CPSC Rejects Exclusion, Offers Stay of Enforcement

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As expected, the CPSC today denied the industry’s petition for an exclusion from the lead limits created by the CPSIA. Instead, the commission offered an alternative “solution”: a two-year conditional stay of enforcement regarding youth vehicles and their replacement parts. But in doubt is whether such a stay would remove all liabilities faced by dealers and OEMs.

Thomas Moore, one commissioner of the two-person CPSC, said in a statement that he supports the stay proposed two weeks ago by his colleague, acting Chairman Nancy Nord. He does so for the same safety reasons.

The delay will go into effect, Moore said, sometime after his staff spells out the stay's conditions in writing. The staff’s due date is April 24. “I anticipate that the commission will vote to approve it in the near future,” he said.

According to staff directions issued by the commission, the stay will end on May 1, 2011, but manufacturers will be able to file for extensions.

Nord issued her own statement saying that she supports Moore’s decision, and that she hopes the state attorneys general will follow the commission’s lead.

Even after the CPSC issues a stay of enforcement, state officials could enforce the law.

Would dealers be safe if both the CPSC and their state officials decide to stay enforcement? Perhaps, though Dealernews hasn’t been able to obtain a legal opinion.

Paul Vitrano, general counsel for the MIC and SVIA, didn’t seem overly impressed by Nord’s stay announcement two weeks ago. At the time he said on his Twitter blog that he was “analyzing the value of the stay, if any.”

In a statement issued by the MIC in response to today’s news, Vitrano stated, “With today’s vote, it is now obvious that the only permanent solution is for Congress to end the ban once and for all.” Two bills now being debated, S. 608 and H.R. 1587, could eventually end the ban.

Some industry analysts had doubted whether Moore, who has publicly supported the CPSIA, would agree to the stay. Moore himself seems surprised by the decision, writing, “It is ironic that I am defending vehicles that I consider to be dangerous for children under 12 to ride and which contain accessible parts with excess levels of lead. However, the alternatives appear to be more dangerous.”

Moore noted that an ATV maker has told the commission that it’s removing the speed limiters from its Y-6 ant Y-10 quads and relabeling them Y-12. “Thus the vehicles that are more accurately sized for younger children will be less safe because of their ability to attain higher speeds,” he said.

Moore’s statement provided guidance on how the stay of enforcement will read. He said the stay will apply to vehicles made to date and through the expiration date of the stay. Repairs and replacement parts will be allowed as long as the lead content of the parts is comparable to that of the originals.

During the stay, Moore stated, manufacturers must work, “on a reasonable schedule,” to design youth vehicles that meet the lead limits as closely as possible. OEMs must provide concrete data to justify any continued use of excess lead in accessible components. “The evidence considered is strictly limited to technological feasibility, not on the higher cost of a viable substitute,” he said.