The Chain Saw and the Regulator: Inching toward Safety

45 Fed. Reg, No. 183, Sept 18, 1980

Press Release, Portable Power Equipment Manufacturers Association (PPEMA) (formerly CSMA), February 8, 1988.

The markets for other gasoline portable power equipment such as trimmers and leaf blowers are expanding more vigorously–-trimmers up 15% over 1986, and leaf blowers up 18%, indicating the relative saturation of the chain saw market.

The figures are based on the NEISS reporting system, which has been heavily criticized for its biases. See particularly Heiden, Pittaway and O'Connor, “Utility of the U.S. Consumer Product Safety Commission's Injury Data System as a Basis for Product Hazard Assessment,” J. Prod. Liability 295 (1982) (statistical critique of NEISS and its inaccuracies and bias.); Heiden, Pittaway Associates, Inc., Audit and Critique of Selected Data Developed and Used by the Consumer Product Safety Commission in Its ANPR on Chain Saws, June 25, 1982.

45 Fed. Reg. 62,392 (1980)

Ibid.

The legal issues presented by the Chain Saw Standard Setting Project are too extensive to be discussed in this article. They include the role and usefulness of publicly funded consumer participants in the process (see Tobias, “Great Expectations and Mismatched Compensation: Government Sponsored Public participation in Proceedings of the Consumer Product Safety Commission,” 64 Wash. Univ. L. Q. 1101 (1986) and his earlier article, “Of Public Funds and Public Participation: Resolving the Issue of Agency Authority to Reimburse Public Participants in Administrative Proceedings,” 82 Col. L. Rev. 906 (1982); the merits of regulatory negotiation as a new fashion in administrative law, Harter, “Negotiating Regulations: A Cure for Malaise,” 71 Georgetown L. J. 1 (1982); Susskind and McMahon, “The Theory and Practice of Negotiated Rulemaking,” 3 Yale J. on Reg. 133 (1985) (EPA); the general effectiveness of the CPSC in light of its enabling act and the 1981 amendments, Klayman, “Standard Setting Under the Consumer Product Safety Admendments of 1981–-A Shift in Regulatory Philosophy,” 51 Geo. Wash. L. Rev. 96 (1982); the role of nongovernmental standards in mandatory standard setting, Hamilton, “The Role of Nongovernmental Standards In the Development of Mandatory Federal Standards Affecting Safety or Health,” 56 Texas L. Rev. 1329 (1978). The chain saw process has been thoroughly discussed as a case study from a number of legal perspectives, usually to make a point as part of the larger thesis of an author.

Pub. L. No. 92-573, 86 Stat. 1207 (1972)

National Commission on Prod. Safety, Final Report Presented to the President and Congress (1970). For an exhaustive discussion of the origins of the CPSC, see generally Schwartz, “The Consumer Product Safety Commission: A Flawed Product of the Consumer Decade,” 51 Geo. Wash. L. Rev. 32 (1982) and footnotes.

See Schwartz, id. at p. 44, particularly n. 78. As Schwartz notes, “expectations for the agency were very high.” (Id. at 43)

Schwartz , supra note 10.

Pub. L. No 97–35, s 1202(b), 95 Stat. 703–04 (1981), codified at 15 U.S.C. s. 2056(b) (Suppl.)

For an early critique of the CPSC and its difficulties with the standard-setting process, see 12 Trial (1976) (articles by Bennet, Schwartz, Jackson, Locke, and Pittle.)

See Recommendation 82–4: Procedures for Negotiating Proposed Regulations (Administrative conference of the U.S.), 47 Fed. Reg. 10,708 (July 15, 1982); Perritt , “Negotiated Rulemaking in Practice,” 5 J. Policy Analysis & Mgmt. 482, (1986)

15 U.S.C 2059

Tobias,

46 Fed.Reg. 26,263 (1981)

Ibid.

See CPSC Reauthorization: Hearings Before the Subcomm. for Consumers of the Senate Comm. on Commerce, Science, and Transportation, 98th Congress, 1st Sess. 131 (1983) (statement of CSMA); 43 Fed. Reg. 26,103. See also Tobias, pp. 1137 et seq for an excellent detailed discussion of the chainsaw process and the role of publicly funded consumers in the process.

“I question the wisdom of the majority's decision to defer a mandatory standard proceeding in order to plan and develop a voluntary standard with CSMA. I think an unfortunate precedent has been established for standards setting that pushes CPSC involvement in voluntary standards to the absolute outer limit.” p. 21

In-Depth Investigations were used to develop a profile of user injuries and characteristics, to supplement the National Electronic Injury Surveillance System (NEISS) established by the commission to collect data on the cause of deaths, injuries and illness related to consumer products. For criticism and discussion of NEISS and its problems, see Hoffman, “The Consumer Product Safety Commission: In Search of a Regulatory Pattern,” 12 Col. J. Law & Soc.Prob. 393 (1976); Locke, “The Random Regulator,” 12 Trial 15 (1976); Heiden, Pittaway and O'Connor, “Utility of the U.S. Consumer Product Safety Commission's Injury Data System as a Basis for Product Hazard Assessment,” J. Prod. Liability 295 (1982) (statistical critique of NEISS and its inaccuracies and bias.)

Letter, Donald E. Purcell, President, CMSA, to Susan King, Chairman, CPSC, December 21, 1979, with 52 page “Draft Voluntary Performance Standard for Chain Saw Kickback.”

