warnings, et cetera, are supposed to last for 10 years, this bill authorizes the Commission, instructs the Commission to put out different enables them to put out different provisions and requires that it be done within 18 months. It simply takes what has been agreed and authorizes the Commission one of the agreers, to set it aside. We could well be in the position where we could have spent $10, $20 or $30 million on this training program, and along comes the Commission and says scrap all of that and start all over again. Mr. BARTON. What does that have to do with them testifying before this committee? Mr. CUTLER. That's your second question, and I will be glad to deal with that. We did not wish ourselves to testify before the committee while the decree is pending judicially before Judge Gesell. He has not approved this Consent Decree yet. Indeed, the first date for this hearing was set while we were still in negotiations of the decree which we have now agreed on and filed last Monday, subject to Judge Gesell's approval. Judges don't take very kindly to statements made out of their own hearing room about what is pending before the tribunal. We would much preferred to have had this hearing after April 18. If the judge approved the Consent Decree, we would be happy to come. And we will come back again whenever you want us. So far as Commission testimony is concerned, that is an entirely different matter. I don't know that we have taken any position on that. Mr. FLORIO. The gentleman's time has expired. Mr. BARTON. Mr. Chairman, I would ask permission to submit several other questions for the record. Mr. FLORIO. Without objection. We trust that our witnesses will comply. Mr. Nielson. Mr. NIELSON. Mr. Toms, you have been ignored, so I am going to ask you some questions. On page three you make a statement that we expect to meet the objectives of 1,000 trained instructors within 6 months to the decree's approval. Is that Honda alone, or is that the entire industry? Mr. NIELSON. It was not clear from the context. On page four you have a statement that I am distressed that private industry is of fering financial incentive for training. Clearly, the most significant incentive for training would be for the States to enact laws requiring ATV's and so on. Do you know of any other case where industry has been forced to pay people as an incentive to come and take training? Mr. Toмs. None, whatsoever. Mr. NIELSON. As far as you are concerned, it is completely unprecedented? Mr. Toms. It is an unprecedented move. Mr. NIELSON. Who is going to pay this money that industry is going to have to offer these people to come to training? Mr. Toms. It is going to come from the distributors. Mr. NIELSON. It's from the distributors. Mr. Claduhos, you mentioned your small-sized ATV, children sized ATV. Do you also manufacture large-sized ATV's? Mr. CLADUHOS. Yes, Congressman Nielson, we do. Mr. NIELSON. Insofar as the large sized ATV's are concerned, you concur with the other distributors on those? Mr. CLADUHOS. Yes, absolutely. I want to add if I may, Congressman Nielson, that the CPSC has made it very clear that if you ban the child-sized and youth sized ATV's, what you are going to do is to encourage those children and those youths to go on mismatched ATV's where the high risk exists. Mr. NIELSON. If they passed a law saying you have to be 14 or more to ride for example, that would eliminate your small ATV's? Mr. CLADUHOS. That is correct, Congressman. Mr. NIELSON. Let me ask another question. I have a whole series of questions for Mr. Willens. You said the Final Consent Decree is current before Judge Gesell. By the way, Mr. Cutler said he is a tough, hard-nosed judge if he decides. What is he if he doesn't decide? Mr. WILLENS. He is a distinguished judge in any event. I don't think he would resent in any way, the description that Mr. Cutler has put into the record. Mr. NIELSON. He said he is tough and hard-nosed if he agrees to the Consent Decree. He left the other phrase out. Mr. CUTLER. What I meant by that, Mr. Nielson, was he hasn't even agreed yet and he may decide to reject it. If he agrees, he is going to enforce it. He is going to hold us up by our toes. Mr. NIELSON. If he doesn't agree, he's no longer tough and hardnosed? Mr. CUTLER. He's just as tough and hard-nosed. Mr. NIELSON. Just curious. Mr. CUTLER. If he disapproves, there will be a litigation. Mr. NIELSON. He said he is going to hold a final hearing on this issue by April 18. What is the current status, is he still going to meet that deadline? Mr. WILLENS. Yes, Congressman. The distributors and the Department of Justice submitted their briefs in support of the Final Consent Decree. He gave 2 weeks for the critics, including the State Attorney Generals, to file their criticisms of the Final Consent