 Good morning, welcome to this public meeting of the consumer product safety commission. We're meeting today to consider draft supplemental notice of proposed rulemaking to establish safety standard for table saws. Issue table saw safety is one the commission has worked on for over 20 years and the hazards from table saw blades is severe. Lacerations fractures and amputations are far too common place. According to nice estimates table saw accidents resulted in average of over 4000 finger amputations a year. It's a huge number and put that in perspective. He laid those fingers end to end. You'd have a line that would reach up to the top of the Empire State building. Sorry, top of the Eiffel Tower every year that would happen. That does happen. The proposed safety standard we consider today will go a long way to prevent those injuries and the proposed rules expressed expected to address. Over 49,000 trips to the emergency room annually. Staff's competent in these results because of the work that's been done builds on the agencies work over many, many years and changing commissions. This proposal is based on this proposed rulemaking commission issued in 2017. Given the length of time since the NPR is issued additional testing done by CPSC and changes in the marketplace staff updated that package so we can get additional stake input from stakeholders. Any of the injuries caused by table saws nor the safety standard we're going to consider today are new. In my view. Action is long overdue and should this proposed rule go forward. I look forward to robust comments from stakeholders. We're going to start with questions for staff. We have several staff members present to answer questions. Are any. With us are Caroline Paul director division of mechanical and combustion engineering. In the office of hazard reduction and identification and Michael Rogers attorney officer general counsel also in attendance are Jason Levine executive director Austin slick general counsel and Alberto Mills commission secretary. Each commission will have 5 minutes for questions multiple rounds necessary. And the questions after the questions are complete staff will be excused and moved to consideration the package as a reminder while commissioners may voice our personal views on legal issues. It's not appropriate to discuss any legal advice provided to us by the office of general public general counsel in a public session. Legal advice must remain confidential. So at this point in time going to turn to see if there are questions for the staff. I don't have any commissioner Feldman. Thank you. Mr. Chairman. I do have some questions. Mr. Rogers Miss Paul thank you for being here for for all your work on the package. Last week Oira issued new guidance to help agencies design regulations that promote competition in the marketplace. The purpose of this guidance is to ensure that regulatory actions like this and SNPR appropriately consider competition to identify policy options that are pro competition and therefore pro consumer. Can you please discuss how this NPR is consistent with that guidance. Oh sorry I'm not familiar with the guidance. It was from OMB have you not had an opportunity to review it the OMB guidance. Yes well I'll take that question so the CPSC staff did review that that guidance from OMB. We didn't really have any comments on it had been circulated. It was primarily with the director of economic staff since it deals with the economic analysis. Okay would you like to answer the question. Sure. So I would say that what we try to do in this case you know because there's a potential you know like there are there are several questions about potential creation of a monopoly. It's not our perception that that's the case because you know they are like more than three companies now with different technologies that you know are available in the market. There's one company that you know recently introduced a new technology and it was not subject to any patent you know issues so essentially I would say you know that we don't believe that a monopoly will be created out of this. I understand that the IP landscape on the issue that we're talking about today I guess I was asking more about the OMB guidance and a walk through about sort of what we've done here to make sure that that our rulemaking analysis is consistent with with what OMB has has guided us to do. Well you know since the package was put together before the guidance we haven't had the time to you know to make it consistent yet but I think we haven't made it consistent with the OMB guidance. I'll ask this the guidance specifically notes that there are benefits from consulting with competition experts like the Federal Trade Commission and DOJ's antitrust division. Has anyone from our staff consulted with DOJ or FTC in putting together the proposal we're considering today? Yes we did. We consulted with FTC because they have methodologies to deal with this. We basically we got information from them so we can get a qualitative description improvement of our assessment but not a quantitative one. Can we get a readout of those conversations? I believe so. Okay I would like to see that thank you. And you were speaking to this Mr. Tejeda