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JERRI'S CERAMIC ARTS, INC. v. CONSUMER PRODUCT SAFETY COMMISSION

No. 88-2138.

874 F.2d 205 (1989)

JERRI'S CERAMIC ARTS, INC., Petitioner, Toy Manufacturers of America, Inc. (TMA), Juvenile Products Manufacturers Association, Inc. (JPMA); Childrens wear Manufacturers Association, Inc. (CMA); Russ Berrie & Company, Inc. (Russ), Intervenors, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.

United States Court of Appeals, Fourth Circuit.

Decided May 9, 1989.

Attorney(s) appearing for the Case

Aaron Locker (Theodore M. Greenberg, Frederick B. Locker, Jeffrey M. Locker, Locker, Greenberg & Brainin, P.C., New York City, on brief), for petitioner.

David Alan Levitt (John R. Fleder, Director, Office of Consumer Litigation, U.S. Dept. of Justice: John R. Bolton, Asst. Atty. Gen., James V. Lacy, Gen. Counsel; Alan C. Shakin, Asst. Gen. Counsel, Consumer Products Safety Div., Washington, D.C., on brief), for respondent.

(Jon Stubenvoll, Consumer Advocate, on brief), for amicus curiae Oregon State Public Interest Research Group.

Before CHAPMAN and WILKINS, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

CHAPMAN, Circuit Judge:

This case requires a determination of whether a "Statement of Interpretation" issued by the Consumer Product Safety Commission is in fact an interpretation of an existing regulation, or is properly considered a legislative or substantive rule subject to notice and comment procedures. The "interpretation" at issue was published in May 1988, and effects a change in the Commission's enforcement policy of the "Small Parts Rule," 16 C.F.R. 1501...

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