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Senator HARTKE. I was not here this morning when the testimony was submitted by Captain Terry.

Did that trailer meet the standards?

Mr. OмSOм. I do not know. That trailer is in Washington and falls under the jurisdiction of the Trailer Coach Association.

Senator HARTKE. It was manufactured in Oregon?

Mr. OмSOM. Everything east of the Rocky Mountains-if you draw a line right up through Colorado, Oklahoma, Texas, and right on north-is in the jurisdiction in which we function as the Mobile Homes Manufacturers Association; and our allied area, our sister, if you will, functions west of the Rocky Mountains.

I cannot honestly tell you about that particular model. I do not know. But I will say this: I looked at a floor plan that was passed around here and from looking at the floor plan the general layout could be built under the uniform building code. It could be built in Virginia. It could be built right here.

Senator HARTKE. I can understand your feeling that you should have no more strict standard than that of the building code in regard to an ordinary house. But that in and of itself does not meet the problem, does it? In other words, quite obviously the mere fact that you have a building code which is inadequate is no excuse for having a mobile home that is inadequate. Maybe the building code should be changed.

Mr. OмSOм. Quite true.

Senator HARTKE. The National Commission on Product Safety concluded that the so-called consensus principle, which is at the heart of all voluntary standardmaking, is not effective in that it does not elevate safety standards.

In addition, it stated: "It permits the least responsible segment of an industry to retard progress in reducing hazards."

Is that your experience in working with ANSI?

Mr. OмSOм. It might be as far as ANSI is concerned, but this also happens to be a National Fire Protection Association standard. It is a joint standard.

Senator HARTKE. Is the effect of the so-called consensus principle a situation whereby the least responsible manufacturer, in terms of the level of safety of this product, is the one who prevails in the voluntary standardmaking procedure?

Mr. OмSOм. It has not proved true in the case of the standards we have adopted.

Mr. DAVENPORT. Generally speaking you would not find the least responsible member of an industry even participating in an ANCI standard. As they have in the past, they would be going their way in the field of product safety and build the product outside the standards. Senator HARTKE. Is there any provision for including the least responsible manufacturers in such an organization? Can they just escape the standards of the voluntary group?

Mr. DAVENPORT. Depending upon how that voluntary standard was implemented. I think the standard which we helped to cosponsor originally has been adopted in whole or in part by 28 States. I think that is some test as to the effectiveness of the standard or the integrity

of the standard. I don't believe the various States would have adopted it had it had any inherent deficiencies.

That is not to say it is perfect or cannot be improved, but what I am saying is that here is a specific example of where a voluntary product standard was created and has been accepted by over half the States. Senator HARTKE. Let me give you a specific example. We will take Captain Terry's case. That was in the State of Washington, is that correct?

Mr. DAVENPORT. Right.

Senator HARTKE. Washington has adopted the standards. But if the home had been manufactured in another State it could still have been used in Washington, could it not?

Mr. OмSOм. According to the law that is in effect there right now that particular unit, if it moved into the State of Washington, must comply with the standard in effect in the State of Washington. Senator HARTKE. What is it———

Mr. OмSOм. Washingon uses a 119.1 as its standard.

Senator HARTKE. Is that the only State that requires it?

Mr. OмSOм. No; California requires it, Indiana, Oregon, Utahthere are 28 States that have adopted this as standard. This mobile home may or may not have been manufactured in Washington but if it is anticipated that it will be sold in the State of Washington it must comply with the laws of the State of Washington and be so listed. They sell a seal. The plans and specifications of the mobile home must be on file with the State authority and I believe in this particular case it is the fire marshal's office. He must approve these for manufacture for sale in that State. They carry a State of Washington seal.

Mr. DAVENPORT. Senator, I think what we are suggesting here is that it is not so much the integrity of the standard as the way that it is applied. If it is not applied uniformly or not enforced uniformly here is where the problem comes in.

The unit might have been made in Oregon and if only a certification was required to be admitted into the State of Washington, the unit could have come in and be certified as being correct but not in fact inspected to see if it was. There is the gap that creates a problem.

