[00:00:00] Speaker 01:
And our first one today, we're hearing by video.

[00:00:05] Speaker 01:
And I'll call it and we'll proceed.

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Case is Magnet Safety.org versus Consumer Product Safety Commission.

[00:00:15] Speaker 01:
The case number is 22-9578.

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Council for Petitioner.

[00:00:25] Speaker 01:
Mr. Dolan, are you ready to proceed?

[00:00:28] Speaker 02:
Yes, Your Honor.

[00:00:29] Speaker 02:
Thank you very much.

[00:00:31] Speaker 02:
Good morning, and may it please the court.

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Let me begin by just expressing all counsel's appreciation for the court's accommodation to allow us to present this argument via Zoom on a super emergency basis.

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With that, let me just go straight to the argument.

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Eight years ago in Zen Magnus, this court vacated the predecessor rule, presently being challenged, because CPSC

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failed to conduct a proper cost benefit analysis.

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Specifically, the court held that CPSC failed to account for its own enforcement efforts and how those enforcement efforts affected the trend in magnet ingestions and that CPSC overcounted magnet injury, thus inflating their costs and undercounted their benefits.

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And going back to the drawn board and promulgating a new rule, the commission, although they tried to do better, ultimately committed the same fatal errors.

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It's cost benefit analysis suffers from five major flaws and I have to go through all of them.

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First.

[00:01:30] Speaker 01:
Uh, council, council, can I just, can I just interrupt for one second?

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Ask the clerk to turn down the volume just a little bit.

[00:01:37] Speaker 01:
Yes.

[00:01:40] Speaker 01:
Thank you.

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Thanks.

[00:01:43] Speaker 01:
Excuse me, Mr. Bowen.

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Go ahead.

[00:01:49] Speaker 02:
Oh, okay.

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Thank you.

[00:01:50] Speaker 02:
First, the Commission treats all magnet ingestions, and even suspected ones, as cost attributable to high-powered magnets.

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But that's just wrong.

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High-powered magnets are particularly dangerous, not merely because they're small.

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After all, there are lots of small things that kids play with.

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As the Commission and the Court itself recognize,

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The peculiar danger of these magnets is that when they're injected in multiples, they can get stuck to each other and potentially pinch tissues inside the body, causing necrosis or other problems.

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But when a single magnet, for example, is swallowed, the dangers are no different than if a child swallows a dime or a thumbtack or anything else.

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And yet the commission, despite recognizing that at least one-third of injections were of a single magnet, attributes all ingestion costs to the peculiar dangers posed by these small high-powered magnets.

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And so essentially... Well, Mr. Dolan, I have a question about that argument.

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Of course.

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the single magnet versus multiple magnets.

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So doesn't the record show that physicians need to monitor all magnet ingestion incidents in children, even if it turns out that the child swallowed just one magnet?

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Because the child could have swallowed more than one magnet.

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So if signal magnet ingestions contribute to the societal costs,

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of these products, why was it unreasonable for the agency to count them in the rules benefits?

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Thanks, Judge Matheson.

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It's actually a great question and leads me directly to my second point that I was going to make.

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And the reason it's unreasonable is not because physicians don't need to monitor.

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Of course they need to monitor.

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In fact, parents oftentimes take their children even a mere suspicion that they swallowed something, even if nothing was swallowed.

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But that has nothing to do with peculiar costs of these high-powered magnets.

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So these are merely societal costs of having small things around the house generally, like I said, thumb tags, dimes, pennies, et cetera.

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And since, of course, the commission is not going to ban all small things,

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So the mere fact that a physician need to monitor things that were ingested shows us nothing as to whether these high powered magnets are unreasonably dangerous.

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So in order to figure out whether these magnets are unreasonably dangerous, what a commission needed to have done is figure out what costs are associated with high powered magnets versus what are the benefits associated with high powered magnets and unbalance the two.

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This is Judge Federico.

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I also had a question about that.

