[00:00:00] Speaker 01: Case number 22-1057, Keesio, Gert, and L.C. [00:00:05] Speaker 01: doing these tests to develop petitioner versus consumer product safety commission. [00:00:10] Speaker 01: Mr. Godding for the petitioner, Ms. [00:00:12] Speaker 01: Mundell for the respondent. [00:00:15] Speaker 07: Good morning, counsel. [00:00:20] Speaker 05: Good morning, Your Honor. [00:00:31] Speaker 03: As indicated by the administrative record, CPSC never addressed substantial evidence that subjecting aftermarket mattresses to the same fitness restrictions as OEM mattresses, including the one-inch limitation on phone, that caregivers would find the aftermarket mattresses be just as uncomfortable as the OEM versions and would revert back to using more risky, soft bedding to increase comfort levels. [00:00:59] Speaker 07: Could we start talking about the... Sure. [00:01:02] Speaker 07: interesting 28-J letters we got. [00:01:04] Speaker 04: Yes. [00:01:05] Speaker 07: Right before argument. [00:01:07] Speaker 07: In particular, at least I have the question, if the commission were to adopt the ASTM standard, which as I understand it is for original manufacturers to extend it to aftermarket manufacturers as well, with that [00:01:31] Speaker 07: the end of your objection at the end of this case or do you argue for more than two inches or are there other aspects? [00:01:39] Speaker 03: Yes, the amended version that would allow for a two inch max thickness and there's no limitation on the phone. [00:01:48] Speaker 03: Now as a practical matter you can never get to quite two inches of foam but it would allow manufacturers like Micron [00:02:03] Speaker 03: probably to it for a client. [00:02:07] Speaker 07: Okay. [00:02:07] Speaker 07: And if they decline to adopt it, as I understand from the statute, then they can just retain their existing rule. [00:02:17] Speaker 07: Would this case then go forward or in the process of them explaining why they're not adopting and retaining the existing rule, they actually do more than retain and actually change or create a enhanced record [00:02:33] Speaker 07: I'm just trying to figure out if it's a whole new administrative case or if just supplemental briefing would be all that would be required if they don't accept. [00:02:41] Speaker 03: It's my understanding on how CPSC has done this in the past. [00:02:45] Speaker 03: The staff will issue a briefing package to the commission. [00:02:49] Speaker 03: So it'll look like the briefing package that we have in this case. [00:02:54] Speaker 03: And then in short order, CPSC then makes a decision. [00:02:58] Speaker 03: The decision that the commission makes may be very short. [00:03:06] Speaker 03: which would become part of the administrative record. [00:03:09] Speaker 03: Our position would be that if the original rule is retained, that the administrative record that we're dealing with here today could still be relevant, but the administrative record may be amended or enhanced or whatever you want to say based on at least that briefing package. [00:03:27] Speaker 02: Right. [00:03:27] Speaker 02: Based on what, I'm sorry? [00:03:28] Speaker 03: The briefing package. [00:03:29] Speaker 03: Okay. [00:03:31] Speaker 07: Yeah. [00:03:31] Speaker 07: But does that, does that, [00:03:36] Speaker 07: thinking in administrative law context, does that addition of a whole new record or a partial record then create a whole new case or would this case continue? [00:03:54] Speaker 03: I would say this case continues because if let's say they reject [00:04:08] Speaker 03: We still need to have an opportunity to challenge the rule that's still on the books. [00:04:14] Speaker 03: So the original case would still be live, I think. [00:04:19] Speaker 02: OK. [00:04:20] Speaker 02: But the record will have been supplemented. [00:04:22] Speaker 02: Yeah, that's the way you could look at it. [00:04:25] Speaker 02: So there may require a new briefing if you were to go for it? [00:04:29] Speaker 02: Yes. [00:04:30] Speaker 02: So yes, there would need to be something submitted to the court. [00:04:36] Speaker 07: Normally, when there's an existing standard that's been adopted, because they had already adopted the ASTM standard for original manufacturers mattresses, then they do nothing. [00:04:49] Speaker 07: Obviously, if they agree with it, it becomes part of that rule automatically. [00:04:52] Speaker 07: And if they do nothing, it becomes part of that original manufacturer rule automatically. [00:04:58] Speaker 07: Does the same thing apply? [00:04:59] Speaker 07: Because the rule before us is an aftermarket. [00:05:02] Speaker 07: manufacturers that I get incorporated one, but I'm trying to figure out how much hopscotching happens under the statute. [00:05:10] Speaker 07: Is there anything automatic? [00:05:12] Speaker 07: Say they