the rulemaking that we have in front of us today it's controversial because it will likely force participants to license standard essential patents from one maybe two firms that own this IP. And by concentrating market power in the way that we're proposing we would essentially bless the ability of this one firm to raise costs on its rivals less than competition and ultimately harm consumers. So Mr. Chairman I'd like to enter in a copy of the OIR as 2023 guidance on competition effects for the record which my staff has already shared with the secretary. Second question staff assumes that this proposed standard would be 90% effective in reducing injuries. The briefing package states that the data provided by SawStop demonstrates over 7000 activations by the SawStop AIM technology that resulted in no severe injuries. My question is how have we verified the data that was provided by the petitioner? It was supplied as a response to comment it's in the public record so we take it a face value. So we haven't independently verified their claims of 7000 activations with no injuries. Not for that particular submission. Okay. The when they say no severe injuries. How do you interpret that what is what is no severe injuries mean. I believe whether or not the cross it would be whether the victim had to go seek medical attention. When we based our effectiveness it was also based on our own testing of technology as well as our search of other sources such as UL on what was considered. Okay. So a minor versus severe injury. Go another round. Yes. Yes, please. Sure. Just some follow-ups there. So Mr. Boniface it sounded like you had more to offer on the question of whether this complies with OMB guidance and I wanted to give you a chance to finish that answer. Sure. Thank you very much. So two elements one is as an independent regulatory agency we're not required to follow the or our guidance. However, as Mr. Hayden noted, we we as a practice do its good regulatory practice and we did consult rather heavily with with the FTC on on the development of the competition. It's a the issue is is central to this rule. And so we've put a lot of analysis in it and we've asked for a lot of comments in this proposed rule going forward. And Ms. Paul, it sounded like you had some more to offer on the data analysis that the review of data that we've gotten in and how we've looked at that and reviewed that. Just that in my view that the submission from softwafts is a supplementary kind of a nice add on but the bulk of our analysis and conclusions were based on our own testing and our work with you well. And our own health sciences reviews extensive review of injury severity caused by lacerations from the tearing motion of a table saw blade. So we reviewed this ourselves in house. That was a cherry on top we didn't need that information from saw stop but it was nice to add. Is that fair. Yes. Okay, thank you. That's that's all I have. Thank you, Mr. Chair. Thank you, Ms. Paul. Can I just ask you does the NPR dictate how manufacturers must meet the performance requirements is the proposal. No, the proposed rule is a performance standard that does not specify our particular technology. So staff does not assume this results in monopoly or any kind of dictation of how the performance should be that is why performance requirements are preferred. The requirement simply limits the depth of cut to a surrogate finger to three and a half millimeters or less. We are aware of 2 firms saw stop embossed that have introduced table saws that could meet this performance and recently became aware of another. And that that occurred since the 2017 NPR but again, the emphasis is that we are not telling anyone how to meet these requirements. However, it is met. It's great. It would limit the depth of cut to something between a a bandage and requiring micro surgery. Thank you for that. And what about test methods? Are we prescribing a specific test method in this proposal along that vein? We do not because there are many different ways to get at this. And I think the recent technologies that come to market show that how if you try to do that, you would limit things we've seen now technology based on reverse polarity of magnets. We've seen technology based on explosions of capsules that similar to an airbag as well as the original technology that started this petition in terms of actually what now seems more cumbersome. Transfer energy from a solid break into a blade and using angular momentum to bring that entire blade below the surface. We've also seen technology in terms of capacitive sensing. It could be optical. It could be thermal. And that's why a performance requirement would truly allow innovation. Thank you for that. And in terms of injuries, can you describe the trend say since 2010, whether you've seen an increase a decrease in injuries, particularly since the introduction of the modular blade guard requirements in the voluntary arena. That is, I have been involved with this project since 2003 really since I started CPSC 26 years ago. And we have not seen in any trend analysis, whether we're looking at straight numbers of injuries, whether we're looking at diagnoses in terms of lacerations, the amputations, it's