Consumer Federation of America v. U.S. Consumer Product Safety Com'n
| Decision Date | 29 August 1989 |
| Docket Number | No. 88-1664,88-1664 |
| Citation | 883 F.2d 1073 |
| Parties | CONSUMER FEDERATION OF AMERICA, Petitioner, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION; Terrence Scanlon, Chairman of the U.S. Consumer Product Safety Commission, and Carol G. Dawson and Anne Graham, Commissioners of the U.S. Consumer Product Safety Commission, Respondents, Halogenated Solvents Industry Alliance, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Melvin L. Goldberg, with whom Mary Ellen Fise (for petitioner Consumer Federation of America) and Robert G. Abrams, Washington, D.C., (for amicus curiae The State of N.Y.) were on the joint brief, for petitioner and amicus curiae in support of petitioner.
Jacqueline H. Eagle, Atty., U.S. Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen. at the time the brief was filed, Margaret A. Cotter, Asst. Director, Office of Consumer Litigation, U.S. Dept. of Justice, Washington, D.C., and Steven Lemberg, Asst. Gen. Counsel, and Harleigh Ewell, Atty., Chevy Chase, Md., Consumer Product Safety Com'n, were on the brief, for respondents.
W. Caffey Norman III for intervenor.
Before ROBINSON, BUCKLEY, and WILLIAMS, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
Petitioner Consumer Federation of America seeks review of a United States Consumer Product Safety Commission order denying its petition for the initiation of rulemaking proceedings to ban the use of the solvent methylene chloride in household products. The Federal Hazardous Substances Act authorizes the Commission to designate "banned hazardous substances" and provides that the Commission must act on a private party's petition if the petitioner demonstrates "reasonable grounds" for the requested regulation. The Commission held that petitioner had failed to meet this threshold requirement. We deny the petition for review because we find the Commission's action reasonable.
Under the Federal Hazardous Substances Act, 15 U.S.C. Secs. 1261-1276 (1982 & Supp. V 1987) ("Act"), the Consumer Product Safety Commission ("Commission") may classify as a "hazardous substance" any product that is toxic or dangerous for other statutorily prescribed reasons. See 15 U.S.C. Secs. 1262(a)(1), 1261(f)(1) (1982). Hazardous substances must be suitably labeled. Id. Secs. 1261(p), 1263(a). The Commission may take the further step of placing a substance in the "banned hazardous substances" category
on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this chapter for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of interstate commerce.
Id. Secs. 1261(q)(1)(B), 1263(b).
To initiate a rulemaking, the Act provides (by cross-referencing the Food, Drug and Cosmetic Act, see id. Sec. 1262(a)(2)) that
[a]ny action for the issuance, amendment, or repeal of any regulation ... shall be begun by a proposal made (A) by the Secretary on his own initiative, or (B) by petition of any interested person, showing reasonable grounds therefor, filed with the Secretary. The Secretary shall publish such proposal and shall afford all interested persons an opportunity to present their views thereon, orally or in writing.
21 U.S.C. Sec. 371(e)(1) (1982).
In 1985, the Consumer Federation of America ("CFA") petitioned the Commission to institute rulemaking proceedings to declare methylene chloride both a hazardous substance and a banned hazardous substance. Exposure to methylene chloride, a solvent used in paint strippers and other products, is suspected of increasing the risk of certain forms of cancer.
On August 20, 1986, the Commission proposed a rule that would classify household products containing methylene chloride as hazardous substances. 51 Fed.Reg. 29,778 (1986). After receiving comments from the public, the Commission on September 14, 1987 issued a "Statement of Interpretation and Enforcement Policy" ("Statement") declaring that household products exposing consumers to significant amounts of methylene chloride vapor constitute hazardous substances. 52 Fed.Reg. 34,698, 34,699 (1987). The Statement set forth several requirements for cautionary labeling and warned that the Commission intended to bring enforcement actions against persons responsible for the sale of improperly labeled products. Id.