don't act, they do nothing for. [00:05:14] Speaker 03: Yeah, I understand your question and tell me if I had, if I didn't. [00:05:18] Speaker 03: So 16 CFR 1221.2 incorporates by reference that ASTM standard that was just amended. [00:05:29] Speaker 03: And F2933 dash [00:05:33] Speaker 03: the rule that we're challenging incorporates by reference F406. [00:05:39] Speaker 03: So it's a little confusing, but they get there. [00:05:42] Speaker 03: So even though F406, which was just amended by STM, technically it was intended to apply to only original OEM mattresses, it ultimately, because of the way everything's set up, it will apply that. [00:05:58] Speaker 07: Well, is that true? [00:05:59] Speaker 07: Because the rule here, [00:06:00] Speaker 07: repeatedly states, obviously before this happened, but repeatedly states that changes to, I've got F406 if I have that right, are not, are outside the scope of the aftermarket. [00:06:13] Speaker 07: And so it seems like they've already said, changes there, this is its own world. [00:06:19] Speaker 03: Yeah, you were to ask me that question, I was prepared to answer it. [00:06:23] Speaker 03: I actually disagree with what the preamble says. [00:06:26] Speaker 03: They're all part of the same ball of wax. [00:06:29] Speaker 07: What I'm trying to figure out is, I understand your record argument, the legal argument under the statute which prescribes consequences when an adopted standard is modified. [00:06:47] Speaker 07: How would that happen when the rule is incorporating another standard? [00:06:52] Speaker 07: for a different context. [00:06:54] Speaker 07: And in doing so, it says changes to that original standard will not affect this rule. [00:07:01] Speaker 03: Yeah, again, I disagree with that thought, but the way this works is that F406 has been on the books, has been on the books forever since 2013, I think, because of 16 CFR 12.2. [00:07:17] Speaker 03: It just governs mattresses. [00:07:22] Speaker 03: It doesn't talk about OEMs. [00:07:24] Speaker 03: It doesn't talk about aftermarket. [00:07:25] Speaker 03: It just governs mattresses. [00:07:28] Speaker 03: And so what CKSC and ASTM have done is they set up a new voluntary standard, F2933, which refers to F406. [00:07:40] Speaker 03: And F2933 applies specifically to aftermarket mattresses. [00:07:47] Speaker 03: So they do get there. [00:07:49] Speaker 03: So it does work. [00:07:50] Speaker 07: Does that answer your question? [00:07:53] Speaker 07: It could be simpler, but it doesn't seem to be in this case. [00:07:57] Speaker 03: Yeah, there's a footnote in our brief that kind of walks you through that. [00:08:02] Speaker 06: Well, let me ask under the existing rationale for the 1.5 and then the fact that we're now looking at a two inch thick mattress, doesn't the rationale also have to be revised to match up to the two inches when you go through this process? [00:08:19] Speaker 03: Yes in the amended 406 there doesn't seem to be a There is no rationale doesn't say this is why we're doing it But as a practical matter that is why it's our understanding ASTM was looking at this because they are worried about that perverse incentive And so now we have and this is really important. [00:08:41] Speaker 03: We have no limit [00:08:49] Speaker 03: And that applies to both the OEMs and the aftermarket. [00:08:54] Speaker 03: But with the new rule, a manufacturer can get kind of close to two inches of foam, depending on if there's a backboard and other things, but certainly a lot thicker and more comfortable than what we're dealing with here. [00:09:08] Speaker 06: So what is your suggestion about the posture of the case at this point in time now that we do have the [00:09:14] Speaker 03: we select right in the case. [00:09:16] Speaker 03: So we agree with a council that, you know, it's only three months, they have 90 days to do this. [00:09:21] Speaker 03: And it's my understanding they usually get that done. [00:09:25] Speaker 03: So we're willing to hold the case in the base to see what happens. [00:09:32] Speaker 03: That doesn't moot our case because our argument was they should have waited for ASTM and not promulgated a rule. [00:09:40] Speaker 03: And it's our position [00:09:42] Speaker 03: rule that's on the books now is actually more dangerous to infants than the status quo before the rule was adopted. [00:09:51] Speaker 06: But is there any scenario that waiting the 90 days and holding this in abeyance and going with the two inch, that it moves the case at all? [00:10:00] Speaker 06: Like, do you have any sense of agreement that everything works out, that the case is over, or do you still want us to rule on this? [00:10:06] Speaker 03: Yeah, what's happened is [00:10:08] Speaker 03: We are willing to hold this in abeyance to see what CPSC does. [00:10:14] Speaker 03: All I was