process has unfolded over the years, do not have to comply with any standard at all.

[01:21:21] Speaker 02:
I mean, there's nothing to prevent it from being like a non-full-size crib if they thought that was an easier way to market it, right?

[01:21:31] Speaker 05:
Sure, if they could alter the product to comply with a definition of a non-full-size crib, they would then be within the scope of the non-full-size crib standard and therefore, you know, definitionally not within the scope of this standard.

[01:21:44] Speaker 05:
I think that's right, but it has to be one or the other.

[01:21:47] Speaker 00:
Sorry, Jessica has a set of questions.

[01:21:50] Speaker 00:
that the word product does seem to be a term of art.

[01:21:55] Speaker 00:
And there are maybe some clues at least suggesting that the commission is supposed to regulate at a pretty granular level under section 104.

[01:22:13] Speaker 00:
To me, product has at least a connotation of

[01:22:18] Speaker 00:
reasonable interchangeability from the perspective of a consumer and maybe more directly on point, there's a statutory definition of durable infant toddler products.

[01:22:31] Speaker 00:
And all of the examples are bassinets, cribs, play yards, bedside sleepers, very narrow.

[01:22:41] Speaker 00:
So why doesn't that at least suggest that

[01:22:47] Speaker 00:
commission is supposed to proceed at that level rather than abstracting all the way to infant sleep products.

[01:22:58] Speaker 05:
Well, first of all, I think the categories of products listed in the statute are not all that narrow.

[01:23:05] Speaker 05:
But assuming there is such a thing as relative to infant sleep products, they're pretty narrow.

[01:23:12] Speaker 05:
Understood.

[01:23:13] Speaker 05:
I mean, I think what the commission did, I mean, the rule doesn't sort of treat infant sleep products as a unitary whole, it recognizes that there are distinct types of infant sleep products.

[01:23:22] Speaker 05:
And so what it has done, I mean, in pursuant of its authority to promulgate standards for categories of products, is to say, there's going to be a rule for this category of this sort of residual category of products, the standards in that rule are going to apply to the various different types of products encompassed within

[01:23:42] Speaker 05:
this category.

[01:23:43] Speaker 05:
So I think to the extent, Your Honor, is correct that what the commission has to do is issue standards for sort of narrower products.

[01:23:51] Speaker 05:
The commission has done that here because it has recognized that the category as to which it's issued a standard encompasses various types of products.

[01:23:58] Speaker 03:
Yeah, I would have thought, I would have thought, sorry, I lost B2, which shows the opposite of what Judge Katz's was suggesting, because even though product is a term

[01:24:11] Speaker 03:
commonly used throughout this statute in the Organic Consumer Product Safety Commission Act.

[01:24:17] Speaker 03:
What you've been ordered to do is to produce standards for product categories.

[01:24:25] Speaker 03:
And while F defines some products, the commission is supposed to be regulating two every six months, categories, quite expressly, as you said.

[01:24:37] Speaker 03:
So I think that has to have some meaning.

[01:24:40] Speaker 03:
For some reason, they didn't follow through on the language used in B1 or an F and say, regulate no fewer than two products every six months.

[01:24:52] Speaker 03:
And so it does seem to me that they were doing something more here.

[01:24:55] Speaker 03:
And given that standards tend to focus on products, even though products is more than an individual company's individual version of a seat or something like that.

[01:25:06] Speaker 03:
They are, as he says, fungible or interchangeable versions of the same idea of a product.

[01:25:12] Speaker 03:
The leash here is the commander.

[01:25:15] Speaker 03:
It's not even a leash.

[01:25:16] Speaker 03:
It's to go broader.

[01:25:20] Speaker 03:
That's not obviously the commission has done either.

[01:25:22] Speaker 03:
So that's why I was confused from the beginning.

[01:25:24] Speaker 03:
But I don't know how, I guess, I don't know how we would say we're meant to go at a granular, that you have to go to granular level under the statute reading B2.

[01:25:34] Speaker 05:
So I certainly agree with that understanding of the commission's, of what the statute says about regulating products.

[01:25:39] Speaker 05:
I do think, I'm not sure I understood the question to suggest that that isn't what the commission did here, but I do think that's exactly what the commission did here is to say there's a category, a residual category of products

[01:25:50] Speaker 05:
that happen not to fall within the scope of the existing voluntary standards, because, you know, I guess just sort of how those evolved over the years.

[01:26:01] Speaker 05:
And so we're going to take that whole category of products and subject it to the minimum requirements of the bass.

[01:26:07] Speaker 03:
When the product becomes, is this.

[01:26:11] Speaker 03:
Is this sort of the kitchen sink category?

[01:26:15] Speaker 03:
Because it seems to me it's actually, the commission here has grouped together things that are profoundly dissimilar.

[01:26:22] Speaker 03:
Obviously starting with inclined products, which is a very different category from sort of at least flat sleeping products for a large variety of reasons.

[01:26:35] Speaker 03:
And I doubt are grouped together in consumers' minds.

[01:26:39] Speaker 03:
There's all kinds of refined baby products.

[01:26:41] Speaker 03:
And then even within the flat products, there are the sort of soft sided in bed sleepers.

[01:26:49] Speaker 03:
And then you have these sort of rigid sided flat that seem like they're exactly what you are supposed to put babies into.

[01:26:58] Speaker 03:
They're firm sided, they're flat.

[01:27:00] Speaker 03:
They've got the right mattress.

[01:27:02] Speaker 03:
They've got the right spacing if they have railings or they just don't have railings at all.

[01:27:06] Speaker 03:
They're everything you want except

[01:27:09] Speaker 03:
they're not on a stand.

[01:27:10] Speaker 03:
They're bassinets without a stand.

[01:27:12] Speaker 03:
They're more portable.

[01:27:14] Speaker 03:
One of them is even a portable bassinet, which seems to be a whole world different from either an inclined product or these little pillows that go on beds.

[01:27:28] Speaker 03:
And yet I didn't hear the commission

[01:27:33] Speaker 03:
linking these things together other than well this is the stuff we haven't got no one's gotten to regulating yet and and i don't know how that's a viable category as opposed to should this have been divided into smaller categories it just seems quite uh there wasn't if i didn't see you can point it to me i didn't see a lot of reasoning explaining why we are treating baby boxes the same as which are very high sided and not naturally used in the middle of a bed someone could i guess but really

[01:28:03] Speaker 03:
quite different from these little pillows that go in the back or inclined products.

