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CPSIA Update: Unanimity!

By | Regulations | One Comment

In its first 3-0 vote after Chairman Inez Tenenbaum joined the Consumer Product Safety Commission, the CPSC has agreed to give the motorized recreational vehicle industry another month to file a report on the metal parts in its machines.

The CPSC in May voted to grant a one-year stay of enforcement for the ATV and motorized recreational vehicle industry from the Consumer Product Safety Improvement Act’s new, lower lead-content standards, but required manufacturers to file a report on a component parts of the recreational vehicles, including the lead content.  The deadline for submitting the report was July 11, and the CPSC yesterday voted to extend the filing requirement until August 14. (That’s the same day the CPSIA’s product tracking label requirement goes into effect.)

The additional breathing room is certainly welcome, but it’s not a particularly controversial decision the CPSC has just made. We’ll be looking for the vote expected Thursday on exempting crystals and glass beads from the CPSIA’s lead content requirements. CPSC staff believes the law requires the products to be banned, even though there is no health risk to children.

CPSIA Update: No Exemption for ATVs from Lead Standard

By | Regulations | 3 Comments

Commissioner Nancy Nord of the Consumer Product Safety Commission has voted down a petition from the ATV and motorcycle industry to be granted an exemption from the lead standards of the Consumer Product Safety Improvement Act.

Since the exemptions must be approved with two votes, no matter what the other commissioner, Thomas Moore,  does the petition is therefore rejected.

In a statement, Nord writes:

In considering exclusions, consumer safety must direct the outcome of our deliberations. Therefore, it is with extreme reluctance that I am voting today to deny the petition, filed by companies and associations representing the ATV and motorized bike industries, for an exclusion from the lead content limits found in Section 101 of the Consumer Product Safety Improvements Act (CPSIA). I do this because the clear language of the law requires this result, not because it advances consumer safety. To the contrary, application of the lead content mandates of the CPSIA to the products made by the petitioners may have the perverse effect of actually endangering children by forcing youth-sized vehicles off the market and resulting
in children riding the far more dangerous adult-sized ATV’s. 

However, as acting chairman of the CPSC, she has directed staff to stay enforcement for a year. The intention is laudable, to provide relief from an unreasonable and extremely expensive and disruptive law that could in fact endanger children if enforced.

But if you’re a off-road motorcyle manufacturer or retailer, do you take the risk that non-enforcement means no legal liability? Remember, the Consumer Product Safety Improvement Act allows state attorneys general to enforce the law. Nord’s statement says, “I hope that the state attorneys general will follow the
lead of the agency on this matter.” Not quite an iron-clad assurance. And if you sell a minibike and there happens to be an accident?

On Nord’s conclusion, we heartily agree: “All stakeholders-industry, users, Congress, and the Commission-need to come together to fix the statutory problems that have become so apparent, in a common sense approach that does not unnecessarily burden those regulated, yet provides safety for American families.”

UPDATE: The stay provides no comfort to the ATV and motorcycle industry, which issued a statement in response to Nord:

WASHINGTON–(BUSINESS WIRE)–The Coalition for Safe and Responsible ATV Use, the Motorcycle Industry Council, Inc. and the Specialty Vehicle Institute of America is disappointed that Consumer Product Safety Commission (CPSC) Acting Chairman Nancy Nord announced today that she intended to vote against the petition that our industry submitted for an exclusion for all-terrain vehicles (ATVs) motorcycles and snowmobiles from the lead content limits found in the Consumer Product Safety Improvement Act (CPSIA). We believe that the petition submitted to the agency was based on sound science and showed that there is no measurable risk to children resulting from lead exposure from these products.

Regarding a proposed stay of enforcement, we need to review the actual text of such a stay before we can comment. In addition, it is important to note that CPSC Commissioner Thomas Moore has not yet commented on the petition, nor do we know the position of the state attorneys general on this matter.

The conflict between Nord and Commissioner Nord continues. As AP reports:

In a statement, Moore said it takes the vote of both commissioners to stay enforcement of a congressionally mandated ban.

“I have not, as yet, finalized my decision,” said Moore. “It is premature for the press, or anyone else, to take the unprecedented release by one commissioner of their vote and statement prior to the due date of a vote, to assume that this will be the final agency action.”

Moore also chided Nord for disclosing how she will vote on the ATV issue before the voting period ends next week.