Senator HARTKE. What provisions under the voluntary standards are there for inspection?

Mr. DAVENPORT. For our association members who adhere to the standards, we inspect the product ourselves. Of course, there are a number of States which inspect. I don't believe, unless Mr. Omsom corrects me, that there is a provision in the standard, per se, which says homes being built to this standard must be inspected. I don't think the standard says that.

Senator HARTKE. The State fire marshal's report in Washington concluded that the life loss per fire and the dollar loss per fire in mobile homes is many times that of conventional dwellings. He also states that the most common reasons given by fire officials for this is that they are manufactured from more combustible materials, they have higher flame spread ratings of interior finishes, they lack firestops in concealed spaces and they have inadequate means of emergency

Do you agree with that conclusion?

Mr. OмSOM. Not entirely, no, sir. I think that in the State of Washington, as far as residential construction is concerned, there are no flame spread requirements whatsoever, I think in the standard for mobile homes there are flame-spread requirements.

As far as firestopping, he makes a very good point. This particular section of the standard will be corrected at its next issue. It was taken under consideration at his request at the last meeting of the committee that considers these changes. Anything that is built over one story in height will have to be firestopped, and that is the same proviso that is in residential construction. It must be firestopped over one story high. Senator HARTKE. Are you going to have changes in these regulations in September?

Mr. OMSOм. The changes are already underway. They have been approved by the National Fire Protection Association. They are before ANSI right now for consideration and we expect the publication of the new standards to be available within the next 2 weeks.

Senator HARTKE. Can you tell us what the principal changes will be, in what area?

Mr. OмSOм. There will be changes in the structural integrity part of the standard. There will be changes in the electrical portions of the standard. The standard covers four basic areas and there will be changes in effect in all areas for improvement and upgrading.

Standards are not perfect when they are developed any more than a piece of material or glass or anything else is perfect. There is always room for improvement and this is a continuing process. Whenever this particular standard was first developed it only included several sections. Now there are four specific sections. Each has been upgraded since the last publication of this book. There will be continual progress made.

Senator HARTKE. Will the new standards have anything in them concerning window space opening?

Mr. OмSOM. Yes. There will be a glazing standard added to the new standard for the first time.

Senator HARTKE. You spoke about the vent opening. If the windows had the so-called awning type of vents or any other type of vents of that kind that could still have a screen, as Captain Terry described. this morning, they would in effect be like the bars of a jail.

Mr. OмSOм. A screen?

Senator HARTKE. And still meet the standards of today; is that right?

Mr. OMSOм. Not necessarily so. We test windows for the ability of a window to withstand a certain wind resistance. This window, whether it be for a house or a mobile home, has to be strong enough to withstand a wind pressure. That particular pressure could be anywhere from 15 to 25 miles per hour. A window has to do that or it would not serve its function as a window. But it must be operable. It has to be able to open and it has to be able to withstand leakage tests and so on.

Senator HARTKE. I have some more questions that I think would be appropriate and I would like for you to answer them for the record. Mr. DAVENPORT. Yes, sir.

Senator HARTKE. Thank you, gentlemen.

Mr. Melvin Block from Brooklyn, N.Y., who is the first vice president of the New York State Trial Lawyers Association.

STATEMENT OF MELVIN BLOCK, FIRST VICE PRESIDENT, NEW YORK STATE TRIAL LAWYERS ASSOCIATION, AND EDITOR IN CHIEF, TRIAL LAWYERS QUARTERLY

Mr. BLOCK. Mr. Chairman, my name is Melvin Block. I am first vice president of the New York State Trial Lawyers Association, an organization of 3,500 lawyers, and also editor in chief of its official publication, the Trial Lawyers Quarterly.

I have participated in personal injury litigation, primarily in the field of products liability for over 20 years, and have had the privilege of appearing before your committee in support of the Child Safety Act of 1966.

It is an undiluted pleasure to appear again before you, but candidly it is a mixed blessing.

