Southland Mower Co. v. Consumer Product Safety Commission

• Decision Date: 19 June 1980
• Docket Number: Nos. 79-1469,79-3193,s. 79-1469
• Citation: 619 F.2d 499
• Parties: SOUTHLAND MOWER COMPANY et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. John O. HAYWARD, Petitioner, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 499

619 F.2d 499

SOUTHLAND MOWER COMPANY et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.

John O. HAYWARD, Petitioner, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.

Nos. 79-1469, 79-3193.

United States Court of Appeals, Fifth Circuit.

June 19, 1980.

Dunaway, McCarthy & Dye, Mac S. Dunaway, George D. Billock, Jr., Washington, D. C., for petitioners.

John O. Hayward, pro se, amicus curiae.

Andrew S. Krulwich, Gen. Counsel, D. Stephan Lemberg, Asst. Gen. Counsel, Harleigh P. Ewell, Alan R. Schwartz, Consumer Product Safety Commission, Robert B. Nicholson, Peter L. de la Cruz, Dept. of Justice, Washington, D. C., for respondent.

Roger K. Davis, Washington, D. C., for intervenor, Consumers Union of U. S., Inc.

Petitions for Review of an Order of the Consumer Product Safety Commission.

Before JONES, GEE and REAVLEY, Circuit Judges.

GEE, Circuit Judge:

Approximately 77,000 people are injured each year in the United States by contacting the blades of walk-behind power mowers. ¹ Of these injuries, an estimated 9,900 involve the amputation of at least one finger or toe, 11,400 involve fractures, 2,400 involve avulsions (the tearing of flesh or a body part), 2,300 involve contusions, and 51,400 involve lacerations. The annual economic cost inflicted by the 77,000 yearly blade-contact injuries has been estimated to be about $253 million. This figure does not include monetary compensation for pain and suffering or for the lost use of amputated fingers and toes. ²

To reduce these blade-contact injuries, the Consumer Product Safety Commission ("CPSC" or "the Commission") promulgated ³ a Safety Standard for Walk-Behind Power Lawn Mowers, 16 C.F.R. Part 1205 (1979), 44 Fed. Reg. 9990-10031 (Feb. 15, 1979), pursuant to section 7 of the Consumer Product Safety Act ("CPSA" or "the Act"), 15 U.S.C. § 2056 (1976). ⁴ In the present case we consider petitions by the Outdoor Power Equipment Institute ("OPEI"), manufacturers of power lawn mowers, ⁵ and an interested consumer to review ⁶ the Safety Standard for Walk-Behind Power Lawn Mowers.

The standard consists of three principal provisions: a requirement that rotary walk-behind power mowers pass a foot-probe test, 16 C.F.R. § 1205.4, 44 Fed. Reg. 10025-26, a requirement that rotary machines have a blade-control system that will stop the mower blade within three seconds after the operator's hands leave their normal operating position, 16 C.F.R. § 1205.5(a), 44 Fed. Reg. 10029, and a requirement, applicable to both rotary and reel-type mowers, that the product have a label of specified design to warn of the danger of blade contact, 16 C.F.R. § 1205.6, 44 Fed. Reg. 10029-30. The standards also contain additional directives that are intended to increase the effectiveness of the primary regulations. Thus, because the foot-probe provision can be satisfied by shielding the blade area, the standard mandates tests to assure that shields have a certain minimum strength, 16 C.F.R. § 1205.4(a)(2), 44 Fed. Reg. 10026-28, and that a shielded mower can traverse obstructions. 16 C.F.R. § 1205.4(a)(3), 44 Fed. Reg. 10028-29. The standard also stipulates that shields that move to permit attachment of auxiliary equipment must either automatically return to their normal position when the supplemental equipment is not attached or prevent blade operation unless the shield is manually returned to its normal position when the added equipment is not used. 16 C.F.R. § 1205.4(c). Similarly, the three-second blade-stop requirement is supported by ancillary instructions that mowers employing engine cutoff to halt the blade have power restart mechanisms, 16 C.F.R. § 1205.5(a)(iv), and that all mowers have a control that must be activated before the blade can resume operation in order to prevent the blade from accidentally restarting. 16 C.F.R. § 1205.5(a)(2).

