The opinion of the court was delivered by: MEANOR
These five factually indistinguishable actions present for consideration a question concerning the scope of a regulation promulgated by the Consumer Product Safety Commission (the Commission) declaring certain unstable refuse bins to be "banned hazardous product(s)" under the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq.
Section 8 of the Consumer Product Safety Act, 15 U.S.C. § 2057, delegates to the Commission authority to promulgate rules declaring certain consumer products to be "banned hazardous product(s)." In order to adopt such a regulation, the Commission must find
(1) a consumer product is being, or will be, distributed in commerce and such consumer product presents an unreasonable risk of injury; and
(2) no feasible consumer product safety standard under this chapter would adequately protect the public from the unreasonable risk of injury associated with such product.
15 U.S.C. § 2057. In 1975 the Commission was petitioned to commence proceedings "to establish safe design criteria for the manufacture of refuse bins." 42 Fed.Reg. 30295, 30296 (June 13, 1977). After studying a series of accidents involving the tip-over of metal refuse bins, the Commission compiled data which revealed that such accidents had resulted in numerous fatalities and serious injuries to children 10 years of age and under. 16 C.F.R. § 1301.3(a).
Based upon these findings the Commission concluded "that unreasonable risks of injury or death from crushing due to tip-over are associated with certain unstable refuse bins . . . which unreasonable risk this banning rule is designed to eliminate or reduce." Id.
Thus, the Commission promulgated a rule banning
16 C.F.R. § 1301.5(a). The effective date of this ban was June 13, 1978. 16 C.F.R. § 1301.8.
In 1978, investigators employed by the Commission examined refuse bins at a number of locations in New Jersey. These inspections were intended to determine whether refuse bins then in use met the standards prescribed in the regulations. Between November 6 and December 21, 1978, a Commission investigator named Stephen Garrita examined the refuse bin in use at each of the five locations relevant to these actions. Mr. Garrita performed the tests specified in the regulations,
and each of the five refuse bins failed, i. e., tipped over when the force prescribed in the regulations was applied. The test results were reviewed and confirmed by a compliance officer employed by the Commission. Each of the bins was of the size and metal construction specified by the regulations.
Three of the five refuse bins examined by Mr. Garrita are owned by Mauriello Disposal, Inc., a New Jersey corporation with its principal place of business in East Orange, New Jersey. The remaining two refuse bins are owned by Metro Disposal Corporation which has its principal offices in Middlesex, New Jersey. Mauriello and Metro (collectively referred to as "Claimants") are in the solid waste disposal business. The refuse bins were placed at the locations by Mauriello and Metro as part of the service provided by the claimants to the location owners or operators. The three refuse bins owned by Mauriello were located at Hav-A-Donut, Inc., a drive-in restaurant in Orange, New Jersey (Civ. No. 78-2906), Foodtown Store No. 238, Inc., a supermarket in Orange, New Jersey (Civ. No. 78-2907) and the Gateway Apartments, an apartment complex in Nutley, New Jersey (Civ. No. 78-2908). The bins owned by Metro were located at Korvette's Tire Center, a retail business in Woodbridge, New Jersey (Civ. No. 79-182) and an apartment complex named State & Fayette St. Gardens in Perth Amboy, New Jersey (Civ. No. 79-187). In each instance, the refuse bin had been placed in the parking lot of the respective locations. The affidavits submitted by Mr. Garrita and photographs annexed thereto establish that the refuse bins were easily accessible to members of the public.
Thereafter, Mauriello and Metro filed claims to the refuse bins and answers to the complaints in which the claimants asserted ownership and sought the return of the bins. All of the refuse bins had been seized pursuant to warrants of arrest issued by the court and have been placed in storage pending the outcome of these proceedings. The United States has now moved for summary judgment, seeking a declaration that the refuse bins are subject to condemnation and forfeiture as banned hazardous products. Claimants agree that there is no genuine issue of material fact, that the issue presented is a purely legal one and that the cases are ripe for summary judgment. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977).
A reading of the regulation banning certain refuse bins reveals four elements: (1) the refuse bin must have specified physical characteristics; (2) the refuse bin must fail the enumerated tests done under prescribed conditions; (3) the refuse bin must have been "produced or distributed, for sale to, or for the personal use, consumption or enjoyment of consumers, in or around a permanent or temporary household or residence, a school, in recreation or otherwise" and (4) the refuse bin must have been "in commerce or being distributed in commerce on or after the effective date of" the regulation. 16 C.F.R. § 1301.5(a).
As the above recitation demonstrates, the first two elements have been met. Claimants concede that the refuse bins are of the size and metal construction specified by the regulations. Additionally, claimants do not contest the validity or accuracy of the findings made by the Commission investigator, i. e., they concede that the refuse bins are not in compliance with the standards set forth in the regulations.
Similarly, claimants do not dispute that the third element of the ban is satisfied under the circumstances of these cases. This element tracks the statutory definition of "consumer product" contained in § 3(a)(1)(ii) of the Act, 15 U.S.C. § 2052(a)(1)(ii).
Of course, an article must be a "consumer product" in order to be within the regulatory authority of the Commission. The statutory definition is to be liberally construed in accordance with the stated purposes of this legislation, i. e., the protection of consumers from injury due to unsafe products. Consumer Product Safety Comm'n. v. Chance Mfg. Co., 441 F. Supp. 228, 231-34 (D.D.C.1977). See 15 U.S.C. § 2051(b). Furthermore, the enumeration of "locations and activities in which a consumer product may be used" set forth in the statutory definition and repeated in the refuse bin regulation was intended as "an assurance of comprehensiveness" rather than a limitation on jurisdiction. ASG Indus., Inc. v. Consumer Product Safety Comm'n., 193 U.S. App. D.C. 169, 593 F.2d 1323, 1328 (D.C.Cir.), cert. denied, 444 U.S. 864, 100 S. Ct. 133, 62 L. Ed. 2d 87 (1979). Thus, the term "consumer product" encompasses products, such as these refuse bins, if the products' distribution results in a significant number of consumers being exposed to the hazard associated with the product. See Kaiser ...