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There was an amicus brief filed by the American Academy of Pediatrics.

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And they support the rule.

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And in their brief, it was a bunch of medical organizations.

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And they called the magnet ingestion, quote, a pediatric health crisis.

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And so I understand in your argument that the commission did not disaggregate data between small items and magnets.

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But I did not see in your reply that you addressed this argument about the organization of physicians calling this a health crisis.

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So I wanted to give you an opportunity to do that.

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Sure, and again, so these questions are, so they track my arguments, I very much appreciate them.

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One of the problems with CPSC's counting is that it failed to account for the fact that for reasons that I can't quite articulate, and I don't think commission can, I think more studies need it, it seems to be that since the prior rule was vacated, there has been an increase in number of small item ingestions period, magnets or other items.

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And so I don't necessarily dispute AAP's position that there is a crisis of magnet ingestions because there may well be a crisis of ingestions of generally small items.

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But again, the rule then doesn't address that problem, or at least it doesn't take those trends that everything goes up into account.

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And again, that's the very problem that this court identified last go-around saying that

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In order to come up with a rule, any rule, commission needs to take into account general societal trends.

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Last time it was the trend that the number of ingestions went down following stepped up enforcement efforts, the commission simply ignored.

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This time it's the trend that overall, for whatever reason, children seem to be shoving more things into their mouth.

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Maybe it's because there's more homeschooling, maybe it's because people stayed longer at home during COVID or whatever other reason.

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but that trend simply was not addressed in the commission's finding.

[00:06:46] Speaker 00:
Could you go back, counsel, sorry, Judge Moritz here.

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Could you go back to the single versus the multiple magnet ingestion?

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Can you address what data it is that you think the commission could have relied on here?

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Commission explained its limited data, the NEISS data, and that they did the best that they could with the data that they had.

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Are you suggesting there's something more that they could have done?

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Absolutely.

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I don't think they did the best that they could.

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I acknowledge that they did better than they last go around, but I don't think they did the best that they could.

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I think as mentioned in our brief and in commission's own record, they themselves recognize that at least one third of these magnets are single magnet ingestions, and yet proper discounting is not made.

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Second, I think as I was in my answer to Judge Matheson, I mentioned that it is not at all unreasonable for parents to take their small kids to ER or to urgent care center and have them image a mere suspicion they swallowed something, even if they haven't.

[00:08:02] Speaker 02:
And as the commission itself acknowledges, half of these ingestions, and this also goes to Judge Federica's question.

[00:08:08] Speaker 00:
Well, counsel, I'm sorry, I don't think you're focusing on my question, which is, I think we understand that point, but the problem that the commission has is the evidence that they have, the evidence that's available as to these emergency room visits,

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It's not that granular.

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It's much more general.

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And they can only get so much out of it, but they can't necessarily identify whether it's a single or double magnet issue, even if they wanted to, unless there happens to be that information.

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And so they explain, which they're required to do when they have limited data,

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you know, what they relied on and how they relied on it and why it's limited.

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What more are you suggesting that the commission could have done here?

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So that's my question.

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Judge Morris, if I can address it kind of in two ways.

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One, I think there is data that is somewhat more granular.

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After all, for example, when you do imaging studies, you can see what has been followed and that's how.

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Could you slow down just a little?

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Absolutely.

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I'm sorry.

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Could you slow down just a little?

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Absolutely.

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So I think that the data can be made more granular, because after all, the commission itself acknowledges that that's how they know that at least one third of these are single magnet ingestions.

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And the studies would show, the imaging studies would show what's inside the child.

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Number two, again, so the costs that commission takes into account, for example, the imaging costs are actually somewhat irrelevant, because whether it shows one magnet, zero magnets, or 10 magnets,

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or whether it was a magnet at all, the parents would take the child to the ER just to get imaging.

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And so the only costs attributable to the high-powered magnets as such are costs that involve dealing with ingestion of high-powered magnets specifically, as opposed to ingestions of dimes.

