ASG Industries, Inc. v. Consumer Product Safety Commission
| Citation | 593 F.2d 1323 |
| Decision Date | 06 February 1979 |
| Docket Number | 77-1238,Nos. 77-1216,s. 77-1216 |
| Parties | ASG INDUSTRIES, INC. et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. FLAT GLASS ASSOCIATION OF JAPAN et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Kim D. Mann, Washington, D. C., for petitioners in No. 77-1238.
Benjamin P. Schoen, Atty., Dept. of Justice and Alan H. Schoem, Atty., Consumer Product Safety Commission, Washington, D. C., with whom Charles R. McConachie and Edward B. Craig, IV, Attys., Dept. of Justice, Washington, D. C., were on brief, for respondent.
Before BAZELON, LEVENTHAL and ROBB, Circuit Judges.
Opinion for the Court filed by LEVENTHAL, Circuit Judge.
In this case we consider a petition by manufacturers of wired glass to review the Safety Standard for Architectural Glazing Materials 1 promulgated by the Consumer Product Safety Commission ("CPSC" or the "Commission") pursuant to section 7 of the Consumer Product Safety Act ("CPSA" or the "Act"). 2 They assert jurisdictional and substantive challenges to the validity of the safety standard as applied to their product, but their petition does not claim any procedural infirmity in the safety rule, which was issued after extensive comment and consultation. 3
The safety standard prescribes impact-performance requirements that must be met by glazing materials 4 intended for use in any of the following architectural products: doors, including storm doors, combination doors, and patio-type sliding glass doors; bathtub or shower doors and enclosures; and glazed panels. 5 Section 1201.2 of the standard divides affected products into two categories. 6 "Category II products" are those that contain at least one piece of glazing material that exceeds 9 square feet in surface area, as well as all shower or bathtub enclosures and all patio-type sliding glass doors. The performance standard requires that glazing materials for use in Category II products, when subjected to an impact of 400 foot-pounds of kinetic energy delivered by a test apparatus described in the standard, must either not break, or break with one of several acceptable breakage characteristics. All other products subject to the standard are "Category I products," and need only survive impacts of 150 foot-pounds of kinetic energy. 7
Subsection 1201.1(c) provides special exemptions for various products. 8 One is temporary. It suspends until January 6, 1980, application of the standard to "(w)ired glass used in doors or other assemblies to retard the passage of fire, where such door or assembly is required by a federal, state, local or municipal fire ordinance." 9 Although one type of glazing material is often an acceptable substitute for another, 10 wired glass used in fire doors and other fire-retardant barriers seems to be an exception. Petitioners submit, apparently without contest, that wired glass is the only transparent construction material that neither shatters, ignites nor produces dangerous fumes when exposed to the extreme temperatures produced by a major fire. The visibility afforded by the material allegedly offers advantages to both firefighters and persons seeking escape from a fire. Thus it is preferred to opaque construction materials and commonly is required by statute for such uses. 11 The Commission conceded when the safety standard was issued that neither wired glass nor an acceptable substitute could then be produced that would both exhibit the fire-retardant characteristics required by fire codes and satisfy the safety standard; but the Commission expressed confidence that the necessary technology could be developed during the deferral period, I. e., between the 1977 issuance and January 6, 1980. 12 Petitioners object to the application of the standard to wired glass intended for any use, but assert a particular objection to the application of the standard to wired glass used in fire doors and other fire-retardant barriers.
The Commission's jurisdiction to promulgate consumer product safety standards, though comprehensive in certain respects, is circumscribed by the Act's complex definition of "consumer product." Petitioners argue that architectural glazing materials, and in particular wired glass, belong to a category of construction materials that are not encompassed by the definition, and thus fall outside the Commission's jurisdiction. 13
In CPSC v. Anaconda Co., 193 U.S.App.D.C. ----, 593 F.2d 1314 (1979), decided this day, we examined the scope of the term "consumer product." The statutory definition provides in part: 14
The term "consumer product" means any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; but such term does not include
(A) any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer.
A consumer product may be "any article, or component part thereof." The term "article" was intended to refer to a distinct article of commerce, as opposed to any physical entity that might exist at an intermediate stage of production. Anaconda, supra, at ---- - ----, 593 F.2d at 1314-1322. The reason for the phrase "or component part thereof" was to enable the Commission to regulate just a part of a consumer product if only such regulation were warranted. 15 Thus a product may qualify as a "consumer product" if it either is produced or distributed as a distinct article of commerce (and fulfills the other definitional requirements), or is produced or distributed as a component part of such a distinct article. Id. As we brought out in Anaconda, clauses (i) and (ii) of the definition were designed to ensure that the term "consumer product" would encompass the various modes of distribution through which consumers acquire products and are exposed to the risks of injury associated with those products not only direct sale transactions, covered by clause (i), but also any lease, promotional gift, or purchase by an institution, for consumer use, covered by clause (ii). Id. at ---- - ----, 593 F.2d at 1314-1322.
A consumer product must be used or intended for use "in or around a permanent or temporary household or residence, a school, in recreation, or otherwise." This enumeration of locations and activities in which a consumer product may be used is not a limitation on jurisdiction, but rather an assurance of comprehensiveness. 16 Other provisions of the definition exclude from the commission's jurisdiction certain uses of products that would otherwise qualify as consumer products. 17
The foremost limitation on the core definition of "consumer product" specifies a requirement that the product must be "customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer." As we discussed in Anaconda, a product must be "customarily" not just occasionally produced or distributed for the use of consumers. Jurisdiction does not require a showing that a majority of product-sales are to consumers, but there must be a significant marketing of the product as a distinct article of commerce for sale to consumers or for the use of consumers before the product may be considered as "customarily" produced or distributed in that manner. Id. at ---- - ----, 593 F.2d at 1314-1322.
The record before the court substantiates that the products covered by the safety standard are customarily marketed as distinct articles of commerce for sale to consumers or for the use of consumers in or around a household or residence, a school, in recreation, or otherwise. 18 Thus they qualify as "consumer products."
Petitioners argue that the Commission is deprived of authority over architectural glazing materials used in most non-residential buildings by the terms of CPSA § 31, which provides in part: 19
The Commission shall have no authority under this chapter to regulate any risk of injury associated with a consumer product if such risk could be eliminated or reduced to a sufficient extent by actions taken under the Occupational Safety and Health Act of 1970.
The Occupational Safety and Health Act ("OSHA") 20 assigns authority to the Secretary of Labor ("Secretary"), who has delegated administration to the Occupational Safety and Health Administration of the Department of Labor. The legislative history reveals that CPSA § 31 was not intended to preclude the exercise of jurisdiction by CPSC whenever a product-hazard either potentially could be or was in part being regulated under OSHA. Congress required CPSC to make a judgment. The Conference Committee Report outlined the pertinent considerations: 21
In determining whether a risk of injury can be reduced to a sufficient extent under (OSHA), it is anticipated that the Commission will consider all aspects of the risk, together with the remedial powers available to it under . . . the bill and the remedial powers under (OSHA) available to the agency administering the law.
We find that the Commission acted reasonably in determining that the risk of injury associated with architectural glazing materials could not be reduced "to a sufficient extent" under OSHA and thus required regulation under CPSA. Due to the nature of the problem associated with architectural glazing materials an inadequacy in the structural properties of the product a reduction in the...
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