not even that they're shifting to something else. This stubbornly remains constant around 32,000 a year. And this is significant because since 2010, all table saws sold in the United States have converted to meet the voluntary standards that incorporate a modular blade guard design. So each year, the market is saturated with more and more of these products as the expected life expectancy table saws are replaced. And yet that number has not changed. And with the special study, I sat in with the multiple, you know, 5 or 6 people looking through ideas of every single one of these injuries that we're able to do follow up interviews with in 2017. And they're horrendous. Sorry about that. Do you have a view as to why the modular blade guard hasn't been effective. And I only give my personal view and is that I would say the 1 thing that we saw. In the special study deep dive was that people are not using the blade guard. Whether it's modular traditional. Okay. All right. Thank you so much. I don't have any additional questions at this time. Thank you. Commissioner actually both your questions were my questions. So I know there's a request for another round. I turn back to commissioner felbin. Thank you, Mr. Chairman. I did want to circle back to some of the questions I had on the injury data. What do we know about incidents where the technology should have activated, but didn't. This would speak directly to the reliability of the technology which I think is important for us as a commission to assess. Do we know of incidents where the technology has failed and. If so, are there resulting injuries that that that we know of. In terms of the nice data that information is not available and in terms of the follow up in the special study, we did not come across any that had occurred. When I hear about the sauce stop active in duration injury mitigation is system. It's usually more that it's. Activated when the person did not intend it to. Okay. And because that's an issue. Are we aware of instances where consumers have. Deactivated or bypass the technology. And if so, how are those incidents accounted for in staff's assessment. I'm not aware of any of instance. Okay. You mentioned I think in the response to a question from my colleague commissioner boil that you're aware of 2 firms that have introduced saws with the technology that 1 is saw stop and the other is. Bosh. Does Bosh have any currently enabled saws on the marketplace for purchase today. They do not. Okay. The cost injury model that you guys presented staff developed a monetary estimate that's based in large part on jury awards. Jury awards are designed as we know to make an injured person. Whole in negligence cases, including intangible costs like pain and suffering. While that calculation may be relevant in tort lawsuits. That's not really what we're deciding here in this rule making our jobs to determine whether the products present an unreasonable risk of injury and whether or not there is negligence is is interesting, but not part and parcel to. The determination that we're making pain and suffering. As I understand it's sorry of fairly highly subjective calculation in lawsuits. I'm concerned that our cost benefit analysis relies too heavily on an intangible metric like this and thus might skew the benefits of the proposal. Can you please speak to the why this type of analysis is appropriate here and where we may have relied on that in previous rule makings. Sure. So the, the ICM, you know, when, when it's used for a specific injuries. It's a less specific set of. In just related to the product that's been study and and also it selects a similar type of cases to estimate the intangible benefits. So, you know, normally the estimate is specific to the product itself. Because, you know, it uses and is related to the problem as well as, you know, in your jury awards that also somehow connected to the, to the problem itself. Okay, I'm not sure that I follow. So I may have some, some, some additional questions. Did, did, did staff consider other objective measures to calculate intangible benefits? No. Okay. I want to ask about the commission boil. Did, did touch on this, but with respect to the 2017 special study on table saws, that study found a lower risk of injury on table saws equipped with the modular blade system and those that met the latest voluntary standards as compared to the table saws that that that don't But staff discounts the risk in doing so. I think the commission may be creating some additional legal risk if the rule proceeds of staff proposed. Not giving the 2017 special study is as much weight as it might receive. I think that's a risk, particularly in light of the recent recent loss in the DC circuit. It's my hope that commenters will address this and the other concerns I've raised today. I do again want to thank all of you for answering my questions this morning. Mr. Chairman at this time, I do have enough further questions. Thank you. Mr. Trump just just one last question that on that study that looked at modular blade guards and other modest safety features, it found that there was almost no benefit compared to the baseline and then right. Those didn't make it significantly safer, which