559 F.2d 774 (D.C. Cir. 1977), 75-1292, Forester v. Consumer Product Safety Commission of United States

Docket Nº:75-1292, 75-1298.
Citation:559 F.2d 774
Case Date:June 01, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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559 F.2d 774 (D.C. Cir. 1977)

John FORESTER, Petitioner,



SOUTHERN BICYCLE LEAGUE and James J. Berryhill, Petitioners,



Nos. 75-1292, 75-1298.

United States Court of Appeals, District of Columbia Circuit

June 1, 1977

Argued Oct. 22, 1976,

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John Forester, pro se.

Benjamin C. Abney, for petitioner in No. 75-1298.

James A. Calderwood, Atty. Dept. of Justice, Washington, D. C., with whom Michael A. Brown, Gen. Counsel, Consumer Product Safety Commission of the U.S. Charles R. McConachie, Acting Chief, Consumer Affairs Section, Dept. of Justice, and Alan C. Shakin, Atty., Consumer Product Safety Commission of the U.S. Washington, D. C., were on the brief, for respondent. Howard S. Epstein, Margaret A. Cotter, Arnold P. Lav, Attys., Dept. of Justice, and Winston M. Haythe, Atty., Consumer Product Safety Commission of the U.S. Washington, D. C., also entered appearances for respondent.

Before WRIGHT, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Petitioners seek review of regulations issued by the Consumer Product Safety Commission (CPSC) pursuant to the Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 1261-74 (1970 & Supp. V 1975). These regulations establish standards for the manufacture and labeling of most bicycles, and classify bicycles not complying with the standards as banned hazardous substances. 1

The challenged regulations have had a lengthy and convoluted gestation period. Study of the risk of injury presented by bicycles was commenced in 1971 by the Bureau of Product Safety (BPS) of the Food and Drug Administration (FDA), Department of Health, Education and Welfare (HEW). CPSC Brief at 6. BPS considered submissions from various bodies, including the American National Standards Institute and the International Standards Organization (ISO), CPSC App. 378-401, and the Bicycle Manufacturers Association of America (BMA), R. 21, CPSC App. 363-377. Contracts for tests concerning bicycle design and safety were let to the University of Iowa, CPSC App. 473-527, 538-64, and Cornell Aeronautical Laboratories, CPSC App. 528-37, 565-761, and BPS analyzed bicycle-related injury data available from its National Electronic Injury Surveillance System (NEISS), which collects data from selected hospitals. CPSC App. 265-362.

On May 10, 1973, FDA published proposed regulations classifying "all bicycles intended for use by children of less than 16 years of age, whether for recreational, utility, or any other purpose" as banned hazardous substances under § 2(f)(1)(D) of the Federal Hazardous Substances Act, 15 U.S.C. § 1261(f) (1)(D) (1970), except those complying with the requirements of the regulations. Comments on the proposed regulations were solicited. 38 Fed.Reg. 12300 (1973). On May 14, 1973, responsibility for the administration of the FHSA was transferred by the Consumer Product Safety Act (CPSA), Pub.L. 92-573, 86 Stat. 1207, § 30(a) (Oct. 27, 1972), 15 U.S.C. § 2079(a) (Supp. V 1975), from the Secretary of Health, Education and Welfare to the Consumer Product Safety Commission. The Commission assumed the responsibility for the proposed bicycle regulations, and analyzed some 267 comments upon the proposed regulations. CPSC App. 84-100.

The CPSC published "final" bicycle regulations on July 16, 1974. 39 Fed.Reg. 26100 (1974). This set of regulations applied to all bicycles, not only those "intended for use by children." An extensive discussion of comments received and Commission responses appears in 39 Fed.Reg. at 26100-05. The regulations were to become effective on January 1, 1975. After the receipt of 50 more comments on the regulations, including a number from manufacturers, the Commission announced that a public meeting would be held concerning the regulations on September 9, 1974. 39 Fed.Reg. 31943 (1974). Because many of the comments indicated that an effective date of January 1, 1975, would not allow sufficient

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time for product design, testing and retooling, and because it desired additional time to consider additional amendments, the Commission elected on December 16, 1974, to suspend the effective date for an indefinite period. 39 Fed.Reg. 4356 (1974).

