STATEMENT OF COMMISSIONER ELLIOT F. KAYE ON THE SAFETY STANDARD FOR MAGNET SETS[1]

The Commission met today because the United States Court of Appeals for the 10th Circuit vacated our magnet set safety standard,[2] and we were obligated to remove it from the Code of Federal Regulations.  The Commission, of course, must respect the court’s decision.  An independent judiciary is necessary for a healthy democracy.

However, I note the circuit court’s ruling was narrow.  The court simply determined that it did not have enough information to ascertain whether two of the Commission’s findings were supported and remanded the matter back to the Commission “for further proceedings consistent with [its] opinion.”[3]  Doctors who treat children have recently publicly noted their concerns with the results from the 10th Circuit decision.[4]  It is incumbent upon us as public safety officials to at least attempt to address the court’s concerns without delay. 

The motion that I introduced today, which the Commission adopted by a 3-2 vote, provides direction to staff to prepare and send to the Commission as soon as possible a draft Notice of Proposed Rulemaking (NPR) for Commission consideration addressing the narrow holding in the 10th Circuit decision.  I am pleased that Commissioners Adler and Robinson supported my motion and that we were able to give staff that direction.  I thank Commissioners Adler and Robinson for their support and the CPSC staff for their continued safety efforts, and look forward to receiving a draft NPR for Commission consideration.

[1] This statement and my comments today during the Commission’s meeting were with respect to the Commission’s rulemaking efforts only and not with respect to any specific product, matter or other proceeding.

[2] Zen Magnets, LLC v. CPSC, No. 14-9610 (10th Cir. filed Nov. 22, 2016).

[3] Id. at 24.

[4] See, e.g., http://www.naspghan.org/files/documents/pdfs/advocacy/2016/Magnet%20Letter%20to%20DOJ%20final%2012%2021%2016.pdf