Consumer Federation of America v. Consumer Product Safety Com'n

• Decision Date: 09 April 1993
• Docket Number: No. 91-1551,91-1551
• Citation: 990 F.2d 1298
• Parties: CONSUMER FEDERATION OF AMERICA and United States Public Interest Research Group, Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent, All-Terrain Vehicle Distributors, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1298

990 F.2d 1298

301 U.S.App.D.C. 28

CONSUMER FEDERATION OF AMERICA and United States Public Interest Research Group, Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent All-Terrain Vehicle Distributors, et al., Intervenors.

No. 91-1551.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 15, 1993.

Decided April 9, 1993.

[301 U.S.App.D.C. 29] Petition for Review of an Order of the Consumer Product Safety Commission (56FR47166).

Leslie A. Brueckner, New York City, with whom Alan B. Morrison, David C. Vladeck, and Katherine A. Meyer, Washington, DC, were on the brief, for petitioners.

Margot E. de Ferranti, of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of the court, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty. at the time the brief was filed, Robert S. Greenspan, Atty. Department of Justice, Daniel S. Lemberg, Asst. Gen. Counsel, Harleigh P. Ewell and Leonard H. Goldstein, Attys., Consumer Product Safety Com'n, Washington, DC.

Howard P. Willens, Theodore C. Whitehouse, Mark L. Gerchick, Harry W. Cladouhos, and Charles A. Hunnicutt, Washington, DC, were on the joint brief, for intervenors, American Honda Motor Co., Inc., Yamaha Motor Corp., USA, Kawasaki Motors Corp., USA, American Suzuki Motor Corp., and Polaris Industries, L.P.

Before: WALD, RUTH BADER GINSBURG, and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Concurring opinion filed by Circuit Judge D.H. GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In September 1991, the Consumer Product Safety Commission (CPSC or Commission) terminated a rulemaking proceeding commenced in May 1985 to address risks associated with all-terrain vehicles (ATVs). Petitioning for judicial review, Consumer Federation of America and United States Public Interest Research Group challenge one aspect of the CPSC's action--the decision not to pursue, at this time, a ban on the sale of new adult-size ATVs for use by children under age 16. ¹ In view of the Commission's ongoing efforts to check ATV safety hazards by other means, and CPSC's indication that it will reconsider the rulemaking route if current responses to ATV hazards prove inadequate, we deny the petition for review.

I. BACKGROUND

ATVs are single rider three- or four-wheeled motor vehicles intended for off-road use on unpaved terrain. The vehicles have handlebar steering and a seat that the operator straddles. About 70 percent of ATV use is for recreational purposes; some 50 percent of ATV drivers, however, use their ATVs for nonrecreational purposes at least some of the time. ATVs weigh between 250 and 500 pounds and have large, low-pressure tires. ATVs designed for adults have engines of greater than 90 cubic centimeters (cc) displacement; youth models have 70 to 90 cc engines. In 1989, over 2.75 million ATVs were in use in the United States.

Because ATVs have solid rear axles and a high center of gravity, a rider must shift her weight to maintain stability during turns or on grades. As the Commission In May 1985, prompted by a surge in the number of deaths and injuries from ATV-related accidents, ² the Commission published an Advance Notice of Proposed Rulemaking (ANPR) concerning three- and four-wheeled ATVs. See 50 Fed.Reg. 23,139 (May 31, 1985). ³ The ANPR announced and sought public comment on a wide range of possible regulatory options, including publication of safety information, development of voluntary standards, imposition of mandatory standards or product bans, and a federal court action to declare ATVs an "imminent hazard." See id. at 23,142-43 (discussing regulatory options under Consumer Product Safety Act (CPSA), 15 U.S.C. §§ 2051 et seq., and Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 1261 et seq.).

                [301 U.S.App.D.C. 30] describes the vehicles, ATVs are "rider-interactive."   This characteristic, among others, makes ATVs challenging, and potentially dangerous, to operate
                

After further study, the Commission decided on pursuit of a civil action under section 12 of the CPSA to gain a judicial declaration that ATVs are an "imminently hazardous consumer product." 15 U.S.C. § 2061(b)(1) (authorizing "such temporary or permanent relief as may be necessary to protect the public" from an "imminently hazardous consumer product"). During preparation of the action, CPSC conducted negotiations with the ATV industry on measures to reduce ATV-related deaths and injuries. On December 30, 1987, the Department of Justice filed an "imminent hazard" lawsuit against the major distributors of ATVs. See United States v. American Honda Motor Co., Civ. No. 87-3525, 1987 WL 33507 (D.D.C.) (filed Dec. 30, 1987) (American Honda Motor Co.). ⁴ That same day, the Commission and the defendant distributors entered into preliminary consent decrees.