The Commission chose to issue the Statement rather than proceed with the requested rulemaking because it found a sufficient amount of uncontested evidence to warrant the conclusion that methylene chloride qualifies as a hazardous substance. The Commission feared that if it followed through with the rulemaking, various procedural hurdles would prevent it from regulating the sale of the chemical for a number of years. Id. at 34,700. The Commission did not withdraw the proposed rule, however, and emphasized that if it became apparent that voluntary compliance coupled with enforcement actions against noncomplying firms proved inadequate to ensure cooperation, it reserved the right to resume the rulemaking. Id.
On June 17, 1988, the Commission issued a formal denial of the CFA's second request; namely, that the Commission institute proceedings to ban methylene chloride. U.S. Consumer Product Safety Commission, Order Denying Petition HP 85-1 (June 17, 1988) ("Order"). The Commission found that the CFA had failed in several respects to meet the statutory requirement that an interested person show "reasonable grounds" for initiating a rulemaking under 21 U.S.C. Sec. 371(e)(1). First, the Commission faulted the CFA for failing to specify whether it sought a ban on all household products containing methylene chloride or only a ban on products containing the compound at or above a certain concentration. The Commission questioned whether a limit on concentration would produce beneficial results because consumers might compensate for the diluted product by increasing periods of exposure--for example, by applying multiple coats of paint stripper. Order at 2-3.
Second, the Commission argued that a prohibition at this point was premature because the agency had not had an opportunity to measure the impact that labeling combined with other efforts (e.g., point of sale and media campaigns) would have on consumer behavior. Third, it expressed concern that the initiation of the ban proceeding would thwart its efforts to negotiate with the chemical industry for measures to curb the chemical's harm, such as consumer education campaigns. Fourth, the Commission feared that a prohibition would cause manufacturers to substitute more harmful chemicals for methylene chloride. Fifth, the Commission noted that, before instituting a ban under the statute, it had to determine that the benefits of banning methylene chloride bore a reasonable relation to the costs and that a ban was the least burdensome requirement that prevented or adequately reduced the health risk. The Commission believed that it lacked sufficient information to make these findings. Id. at 4-6. It insisted, however, that its decision did not mean
that banning or limiting methylene chloride in certain products would not be considered in the future as additional information becomes available. The Commission's staff will continue to examine and investigate the situation involving methylene chloride in household products, and the Commission will take prompt and appropriate action where necessary to protect consumers.
The CFA petitioned for review of the Commission's order, claiming that the Commission had applied an unreasonably demanding standard in determining whether the CFA had put forward "reasonable grounds" to justify the initiation of rulemaking. Petitioner also argued that the Commission did not adequately support its conclusion that the CFA had not presented reasonable grounds. We have jurisdiction under 15 U.S.C. Sec. 1261(q)(2) and 21 U.S.C. Sec. 371(f)(1).
The CFA first attacks the Commission's definition of "reasonable grounds" as used in 21 U.S.C. Sec. 371(e)(1). Because petitioner challenges an agency's interpretation of a statute that the agency is entrusted to administer, Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1987), provides the appropriate standard of review. If congressional intent on the question at issue is clear, we will enforce that intention and not defer to the agency; if legislative intent is unclear, we will uphold the agency as long as its interpretation is "permissible." Id. 467 U.S. at 842-45, 104 S.Ct. at 2781-83.
In denying the CFA's petition, the Commission stated that "reasonable grounds in the initial petition are grounds from which it is reasonable to conclude that the Commission would be able to make the findings required to issue the requested rule and to support those findings with substantial evidence in the record." Order at 2.
The CFA argues that the standard is unreasonably demanding because it assertedly requires that a petition contain the facts that the hearing procedure is designed to elicit. We believe that the CFA has exaggerated the harshness of the Commission's standard. As we read it, the standard merely requires the petitioner to proffer sufficient preliminary data to demonstrate that it is worth the Commission's while to initiate a rulemaking.
We cannot fault the Commission for establishing this preliminary requirement given the burden that a rulemaking places on the Commission. For example, the Act requires that the Commission appoint a "chronic hazard advisory panel" to determine whether the substance at issue is carcinogenic before it...
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