[ Background noise ]
>> Ann Marie Buerkle: Good morning
and welcome to this public meeting
of the United States Consumer
Product Safety Commission.
We have one item on our agenda this
morning and that is a decisional meeting
on the proposed rule, safety standard addressing
the blade contact injuries on table saws.
We have four members of our staff here this
morning in case there are any questions
from the commissioners in our opening round.
We have Dr. Joel Recht, Associate
Director for Engineering Sciences.
Ms. Kathleen Stralka, Associate
Executive Director Epidemiology.
Ms. Caroleen Paul, Mechanical Engineer from the
Office of Hazard Identification and Reduction
and Ms. Hyun Kim form the
Office of General Council.
Thank you all very much for being here today for
the briefing you provided us a few weeks back
and for all of your work on this package.
We're going to begin this morning with
rounds of 10 questions per commissioner,
depending on whether they have them or not.
And then we'll move and turn towards
the consideration of the proposed rule.
I will begins with my questions, so I
am wondering whether any of the staff,
I'll address you four but if you can direct
me anywhere else, have spoken to Dr. Gass
and asked him to provide us
with a list of his patents?
>> Hyun Kim: We have not.
>> Ann Marie Buerkle: Okay,
so and we've discussed this
in the briefing we have no idea the scope
of his patents we just know
he has many of them out there.
>> Hyun Kim: That's correct.
>> Ann Marie Buerkle: Thank you that's the only
question I have for now, commissioner Adler.
>> Robert Adler: Thank you very much
Madam Chairman, I have no questions,
I have just a very brief opening statement.
First of all I want to thank the staff for years
of tremendous effort and a superb job done.
And I want to thank you and I think
consumers across the land would want
to thank you for the work that you've done.
So I want to start by repeating a point
I made at our briefing a month ago.
In the 14 years since Dr.
Gass filed his petition asking
that CPSC adopt a performance standard
requiring aim technology, we've seen a grisly
and ongoing accumulation of human tragedy
resulting from table saw accidents.
By my count roughly 770,000
injuries and 56,000 amputations
at an annual cost of billions of dollars.
In fact, since our briefing about
four weeks ago if the statistics hold
on average we've probably seen 375 consumers who
have suffered amputations and an equal number
who have suffered fractures from table saws.
I realize that as commissioners
we must dispassionately
and thoughtfully assess the merits
of mandating a rule on tables saws
and I'm certainly prepared to do that.
But I also want to remind everybody
that real consumers are effected
by what we do and what we decide.
So those of you who have had a big breakfast you
need not look at this but I just want to point
out the reality of table saw injuries.
These are not papercuts these are
not minor lacerations these are very,
very serious injuries.
So if we vote no on this package or if we delay
the vote further we simply increase the number
of injures like these that will
not be addressed and I would view
that as very sad and unfortunate.
I think the staff has made an
overwhelming case for publishing this NPR,
I realize that there are various concerns
that have been raised about out vote today
and I'm prepared to address those as
appropriate, thank you Madam chair.
>> Ann Marie Buerkle: Thank
you, Commissioner Robinson?
>> Marietta Robinson: I have
no questions, thank you.
>> Ann Marie Buerkle: Commissioner Kaye.
>> Elliot Kaye: Thank you Madam
Chair I just want to thank the staff
and echo what Commissioner Adler
said he really did a phenomenal job
and I believe the package is ready to go and
I look forward to supporting it, thank you.
>> Ann Marie Buerkle: Thank
you, Commissioner Mohorovic?
>> Joe Mohorovic: No questions
at this time, Madam Chairman.
>> Ann Marie Buerkle: Having heard no further
questions the staff is excused from the table.
We are now going to consider
any amendments or motions,
does anyone have any amendments or motions?
>> Marietta Robinson: I have two
motions and two amendments Madam Chair.
>> Ann Marie Buerkle: I will recognize
Commissioner Robinson for her motion
and I will ask you to describe it for up to
three minutes and then after the conclusion
of that I will ask for a
second, Commissioner Robinson.
>> Marietta Robinson: Thank you.
My first motion is to direct staff
to commence a study of the type
of table saws involved in 2016 incidents.
As we discussed at the briefing currently
we do not have information about the types
of saws involved in our incident data.
This information may make a significant
difference in the formulation of a final rule.
To date we've obtained a substantial information
about the 2017 incident, however I'm convinced
that we should at least try to
obtain objective saw type information
from the NICE 2016 incidents.
To that end we've worked with staff very
hard to figure out the best way to do so
and I really want to thank OEX and EXHR
particularly for working with us on this motion.
I'll read the motion and
then explain it further.
The commission directs staff
to contact individuals
who suffered table saw blade contact
injuries reported in NICE between January 1,
2016 and December 31, 2016 for the sole purpose
of collecting objective information regarding
the type of table saw involved in the incident.
Staff will provide the commission
a written report of the status
of the project no later than August 15, 2017.
Which shall include but shall not be limited
to a report on the number of individuals
for whom staff has obtained content information
from NICE hospitals, the number of individuals
that staff has successfully
contacted and a summary
of the information received
from these individuals.
After receipt of staff's written report
the commission will determine whether
to instruct staff to continue
the survey and publish the result
in the federal register for notice and comment.
I want to quickly focus on
three aspects of this motion,
it will provide potentially
invaluable information.
I firmly believe that this
motion directing staff to attempt
to obtain saw type information using
the 2016 NICE incident data is necessary
and integral to publishing the NPR.
This information may be easily obtainable, it is
perfectly possible and I indeed believe probable
that most of the people injured
still own the saw involved.
None of us knows until we try.
If staff is able to collect
objective data related to saw type
from the 2016 NICE patients this information may
dramatically impact the cost benefit analysis
which would help make the commission's decision
on this rule making much
better and much more informed.
And I'd just like to say that this is a very
limited ask, we have 1,300 NICE patients
in the NICE data who suffered
blade related injuries.
We have a limited ask of each of those people,
we just want to know objective
evidence of what type of saw it was.
We don't care if they text us a picture,
we don't care if they tell us the make
and model number, give us the instruction
manual or receipt from the purchase,
staff will determine the methodology and
then staff will give the commission an update
in three months and then we can decide
if we should go further, thank you.
>> Ann Marie Buerkle: Thank you having heard
Commissioner's Robinson's motion do I have
a second?
>> Elliot Kaye: I second it.
>> Ann Marie Buerkle: Having heard a
second we will now move to consideration
of Commissioner Robinson's motion.
Commissioners will ask their questions and
then we'll come back to Commissioner Robinson
at the end, unless any of the commissioners
want to yield their time during the course
of their questions, each commissioner
will have 5 minutes per round.
I will begin with myself.
Commissioner Robinson have you talked with
staff about the impact this 16 study would have
on the 17 study that we are doing
to obtain the initial estimate?
>> Marietta Robinson: We
have and my understanding is
that it will have no impact what so
ever, that they will still proceed
with the 2017 data that they're collecting.
Thank you I have no further
questions, Commissioner Adler?
>> Robert Adler: Thank you Madam
Chair, I'm going to support this motion
but I'm going to do it very reluctantly.
It's not that I object to gathering additional
data but to me the data has to be useful
and the data gathering has to be
within available commission resources.
I remember the briefing that we had
when this issue was first raised.
Staff then responded in a memo dated
April 3 in which they said based
on their careful technical review of the
proposal by the by their senior statisticians,
they concluded that this study would be
neither statistically sound nor defensible.
My understanding is staff has not retreated
from this position and I find nothing new
in Commissioner Robinson's arguments
today that persuades me to the contrary.
That said I am prepared in the
spirit of compromise to support this
and therefore I will vote for the motion.
>> Marietta Robinson: Could I respond?
>> Ann Marie Buerkle: If
Commissioner Adler will yield his time?
>> Robert Adler: I will.
>> Marietta Robinson: The idea that we would not
even try to find out the type of saw involved
in a whole year's worth of incidents is a bit
mindboggling to me and we're not going to --
we don't know if this is going
to be statistically significant
because unless we try we cannot know.
And that's what the purpose is
of the three month report back
because we could very well
find that every single one
of these people know what type of saw they had.
And if we don't try we won't know
but I very appreciate your support.
>> Robert Adler: And Reclaiming my time
if this were the only thing before
the commission I would certainly agree
with Commissioner Robinson but the fact
is that we know that the staff is engaged
in undertaking a study of 2017 data
that staff is absolutely confident will
give us statistically representative data.
