Mr. SIMPSON. There is another section of the statute that says when we get a petition you must grant the petition unless you determine that the product does not present an unreasonable risk.

In other words, it is phrased the other way. This is so the right of the petition granted by the Congress to all citizens would be meaningful.

This was our first petition. It came in from industry. We looked at the data. The data are always uncertain. Again, as I said, if you take a look at the statistics that come in for in-ground and aboveground pools that are swimming and swimming pool related, you get numbers like 50,000 or 60,000.

In the minds of the commissioners-and I believe that was a unanimous decision-a 5-0 decision, we believed that in fact

swimming pool slides did present an unreasonable risk.

So, believing that and voting our conscience, we had to immediately undertake proceedings. We felt we had no choice. In the legislative recommendations that I made to the House, I suggested that Congress could preserve the right of petition to have citizens affect the bureaucracy in a meaningful way if they would only amend the law slightly; that is, to allow one other ground for denial.

That would be that the product presented an unreasonable risk, but there were higher degrees of risk above that that you could identify and then let us be challenged on that determination.

In that case, as you said in your press release and I think most of us agree, had we had that authority, we would have in fact denied that petition.

Senator PROXMIRE. Did you hold a public hearing on this proposed standard for swimming pool slides?

Mr. SIMPSON. We held a public hearing as required, I think, under section 9(c). This was after the proposed standard. There was a request for a public hearing.

Senator PROXMIRE. You held a public hearing?

Mr. SIMPSON. Yes; we did.

PETITIONS

Senator PROXMIRE. It seems in reading section 10 of the Consumer Product Safety Act

Mr. SIMPSON. The petition section.

Senator PROXMIRE [continuing]. That the key in determining whether or not, as you say, a product standard should be issued is the unreasonable risk that the product presents to the consumer.

You have continually pointed out to this committee the constraints placed on you by having to respond to section 10 petitions. You indicate that you have no authority to decline a petition because it doesn't fit into your priorities and that that is a weakness in the law.

Mr. SIMPSON. Yes.

Senator PROXMIRE. One way of determining how much leeway you have is to examine your difficulties in court. How many times have you been taken to court because you have denied a petition?

Mr. SIMPSON. We haven't been taken to court because the provision of the statute which allowed us to be taken to court didn't take

effect until 3 years after the statute was signed. That was October of 1975. The statute was signed on October 27, 1972. The provision which gave the citizen the right, the standing, to take us to court took effect 3 years later.

Senator PROXMIRE. What sanction was there on you before October of 1975? Why couldn't you simply deny a petition on common sense grounds?

Mr. SIMPSON. It wouldn't have been in full faith of what the Congress intended.

Senator PROXMIRE. It would be on the simple common sense ground that you had a duty with respect to much higher priority accident situations.

Mr. SIMPSON. In our opinion, much higher priority. But had the Congress not wanted us to give full faith to the right of petition, they wouldn't have put it in there. We felt that we should in fact treat it just as if the petitioner had the right to sue.

Senator PROXMIRE. But the effect of this, of course, is then you deny protection in these other areas. There is nothing else you can do. You can't do all of these things. It takes years, to set these standards.

That is why, number one, you had the power before the petitioner was given the right to go to court simply to deny a petition. Afterwards you could go to court and determine it.

Mr. SIMPSON. We obviously, of course, have the right to go to court and test these provisions. All of these begin with majority votes of five people. I had one vote on that.

In my opinion, I did exactly the right thing. I do agree with you that it turns out to be almost a contradiction that you can be addressing something on a lower priority.

But again, I think that if that provision is to be changed and you want to retain the meaningful right of the petition for citizens, I think you ought to give the citizen the right to challenge, not only the decision which they have now if you deny, but the right to challenge your priority setting mechanism.

The reason you would be denying then would be that although, it presents an unreasonable risk, there are lots of others higher than that, then the citizen can also challenge that determination.

We don't have that provision in the law.

Senator PROXMIRE. Apparently you still feel that there is not sufficient flexibility in section 10 to allow the commissioners to say "this product when compared to all the other products we could regulate does not represent an unreasonable risk to the consumer and does not represent a high priority product, in terms of injury protection." Mr. SIMPSON. Yes. That is my opinion.

Senator PROXMIRE. Has your general counsel made an interpretation of this section along these lines?

Mr. SIMPSON. Mr. Brown? I will let him speak for himself. He is quite capable of doing so.

Mr. BROWN. We have to date told the Commission that they cannot rely upon resources alone in front of the courts. It has been our determination that in dealing with the courts when you talk to the courts about being people poor, dollar poor, the judges will simply say "you should go to the Congress and get more money, this is within your statutory mandate."

Senator PROXMIRE. Is that an opinion you have produced in writing? Mr. BROWN. No. I have not.