[01:28:09] Speaker 03:
What on earth is the rationale for grouping all this stuff together other than let's just do it all at once?

[01:28:14] Speaker 05:
So Your Honor, I think the relevant question in this petition for review is, are the requirements of the bassinet standard reasonable or arbitrary and capricious as applied to baby boxes?

[01:28:23] Speaker 05:
Everything else is not jurisdictionally before the court because Finbin doesn't have standing to challenge it.

[01:28:28] Speaker 05:
And the rule is certainly severable.

[01:28:31] Speaker 03:
As to baby boxes, so is that a prod is that so as so are you now looking at the product level are you defining baby boxes as a category, because you said in response to the questions this was our category of sleepers infant sleepers that weren't covered.

[01:28:49] Speaker 03:
in any way, shape or form, these infant sleepers, all different variety that aren't covered by existing regulations.

[01:28:54] Speaker 03:
That's the category they're regulating here.

[01:28:56] Speaker 03:
And now you're saying we should look at not a category, but a product, and the product is baby boxes.

[01:29:03] Speaker 05:
So a couple of things.

[01:29:04] Speaker 05:
First of all, I agree that category here is infant sleep products.

[01:29:07] Speaker 05:
The product is baby boxes.

[01:29:08] Speaker 05:
I think the question before the court, the only question the court has jurisdiction to address is the rule arbitrary and capricious.

[01:29:16] Speaker 05:
in the requirements it imposes on baby boxes.

[01:29:19] Speaker 05:
I think Finbin doesn't have standing to raise arguments about whether the rule is arbitrary and capricious insofar as it requires other types of products to meet the bassinet standard.

[01:29:29] Speaker 03:
So does that mean we need to look at what in the record there was about risk of harm just from baby boxes?

[01:29:37] Speaker 05:
So Finbin certainly makes arguments that these requirements are arbitrary and capricious as applied to baby boxes.

[01:29:44] Speaker 05:
They're not and we should talk about why, but I want to make sure to address sort of the general question.

[01:29:49] Speaker 05:
First, I mean, everything else is just sort of not jurisdictionally before the court and the fact that the Commission was the Commission was certainly addressing a broad residual category what it wanted to make sure to do.

[01:29:59] Speaker 05:
was ensure that no infant sleep products were sold without being subjected to a minimum standard.

[01:30:06] Speaker 05:
As to baby boxes in particular, your honor is certainly correct that they are different in some respects from things like in bed sleepers.

[01:30:13] Speaker 05:
But I think where that plays out is that they already meet many of the requirements of the bassinet standard, or at least I'm not aware of reasons they wouldn't.

[01:30:21] Speaker 05:
So they meet the side height requirement.

[01:30:24] Speaker 05:
I see no reason they wouldn't meet the strength and stability requirements, although I'm not aware of

[01:30:29] Speaker 05:
know, test results or something like that.

[01:30:31] Speaker 05:
Really, where the rubber meets the road here is the requirement that they have a stand or a base.

[01:30:38] Speaker 05:
So yes, they are distinct from some other types of infant sleep products, but they already, I mean, because they already meet those elements of the bassinet standard, they avoid those types of hazards.

[01:30:47] Speaker 05:
Now, as to whether

[01:30:49] Speaker 05:
It is rational reasonable not arbitrary and capricious to apply, particularly the the stand requirement to baby boxes.

[01:30:58] Speaker 05:
The answer is yes, it is in that in that's true, both on the basis of the evidence in the record.

[01:31:04] Speaker 03:
And frankly, just as a matter of common sense, I mean, this commission before we go to common sense, before we go to common sense, because if we're supposed to look at this as an understanding jurisdictional points, I know they have their arguments about why we can't look at it in bed sleepers.

[01:31:18] Speaker 03:
But for this purpose, let's assume that we're looking at it as you wish to through this jurisdictional lens or just baby boxes.

[01:31:28] Speaker 03:
What in the record was there that will take us a given also?

[01:31:33] Speaker 03:
We know they meet the flat sleeping requirement.

[01:31:37] Speaker 03:
We know they meet the side height requirement and will take us given that they meet the stability and sturdiness requirements.

[01:31:47] Speaker 03:
Then what in the record shows that baby boxes

[01:31:54] Speaker 03:
need, as opposed to portable bassinets, need a stand to be safe.

[01:32:00] Speaker 05:
So there is not evidence in the record of harms specific to baby boxes.

[01:32:06] Speaker 05:
That isn't surprising because baby boxes are sold in incredibly small numbers relative to the other types of products.

[01:32:12] Speaker 05:
I think the statistic in the record is 20,000 a year before this was issued.

[01:32:15] Speaker 03:
Yeah, but for how many years?

[01:32:17] Speaker 03:
How many years have they been marketed in this country?

[01:32:20] Speaker 05:
I actually don't know how long they've been marketed in this country.

[01:32:22] Speaker 05:
Obviously, globally, they've been around for quite some time.

[01:32:24] Speaker 03:
Well, to say that there's not that many, that it's relevant not to have any evidence.

[01:32:28] Speaker 03:
20,000 years sounds small, but if that's been going on for 20 years, and maybe counsel for petitioner can tell us how many years they've been marketed in this country, that could be 100,000, 200,000.

[01:32:40] Speaker 03:
These could have been used by parents in the United States.

[01:32:49] Speaker 03:
Um, and so that's, that seems like a relative sample to know if someone had been injured or God forbid a child killed by this product.

[01:33:00] Speaker 05:
So the sample of data that the commission was looking at was not, you know, 20 years or globally was looking at two years worth of anecdotal reports, basically in the United States, largely reports from retailers and manufacturers, which amounted to I think 183 incidents with

[01:33:17] Speaker 05:
you know, 16 injuries and 11 deaths.

[01:33:19] Speaker 05:
So this was not, I will hasten to add, this was not, it didn't attempt to be a kind of comprehensive survey, much less a statistical one.

[01:33:28] Speaker 05:
But the point is, I mean, this court has made clear, agencies don't have to meet some standard of, you know, massive empirical evidence.

[01:33:35] Speaker 03:
No, but they have to have some standard of reasonability.

[01:33:37] Speaker 03:
And so if you have a product, so we're looking at this just through the lens of, did they treat baby boxes?

[01:33:44] Speaker 03:
in an arbitrary or non-arbitrary which is away from your viewpoint.

[01:33:47] Speaker 03:
And you tell me, well, I mean, they've effectively banned them because they just are designed not to have a stand.