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So for example, if the commission limited its counting, for example, to cost of surgeries, to cost of endoscopies, things that actually are

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attributable to the dangers posed specifically by high-powered magnets, that would make sense.

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But they lump together these costs that have nothing to do with high-powered magnets qua high-powered magnets.

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So I think both the data is available to be somewhat more granular, and they could have done a better job.

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But even if it weren't, I think counting mirror imaging studies that

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would happen no matter whether the child followed or didn't follow anything, is just too much counting on the cost side.

[00:10:50] Speaker 00:
Does that, does that answer your question?

[00:10:52] Speaker 01:
Mr. Dolan, could, go ahead.

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Could I just approach a similar, maybe it's the same question, but in a slightly different way.

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The government argues that the figure for social cost here, 51.8 million,

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is a conservative number and that it arguably could have been as high as 219.7 million.

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Why isn't the 51.8 million number conservative?

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It's not conservative because the inputs are too broad.

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So in order to figure out whether something is conservative or more permissive, I think we need to desegregate relevant inputs.

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such as, for example, cost associated with surgery.

[00:11:45] Speaker 01:
Excuse me for interrupting, but didn't they exclude certain inputs?

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In other words, didn't they exclude ingestion incidents where magnets were mentioned but not confirmed?

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And didn't they exclude incidents where ingestion could not be confirmed?

[00:12:04] Speaker 01:
And didn't they exclude unidentified products in calculating that number?

[00:12:11] Speaker 02:
Sure, Your Honor, but that still doesn't get to the problem of magnets-quamagnets.

[00:12:18] Speaker 02:
So, sure, they desegregated costs that... I don't understand.

[00:12:22] Speaker 01:
What do you mean magnets-quamagnets?

[00:12:24] Speaker 01:
If they've excluded incidents where they couldn't confirm it's a magnet, then it seems to me that addresses your magnets-quamagnets.

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I don't think it does.

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I think if someone swallows a single magnet, for example, and that is confirmed on an X-ray or after the magnet passes through the child's enteric system.

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So it's now confirmed.

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But the cause associated with taking the child into the ER has nothing to do with the fact that there's a danger from the magnet itself.

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It's a danger of being a small object.

[00:13:00] Speaker 01:
Didn't the commission, counsel, didn't the commission calculate, when they calculated social costs, weigh serious ingestion incidents more heavily?

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And wouldn't that arise from ingestion of multiple magnets instead of single magnets?

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Because, as I understand it, the risk is much higher.

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and the incident much more serious if at the end of the visit, it turns out it was multiple magnets, and the commission's weighing that more heavily in its $51.8 million.

[00:13:35] Speaker 01:
Why isn't that reasonable?

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Is that arbitrary?

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It's reasonable, certainly, to weigh it more heavily.

[00:13:40] Speaker 02:
I think it's unreasonable to take into account costs that have nothing to do with magnets, especially high-power magnets as such.

[00:13:47] Speaker 02:
I see that I'm sort of into my rebuttal time.

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I'm happy, of course, to keep going.

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But if the court permits me, I would like to reserve the rest of the time for rebuttal.

[00:13:56] Speaker 01:
Thank you, counsel.

[00:13:58] Speaker 02:
Thank you, Judge.

[00:13:59] Speaker 05:
Thank you, Judge.

[00:14:02] Speaker 05:
Mr. Chad?

[00:14:03] Speaker 05:
Good morning, your honors, Adam Jed for the United States.

[00:14:07] Speaker 05:
And again, thank you very much for the courts and soldiers in allowing us to argue remotely, given the circumstances and may it please the court.

[00:14:15] Speaker 05:
It seems like a number of the questions this morning were focused on this issue of whether the commission's approach here

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somehow over counted the potential harms being inflicted by these products by relying on emergency room reports that do not necessarily distinguish between a single magnet ingestion or a multi magnet ingestion.

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And as I think a number of the questions got to the agency ultimately just had to make a number of methodological choices.