Can we please just fix the law?

CPSIA Update: Today’s News

By | General, Regulations | No Comments
[Oklahoma Honda Suzuki sales manager Shawn] Bostwick said he fears that since he can’t sell ATVs specifically for children, parents may buy larger ones, which could cause more crashes.

“Putting children on oversized ATV or dirt bikes that are too powerful and too heavy for the children, that is going to affect the children more, in my opinion, than the current law is trying to do,” he said.

Speaking of yesterday’s rally, Alliance for Children’s Product Safety, news release, “Businesses Speak out on Damage Caused by Consumer Product Safety Improvement Act“:

WASHINGTON, Apr 01, 2009 (BUSINESS WIRE) — At a rally today on Capitol Hill, Members of Congress, small business owners, authors, crafters, apparel makers, educational toy manufacturers, ATV dealers and motorcycle enthusiasts urgently called on House and Senate leaders to fix the Consumer Product Safety Improvement Act (CPSIA). The most sweeping attempt at U.S. consumer product safety law reform in a generation, the CPSIA’s vast scope and complexity has inadvertently created a “worst case” scenario for tens of thousands of American businesses, charities, libraries and others.

Woldenberg is the leading organizer and citizen activist who has helped mobilize the many, many disparate groups — and individuals — harmed by the law’s overreach. He has a website devoted to the effort at his company, Learning Resources Inc.

CPSIA Update: No Regulatory Relief for ATVs; Congress Must Act

By | Economy, Regulations | 3 Comments

I’ve had everybody from toddlers to teen-agers in there, and I’ve yet to witness anybody chewing on a bike or eating on a bike or licking a bike or anything to get the ingesting lead. 

— Steve Burnside, owner of DSD Kawasaki in Parkersburg, W.V., speaking April 1 at the “Amend the CPSIA” rally on Capitol Hill.

But they might touch a valve stem or battery terminal and then touch their mouths, and while the amount of lead would be infinitesimal and pose no possible risk to anyone’s health, because of that possible contact, $1 billion worth of ATV and motorcyle business is blocked. The law, the Consumer Product Safety Improvement Act, says so.

The staff of the Consumer Product Safety Commission on Wednesday recommended against providing an exemption for ATVs to the lead content requirements, an exemption requested January 27th (petition here) by the major companies in the industry (Honda, Suzuki, Arctic Cat, Bombardier Recreational Products, Kawasaki, Polaris, and Yamaha).

The law ties their hands. From the staff recommendation to the CPSC commissioners:

Prior to enactment of the CPISA, the staff assessments of lead-containing children’s products under the Federal Hazardous Substances Act (FHSA), were based on estimates of lead intake and the subsequent effects of the exposure on blood lead level, considering the toxicology of lead and the demonstrated health effects associated with increasing blood lead levels. Regulation of a consumer product as a “hazardous substance” under the FHSA requires assessment of exposure and risk from reasonably foreseeable use and abuse of the product. In this case, given the assessment provided by the requestors, the staff likely would have concluded that the estimated exposure to lead from children’s use of motorized recreational vehicles would have little impact on the blood lead level. Accordingly, based on the staff’s assessment, the staff would have recommended the Commission not consider the product to be a hazardous substance to be regulated under the FHSA.

However, the CPSIA establishes the standard by which the staff evaluates the materials submitted with a request for exclusions. The law states that an exclusion may be granted if lead in such product or materials will neither (a) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing breaking, or other children’s activities, and the aging of the product; nor (b) have any other adverse impact on public health or safety.

Because the requesters’ report indicated that children’s use of motorized recreational vehicles could result in intake of lead, and therefore absorption, however small the absorbed amount, the staff’s initial recommendation to the Commission is to not grant the request on the grounds that the statutory standard has not been met.

That’s the law: No products for children under 12 may be sold if there’s a possibility, however remote, that ANY lead will be absorbed.

As Tim Buche, president of the Motorcycle Industry Council, puts it in a commentary, “The Power of Three-Letter Words — How ‘Any’ Changes the Lives of Hundreds of Thousands of Americans.”

Congress needs to remember that’s not just business or manufacturers or retailers being damaged by a badly written law. It’s hundreds of thousands of Americans. Like Steve Burnside, his employees and his customers:

What people don’t understand in our world, what we do, this off-road segment of riding, motorcycles, ATVs, it’s used by everybody for farming, fishing, hunting …to just fun.