And it is not my understanding
that the impact on resources
for gathering the 2016 data will be
zero with respect to the 2017 data.
I am sure however that it will be
minimal and for that I'm grateful.
>> Ann Marie Buerkle: Thank
you, Commissioner Kaye.
>> Elliot Kaye: Thanks Madam chair I share
some of Commissioner Adler's concerns,
I also staffs concerns and don't buy into
the false premise that we need this data
that it's critical for moving
forward with the NPR.
I do believe that the analysis that is
contained in the NPR is more than sufficient
and so for that reason I'm not sure if
it will support the motion, thank you.
>> Ann Marie Buerkle: Commissioner Mohorovic.
>> Joe Mohorovic: I have no questions.
>> Ann Marie Buerkle: Thank you,
Commissioner Robinson do you want
to respond to any of those questions?
>> Marietta Robinson: I would only say
that had this had this been raised with all
of the commission back when this deficiency
in our data was first brought
up, I wished that it had been.
I think we could have all cooperatively
and proactively addressed this.
I've come up, with talking to staff I've come up
the best solution I can come up with for trying
to get this data as quickly as
possible so we have some information.
And I strongly disagree that this
is not a deficiency in the package
as is repeatedly said throughout the package.
That without data of the type of saw involved
in incidents that we really have a problem
and as we all know any rule we pass is
going to be subject to judicial scrutiny.
>> Ann Marie Buerkle: Thank you
Commissioner Robinson do any
of the other commissioners
have further questions?
Having heard no further questions
to Commissioner Robinson we will
move now to vote on the motion.
Commissioner Adler, how do you vote?
>> Robert Adler: I vote aye.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Ann Marie Buerkle: And I vote no.
The ayes are 4 and the nays are 1, the motion
by Commissioner Robinson has
been approved, not passed.
Are there any more -- excuse me, approved
that's just an editorial here in my notes.
Are there any more amendments or motions?
>> Marietta Robinson: I have
a second motion, Madam Chair.
>> Ann Marie Buerkle: Commissioner Robinson
I will recognize you again for your motion,
you have up to three minute to describe it
and then we will follow with
a second for the motion.
>> Marietta Robinson: My second motion
relates to the current work being done
to analyze the 2017 NICE incidents that
involve table saw blade contact injuries.
This work involves CPSC field staff contacting
NICE patients and visiting them in their homes
to fully understand the nature of the incident
and injury as well as identify the saw type.
This work is also critically important in order
to pursue this table saw rule
making under our statute.
My motion reads as follows, the commission
directs staff to analyze and seek public comment
on the table saw study started in January
2017 based on the most appropriate time period
that will generate information to determine
the national estimate from NICE incidents.
The results will be published in the federal
register for notice and comment as part
of the docket for this rule making.
If the table saw study is completed
based on incidents occurring
in 2017 the results will be
published on or about August 1, 2018.
If the table saw study must be extended into
2018 in order to generate sufficient information
to determine a national estimate, the results
will be publish on or about August 1, 2019.
I believe this [inaudible] motion is necessary
to make the findings required for the final rule
for table saws, for that reason I want to
ensure that these results are included as part
of the public rule making record.
And that all of our external stakeholders have
an opportunity to comment on these results.
The reason for the different dates is that
the first date of on or about August 1,
2018 is based on staff's
projection of when field work
of contacting NICE patients will be completed
and when table saw study will be completed.
The second date a year later is included
simply because if staff is unable
to contact enough NICE 2017 patients to
generate a national estimate then staff may need
to include incidents from NICE 2018 which
will require waiting to receive the NICE waits
from 2018 which does not happen until a
few months into the calendar year 2019.
I'm very hopeful that this table saw study
will provide the CPSC with exactly the type
of detailed information needed about
table saw incidents including the type
of saw responsible for the injuries.
This information will assist staff
in making a robust recommendation
in the final rule including
enhancing the cost benefit analysis
and better informing the scope
of the mandatory standard.
I'm happy to answer any questions.
>> Ann Marie Buerkle: Thank you,
Commissioner Robinson, is there a second?
>> Elliot Kaye: Second.
>> Ann Marie Buerkle: Having heard a
second we will now move to consideration
of Commissioner Robinson's
motion, I will begin with myself
for questions, I have no questions, thank you.
Commissioner Adler?
>> Robert Adler: I have no questions,
I am going to support this motion.
I do think that Commissioner Robinson
has done a good job of describing
that which the staff had announced they
were going to do but I think to put it
into the federal register notice is probably
a good idea so I certainly plan to support it.
>> Ann Marie Buerkle: Thank
you, Commissioner Kaye.
>> Elliot Kaye: I have no comments or
questions I plan to support it, thank you.
>> Ann Marie Buerkle: Commissioner Mohorovic.
>> Joe Mohorovic: No questions.
>> Ann Marie Buerkle: Commissioner
Robinson do you have any further?
Thank you.
Having heard no further questions to
Commissioner Robinson's amendment,
excuse me motion we will vote on the
motion, Commissioner Adler how do you vote?
>> Robert Adler: I vote aye.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Ann Marie Buerkle: And I vote
aye, the ayes are 5, the nays are 0,
the motion by Commissioner
Robinson has been approved.
Are there any, excuse me, are there
any other amendments or motions?
>> Marietta Robinson: I have
an amendment Madam Chair.
>> Ann Marie Buerkle: Again Commissioner
Robinson I will recognize you for your amendment
and I will ask you to describe it
for up to three minutes and then
after the conclusion we will ask for questions.
>> Marietta Robinson: Thank you I will
not read the contents of the amendment
because it has been circulated to all of the
commissioner offices but this is an amendment
to include in the briefing
package a discussion about RAND.
The rulemaking process concerning table saws
has been a very long and complicated one both
within the ANSI/UL voluntary
standards process and here at the CPSC
in the mandatory rule making process.
One of the hugely complicating factors
in both of these processes has been
that a performance standard
such as that proposed
in this NPR could potentially require
the use of a patented technology known
as active injury mitigation, AIM technology
owned by Dr. Steven Gass and SawStop.
Making the patents that apply to that technology
what are called standard essential patents
or SEPs.
UL and ANSI both have patent policies that
require a reasonable and nondiscriminatory,
that is RAND commitment made
between a patent owner of an SEP
and the standards organization before a
standard potentially requiring the use
of an SEP will be implemented.
A RAND commitment by the holder of an SEP states
that a patent holder either does
not hold any essential patent
or if they do the patent
would be license to applicants
under reasonable terms and conditions.
Either with or without compensation.
Under the voluntary standard manufacturers would
be third party beneficiaries of that commitment
and could file a lawsuit if they
could not agree upon a rate,
so that a court could determine
what an appropriate RAND would be.
As I understand it from this
package, public documents
and various conversation the
voluntary standards process
for table saws has been very contentious.
I would not be presumptuous enough
to take a position on the merits
of the different positions but the suffice
it to say, SawStop did not provide UL
with a RAND commitment covering it's patents
during the voluntary rule making process
and the UL voluntary standard does
not include a performance standard
that would potentially require AIM technology.
So now we are engaged in mandatory rule making
where we do not have statutory
authority to require a RAND commitment.
The briefing package discusses the potential
effects that approximately 100 patents held
by Dr. Gass and SawStop could have on
passing a mandatory safety standard.
Including the cost benefit analysis.
I believe it's important to also include
in the package a discussion about the UL
and ANSI patent policies requiring a RAND
commitment from any essential patent holder.
My second amendment which I'll discuss
shortly adds questions that are very important
to the policy decisions we as a commission
will have to make before passing a final rule.
>> Ann Marie Buerkle: Thank you
Commissioner Robinson, is there a second?
>> Elliot Kaye: Second.
>> Ann Marie Buerkle: Commissioner Kaye, second.
>> Elliot Kaye: Yes, Madam Chair.
>> Ann Marie Buerkle: Having heard a second
to Commissioner Robinson's
amendment we will now move
to any questions the commissioners might have.
I'll begin with myself, I do not
have any questions but I do want
to thank Commissioner Robinson and
her office for the tremendous amount
of work they've put into
this issue and inquiries.
And research into this whole issue of
patents and so I think you for that work
and I think this is a valuable addition to the
package and I look forward to supporting it.
