Pursuant to 15 U.S.C. § 1262(e)(3)A, Toy Manufacturers of America, Inc. petitions for review of a regulation promulgated by the Consumer Product Safety Commission entitled "Method for Identifying Toys and Other Articles Intended for Use by Children Under 3 Years of Age Which Present Choking, Aspiration, Or Ingestion Hazards Because of Small Parts." Petition for review denied.
Before Waterman, Moore and Mansfield, Circuit Judges.
Petitioner Toy Manufacturers of America, Inc. (TMA)*fn1 seeks judicial review, pursuant to 15 U.S.C. § 1262(e)(3)(A), of a certain regulation promulgated by the Consumer Product Safety Commission (CPSC), which amends 16 Code of Federal Regulations by adding a new Part 1501 and a new paragraph (a) (9) to Section 1500.18. The regulation is entitled "Methods for Identifying Toys and Other Articles Intended for Use by Children Under 3 Years of Age Which Present Choking, Aspiration, or Ingestion Hazards Because of Small Parts" (hereinafter referred to as the "Small Parts Regulation"). It appears at 44 Federal Register 34892-34905 (June 15, 1979). For the reasons expressed herein, the petition for review is denied.
The Small Parts Regulation at issue here was developed in various administrative proceedings over a six year period pursuant to authorization contained in the Federal Hazardous Substances Act (FHSA), 15 U.S.C. §§ 1261-1274.*fn2 In January 1973, the Food and Drug Administration (FDA), Department of Health, Education and Welfare, which was then delegated the task of implementing the FHSA, published for public comment the precursor of the present Small Parts Regulation. See 38 Federal Register 2179-2180 (Jan. 22, 1973). Soon thereafter, in May 1973, the newly created CPSC succeeded to the FDA's responsibilities under the FHSA. See 15 U.S.C. § 2079(a).
In October 1978, following a somewhat lengthy review of the comments received pertaining to the original FDA version of the Small Parts Regulation, the CPSC proposed for public comment its own expanded version of the Small Parts Regulation. See 43 Federal Register 47684-47688 (Oct. 16, 1978). After consideration and review of the written comments received concerning this October 1978 proposed regulation, the CPSC promulgated the final version of the Small Parts Regulation in June 1979, with a targeted effective date of January 1, 1980. See 44 Federal Register 34903-34905 (June 15, 1979).
The conceded goal of the Small Parts Regulation here challenged is to ban from introduction into interstate commerce certain children's articles which are either composed of or contain small parts deemed to present a substantial health hazard. As is apparent from the title of the Small Parts Regulation, it is applicable only to a limited range of children's articles, namely those articles that are intended for use by children under three years of age. To aid in the identification of such articles, the Small Parts Regulation sets forth a rather extensive, albeit non-exclusive, list of articles that are regarded by the CPSC as intended for use by children under three years of age. In addition, the Small Parts Regulation enumerates three criteria that it considers relevant in determining whether a particular article, although not found among the articles listed, nevertheless will be regarded as "intended, marketed or labeled to be entrusted to or used by children under three years of age" and thus is within the coverage of the Small Parts Regulation.*fn3
If a particular article is found to be within the coverage of the Small Parts Regulation, it then will be subjected to various testing procedures. Essentially, these testing procedures are designed to determine whether parts of an article will become detached during normal use, or during the course of reasonably foreseeable damage or abuse, and whether an article or its detachable parts will exceed a certain prescribed safe minimum size. Finally, the Small Parts Regulation provides that any article that "fails" these established testing procedures will be considered a banned hazardous substance within the meaning of the FHSA, and therefore it may not be introduced into interstate commerce.
At the outset, we note that TMA expresses no objection to the concept that the CPSC should be able to ban any children's article that presents substantial health hazards, and TMA does not challenge the CPSC's well-documented conclusion that children's articles either composed of or containing small parts present a substantial health hazard, particularly to children under three years of age.*fn4 In addition, because most of the testing procedures detailed in the Small Parts Regulation are identical to those prescribed by TMA's own voluntarily adopted safety standard, which already is generally adhered to throughout the toy manufacturing industry, TMA does not contest the validity of that portion of the Small Parts Regulation. Therefore, TMA's challenges to the validity of the Small Parts Regulation are limited to contentions that the CPSC has proceeded under inappropriate statutory authority in promulgating the regulation, that the CPSC plans to employ invalid enforcement procedures to insure compliance with the Small Parts Regulation, and that the Small Parts Regulation amounts to a criminal statute employing unreasonably vague language to describe the proscribed activity.*fn5
TMA initially contends that the FHSA cannot supply the CPSC with statutory authority to promulgate the Small Parts Regulation, inasmuch as that regulation sets forth a generic standard that purports to be applicable to a wide range of products. TMA argues that the Consumer Product Safety Act (CPSA) is the appropriate statutory vehicle for the CPSC to employ in promulgating generic standards, and that both the statutory language and the legislative history of the FHSA support the interpretation that the FHSA was intended to deal with only specific, individual hazardous articles.