making the point, maybe I should have stopped, is just that what has happened so far doesn't change this case. [00:10:20] Speaker 03: You could move forward with the case. [00:10:23] Speaker 03: And we would ask that you vacate the room, the reasons we've stated in our briefs. [00:10:28] Speaker 03: Because there's such a short period between now and when CPSC makes a decision, we're only cooperating in abeyance. [00:10:36] Speaker 07: But to follow up on Judge Child's question, if they adopt, I just want to make certain on this, if CPSC adopts the rule and in doing so makes clear that it also applies to aftermarket mattresses, then your case would be mooted. [00:10:57] Speaker 03: But yes, probably. [00:11:01] Speaker 07: I just had one more fashion question because you just referenced it. [00:11:06] Speaker 07: Because I know when you had the one and a half inch mattresses, there's the one inch limit on the foam. [00:11:14] Speaker 07: And there was discussion in the record about, and I'm not going to have the right word, did you call it backboard or underboard or supporting board that's part of the mattresses? [00:11:22] Speaker 07: Is that just for original manufacturers or is that also for replacement mattresses? [00:11:28] Speaker 03: So what the rule has written now? [00:11:32] Speaker 03: original, the OEM has a backboard, your mattress, your aftermarket mattress that is replacing that one also has to have basically the same backboard. [00:11:44] Speaker 03: And that's, that's that half inch between the one inch foam. [00:11:47] Speaker 07: You said basically the same. [00:11:50] Speaker 03: It can be the same or larger, the backboard. [00:11:52] Speaker 07: It can't be less. [00:11:54] Speaker 07: It can't be smaller. [00:11:55] Speaker 03: It cannot be smaller. [00:11:57] Speaker 07: And that takes a half inch. [00:11:59] Speaker 03: Well, that's where you use that extra half inch. [00:12:05] Speaker 07: I'm trying to understand because you said now there's not a limit on foam. [00:12:10] Speaker 07: The max now on foam would be one and a half because you need another half inch for the back. [00:12:18] Speaker 03: It's going to work a little differently between the one we have now and the new standard. [00:12:24] Speaker 03: So as a standard exists now, [00:12:27] Speaker 03: you can have in theory up to one inch of foam and gradually camp it up to one inch of foam, the OEM can. [00:12:35] Speaker 03: And then they have another half inch because they're the 1.5 mats. [00:12:40] Speaker 03: And that is basically the, that could be the board. [00:12:44] Speaker 07: So now- That's part of the mattress itself. [00:12:46] Speaker 03: It's part of the mattress itself. [00:12:48] Speaker 03: And so the rule is, [00:12:51] Speaker 03: If I'm making an aftermarket mattress, and my mattress is intended to replace an OEM that has a floorboard, my aftermarket mattress has to have a floorboard that is the same size or larger. [00:13:04] Speaker 07: Got it. [00:13:04] Speaker 03: Okay. [00:13:04] Speaker 03: Go. [00:13:07] Speaker 07: If there are no further questions, the government now. [00:13:11] Speaker 03: Turn it over. [00:13:25] Speaker 05: Good morning, Your Honors. [00:13:26] Speaker 00: May it please the Court, Amanda Mundell, on behalf of the Commission. [00:13:29] Speaker 00: I'm happy to address the 28-J letter if the Court has questions on that. [00:13:34] Speaker 00: We agree with counsel, at least in the posture that the case is in right now, that the clock, once the Commission receives formal notice from ASTM on that revised standard, is going to start to run for the Commission to review whether to adopt the standard that includes this two-inch increase or not. [00:13:50] Speaker 07: And that 90 days is a hard deadline. [00:13:53] Speaker 07: There's no opportunity for extensions whatsoever. [00:13:56] Speaker 00: That's my understanding, Your Honor. [00:13:57] Speaker 00: They complete that review in 90 days and either let the ASTM know or if the 90 days lapses without them getting back to ASTM, then the rule, the standard would just be incorporated into the code after 180 days. [00:14:09] Speaker 07: And then, so it would be incorporated into the rule for original manufacturers. [00:14:17] Speaker 07: That's right. [00:14:18] Speaker 07: And would it as a matter of law be incorporated into this rule, which incorporates what says you've got to meet the same standard as original manufacturers, but at the same time says changes to that original manufacturer rule are not relevant to what we're doing here. [00:14:36] Speaker 00: Yeah, so I think there's two different questions of scope there. [00:14:38] Speaker 00: We agree under this statute that as this operates, the change to F406, because it is incorporated by reference into the standard [00:14:47] Speaker 00: at issue for