Commissioner Adler.
>> Robert Adler: At the outset
I guess I'm a little confused,
which amendment are we looking at, there's
one that's called Voluntary standards
in patent policy and there's one
that's called binding RAND commitment.
Which is the one before us?
[inaudible]
Okay, that's one I've used
as the second amendment.
I'm going to vote in support of this
motion because it simply adds a bit
of information to the briefing package.
With that said I think it
sends the wrong message
to the regulated community,
to consumers and to the world.
RAND agreements are voluntary agreements
within voluntary standards development efforts
and I'm not sure it's terribly
relevant to our vote today on an NPR.
I would point out that neither
UL nor ANSI has ever determined
that AIM technology constitutes
a standard essential patent.
And SawStop still vigorously disputes
this technology fits within that category.
I'm not prepared to say that it is
not a standard essential patent,
I just think it's somewhat
irrelevant to the issue before us.
And I would also note in passing
that although UL has raised the issue
of standard essential patents, they never the
less permitted SawStop to participate fully
in the revision of the current voluntary
standard and to vote on its adoption.
And as I will explain in response to
Commissioner Robinson's next motion,
the votes by the industry against AIM
technology had almost nothing to do with whether
or not SawStop was willing
to sign a RAND agreement.
>> Ann Marie Buerkle: Thank
you, Commissioner Kaye.
>> Elliot Kaye: Thank you Madam Chair I plain
to support it but I have the same concerns
as Commissioner Adler does and he
summed them up very nicely, thank you.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: No questions, thank you.
>> Ann Marie Buerkle: Commissioner
Robinson, would you like to respond?
>> Marietta Robinson: Yeah, when you look
at the definition I think that I'll just say
that I think Commissioner Adler is very
confused on what essential patent means,
it simply means that a patent may,
not must, but may be required,
the technology under a patent maybe
required if a standard is passed.
And the point that I think and I'll discuss it
further with respect to my second amendment.
But the point is the voluntary
standards at this point and the language
where ANSI was just changed and
the UL is consistent with this
so that they've added it as a mandatory.
Not should but shall require a patent holder
who's patents maybe effected by a rule
to both disclose all of them going
to Chairman Buerkle's first question,
to disclose all of them.
And to make a RAND commitment or they
won't pass the voluntary standard.
And the question that presents itself from
a policy perspective is pretty obvious.
So we're in a mandatory rule making process
and I've had multiple conversations with people
from multiple agencies about
this but we're very unique
in this particular situation
and I'll explain why later.
But the point is in a mandatory rule making
even though we don't have statutory authority
to require it not as a voluntary standards
process, do we as a commission want as a policy
to do something on a mandatory basis that
the voluntary standards body's would not do
without a RAND commitment and are we
protecting consumers by doing that.
I just think whatever your answer
to those question are, they're very,
very relevant as a policy matter.
>> Ann Marie Buerkle: Thank you Commissioner
Robinson, Commission Adler do you have --
>> Robert Adler: Yeah, I don't think I'm very
confused about what a RAND agreement is what
so ever, I'm simply making the point that
neither ANSI nor UL has declared this
to be a standard essential patent.
But on that point I'm perfectly willing
to assume for the sake of argument
that this is the only way to
comply with an NPR before us.
So I don't really see that as an issue,
that doesn't mean and that's my point,
that doesn't mean that CPSC should be insisting
that there be a RAND agreement
for our rule making.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: No further
comments or question, thanks.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: No questions, thank you.
>> Ann Marie Buerkle: And if there are no
further questions we will now move to vote
on Commissioner Robinson's amendment.
Commissioner Adler how do you vote?
>> Robert Adler: I vote aye.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: I vote aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Ann Marie Buerkle: And I vote aye.
The ayes are five, the nays are zero,
the amendment by Commissioner
Robinson has been approved.
Are there any other amendments or motions?
>> Marietta Robinson: One more, Madam Chair.
>> Ann Marie Buerkle: I will recognize
you for your amendment for three minutes.
[ Silence ]
>> Marietta Robinson: I got my speaker on,
as I said this NPR is unique to this agency
and that the proposed safety
performance standard may require the use
of a standard essential patent for
which there is no RAND commitment.
And we have no statutory
authority to require one.
My staff and I have had a number of very
informative discussions with CPSC staff, UL,
ANSI, other government agencies anti-trust
attorneys and even and anti-trust professor.
My understanding from those discussions is
that ours is a highly unusual situation,
not only within this agency, but
within in government more generally.
The issue of a RAND commitment in the mandatory
standards environment has most often come
up with respect to cell phone technology.
And in those cases the parties have
been able to work out compromises
for sharing their technology so that the
mandatory standards body doesn't need
to consider it.
Requiring a RAND commitment as the
voluntary standards organization
to do while I said it's beyond
their statutory authority
and it would raise serious takings issue,
however giving serious consideration
to whether we as an agency
should pass a mandatory rule,
where a voluntary rule could not be passed is
a very important policy decision by the agency.
In addition, to voluntary standard development
organizations we know that other agencies
such as the FCC and the FTC have
considered this issue in different context
and I believe this is an area in which
we need as much information as we can get
to determine what our policy
should be going forward.
Although it's unique to this agency at this
point technology is advancing at lightning speed
and we will most likely face similar issues
in other context particularly
in the high tech area.
While our top priority is consumer safety
our statute requires a cost benefit analysis
that cannot be properly done if
we create essentially a monopoly
over which we have not control.
We may even learn in this process
that we need to ask Congress
for more authority regarding patent issues
or that we should engage differently
with voluntary standards committees
when essential patents are an issue.
These are the policy questions we need
to be thinking about as we move forward
on specifically this rule making and also more
generally as we think about out allocation
or resources of how to meet the
goals of our strategic plan.
This is an opportunity for the commission
to gain more information about if
and how our RAND agreement
could benefit consumers
and help us make a more informed decision.
Finally I just want to encourage
everyone, consumers, manufacturers,
patent lawyers, anyone with information.
To submit their comments and to participate
in the public hearing we will hold
as part of this rule making process.
>> Ann Marie Buerkle: Thank you
Commissioner Robinson, is there a second?
>> Elliot Kaye: Second.
>> Ann Marie Buerkle: Having heard
a second I now move to consideration
of Commissioner Robinson's amendment.
Again Commissioners will ask their questions
and then come back to Commissioner Robinson
at the end to yield her time for answers.
I have no questions at this
time, commissioner Adler?
>> Robert Adler: No questions but a
comment and I do want to make clear
that gathering additional
information is fine with me.
I was trying to remember on the
years I've been at the commission
if I've ever opposed a commissioner's
request that we add requests for information,
I can't think of one, I certainly
don't plan to do that today.
But what I want to say is I have deep
reservations about what I suggest
to be the underlying assumption
of the amendment.
And that is the underlying
assumption is that we should insist
on SawStop signing a RAND agreement in order
for us to move forward on a mandatory standard.
I think if we did that we would bring
this whole proceeding to a grinding haul
because then we would really have no
basis for doing a cost benefit analysis.
I remind folks that RAND
agreements are voluntary,
in voluntary standards proceedings
they are designed
to prevent patent holders form seeking abusively
high monopoly profits, not monopoly profits
but abusively high monopoly profits.
Or unfairly withholding vital
technology from competitors.
Neither of which is present in this case.
They don't set specific terms, they only
commit parties to negotiate the terms.
The problem is if we insisted
on such an agreement
in this case we would guarantee endless
years of uncertainty and litigation.
Since to say the least, no one in this industry
is in any rush to adopt AIM technology.
To the contrary as we've seen time
and time again the industry has consistently
cast negative votes against AIM technology.
Because virtually all the table saw
manufacturers continue to insist
that their existing standard
is adequate, which it's not.
They clearly believe it's in their best interest
to drag the process out forever or at least
until SawStop's patents have expired.
To me RAND is simply a delaying tactic,
RAND issues have never been the basis
for industries' opposition to AIM
technology, their opposition is
to AIM technology not to the
lack of a RAND agreement.
And I repeat if we required a RAND agreement
that would bring this proceeding back
to square one because then we really would
be unable to do a cost benefit analysis
because we wouldn't know what the implication
of the royalty cost would be on AIM technology.
That would be the death knell
of this proceeding.
And let me just mention what SawStop has done,
in effect, forgive the metaphor they've cut
to the chase because for the past 14 years
they've told the world what their royalty fee
would be.