It is an undiluted pleasure in that the enactment of S. 983 would truly be the hallmark of a civilized society because it reveres soundness of body and mind and not merely soundness of dollar.

It is a mixed blessing in that it is a recognized fact that for too long the responsibility for safety of the public, to its unfortunate and tragic loss, has been entrusted to the patchwork mosaic of agencies, bureaus, and departments each separately amenable to special interest groups and intensive lobbying thus leading to reactive legislation when all along we should have had preventive legislation such as S. 983.

Unfortunately we do not have the power to resurrect those who have been maimed and blinded and died as a result of defective products. But you have done the next best thing, a cure for future repetition. Anyone who has had to face bereaved parents, blinded and limbless children and adults in his everyday work can only say amen to S. 983 because it is a cure and not an illusory palliative as is S. 1797.

What good is it to occasionally hit a defendant "big" in his pocketbook at a trial if, to the defendant, the calculated cost factor of litigation still makes it profitable for him to do business as usual.

Ironically, my presentation is a plea and a challenge to enact S. 983 and help legislate us in the trial of products liability cases out of business in the products liability field by making a safer world.

I. We believe that an independent, separately funded Consumer Product Safety Commission consisting of commissioners appointed on a nonpartisan basis for staggered fixed terms, not competing for funds nor amenable to pressure vis-a-vis other units within a larger agency or governmental department is absolutely essential to bringing to fruition the humane purpose of this committee's deliberations. The Consumer Product Safety Commission set forth in S. 983 is the answer and not some ersatz product.

II. In an age when we give the putative defendant in a criminal case a public defender free from outside influence, how can we gainsay the need for a consumer advocate as envisaged in S. 983 in order to protect the recognized need of the consumer for an official champion.

66-631-71 pt. 1 - 25

He will guarantee the consumer "his day in court" in all forums where he should rightfully have "standing." He will guarantee regulations and laws not only with which businesses can live as is exemplified by the present system but will guarantee laws with which people can live, a needed priority.

III. You don't have to be an Einstein or a Gertrude Stein to know that a defective product is a defective product is a defective product and when the need for action is apparent, the writing of safety standards must not drag on ad nauseam. It must be completed expeditiously and with finality so as to prevent further mayhem upon the public. Again, I allude to the criminal law where there is a hue and cry for expeditious finality of proceedings. I hear no such consistent cry from the same quarters when setting standards for products adversely affecting the millions of our populace is the issue. In this regard where there is an imminent risk to safety, protection is needed immediately. Safety standards cannot be allowed to be a mathematical exercise for ascertaining the least common denominator. S. 983 guarantees this.

To exemplify the unwholesome delay inherent under existing departments and agencies, I cite the following two examples from personal experience.

Approximately 1 year ago on behalf of the National Society for the Prevention of Blindness, I filed with the FDA, objection to a proposed order banning only class B fireworks. The objection was based in part upon a report which I am holding in my hand, and I would like to have it marked and introduced in the record, if I may, Senator Hartke.

Senator HARTKE. It may be included by reference.

Mr. BLOCK. It sets forth the fact that more people are injured from class C fireworks than class B fireworks. Therefore class C as well as class B fireworks should be banned. The statistics were gathered by the National Fire Protection Association and the National Society for the Prevention of Blindness.

I was told by the FDA that due to the fact that they would like class B fireworks banned by July 4, 1970, they would treat the objections filed as a petition.

To date no proposed order has been forthcoming from the FDA concerning class C fireworks and we are told that the matter is still under investigation.

One wonders why July 4, 1971, was allowed to come and go without any regulation by the FDA pertaining to class C fireworks. The following is from the report of the National Fire Protection Association filed by the National Society for the Prevention of Blindness with the FDA:

The survey showed that Class C fireworks, which are exempted from the statutory ban-under the interpretation of the Commissioner of Food and Drugs under the Federal Hazardous cases had 321, or 42 percent, of the property damage cases. Class B fireworks accounted for 322, or 24 percent, of the injury cases and 48, or 6 percent, of the property damage cases. The Class C firecracker, which is 12 inches or less in length and considered to be rela

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