O’KEEFFE’S, INC., Petitioner, v. U.S. CONSUMER PRODUCT SAFETY COMMISSION, Respondent

Opinion by Judge SCHROEDER; Dissent by Judge REED.

I. INTRODUCTION

This is a petition for review of a decision of the United States Consumer Product Safety Commission (“the Commission”), considering a request by the petitioner, O’Keeffe’s, Inc. (“O’Keeffe’s”). The Commission denied O’Keeffe’s petition to amend the Commission’s regulations setting impact standards for glass and other glazing materials used in doors, including storm doors, sliding glass doors, and shower and bathtub enclosures. O’Keeffe’s is engaged in the business of manufacturing glazing material that is subject to the impact standards. It petitioned the Commission: 1) to expand the regulations to cover new transparent ceramic materials, made by a competitor, not presently covered by the regulations; and 2) to eliminate the exemption for wired glass in fire doors.

II. BACKGROUND

The Safety Standard for Architectural Glazing Materials was adopted in 1977 “to reduce or eliminate unreasonable risks of death or serious injury to consumers when glazing material is broken by human contact.” 16 C.F.R. § 1201.1 (a). The impact standards in the regulations apply to all “glass, including annealed glass, organic coated…

dissenting:

The court is faced with something of a bureaucratic mess. In 1977 the Consumer Product Safety Commission, responding to a 1973 petition from an ad hoc group of industry, labor and consumer organizations, promulgated a set of safety standards for the architectural use of glass and other glazing materials. The CPSC regulations required architectural glass to meet certain tensile and thermal performance minima in order to protect consumers from injury resulting from impact with glass architectural elements. Because I believe that the Commission’s denial of O’Keeffe’s petition to amend the safety standards (1) to include ceramic glazing materials within the regulatory definition of “architectural glazing materials,” and (2) to remove an unintended permanent exemption for wired glass used in fire doors, was arbitrary and capricious, and because I believe that the Commission’s denial of O’Keeffe’s petition leaves unregulated several products which pose an unreasonable risk of serious injury to consumers, I respectfully dissent.

*946 I. The exemption for fire-door wired glass

Included in the materials covered by the 1977 safety standards was wired glass used in fire doors.…

92 F.3d 940 96 Cal. Daily Op. Serv. 6034 , 96 Daily Journal D.A.R. 9873 O'KEEFFE'S, INC., Petitioner, v. U.S. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. No. 94-70580. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1996. Submission Vacated Jan. 16, 1996. Resubmitted Feb. 9, 1996. Decided Aug. 13, 1996. Mark I. Schickman, Fox and Grove, Chartered, San Francisco, California; Kathy D. Steel, O'Keeffe's, Inc., San Francisco, California, for petitioner. David A. Levitt, Office of Consumer Litigation, United States Department of Justice, Washington, DC, for respondent. On Petition for Review of a Decision of the U.S. Consumer Product Safety Commission. Before SCHROEDER and TROTT, Circuit Judges, and REED, * District Judge. Opinion by Judge SCHROEDER; Dissent by Judge REED. SCHROEDER, Circuit Judge: I. INTRODUCTION 1 This is a petition for review of a decision of the United States Consumer Product Safety Commission ("the Commission"), considering a request by the petitioner, O'Keeffe's, Inc. ("O'Keeffe's"). The Commission denied O'Keeffe's petition to amend the Commission's regulations setting impact standards for glass and other glazing materials used in…