[01:33:55] Speaker 03:
So you can't have baby boxes with a stand or not baby boxes.

[01:33:59] Speaker 03:
their baskets.

[01:34:00] Speaker 03:
And so you've said this product that you have, as you've had it and as you've had it for however many years, decades that you've been here in the United, marketed here in the United States, you can't exist.

[01:34:13] Speaker 03:
And we're going to do this based on a year or two's worth of anecdotal evidence, not a bit of which involves

[01:34:24] Speaker 03:
baby boxes and was a choice by the Commission.

[01:34:28] Speaker 03:
They chose that window of information they chose that they could have chosen to do a more extensive survey and they can't claim there was some emergency about baby boxes.

[01:34:39] Speaker 03:
So how, explain to me how that is recently.

[01:34:45] Speaker 05:
Let me add as a threshold matter, I don't think there's anything inconsistent with the nature of a baby box to have a stand.

[01:34:52] Speaker 05:
The other major domestic manufacturer of baby boxes is in fact developing and offering for sale a stand for its baby box.

[01:34:58] Speaker 03:
Well, we don't know that this BPSC has approved that stand, do we?

[01:35:02] Speaker 05:
Fair enough.

[01:35:03] Speaker 05:
But as to the question, I mean... And they're only doing it because the rule requires.

[01:35:07] Speaker 05:
To be sure.

[01:35:09] Speaker 03:
And is the baby box removable from that stand?

[01:35:12] Speaker 05:
I don't know.

[01:35:12] Speaker 03:
I've seen a picture of it.

[01:35:13] Speaker 03:
It looks like the baby box can go in it or go out of it, at which point we're right back where we started.

[01:35:17] Speaker 05:
I have the same impression from what I've seen of it.

[01:35:20] Speaker 03:
OK, and so then if what you're saying has to be permanently attached sand, then you are eliminating baby boxes.

[01:35:26] Speaker 03:
So I'm not sure you've persuaded me yet that you're not eliminating baby boxes.

[01:35:31] Speaker 05:
So as defined as something that doesn't have a stand, sure, this wouldn't allow baby boxes to be sold without a stand.

[01:35:38] Speaker 05:
As to why that was reasonable, what the record shows

[01:35:42] Speaker 05:
is that flat sleep products can and do fall off or fall over when they are placed on pieces of adult furniture like beds or couches.

[01:35:51] Speaker 05:
And would it have been nice to have more data?

[01:35:53] Speaker 05:
Sure, but you would need more data.

[01:35:56] Speaker 03:
My question is whether it's reasonable, because these are not as small as like a car seat or something.

[01:36:03] Speaker 03:
I mean, these are pretty decent sized boxes here that

[01:36:10] Speaker 03:
When you know I don't know you just set it on a couch given its its length and width.

[01:36:14] Speaker 03:
I mean you could, but it's, it's pretty hefty or so you wouldn't sit on a kitchen counter kitchen table, unless you clear off the entire table unless.

[01:36:23] Speaker 03:
Given given its site height, so do we know, do we know that people are putting baby boxes and positions, you're not market and generally marketed them to put on to tote around the house with you and put wherever you go and anyplace other than the floor.

[01:36:39] Speaker 03:
I mean they had written in big letters on the box.

[01:36:45] Speaker 03:
only set on the floor, stable surface like the floor.

[01:36:52] Speaker 03:
Or just say that only use on the floor, we'll make it simpler.

[01:36:56] Speaker 03:
That was how it was marketed, for floor use only.

[01:37:03] Speaker 03:
Would you have still been able to claim you've got a problem?

[01:37:07] Speaker 05:
So I think the question whether a warning can be sufficient to sort of eliminate all

[01:37:12] Speaker 05:
foreseeable misuse of a product is distinct.

[01:37:15] Speaker 05:
And I frankly don't know the commission's view on that.

[01:37:17] Speaker 05:
I think it is reasonably foreseeable that baby boxes are gonna be put on couches and beds.

[01:37:21] Speaker 05:
They're not that big.

[01:37:22] Speaker 05:
They're about two feet long and about a foot and a half wide.

[01:37:26] Speaker 05:
And with the commission noted from the evidence in the record.

[01:37:29] Speaker 03:
They're more than two feet long, so.

[01:37:32] Speaker 05:
27 and a half inches long, yes, exactly.

[01:37:35] Speaker 05:
So just over two feet long, just under a foot and a half wide.

[01:37:39] Speaker 03:
Yeah, that's pretty big box.

[01:37:42] Speaker 05:
I agree.

[01:37:42] Speaker 05:
It's not small, but you know, I also think it's perfectly foreseeable.

[01:37:45] Speaker 05:
The parents who are routinely putting an infant into and out of this box are not going to want to bend down to the floor all the time.

[01:37:51] Speaker 05:
And more to the point, there was evidence that there's plenty of evidence in the record of other flat sleep products that are routinely put on beds and couches for exactly that reason.

[01:37:59] Speaker 03:
And it's why the same type of dimensions.

[01:38:03] Speaker 05:
I don't know how the dimensions of a baby box exactly compared to something like an in bed sleeper.

[01:38:08] Speaker 05:
I think it's fairly similar.

[01:38:09] Speaker 05:
I mean, babies are a certain, you know, length.

[01:38:11] Speaker 05:
And I think an in bed sleeper is going to be roughly two feet long and a foot and a half wide.

[01:38:17] Speaker 05:
Whether it differs by an inch or two, I don't know.

[01:38:20] Speaker 05:
But yeah, I think we're talking about things that are essentially the same size, at least in terms of length and width and not height.

[01:38:28] Speaker 05:
So there's no reason parents would be putting in bed sleepers or other flat sleep products on beds or couches, you know, but they wouldn't do that with baby boxes.

[01:38:37] Speaker 03:
I saw on the record and you can tell me if I'm wrong.

[01:38:40] Speaker 03:
One instance of one of these rigid sided flat sleepers.

[01:38:44] Speaker 03:
that I think was put on a couch and maybe pulled over by a toddler.

[01:38:48] Speaker 03:
One instance.

[01:38:49] Speaker 03:
Everything else was either undescribed with sufficient definiteness or appeared to be these soft products or inclined products.

[01:38:58] Speaker 03:
That's what it seemed to be the evidence as I saw.

[01:39:02] Speaker 03:
You can tell me if I'm wrong and I missed a whole category of frigid-sided

[01:39:06] Speaker 03:
from flat sleep products that were getting pulled off couches.