And they've made very clear that
this would be available to any
and every company that wishes to adopt it.
There's no need in my view for a RAND agreement
because we know what the royalty fee will be
and we know that SawStop will
license its technology to anyone
who would want to meet the standard.
Staff has looked at their licensing fee and
they've determined it will add at most about $37
to $57 for bench saws which are
the most price sensitive model.
And they found no basis for concluding
that these added costs will undermine
the competitiveness of this industry.
That determination is our task under CPSA, not
calculating or insisting on a RAND agreement.
So I don't see the need for a RAND agreement,
there's no discrimination among buyers,
there's no need for us to
pick winners and losers,
there's no ambiguity, there's no uncertainty.
There's no endless litigation
and there's no delay.
But in the spirit of compromise I
repeat I'm willing to support this
because it is seeking additional information,
I just don't like the underlying assumption.
>> Ann Marie Buerkle: Commissioner Kaye.
>> Elliot Kaye: Thank you Madam Chair as a
matter of deference to a colleague I do plan
to support this amendment but I do have
grave concerns about the underlying policy.
I feel 7 and 9 are burdensome enough
as a statutory regime for us to follow.
I don't see how it is in the
interest of consumer safety
to voluntarily lay additional hurdles
onto those requirements, thank you.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: I have no questions.
>> Ann Marie Buerkle: Commissioner
Robinson would you like to respond?
>> Marietta Robinson: I would, it's hard
to know where to start because there are
so many erroneous assumptions
in what Commissioner Adler says.
There is no underlying assumption that
we should insist on a RAND commitment
because we have no statutory authority to do so.
And yes, a voluntary standards body
does not insist on a RAND commitment,
what they say is we're not going to
pass a standard that would require
or may require using your patent
without a RAND commitment.
That's the quid pro quo and it obviously
SawStop doesn't have to make that commitment,
didn't and UL didn't pass a standard
that required AIM technology.
So and what we're doing here, first of all let
me back up and say this is the first time this
as a policy has come before this commission.
I've spoken with our people on staff, we have
had one tiny blip of maybe this will be an issue
in one other rule making process
and it didn't end up being an issue.
So the idea that we as a commission wouldn't
consider whether we would do something
on a mandatory basis that the voluntary
standard's body will not do seems rather short
sighted to say the least that
we wouldn't even consider this.
And let me just say that they way
that RAND commitments work is we don't
determine what the fairness of the amount is
and one unilateral party doesn't
get to determine what that is.
I don't know if SawStop -- first
of all it's not a RAND committee
so there's no third party beneficiary
so a manufacturer could not seek
to enforce that, that's number one.
But number two I don't know if it's fair or not.
I wouldn't pretend to know if it's fair or not,
the point is that if the parties don't agree
on it, if there's a RAND commitment then the
manufactures are third party beneficiaries
of that contract and so they
may being a court action
and a court then decides whether it's fair.
And for example I happen to know from my
tiny bit of patent law that I know the people
who seek patents, for example a jewelry designer
will do a patent including the diamond that's
in the design so that the fee will be higher.
Well, I understand that there is some
contention around whether the full value
of the saw is what should be used for
the 8% or what's being added to the saw.
I don't pretend to have the answer to
that but the point is we would be getting
out of the process and a court could
decide that if the parties can't decide.
If this wasn't complicated
I am absolutely certain
that the UL process would have
been -- would have sorted this out.
That's where this kind of
thing should be sorted out.
But I come back to we as a
commission are considering doing
on a mandatory basis what
a voluntary body would not.
At an absolute minimum we should get
the information from other agencies,
other people who have been involved in similar
situations and decide if this is something
that we as an agency want
to do as a matter of policy.
>> Ann Marie Buerkle: Thank
you commissioner Robinson,
do any of the other commissioners
have questions, Commissioner Adler?
>> Robert Adler: No just a quick response, I'm
delighted to hear Commissioner Robinson say
that there's no underlying
assumption in her amendment.
I believe anybody reading it would
read a clear implicit message there
that we should do something and require
something with respect to a RAND agreement.
If that's not the case I'm
delighted to hear that,
but that's not the implication I
drew from reading her amendment.
And I do think that the point about court is
a good one, if we went to 10 federal courts
and asked them about what a RAND
agreement should be in this case,
there's no doubt we would get
10 widely divergent rulings.
Both as to the proper formula and
what a proper royalty fee would be.
In other words you're talking years
and years and years of litigation
which simply then conspires to keep us from
moving forward to do a mandatory standard.
The staff has applied the proper test, you
are correct, the proper test can be found
in section 9, that is to ask whether this
royalty fee would impose an adverse impact
on competition.
I think it's pretty clear from what the
staff has said is that it would not.
If there's going to be a problem
with the industry adopting AIM technology
it's not going to be the royalty fee.
It's probably going to be the retooling cost.
This is an entirely reasonable cost benefit
analysis and if we didn't have a figure to use
in our calculation we would be
bogged down and stuck at square one.
So that's my concern but
seeking additional information
on a neutral basis I have
absolutely no problem with.
>> Ann Marie Buerkle: Commissioner
Kaye any further questions?
>> Elliot Kaye: No, thank you Madam Chair.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: No questions.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: I only need to add that
this is so short-sighted for Commissioner Adler
to think we shouldn't even think that
this is an issue in these circumstances.
>> Ann Marie Buerkle: Are there any
further questions from the commissioners?
>> Robert Adler: No.
>> Ann Marie Buerkle: Having
heard no further questions
to Commissioner Robinson's amendment
we will move to vote on the amendment.
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Ann Marie Buerkle: Commissioner Robinson.
>> Marietta Robinson: Aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: Aye.
>> Ann Marie Buerkle: And I vote
aye, the ayes are 5, the nays are 0.
The amendment by Commissioner
Robinson has been approved.
Are there any other amendments or
motions on the table this morning?
Having heard no other amendments
or motions we will now turn
to the final vote on the proposed rule.
Safety standard addressing blade
contact injuries on table saws.
We will have time for closing remarks
but at this point does anyone
wish to be heard on this topic?
>> Robert Adler: Before closing arguments, no.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Thank you Madam.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: No thank you.
>> Ann Marie Buerkle: Commissioner Mohorovic.
And I have no comments.
Having heard no further comments we will now
turn to the vote on the underlying package,
that is the proposed rule safety standard
addressing blade contact injuries on table saws.
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: No.
>> Ann Marie Buerkle: And I vote no.
the ayes are 3, the no's are 2.
The proposed rule safety standard blade
contact injury on table saws has been approved.
We will now turn to closing
statements, each commissioner will.
Have up to 10 minutes for
those and I will go first.
I regret the commission's vote
today to approve publication
of a proposed standard for table saws.
I believe the proposal is defective and
does not merit approval at this point.
The major shortcomings relate to one the scope
of the standard, and two the lack of assurance
that manufactures will be able
to license the technology needed
to make the standard on reasonable terms.
I'll first talk about the scope of the standard,
the notice of proposed rulemaking points
out that there are three
distinct types of table saws.
Some are portable, some are not.
Some run on ordinary household
electrical wiring, others cannot.
Some table saws are 25 times
more expensive than others.
This leaves a burning question
how do the different types
of table saws differ in terms of injury rates?
Does it make sense to apply the same
performance requirements to all of them or not.
To help answer that question in 2007
the CPSC staff designed a special study
of table saw injuries from the NICE system.
The goal was to discover which types of
table saws was responsible for each injury
and then develop a national
estimate for the proportion
of table saw injuries attributable
to each type of saw.
Unfortunately, the results of the
study weren't made public until 2011
and as details finally became
known commenters pointed
out that the results were internally
inconsistent and could not be used
to classify injuries by saw types.
Given the importance of this issue then
staff designed another NICE study, in 2014.
However, this study also failed
to shed light on which type
of table saw was responsible
for the particular injuries.
The NPR explains why it might not be
appropriate to apply the same standard
to three different types of
saws and I quote from the NPR.
Because of the difference in the
physical characteristics to use patterns
and the likely population of
each user of the table saws,
that is bench, contractor and cabinet saws.
An independent evaluation of the benefits and
costs for each type of saw could be useful.
For example the cost for the proposed
rule could exceed the benefits for one
or more saw types even though an
aggregate benefits could exceed the cost
for the market as a whole.
