CPSC Commissioner Tells Staff, Don't Enforce Ban

CPSC Acting Chairman Nancy Nord told her staff today not to enforce the ban on certain youth vehicles for 12 months, adding that the vehicles "can again be available." But the second commissioner has yet to show his support, and the industry is waiting for more information.

Nord made the comments in conjunction with her denial of the industry's petition for an exemption from the new lead limits.

Later in the day, the MIC and SVIA issued a response to the stay of enforcement. "We need to review the actual text of such a stay before we can comment," Paul Vitrano, general counsel for the organizations, stated.

It is also important to note, he said, that the other member of the two-person commission has not yet commented on the industry's petition.

Nord said her denial was reluctant. "I do this because the clear language of the law requires this result," she said, "not because it advances consumer safety."

Using the same arguments used by industry advocates, Nord said the ban could have the "perverse effect" of actually endangering children. She ordered the stay of enforcement for this reason, she said, and hoped her fellow commissioner would join her in the decision.

"During this timeout," she stated, "it is my hope that Congress will consider how the law needs to be fine-tuned to address this serious child safety dilemma." (Click here for info about two amendment bills already introduced.)

Nord continued: "This enforcement hiatus will also give industry the opportunity to examine what reasonable changes can be made in their products to bring them closer to the requirements." She said the agency will work with the industry in testing to decide how the vehicles can meet the even stricter lead limit that goes into effect this summer.

Dealernews has not been able to confirm what will happen if the other commissioner disagrees with Nord. The CPSC has had only two members since 2006 and, because of this, has continued to function only through acts of Congress.

Assuming the other commissioner does agree, dealers still may face liabilities. "During the pendency of a stay of enforcement," Nord stated, "ATVs and motorized bike appropriately sized for children 12 and younger can again be available, and the commission will not seek penalties … against those who sell them. I hope that the state attorneys general will follow the lead of the agency on this matter."

The MIC's Vitrano also cited the importance of knowing whether the chief law enforcement officer of each state supports Nord's position.

The Consumer Product Improvement Act (CPSIA), the legislation that created the lead limits, empowered state officials to enforce the act in district court. The CPSC may intervene in such a civil action, but that seemingly doesn't stop a judge from accepting the lawsuit. And under the law, any person or entity may bring an action in U.S. district court to enforce a consumer product safety rule.

Finally, Houston-based criminal lawyer Mark Bennett has written about the criminal penalties of disobeying the CPSIA here. Bennett has said that while the CPSC has decided to forgo enforcing the CPSIA, the CPSC is not the agency that decides whether to prosecute felonies. That's the responsibility of the Department of Justice.