CPSC OGC Advisory Opinion No. 299

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,GEJ’JEf?AL

Rill &

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gade

Kee Xanuzacturing

Safety

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are.

becau,se

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particular

detezmination.

the

distribufion

nowerL

w%thin

term “consmer prxc,!lr-“1

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me

mowers

cf the

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mowers

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0. C.

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.

.

OF THE

COUNSEL

James F. Rill, Esquire

Collier, Shannon,

Scott

Attorneys-at-Law

1055 Thomas Jefferson Street,

Washington, D.. C.

20007

Dear

This letter responds to your letter of February 25, 1982,

in which you request a determination. of whether certain

high-whee

walk-behind lawn mower models

Inc., are consumer products and thus subject to the

Standard for Walk-Behind Power Lawn

16 C.T.R. Part 1205.

data you have submitted indicate-that these mowers

not

consumer products

consumers do not appear to “customarily”

use them.

As you know, the

“consumer product” is defined in

15 U.S.C.

2052(a)(l), and the term does not include “any

article which is not customarily produced or

sale to, or use or consumption by, or

of, a

legislative history of this section indicates that products

that are not used more

occasionally by consumers are not

c o n s u m e r p r o d u c t s .

Rep.

Cong.,

Sess.

27 (1972).

general,

have established no specific criteria to

determine whether consumers use a product

than occasionally

Instead, we review all available

relevant co

by

Company,

In the case of these Kee mowers, you have submitted

following data which indicate that the current use and

patterns of these mowers are such that these

do not fall

the definition of the

weight and cost of these

exceed those

consumer

.

stablished no specific criteria to

determine whether consumers use a product

than occasionally

Instead, we review all available

relevant co

by

Company,

In the case of these Kee mowers, you have submitted

following data which indicate that the current use and

patterns of these mowers are such that these

do not fall

the definition of the

weight and cost of these

exceed those

consumer

.

2.

.

isin

ed

gt

,‘s sal

Keels

’

tional

snarily

commezzial

.I tural

aore

infomation

all

rhis

than

t

t

t

ly

Eoward

Page 2

The 20 inch diameter rear wheels make these mowers

suitable for some mowing applications for which normal consumer

mowers would be unsuited.

3

A S shown b y the letters from Kee

es manager and

advert

agency, and from two o f

major distributors,

it app ears hat Kee s marketing and promo

activity

is

•

direct

Pr i

toward

and agricu

users.

4.

The three-point promotional plan for Kee's distributors

and dealers that you outline should help ensure that any sales

of these' mowers to consumers would be minimized and not

than occasional.

Our technical staff has reviewed the

you submitted, and no information that would contradict any

of the factors mentioned above has been brought to our attention.

Therefore, based on

of these factors, we reached our

conclusion that, at the present time, the use and distribution:

patterns of these mowers are such that they are not consumer

products.

We wish to stress, 'however, that

determination is

based primarily on the information supp lied by you, and, if

data showing different use or distribut ion pat erns become

available, our determination could

ge.

Fo r example,

if consumer use patterns were to change in the future so that

these mowers would be used more than oc casiona 1

by consumers,

they could then be considered subject

0 the s andard.

Sincerely,

which

Martin

Katz

General Counsel

ly on the information supp lied by you, and, if

data showing different use or distribut ion pat erns become

available, our determination could

ge.

Fo r example,

if consumer use patterns were to change in the future so that

these mowers would be used more than oc casiona 1

by consumers,

they could then be considered subject

0 the s andard.

Sincerely,

which

Martin

Katz

General Counsel

Rill & SCOU

Cha.r!ered

PJIorneys-al-Law

1055 Tholmas

Wee!, 3. W

D.

l'elephone:(202!

Writer's

Dircc!

Dial

(“Keel’)

I?roduct

Iyowers, 15

con-

15J.S.C. s2501,

Standard.L/

grotiing

Kee.

‘v,

§1205.l(c),

Keels

Nowers

ok Commercial

high-

Y

Descr ip-

Collier, Shannon.

Jefferson

Washington,

C. 20007

342-8400

Number

February 25, 1982

Margaret Freeston, Esq.

Acting General Counsel

Consumer Product Safety Commission

Washington, D.C.

20007

Dear Ms. Freeston:

T h i s l e t t e r i s a r e q u e s t o n b e h a l f o f K e e M a n u f a c t u r i n g

Company, Inc.

for an interpretation, pursuant to 16 C.F.R.

$10007, of the Consumer

Safety Act as it applies to the

Commission’s Safety Standard for Walk-Behind *Power Lawn

C.F.R.

Part 1205 (“Standard”).