The staffs continued with their persistent
efforts to develop injury estimates
for each type of saw underscores even though
an aggravate benefits could exceed the cost
for the market as a whole.
The staffs continued with their persistent
efforts to develop injury estimates
for each type of saw, underscores that
importance they assign to this matter.
Indeed despite the prior setbacks staff has
launched a third special study following
up all NICE table saw cases
as they reported through 2017.
And today the commission has also directed
staff to look at the 16 injury data as well.
Never the less the commission majority
refuses to wait for the results
of those studies proposing a standard.
The result is a one size fits
all proposal that glosses
over the differences among the
table saws in a broad category.
In my view this approach is a serious mistake.
As the staff has long recognized
promulgating the same standard for three types
of table saws may well impose costs
that are not justified by the benefits.
The proposed generic standard is expected
to wreak havoc in the table saw market.
The staff predicts that some saws
will more than double in price
and other manufacturers will exit the market.
Under these circumstances the commission should
not be taking short cuts but getting the data
that it needs to make responsible decisions.
My colleagues say that we can take a two
track approach, securing the public common
and the generic saw data and at the same
time we develop the data for 16 and 17.
Thankfully they do contemplate and it was
voted on this morning a second round of comment
when the necessary data became available.
In my view, however we should know the answers
to those questions before
we shape our proposed rule.
My second concern has to do
with creating a monopoly.
The second serious problem with the proposed
standard is almost certainly would require the
use of patented technology.
And the commission lacks sufficient assurance
that the patent holder will
license the technology on a fair,
reasonable and non-discriminatory terms.
In fact we may be granting a
monopoly in favor of one company
that could control the supply of table saws.
And charge whatever it would like
without any effective competition.
In essence the proposed standards requires table
saw manufacturers to incorporate AIMs system.
An AIM system performs two distinct
functions, number one it must detect actual
or evident human contact
with the table blade saw.
Number two it must react by stopping the blade
or by taking other action
to prevent a serious injury.
SawStop first introduced the AIM
technology in the table saw in 2004
and on a number of models thereafter.
The firms principal, Dr. Gass and
the affiliated entity SD3 LLC.
Reportedly hold over 100 patents that
relate to AIM technology on table saws.
No other manufacturer has even attempted to
introduce a table saw employing AIM technology
until Robert Bosch finally did so in 2016.
Dr. Gass promptly sued him in
federal court for patent infringement
and separately asked the
International Trade Commission
to block importation of the
Bosch saw on that basis.
Thus far that effort appears to be successful
leaving SawStop as the sole provider
of table saws in employing the AIM technology.
In recent years UL has proposed to
AIM, AIM performance requirements
to the voluntary standards
for table saws, UL 987.
The NPR approved today it is
reported that the effort failed
because the table saw industry objected
to making the AIM requirements
as part of the UL standard.
This doesn't tell the whole story, during
development of the voluntary standard members
of the Standards Technical Panel
advised UL that the, excuse me,
that the proposed performance requirements.
Much the same as our CPSC proposed
standard implicated SD 3 patents.
Pursuant to its patent policy
the UL asked Dr. Gass to quote,
identify the specific patent claims
that are essential for compliance
with the AIM requirements, end quote.
And with respect to all such claims confirm
that a license will be made available
to applicants desiring license for the
purpose of implementing the standard.
Under reasonable terms and conditions
that are demonstratively free
of any unfair discrimination.
In response Dr. Gass raised a number
of objections to UL's request,
among other things he argued that the proposed
voluntary standard was a performance standard,
not a design standard.
And therefore would not necessarily
require table saw manufacturers
to adopt that technology.
He stated that as SD3 declines
at present to provide any type
of statement concerning its patents.
Other than to say SD3 reserves
all its patent rights.
UL's proposal did not achieve consensus, the
power tool institute opposed the AIM technology
as the voluntary standard for several reasons.
The first stated was that after years
of research the only known technology
for meeting the standard quote, maybe
covered by standards essential patents
that are not likely to be licensable.
Quote, unreasonable and nondiscriminatory terms.
In other words UL's proposal
to the add AIM technology
as a voluntary standard might
have made it impossible
for any other manufacturer
other than SawStop to comply.
In the present situation the commission
is proposing a standard that is very much
like UL's failed voluntary standard.
Like UL the commission has no assurance
that manufacturers will be able
to meet the proposed standard without
infringing on SawStop's patents and
or that SawStop will be prepared to license
that technology on reasonable terms.
At the staff briefing on the table saw NPR
one of my colleagues claim that Dr. Gass has
in fact pledged to license the AIM technology.
He pointed to SawStop 2003 petition
asking CPSC to mandate AIM technology.
Others have criticized the 2003
licensing offer as unreasonable.
When my staff and I recently met with
Dr. Gass moreover he made it clear
that he would no longer stand by the
2003 offer without additional conditions.
According to PTI some manufacturers
have tried in recent years
to negotiate licensing agreements with Dr. Gass
but met with escalating demands
and outright refusals.
Under these circumstances I'm not at all
comfortable with the proposed standard,
I do not begrudge Dr. Gass the royalties
he is due for his original ideas.
But neither do I want to be a part to
the proposal that gives him a blank check
to monopolize the table saw market.
I think that before proposing a table saw
standard we should clearly understand the extent
to which manufacturers are
dependent on patented technology.
And the willingness of the patent
holders to grant licenses on fair,
reasonable and nondiscriminatory terms.
Thank you and Commissioner Adler.
>> Robert Adler: Thank you very much
Madam Chairman and thanks again to staff
for developing such a highly
complex and technical NPR package.
You've done yourselves proud
with such a superb piece of work.
We've walked through the various
issues relating to table saws
and I don't want to revisit all of them.
I don't consider them central, I did
want to comment on the monopoly issue.
With respect to the license fee as far as I can
tell and as far as I can determine from talking
to Dr. Gass, he's never, never retreated from
his offer to licenses at this specific number.
And we have an enforcing mechanism for
that because there will be a period of time
between the date of promulgation
and the effective date.
Should he in any way change the terms
of his license fee then the
commission's operating assumption
in the briefing package would
be rendered invalid and I would
at that point vote to withdraw it.
So I think we have a good policing mechanism
but I have absolutely no reason to assume
that he would in any way change
the amount of licensing fee.
And he's made absolutely and unequivocally clear
that he would license it on
a nondiscriminatory basis.
So the fact that there was no consensus,
I repeat had almost nothing to do
with the RAND agreement,
it had to do with the fact
that the industry doesn't
want to adopt AIM technology.
But I want to come back to some of the points
that are so essential to this vote and I have
to start again with the fact that table
saw injuries are numerous and horrific.
And I want to remind folks about
a young man named Josh Ward
who testified at our priorities hearing.
He's the young man who described his injuries
to the commissioner at our priority's hearing
by pointing out that his
left hand had a terrible,
terrible table saw accident
and this is what it entailed.
An initial 12 hours surgery
with two hand surgeons.
In addition to the permanent loss of
two fingers he lost 50% of the function
of the remining fingers despite three
additional surgeries in in seven days.
And there are terrible long term
effects of infection and loss due
to cut nerves and loss of blood flow.
He's already had a two year long bone
infection that required 10 rounds of antibiotics
and 180 hours of hyperbaric oxygen therapy
just thinking of that curdles my stomach.
This is all at a cost so far of
$350,000 and sadly that is typical
of amputations in table saw injuries.
On the good news front and I think it's really
good news, it seems to me there's little doubt
that AIM technology will dramatically reduce.
If not eliminate almost all table saw injuries.
In my experience it's rare for
the commission to encounter
such an impressive single
step forward for safety.
AIM technology is awe inspiring, anyone who
has observed it in action has to come away
with an enhanced appreciation for the power
of science in technology to improve our lives.
And I think it's also fair to say that unless
we take decisive action I think it's unlikely
that consumers will ever be adequately
protected from table saw injuries.
Table saws with AIM technology have actually
been on the market for a number of years now
but they still constitute only a small fraction
of the table saws sold in this country.
And there's no reason to assume
that this number is going
to dramatically increase
any time soon unless we act.
Sadly most consumers simply don't understand
or appreciate the very high risk of injury
that exists every time they use a table saw.
Staff has pointed out casual users
may be unaware of how quickly
and violently an injury can occur.
