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Dow Chem., USA v. Consumer Prod. Safety Comm'n

Citation: 9 ELR 20307
No. No. 78-1166, 464 F. Supp. 904/(W.D. La., 02/13/1979) Motion to reconsider denied

The court denies a motion by the Consumer Product Safety Commission (CPSC) to reconsider and vacate a preliminary injunction, 9 ELR 20016, against implementation of a rule relating to the classification, evaluation, and regulation of carcinogenic substances in consumer products. The CPSC motion to reconsider under FED. R. CIV. P. 60(b) is improper since no final order is involved. The court has jurisdiction to hear the motion under FED. R. CIV. P. 62(c), however, despite the fact that defendant has not sought leave to proceed in the district court from the Fifth Circuit, in which an appeal of the injunction is pending. The agency's clarification of the rule in question and reopening of comment procedures does not purport to amend or modify specific terms of the rule and does not bring it into compliance with the notice and comment requirements of the Administrative Procedure Act (APA), which is necessary to justify dissolution of the injunction. The CPSC clarification, which apparently is a post hoc explanation of agency intent in promulgating the rule, is used simply to buttress the agency's earlier argument that the rule is a policy statement rather than a rule. The agency has, however, ignored the majority of criteria on which the court based its earlier decision that the CPSC regulation was subject to the APA notice and comment requirements. The fact that the CPSC classifications and classification criteria may be challenged in a subsequent hearing does not validate the agency position, since any attempt by an agency to regulate by rule making must conform fully to the APA requirements.

Counsel for Plaintiffs
Theodore L. Garrett, Corrine A. Goldstein
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Gene W. Lafitte, John M. Wilson, J. Berry St. John, Jr.
Liskow & Lewis
One Shell Square, 50th Floor, New Orleans LA 70601
(504) 581-7979

George H. Robinson, Jr.
Liskow & Lewis
321 Travis Street, P.O. Box 52008 O.C.S., Lafayette LA 70505
(318) 232-7424

Oliver P. Stockwell
Stockwell, Sievert, Vicellio, Clements & Shaddock
One Lakeside Plaza, P.O. Box 2900, Lake Charles LA 70601
(318) 436-9491

Counsel for Defendant
Charles R. McConachie, Chief
Consumer Affairs Section, Antitrust Division
Department of Justice, Washington DC 20530
(202) 724-6786

J. Ransdall Keene, U.S. Attorney; Francis O. Allen, Ass't U.S. Attorney
P.O. Box 33, Shreveport LA 71161
(318) 226-5277

Margaret A. Freeston, Acting General Counsel; D. Stephen Lemberg, Ass't General Counsel; David Melnick
Consumer Product Safety Commission, Washington DC 20207
(202) 634-7770