Full D.C. Circuit asked to hear challenge to infant bath seat rule

Signage is seen outside of the U.S. Consumer Product Safety Commission in Rockville, Maryland
Signage is seen outside of the U.S. Consumer Product Safety Commission in Rockville, Maryland. REUTERS/Andrew Kelly
  • Petitioner says challenge wrongly dismissed as time-barred
  • Case could have implications for opposing agencies' direct final rules

(Reuters) - A mother has asked the full D.C. Circuit U.S. Court of Appeals to revive her challenge to a recent Consumer Product Safety Commission standard for infant bath seats on the grounds that the standard was not made available to the public and that a panel wrongly dismissed her case as time-barred.

Petitioner Lisa Milice, represented by Jared McClain of the New Civil Liberties Alliance (NCLA), argued in a petition for en banc review this week that the panel's ruling would make it difficult for the public to challenge so-called "direct final rules" passed by agencies without notice and comment periods.

The CPSC did not immediately respond to a request for comment.

The dispute arose from Milice's petition challenging a CPSC rule on manufacturing standards for infant bath seats. The rule adopted standards developed by private standards-setting body ASTM International, which were not freely available to the public, by simply referring to them in the Federal Register.

Milice alleged that, when she asked the agency for the standards, it directed her to purchase a copy from ASTM for more than $50 or to travel to the agency's office in Bethesda, Maryland, where she could view, but not photocopy, the full text.

ASTM later made the standards public on its website, but not until after the rule took effect. Milice argued that the CPSC must take responsibility for ensuring rules' availability to the public.

The CPSC first announced the rule in September 2019. It was a direct final rule, meaning that, rather than the full notice and comment rulemaking process, the CPSC said the rule would become final in December 2019 unless it received a significant adverse comment within 30 days after the announcement.

The direct final rulemaking process is intended for uncontroversial rules for which the agency does not expect adverse comments.

The NCLA filed a comment within the 30-day window, but the CPSC did not respond to it until after the rule became final in December 2019.

A three-judge panel of the D.C. Circuit last month dismissed Milice's petition as time-barred without ruling on the merits. It found that Milice was required to challenge the rule in court within 60 days of its promulgation, which it said was the initial publication in September 2019.

"This wasteful order of operations substantially raises the costs of objecting to supposedly noncontroversial rules," Milice said in her en banc petition Monday. "Worse, it creates a perverse incentive for agencies: An agency can now just wait until the judicial-review period has passed before rejecting adverse comments, knowing that it will no longer be subject to a review petition."

Even if the 60-day period did begin with the initial publication, Milice said, it should have been tolled when the NCLA filed its adverse comment.

The case is Milice v. Consumer Product Safety Commission, D.C. Circuit U.S. Court of Appeals, No. 21-1071.

For Milice: Jared McClain of the New Civil Liberties Alliance

For CPSC: Courtney Dixon of the U.S. Department of Justice

For ASTM, as amicus: J. Kevin Fee of Morgan, Lewis & Bockius

Read more:

CPSC manufacturing rules must be free to the public, D.C. Circuit told

NOTE: This story has been corrected to reflect that the initial comment objecting to the rule was filed by the NCLA, not Milice.

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.