Further amendments and comments were published in January, 1975, and comments again solicited from all interested parties. 40 Fed.Reg. 1480 (1975). Additional public meetings were conducted on the subject, 40 Fed.Reg. 2581 (1975). On June 16, 1975, the Commission published its reactions to requests for changes, together with extensive proposed changes to the regulations. 40 Fed.Reg. 25181 (1975).

Another set of final regulations was published on November 13, 1975, again detailing its reactions to public comments on the proposed regulations. 40 Fed.Reg. 52815, 52828 (1975). The effective date was established as May 11, 1976, except for several sections that were to become effective November 13, 1976. Following further minor amendments, 2 the regulations are now in effect in their entirety.

Shortly after the initial publication of these regulations, several manufacturers, groups, and individuals petitioned for review. The petitions were consolidated before this court on April 7, 1975. Since that time, as amendments have been made to the proposed regulations, all of the petitioners who are manufacturers or trade associations have voluntarily dismissed their petitions. 3

The remaining petitioners are John Forester, an individual who has written and taught on the subject of bicycle design and safety (pro se), the Southern Bicycle League (SBL), an organization of adult bicycling enthusiasts, and James J. Berryhill, an interested individual. 4 They attack the regulations on the grounds (1) that the CPSC lacks authority under the FHSA to issue regulations of the sort promulgated; (2) that the regulations were issued in violation of proper administrative procedures; and (3) that substantive provisions of the regulation are unsupportable.


Petitioners first argue that, for several reasons, the Commission was without jurisdiction under the Federal Hazardous Substances Act to promulgate the challenged regulations.

The FHSA prohibits "the introduction or delivery for introduction into interstate commerce" of "hazardous substance(s)," 15 U.S.C. § 1263 (1970), and provides for criminal penalties, 15 U.S.C. § 1264 (1970), and seizures of banned products, 15 U.S.C. § 1265 (1970). The Child Protection Act of 1966, Pub.L. No. 89-756, 80 Stat. 1303, § 3(a), 15 U.S.C. § 1261(q)(1)(A) amended the FHSA definition of "banned hazardous substance" to include

any toy or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted . . .

The Child Protection and Toy Safety Act of 1969, Pub.L. No. 91-113, 83 Stat. 187, § 2(a), 15 U.S.C. § 1261(f)(1)(D) (1970), added to the definition of "hazardous substance"

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(a)ny toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard.

The 1969 amendments also clarified the meaning of "mechanical hazard." 5

We do not understand the petitioners to question the authority of the Commission to promulgate regulations under these sections of the FHSA in proper circumstances. 6 Neither do the petitioners challenge the Commission's jurisdiction under the FHSA over bicycles "intended for use by children." 7 They do, however, argue that the Commission is without power under the FHSA to promulgate "design" regulations, that "adult" bicycles cannot be regulated under the FHSA, and that in any event bicycles intended for use by adolescents and adults are subject under the FHSA only to labeling requirements.

  1. Design versus Performance Requirements

    The SBL and Berryhill contend that the FHSA empowers the Commission only to ban hazardous substances outright, and does not permit the promulgation of "exhaustive regulations" dictating the characteristics that bicycles must possess. SBL Brief at 1-5. Petitioner Forester recognizes that the power to ban hazardous substances necessarily includes the power to define the characteristics being banned, but argues that the Commission is empowered to promulgate only "negative" or performance regulations that define hazards to be avoided through performance tests that leave design decisions to the discretion of manufacturers. The regulations issued by the Commission, he argues, contain impermissible "positive" or design requirements. 8 Neither petitioner cites statutory language, case law or legislative history on this issue, but both point generally to the "intent" of the Act.

    If the SBL is arguing that the Commission must ban all bicycles if it is to act at all, this petitioner is plainly in error. The power to define hazardous substances by regulation reasonably includes the power to make distinctions between products within a single product class. The 1969 Senate Report expressly recognizes this, and singles out bicycles as a specific example:

    There are numerous toys and other articles on the market which can cause personal injury because of their mechanical aspects but would probably not as a class be banned....

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