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Those methodological choices yielded a highly conservative estimate.

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And then with that highly conservative estimate in hands, the agency was well aware of potential noise in that data and then took that into account when it undertook a sensitivity analysis.

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So if I could just briefly explain each piece of this.

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First of all, I think that my friend is just misunderstanding the way that the commission

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created that initial, they called it at times, base case or sort of primary analysis, that initial estimate of harm.

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There's a specific known hazard that is unique to these products.

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We know that that known hazard would be less likely to crop up the data

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in the first place.

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If, for example, you just swallowed a single magnet, it may very well just pass through unnoticed.

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For example, child doesn't have a stomach ache, no reason to take the child to the doctor in the first place.

[00:15:35] Speaker 05:
But more to the point, contrary to what I think may be the premise of my friend's argument generally, and my friend's, I guess, newfound reliance in the reply brief on one study that was cited within the preamble.

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I think that's what he's pointing to for his one third data.

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This was not just a count

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Incidents it wasn't just how many times did a child need to be treated for a magnet ingestion rather it took account of the cost and so if you look probably the cleanest place you can find this is in the excerpts of record that we filed volume three pages five ninety one to five ninety two that's the preamble to the final rule as you can find this throughout the preamble but

[00:16:15] Speaker 05:
This is a chart that I think assembles all of the data pretty nicely.

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What you can see is the agency broke down the cost based on the place of treatment.

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If someone was just treated in a doctor's office, if someone was treated in an emergency room, or then two different categories where a child was admitted to the hospital, either admitted from an emergency room or admitted directly.

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And if you look at that data, what you can see is that of the $51.8 million estimated harm 41.7 of that was from hospital admissions.

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So, you know, look, is it theoretically possible that some

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extremely conservative doctor would decide to admit somebody to the hospital, even if they're showing no symptoms or even if there's not necessarily a cause for concern.

[00:17:03] Speaker 05:
You know, anything is possible.

[00:17:04] Speaker 05:
But as you look at the preamble, what they explain is what's mostly driving this data are incidents where there's a radiological study, they see magnets, they see multiple magnets, there are follow up radio radiological studies.

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endoscopies have to be done, CT scans have to be done, surgical procedures have to be done.

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That's what's driving the vast majority of these costs.

[00:17:24] Speaker 05:
And those sorts of incidents are, even if it might be theoretically possible, extremely unlikely to be driven by the sort of single magnet ingestions that I think my friend is relying on.

[00:17:35] Speaker 05:
And, I mean, in addition just to looking at the data, recall that obviously the prior rule does serve as a natural experiment.

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We do see this trend where the number of incidents dropped significantly when the prior rule was announced and in effect, and then surges on the prior rules.

[00:17:50] Speaker 01:
Mr. Jett, could I just jump in?

[00:17:53] Speaker 01:
Of course, Your Honor.

[00:17:55] Speaker 01:
Would you then say, based on everything that you just presented, that it is appropriate in calculating costs, social costs, to include ER incidents when it turns out it was just a single as opposed to multiple magnets?

[00:18:16] Speaker 01:
Well, Your Honor, look, obviously- Well, is that in the 51.8 or is it not?

[00:18:23] Speaker 05:
The 51.8 is just being drawn from those NEISS reports as the agency spells out very clearly.

[00:18:29] Speaker 05:
Those often lack kind of detailed specifics of the incident for the obvious.

[00:18:35] Speaker 01:
My specific question is whether single magnet ingestion costs of emergency room visits and treatments are included in the 51.8.

[00:18:48] Speaker 05:
They may well be.

[00:18:49] Speaker 05:
We don't definitively know because the 51.8 is being generated from those sort of brief emergency room notes where a doctor is, you know, obviously more focused on trying to save a child's life than, you know, kind of documenting every single thing that they're observing.

[00:19:04] Speaker 01:
Do we not know then whether this one third claim is even accurate?