is why we're here today. If it's based on the nice trend analysis. Yes, we do not find that they have made a difference. Thank you. The commission. I don't have anything further. Thank you. Hearing no further questions for the staff and excuse them. Thank them for the work on this. Before pointing the matter as proposed by the staff to vote going to entertain a motion from the commissioners to amend the proposal commissioner Feldman. Do you have any amendments? Commissioner Trump. I have none. And commissioner Boyle. No, I don't have any. And I have none as well. So hearing no amendments. I move to approve the draft supplement on those proposed rulemaking to establish a safe safety standard for table saws. Is there a second? Second. We have a second and can move forward to the vote. Commissioner Feldman. How do you vote? I vote no. Mr. Trump. Yes. Commissioner Boyle. Yes. And I vote yes as well. The yeses are three. The noes are one. The draft supplement knows proposed rulemaking on table saws passes. And at this point in time, we have up to 10 minutes per commissioner for any closing remarks. So I'm going to start myself. And first, I want to thank the CPSC staff for the work on this issue. It's already been a very long effort. Even though it's not done yet. And I appreciate their commitment to improving the safety of table saws. As we saw today, we had a number of questions that were raised. And I think. That is appropriate and exact reason why you put something out for a. For comment. So as things were raised up. That is why I felt very comfortable moving forward at this point in time. So those issues can be commented on by stakeholders. And then the commission can assess that. Because I had mentioned earlier the severity and the ubiquity of the injuries associated with table saw blades compels action. I look forward to, you know. The number of amputations less rations and fractures are happening each year. They are tremendous. And the trend lines as we have heard from staff today have not changed in the period that we've been working on this. So I look forward to a robust comment from all stakeholders, including consumer groups, industry representative advocates on the proposed standards feedback will help us move forward on a final rule so we can reduce and perhaps. Eliminate the amputations and other serious injuries caused every day by table saws. Move to commissioner Feldman. Thank you, Mr. Chairman. And I do want to thank staff for being here to answer questions and for all the their work on this rulemaking over the years. Having now watched and read as much as I could in the time that I had, I know that that you've worked hard on on what is a complex matter and. Something that that frankly includes many unknown variables. Unfortunately, a majority of the commission didn't support a briefing on the subject, despite half of us wanting 1. These briefings are something that prior commissions have received, but we bypassed and I do think that that's unfortunate. The products that we're dealing with today are complicated. A briefing would have allowed us more time to study the issue and ask more meaningful questions to staff about the proposal. It's implications and the data on which we're relying. I would note that neither I nor any of my current colleagues sat on this dais during the earlier briefings and typically vote to publish rulemaking notices. The public comments that we receive are an opportunity to solicit a wide range of opinions like the chairman said regarding the soundness of our proposals and this process helps the commission improve draft product and address key issues. This general principle, though, depends on the soundness of the initial staff proposal and unfortunately here, I think the SNPR still has too many unanswered foundational questions and unknown issues to send it out for public comment. For that reason, today I break from a general practice of supporting these notices. And while I have a couple of concerns related to the rulemaking, I want to limit my remarks to three areas. First, I still have many unanswered questions about the intellectual property necessary to comply with the proposed rule. This is one of the key issues in what we're trying to do here. Staff states clearly in the briefing package that the proposed rule would most likely require all suppliers to use patented technology in their table saw. Staff takes some comfort in noting that two of the relevant patents that they've identified are set to expire soon. But the package also notes that as of 2016, SawStop had more than 100 table saw patents and the Dr. Gas had filed 140 patent applications that may still be relevant. We don't know what patents Dr. Gas, TTS, or SawStop have secured in the interim since 2016. But we do know that SawStop is actively pursuing a litigation strategy to extend the length of the relevant patents where it can, including at least one recent appeal to the U.S. Supreme Court. I don't share staff's comfort, therefore. The SNPR states that we don't know the extent to which these patents would impede other manufacturers from producing table saws with AAM technology. We don't even know what patents would be essential to the safety