Staff has also noted even consumers
who are fully aware of the hazards
and how to avoid them may
suffer from slips or lapses
that could easily lead to
blade contact and injury.
Despite the consumer's best
intentions to use the product safely.
And just one quick note on consumer misuse
or abuse, there's no evidence in the record
of consumers acting recklessly, under
the influence of drugs or alcohol,
the point is even careful sober users
can suffer catastrophic injuries
from only the smallest and most human of lapses.
And I will just also mention the
notion of an education campaign,
I think it's true that education
campaigns can be a valuable supplement
to our regulatory activities that
rely solely on education campaigns
for table saws is going to
be an exercise in futility.
We and the industry have been warning about
table saw injuries and hazards to no avail.
And I want to make one final point
because I assume my colleague,
my esteemed colleague Commissioner Mohorovic
is going to raise the point and that has to do
with freedom of choice in the market.
And I agree in the main with the notion that
we should give consumers freedom of choice
but it has to be a true freedom of choice.
And that requires full information and
appreciation of the choices before consumers.
Simply knowing that a table saw can
cut you is about as helpful as knowing
that an airplane can fall from the sky.
You need more data to properly asses the risk
and given the horrific toll year after year
of table saw even to experienced, careful users.
I find it impossible to believe that providing
more warnings and more instructions is going
to do anything to solve the problem.
To be truly safe on a table saw you have to
be perfect when you use it, not every time
but perfect and no one is perfect.
I think there comes a time when society
has the right to look out for the safety
of its citizens even when they
might not do so themselves.
Because their injuries cost us as well as them.
Table saw injuries cost between $160 million and
$1 billion in direct, not pain and suffering,
direct medical costs and lost wages.
And we as a society share those cost either
through higher insurance
premiums or higher taxes or both.
Given this I think that we as a society at
large have some say in table saw safety.
Our vote means that these societal costs will
be dramatically reduced and greatly off set
by the benefits of fewer injuries.
I remind everyone that we require
drivers, even when they don't like it,
to get licenses and obey traffic laws.
Including the requirement
to buckle their seatbelts.
We do so because we want our citizens
to be safe and not to burden us and them
with unnecessary fatalities and injuries.
And Joe I couldn't resist this, there's
an article written a number of years ago
by George Will and it was in response
to a former President's criticism
about elites telling the public what to do
and not relying on the wisdom of the public.
And I thought Mr. Will's response to
then President Reagan was telling.
So I'm just going to read his response.
A free market is a nifty
arrangement for recording preferences
and allocating resources accordingly.
But there's appoint at which obeisance of
political persons before market decisions is
like other forms of populous
an excuse for not leading.
At that point free market principles are
less an aspect of their political philosophy
than a substitute for political philosophy.
The state is more than a device for serving
the immediate preferences of its citizens,
it's purpose is to achieve collective objectives
and the collectivity the nation includes a
constituency of generations not yet born.
That's why the state unlike an economic
market has responsibilities and must look
down the road further than citizens
generally look in their private pursuit.
Thus the state's legitimate
purposes are more complex
than the sum of citizens private purposes.
The public interest is not just the automatic,
unguided outcome of the maelstrom
of private interests.
I couldn't have said it better, I couldn't
even said it half as eloquently, thank you.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Thank
you, let me first say that I --
Chairman Buerkle has very eloquently stated
exactly what my concerns are about this package
and Commissioner Adler has very eloquently
stated exactly what the problem is we have here
in terms of the hazard that we're addressing.
We all know that table saws pose a very
significant hazard and they have for many years
and we know that the numbers and the
injuries and the injuries are horrific.
When you look at 2015 alone there were an
average of 11 amputations a day from table saws.
And they're much more dangerous than
other workshop products, we all know that.
And we know that the cost that even our staff
came up with were extremely conservative
with respect to both the
costs and the economic losses
and with respect to the noneconomic losses.
And we've heard from many
people as commissioners here
who have suffered just enormous
pain and suffering that comes
with the altered life as a disabled person.
And we know there's a technologically feasible
way to prevent most of these injuries.
And our staff estimates that if the
standard that they proposed was passed,
that 70 to 90% of these injuries
would be avoided.
The proposed fix that they have is that
the performance stand is that the blade,
if it comes in contact with the finger
it can't go in more than 3.5 mm.
Which would make it much less
likely to result in nerve damage,
amputation or other serious injuries.
When you look at this and the estimates that
staff came up with that the table saw market
as one single undifferentiated market.
They estimate that the net benefits
would be between 2,300 and 4,300 per saw.
And estimates aggregate annual benefits could
be between 970 million and 2.45 billion.
Now one would look at those, what I've just
stated and think this is exactly the situation
that the CPSC should step in and
mandate a performance standard
that could prevent these injuries.
And while these numbers sound very impressive,
the problem is that as Chairman Buerkle has
so well stated, when the
bases for those estimates
that are examined there are
critical missing pieces.
And I don't for a moment fault
staff for this, I really don't,
I now know that they were
instructed to go forward knowing
that there were these deficiencies.
And I don't fault staff for this
but the problem that I have is
if I were a consumer advocate I would've had
absolutely no problem whatsoever advocating
for mandating a performance standard that
requires that requires the use of technology
that would prevent these injuries.
But I'm not that, I'm a consumer --
consumer product safety commissioner.
And anyone who is familiar with my work during
the time that I've been a commissioner knows
that I take my responsibility
of protecting consumers
from unreasonably dangerous
product, very, very seriously.
And I work very hard at filling
that responsibility.
But I must make that responsibility within
the constraints of the laws and regulations
that govern CPSC decision making.
That's the only way we can
truly protect consumers,
I would be doing consumers no favors whatsoever
if I ignored the integrity of this agency
and it's required processes and simply
blinding voted yes on a package.
That I believe contains potential
deficiencies on the bases
for the rule making absent a
concrete plan in place to correct any
such deficiencies before final rule making.
CPSC's regulations must meet the requirements
of APA and CPSIA or they may be overturned
by the courts as we so very well know.
And CPSC also must answer
to Congressional oversight.
And voting on rulemaking I believe it's
my duty to make every effort to make sure
that a mandatory rule we pass will
stand and will not be overturned.
What good does a mandatory standard do
for consumers if it's not well-founded?
I have some concerns with this proposed rule as
has become evident in my motions and amendments
and cost benefit analysis in order
to for a final mandatory rule
to withstand judicial scrutiny we're
required to do this cost benefit analysis
which we've spoken of so frequently.
As Chairman Buerkle set forth to
date we simply have not succeeded
in getting data showing the
distribution of injuries associated
with the three distinct types of table saws.
Bench top, cabinet and contractor.
However we know that because of the price point
and the engineering involved the proposed
performance standard would have very different
impacts on each of these
segments of the table saw market.
I'm particularly interested in these
data of what kind of saws are involved
because we may find that injuries are not
proportionally distributed across saw types.
If so it may make sense to pass a
standard that covers only the types of saws
that are associated with the
highest number of injuries.
We need to have this information in order
to truly do an informed cost
benefit analysis for a final rule.
And second we have the essential patent issue.
Currently as I understand it only one commercial
product meets the performance standard proposed
in the NPR.
The company that sells this product has
over 100 patents covering various aspects
of the technology that would be
required to meet this standard.
The company's been very aggressive in
protecting its patent rights and has succeeded
in its litigation to stop the importation
and sale of a competing product with AIM.
And as much as this stands by the essential
patent holder is perfectly legal and I'm not
for a moment being critical of it.
This situation for us as an agency
raises the very troubling prospect
that by mandating this performance standard
CPSC would be doing something the voluntary
standard's community is unwilling to do.
And that is pass a standard without an essential
patent holder making a RAND commitment.
The NPR package makes it clear that
this situation would leave many unknowns
on the disruption of the saw market
and the cost benefit analyses.
Today I propose two amendments and two motions
that I hope will go a long
way in addressing my concerns.
I'm very happy to see they passed and I think
my fellow commissioners for their support.
I also thank their staffs and especially OEX
and EXHR staff for working so closely with me
and my office to help refine my proposals
and to help address concerns that they raise.
As I said I share the Chair's concern about
this package at the stage where it is right now.
But we are in the NPR stage and so we diverge
paths when it comes to the vote on this.
I can say that I would not vote for a
final rule with the package in this state.
But I believe that these motions and amendments
will do a great deal to strengthen the NPR
which I believe will go a long way
to ultimately protecting consumers.