[00:19:09] Speaker 05:
We do not.

[00:19:09] Speaker 05:
The one-third claim is being driven from, I believe it was a single study.

[00:19:13] Speaker 05:
Again, we're getting this for the first time in the reply brief, but it's being drawn from a single study that is referenced in the preamble.

[00:19:21] Speaker 05:
Now, I should point out, even if you did just do a kind of across-the-board one-third discount to the 51.8 million estimate, you would still land right around 35 million, which is the very, very upper bound of the estimated cost of this rule.

[00:19:35] Speaker 05:
But more to the point, it's not uniform.

[00:19:37] Speaker 05:
In other words,

[00:19:37] Speaker 05:
if that one-third of cases, even if one-third is the number, and we don't know if it's the number, but even if that is the number, that one-third of cases would tend to be, and almost certainly are, the least expensive of the incidents rather than the most expensive of the incidents.

[00:19:53] Speaker 05:
So it wouldn't just be some kind of a one-third discount.

[00:19:56] Speaker 05:
But more to the point, I think this is where the sensitivity analysis comes in, Your Honor, because again, the

[00:20:02] Speaker 05:
Agency did not okay.

[00:20:04] Speaker 01:
Okay.

[00:20:05] Speaker 01:
I'm gonna I'm gonna interrupt you again, of course.

[00:20:07] Speaker 01:
Sorry about that.

[00:20:08] Speaker 01:
But no, no, please use a question, please So you mentioned a couple of minutes ago pages?

[00:20:14] Speaker 01:
591 and 592 Yes in the appendix yes, okay It just so happened.

[00:20:23] Speaker 01:
I have them right in front of me and I had a question I had a question about those as well, but

[00:20:34] Speaker 01:
Good.

[00:20:35] Speaker 04:
No, no, I'm sorry.

[00:20:36] Speaker 04:
Please go ahead.

[00:20:38] Speaker 01:
Well, my question is this.

[00:20:41] Speaker 01:
On 591, if I'm reading it correctly, there's a discussion on the third column about unidentified products.

[00:20:52] Speaker 01:
And at one point, it said that the societal costs for unidentified product ingestion injuries could be as much as $167.9 million.

[00:21:03] Speaker 05:
That's correct.

[00:21:04] Speaker 01:
So far so good?

[00:21:05] Speaker 05:
Yes.

[00:21:07] Speaker 01:
Okay.

[00:21:07] Speaker 01:
So here's what I'm not understanding.

[00:21:09] Speaker 01:
If you go over to the next page and you look at table eight, which is the table that gets you to 51.8.

[00:21:18] Speaker 01:
Yes.

[00:21:19] Speaker 01:
The heading on it, the heading on it, if you read through it towards the end, says that it includes

[00:21:27] Speaker 01:
treatment for injuries for unidentified magnets.

[00:21:33] Speaker 01:
So I'm having some trouble reconciling the table with the narrative on the previous page and wondering if that was a mistake on the table, because am I right that unidentified products weren't factored in?

[00:21:50] Speaker 01:
to the benefits number?

[00:21:53] Speaker 05:
You are correct that they weren't factored into the benefits number.

[00:21:56] Speaker 05:
And if you look at the bottom right of that page 591, which you have in front of you, it says, I'm just quoting, because CPSC does not know precisely how many of these products would fall within the scope of the rule.

[00:22:09] Speaker 05:
CPSC conservatively has not included them in the primary benefits analysis summarized above.

[00:22:14] Speaker 05:
And that primary benefits analysis summarized above

[00:22:16] Speaker 05:
If you look at it, we'll then sort of match onto the table that your honor has pointed to.

[00:22:21] Speaker 05:
In candor, I had not previously noticed that.

[00:22:24] Speaker 05:
And so my assumption is that is just some mistake in that header.

[00:22:30] Speaker 05:
If the court were interested to know more, I could certainly follow up with the commission and send in a letter if that would be of any assistance.

