Buerkle Sees Conflict in Magnets Rulemaking with Suit Pending

Commissioner Ann Marie Buerkle did not participate in the September 10 briefing on CPSC’s potential regulation on small, strong magnets. In a message read by Chairman Elliot Kaye at the start of the session (see related story in this issue), she said she thought doing so would be inappropriate given CPSC’s pending administrative lawsuit against Zen Magnets seeking to force a recall. She cited the commission’s potential role in reviewing that decision. Under 16 CFR 1025, an independent administrative law judge oversees such suits, but the commission itself handles reviews and appeals.

Commissioner Robert Adler said he saw no conflict because the situations – though addressing the same product – involve different sections of the law and different issues. One targets removing existing products from the market under CPSA Section 15 while the other targets stopping future sales of new units under Sections 7 and 9. He suggested Congress saw the actions as separate when writing the law because it barred CPSC from applying new rules to existing units, instead giving it the Section 15 route for those.

Adler acknowledged Buerkle’s concerns, saying the commission’s potential role in an appeal is a matter that always has “perplexed” him. However, he asserted, the situation is consistent with both CPSC statutes and general government practice at other agencies, and it has withstood judicial scrutiny. He said that he tries to address his concerns by attempting to erect a “mental firewall” by refraining from reading case documents or news accounts.

He stressed that his comments were aimed only at the general problem raised by Buerkle because he could not address the particular situation, not possessing the judge’s future ruling.

Commissioner Marietta Robinson agreed with his assessment and added that she also was concerned about Buerkle setting a precedent by which industry might stall rulemaking via lawsuit.

Kaye and Commissioner Joseph Mohorovic did not comment.