aftermarket mattresses in this case would then be incorporated into the code. [00:14:52] Speaker 00: The comments in the preamble about what was going on with the ASTM working group on 406 and that being outside the scope of this rulemaking was just to note that the calls to put a pause on this rulemaking for aftermarket mattresses simply because there's a task force for OAM mattresses working to figure out whether to change those requirements are outside the scope in the sense that [00:15:14] Speaker 00: You know, we have this whole pool of unregulated aftermarket mattresses, and so figuring out how to regulate those doesn't necessarily require the agency to wait for the F406 OEM mattress group to finish their work. [00:15:29] Speaker 00: But we agree, as a matter of law under the statute, changes to this revised standard, if they're accepted by the commission or if they become part of the code just by operation of law, that will impact the standard at issue in this case. [00:15:42] Speaker 06: Are you prepared to defend your [00:15:44] Speaker 06: Rule if the new standard is not adopted. [00:15:48] Speaker 00: I don't want to prejudge the additional work that the commission is going to do, but certainly at least based on the record that the commission had at the time of this rulemaking, we do believe that this rule is reasonable. [00:15:58] Speaker 00: It's not arbitrary. [00:15:59] Speaker 00: I could purchase because it incorporated a long standing standard on the thickness of mattresses that have been demonstrably safe. [00:16:07] Speaker 00: Now we recognize that there's some amount of uncertainty out there to determine what incremental increases in mattress thickness may exacerbate a risk of gap entrapment on the one hand or play into the use of soft bedding on the other. [00:16:20] Speaker 00: But what we do know is that this 1.5 inch limit [00:16:24] Speaker 00: is safe. [00:16:24] Speaker 00: So when it comes time for the Commission to make cautious decisions about children and their safety, adopting a standard that we know is safe now is eminently reasonable. [00:16:35] Speaker 00: And there's really no supporting the record for Kisio's suggestion that this standard is suddenly going to increase the use of soft bedding or increase suffocation related injuries. [00:16:45] Speaker 00: Again, there's some unknowns there, but we do know that parents and caregivers use soft bedding. [00:16:50] Speaker 00: in a variety of environments. [00:16:52] Speaker 00: So that's a long problem with more complicated solutions. [00:16:56] Speaker 00: And this issue with respect to the thickness of aftermarket mattresses is still reasonably tied to that 1.5 inch safe limit. [00:17:05] Speaker 07: So normally if an agency makes a decision and then there's a development in the record that they then create new record materials on, [00:17:19] Speaker 07: That would be the end of this case, the existing case on the old record and would be mooted out and people would just have to bring a new challenge altogether to the new agency decision, even if that's adding old record and new record together. [00:17:38] Speaker 07: Does the Justice Department have a position on whether if the CPSC decides to retain this existing rule that's challenged here, [00:17:49] Speaker 07: but would only do so after having an added either a new record or a supplemented record based on its analysis of this new ASTM standard. [00:18:02] Speaker 07: Whether that means regardless, this case is moot, it's going to be moot because the agency now has a new matter under consideration and it will either moot the case because it will do what they want or it will moot this case because it will be a whole new case with a new record. [00:18:18] Speaker 07: Or do we keep, I'm sorry, it's long to say this, or is it just because it's just being retained, is this just sort of a supplemental thing that we would just keep the case here and have supplemental briefing, even though it's actually a new agency record? [00:18:33] Speaker 00: Yeah, you know, Your Honor, I think it's an unusual situation and we don't have a position whether a court ought to dismiss this case as moved and then take it up, I assume, if it's not in the petitioner's favor. [00:18:46] Speaker 00: upon a new challenge on the record or whether this would just get retained by the panel with supplemental briefing. [00:18:51] Speaker 00: I think the fact that if the agency were to retain the original standard, as a practical matter, it's almost as if you would just be reviewing the record with some supplemental record material and supplemental briefing, but we don't have a position on whether the court should do one or the other. [00:19:08] Speaker 07: Well, it almost has some jurisdictional consequences because if it's [00:19:12] Speaker 07: Upon the advent of this new ASTM