Maryland District Court Says CPSC's Noncompliance Notices Not Final Agency Action
The U.S. District Court for the District of Maryland dismissed a suit from fireworks importer Jake's Fireworks concerning the Consumer Product Safety Commission's determination that the company's "Excalibur" line of fireworks constitutes a banned hazardous substance under the Federal Hazardous Substances Act. Judge Theodore Chuang said the CPSC's notices of noncompliance do not amount to final agency action, depriving Jake's Fireworks of the right to challenge the notices as having violated the Administrative Procedure Act (Jake's Fireworks v. U.S. Consumer Product Safety Commission, D. Md. 2023)
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Jake's Fireworks received various notices of noncompliance from CPSC from 2014 to 2019, which said that the company's aerial shell fireworks violated the FHSA. The importer countered that its fireworks are not banned hazardous substances because they are not fireworks devices meant to make audible effects. The company also challenged the agency's testing of the fireworks.
Jake's Fireworks initially filed suit in 2019, which the district court dismissed for lack of jurisdiction. The judge in that instance said the notices lacked "independent authority to initiate enforcement action that could expose Jake's Fireworks to civil or criminal penalties without first obtaining the approval of the Commission's Office of the General Counsel."
The company returned to court, making the same claims. But while Chuang said the importer had standing to sue CPSC, the judge ultimately dismissed the case. "The facts that the Notices only request voluntary compliance, and that under the applicable statutory and regulatory regime, the Commission itself or OGC must act before any enforcement action may proceed, demonstrate that no final agency action has occurred," the opinion said.
Chuang ruled the CPSC, via its Office of Compliance and Field Operations, has requested only voluntary corrective action. "To make a determination imposing any obligation on Jake's Fireworks, such as civil penalties, the OCFO staff would have to refer the matter to the Commission itself or OGC for additional action," something OCFO staff has not done, the judge said. "Where there is 'only the possibility' that a party will 'hav[e] to defend itself at an enforcement hearing' if it 'does not undertake certain voluntary action,' there is no final agency action."