March 1, 2017

I agree that it was appropriate for us to remove the magnet standard from the Code of Federal Regulations, in response to the order of the U.S. Court of Appeals.  I appreciate the staff’s initiative in putting that package together for us. 

Although I was a member of the Commission when the vote on the standard for magnet sets took place, I did not participate in the decision that was vacated by the Court of Appeals.  At the time, I believed it would be inappropriate for the Commission to promulgate a standard on magnet sets while an adjudication involving the same magnet sets was pending.  My views on that issue have not changed; however, I see no reason why withdrawing the magnet standard as directed by the Court would be prejudicial to anyone.  Therefore, I joined in the unanimous vote on removal.

I did not support Commissioner Kaye’s motion directing staff to prepare a notice of proposed rulemaking to replace the standard we just removed.  This is not the right time to move ahead with any replacement.

First, circumstances have changed since the standard for magnet sets was originally promulgated in 2014.  In fact, a major reason for the Tenth Circuit Court’s decision to vacate the magnet standard was the concern that circumstances had changed even before the original standard was promulgated.  It seems to me that before we charge ahead again, we should be asking the staff to pull together the updated information that would help inform the decision whether it still makes sense to propose a standard. 

Second, the decision to re-propose a standard should not be made in a vacuum.  Instead, it should be considered in light of all the other projects and possibilities we have to consider.  Rather than make a peremptory decision, we should be asking how the magnet risk now and in the future is likely to compare with other risks we consider.  Work on this issue will take people away from other projects.  It seems to me that the appropriate way to address those tradeoffs and priorities would be through an operating plan or midyear adjustment.  That is the vehicle the Commission generally uses to prioritize the staff’s work.  I have seen nothing to suggest that this matter deserves extraordinary treatment.

Third, in the adjudication I mentioned earlier, the Administrative Law Judge rejected the staff’s request to order a recall of Zen Magnets.  As I anticipated, that decision was appealed to the Commission and is currently before us.  Under these circumstances, I believe that re-proposing the magnet standard may create another round of problems for the Commissioners in the adjudicative matter. 

Fourth, the direction to the staff was imprecise not to say confusing.  The motion asks the staff to prepare a draft Notice of Proposed Rulemaking “addressing the holding in the 10th Circuit opinion . . ..”  I asked Commissioner Kaye to describe what he believed the holding to be, but he declined.  Commissioner Adler even urged the staff to consult the dissenting opinion—a portion of the case that is rarely deemed a part of the holding.   

Finally, I believe this Court decision is a timely reminder as to why it is important to be thoughtful and data driven in our rulemaking. As we look ahead, we know already that the budget environment is likely to be challenging for our agency as well as others.  We need to approach regulation and utilize our resources more efficiently than ever.  We should not be in a hurry to decide that replacing the magnet rule, or rushing into any new work, is the best use of our staff’s resources.