[00:22:37] Speaker 01:
Well, it did.

[00:22:38] Speaker 01:
It did catch my eye.

[00:22:39] Speaker 01:
So that's why I'm asking you.

[00:22:41] Speaker 05:
Yeah, no, absolutely.

[00:22:43] Speaker 05:
And, you know, look, obviously, Your Honor, that 167.9 figure obviously couldn't be reflected in that table because the highest possible number on that table is 51.8.

[00:22:55] Speaker 05:
But what we do know is that 167.9 figure is just kind of one of the many ways in which the 51.8 estimate

[00:23:02] Speaker 05:
was incredibly conservative.

[00:23:04] Speaker 05:
I mean, the 51.8 estimate, first, if you look at 2-309, volume 2, page 309, it is only about incidents that clearly involve a magnet ingestion.

[00:23:16] Speaker 05:
So if there's a reference to a magnet, but it's not clear it was ingested, or there's a reference to an ingestion, but it's not clear what the object was, or even if you have both words, but it's not certain exactly that something got swallowed, doesn't get counted at all.

[00:23:29] Speaker 05:
Then, if you look at 3ER571 and 591, you get that unidentified product issue, that if they couldn't definitively identify, even within Magnet Ingestions, the category of product was at issue, then they just didn't count it at all.

[00:23:45] Speaker 05:
That's the 167.9 figure that your honor referenced.

[00:23:49] Speaker 05:
The agency also didn't count.

[00:23:50] Speaker 05:
It was approximately $2 to $4 million attributable to the death of children.

[00:23:54] Speaker 05:
So even that $51.8 million base case is just so much larger than the very highest conceivable end of cost, $35 million.

[00:24:05] Speaker 05:
That obviously fits into the agency's sensitivity analysis.

[00:24:08] Speaker 05:
But as the agency explained, the theoretical upper bounds of the benefits of this rule are so significantly higher.

[00:24:15] Speaker 05:
Even just adding that $167.9 figure, it gets you up to $209.7.

[00:24:18] Speaker 05:
And so just again,

[00:24:22] Speaker 05:
We fully concede that data is not perfect.

[00:24:25] Speaker 05:
That is the nature of regulation.

[00:24:27] Speaker 05:
You can't definitively know.

[00:24:28] Speaker 05:
You rely on the best data that you have, and then you create the best estimates that you can.

[00:24:33] Speaker 05:
And then the agency here did so using conservative steps across the board.

[00:24:37] Speaker 05:
Every conceivable tie basically went against regulation and then conducted a sensitivity analysis where even at the highest possible end of the cost of this rule, the benefits still exceeded the costs.

[00:24:50] Speaker 03:
Mr. Jed, this is Judge Federico.

[00:24:53] Speaker 03:
I just heard Mr. Dolan say a minute ago that the commission did better than it did last time before this court struck down the 2014 rule in zen magnets.

[00:25:02] Speaker 03:
I think I can glean from your brief how it is you would say you did better.

[00:25:06] Speaker 03:
Can you give me the wave tops on that and just tell me what the commission did differently, sort of the bullet points that should lead to this court denying or affirming the rule?

[00:25:16] Speaker 03:
Let's go around.

[00:25:17] Speaker 05:
Absolutely.

[00:25:18] Speaker 05:
So I think there were three concerns that this court raised in the prior Zen Magnets decision.

[00:25:24] Speaker 05:
This time around, the agency, I think, not only addressed them, but went kind of out of its way to belt in suspenders, triply address the concerns that this court raised.

[00:25:33] Speaker 05:
So first, this court flagged the concern that previously the agency, when it counted the potential benefits, were counting incidents that were attributable to unknown products.

[00:25:44] Speaker 05:
Here, what the agency did is first, as it made very clear, you know, again, it sort of spelled out in that sensitivity analysis that it was conservatively not including any of those unknown incidents.

[00:25:56] Speaker 05:
I should point out the agency did actually conduct analysis.

