Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-13T03:56:06.836Z Has data issue: false hasContentIssue false
  • English
  • Français

The Chain Saw and the Regulator: Inching toward Safety

Published online by Cambridge University Press:  29 April 2021

Barry R. Furrow
Get access Rights & Permissions [Opens in a new window]

Extract

The chain saw emerged in the marketplace as a powerful and useful new consumer product in the 1960s. Once a massive and awkward professional logging tool, the device has been transformed into a hand held tool that a casual user can easily use to cut trees and branches. By 1970, 2.3 million saws had been sold; by 1979, 3.5 million. From 1973 to 1977 sales of gasoline chain saws grew at an average rate of 1 2 percent per year, and electric saws at 37 percent per year. The largest increase in sales occurred in the lower priced saws. By 1986 22 million chain saws could be found in American households, the result of an expansion in the market due to both the energy crisis of 1970 and aggressive marketing and price cutting by manufacturers. During the calendar year 1987 an estimated 1,350,ooo chain saws were shipped to dealers, the same level as 1986, and manufacturers anticipate that 1988 shipments may increase 2 percent. The market has softened considerably, but is still expanding.

Type
Article
Information
Law, Medicine and Healthcare , Volume 17 , Issue 1 , Spring 1989 , pp. 78 - 85
Copyright
Copyright © American Society of Law, Medicine and Ethics 1989

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

45 Fed. Reg, No. 183, Sept 18, 1980Google Scholar
Press Release, Portable Power Equipment Manufacturers Association (PPEMA) (formerly CSMA), February 8, 1988.Google Scholar
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.Google Scholar
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.Google Scholar
45 Fed. Reg. 62,392 (1980)Google Scholar
Ibid.Google Scholar
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.Google Scholar
Pub. L. No. 92-573, 86 Stat. 1207 (1972)Google Scholar
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.Google Scholar
See Schwartz, id. at p. 44, particularly n. 78. As Schwartz notes, “expectations for the agency were very high.” (Id. at 43)Google Scholar
Schwartz, , supra note 10.Google Scholar
Pub. L. No 97–35, s 1202(b), 95 Stat. 703–04 (1981), codified at 15 U.S.C. s. 2056(b) (Suppl.)Google Scholar
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.)Google Scholar
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)Google Scholar
15 U.S.C 2059Google Scholar
Tobias,Google Scholar
46 Fed.Reg. 26,263 (1981)Google Scholar
Ibid.Google Scholar
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.Google Scholar
“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. 21Google Scholar
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.)Google Scholar
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.”Google Scholar
Ibid.Google Scholar
45 Fed. Reg. 62,392–93 (1980)Google Scholar
45 Fed. Reg. 62,393 (1980) and 46 Fed. Reg. 26, 62, 26,269–70 (1981)Google Scholar
See 50 Fed. Reg. 35,242 (Aug. 30, 1985)Google Scholar
See H.R. 2271 Hearings at 340 (Statler, Acting Chairman)Google Scholar
“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)Google Scholar
Letter, CPSC Chairman Steorts, Nancy to Rep. Boland, Edward P. (July 19, 1982), quoted in Schwartz, supra n. 6, p. 73 (n. 288).Google Scholar
47 Fed. Reg. 19,369 (1982)Google Scholar
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)Google Scholar
Fed. Reg. 35,247 (August 30, 1985).Google Scholar
CPSC, 1989 Budget Request, Submitted Concurrently to the Congress and the Office of Management and Budget, February 1988, at 5.Google Scholar
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)Google Scholar
Statler, , “Let the Sunshine In,” 67 ABA J. 573, 574 (1981) (attacking openness in the chainsaw process).Google Scholar
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).Google Scholar
See Tobias, supra n. 6 at 1141–42, n. 255, citing some participants in the project.Google Scholar
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.Google Scholar
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).Google Scholar
Id at 44.Google Scholar
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)Google Scholar
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).Google Scholar
Supra n. 33 at 4Google Scholar
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.Google Scholar
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.Google Scholar
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.Google Scholar
Noll, and Owen, , “What Makes Reform Happen?” Regulation 110 (March/April 1983)Google Scholar