Senator PROXMIRE. Will you provide for the committee a formal written opinion in which you could cite the basis for that judgment? [The information follows:]

U.S. CONSUMER PRODUCT SAFETY COMMISSION

WASHINGTON, D. C. 20207

February 25, 1976

Honorable William Proxmire

Chairman

Subcommittee on HUD-Independent Agencies

Committee on Appropriations

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman:

This letter is in response to your request, during the Consumer Product Safety Commission's FY 1977 appropriations hearing on February 18, for a written opinion concerning the success of using differing priorities, caused by resource or personnel limitations, as a defense against court actions seeking affirmative agency actions, such as those involved in section 10 of the Consumer Product Safety Act (CPSA), (15 U.S.C. 2059). In my opinion such an approach is rational since it recognizes that the Commission has finite resources. However, while the Commission may very well find it necessary at some time in the future to make decisions on this basis, it appears, in view of the statutory language involved, that it would be difficult to convince the courts not to order the commencement of a rulemaking proceeding after a petitioner has met his or her statutory burden.

While there are, as of this time, no cases arising directly under the relevant provisions of section 10 of the Consumer Product Safety Act, I have examined several decisions of federal courts which were asked to order governmental entities or agencies to take some affirmative action. While some of these cases do involve the constitutional rights of individuals, as opposed to purely statutory obligations of agencies, I believe they are analogous in that the courts are being asked to order the government to perform tasks that are difficult for practical reasons. The cases I have examined, while not exhaustive of the subject, are summarized below, and generally tend to show a judicial leaning towards the ordering of affirmative agency actions.

1. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Notwithstanding arguments that the correction of deficiencies in the state's mental institutions would require a heavy expenditure of funds, that such funds would have to come from other programs, and that the duty of allocating state funds was solely the responsibility of the governor and legislature, the Court found that the state could be ordered to correct the deficiencies.

2. Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972). Here, the duty to provide a publicly-supported education for exceptional children, based on the Constitution of the United States, the District of Columbia Code, and the District's regulations, was found sufficient to justify an order requiring implementation of an extensive program, even though it was claimed that there were insufficient funds.

3.

Campbell v. McGruder, Civil No. 1462-71 (D.D.C. Nov. 5, 1975). In this case, although defendants argued that they lacked control over the conditions prevalent in the D.C. Jail, the Court ordered detailed remedial actions because of the prisoners' rights.

4. Pugh v. Locke, Civil No. 74-57-N (M.D. Ala. Jan. 13, 1976). The Court issued an extensive order requiring the correction of deficiencies in several state prisons. The defendant admitted in open court that it had been conclusively established that the plaintiff's Eighth Amendment rights had been violated. The argument of defendant was that the conditions in the prisons could not be alleviated because of inadequate funding by the state legislature.

5. Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. Cir. 1975). In this case the Court, in declining to fully uphold the Order of the District Court relating to the publication of certain water pollution guidelines by EPA, recognized that because of agency budgetary commitments and manpower demands it would either be impossible for the agency to comply by December 31, 1974, or that compliance would unduly jeopardize other essential programs. Therefore, the Court found that EPA could petition for a stay of the order requiring publication by that date under certain circumstances. However, although the decision in this EPA case recognized the problems of agency resources, it did not stand for the proposition that the agency may disregard its statutory duty for an indeterminable period of time because it had more important tasks before it and a limited amount of resources.

6. Tuchinsky v. CPSC, Civil No. 219-73 (D.D.C. Nov. 14, 1974). The plaintiff was seeking a court order to affirmatively require CPSC to issue certain regulations pertaining to the toy amendments to the Federal Hazardous Substances Act. CPSC argued, among other things, that it was congressionally mandated to order its priorities on the basis of the danger presented to the consumers, and not on the basis of the chronological order in which various pieces of consumer legislation had been enacted. The argument was that the CPSA specifically provided that the priorities of the Commission would not be set by outside parties during the first years of its existence and that the statutory directive to address the problems of product safety in a comprehensive fashion could only be carried out by addressing the most important hazards first. Although this case did not involve

a petition under section 10 of the CPSA, but was an action to compel the initiation of rulemaking under one of the Commission's transferred acts, I think it is important to note that the Court, without discussing the Commission's priority arguments, denied its motion to dismiss and ruled that CPSC had a duty to issue the regulations, where possible.

None of these cases can be considered determinative in a law suit arising under section 10 of the CPSA. They are merely indicative of trends in judicial thinking. However, the express language of section 10 itself, as well as its legislative history, leads me to doubt the liklihood of success of a priority-ordering or lack-of-resources argument standing alone. Subsection 10 (e) of the Consumer Product Safety Act allows a petitioner to obtain a court order requiring the Commission to begin a rulemaking proceeding concerning a consumer product. For a court to issue such an order, the petitioner must convince the court, by a