[00:26:00] Speaker 05:
which would lead to the conclusion that many, if not most, of the unknown incidents are attributable to the subject magnet products.

[00:26:08] Speaker 05:
I think even just with that analysis, consistent with Zen Magnets, the agency could have counted, maybe with some sort of a discount, those incidents, but again, conservatively the agency did not.

[00:26:18] Speaker 05:
Number two, the court in Zen Magnets raised the concern that the agency was relying on data that may have been somewhat stale and was not taking into account changes in the market.

[00:26:29] Speaker 05:
And so here, although obviously parts of the preamble go back to data from, I think it's 2010, for the purposes of creating these counts, the agency looked at 2017 to 2021, the most recent period,

[00:26:42] Speaker 05:
a period of time that post-dates vacater of the prior rule.

[00:26:45] Speaker 05:
And then the agency also conducted that trends analysis.

[00:26:48] Speaker 05:
Now that trends analysis we think is actually quite corroborative of the agency's other conclusions, but it does also make sure that the agency was not missing changes in the market, that it's not like the problem was somehow disappearing and the agency was just relying on stale data by mistake.

[00:27:04] Speaker 05:
And then finally, your honor, I think in Zen Magnets, the court expressed concern that potential use for math and science education and research was not necessarily being taken into account in the agency's analysis of the cost of the rule.

[00:27:19] Speaker 05:
And here the agency did so in two different ways.

[00:27:22] Speaker 05:
First, the rule itself carves out products that are sold solely to educators or researchers or sold commercially for educational or research use.

[00:27:30] Speaker 05:
You can find that at section 1262.2 of the rule.

[00:27:33] Speaker 05:
But second, the agency discussed the effects on education and innovation.

[00:27:38] Speaker 05:
Probably the best examples of just that discussion generally are going to be our excerpts of record, pages 585 and 589.

[00:27:45] Speaker 05:
And then the agency made very clear that when it was conducting its cost modeling, it was a sort of market-based modeling, that that modeling does then take into account any lost educational or innovative uses.

[00:27:58] Speaker 05:
And you can find that discussion at page 593 of the excerpts of record.

[00:28:03] Speaker 05:
unless the court has any other question.

[00:28:06] Speaker 00:
I have one quick question, counsel, just for clarification.

[00:28:10] Speaker 00:
One of the arguments that I don't think has been mentioned much here that

[00:28:15] Speaker 00:
that the appellants make is that the correlation evidence that you had is inaccurate.

[00:28:24] Speaker 00:
In particular, I think you studied the magnet ingestions while the rule was previously in effect and then after to show the correlation between the two.

[00:28:37] Speaker 00:
and how the ingestions increased when the rule was no longer in effect.

[00:28:41] Speaker 00:
My question is really, you made an interesting argument and said that I think that that correlation argument had been weighed.

[00:28:50] Speaker 00:
Is that right?

[00:28:52] Speaker 05:
We have a number of responses to that argument.

[00:28:54] Speaker 05:
One of them is they never present.

[00:28:56] Speaker 00:
I just want to get your response to see if that was waived or if we could address it as an obvious problem that's readily apparent from the data itself.

[00:29:09] Speaker 05:
I'm sorry, I see my time has expired, if I may answer the question that's on the table.

[00:29:14] Speaker 01:
Please, please do.

[00:29:16] Speaker 05:
Yes, so the petitioners did not present that argument to the agency.

[00:29:21] Speaker 05:
It is hardly an obvious argument.

[00:29:25] Speaker 05:
And indeed, the petitioners, I think, are actually relying on extra record evidence to advance that argument, even though the judicial review provision says that review of this rule is based on the evidence that is in the record.

[00:29:38] Speaker 05:
As we do spell out in our brief, and because we're short on time, of course, I'm happy to spell this out in more length.

[00:29:44] Speaker 05:
But if you look at pages 32 to 36 in our brief, we do explain why it is that they just also misunderstood those trends.