standard, which no one disputes, whatever decision CPSC makes is going to apply, actually, to this very same rule and these aftermarket ones. [00:19:23] Speaker 07: So we'll either make them happy and be moved, or it'll be a whole new decision, a whole new record that needs to be challenged in its own right. [00:19:34] Speaker 07: would make this current appeal, the current petition review moot as well. [00:19:38] Speaker 00: Yeah, you're right. [00:19:39] Speaker 00: That may well be the case. [00:19:40] Speaker 00: And I don't know if there's a possibility for the petitioner here to amend the petition for review to add this additional decision. [00:19:49] Speaker 00: But I think either way, certainly the case that if the commission were to just adopt the standard, we agree with counsel that probably moves the case. [00:19:56] Speaker 00: And then if they don't adopt the standard, if the court dismisses it, we certainly wouldn't oppose the court dismissing the case and then having this new [00:20:04] Speaker 00: you know, petition for review brought the agency's final decision, which, you know, uses that new record plus the existing administrative record that we have here, which we agree is certainly relevant. [00:20:14] Speaker 07: Well, would they, I mean, normally what happens when agencies supplement decisions is you have to file a second petition for review from that second agency. [00:20:23] Speaker 07: decision. [00:20:23] Speaker 07: We get this at least in FERC cases all the time. [00:20:26] Speaker 07: Is it your position or the government's position that they will have to file a new petition for review if they want to challenge if there's an adverse decision in their view from the CPSC? [00:20:38] Speaker 07: Do they have to file a new petition for review or can this existing one encompass it? [00:20:43] Speaker 00: Your Honor, we don't have a position on that. [00:20:45] Speaker 00: I think just the tricky thing about this is that if the commission just decides to retain the existing standard, [00:20:50] Speaker 00: It's true that that's final agency action, but it's really no different than enacting. [00:20:55] Speaker 00: It's a new record. [00:20:56] Speaker 00: It's got a different record. [00:20:57] Speaker 00: That's true. [00:20:58] Speaker 00: And we do think that supplementing the administrative record with whatever staff briefing package exists would be appropriate there. [00:21:05] Speaker 00: But we don't have a position on whether the court should require a new petition review. [00:21:08] Speaker 00: We certainly wouldn't oppose that. [00:21:10] Speaker 00: But I do think it's tricky just given the retaining the same standard. [00:21:15] Speaker 02: Retaining is a different review. [00:21:19] Speaker 02: The commission does nothing. [00:21:21] Speaker 02: I gather it's common ground that the change in the standard will apply to aftermarket mattresses through process. [00:21:29] Speaker 02: If the commission rejects that change, will there be further notice and comment before they, well, if they want to reject it, will there be further notice and comment before they take that action? [00:21:45] Speaker 02: Will they propose to do so? [00:21:47] Speaker 02: Receive comment. [00:21:48] Speaker 00: I think the agency could do that. [00:21:51] Speaker 00: Usually how this works, because the 90 day period is so short. [00:21:55] Speaker 00: I think the agency typically notifies the public of the commission's vote. [00:22:00] Speaker 00: But I don't know that there's really a mechanism in place that every time something like this happens, there's a limited period of comment, you know, maybe something like 14 days, but the 90 day period is so short that I wouldn't expect there to be [00:22:13] Speaker 00: the typical type of notice and comment period seen in original rulemaking. [00:22:17] Speaker 02: Well, the petitioner has raised certain objections to the existing decision based on the claiming a lack of support in the record. [00:22:33] Speaker 02: And some of those, or at least one might be readily addressed if the commission were to reopen the record with respect to [00:22:41] Speaker 02: addressing that and perhaps allowing further comment. [00:22:47] Speaker 02: There's also a question as to whether one of the petitioner's objections has been orphaned by reason of being raised belatedly. [00:22:56] Speaker 02: And that could then be cured and raised initially if there were new round comments. [00:23:01] Speaker 02: So I'm wondering whether the case wouldn't be a lot cleaner if this version of it went away. [00:23:08] Speaker 02: and a new version based on a new record were available for the petitioner to challenge if they lost it. [00:23:17] Speaker 00: Well, I think that's right, Your Honor. [00:23:18] Speaker 00: I think the development of the staff briefing package