As indicated in our meeting this morning, we are enclosing for consideration a draft additional paragraph to be added to the present draft of the Reservation of Rights section of the final decree.

This submission is made on behalf of all defendants.

Howard Willens will be in touch with you about this later

today.

Enclosure

Sincerely,

Lloyd N. Eutha

Lloyd N. ctièr

3/11/88

Proposed Addition to Reservation of Rights Section

In the event that the Commission takes action to impose

or enforce obligations on the defendants relating to ATVs that are not within the reservation of rights set forth in this paragraph, any defendant may apply to the Court to be relieved of any -further obligations imposed by this decree that were consented to by such defendant or defendants in reliance on the limitations set forth in such reservation of rights. Such application shall be in addition to any other remedy available to such defendant to challenge any such Commission action.

Mr. FLORIO. The gentleman from Texas.

Mr. BARTON. I just have one other question or comment based on the dialogue in the last few minutes. I have made a pretty good faith effort to meet with all of the members of the Commission and the staff-I think I have met with everyone at the table-in trying to get educated on this issue.

When we talk about the cost of the refund, the $2.5 million cost which is bound to be some worse case internal scenario proposal, I would like to point out that in addition to what Chairman Florio just said, the indication that I get is that you all have been encouraged at every step of the way not to communicate with the Congress, not to work with the Congress, not to inform us.

I understand with the separation of powers that there's got to be a little standoff position, but just as an example, I am told that on December 16 the Deputy Assistant Attorney General, Mr. Synkar, urged the Commission to specifically keep the Congress in the dark about the ATV's negotiations.

We are reasonable people up here. If you folks will provide us with the information and work with us, I think we will work with you. I think if you need a little bit more money, even under Gramm-Rudman, I think we could come up with $2 or $3 million. If you stonewall us and intentionally mislead us, we are going to do what we think is right based on the information we have.

Mr. MARCHICA. Mr. Barton, if I could respond. As the Chairman of the ATV Task Force from April 3, 1985, until the time when major responsibilities were given to legal staff December 12, 1986, every request by Congress which was made

Mr. BARTON. You have been very forthcoming with me.

Mr. MARCHICA. The information was provided. There may be other circumstances, because of the problems involved with litigation, but certainly during the time when I was running the ship you got everything that you asked for.

Mr. SCANLON. That is the case with every Member of Congress that I am familiar with. I have had no complaints from any member that anything requested has not been received.

Mr. BARTON. What about the Deputy Assistant Attorney General's request to keep us in the dark?

Mr. LACY. Could I respond. First of all, we do have, I believe, minutes of that meeting which was a closed meeting that have a reference to the comment. So we would be certainly-if we haven't provided it to you, we would certainly want to provide that to you. Mr. BARTON. I think the chairman would be interested. I would be interested.

Mr. LACY. Can I finish? In defense of my colleague Mr. Synkar at the Justice Department, he didn't say quite that. He didn't say quite to keep the Congress in the dark. However, I must point out that

Mr. BARTON. What did he say?

Mr. LACY. It is in the restricted-it was a closed meeting and it is there. We will provide it to the committee for your view.

Mr. BARTON. Clean it up and tell me.

Mr. LACY. I do want to point out in a substantive sense that the comment was made at about 2 p.m. and the Deputy Attorney General, Arnold Burns received a call from Senator D'Amato's office

within an hour and one-half that discussed everything that went on at that meeting.

So I don't think that it can be said fairly that the Congress was kept in the dark. Congressman Barnard's office called me at 4:30 p.m. with a series of questions on the same subject.

Mr. BARTON. My point is, if I didn't say it at the beginning of this hearing I've said it before on public record, that this is a kind of multi-pronged approach. The Consumer Product Safety Commission, concerned citizens, the Justice Department and the U.S. Congress working together, can solve this problem.

If we decide that we are going to just fight each other for whatever reason, it is just going to delay a reasonable solution to the problem. That is the main point that I would like to make.

I am told that we now have the minutes of that meeting. How we got them, I don't know.

Mr. LACY. You must have requested them.