standard. We have no idea what additional IP exists, including filings within the last seven years. We have no idea what whether the current IP holders will license their holdings on fair and reasonable terms. We don't know who owns what patent. I don't agree with the Biden administration on everything. However, the OIRA guidance that was issued last week is helpful. It's recommendation that regulatory agencies carefully consider the competition landscape of the decisions that they're making is a sound one. This morning, I asked whether we had consulted with the DOJ and the FTC we had, and that's helpful. But it's a mistake for the CPSC to depart so radically from the pro-consumer, pro-competition safeguards that OIRA endorsed. And this information, frankly, is critical to our decision making. Approving the proposal without such basic information is premature and misguided. I'm concerned that the commission runs a very real risk of creating monopoly in the table saw market. To that end, I've drafted letters to certain parties who I believe may own or control relevant IP, including Dr. Gas, TTS, and the Felder group, to seek answers to some of these questions. There may be patent holders that we don't know of, and that is reason enough for the commission and our staff to continue doing our homework before taking any next steps. Second issue I want to raise, and it's related to the IP licensing terms, they would have a substantial effect on table saw costs. Between the IP licensing, redesign, and other related costs, staff forecasts that the per unit increases could exceed $1,000 per saw, maybe 20% or 30% higher than even that. I suspect that's why the Chief Counsel for the Advocacy at the U.S. Small Business Administration offered comments suggesting changes to the 2017 NPR, which we didn't adopt in the current SNPR. If we finalize this rule, the cost of table saws will increase. This will directly affect consumers, including small contracting businesses that rely heavily on these products. I'm also concerned that the benefit side of the cost-benefit calculation here is deficient. The commission both discounts the 2017 special study and uses a pain and suffering metric arising from jury tort awards to account for almost 70% of the estimated benefits. I'm concerned about the reliability of the SNPR's cost and benefit calculations. And again, I think that's reason enough to pause what we're doing here today. But third, as I mentioned before, I believe this rulemaking needed a public briefing in more time for commissioners to ask questions and receive staff feedback. The rulemaking's controversial history and the fact that the briefing package runs to 166 pages demonstrates the complexity of the issues. None of the current commissioners were present when the NPR were considered in 2017. While CPSC staff has been working on this issue for more than 20 years, the pending SNPR is new to this commission. In my view, voting it out today without a complete record and answers to foundational questions, the commission's missing an important opportunity to engage in reasoned and thoughtful policymaking. Nevertheless, I encourage all stakeholders to submit comments on the issues that I've raised as well as others that I might have missed. I hope that the IP holders will respond on the record to the questions I'm sending them. I look forward to reading the comments when they come in and I hope that they can fill in the gaps of whatever steps the commission might take next. Thank you, Mr. Chairman, for organizing the hearing today. I have the balance of my time. Commissioner Chomka. Here's some of the gloves that I wear in my workshop. And you can probably guess that I get a decent number of scrapes and cuts. Sometimes that means I have to super glue them shut or worse get a few stitches, but I still have all my fingers. And that's probably because the one tool in my workshop that I stopped using as my table saw. I had too many close calls with it. I had pieces that got jerked in towards the saw blade and move my hand far too close to a spinning saw blade. I had pieces shoot across the room with enough force to put holes in drywall. I couldn't justify continuing to use it. It just wasn't safe enough. So I created workarounds. Sometimes I use my miter saw or my router table or homemade jigs that let me use my circular saw for long cuts. And now that I work at CPSC, I see that my concerns are backed up by the numbers. Table saws send almost 50,000 people a year to the ER. And there are gruesome injuries. These are gruesome injuries like fractures and finger amputations. The Civil War was responsible for 60,000 amputations. Table saws are responsible for 65,000 amputations just since we were petitioned to fix the issue. But today we advanced a rule to save those fingers, to stop those amputations. Technology exists that could prevent saws from cutting more than three and a half millimeters into skin. That turns a trip to the ER into a trip to the medicine cabinet for a Band-Aid. And our rule would require that level of safety. In doing so, the rule would provide perhaps the greatest benefit to society of any rule in this agency's history, at least anything I'm aware of, with up to $2.32 