Four months later, the court approved a detailed final consent decree, effective for a term of ten years. See American Honda Motor Co., Final Consent Decree (filed Apr. 28, 1988) (Consent Decree) (reprinted in Joint Appendix (J.A.) at 50). ⁵ The Consent Decree immediately prohibited the sale of new three-wheeled ATVs, see Consent Decree p F.1-2, ⁶ and provided that the Warnings to and education of consumers are main features of the Consent Decree. The distributors agreed to offer free "hands-on" training courses to ATV purchasers. See id. p K; see also id. p K.2.d (special provisions governing training classes attended by children under 16). They also promised to emphasize safety information in advertisements and to undertake an "outreach program" to supply safety materials to consumer groups. See id. pp I-J; see also id. Appendices K (guidelines for promotional advertisements) and N (requirements for specialized safety advertisements).

                [301 U.S.App.D.C. 31] distributors would "attempt in good faith to reach agreement on voluntary ATV performance standards satisfactory to the Commission."   See id. p L.2. 7
                

Under the heading "Ages for Operating ATVs," the Consent Decree required the distributors to "represent affirmatively" in their advertising "that ATVs with engine sizes [between 70 and 90 cc] should be used only by those aged 12 and older," and that ATVs "with engine sizes of greater than 90 cc should be used only by those aged 16 and older." Id. p G.1-2 (emphases in original). The distributors promised to "use their best efforts to reasonably assure" that ATVs would "not [be] purchased by or for the use of any person" under the specified ages. Id. p G.3. They furthermore agreed to endeavor to implement this relief by working with the retail sellers of ATVs. Id. ⁸

The Consent Decree described four warning labels distributors must attach to all new ATVs: (1) a "general warning label" cautioning users to seek safety training and warning against hazardous conduct such as operating ATVs on public roads; (2) an "age recommendation warning label" stating (in the case of adult-size ATVs) "NEVER operate this ATV if you are under age 16"; (3) a "passenger warning label," cautioning against riding as a passenger; and (4) a "tire pressure recommendation label" warning against improper tire pressure or overloading. See id. p H.1.a. (1); id. Appendices A-D. In addition, the distributors agreed to ensure that their dealers make available to actual and prospective buyers a CPSC-approved video on ATV safety and that dealers display a four-foot by four-foot safety poster showing updated ATV death statistics. See id. p H.3.b. Both the video and the poster warn that children under 16 should not ride adult-size ATVs. The minimum ages are to be set forth as well in ATV owners' manuals, on "hang tags" placed on ATVs offered for sale, and in "safety alert" communications provided to ATV buyers. See id. p H.3; Appendix F (requirements for owners' manuals); Appendix I, § II.A.3 (guidelines for point-of-purchase materials, including hang tags, posters, and videos).

In its ruling approving the Consent Decree, the district court stated: "No decree designed to protect consumers has ever gone this far in meeting such a massive national consumer problem." American Honda Motor Co., Memorandum & Order at 8 (D.D.C. Apr. 27, 1988) (reprinted in J.A. at 34, 41). The court cautioned, however, that if the decree proved "not effective in reducing deaths and serious injuries" after a reasonable testing period, the Commission would be "free to proceed within the framework of the [Consumer Product Safety] Act and consider what further protection for the public may be necessary." Id. at 13. A "particular concern" would arise, the court added, "if children over 12 years of age and their parents have not been responsive to the warning information In December 1988, an undercover CPSC survey revealed that about 70 percent of Virginia ATV dealers were making age recommendations inconsistent with those set out in the Consent Decree. See J.A. at 328. In response, the Commission required distributors to send reminder notices to dealers emphasizing the decree's minimum age provisions, and warning dealers that nonobservance of the age specifications could lead to termination of their franchises. See id. A nationwide survey conducted in June and July 1989 showed that 56 percent of dealers were still ignoring the minimum age prescriptions. See id. The Commission then secured promises from distributors to institute, beginning in late 1990, a two-year undercover monitoring program using randomly selected samples of dealerships. See J.A. at 329. Distributors agreed to terminate the franchises of dealers who repeatedly failed to provide the age warnings. See id. Initial results of the monitoring program, based on six months' data, revealed compliance rates of 72-86 percent (on-site monitoring) and 82-89 percent (telephone monitoring). See J.A. at 654-56.

                [301 U.S.App.D.C. 32] and other precautions established by the decree."   Id
                

In 1990 and early...