[01:39:10] Speaker 03:
I didn't see it.

[01:39:11] Speaker 03:
And it seems to me, why is it reasonable for the commission to jump to eliminate that product?

[01:39:21] Speaker 03:
You may manufacture something different.

[01:39:25] Speaker 03:
It can be rectangular, like your box, I suppose, but it's gotta be completely different.

[01:39:31] Speaker 03:
A stand, something on a stand.

[01:39:33] Speaker 03:
Why is it reasonable

[01:39:36] Speaker 03:
the record as I've seen it and tell me if I'm wrong for sure, but if you don't disagree then on that record to jump immediately to eliminate as opposed to try a warning or maybe I mean you guys you're your clients the expert there may be all kinds of other things they could do that would be helpful.

[01:39:55] Speaker 05:
The commission's statutory obligation

[01:39:58] Speaker 05:
is to issue mandatory standards necessary to make these products as safe as they can feasibly be, not satisfy cost benefit analysis in which you might look to whether some less burdensome alternative like a warning would suffice, but to make them as safe as they can feasibly be.

[01:40:13] Speaker 05:
And given the basis, both in the record and as a matter of common sense,

[01:40:17] Speaker 05:
to think that parents are foreseeably gonna place these things on beds and couches from which they can easily fall or tip over.

[01:40:24] Speaker 05:
It was quite reasonable for the commission to determine that what would make baby boxes as safe as they could feasibly be is to require that they have a stand or a base so that people don't have to put them on a bed or a couch.

[01:40:37] Speaker 03:
Did the commission consider, it seems like if you're going down that route, you have to stop and think.

[01:40:41] Speaker 03:
Well, you know, obviously it's harder for I guess the two year old male toddler to tip over something on his stand.

[01:40:50] Speaker 03:
I don't know whether on average all siblings are two years older, as opposed to three or four who could easily, or even a big dog who could easily knock over.

[01:41:02] Speaker 03:
a bassinet on a stand, as compared to, yes, if this box gets knocked over on the floor, yes, it could happen.

[01:41:10] Speaker 03:
But one, the dog's not going to knock it over, and two, they're not falling very far.

[01:41:14] Speaker 03:
They're essentially rolling over.

[01:41:16] Speaker 03:
at that point, as opposed to if you're up on a bassinet stand and get knocked over, you're falling feet and feet and feet.

[01:41:23] Speaker 03:
And it feels to me like this record is really, if we're looking at it through the lens you want us to, and I completely appreciate your jurisdictional arguments in that regard, that there's just not enough here.

[01:41:36] Speaker 03:
Just help me understand.

[01:41:38] Speaker 03:
I'm really, really struggling with this because I understand the importance of the safety.

[01:41:42] Speaker 03:
I really, really do.

[01:41:43] Speaker 03:
and the commission's very, very high charge here.

[01:41:50] Speaker 03:
Don't they need to spend a little more time, get a little more of a record, and think this through as to this particular category?

[01:41:59] Speaker 05:
So Governor, as to whether stands are safe or less safe, I mean I think the the points runner is making about, you know, whether it is

[01:42:07] Speaker 05:
less safe to be raised off the floor could equally be made about bassinets.

[01:42:11] Speaker 05:
And I won't say I haven't- Well, that's the point here.

[01:42:12] Speaker 03:
These are bassinets that go on the ground.

[01:42:14] Speaker 03:
No, no, that's right.

[01:42:14] Speaker 03:
And so they've never studied them before.

[01:42:16] Speaker 03:
And the politicians have said neither.

[01:42:18] Speaker 05:
Yeah.

[01:42:18] Speaker 05:
My point, though, is that bassinets have been required to have a stand for years and years, both through the commission and through ASTM.

[01:42:23] Speaker 03:
Because that's how bassinets were.

[01:42:25] Speaker 03:
That's how everyone thought bassinets were from before the statute was enacted.

[01:42:29] Speaker 03:
And then innovation comes along.

[01:42:31] Speaker 03:
And they go, well, you know, actually closer to the floor is a lot safer.

[01:42:36] Speaker 03:
Maybe that's what they thought in marketing this a lot safer, a lot harder to knock over.

[01:42:42] Speaker 03:
And yeah, it could be pulled over by the toddler, but it's not going to have the sort of same physics for tipping something over.

[01:42:52] Speaker 03:
And it's certainly not going to have the same harm.

[01:42:54] Speaker 03:
And so I just, again, why is it reasonable that they

[01:43:00] Speaker 03:
jumped to this new category, but didn't find specific evidence and didn't do more study.

[01:43:08] Speaker 03:
And it's not that nobody wants to wait for the first dead child.

[01:43:12] Speaker 03:
I get that too, but I just, this is what I'm struggling with is their duty, their high duty here, with the really pretty empty record, messed up baby boxes on all these different levels.

[01:43:25] Speaker 05:
Yeah, I think there are really two questions here.

[01:43:27] Speaker 05:
One, is the stand a good thing or a bad thing?

[01:43:31] Speaker 05:
And two, is what basis did they have to make baby boxes satisfy the bassinet standard?

[01:43:35] Speaker 05:
As to whether a stand is a good thing or a bad thing, I think that's a highly technical question committed to the expertise of the commission.

[01:43:42] Speaker 05:
And frankly, the same conclusion has been reached by ASTM that although it means the child is off the ground, a stand is a good thing because bad things can happen to babies

[01:43:52] Speaker 03:
they fall out on the ground it's much easier to knock them over on the ground so again I don't think that's was that part of the original bassinet okay I'm just playing so this is helpful so as part of the original decision to adopt bassinets they made a specific decision that we want them on a stand I know why they want a stable stand of course you're gonna have a stand you want it to be stable but there isn't that record which we don't have in front of us

[01:44:13] Speaker 03:
evidence that they made a specific determination that being up off the ground on a stand is safer than being on the ground.

[01:44:21] Speaker 03:
I assume they hadn't because there wasn't on the ground options at the time.

[01:44:24] Speaker 03:
But if you're telling me that's what is in the bassinet record, that would be very helpful to me.

[01:44:28] Speaker 05:
Yeah, I don't want to represent that that's in the bassinet record.

[01:44:30] Speaker 05:
I don't know that that's in the bassinet record.

[01:44:32] Speaker 05:
My point about the bassinets is really just that if it were really safe, if it was unsafe to have them elevated, if it was safer to be on the ground,

[01:44:38] Speaker 05:
then I think, you know, frankly, it would have been the commission's authority to say, no, no, actually, bassinets can't be off.