Mr. BARTON. With the chairman's discretion, I will read them into the record right now—

Mr. FLORIO. That would be fine. I would note and I am sure that the gentleman will note, that this is not a transcript. These are minutes of somebody's notes as to what it is that took place. Please proceed.

Mr. BARTON. This is dated minutes of closed Commission meeting, December 16, 1987, 5401 Westbury Avenue, Bethesda, Maryland. Commissioners present: The Chairman, Mr. Scanlon; The Commissioner Carol Dawson, the Commissioner Anne Graham.

I am reading from page five of the record. It says as a final matter, Mr. Synkar recommended that the December 30 press conference and other details of the negotiation be kept as secret as possible in order not to jeopardize the proposed action. Chairman Scanlon asked if that recommendation includes CPSC's, Congressional committees, to which Mr. Synkar responded-yes. The Commissioners then agreed that they would not talk about this matter with anyone, including the Congress.

Commissioner Graham noted that if a specific request for information is received, she would want to be responsive-we appreciate that she would want to be responsive to Congress and would refer the request to the general counsel.

For the Commission, Sadie E. Dunn, Secretary.

Do you all disagree with this as accurately portraying what went on?

Mr. LACY. Of course.

Mr. BARTON. OK. I yield back to the chairman.

Mr. FLORIO. If there are no further questions of this panel, we appreciate your participation once again. Thank you very much for your time.

The committee's intention is to take our next witness. We intended to take a panel but the Attorney General of Tennessee has a travel commitment. We are going to take Attorney General Cody, listen to his testimony and excuse him as rapidly as we can after we ask the appropriate questions.

At that point we will take a recess and reconvene for our last two panels. We are now pleased to have the Honorable W.J. Michael Cody, the Attorney General of the State of Tennessee. Mr.

Attorney General, we welcome you to our committee. Your prepared statement will be put into the record in its entirety. You may feel free to proceed in a summary fashion.

STATEMENT OF W.J. MICHAEL CODY, ATTORNEY GENERAL OF

TENNESSEE

Mr. CODY. Thank you, Mr. Chairman. I appreciate the committee's concern about my schedule. I may be on the edge, and I don't want to in any way short change this. My associate has got word to cancel that flight and get me on another one. If the committee needs me, this is too important for the State for me to worry about a plane. I do appreciate your consideration.

We would like to thank all of the members of the committee for providing us this opportunity to address what the States believe to be a very serious consumer safety problem posed by the all terrain vehicles, and to talk about the bill introduced by Congressman Barton which seeks to alleviate that problem.

I would ask that the record reflect the balance of my comments, which go into some detail, and I will touch the high points. Also, I would like to submit into the record, a unanimous resolution of every Attorney General in the United States addressing the ATV problem, pointing out our concerns about the inadequacy of the consent settlement that has been recommended to the court and our support generally of legislation of this nature.

Again, I repeat that is a unanimous expression of every Attorney General in the United States, as the Chief Law Officer and as the Consumer Advocate in our various States.

Particulary in Tennessee as of September 4, 1987, 27 people have died as a result of ATV accidents. Another child was added to the death toll in Tennessee as recently as February 29 of this year, when his ATV simply overturned when he was going up an incline on to him crushing him. That young boy was only 13-years-old.

Experts who have studied the causes of ATV accidents have pointed out several problems. The design of the vehicle is such that its successful operation requires skill that is neither instinctive nor easily mastered. The most experienced, skillful rider may still be injured on the vehicle. Of course, as you have heard, the risk of injury is particularly serious for children under the age of 16.

They lack the physical and judgmental abilities to operate these machines safely. Furthermore, children under the age of 12, we believe, cannot even operate the child sized ATV's safely. The risk of death or serious injury associated with these machines is compounded by the fact that the manufacturers have consistently in the past, marketed these vehicles as being safe, fun and easy to ride.

The Consumer Product Safety Commission, of course, has the primary responsibility to protect all U. S. citizens from dangerous and hazardous products. In our opinion, as unanimously expressed by all of the Attorney's General of this country, the CPSC has not adequately met its obligation in the case of the ATV's.

In its lawsuit against the manufacturers, the CPSC and the Justice Department acknowledge in very strong language, that ATV's are imminently and unreasonably hazardous. Nevertheless, we be