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Monday September 18, 2023

Court Vacates CPSC Rule on Custom Window Coverings over Process

Cost-benefit procedure was faulted September 12 by a three-judge panel to vacate CPSC's rule on custom window coverings. The judges from the Washington, D.C. U.S. appeals court also faulted ( the effective date but did agree that the agency nonetheless properly analyzed a 2018 voluntary standard in justifying the rule. That standard, WCMA A100.1, was updated in 2022 with June 2024 effective date. CPSC could address the court's concerns and create another rule to replace this remanded one.


The cost-benefit decision involved whether CPSC failed to fully reveal elements of incident data used in its analysis. The agency had argued that it was protecting privacy as well as manufacturers' information, but the judges agreed with WCMA – which filed the suit in 2022 (PSL, 12/12/22) – that the agency violated the Administrative Procedures Act in not disclosing incident reports and then in how it redacted them in fulfilling a WCMA FoIA request.


The 180-day effective date was arbitrary and capricious, the judge wrote, asserting that CPSC relied on the input of a single manufacturer who said it was reasonable versus "contrary feedback that it received from 401 other commenters, the Small Business [Administration], and its own staff."


The court disagreed with other WCMA process arguments and avoided ruling on constitutional questions about removing commissioners as unnecessary to vacate the rule.


The rule had been stayed since earlier this year (PSL, 1/16/23). A second rule – on stock designs – is unaffected. It applies WCMA 100.1 to such products. The two-rule tack was triggered by WCMA's 2018 stock-vs-custom approach.