[01:44:45] Speaker 03:
Well, they have that option.

[01:44:46] Speaker 03:
Do they have that comparator at the time they adopted the bassinet standard?

[01:44:49] Speaker 05:
Yeah, I mean, maybe in volume, as Finbit notes, baby boxes have been around for years and years.

[01:44:54] Speaker 05:
I don't think that what has happened here is some innovation to say, oh, you know, actually, baby box bassinets are dangerous because they're elevated.

[01:45:01] Speaker 05:
And

[01:45:01] Speaker 05:
so we should have something on the on the floor.

[01:45:04] Speaker 05:
The baby boxes have been around for years and years and the point was always I think.

[01:45:09] Speaker 03:
I'm just asking what the commission considered with the bassinet did it make if it if you can you don't have to tell me now because I know that's not the record in front of you so I'm sorry I don't mean to be ambushing you but if if it's some maybe after argument if if it's if you want um if there is something from the bassinet process itself that made a determination that off the ground

[01:45:29] Speaker 03:
for whatever reason, maybe they didn't have this specific comparator, is better because you don't get tripped over, you don't get kicked, whatever.

[01:45:34] Speaker 03:
So that off the ground is safer than on the ground, even if you've got the same rigid sides, flat sleep, this kind of stuff.

[01:45:43] Speaker 03:
You've got all the other, all things being equal, up is better than down.

[01:45:46] Speaker 03:
That would be helpful.

[01:45:49] Speaker 03:
But if it didn't exist because it wasn't before them at that time, that would be helpful to know too, because now it is before them.

[01:45:56] Speaker 05:
Yeah, I hear the question and we'll we'll take a look at it.

[01:45:59] Speaker 05:
I've just noticed a baby box and I think the value proposition of baby boxes has never been.

[01:46:04] Speaker 05:
These are really wonderful and safe because they're on the ground, the proposition of baby boxes has always been.

[01:46:09] Speaker 05:
These are, you know, simple, at least in some forms relatively inexpensive and they're

[01:46:15] Speaker 05:
safe flat sweep surfaces.

[01:46:16] Speaker 05:
Nobody disagrees with that.

[01:46:18] Speaker 03:
She even said stable in describing it.

[01:46:21] Speaker 03:
It's the commission here that said, no, get them up off the ground.

[01:46:27] Speaker 03:
It's the commission here that has to have the reasoning.

[01:46:30] Speaker 03:
They do talk about it's a stable surface when it's on the ground, to be fair to them.

[01:46:34] Speaker 05:
That's right.

[01:46:35] Speaker 05:
The way in which it's unstable is if you put it on a better couch, which, which foreseeably can happen.

[01:46:40] Speaker 05:
I mean, just on the, on the sort of question, whether it is like some great harm to, you know, require baby boxes to have a stand to the extent it makes them more expensive to do that.

[01:46:50] Speaker 05:
I mean, I would just note it is, it is not correct to suggest that this is going to deprive people of inexpensive, you know, options for sleep safe sleeping environments for children.

[01:46:59] Speaker 05:
I mean, the preamble notes that the price of a baby box

[01:47:02] Speaker 05:
on the market, I think it says 50 to 75, FinBins actually were 75 before they were taken off the market.

[01:47:08] Speaker 05:
And the preamble also notes, I think at the proceeding page, that there's plenty of safe bassinets that meet the bassinet standard.

[01:47:16] Speaker 03:
That's not reasons for taking this.

[01:47:20] Speaker 03:
This question has started as reasoning for what they have done to baby boxes, just ban them.

[01:47:28] Speaker 03:
unless they are a different product altogether.

[01:47:31] Speaker 03:
Because you said the product now is baby boxes, which is different from the product, bassinets, as defined as things with a stand.

[01:47:38] Speaker 03:
Yeah, and I think at the end of the day...

[01:47:41] Speaker 05:
At the end of the day, the question is whether it was reasonable for the commission to say that baby boxes need to have a stand in order to be as safe as they can feasibly be.

[01:47:51] Speaker 05:
Bracketing for a second, the question whether a stand generally is a good thing, which I think it is.

[01:47:58] Speaker 05:
I think that's evidenced by the long history of the bassinet regulation.

[01:48:02] Speaker 05:
But bragging that question, it is reasonable on the basis of the evidence in the record and common sense for the commission to say people are going to foreseeably put these products on beds or couches because they don't want to have to bend down to the floor every time.

[01:48:13] Speaker 03:
And when they do that... Are you talking about the commission articulating this common sense principle?

[01:48:19] Speaker 03:
We don't get to use our own common sense.

[01:48:23] Speaker 03:
I hate to say it, but we don't use our own common sense of this agency review.

[01:48:27] Speaker 05:
No, no, what the commission, what the commission said, it basic rationale for the stand requirement is a J 759.

[01:48:33] Speaker 05:
They say the requirement to have a stand and to be raised off the floor, uh, mitigates the risk that baby boxes are similar.

[01:48:39] Speaker 05:
I don't think they single out baby boxes.

[01:48:41] Speaker 05:
They're mitigates the risk that flat sleep products are going to be placed on elevated surfaces that may be soft and less stable.

[01:48:48] Speaker 05:
surfaces like couches or adult beds from which they can easily fall.

[01:48:51] Speaker 05:
That's the commission's rationale.

[01:48:53] Speaker 05:
I acknowledge there was not in the record some huge volume of instances where a child was injured in a baby box from- Are you aware of anything other than the one referenced?

[01:49:03] Speaker 03:
Nope.

[01:49:05] Speaker 03:
I'm not.

[01:49:05] Speaker 05:
I'm not, but my point is what the court has said in many cases is there's not some general requirement of a large body of evidence or statistical analysis or anything like that.

[01:49:15] Speaker 05:
Agencies have the power to act prophylactically.

[01:49:17] Speaker 05:
They need not suffer the flood before building the levee.

[01:49:21] Speaker 05:
Agencies can, within their discretion and their expertise, identify risks in the world and take actions reasonably calculated.

[01:49:30] Speaker 03:
That's a very valid point, and even more so than waiting for floods and levees.

[01:49:34] Speaker 03:
We don't want to wait for children to be harmed, certainly fatally at all.

[01:49:39] Speaker 03:
But what about the separate question of, do they need to go this far as a complete ban?

[01:49:45] Speaker 05:
I mean, I think what they determined and what the statute provided for them to determine was that the way to make baby boxes as safe as they can feasibly be is to have a stand.