[00:29:52] Speaker 05:
They seem to be looking at some trends that they say began in 2018.

[00:29:56] Speaker 05:
And so what their misunderstanding is both that the incident numbers dropped

[00:30:01] Speaker 05:
when the prior rules announced in effect that the surge began in 2017 before the trends that they point to.

[00:30:07] Speaker 05:
And actually, as we point out on page 35 of our brief, if you look at the data that, again, they've generated and they're presenting for the first time.

[00:30:14] Speaker 00:
Yeah, Council, I saw your arguments on that point.

[00:30:18] Speaker 00:
I just really wanted clarification on whether you thought that this was obvious from the data itself.

[00:30:23] Speaker 05:
Um, understood.

[00:30:24] Speaker 05:
And, um, no, no, we do not think that it was obvious from the data.

[00:30:27] Speaker 05:
I mean, you know, obviously the trends did not form a primary part of the agency's analysis.

[00:30:32] Speaker 05:
It was just corroborative and what they're suggesting about transgender.

[00:30:35] Speaker 05:
Thank you, your honor.

[00:30:37] Speaker 00:
Thank you.

[00:30:38] Speaker 01:
Thank you.

[00:30:39] Speaker 01:
Thank you, Mr. Jed.

[00:30:41] Speaker 01:
Uh, we have some rebuttal time.

[00:30:44] Speaker 02:
Thank you, your honor.

[00:30:46] Speaker 02:
Let me just pick up, if I may, where my learned co-counsel and opposing counsel and Judge Morris left off.

[00:30:57] Speaker 02:
We disagree, of course, that this argument was waived and we do think it was apparent from the data.

[00:31:02] Speaker 02:
After all, these trends are not a separate study that magnet safety itself or any of our other clients have conducted.

[00:31:13] Speaker 02:
We just extracted this data straight from NEI assess report itself, the very report on which the commission relied in terms of the number of ingestions of other small objects versus magnets, et cetera.

[00:31:28] Speaker 00:
Well, but your argument that there's some logical fallacy within the comparison or the correlation, that is the, to me, the argument that may not be obvious from the data itself, as explained by the commission.

[00:31:45] Speaker 02:
Well, Your Honor, I think the logical fallacy is that it's always a logical fallacy merely to assert that, you know, post-Hock, Eric Proctor-Hock, and the commission simply says,

[00:31:55] Speaker 02:
Well, during the 2014 to 2016 years when the rule was in effect, the number of ingestions was lower, and now it's higher.

[00:32:03] Speaker 02:
And that very well may be, but the question is always as compared to what.

[00:32:09] Speaker 02:
And if you compare it to the rest of the ingestion, that just simply tracks throughout.

[00:32:14] Speaker 02:
And the last point that I want to make, if I may, is in terms of counting the benefits of having these magnets out or the cost of the rule.

[00:32:24] Speaker 02:
As we explained in our brief, one of the issues is that the commission, although they did make some exceptions for sales of these items to educational institutions, they did under count the benefits, such as by ignoring the fact that lots of education happens at home, either to homework or homeschooling, and the benefits that kids may have in school, but have an exodus madness.

[00:32:47] Speaker 02:
Kids who are, for example, doing their homework at home or homeschools are being denied them.

[00:32:51] Speaker 02:
And that at least should have been taken into account.

[00:32:55] Speaker 02:
With that, unless there's any further questions, we're happy to submit on the rest of the briefs.

[00:33:04] Speaker 01:
Thank you, Council.

[00:33:04] Speaker 01:
Thanks to both of you for the arguments.

[00:33:08] Speaker 01:
I'm pleased we were able to do this today via video.

[00:33:13] Speaker 01:
And at least from where we sit, it seemed like it worked pretty well.

[00:33:18] Speaker 01:
So thank you.

[00:33:19] Speaker 01:
to both of you for the arguments.

[00:33:21] Speaker 01:
The case will be submitted and counsel are excused.