Specifically-, Kee requests a

determination of whether the lawn mowers herein described

s t i t u t e s a “consumer product” within the meaning of the Consumer

Product Safety Act,

seq. and of such

Kee manufactures a line of high-wheel walk-behind lawn mowers

designed

to meet the needs of commercial users

i n r u r a l a n d

agricultural areas of the Southeastern United States. This region

is characterized by high weeds, deep sand and fast

Argentine

Bahia, Pensacola Bahia and St. Augustine grasses.

produces

approximately-high-wheel mowers annually, resulting in total

sales of

including sales of replacement parts.

Although the Kee high-wheel mowers do not satisfy any of the

express exclusionary criteria set forth at 15 C.F.R

as of the Southeastern United States. This region

is characterized by high weeds, deep sand and fast

Argentine

Bahia, Pensacola Bahia and St. Augustine grasses.

produces

approximately-high-wheel mowers annually, resulting in total

sales of

including sales of replacement parts.

Although the Kee high-wheel mowers do not satisfy any of the

express exclusionary criteria set forth at 15 C.F.R.

their cost, physical characteristics and proposed marketing plan

demonstrate that they are not consumer products within the terms or

objectives of the Consumer Product Safety Act or the Standard. To

construe them to be consumer products covered by the Act would

impose a substantial compliance burden on Kee without reducing any

actual risk of injury to consumers.

1.

High-Wheel

Possess the Physical Characteristics

Equrpment

At the suggestion of representatives of the General Counsel’s

Office during a meeting with Kee’s president, Mr. Duane Bustle, on

September 28, 1981, Kee has prepared a chart comparing its

wheel mowers with typical consumer-type mowers.

This chart demon­

s t r a t e s t h e s i g n i f i c a n t d i f f e r e n c e s between these two types of

products.

The mowers for which Kee requests an interpretation are

identified as C-20, C-22, CG-22, C-25 and CG-25.

tions of these commercial mowers and their specifications

are contained in Exhibit A, attached.

.

-

’

Mowers

105-183

commcrc:ial

msince-

nance

durabiltty.

I”

20”

n;irf;;nuse

f

c0asc0i

SCstcs.

8”

amdels,

tha

can1

manoeuvz-

c’toss

coamercial

3/8”

H.P.

-s

-Y

22”

-m

- w

Flower

the

7/8”

8”

’

uheels.

.

tubular’steal

Uheels

uhich

3

ot

-

21”

3/5

-

H.P.,

-

in

Information

uas

fsring

&

Toro.

cue lawnmower

• •

Page T w o

Comparison of High-Uhctl v. Consumer Walk-Behind

Kce

Typical Consumer

Ueinht

l b s .

Construction

Arc welded tubular steel frame suitable

for rough and continuous

use.

Deck made of rust-free, cast aluminum

coamercial

3/8”

H.P.

-s

-Y

22”

-m

- w

Flower

the

7/8”

8”

’

uheels.

.

tubular’steal

Uheels

uhich

3

ot

-

21”

3/5

-

H.P.,

-

in

Information

uas

fsring

&

Toro.

cue lawnmower

• •

Page T w o

Comparison of High-Uhctl v. Consumer Walk-Behind

Kce

Typical Consumer

Ueinht

l b s .

Construction

Arc welded tubular steel frame suitable

for rough and continuous

use.

Deck made of rust-free, cast aluminum.

Overall Appearance

Simple functional design to permit

optimal accessibility during

and greater

Blade Spindle

The spindle assembly consists of a

diameter blade shaft, two ball bearings,

a bearing housing, a blade and a sheave

for the belt drive. A V-belt from the

blade engine to the blade spindle trans­

mits the power required CO rotate the

blade spindle.

Wheels, Rear

diameter pneumatic knobby tread

cites, desi

over rough

agriculcura

sandy soil and

tall grass i n

areas o f S E

United

Wheels, Front

6” or

diameter rubber mounted on a

steel hub with two ball bearings. O n

most

front wheel

swivel

360 degrees fot greater

ability during extended use.

Handle

A plow shear design handle to provide

greaccr lateral control on rough terrain’

and grades.

Handle is

braced a n d

bolted to steel frame for continuous

u s e .

Height of Cut Adjustment

The blade is moved using a wrench C O

remove cwo

bolts.

Engine

5 H.P., 7

and 8 H.P. horizontal

shaft engines.

Suggested List Price

20” blade, 5 H.P. p u s h

22” blade, 5 H.P. p u s h

blade, 5 H . P . self propel

25” blade, 8 H.P. self propel

49-102 lbs.

No frame used.

Engine and handle

are bolted to steel stamped deck.