[01:49:55] Speaker 05:
If they were exercising their more general authority under the Consumer Product Safety Act, then they might well have to consider the question whether a less burdensome alternative like a warning would suffice.

[01:50:06] Speaker 03:
Do any of the other, and this might just be, do any of the other

[01:50:12] Speaker 03:
mandatory standards that the commission has adopted for infant and toddler products include warnings as a feature.

[01:50:21] Speaker 05:
I don't know the answer to that question.

[01:50:24] Speaker 05:
Yeah, I don't know the answer.

[01:50:27] Speaker 03:
Like in this context, warnings don't matter because everyone's too sleepy to read or this from zero to five months or because you know, there are warnings all over every all kinds not infant and toddler, but certainly, you know, three and four year old toys about small pieces and things like that.

[01:50:41] Speaker 03:
Warnings are very much relied upon by the CPSC.

[01:50:44] Speaker 03:
I get that's not under 104.

[01:50:46] Speaker 03:
So that's why I'm asking the question for 104.

[01:50:48] Speaker 03:
If they made a decision here that warnings are not because of our unique mandate, we're not going to rely on warnings.

[01:50:53] Speaker 03:
That would be helpful.

[01:50:54] Speaker 05:
warnings are not in short supply.

[01:50:57] Speaker 05:
And I don't know whether the commission has a view on sort of warnings as a requirement specifically under section 104.

[01:51:02] Speaker 05:
But I think the sort of for present purposes, the salient point is if a warning, if section 104 allows warnings and if warnings sort of make the product even safer than, you know, great.

[01:51:13] Speaker 05:
But the relevant question is not could the commission sort of have gotten almost to the same place or just, you know, nearly as good.

[01:51:20] Speaker 05:
by having a warning, the question is, is the product as safe as it can feasibly be?

[01:51:24] Speaker 05:
And the commission's determination, again, in its expertise was that baby boxes can feasibly be made safer by coming with a base or a stand.

[01:51:34] Speaker 05:
And therefore that was the requirement that the commission imposed on them.

[01:51:37] Speaker 02:
You had started in the very early part of your argument, emphasizing the plural in the statutory requirement to assess existing volunteer standards and adopt standards that are equally or more stringent.

[01:51:58] Speaker 02:
And I'm not sure you got a chance to actually drive that point home.

[01:52:01] Speaker 02:
What were you taking from that?

[01:52:03] Speaker 02:
I don't remember you making that particular version of argument in your brief.

[01:52:07] Speaker 02:
Where do you get with that?

[01:52:10] Speaker 05:
The only point I was making, Your Honor, is that the statute is not, Finben sometimes argues as if the statute says the commission shall look at products that are regulated by mandatory standard and determine whether to take that standard and make it mandatory or make it more stringent.

[01:52:25] Speaker 05:
And the point, the only point I was making was the statute is written to tell the commission to undertake a broad project.

[01:52:32] Speaker 05:
Look at the set of durable and thinner toddler products.

[01:52:34] Speaker 05:
look at the set of any voluntary consumer product safety standards, look across the waterfront, and then take those standards and subject all durable infant or toddler products either to standards that are, to mandatory standards that are substantially the same as the voluntary ones or are more stringent than the voluntary ones.

[01:52:53] Speaker 02:
Does that get you, does that help you in what I think is the key, overcome what I think is the key challenge that FinBEN is making, which is,

[01:53:03] Speaker 02:
only where there's a voluntary standard.

[01:53:05] Speaker 02:
And that's where I thought you were headed that somehow when you look at the body of products and the body of voluntary standards, that somehow the gap filling is more plausible when teed up with that framing.

[01:53:18] Speaker 05:
I mean, I think it helps in the sense that the commission's statutory direction was to look at the full set of durable infant or toddler products.

[01:53:27] Speaker 05:
We think it's perfectly textually natural to say that mandating that a durable

[01:53:32] Speaker 05:
infant or toddler product satisfy a standard is more stringent than the status quo ex ante that it's satisfying no standard at all.

[01:53:42] Speaker 05:
And the point of the breadth and the plural language is the Congress didn't say, go look at the voluntary standards and determine whether to make them more stringent or impose them as is.

[01:53:51] Speaker 05:
It said, go look at the whole set of durable infant or toddler products, look at the existing standards, determine what to do.

[01:53:57] Speaker 05:
And then again, to the extent there's any doubt in B1,

[01:54:00] Speaker 05:
as to whether the commission's authority extends to products that aren't subject to an existing voluntary standard.

[01:54:05] Speaker 05:
I think it's resolved by B2, which clearly directs the commission to impose mandatory standards on all durable infant or toddler products.

[01:54:12] Speaker 05:
I also think it's further bolstered by B4A.

[01:54:15] Speaker 03:
Just one quick question.

[01:54:21] Speaker 03:
Do you read substantially the same ruminant I?

[01:54:26] Speaker 03:
which I know is not an issue here, as having only allowed the type of de minimis standards that Ms.

[01:54:32] Speaker 03:
Harten has referenced, or could that include sort of changing the definition of bassinets?

[01:54:40] Speaker 05:
I'm not aware of a position the commission has taken on that, and so I don't want to sort of commit them to anything.

[01:54:45] Speaker 05:
Just to sort of as a textual matter, I think I have essentially the same reading as Ms.

[01:54:50] Speaker 05:
Harten does of that.

[01:54:52] Speaker 05:
I think, you know, substantially the same could refer to

[01:54:55] Speaker 05:
variations in the sort of the language that don't alter the substance or things like that, or maybe minor substantive variations, but the commission didn't take here at least.

[01:55:06] Speaker 03:
I know it definitely didn't do it here, but I'm sorry, do you think it could sort of, would it, if you expand the definition to include things that are at least marketed as bassinets, even if they don't have stands, that'd be more than substantially the same?

[01:55:23] Speaker 05:
Uh, that, that might be plausible, uh, particularly if the, yeah, the commission hasn't, hasn't done that.

[01:55:29] Speaker 05:
Obviously I think that it's, it's, it's textually plausible, I think, to say that, you know, certainly at least some expansions in a standard, uh, whether in scope or stringency could be sort of substantially the same, that there's some play in, in that word.

[01:55:42] Speaker 05:
Um, you know, again, I don't have the commission.

[01:55:45] Speaker 03:
They haven't had occasion yet that you're aware of to sort of.