assessing whether or not to retain an existing standard or adopt this to which limitation is going to address some of the concerns that petitioners raise here. [00:23:30] Speaker 00: We don't think based on the existing record, those concerns amount to arbitrary and capricious agency action. [00:23:35] Speaker 02: Well, if it just becomes the standard by, well, okay, I'm sorry, you're saying if it doesn't adopt it, then they will give us a decision, make a reasoned decision. [00:23:46] Speaker 00: I'm sorry. [00:23:47] Speaker 02: The commission would then issue another hopefully reasoned decision as to why it is not adopting the standard. [00:23:55] Speaker 00: That's right. [00:23:55] Speaker 02: And that would not be limited to the reasons given for the current [00:24:00] Speaker 00: That's correct. [00:24:01] Speaker 00: And of course, as you may know, you know, some of the data in the existing administrative record runs to April 2021. [00:24:07] Speaker 00: So with this now revised standard coming out here at the end of 2022, there's, you know, an additional year and a half of incident data potentially available to Commission, as well as other, you know, modeling or other tests that they can do to assess whether this standard improves safety or not. [00:24:24] Speaker 02: The whole dispute would be ill served if it comes back on the same record. [00:24:29] Speaker 00: We agree, Your Honor. [00:24:30] Speaker 00: So if the Commission, let's say the Commission, rejects the revised standard and issues a staff briefing package explaining why, and petitioners here continue to wish to challenge that rejection and the maintenance of the existing standard, then we do agree that we would at least at a minimum want to supplement the administrative record with that new staff briefing package. [00:24:50] Speaker 02: Is there some limitation on what can go into that new record? [00:24:54] Speaker 02: The staff puts together a package, presents it to the commissioners for a vote. [00:24:59] Speaker 02: And if the commissioners accept that package, is that constrained from adding anything additional to this? [00:25:08] Speaker 02: If the package doesn't address the issues that are raised in this case, then we're back where we started. [00:25:15] Speaker 00: Well, I think whatever the package will be tailored to the decision to keep or not keep the existing standard, which is a practical matter, would probably address most of the issues in this case. [00:25:25] Speaker 00: But we think that if the court were to review the agency's decision to retain the existing standard, that decision would necessarily bring in the data and other record material the agency relied on to develop that rule to begin with, in addition to whatever new facts or data or information the agency relied on. [00:25:43] Speaker 00: at the time it issues that staff briefing package. [00:25:46] Speaker 00: Why is this change happening now? [00:25:49] Speaker 00: That's a good question, Your Honor. [00:25:51] Speaker 00: It's a little inconvenient to happen so close to oral argument. [00:25:54] Speaker 00: But my understanding is that the ASTM working group, along with the Commission, has long been trying to assess whether there's a need for safety or whether the expansion of the thickness of mattresses is appropriate. [00:26:08] Speaker 00: These things take time. [00:26:09] Speaker 00: And the fact that it's happened now is more just a dent of that process playing out over time than I think anything else. [00:26:16] Speaker 00: But, you know, we regret that this happened, you know, circumstantially right before argument. [00:26:21] Speaker 00: I know that that made it a little bit more challenging. [00:26:24] Speaker 07: Here's just to follow up on Judge Ginsburg's question. [00:26:28] Speaker 07: There's an argument in your brief that going from one and a half to two inches before this ATSDM came out would not be [00:26:39] Speaker 07: substantially similar or more stringent, more protective than the existing standard. [00:26:45] Speaker 07: And so it's not something that they could, in our prior world, have even adopted and considered. [00:26:55] Speaker 07: There's some question whether that was raised by the agency itself. [00:27:00] Speaker 07: Is that the type of thing that would be on the plate for this next round, or is it, as you said, just [00:27:08] Speaker 07: a yay or nay on whether we want this new standard. [00:27:11] Speaker 00: Well, I think because, you know, assuming this court doesn't vacate the rule before the agency makes its 90-day determination, because that's on the books, it's under that framework of whether the increase to two inches improves safety. [00:27:23] Speaker 00: So I think it is a slightly different inquiry, and so there's less of a question about whether that's making it more stringent