Smooth lines, plated handles a n d

attractive exterior finish d e s i g n e d

for eye appeal to consumer.

Blade is mounted on the engine

using the hole that is tapped

in the end of

crankshaft.

Crankshaft is

in diameter.

diameter with either plastic

or steel hub, usually with no

ball

bearings.

Same as rear

Two-piece

handle

bolted together and connected

co the mower deck by a pin or

bolt

ooth lines, plated handles a n d

attractive exterior finish d e s i g n e d

for eye appeal to consumer.

Blade is mounted on the engine

using the hole that is tapped

in the end of

crankshaft.

Crankshaft is

in diameter.

diameter with either plastic

or steel hub, usually with no

ball

bearings.

Same as rear

Two-piece

handle

bolted together and connected

co the mower deck by a pin or

bolt.

raised or lowered using

adjusting brackets CO

wheels are mounted.

No tools

required.

to 5 H.P. e n g i n e .

18”-20” blade, 3

3.5 H . P .

push

Avg. $210.

blade,

or 4 H.P. push

Avg. $274.

21”

22” blade, 3.5

4 H.P.

6 5 H.P. Self-propel

Avg. $ 3 9 5 .

2 5 ” blade, self propel -- (not

aware of any consumer models

this cut width.)

*Note:

on consumer type mowers

obtained from brochures

Southland, Mono, Falls/Sycamore, K

S, Harry, Snapper and

Pricing information was obtained locally, by Kee, from

dealers

and one chain discount store.

Rill & SCOII

Keels

-

Bachtold

*e Bachtold

14.,980);

fotc

District

may

minner.”

v.

F.2d

•••••

Stites

770

activit

31

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high-wheel’products.2/

21

Keels

21

73

• •

Collier, Shannon,

Margaret Freeston, Esq.

February 25, 1982

P a g e T h r e e

As this comparison demonstrates, the characteristics of Kee

high-wheel mowers provide a clear c o n t r a s t t o t h o s e o f t y p i c a l

consumer products.

Accordingly, they should not be covered by the

safety standard. This conclusion would also be consistent with the

treatment accorded the Toro commercial mowers which possess simi­

lar physical characteristics.

See CPSC Advisory Opinion No. 284,

(December 1, 1981).

2.

High-Wheel Mowers Are Marketed Primarily to Commercial

and Agricultural Users

In its advisory opinions to

and Toro the Commission

indicated that a manufacturer’s promotion and marketing patterns

are significant factors in assessing whether a product is a com­

mercial or consumer item.

Opinion No

imi­

lar physical characteristics.

See CPSC Advisory Opinion No. 284,

(December 1, 1981).

2.

High-Wheel Mowers Are Marketed Primarily to Commercial

and Agricultural Users

In its advisory opinions to

and Toro the Commission

indicated that a manufacturer’s promotion and marketing patterns

are significant factors in assessing whether a product is a com­

mercial or consumer item.

Opinion No. 278 (August

S t a t e s C o u r t o f A p p e a l s

emphasized this factor, stating that “there must be a significant

marketing of that product as a distinct article of commerce for sale

to consumers before the product

be considered as ‘customarily’

produced or distributed ‘in that

ASG Industries, Inc.

CPSC, 593

1323, 1328 (D.C. Cir.) cert. denied, 444 U.S. 864

L a s t m o n t h the United

District Court for the

District of Columbia reaffirmed the importance of the “significant

marketing” requirement, holding that residential aluminum wiring

is not a consumer product, because “it-is not customarily sold to

consumers as an article of commerce.” CPSC v. Anaconda Co., No.

1843 (D.D.C. Jan. 7, 1982).

Kee’s high-wheel mowers are not marketed as an article of

commerce for sale to the typical consumer.

Kee’s marketing and

promotional

is directed primarily toward commercial and

agricultural users

ee advertises

its high-wheel mowers in

Yard

Garden, Outdoor Power Equipment and Lawn Care Industry--ail

publications intended to reach commercial and agricultural users.

While Kee does not have reliable information on the ultimate

disposition of all of its mowers, known purchasers of Kee’s products

include municipalities throughout the

Bros., Inc., CPSC Advisory

Toro, supra at 1.

The United

the

o f C o l u m b i a h a s a l s o

Letters from Kee’s sales manager, Mr

awn Care Industry--ail

publications intended to reach commercial and agricultural users.

While Kee does not have reliable information on the ultimate

disposition of all of its mowers, known purchasers of Kee’s products

include municipalities throughout the

Bros., Inc., CPSC Advisory

Toro, supra at 1.