Decree. Mr. NIELSON. Will Members of Congress be allowed to testify before the Judge? Mr. WILLENS. Senator D'Amato has been given the status of amici-a friend of the court, and there is only one of them I am reminded. He will be, I think, participating. We don't know exactly how, but everyone has been invited to reach agreement as to how much time they will be allocated on April 18. Mr. NIELSON. All interested parties can participate? Mr. WILLENS. I think Mr. NIELSON. Other Members of Congress, like Mr. Barton, for example. Mr. WILLENS. I think that written documents without doubt would be received by the court. I think only those who have requested the status of amici will be allowed to participate orally at the hearing on April 18. Mr. NIELSON. What will happen if the judge does not approve the Consent Decree or if he insists on it plus refunds, what would your position be in that case? Mr. WILLENS. The second question is easier than the first, Congressman. If he were to insist as some of the critics have, that there be a refund requirement, the case would not be settled. It would be litigated. There would be no reason for the industry to settle on those terms. Mr. NIELSON. What if he doesn't approve the decree at all? Mr. WILLENS. There, it would depend on exactly what he found to be the deficiencies in the decree. It might be that there might be some minor deficiencies in the decree that were either brought to his attention by the critics or others, that the parties might then reconsider and represent to the court. It would depend on the grounds that he identified for concluding that this was not a fair, reasonable compromise of this disputed litigation and in the public interest. Mr. NIELSON. This Final Consent Decree requires a 1 year moratorium on CPSC for further action in this regard. What happens if the decree is passed by the judge and this bill is also passed; what then happens? Mr. WILLENS. In the first place, we have a clear conflict with respect to some of the provisions of the bill that are duplicative or inconsistent with the provisions of the Consent Decree. We would either have to-either those would be tailored, changed up here in Congress or we would have to go to the court to seek some change in our responsibilities in light of the changed legislative picture. Mr. NIELSON. Do you think Congress should wait until after April 18? Mr. WILLENS. It seems to me at a minimum, Congressman, that the subcommittee should wait to see whether there is a Final Consent Decree. Judge Gesell, among other things, acts promptly as was evidenced the last time we were before him. There will be a hearing on April 18 and we would expect within 1 or 2 weeks that the judge would issue an opinion deciding whether to approve the Consent Decree or to reject it, and if rejected on what terms. We ask the subcommittee at the very least to defer judgment about the bill until that point. Mr. FLORIO. Would the gentleman yield on that point? Mr. NIELSON. Yes, but I would like Mr. Cutler's response. He acted like he had something to say on that issue. Mr. CUTLER. I was only going to add, Mr. Nielson, that if Congress should enact this bill in its present form- Mr. NIELSON. Before April 18- Mr. CUTLER. Before or after April. I don't know what the judge will do on April 18. He might very well go ahead and still enter his decree. We would pursue our judicial remedies from any order the Commission issued pursuant to this bill, including the Constitutional arguments we have respectfully submitted to you. If we fail in seeking to overturn those orders or set aside those orders, we would certainly go back to the Consent Decree court and say to it that a new situation has developed and now we don't know wheth er it is fair to ask us to comply with the provisions of this decree such as the provisions on training and other very heavy expenditures which we are about to make which the Commission has just been empowered to change unilaterally within 11⁄2 years. Mr. NIELSON. I will yield to the chairman on the premise that he will yield back. Mr. FLORIO. I just want some opinion, particularly from Mr. Cutler, the distinguished constitutional scholar. Are the deficiencies in this proposal as you have described them, from your constitutional standpoint, are they inherent in the legislation or is it as a result of the interaction between the court settlement and the legislation. To put it a different way, if there was never any action brought by the Consumer Product Safety Commission and therefore no agreement, would you be up here making the same argument that somehow the bill is inherently constitutionally deficient? Mr. CUTLER. On the first of our arguments, Mr. Chairman, that this is in effect a legislative trial-a trial by legislature in which the legislature