and just a question of whether it improves safety. [00:27:32] Speaker 07: And then I just had one more question. [00:27:34] Speaker 07: There's three doors here, and one is that the agency does nothing. [00:27:39] Speaker 07: If the agency does nothing, does the briefing package from staff still become a part of the record, or does it only become a part of record if the agency makes an affirmative decision one way or the other? [00:27:50] Speaker 00: You know, Your Honor, I'm actually not aware if a staff briefing package is prepared if the agency does nothing. [00:27:57] Speaker 00: Perhaps that's the case. [00:27:59] Speaker 00: But I think as a practical matter, [00:28:01] Speaker 00: The supporting data and materials become a part of the record when there's an agency decision, final agency action. [00:28:08] Speaker 00: I think if the agency just sits by and does nothing, there's really not the same affirmative decision where the agency votes to accept or votes to reject the rule. [00:28:21] Speaker 05: Thank you very much. [00:28:26] Speaker 02: We'd like to hear from Mr. [00:28:28] Speaker 07: Yes, we'll give you, Mr. Gunning, we'll give you, you said three minutes for revival. [00:28:33] Speaker 03: All right, just to go back. [00:28:35] Speaker 03: So it's my understanding there's no notice in common if they just allow the existing rule of stand. [00:28:43] Speaker 03: And so we wouldn't have a chance to go through that formal process. [00:28:48] Speaker 03: My understanding, again, my understanding is that all the commission does is issues like a one or two page, you know, yes, [00:29:01] Speaker 03: There's no pream. [00:29:03] Speaker 03: There's nothing for us to look at and say, here was the commission's, not the staff's, the commission's rationale. [00:29:12] Speaker 03: And so that, in that sense, it is not like any new case. [00:29:17] Speaker 03: So that's the first point. [00:29:18] Speaker 03: The second point was, go ahead. [00:29:21] Speaker 03: Well, is that what happened so far? [00:29:29] Speaker 03: voluntary standard, and then they went through this process. [00:29:34] Speaker 03: And so the second point I want to reiterate is that, and this is in the record right now, the reason why the commission doesn't like this new rule has nothing to do with the two-inch of- Wait, wait, wait. [00:29:47] Speaker 07: How do we know the commission doesn't like this new ASTM standard? [00:29:50] Speaker 03: Because they said we are not going to wait on ASTM. [00:29:53] Speaker 07: Well, that's a very different point than saying we don't like something- Okay, I understand. [00:29:57] Speaker 03: I think that's- I understand. [00:30:00] Speaker 03: they have indicated that the, that has now been adopted by ASTM, that they don't like the measurement, the way the measurement protocol for measuring the gap between the mattress. [00:30:16] Speaker 03: This is the so-called methodological dispute? [00:30:18] Speaker 03: Yeah, it's the protocol. [00:30:20] Speaker 03: How do you do that? [00:30:21] Speaker 03: That isn't our case. [00:30:25] Speaker 03: So if this is truly an up or down vote, [00:30:29] Speaker 03: the commission and they reject this new rule or the new standard, it may be for reasons completely independent of why we challenge this rule. [00:30:43] Speaker 03: And so then that means the only way we can continue challenging the rules on the administrative record that we have now. [00:30:52] Speaker 03: If, if. [00:30:53] Speaker 02: Well, what about, what about the staff briefing [00:30:56] Speaker 03: Well, let's say the SAP briefing package doesn't address, it just accepts the two engines. [00:31:02] Speaker 03: It doesn't have a problem with it and recommends to the commission that you should reject this new rule because the measurement protocol isn't working for us. [00:31:14] Speaker 03: That's not our case. [00:31:16] Speaker 03: So my client still needs to have an opportunity to come back to this court and argue, assume on the administrative record that exists now, [00:31:27] Speaker 03: So it's not any, you're asking great questions, but it could be a situation where my client has no option for judicial review. [00:31:37] Speaker 07: And you said there might not be notice and comment in the ordinary sense, but I assume your client and others in the public who want are free to send in letters. [00:31:48] Speaker 03: We could, and then the commission would have done. [00:31:51] Speaker 07: They accept public communication during this time period. [00:31:54] Speaker 03: And then they would have to decide whether or not it goes, [00:31:58] Speaker 03: the administrative record. [00:31:59] Speaker 02: Yes. [00:31:59] Speaker 02: Well, I mean, if you send the communication, it becomes part of, if not the administrative record, part of what you will bring into