That’s the biggest segment of our business, by far and away. This past couple years in this downturned economy, we’ve suffered some losses already that have been tough to overcome. Now we’ve had somewhere to the tune of 25 to 35 percent of our business jerked out from underneath us, waiting for this spring to be our salvation for a downturned economy in the fall of ’08 – doesn’t appear it’s going to happen.

CPSIA Update: NAM President Engler Comments on CPSC Letter

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The May 20th letter from the professional staff of the Consumer Product Safety Commission to Rep. John Dingell (D-MI) detailed the many flaws and difficulties in implementing the Consumer Product Safety Improvement Act (Public Law 110-314). The staff’s response to Rep. Dingell’s questions is substantive and persuasive communication about the impossibility of meeting the law’s dictates and the costs the badly drafted law has imposed on retailers, manufacturers, consumers, libraries and bookstores and many more. (As we noted here, here and here.)

National Association of Manufacturers President John Engler has now issued a statement on the CPSC letter. In addition, on Tuesday the NAM CPSC Coalition submitted a petition to the CPSC requesting a stay in enforcement of the law’s tracking label requirements, yet another major burden and nearly impossible to achieve by the August 14 effective date. The Coalition’s letter is available here.

NAM President Engler’s statement follows:

The CPSC response to Congress clearly indicates that legislative changes are necessary to fix the flaws in the Consumer Product Safety Improvement Act. By the CPSC’s own account, implementation of the new law has overwhelmed the agency and jeopardized its ability to meet safety priorities.

The law’s overly broad approach applies to products that that should not be evaluated using the same safety criteria as products that do pose a risk. It is critical that the CPSC focus on improving safety.

The law’s unrealistic compliance deadlines made it impossible for industry or the CPSC to adequately prepare before the law went into effect. Its unprecedented decision to retroactively apply the new lead standards and phthalates ban to inventory already sitting in stores and warehouses is causing massive disruptions to industries across the board, particularly small and medium-sized companies.

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CPSIA Update: Rush Limbaugh and the Withdrawn Dirt Bikes

By | Regulations | One Comment

A lengthy and useful segment on yesterday’s Rush Limbaugh program on the jobs-killing implementation of the Consumer Product Safety Improvement Act, headlined on his website, “Where’s the Lead Law Uproar?

A manufacturer of off-road motorcyles calls from Hillsdale, Michigan. He reports the reality that too many in Congress are ignoring:

Rush, to clarify one point there, they’ve already taken their products off the shelves. This has happened last week. The big four manufacturers (the big four being Honda, Suzuki, Kawasaki and Yamaha) have all mandated that their dealers take everything off the floor and this weekend I was at a trade show. I talked to a lot of these dealers, and a lot of them are on the brink anyway because of the shape our economy is. This is enough in many cases to just push them over the edge.

RUSH: Right. Because if you can’t put your product on the showroom and you can’t display it, how do you sell it?

CALLER: That’s it. That’s it. So that’s the first part of this issue. The second part that needs to be brought to light is the testing requirements that the CPSC is putting in place, and they put a reprieve of one year on these requirements, but the fact of the matter is that each and every component of one of these kids’ products — it could be a motorcycle or it can be anything. But as of February of 2010 each and every component has to be tested by a third-party, government-accredited laboratory. And we’ve done some initial looks into this. We’ve obviously tested a lot of our parts already, from non-accredited labs because the accreditation process isn’t even done yet. But to do this is going to cost us about one year of revenues, which is, you know, obviously that’s going to put companies like ours completely out of business.

It’s a good discussion, with the caller making a realistic assessment that Congress failed to give domestic manufacturers enough thought because the political reaction was against China and contaminated Chinese toys.

A discussion on Rush takes the already hot issue to another level, and the national attention is very welcome. Of course he knocks the Democrats in Congress, which might get some backs up and discourage action, but there’s enough bipartisan blame to go around: The bill passed the House 424-1 and the Senate 89-3.

To all those who regard Limbaugh as a blowhard, well, then read the caller’s comments: Safe products are being removed from the marketplace and testing requirements cost a year’s worth of revenues.

Fix it.

UPDATE (11 a.m.): Cobra Motorcyles, located in Hillsdale, was profiled in the Detroit Free Press last month, “Cobra Motorcycles sees sales surge by serving young racing crowd.”