The United

the

o f C o l u m b i a h a s a l s o

Letters from Kee’s sales manager, Mr. Thomas

Stanley and from two of Kee’s major distributors,

attest to the predomi­

nantly commercial use of Kee’s

A r e c e n t l e t t e r

f r o m C h a r l e s G r a v e l , P r e s i d e n t o f

advertising agency confirms that commercial users are the

target of Kee’s advertising campaign. This letter is attached

as Exhibit B.

The letters from Mr. S t a n l e y , - a r e a t t a c h e d a s

Exhibits C and D.

Collier,

Rill

2~ Scott

its,,

d*Ice

/- advi,sed

Keels

asI

lot

applications.“2 7

to’

commercial-tvne

f

41y

im\is

Nonthly

Margaret Freeston, Esq.

Shannon,

February 25, 1982

Page Four

In planning its advertising strategy and other promotional

a c t i v i t i e s , Kee relies heavily on the advice of its major dis­

t r i b u t o r s .

butors is the letter it recently received from

which accounts

for a third of Kee’s total sales of hi h-wheel mowers. In a recent

letter to Kee’s President,

President For Finance,

that

primary marketing efforts

should be “aimed in the direction of serious, heavy duty grounds

care applications such

municipal governments,

1 industrial

grounds care and similar commercial

Typical of the feedback Kee receives from its distri-

I n a d d i t i o n

the commercially-oriented marketing strat­

egy just described, Kee’s promotional plan at the retail level is

carefully calculated to discourage the sale of i t s

3.

Compliance With the Safety Standard Will Impose an Unreason­

able Burden on Kee

h

municipal governments,

1 industrial

grounds care and similar commercial

Typical of the feedback Kee receives from its distri-

I n a d d i t i o n

the commercially-oriented marketing strat­

egy just described, Kee’s promotional plan at the retail level is

carefully calculated to discourage the sale of i t s

3.

Compliance With the Safety Standard Will Impose an Unreason­

able Burden on Kee.

The Commission has considered the degree of risk and the cost

of compliance to be factors relevant to a determination of whether

a product is a consumer or commercial i t e m . In connection with the

exclusion of reel-type mowers from the lawn mower standard,

for

example, the Commission observed that since reel mowers represented

less than 1% of the walk-behind mower market, the low risk of injury

from such mowers did not justify coverage within the standard. 44

Fed.Reg. 9997. Similarly, the high-wheel mowers of the type here

a t i s s u

market.,/

comprise only 1.1% of the total walk-behind power mower

Moreover, because these mowers are customarily operated

The letter of

attached as Exhibit E.

Figure reported in September-August 1981

Report of

Shipments and Inventory released by Outdoor Power Equipment

I n s t i t u t e .

RiU & SCOU

the

reduced.6/

F.2d

(rC.Cir.

STde

F.2d

Comrnlsslon’s declslon

“[t]he

sma:Ller

high-zeel

Kee

r$

LLiower-c

fpr Walk-

61

-

10

e

Margaret Freeston, Esq.

Collier, Shannon,

February 25, 1982

Page Five

b y k n o w l e d g e a b l e a n d e x p e r i e n c e d c o m m e r c i a l u s e r s ,

risk of

i n j u r y i s s i g n i f i c a n t l y

Where the risk of injury associated with a product is low, the

Commission and the courts have recognized that the cost of com­

pliance may determine the proper scope of a standard’s coverage.

See 44 Fed.Reg. 9998; ASG Industries, Inc. v

, 1982

Page Five

b y k n o w l e d g e a b l e a n d e x p e r i e n c e d c o m m e r c i a l u s e r s ,

risk of

i n j u r y i s s i g n i f i c a n t l y

Where the risk of injury associated with a product is low, the

Commission and the courts have recognized that the cost of com­

pliance may determine the proper scope of a standard’s coverage.

See 44 Fed.Reg. 9998; ASG Industries, Inc. v. CPSC, 593

1323

mowers from the Walk-Behind Mower Standard’s coverage was based, in

part, on the fact that commercial or specialty mowers are typically

manufactured by small-sized firms that would be subjected to an

unreasonable economic burden if forced to redesign their products

to comply with consumer safety features.

44 Fed.Reg. 9998. As the

Commissionobserved with respect to such companies,

economic

burden for these manufacturers could be greater than that for the

manufacturers of the

mowers usually used by consumers since

they must spread the cost of compliance over fewer production

u n i t s . ” I d .

The Commission’s reasoning is equally applicable to

mowers manufactured by Kee.

1979); Aqua

‘N’ Dive v. CPSC, 569

831 (5th Cir.