[01:55:49] Speaker 05:
That's right, I'm not aware of anywhere they've opined on sort of their formal understanding of what that provision would allow them to do.

[01:55:57] Speaker 03:
Looks like they do do warnings on bassinets and cradles for sure.

[01:56:01] Speaker 03:
Like don't use a different pad, don't use, don't put pillows and things in here.

[01:56:06] Speaker 03:
So it seems like warnings are an acceptable regulatory tool even under section 104.

[01:56:14] Speaker 05:
Yeah, I think that's right.

[01:56:15] Speaker 05:
And again, the question as to whether a warning would suffice just isn't presented here because the mandate is to make the product as safe as it can feasibly be.

[01:56:26] Speaker 05:
And so it's not relevant as it might be under the more general authorities, whether a warning could get you almost all the way there and in a less burdensome fashion.

[01:56:37] Speaker 00:
You just, sorry, just quickly, can you walk me through why you think before a helps you?

[01:56:44] Speaker 00:
It says the commission has to provide notice when it adopts a standard based in part on a voluntary standard.

[01:56:55] Speaker 00:
How does that hint that we, we could be talking about an expansion in scope as well as an expansion in stringency or, or

[01:57:06] Speaker 00:
What is it about that that you think strengthens your case?

[01:57:10] Speaker 05:
It's that I think it reflects the possibility that you could have a consumer product safety standard issued under Section 104 that is not based in whole or in part on a voluntary standard.

[01:57:20] Speaker 05:
If every standard necessarily had to be based in whole or in part on a voluntary standard, I think Congress would have likely

[01:57:26] Speaker 05:
written B4A differently to say simply when the commission promulgates a standard, it shall notify the organization that issued the underlying voluntary standard or something like that.

[01:57:36] Speaker 00:
The negative implication is there could be standards that are based, one of four standards that are either in home or in part.

[01:57:46] Speaker 05:
That's correct.

[01:57:47] Speaker 05:
Okay.

[01:57:47] Speaker 05:
Exactly.

[01:57:50] Speaker 05:
Yep.

[01:57:50] Speaker 05:
Unless the court has any further questions, we ask that the petition for review be denied

[01:57:55] Speaker 03:
Thank you very much for your endurance.

[01:58:00] Speaker 03:
Ms.

[01:58:00] Speaker 03:
Sarna, we'll give you three minutes.

[01:58:03] Speaker 01:
Thank you, Your Honor.

[01:58:03] Speaker 01:
I'll try to use it well.

[01:58:04] Speaker 01:
I wanted to just direct the court back to the, just on the key point of, excuse me, what does this statute mean?

[01:58:10] Speaker 01:
What is it in terms of the timetable provision?

[01:58:13] Speaker 01:
I would direct you to House Report 110.501, which we cite in our brief, although don't spell out this exact point, but pages 32 to 33.

[01:58:22] Speaker 01:
of House Report 110-501, I think is a good example of the report help clarifying what's at issue.

[01:58:28] Speaker 01:
They talk about both that they have to assess the effectiveness of the voluntary standards and then the timetable must complete the rulemaking and promulgate a mandatory safety standard for two of the 12 products every six months.

[01:58:38] Speaker 01:
So I think what you'll see from looking at that house report combined with the statute is that there were those 12 products listed to start.

[01:58:45] Speaker 01:
Those are the ones that were out there that people were worried about making mandatory.

[01:58:48] Speaker 01:
Go through those 12, do them on this timetable, and then thereafter they've allowed other standards to come in.

[01:58:53] Speaker 01:
So I really do recommend this report to help understand how the timetable worked and this whole issue of the categories versus the products.

[01:58:59] Speaker 01:
It becomes a lot clearer

[01:58:59] Speaker 01:
Chevron does not apply here because the agencies never understood this to be its authority until the rule in this case and the litigation position is taken here.

[01:59:08] Speaker 01:
Our brief explains at length kind of how this has never been the position taken before and under the authority that they're describing they could literally redefine categories to sweep in.

[01:59:17] Speaker 01:
It's not clear what the limit would be on how they could redefine the voluntary standards

[01:59:21] Speaker 01:
to encompass new products, new scope that had never been subject to a voluntary standard.

[01:59:25] Speaker 01:
On your questions about the stand, that was not.

[01:59:28] Speaker 01:
So the bassinet rule is in the record.

[01:59:30] Speaker 01:
It's in the record at JA 16.

[01:59:34] Speaker 01:
And it goes, there is no description in that bassinet standard explaining why a stand was safe or not.

[01:59:39] Speaker 01:
A couple other key points, though, about the bassinet standard is to your question about what is this substantially the same mean.

[01:59:45] Speaker 01:
One possible answer would be at Joint Appendix 19.

[01:59:47] Speaker 01:
There's an example there about like multi-mode products where you could use it as both the bassinet and knot, and they said, oh, we'll clarify a part of the voluntary standard.

[01:59:56] Speaker 01:
We're going to just clarify that a multi-mode product must meet the bassinet standard within that mode.

[02:00:01] Speaker 01:
So that's an example where the voluntary standard wasn't exactly saying it the same way, but it was actually making the same thing, but with a little bit of a tweak there.

[02:00:07] Speaker 01:
I also would just note there is a carve out from the bassinet standard for not only the inclined sleep products but for some flat sleep products that existed at the time, 2013, and this includes the Moses basket, and that that that is all available at joint appendix 18 where you if you want to see the idea that the commission itself understood this to be a different product class.

[02:00:26] Speaker 01:
In terms of... Did it mention baby boxes then?

[02:00:29] Speaker 01:
It didn't mention them then.

[02:00:30] Speaker 01:
Moses Basket was the main... Sorry, I want to make sure I get the page right on that.

[02:00:35] Speaker 01:
Sorry, it's actually Joint Appendix 16.

[02:00:38] Speaker 01:
And that was a portable... It was basically portable cradles.

[02:00:40] Speaker 01:
And so that was kind of what the conception was, at least at the time.

[02:00:43] Speaker 01:
Our company has been around for about six years.

[02:00:45] Speaker 01:
Baby boxes have been generally available in the United States for around 20 years.

[02:00:48] Speaker 01:
But this is kind of a wave of products that has emerged more recently and again, whose innovation would be

[02:00:54] Speaker 01:
ended with this.

[02:00:55] Speaker 01:
I guess I would just end, I can give you more.

[02:00:58] Speaker 03:
Just to be clear, don't worry.

[02:01:01] Speaker 03:
No gun goes off at the time of the best met standard.