They help to ensure that any proposed final
rule will effectively address the hazards posed
by table saws will be based on a strong cost
benefit analysis with strong bases and will be
within the CPSC statutory authority
and will withstand judicial scrutiny.
With these motions and amendments
I'm comfortable voting for this NPR.
The amendments related to the patent
issues achieve two main objectives,
clarifying in the package how this
issue came into play with respect
to the voluntary standards
organization and secondly
in adding the questions we're explicitly
inviting information and opinions on this very,
very unique situation involving
an essential patent holder.
That may help the CPSC to advance safety
without unduly impacting competition.
The standard essential patent issue and
mandatory rule making is a new one as I've said
which may become a very important
one as we go further.
And I really seek input from other government
agencies, standards development organizations
and anyone else including patent lawyers and
academics who may have information on this.
Additionally, CPSC's decision on the best
approach to potential standard essential patents
and RAND could benefit from consumers
by making effective safety technologies
more accessible and affordable.
And hopefully the work CPSC does here today
will help advance the thinking on these issues.
I believe that the information that we're
going to get from the table saw studies,
the 2016 and the 2017 should
help us have additional data
to provide robust analytic
support for the proposed rule.
We simply must have this data
as Chairman Buerkle stated
for us to come up with a final rule.
I deeply regret that not all of the
commissioners were informed many months ago.
That the studies on the types of saws involved
in blade contact injuries
could not be relied upon.
Had I been informed of this development I
would have made every effort to work together
with the other commissioners
and staff in a proactive way
to find a solution before the enormous
effort was put in by staff on this NPR
as it's presented with its deficiencies.
But it is what it is and we
are where we are and I believe
that these two motions go along go a
long way in addressing this lack of data.
Once again I want to thank staff
so much for working with my office
to find the motions I introduced and thank
my fellow commissioners for their support.
Table saws cause way, way too many
injuries and amputations for the CPSC
to ignore the hazard they present.
It's important that we go forward in my
view with the NPR however with the motions
and amendments which will put us in a much
stronger position both with the respect
to our continuing work with the UL voluntary
standards committee and with respect
to proposing a final rule, thank you.
>> Ann Marie Buerkle: Thank you Commissioner
Robinson, at this point I've been advised
that I left out some critical language in
how the language that was used in terms
of passing the -- and Mary if you could explain.
>> Mary: Okay there are a couple of things
but the commission voted to adopt the NPR
and the staff actually understand in the
normal course that that means publication
and federal register and that's how
we would have proceeded if as a matter
of official record you want to have a vote to
publish in the NPR that would be perfectly fine
but it was our understanding
that publication was implied.
If my memory serves I believe you voted
on underlying package but not as amended.
That's probably something you might want to just
clarify, although again I think staff understood
that the publication would
be of the package as amended.
But as a formality you might
want to consider that.
>> Ann Marie Buerkle: Thank you very much
and I believe Commissioner Kaye
is willing to offer those motions.
>> Elliot Kaye: Thank you Madam Chair, and I
do appreciate you accommodating this request
and thank you Ms. Boyle for scrambling
after we asked the questions.
I would move that the commission revote and
this time vote to approve the package as amended
and to publish the same in the
federal register, I make that motion.
>> Ann Marie Buerkle: [inaudible]
Commissioner Adler how do you vote?
>> Robert Adler: Aye.
>> Ann Marie Buerkle: Commissioner Robinson?
>> Marietta Robinson: Aye.
>> Ann Marie Buerkle: Commissioner Kaye?
>> Elliot Kaye: Aye.
>> Ann Marie Buerkle: Commissioner Mohorovic?
>> Joe Mohorovic: No.
>> Ann Marie Buerkle: Was that a yes?
>> Joe Mohorovic: No for the record.
>> Ann Marie Buerkle: And I vote no.
the ayes are 3, the nays are 2 and the NPR will
be published as amended in the federal register.
Thank you very much.
I now turn to Commissioner Kaye for
his closing comments and thank you.
>> Elliot Kaye: Thank you
for that accommodation.
Safe to say this NPR was long overdue, before
getting into dry topics such as timelines
and performance standards
and regulatory requirements.
It is important I believe to start with
the human impact of regulatory inaction.
While we hear a lot of fabricated
outrage about the impact
of regulations there is far
less genuine discussion
about the real costs of a failure to act.
On December 19th, 2012 more than five years ago,
Josh Ward was in his high school
shop class in Sisters, Oregon.
He was helping as a teacher's aide to
the workshop teacher who had asked Josh
to cut a wood board into long strips for a
class that taught students how to make guitars.
Josh used the school's table saw
which was not equipped with the kind
of safety features our rule would require.
Something went wrong, something that happens
in American homes thousands of time a year.
The board caught in the saw with such force
that Joshes hand was pulled into the blade
at the same time the board was
thrown across the room so strongly
that it punched a hole in the wall.
Josh was rushed to the ER where the doctor
called it the worst hand injury he had ever
seen, according to Josh's mom, Angela.
Josh needed more than 1,000 stitches,
endured more than half a dozen surgeries,
lengthy physical therapy, went through 45
2 1/2 hour hyperbaric chamber treatments,
lost all or part of multiple
fingers and had his dreams
of being a firefighter potentially dashed.
He and his family have paid a very
heavy price for sure for something
that existing technology can and should prevent.
Sadly though Josh's story is
not uncommon in the least,
10's of thousands of consumer each year are
treated in hospital emergency departments
for injuries associated with table saws.
Day after day, week after
week, month after month,
year after year these incidents keep occurring.
What has not been happening however is much
to genuinely address the
hazards table saws present.
The market place has spent many years
making no across the board progress.
CPSC staff thankfully has been evaluating
the possibility of performance standard
to protect consumers who use
table saws since at least 2003
when the first flesh scenting
devices were presented in a petition.
The commission requested it's first briefing
package in 2006, although even that little bit
of progress was stymied by a loss
of [inaudible] at the commission.
And political gamesmanship by individuals
whose inaction put corporate protection
over consumer protection.
Due to the advocacy and hard work of my good
friend and colleague, Commissioner Adler,
the commission renewed its
efforts and focus on this issue
and published an advanced notice
of proposed rulemaking in 2011.
Contrived by [inaudible] that maintain an
artificially limited budget at the expense
of consumer health and safety and the need
to address other pressing safety issues have all
impacted to move forward with this rule making.
Again thankfully CPSC staff stayed
at it and now we have an excellent
and thorough performance standard to
propose and upon which to seek comment.
It is important to keep in mind of
course that this NPR is not a final rule.
The purpose of an NPR obviously is to
provide notice to the public of our plans
of potential rule making and give
our stakeholders an opportunity
to comment on those plans.
Nothing in the APA or our own
statutes presents the commission
from publishing an NPR while
continuing our work.
If any of the issues cited as reasons to vote
against publishing this NPR were truly fatal
to this entire rule making our staff would
never have put it forward for consideration.
This NPR is ripe for publication and comment.
First we're dealing with a very real
hazard that a serious cost to society,
as CPSC staff mentioned in the package their
analysis revealed an estimated 33,400 table saw
related emergency department
treated injuries occurred in 2015.
About half of all amputations associated
with workshop products can
be attributed to table saw.
The annual societal cost associated
with medically treated blade
contact injuries exceeds $4 billion.
Consider that number again, $4 billion in
societal costs, that is a lot of Josh Wards
out there experiencing real
and long term suffering.
We all know table saws are dangerous, no
one is saying otherwise, but the scenarios
and accidents that lead to amp8utations and
other injuries are not always intuitive.
Consumers cannot readily predict the many
possible scenarios leading to distraction
such as unfortunate but predictable
reflective motions of the hand
into the blade's path or a loss of balance.
Seniors may not realize how their reaction time,
balance and eyesight might
have deteriorated over time.
Even experienced wood working may get over
confident in their ability to control a cut
and get too relaxed in their safety precautions.
All of these scenarios are foreseeable,
all of these scenarios keep happening
and the resulting devastating
injuries are all preventable.
Ideally inadequate voluntary standard
would have been developed long ago
and would be substantially complied with.
And today's vote would not be necessary.
Clearly however the voluntary standards process
has failed and today's vote was necessary.
Through the years saw manufactures have
attempted to improve the blade guarding systems
through the consensus process available in
the ANSI Improved Standards Development.