1978). Thus, t h e

to exclude certain large

the

To summarize,

the unreasonable economic burden that com­

pliance would impose on

as a small, specialty manufacturer, as

w e l l a s t h e s i m i l a r i t i e s i n p h y s i c a l c h a r a c t e r i s t i c s a n d p r o ­

motional approach between Kee’s high-wheel mowers and the Toro

mowers recently categorized as commercial, support an interpre­

tation from the Commission that Kee’s high-wheel mowers are not

consumer products within the meaning of the Consumer Product Safety

Act, 15 U.S.P.C. 52501 et s

. and the Safety Standard

Behind Power Lawn

C.F.R. Part 1205

l c h a r a c t e r i s t i c s a n d p r o ­

motional approach between Kee’s high-wheel mowers and the Toro

mowers recently categorized as commercial, support an interpre­

tation from the Commission that Kee’s high-wheel mowers are not

consumer products within the meaning of the Consumer Product Safety

Act, 15 U.S.P.C. 52501 et s

. and the Safety Standard

Behind Power Lawn

C.F.R. Part 1205.

Although Kee does not have precise information on the rate of

injury associated with high-wheel mowers,

i n t h e p a s t t e n

years the company has sold over

high-wheel mowers and

received reports of only 10 injuries, establishing a rate of

. - i n j u r i e s p e r m o w e r p r o d u c e d . O f t h e s e

c l a i m s , o n l y

two cases went to trial and in both instances Kee prevailed.

RiLl

4.

Q/AMES

- -.-I_-_I___c”--s--

Margaret Freeston, Esq.

Collier, Shannon,

Scott

February 25, 1982

Page Six

Kee considers the production and financial figures contained

i n t h i s l e t t e r t o b e c o n f i d e n t i a l a n d r e q u e s t s t h a t i t n o t b e

released by the Commission unless Kee is first given notice and an

opportunity to document its request for confidential treatment.

F. RILL

Attorney for Kee

Manufacturing Company

JFR: jab

Enclosure

5

.

.:

H.P.

4% H.P. CLINTON’

SEMI PNEUMATIC TIRES

8 H.P. KOHLER’

AVAILABLE WITH OR WITHOUT SELF PROPEL

I

5

ERIGGS I/C”

I

(At N.C.1

750

‘Icast Iron)

BLAOE CLUTCH

478

5

BRIGGS

lWto3”

C

(4/w ModelI

PNEUMATlC TlRES

N.C.1

750

8RlGGS

I

5

8RlCGS I/C*-

4%

Iron)

I

SlOE

609

KOHLER-

SIDE

BLAOE

I/C

e~ufoped

Appliaions. StaMrd

wit3

cvliner

both sides, aual

aw

deener, StellitcB

valve

%?a~,

H.P.

ADJUSTABLE

FIXED

SEMI

(At

S HP.

AVAILABLE WITH OR WITHOUT SELF PROPEL

I

8 H.P.

H.P.

H.P. CLINTON.

‘(cast

GUARDS

GUARDS

CLUTCH

••*

Series

for Industrial/Commercial

cast won

sleeve. ball •••••••••

element

exhaust

and

positive type valve rotator.

I

C

I

609

KOHLER-

SIDE

BLAOE

I/C

e~ufoped

Appliaions. StaMrd

wit3

cvliner

both sides, aual

aw

deener, StellitcB

valve

%?a~,

H.P.

ADJUSTABLE

FIXED

SEMI

(At

S HP.

AVAILABLE WITH OR WITHOUT SELF PROPEL

I

8 H.P.

H.P.

H.P. CLINTON.

‘(cast

GUARDS

GUARDS

CLUTCH

••*

Series

for Industrial/Commercial

cast won

sleeve. ball •••••••••

element

exhaust

and

positive type valve rotator.

I

C

I

QuaMy

81

To

expxience

w&in

cqrised

/I,

mwers.

In-curKee

rrmers

caxe coxrpanies,

intistrial coqiexes,

in/-are

conposed

horseper, the

consumer

ham=

TS/eb

Tam

Fanaqer

P. 0. BOX 2 195 / Braden

Norida

/

755859 I / CaMe: Kee

.-^- .

l l l -,-. yl -f ^ ^

Lawn

Garden Equipment Since 1948

.

January 28, 1982

whom it may concern:

Based on my

working

the dealer network which is

of-dealers throughout

it is my opinion

that the commercial consumer buys the bulk of Kee high wheel

high wheel

will be found in the

parks departments, lawn

and groves.

farm

By far the majority of machines sold

in the categories stated above.

Because of the heavy construction and the high

typical

would

little or no use for a machine such as ours.

Yours truly,

Stanley

Sales

ton,

33508, U.S.A.

18 13)

.

‘9/