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C.P. Chemical Company appeals from a judgment of the United States District Court for the Southern District of New York (Brieant, J.) dismissing its complaint against the United States and the Consumer Product Safety Commission ("Commission" or "agency") under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA"), and the Consumer Product Safety Act, 15 U.S.C. § 2053(h) ("CPSA"), for lack of subject matter jurisdiction and failure to state a claim. The suit arose from the Commission's ban on the use of formaldehyde-emitting foam insulation, 47 Fed.Reg. 57,488 (1982). The Fifth Circuit ruled, in Gulf South Insulation v. U.S. Consumer Product Safety Commission, 701 F.2d 1137, 1148-50 (5th Cir.1983), that the ban was improper because it was promulgated under the procedures of the CPSA, 15 U.S.C. §§ 2057, 2058, 2079(d), rather than under the appropriate procedures of the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1276. C.P. Chemical alleged that the Commission erroneously included within the ban its insulation product, Tripolymer, which emits no formaldehyde gas. The district court held that the FTCA waiver of sovereign immunity does not extend to the agency conduct forming the basis for this tort action against the United States and the Commission. The court also held that the CPSA provides no predicate for this action. For the reasons stated below, we affirm.


810 F.2d 34 (1987)

C.P. CHEMICAL COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES of America and U.S. Consumer Product Safety Commission, Defendants-Appellees.

No. 313, Docket 86-6132

United States Court of Appeals, Second Circuit.

Argued October 31, 1986.

Decided January 26, 1987

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