These efforts made modular blade guards
common on the latest generation of table saws.
However despite these and other advances
CPSC staff as noted in the package
that it's most recent analysis showed no
discernable change in the number of injuries
or the level of risk associated with table
saws from the period of 2004 to 2015.
Clearly we can and must do better.
In the absence of an effective voluntary
standard, CPSC staff has produced an excellent
and thorough briefing package that
proposes a performance requirement based
on the maximum depth of the laceration
made to a surrogate finger moving
at a 1 meter per second rate
into a spinning table saw blade.
The proposal was about as broad a
performance standard as could be developed.
The method of stopping the blade
is not restricted in any way,
nor is a particular test method
required to show compliance.
Given the technological advancements
of the last decade it seems reasonable
to employ automatic injury mitigation systems
in table saws to prevent these foreseeable
and debilitating amputations and lacerations
that continue to cost so many so dearly.
As expected the cost of designing the saw
with such technology is not insignificant
but prices should decrease as more units
are ordered and technology advances.
And staff's analysis show that the potential
benefits far outweigh the coast associated
with table saw injuries.
There is just no valid reason why
we should not move as expeditiously
as possible toward innovative
solutions that could alleviate
and in most cases completely prevent
the pain and suffering endured by tens
of thousands of people each year.
As for the argument that the benefit cost
analysis is somehow incomplete or unreliable
because staff did not have
information allowing them
to hyper parse the injury data by type of saw.
I can only strenuously disagree with the
logic of those detractors, both about the need
for hat level of specificity and
how critical that analysis is.
Detractors of the NPR would dramatically
exaggerations taut grave data gaps
as a fatal flaw.
In reality the analysis before
us includes a thoughtful
and statistically accepted break even
analysis that overwhelmingly appoints
to incredible benefits to society.
This issue is not a red herring,
it is a school of crimson mackerel.
There is one final false issue
that needs to be addressed
and that is the intellectual
property concerns raised today.
Most new technological advancements are
accompanied by intellectual property issues.
But most of the patent and
anti-trust concerns being raised
in this discussion are at best a distraction.
They've little bearing on the issue
of safety and are largely outside
of the commission's jurisdiction.
As discussed about the NPR
proposes a performance requirement,
not a design specification.
A manufacturers method of stopping the blade
is not restricted in any way by this proposal,
nor is any particular test method
required to show compliance as I mentioned.
To the extent intellectual property issues
may affect the benefit cost analysis,
these issues are already raised
and addressed in the NPR.
It is at best baffling why anyone would
buy into the false notion that we need
to arbitrate patent issues
as part of our rule making.
Wrong agency and wrong stage of the process.
That might be an issue at some point
for the Federal Trade Commission.
In closing I'm very impressed with
and proud of the thoughtful proposal
that CPSC staff has put forward
and want to thank them once again
for their hard work and perseverance
on this issue.
I also want to commend Commissioner Adler
for his commitment to solving this problem.
My principle criticism for those who oppose
this rule is I have seen no plan B from you,
nothing at all to suggest any
alternative to rule making
that would genuinely address these hazards.
Defer to the market is not anything
close to an injury prevention strategy.
If it were congress would
not have felt compelled
to establish the Consumer Product
Safety Commission in the first placed.
If you have a genuine plan B let's hear it now.
There has been enough inaction, enough harm
done, enough pain suffered by the Josh Wards.
We owe it to them to see this through and
end these tragic life altering injuries.
And one final comment that I make that and it
is to offer a specific well deserved thank you.
Special assistance to commissioners often
work in the background without much fanfare
but they're work is critical to what we do
and often the public is not aware
of their specific contributions.
Today's vote is one of those times.
I want to thank Boaz Greene[phonetic]
for his perseverance
and commitment to finding a path forward.
Boaz, well done we would not have taken
today's action without your contributions,
thank you for that on behalf
of all those who will benefit.
Thank you Madam Chair.
>> Ann Marie Buerkle: Thank you
Commissioner Kaye, Commissioner Mohorovic?
>> Joe Mohorovic: Thank you Madam Chairman,
I'd like to address the elephant in the room.
I want to talk about crony capitalism.
Rent seeking, this is the cloud that has
overshadowed this rule making for well
over a decade and the question
remains is this an egregious example
of crony capitalism and rent seeking?
Someone manipulating government to provide
them a government imposed artificial
competitive advantage.
Crony capitalism often comes in the form of
now bid contracts, permits, grants, tax breaks
and yes compelling the use
of certain technology.
So quote the economist a formal economic
definition for rent seeking is when the owners
of an input of production be it land or labor,
machines, capital or IPR extract more profit
than they would get in the competitive market.
In cartels, monopolies and lobbying
are common ways to extract rents.
Rent seeking can involve corruption
but it's very often legal.
So the question is, is this an
example of legal rent seeking.
Here's the conspiracy theory.
Dr. Steven Gass inventor comes up with AIMs
technology that is unquestionably effective.
He fails to license that technology
at a major saw manufacturer
and instead enters the market with his own saws.
But not just an inventor, also a patent
attorney, Dr. Gass protects his IPR
with what has been presented to the
commission as dozens of patents.
And he successfully used those patents in court
and federal regulatory proceedings
to stave off competition.
Then Dr. Gass himself petitions
the government, the CPSC to mandate
that his technology be used
across all table saws.
And the government goes along
for the ride as we just did.
Recommending that the government
provide Dr. Gass
with a complete monopoly
over the table saw market.
Where he can either be the sole manufacturer
or he can hold up all other manufacturers
for whatever royalty payments he desires.
So those are the facts that lead people
to believe this may be an egregious case
of crony capitalism or pure rent seeing.
And those same folks believe that CPSC should
be embarrassed for allowing itself to be
so thoroughly manipulated
by a greedy monopolist.
But having thought about this a great
deal myself I personally don't buy it.
I don't think the motivation is corrupt
manipulation of government for financial gain,
yes Dr. Gass has millions to gain
if the CPSC grants him a monopoly.
I just think those supporting the
rule including Dr. Gass simply wish
to mitigate a hazard they see as
preventable through this technology.
And after 15 years I finally had the
opportunity to meet Dr. Gass personally.
He came across to me as intelligent,
sincere, forthright and honest.
And I fully believe that he believes in
his technology and I believe that he wants
to see its universal application
across all table saws
because of its potential to save fingers.
But as pure as the motives are of those
who support giving Dr. Gass a
monopoly I think it's a bad idea.
For many reasons, so many reasons that my
official clocks ended over 5,000 words.
I'm embarrassed it's 5,000
words but my esteemed colleague
and friend Commissioner Adler you'll find it
especially interesting to look at my application
of the piddle doctrine for what
constitute the seven prong test
for what constitutes a reasonable risk.
And I'm sure I'll get a comment
back to you and how I got it wrong.
>> Robert Adler: I very much look forward to it.
>> Joe Mohorovic: But let me highlight just
three reasons why I believe this rule is bad
public policy.
First there is no market failure.
People can buy a saw with
AIM technology if they want.
I know it really annoys regulators, and
consumer groups and of course Dr. Gass
who like to sell more of his saws.
That many consumers prefer
saws without AIM technology
but it is a fact that consumers have choice.
There is no market failure for the
government to step in and address.
And that word choice leads me to my
second point and this is my favorite quote
from CPSC case law, an important predicate
to consumer product safety commission actin
in promulgating a safety standard is that
consumers be unaware of either the frequency,
the severity or ways of avoiding the risk.
And if consumers had accurate
information and still choose
to incur the risk then their
judgement may well be reasonable.
So again as much as it might
annoy some consumers are aware
and their judgment is reasonable.
And finally we should not stick our fingers
in our ears and pretend not to hear.
The more than 1,000 American who
took the time to reach out to us
and tells us that this rule is unnecessary.
Of the 1,600 comments we received thus far in
the rule making process, fully 92% disapprove.
There's a maxim articulated by President
Obama's regulatory Czar, Cass Sunstein,
that I've tried to live by
throughout my time at the commission.
And it particularly comes to mind
today, those who have the privilege
of serving the American public
should listen closely
to those whom they have privilege
to serve, thank you.
>> Ann Marie Buerkle: Thank you to all of the
commissioners in their offices for all the work
that went into this package today and
thank you to staff for all of their work.
And with that this concludes the United
States Consumer Product Safety Commission
decisional hearing.