From the Dealernews Blog: Congress, CPSC Aren't Working Together

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It’s been 14 days since kid’s ATVs, motorcycles and related gear were unfairly banned from sale in the U.S., and there doesn’t seem to be a solution in sight. Why not? Isn’t that a reasonable question?

It seems, from my perspective, that we have two Washington heavyweights fighting for control of a piece of turf, while consumers, retailers and manufacturers are inconvenienced, endangered and losing money, to boot.

Look at consumers. We have youngsters who can’t buy an ATV or dirt bike that fits them, a very dangerous situation that pushes them into riding larger, powerful machines designed for adults. At the same time, we have children riding ATVs and dirt bikes that can’t be repaired because parts for these machines can’t be sold.

On one side, we have Congress which produced a confusing, poorly-written law called the Consumer Product Safety Improvement Act (CPSIA) that was signed by President Bush last August. It was designed to protect kids ages 12 and under from lead in tiny toys and jewelry and apparel accessories that could be swallowed.

Fair enough. Except that the final version of the bill included ATVs and dirt bikes. I would really like to know how this ATV provision got tacked on to the CPSIA bill.

On the other side, we have the Consumer Product Safety Commission (CPSC), the federal agency charged with making rules to fill in the blanks in the law and then enforcing the entire package.

Seems reasonable. Except that the CPSC says the law is unworkable and, heck, the agency doesn’t have the resources of money and manpower to do everything that Congress demands, anyway. Wasn’t CPSIA supposed to give the agency more resources, not more responsibility? it asks. Hmmmm. Perhaps that’s another good question.

So, here we are. The law doesn’t work and it isn’t being implemented properly.

Now, I may be wrong, because I’m just sitting here in a snow bank in Minnesota. But it doesn’t seem like Congress and the CPSC are working together on this problem in Washington. There’s a lot of finger pointing and caustically worded letters being shuttled back and forth, but nothing constructive is being done.

I have this letter, dated Jan. 30, 2009, written by CPSC boss, Acting Chairman Nancy Nord, addressed to a handful of senators and representatives. I like the way Ms. Nord writes; she doesn’t mince words.

The agency is trying to implement the law, she writes, “even though the law’s complexity and timetable make this an extraordinarily difficult challenge…. While these new laws have doubled, at minimum, the workload of this agency, Congress has not provided any additional resources for the agency, which is stretched to capacity. In August, we asked for an increase in our budget, but Congress has not acted on this request.” Ouch.

Further, she writes, “… the (CPSC) staff has found that the requirements of the new law are inflexible, are not sequenced to maximum effectiveness, and generally limit our options. … The Act gives the agency neither the flexibility nor the resources it needs to deal with many of the problems referenced in this letter. ” Ouch, again.

Sen. Amy Klobuchar (D-Minn.), one of the leaders in developing the CPSIA bill, is from Minnesota, my home state. She sits on the Commerce, Trade and Consumer Protection Committee which overseas the operations of the CPSC. “Amy took the lead to pass the most significant consumer product safety legislation in a generation, keeping toxic products off our shores and out of our stores,” notes Klobuchar’s Web site.

She told me recently that the CPSC has the tools and the resources to fix the problem. “They actually got some resources with this bill,” she says, “and I just think that (the CPSC) is not set up to take care of these things.”

Pointing to the fact that the comment period on the lead content rule came seven days after the implementation of the ban, Klobuchar said: “There is an example. Why wasn’t this started earlier?”

It’s much easier, and within its capabilities under the law, to grant exclusions rather than have Congress pass an amendment to the law, she says. “It’s not necessary to do that,” she argues. “The best way to (solve this problem) is to have some sensible exclusions.”

The CPSC already has granted exclusions for electronic parts, so there’s no reason why it can’t do the same for ATV parts, she argues.

“Unless the commission believes that you can somehow absorb lead when you touch something or look at something,” she said, “it doesn’t make any sense to me. That’s why we’ll continue to push for an exclusion. I hope they see the light here and do the right thing for the ATV industry.”

Sen. Klobuchar said she worked closely with Arctic Cat and Polaris Industries, two Minnesota companies, in writing the law. She objected to a suggestion that the ATV provision was tacked on to the CPSIA bill and didn’t really belong in a bill directed at protecting children from swallowing small toys and jewelry items.

“It wasn’t tacked on,” she said. “The only ATV provisions were the ones the American industry wanted. We worked with the American ATV companies to get that provision in.

“(The bill) was about more than toys. It was a big bill that had a number of things that people wanted in the consumer area. Yes, it was primarily about toys that could be ingested, but it also included other products that didn’t include lead, like cribs. In general, it’s about products that had been hurting kids.

“There was a reason… all the products that were coming in from China. That’s what it was all about.”

In a letter to the CPSC dated Jan. 26, 2009, Klobuchar wrote: “As you know, the CPSIA allows for an exclusion of a material or part from the content limits if the material will not result in the absorption of any lead into the body or have an adverse impact on public safety.” She urged the commission to make “this type of determination” as quickly as possible.

That hasn’t happened, and it doesn’t sound as though Congress is going to take action any time soon. So, the ball seems to be bouncing around in the CPSC’s court and the rest of us continue to suffer. What’s wrong with this picture?