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COMMITTEE FOR HAND GUN CONTROL, INC. v. CONSUMER P

December 19, 1974

COMMITTEE FOR HAND GUN CONTROL, INC., Plaintiff,
v.
CONSUMER PRODUCT SAFETY COMMISSION et al., Defendants



The opinion of the court was delivered by: FLANNERY

 Flannery, District Judge.

 This matter is before the court on cross-motions for summary judgment and opposition thereto. The court has considered the memoranda submitted by counsel and has heard oral argument. The case involves an interpretation of the Federal Hazardous Substances Act, 15 U.S.C. § 1261 et seq., and the Consumer Product Safety Commission's [CPSC] authority and obligations there-under. The court has jurisdiction under 28 U.S.C. §§ 1331, 1361, and 5 U.S.C. §§ 701-06. See Pickus v. United States Bd. of Parole, 507 F.2d 1107 (D.C. Cir. 1974).

 The Federal Hazardous Substances Act [FHSA] was enacted July 12, 1960. See Pub. L. No. 86-613, 74 Stat. 372. Under the Act a "hazardous substance" means, inter alia, "[any] substance or mixture of substances which . . . (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children." 15 U.S.C. § 1261(f)(1)(A). The administrator of the Act, originally the Secretary of Health, Education, and Welfare but now the CPSC, has authority to determine by regulation which substances meet the definition of "hazardous substance." Id. § 1262. If a substance is determined to be hazardous, the administrator may decide to exempt it from the Act's requirements, may require labeling, or may ban it from interstate commerce. Id. §§ 1262(c), 1261(p)-(q). The Act provides that proceedings for issuance, amendment, or repeal of regulations under the Act shall be governed by the procedures set forth in 21 U.S.C. § 371(e)-(g). Id. § 1262(a)(2); § 1261(q)(2). In pertinent part 21 U.S.C. § 371(e) provides that:

 
Any action for the issuance, amendment, or repeal of any regulation . . . shall be begun by a proposal made (A) by the Secretary on his own initiative, or (B) by petition of any interested person, showing reasonable grounds therefor, filed with the Secretary. The Secretary shall publish such proposal and shall afford all interested persons an opportunity to present their views thereon, orally or in writing.

 Shortly after the Federal Hazardous Substances Act was passed, the administrator of the Act, apparently on his own initiative, investigated the question of whether small-arms ammunition was a hazardous substance which should be regulated under the Act. It was determined that such ammunition did constitute a hazardous substance over which the government had jurisdiction. The government determined that all the labeling requirements of 15 U.S.C. § 1261(p) would not have to be complied with but rather required a modified labeling requirement containing the usual name of the ammunition, a warning regarding the danger to children, and the name and place of business of the manufacturer. This regulation is still in effect. See 16 C.F.R. § 1500.83(a)(6) (1974). Hence, it is without dispute that small-arms ammunition does constitute a hazardous substance within the Act's definition and that the administrator of the Act has jurisdiction to regulate that hazardous substance.

 In the instant case plaintiff is a non-profit corporation with thousands of members. On June 22, 1974, plaintiff petitioned the CPSC for a rule banning the sale, distribution, and manufacture of handgun ammunition under the Federal Hazardous Substances Act. *fn1" Plaintiff clearly is an "interested person" entitled to seek the issuance, amendment, or repeal of a rule. See 15 U.S.C. § 1262(a)(2); 21 U.S.C. § 371(e). Plaintiff's petition in effect seeks an amendment to the previously published rule. It does not question the previous determination that small-arms ammunition constitutes a hazardous substance but merely questions whether the previous labeling requirements provide adequate protection to the public. Thus, in its petition, plaintiff proposes that sale of handgun ammunition be banned except for sales to police, licensed security guards, the military, and licensed pistol clubs. See Exhibit A to Complaint. Of course, the CPSC could not order a ban such as is proposed unless it found that the hazard was very great and that no cautionary labeling would adequately protect the public. See 15 U.S.C. § 1261(q)(1). The Commission, through its Assistant Secretary Sheldon Butts, responded to plaintiff's petition on July 30, 1974. In this response the Assistant Secretary commented that the petition fell within the CPSC's jurisdiction under the FHSA and noted that regulations already had been issued under the FHSA which set up special labeling requirements for small-arms ammunition. See Exhibit D to Complaint. The Commission agreed to consider plaintiff's petition on the merits. Id. A hearing date was set to consider plaintiff's petition, which date subsequently was set back to September 30, 1974.

 On August 22, 1974 the CPSC requested its Office of General Counsel to prepare a memorandum regarding the propriety of CPSC action on plaintiff's petition. The General Counsel recommended that the CPSC had jurisdiction over handgun ammunition including the jurisdiction to ban non-defective bullets. See Exhibit E to Complaint. The General Counsel noted, however, that whether a ban would be necessary would depend upon a factual determination that no combination of labeling requirements adequately would protect the public. Id. The CPSC subsequently met in executive session and on September 6, 1974, issued a statement which, in part, concluded:

 
Upon consideration of a legal memorandum dated August 28, 1974, and prepared by the Commission's Office of General Counsel, the Commission finds that a hand-gun bullet falls within the literal meaning of the definition of a "hazardous substance" under the FHSA, and as such, all FHSA regulatory remedies are available to the CPSC.
 
Accordingly, the Commission denies petition HP 75-2. The Secretary will so notify the petitioner. Exhibit F to Complaint. (emphasis in original).

 After issuance of the above statement plaintiff initiated the instant action on September 20, 1974. Plaintiff's prayer for relief seeks three things: (a) a declaratory judgment that the CPSC has the authority, power, and jurisdiction under the FHSA to declare handgun ammunition a hazardous substance and to ban its manufacture, sale, and distribution in interstate commerce with the exception of use by the military, police, security guards, and gun clubs; (b) an order directing defendants to consider the merits of plaintiff's petition; and (c) an order directing defendant to pay plaintiff's costs and attorney's fees.

 The court begins first with the question whether the CPSC has the authority, power, and jurisdiction under the FHSA to promulgate the regulation proposed by plaintiff. *fn2" The CPSC agrees, and indeed admitted at oral hearing, that the CPSC has jurisdiction over handgun ammunition under the FHSA because such ammunition fits the definition of a hazardous substance under the Act. This certainly is borne out since there currently is a regulation in existence which requires particular labeling of small-arms ammunition. See 16 C.F.R. § 1500.83(a)(6) (1974). Thus, the CPSC position becomes one of admitting jurisdiction over the particular substance but asserting that a particular statutory remedy sought by plaintiff is not available. The CPSC bases this position "upon a careful review of the provisions of the Federal Hazardous Substances Act and its legislative history." Exhibit F, supra. However, there is no language anywhere in the Federal Hazardous Substances Act which indicates that some of the regulatory remedies are unavailable in regulating certain hazardous substances. And defendants have cited absolutely no legislative history of the FHSA which would so indicate. The only legislative history which defendants cite is that to the Consumer Product Safety Act [CPSA] which indicates that Congress decided that guns and ammunition would not be included within the definition of "consumer product" under that Act. Congress was not considering whether ammunition might be considered a "hazardous substance" under the FHSA. There is no indication that those Congressmen to whom defendants refer in their Memorandum were making reference to CPSC jurisdiction under the FHSA. *fn3" The court concludes that there is no persuasive evidence of Congressional intent regarding the applicability of the FHSA to handgun ammunition and absolutely no evidence that Congress intended to allow regulations including labeling but not including banning.


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