billion in net benefits every year going forward. It's troubling that it took this long. An inventor created this solution a quarter century ago, back in 1999, and he petitioned this agency to require that level of safety on all table saws back in 2003. We've missed an opportunity over 20 years, and in that time table saws have injured one million people. That inventor, by the way, went from idea to working prototype by himself in less than a month. So it probably wouldn't be very difficult for major saw manufacturers to quickly come up with workable solutions to this issue. But they might not even need to, because they might already have those solutions. Other saw makers have created and implemented equivalent solutions. There may be licensing deals and options that would allow most major brands to access technology like that today. Why then aren't they doing it? Why isn't this safety technology ubiquitous? The answer might be as simple as money. It seems that saw sellers appear to be scared that if they start selling saws that are safer, they might open themselves up to product liability lawsuits when injuries occur in greater numbers on their other saws. So we're in danger to protect their bank accounts, and I don't appreciate that. And just a reminder, this proposal comes with this historic $2.32 billion annual net benefit, even with the assumption that companies are going to struggle with getting patent license or need to invent new technology from scratch. But if any of the companies have rights to existing technology that works now, the net benefits will be even higher. So when you talk about that struggle is a red herring. The rule already assumes that difficulty and bakes it in, and that difficulty may not even exist. The one place where I draw issue with this proposal, just one, is that it wants to wait three more years before this rule goes into effect. That would mean condemning 150,000 more people, innocent people to serious and gruesome injury, people we should instead be protecting. In the final rule, which I hope to receive later this fiscal year, we'll have to select an effective date that's reasonably necessary to address the hazard. With a rule that has billions of dollars in annual net benefits, a logical question to ask might be, isn't there a reasonable need to start gaining those benefits now? To start gaining those benefits as soon as possible, maybe even 30 days after the rule goes into effect, because that's the shortest period we're allowed to do that by law. And on the other end of the spectrum, the longest period we're allowed to do by law is six months. To depart beyond that requires good cause. Here, staff seeks to depart all the way up to three years, and I don't currently see any good cause to do so. And while we don't need to show that it will be easy for companies to comply quickly, we may learn that it is, which would make shortening the effective date all the more necessary. We know that three companies have already sold a saw with AEM technology. It's also my understanding that many table saw manufacturers might currently have the rights to compliance safety features and might be choosing not to incorporate them. It's my understanding that the industry lobbying group, the Power Tool Institute, undertook a joint venture among members, including Hitachi, Bosch, Stanley Black and Decker and Techtronix, and appeared to have created viable saw safety features which may be usable by all members. Today, I sent letters to the leadership at Bosch, TTS, SawStop, Hitachi, Stanley Black and Decker and Techtronix, seeking information on which of them have access to AEM technology. They would allow them to comply with the proposed performance requirements. Their answers are due on November 15th, and I've asked them to submit those answers to the commission secretary for inclusion on the public record. While we don't need that information to go forward with this rule as written, it would be relevant to shortening the effective date considerably, and I expect honest answers to those questions. And commenters, I encourage you to please weigh in with any other reasons why a shorter effective date is reasonably necessary. I wish this agency had done 20 years ago what we're doing today. We'd have prevented a million trips to the ER. 65,000 people would still have all their fingers, including at least one friend of mine. Today we did good. In the coming months, let's decide to do good faster. Thank you. Thank you, Mr. Chair, and I want to thank Ms. Paul for all of your work. I think you're the second CPSC staff member in the last couple of weeks who has indicated they've spent decades working on a project. And I think it should go without saying that that's too long. So I appreciate that we are here finally to be able to move this proposal forward. I do look forward to comments. I think if there are ways to make our proposal better, I certainly welcome them, but we are long overdue and I thank you for all your work. Thank you, Mr. Chair. Thank you to all commissioners for engagement today and for the staff for all the work over a long period of time. And with that concludes today's decisional meeting of the consumer product safety commission.