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MAYER, BROWN & PLATT

Process Clause and the constitutional separation of powers are so severe that it is hardly necessary to suggest that there might be yet other problems. But a substantial case can be made against the bill on substantive due process and takings grounds.23/

H.R. 3991 operates within the framework of the existing Consumer Product Safety Act, and mandates the imposition of a refund remedy in a manner that we have shown violates the separation of powers and the Due Process Clause. But if we look at the bill somewhat differently--as establishing a new legal rule, and applying that rule retrospectively--serious substantive due process and takings concerns emerge. Powerful arguments can be made that this kind of retrospective economic regulation is always a taking in violation of the Fifth Amendment.24/ In its most recent case evaluating retroactive economic legislation, the Supreme Court upheld a law that imposed liability on companies that withdrew from multiemployer pension plans. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984). In order to prevent anticipatory withdrawals while the bill was being debated in Congress, the drafters made the withdrawal liability retroactive to the date on which the bill was publicly submitted to Congress for consideration.25/ In upholding the statute, the court made it clear that retroactive legislation is subject to an additional constitutional inquiry beyond that to which ordinary economic legislation must submit. In order to survive that inquiry, the retroactivity of the law itself must serve a valid purpose.26/

In Pension Benefit Guaranty Corp. v. R.A. Gray & Co., the concern about anticipatory withdrawals while the bill was pending was seen as justifying the retroactivity. But it is hard to see how the retroactive application of H.R. 3991 can be said to

23/ The Fifth Amendment provides in part that "private property [shall not] be taken for public use, without just compensation."

24/ See R. Epstein, Takings: Private Property and the Power of Eminent Domain 255-59 (1985).

25/ Id., 467 U.S. at 723.

26/ Id., 467 U.S. at 730.

MAYER, BROWN & PLATT

promote the government's safety concerns. The government could prohibit the future use of 3-wheel ATVs--as it has prohibited their sale--and that would fully accomplish any rational safety concern. The only additional purpose of giving retroactive relief would be to give a windfall to the past willing purchasers of 3-wheel ATVS. That, we submit, is not a purpose the takings clause permits.

H.R. 3991, in singling out the five ATV distributors for harsh retroactive liability, goes substantially further than retroactive legislation previously upheld by the Supreme Court 27/, and interferes with the justifiably settled expectations of the manufacturers in light of the consent decree. The manufacturers negotiated a settlement of the lawsuit against it in good faith, and made substantial, costly concessions to the government. Now Congress seeks to step in and use the consent decree as a starting point for yet further penalties.28/ The harshness, unfairness and exorbitant nature of this measure raises substantial due process and takings concerns.

Conclusion

All of the constitutional problems with H.R. 3991 reduce ultimately to one mischief: the bill is an attempt to do through legislative fiat what can validly be done only through judicial proceedings or adjudicatory administrative proceedings subject to judicial review. By trying to circumvent the other branches of government and to bypass the procedural requirements of the Act, H.R. 3991 violates the constitutional separation of powers, the Due Process Clause, and the Takings Clause. And it does so quite unnecessarily. The Consumer Product Safety Commission has aggressively pursued the manufacturers of 3-wheel ATVs, and has compelled them to agree to cease all sales of the vehicles and to sponsor training and educational programs and materials for ATV owners. The Commission even retains the right to seek additional

27/ See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976).

28/ The provisions of H.R. 3991 also raise substantial problems under the Equal Protection Clause.

MAYER, BROWN & PLATT

administrative remedies if new substantial evidence indicates they are warranted. With fair and constitutional procedures accomplishing their purpose, it would be foolhardy for Congress to step in with an unconstitutional and unfair measure of its

own.

MAYER, BROWN & PLATT

/s/

Paul M. Bator

John P. Wilson Professor of Law
University of Chicago Law School

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American Academy of Orthopaedic Surgeons

317 Massachusetts Avenue, N.E. - 1st Floor, Washington, D.C. 20002 (202) 546-4430

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We would like to share with you a position statement that the American Academy of Orthopaedic Surgeons has published on this issue. As physicians we

believe that we not only have an obligation to provide our patients with the best possible care, but we also have an obligation to educate our patients and policy makers regarding recognized hazards.

The Academy would appreciate this position statement being made a part of the hearing record.

If we can be of assistance to you, please do not hesitate to contact Mr. Nicholas Cavarocchi in our Washington office.

Enclosure

Sincerely,

Thomas B. Hameron Jr

Thomas B. Dameron, Jr., M.D.

PARK RIDGE OFFICE

222 South Prospect Avenue

Park Ridge inois 60068-4058

(312) 823-7166

Fifty Fifth Annual Meeting-February 49, 1988
Specialty Society Day-Sunday, February 7
Atlanta, Georgia

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American Academy of Orthopaedic Surgeons

A Position Statement"

222 South Prospect Avenue Park Ridge, Illinois 60068-4058

312/823-7186

Contact Mark W Wieting

All-Terrain Vehicles

All-terrain vehicles (ATVs) are three- or four-wheeled motorized vehicles designed primarily for off-the-road use. They have handlebars like a motorcycle, and the rider straddles the body of the vehicle. With large, soft tires, ATVs have a relatively high center of gravity. Some can reach speeds of 50 mph.

No state or local license is required to operate an ATV, most of which are used for recreation. There are no national safety standards for their construction and only a few states have issued regulations for their use. ATVs are often operated by children, some as young as age five.

ATVs have been involved in an alarming number of injuries and deaths, particularly among young people. Numerous groups have questioned the inherent danger of the design of these vehicles, and in June 1986, the United States Consumer Products Safety Commission issued a “Safety Alert" on ATVs.

In light of statistics that show a trend of increasing injuries and deaths resulting from the use of ATVs, the American Academy of Orthopaedic Surgeons considers ATVs to be a significant public health risk.

Over the past five years, more than 550 deaths related to ATV use have been recorded. More than 40 percent of the dead were children 16 years of age or younger.

From 1984 to 1985, the number of ATV-related injuries treated in emergency departments in the United States increased from 63,900 to 85,900. During the first six months of 1986, 45,000 ATV-related injuries were treated in emergency departments. Nearly one-third of these injuries (30 percent) involved children between the ages of five and 14.

The American Academy of Orthopaedic Surgeons supports the July 1986 recommendation of the United States House of Representatives Committee on Government Operations to the Consumer Products Safety Commission that it issue a recall on three-wheeled all-terrain vehicles.

The three-wheeled ATV is inherently unstable. When the operator executes a sharp turn at even moderate rates of speed, the high center of gravity of the vehicle, the short wheel base, and the short turning radius combine in many cases to cause the vehicle to turn over. Studies have shown that 75 percent of accidents involving three-wheel ATVs result from tipping and overturning. The rider may be thrown from the vehicle or crushed beneath it as it rolls.

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