TMA's argument concerning the language of the FHSA rests on the observation that the relevant statutory passages refer only to individual products. See, e.g., 15 U.S.C. § 1261(f)(1)(D): "The term "hazardous substance' means . . . (any) toy or other article intended for use by children which the Secretary by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard."; 15 U.S.C. § 1262(e): "A determination by the Secretary that a toy or other article intended for use by children presents an electrical, mechanical, or thermal hazard shall be made by regulation . . . ." From this use of language, TMA concludes that the FHSA's banning procedures were intended to deal with only one product at a time, and not with a broad range of products at the same time.
As CPSC correctly indicates, however, TMA's statutory language argument could be nullified by reference to 1 U.S.C. § 1, which provides in relevant part that "(in) determining the meaning of any Act of Congress, unless the context indicates otherwise words importing the singular include and apply to several persons, parties, or things . . . ." Certainly, nothing in the FHSA explicitly limits the employment of its banning procedures to situations involving only individual products, nor does the general thrust of the FHSA suggest that, in the Act's enforcement, application of the typical rule of statutory construction set forth in 1 U.S.C. § 1 would be inappropriate.
However, because we recognize that "this rule is not one to be applied except where it is necessary to carry out the evident intent of the statute," First National Bank v. Missouri, 263 U.S. 640, 657, 44 S. Ct. 213, 215, 68 L. Ed. 486 (1924), we will proceed to examine the legislative history of the FHSA to determine whether application of the normal rule of construction set forth in 1 U.S.C. § 1 would run contrary to the statutory intent. Our review of the pertinent legislative history leads us to the same conclusion as that reached by the United States District Court for the District of Columbia in Tuchinsky v. Consumer Product Safety Commission, Civ. Action No. 219-73 (D.D.C.) (Nov. 14, 1974): "The legislative history appears clear in favoring general prescriptive regulations of the broadest, most comprehensive type and would favor case-by-case proceedings only where such general prescriptive regulations prove impossible." Id. at 5.*fn6 See Forester v. Consumer Product Safety Commission, 182 U.S. App. D.C. 153, 559 F.2d 774 (D.C.Cir.1977).
Clearly, identification of the hazard that is the concern of the Small Parts Regulation (i. e., small parts) appears well suited to a general prescriptive approach employing carefully defined, objective, and standardized testing procedures. Therefore, all that remains to be considered is whether a general prescriptive approach would be inappropriate in delineating the scope of coverage of the Small Parts Regulation (i. e., in identifying those articles that are intended for use by children under three years of age, and which must be subjected to the small parts testing procedures). This concern is embodied in TMA's final contention that the general prescriptive language employed to delineate the scope of coverage of the Small Parts Regulation runs afoul of the Fifth Amendment's due process proscriptions against unreasonably vague criminal statutes.*fn7 In view of our disposition of that contention, infra pp. 77-79, we find that the general prescriptive approach employed here is proper for delineating the scope of coverage of the Small Parts Regulation.
TMA next maintains that, notwithstanding the fact that the FHSA may provide the necessary statutory authority to enable the CPSC to promulgate the Small Parts Regulation, the CPSC in doing so must not adhere to the relatively lenient procedural requirements contained in the FHSA, but instead must comply with the more stringent procedural requirements contained in the CPSA.*fn8 This argument is premised on a very real policy concern, which was most aptly summarized by Judge MacKinnon of the United States Court of Appeals for the District of Columbia Circuit in Forester v. Consumer Product Safety Commission, 182 U.S. App. D.C. 153, 559 F.2d 774 (D.C.Cir.1977): "(It) might be argued that the history of the CPSA indicates that the (CPSC) should not be permitted to evade ...