OPEI challenges the legality of the standard by contending that it includes nonconsumer products within its scope of regulation, as well as unique consumer products not proven to present the same hazards as typical consumer lawn mowers. OPEI also argues that substantial evidence on the record as a whole ⁷ does not support the Commission's determination that the foot-probe and shielding requirements "are reasonably necessary to reduce or eliminate an unreasonable risk of injury" ⁸ associated with walk-behind power lawn mowers. In addition, OPEI attacks the blade-stop requirement on the grounds that it is a design restriction rather than a performance requirement, imposes criteria that can only be satisfied by technology that is currently unsafe and unreliable, and mandates a three-second blade-stopping time that is not justified by substantial record evidence. OPEI further asserts that the labeling requirement is invalid because its issuance is not authorized by section 27(e) of the Act, 15 U.S.C. § 2076(e), and it lacks the substantial evidentiary support necessary for it to be promulgated under section 7(a)(2) of the Act, 15 U.S.C. § 2056(a)(2). Finally, OPEI urges that the standard's effective date is unfeasibly early and that, in any event, substantial record evidence fails to establish that the benefits of the standard bear a reasonable relationship to its costs and demonstrate that the rule is reasonably necessary and in the public interest. Consumer advocate Hayward, on the other hand, claims that the blade-stopping time chosen by the Commission is too slow and that the effective date imposes unnecessary delay. We shall examine each of these objections to the standard in the following discussion.

Scope of the Standard

The CPSC may regulate only "consumer products." 15 U.S.C. §§ 2052(a)(1), 2058(a)(1). ⁹ See ASG Industries, Inc. v. Consumer Product Safety Commission, 593 F.2d 1323, 1327 (D.C.Cir.1979); Consumer Product Safety Commission v. Anaconda Co., 593 F.2d 1314, 1317 (D.C.Cir.1979); Kaiser Aluminum & Chemical Corp. v. Consumer Product Safety Commission, 574 F.2d 178, 179-81 (3d Cir.), cert. denied, 439 U.S. 881, 99 S.Ct. 218, 58 L.Ed.2d 193 (1978). As defined by the Act, a consumer product is an article, or component 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 . . . not . . . (A) any article which is not customarily produced or distributed for sale to, for use or consumption by, or enjoyment of, a consumer . . . .

15 U.S.C. § 2052(a)(1).

OPEI asserts that the Commission exceeded its statutory authority by attempting to regulate lawn mowers that are not consumer products and by failing to exclude "unique" products, such as high-wheel and three- or five-wheel mowers, that differ significantly from the typical mower used by consumers and that allegedly were not shown by substantial evidence to need regulation in order to eliminate or reduce an unreasonable risk of harm. We find, however, that the safety regulation's coverage is not impermissibly broad. The standard expressly states that: "Except as provided in paragraph (c) of this section, all walk-behind rotary and reel-type power lawn mowers manufactured or imported on or after the effective date of the standard are subject to the requirements of this standard if they are 'consumer products' . . . . (as defined in section 3(a)(1) of the CPSA, 15 U.S.C. § 2052(a) (1))." 16 C.F.R. § 1205.1(b)(1) (emphasis added). Thus, if a lawn mower is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer, it is ab initio not covered by the standard.

In addition, the standard excludes ¹⁰ from regulation mowers that are 30 or more inches wide, weigh 200 or more pounds, and, if engine powered rather than electric, have an engine with eight or more horsepower. 16 C.F.R. § 1205.1(c)(1). Even if the marketing and usage patterns of these larger machines do not automatically place them outside the standard's coverage of consumer products, they are nevertheless excused from its requirements in recognition of the greater burden that compliance would impose on manufacturers of these units and of their less frequent use by consumers. ¹¹ The standard's statement of scope establishes that, in prescribing lawn mower safety measures, the CPSC acted within its authority and sought to regulate only consumer products.

OPEI's claim that substantial record evidence does not justify application of the standard to "uniquely" designed consumer lawn mowers, ¹² such as high-wheel, three-wheel and five-wheel mowers, mowers with nonmetal blades, and air-supported mowers, is also without merit. Sufficient evidence clearly establishes that, as a general category of consumer products, walk-behind power mowers are sufficiently hazardous to justify their regulation by a consumer product safety standard. The Commission ruled that three-wheel, five-wheel, high-wheel, and air-supported rotary mowers were included in the standard because: "The number of wheels or the use of an air cushion instead of wheels would appear to have little relevance to the likelihood of contact with the rotating lawn mower blade. These mowers could present the same risks of blade contact as the common four-wheel rotary mower." 44 Fed. Reg. 9990, 9997-98 (Feb. 15, 1979). It further decided that mowers with semi-rigid or rigid blades made of nonmetal material, such as plastic or rubber, fell within the standard's coverage. The Commission reasoned that

(N)o convincing evidence has been presented . . . to show that these blades present a different risk of injury than metal blades. If these blades are rigid or semi-rigid, they appear to present an unreasonable risk of amputation, laceration, fracture, or avulsion in the same manner as metal blades. Blades typically rotate...