court. [00:32:11] Speaker 02: Usually it does. [00:32:12] Speaker 02: All right. [00:32:13] Speaker 02: So let me ask, why aren't your interests better served by withdrawing this case, deciding that it's moved so that there's no doubt that there's later final agency action that you can challenge. [00:32:26] Speaker 02: so that an issue that you've raised in what may be a belated and forfeited fashion here, namely the substantially same issue, can be raised before the commission clearly. [00:32:43] Speaker 03: We could, but I guess I don't know what the commission's going to do. [00:32:47] Speaker 03: And based on the example I just gave, I would be reluctant to do that. [00:32:53] Speaker 03: I guess we could resubmit everything. [00:32:55] Speaker 03: But again, it's not a typical rulemaking proceeding. [00:33:02] Speaker 03: There's no preamble. [00:33:03] Speaker 03: There's no notice in common. [00:33:05] Speaker 03: But there's a final agency action. [00:33:07] Speaker 03: It would be final agency action. [00:33:08] Speaker 03: And a new record. [00:33:09] Speaker 03: That's true. [00:33:11] Speaker 03: I guess at a minimum, I would ask, if you're going to hold this in advance, is that we'd be able to brief that issue if they do reject [00:33:23] Speaker 03: the standard. [00:33:24] Speaker 03: Which issue? [00:33:25] Speaker 03: The issue we're discussing, whether or not this administrative record continues or if it's a new case. [00:33:31] Speaker 07: Well, I guess another way to think about it is, if this is all hypothesizing, if they reject this new standard and have not just methodological but also safety concerns, one of which was voiced in this case, and have a staff briefing package, [00:33:54] Speaker 07: You want to brief a challenge with the CPSC decision and a little supplemental brief, or would you want to have a chance to do a full-fledged briefing and reply brief to tackle everything combined now that you would find that you disagree with in that decision? [00:34:12] Speaker 03: I guess the way I look at it is if the CPSC were to address the two-inch and address our issue, which is what we want them to do, and that's the point of the lawsuit, [00:34:26] Speaker 03: It may, as a practical matter, move the current administrative order. [00:34:30] Speaker 07: And I'm saying if they rule again, they don't adopt the standard. [00:34:34] Speaker 03: Yeah, they don't adopt the standard. [00:34:38] Speaker 03: But the CPSC has addressed our issues. [00:34:44] Speaker 03: Let's say they don't adopt the standard. [00:34:45] Speaker 03: They say, we don't want the two inch, the two inch max. [00:34:49] Speaker 03: And they address that, which is the point of our lawsuit. [00:34:51] Speaker 03: We want them to address all of this evidence that they didn't consider. [00:34:57] Speaker 03: you know, then that kind of moots the current administrative record, but I don't think it means this administrative record is now gone. [00:35:07] Speaker 07: So if they say some more things and they get kicked off, if they just say some more things, give a more elaborate explanation that responds line by line to your brief and stick with one and a half inches, your client's done and not going to challenge that next decision? [00:35:19] Speaker 03: No, we could, but it would probably be on that new briefing back. [00:35:23] Speaker 07: That's what I'm asking. [00:35:24] Speaker 07: And then would you want to do that [00:35:26] Speaker 07: and supplemental briefing, which tends to be very short and doesn't include reply briefs. [00:35:31] Speaker 07: So at that point, that's what I'm saying, is at that point, you're going to have both this original record and maybe some of it will have gone away or not. [00:35:37] Speaker 07: Maybe some will go away and some new ones will come along. [00:35:41] Speaker 07: If we treat this as this case just continuing, it gets a little supplemental brief. [00:35:46] Speaker 07: And at that point, you're going to have two records to grapple with. [00:35:49] Speaker 07: And who knows, maybe they'll say all kinds of new stuff that you disagree with as well. [00:35:53] Speaker 07: And it's a lot to not do that through normal briefing on a new petition. [00:35:57] Speaker 03: It's a good point. [00:35:58] Speaker 03: I did not think about that. [00:35:59] Speaker 03: But it's just, it is so difficult for me to sit here because I don't know how this is going to play out. [00:36:08] Speaker 03: I just don't. [00:36:09] Speaker 03: And I can't give up on the current administrative record. [00:36:13] Speaker 03: I can't do that right now. [00:36:15] Speaker 03: And so I guess I would probably file a motion with the court to ask for extra pages and to bring to this issue, which is an interesting issue and it's a good question. [00:36:26] Speaker 07: Thank you very much for your time.