Ibid.

45 Fed. Reg. 62,392–93 (1980)

45 Fed. Reg. 62,393 (1980) and 46 Fed. Reg. 26, 62, 26,269–70 (1981)

See 50 Fed. Reg. 35,242 (Aug. 30, 1985)

See H.R. 2271 Hearings at 340 (Statler, Acting Chairman)

“The CPSC reportedly asserted that the CSMA was comprised of macho manufacturers who stonewalled the agency, while the CSMA reportedly responded that the problem lay in 'the ineptitude, bias and mismanagement casually dispensed by the agency's staff.” Tobias, “Great Expectations and Mismatched Compensation: Government Sponsored Public Participation in Proceedings of The Consumer Product Safety Commission,” 64 Wash. Univ. L. Quarterly 1101, 1138 (n. 231) (1987)

Letter, CPSC Chairman Steorts Nancy to Rep. Boland Edward P. (July 19, 1982), quoted in Schwartz, supra n. 6, p. 73 (n. 288).

47 Fed. Reg. 19,369 (1982)

46 Fed. Reg. 26,262 (May 11, 1981) The Commission stated its original intention to do so as of September 18, 1980. See 45 Fed. Reg. 62,392. By notice of May 5, 1982, the commission gave advance notice of proposed rulemaking, initiating the three stage rulemaking process required by the 1981 amendments to the Consumer Product Safety Act. This superseded the notice of proceeding issues in May 1981, notice of which was then withdrawn. See 47 Fed.Reg. 19,369 (May 5, 1982)

Fed. Reg. 35,247 (August 30, 1985).

CPSC, 1989 Budget Request, Submitted Concurrently to the Congress and the Office of Management and Budget, February 1988, at 5.

See Comments of Commissioner Pittle, in Hearings on HUD-Independent Agencies Appropriations for 1983 Before the Subcomm. on Hud-Independent Agencies of the House Comm. on Appropriations, 97th Cong., 2d Sess., pt. 1, at 570 (1982)

Statler , “Let the Sunshine In,” 67 ABA J. 573, 574 (1981) (attacking openness in the chainsaw process).

See Furrow, “Chainsaw Stretched,” 67 ABA J. 960 (1981) (slowness and eventual failure of project due to nature of industry and its fear of impairing competitive advantage.) Tobias, supra n. 6 at 1142–43 (and footnotes, for comments praising public involvement as valuable).

See Tobias, supra n. 6 at 1141–42, n. 255, citing some participants in the project.

The 1981 amendments had required in section 2056 (47 U.S.C.A.: (b) The Commission shall rely upon voluntary consumer product safety standards rather than promulgate a consumer product safety standard prescribing requirements described in subsection (a) of this section whenever compliance with such voluntary standards would eliminate or adequately reduce the risk of injury addressed and it is likely that there will be substantial compliance with such voluntary standards.

Klayman, supra n. 6 at 101–102. Klayman concluded: “Even more significant than the Amendments themselves is the signal that they send to product manufacturers–-that government regulation of their product is receding, and that government is shifting its philosophy towards the self-regulation model of the pre-CPSA era. Consequently, manufacturers will be less motivated to compete for safety–-to the detriment of the consumer.” Klayman, “Standard Setting Under the Consumer Product Safety Amendments of 1981–-A Shift in Regulatory Philosophy,” 51 Geo. Wash. L. Rev. 96, 112 (1982).

Id at 44.

For an account of the reorganization attempts in the early '80s, see Lamatina, “The Consumer Product Safety Act,” 4 J. Products Liability 275, 319–323 (1981)

See comments of Statler, Current Reports, BNA Product Safety & Liability Reporter, Vol. 9, No. 18, “Proposal to Slash CPSC Budget Has Demoralized Staff, Statler Says,” 350 (May 1, 1981).

Supra n. 33 at 4

A cynic might observe that the lawyers for the trade association, the CSMA, knew what they were doing, since they had nothing to lose by the timetable. They were buying time no matter what, particularly for the manufacturers who were less prepared to implement a range of safety features. Commissioner Pittle expressed precisely these fears.

Economists debate the aggregate benefits of government regulation. One study of the CPSC and its safety cap rules for household drugs, such as aspirin and household chemicals, a rule intended to reduce poisonings of children, found “…no downward shift in poisoning rates. This ineffectiveness appears to be attributable in part to increased parental irresponsibility, such as leaving the caps off bottles. This lulling effect in turn led to a higher level of poisonings for related products not protected by the caps.” Viscusi concluded from his study that technological solutions to safety problems may produce “lulling” behavior, in which risks may be reduced, but the overall gains may be offset by reduced precautions with other related products. Viscusi, “Consumer Behavior and the Safety Effects of Product Safety Regulation,” 28 J. Law & Economics 527, 553 (1985). This conclusion is not fatal to a model of effective government regulation, but does suggest the need to think through the side effects of a safety rule on consumer behavior.

As one industry lawyer said: “Part of my living comes from protecting people” in industry. “But I'd rather have a strong and mighty adversary that knows what a good case is instead of one that stumbles around in the dark and hits anything that's warm.” Quoted in Saddler, Consumer Safety Agency's Role Is Questioned Amid Charges Over Its Chairman's Leadership,” Wall St. J. Sept. 23, 1987 at p 76.

Noll and Owen , “What Makes Reform Happen?” Regulation 110 (March/April 1983)