determines that the Bishop of Rochester's cook shall be boiled in oil and that A shall pay damages to B, we would still have that argument. Mr. FLORIO. You wouldn't have that argument if there was no action. Mr. CUTLER. We would have that argument regardless of whether there was a pending case. We think the constitution means-the justices have said many times-that Congress is supposed to act by general rule. Congress is not supposed to determine that A violated such and such Mr. FLORIO. There is no reference in Mr. Barton's bill to defendants. We are talking about anyone who is similarly situated prospectively or retroactively. Mr. CUTLER. There are five manufacturers of three-wheel vehicles. This is the law Mr. FLORIO. No, Mr. Cutler―― Mr. CUTLER. Three-wheeled vehicles made by five manufacturers. Mr. FLORIO. I understand what you are saying. You are obviously trying to be an advocate for your cause. You are not telling us that because there happens to be five manufacturers, now that the Congress is prohibited from broad-based public safety legislation, that would impact 15, if there were 15, or two if there were only two. Mr. CUTLER. Let me give you an example of something that probably isn't going to happen. Congress might very well be able to pass a law saying that no more handguns may be sold because of the great danger that they present to human life, notwithstanding the NRA. Congress could not pass a law in our judgment, saying that every handgun manufacturer who has sold a handgun over the last X years shall make a refund to the buyer of that handgun because handguns are now ruled out and they are no longer saleable in the market. We submit you cannot do that constitutionally. Mr. FLORIO. I don't know if you have heard of the Superfund legislation. Mr. CUTLER. Yes, I have heard the Superfund legislation. The Superfund legislation leaves it open to a hearing before an administrative tribunal and eventually to a court to decide whether the chemical itself, the waste is poisonous, whether that company put it there, whether it bears any responsibility. It is an entirely different thing, just as the black lung legislation is an entirely different thing. It still is a factual hearing as to whether that particular coal miner contracted black lung as a result of working at that mine. Mr. FLORIO. You are making the argument that notwithstanding the existence of the settlement and the interaction between this legislation and the settlement, the nature of the activity of this bill-the proposed activity-makes it beyond the pale of constitutionality? Mr. CUTLER. With respect to the refund. With respect to the other provisions such as the one saying the Commission shall, despite its settlement on what the training program will be, et cetera in the court decree, we say there you are violating a second principle, which is to legislate a rule of decision for a particular case. This is the so-called Klein Doctrine. Mr. FLORIO. I respect your legal skill. I thank the gentleman. Mr. NIELSON. I would like to ask some questions having to do with your distributors and any of those attorneys can answer this one. Some of the elements of the preliminary Consent Decree are binding, whether the final decree is agreed to or not; is that true? Mr. WILLENS. Yes, that's true, Congressman. Mr. NIELSON. Which are those elements that are binding on you, even with no decree? Mr. WILLENS. Among the most important ones, Congressman, is the undertaking to stop distributing new three-wheel ATV's. Mr. NIELSON. That will happen in any case? Mr. WILLENS. Yes. And it has been under implementation over the past several weeks, and to offer to repurchase or provide credits for the dealer inventories of those vehicles. In addition, there's an undertaking in the preliminary Consent Decree to put out a poster of a safety nature and information that has been done and remains in effect. The age recommendations that are changed under the preliminary Consent Decree is another one of those provisions that we affirmatively undertake to enforce. Mr. NIELSON. The man who had been killed 4 years ago—and his widow received it. Is that the sort of thing that you are sending out to all the people that have bought your equipment? Mr. WILLENS. Yes, there was a requirement under the preliminary Consent Decree to send out what was called a safety alert that set forth in negotiated language, a statement of the risk and hazards associated with the product. Mr. NIELSON. Can we depend on dealers to comply with the dictates of the settlement? Mr. WILLENS. We think they are Mr. NIELSON. What has been your experience with dealers; do they comply with the regulations quite well? Mr. WILLENS. Our experience to date Congressman, and we are relying here on reports of a CPSC monitoring function, demonstrat |