[02:01:10] Speaker 03:
all bassinets had stands.

[02:01:12] Speaker 03:
I mean, that's just what bassinets were at that point.

[02:01:15] Speaker 03:
They may have been good or bad stands or things like that.

[02:01:17] Speaker 03:
But the concept of a portable bassinet other than maybe it was implicated only by like this Moses basket at the time.

[02:01:24] Speaker 03:
And they kept, they carved out portable.

[02:01:28] Speaker 01:
Yeah, I would.

[02:01:29] Speaker 01:
So this is a Joan appendix 16 and it's under the product because this is talking about the best that standard as of 2013, and it talks about the voluntary standard and how it defines it which is bass neck cradle as a small bed, blah blah blah supported by freestanding legs of stationary frame stand, etc.

[02:01:47] Speaker 01:
So it kind of explains it by reference to a stand, and then it goes on to say that.

[02:01:52] Speaker 01:
Sorry, that cribs Moses baskets and products using conjunction with an inclined infant swinger stroller, and it just are not included under the category of bassinets and it goes on to describe a Moses basket is a portable cradle, as with other facets and cradles Moses baskets are not intended for use after child can push up so it's basically kind of a.

[02:02:12] Speaker 01:
primitive circa 10 years ago, kind of understanding of what the leading product was of that type.

[02:02:17] Speaker 01:
Since that time, these additional products have come to market, which is why there was this in bed sleeper standard being developed, as well as I do understand from my client, a baby box standard being considered by the ASTM.

[02:02:27] Speaker 01:
So those things were in progress at the time that this rule then decided to sweep them in to this rule.

[02:02:32] Speaker 01:
In terms of the warning label, you already addressed that, but I'm just looking at my record of the almost 50 rules that have been issued under Section 104, and there were repeated examples of Section 104 power being used to do a warning label here that wasn't really even considered as an option in the rush to sweep the products in.

[02:02:49] Speaker 01:
There was an extra reference made to agency expertise, I do think another important point here is the record differential between the inclined sleeper record and the non inclined there there was an actual expert that was commissioned to do things there was a different type of agency expertise at issue here there really was just trying to put these.

[02:03:05] Speaker 01:
Incidents together in some pattern that they felt could try to justify everything.

[02:03:09] Speaker 01:
And I do just on the point of the standing, which is important to my client, because we actually do want to be able to be a baby to be in bed sleeper.

[02:03:16] Speaker 01:
I think it's I'm not trying to walk myself into an arbitrary out of the arbitrary and capricious argument you were making, Your Honor.

[02:03:21] Speaker 01:
But I think it's interesting.

[02:03:22] Speaker 01:
The government is by reference saying, oh, we can justify excluding the baby boxes because they could be used on a bed.

[02:03:27] Speaker 01:
but then also trying to prevent us from actually having standing to bring the claim with respect to the entire category that's banned.

[02:03:33] Speaker 01:
And I do think we're properly before the court on that.

[02:03:35] Speaker 01:
I would request an opportunity to put in a declaration.

[02:03:37] Speaker 01:
And I do understand that the Juvenile Products Manufacturers Association would want to join to the extent there was some issue with the standing that's come to date at the end here.

[02:03:44] Speaker 03:
It's a little late to have somebody intervene after oral argument in the Court of Appeals.

[02:03:50] Speaker 01:
Understood.

[02:03:50] Speaker 01:
It was, it was, it was not really a standing I mean this was kind of in the back of their brief at the end about this, it's argued as a separability issue, not as a standing issue.

[02:03:59] Speaker 01:
We believe we do have standing with respect to the entire universe and like I said, citing that I'm sorry that the case of, I'm going to not have it totally on hand here but the the the case is

[02:04:08] Speaker 01:
especially about the government citation of North Carolina versus FERC, I think is important because there it's where the agency treats it as a unitary matter to start.

[02:04:16] Speaker 01:
We should be able to challenge it as a unitary matter.

[02:04:18] Speaker 01:
And so I really do think that we're here properly before the court on the whole category.

[02:04:22] Speaker 01:
And so I guess with that, I would just say that- Can I ask one other thing before you wrap up?

[02:04:26] Speaker 03:
And that is, did your client, I know your client submitted comments to the commission objecting to this exercise of its power.

[02:04:34] Speaker 03:
Did your client suggest any

[02:04:37] Speaker 03:
alternative forms of regulation for baby boxes?

[02:04:43] Speaker 01:
I think our client has been actively participating in the ASTM process for all of these things to find the right, yes, so yeah, I think the alternative.

[02:04:51] Speaker 03:
It's a different question, not whether you submitted things to ASTM.

[02:04:53] Speaker 03:
Did you submit in your comments to the commission?

[02:04:56] Speaker 03:
Do you say, hey, all you need for our baby box, for baby boxes,

[02:05:01] Speaker 03:
to be safe as a warning label, or I don't, I am, I am the opposite of any of these engineers here so I don't know if there's some sort of thing that could be recommended.

[02:05:11] Speaker 01:
Yeah, that's 679 to 680.

[02:05:12] Speaker 01:
I think our main point was that there was just zero evidence of any safety issue to the point of where any, any actual additional

[02:05:19] Speaker 01:
Yeah and that's just actually the case and I think that you know more broadly the record reflects the in-bed sleeper people all trying to you know work together to figure out are there ways we can actually through warnings or other circumstances mitigate this and I think it was coming out of a true felt need that and the commission itself recognizes it in the rule but doesn't grapple with it.

[02:05:35] Speaker 01:
37% at a minimum people regularly beds share and to the extent that we're taking away products from people especially people that may not have the means to have more luxurious products

[02:05:44] Speaker 01:
to make those situations safer.

[02:05:45] Speaker 01:
That is a command of infant safety.

[02:05:47] Speaker 01:
And I hear, unfortunately, the commission lost sight of its actual mandate, which was to help advance infant safety in sort of a rush to take off the market products that it feared might have a consequence that if they have been able to study it further, they may have been able to mitigate the risk and actually make infants safer.

[02:06:01] Speaker 01:
And that's why we respectfully submit that the rule should be vacated with respect to previously unregulated flat-sleeve products.

[02:06:08] Speaker 03:
Any other questions?

[02:06:11] Speaker 03:
Okay, thank you.

[02:06:12] Speaker 03:
Thank you very much to council for the lengthy arguments we took you through.

[02:06:17] Speaker 03:
It's very helpful to me at least and the case is submitted.