The Kids Bikes Ban: Digging Deeper

LINK >>> www.cyclenews.com/articles/industry-news/2009/03/10/kids-bikes-and-lead-an-update


The Kids Bikes Ban: Digging Deeper
What's new on the battle against the Feds
By: Jean Turner

Right now, we're all wondering: How could this happen?

The Consumer Product Safety Improvement Act (CPSIA) of 2008 has
effectively banned the production, importing and sale of kids' OHVs -
including bikes and ATVs. Certain parts of the vehicles contain more
lead than is deemed allowable on children's products - for instance, on
the battery terminals and tire valves - and the CPSC has interpreted
this to mean that OHVs present a lead-poisoning threat to children.

The off-road industry now finds itself crippled and rather confused in
the destructive wake of the CPSIA in an already harsh economy. We are
left wondering how exactly this devastating blow sneaked up on us. Why
didn't anyone seem to know it was coming? More importantly, what exactly
is happening? What is being done to fix the situation? How can we help?
Here's a closer look at the situation and an informative interview with
Paul Vitrano of the Motorcycle Industry Council, who is also the
executive vice president and general council of the Specialty Vehicle
Institute of America (SVIA).

Vitrano is currently at the forefront on this case, and has been since
the CPSIA was passed in August of 2008 under the Bush Administration.

First, a little background...

In August of 2008, the CPSIA was passed through Congress. The
wide-sweeping and comprehensive law mainly deals with lead content in
children's products - which are defined to be anything that's primarily
intended for someone of age 12 and under.

There is another section of the law (Section 232) called the All-Terrain
Vehicle Standard, which has nothing to do with lead, but was included
with the CPSIA. This particular section actually has no effect on our
industry, since it simply makes mandatory the safety standards (free
training, public education, dealer monitoring, etc.) that all the major
manufacturers have voluntarily had in place for more than two decades.
Essentially, the voluntary standards set forth by the SVIA, which our
industry has followed since the late 1980s, were made mandatory (which
is actually a good thing, since it will extend to the current inundation
of Chinese knock-offs).

The new lead-content limits, however, were a new standard facing the
children's OHV industry. A key section of the law, Section 101 (b)(1),
allows for "Exclusion of Certain Materials or Products and Inaccessible
Component Parts." Logic would reason that lead content on OHVs obviously
falls under this category, so the MIC and SVIA went to work putting
together a report to the CPSC.

"Metal parts on the vehicles that are made of steel, aluminum and copper
alloys, as well as the batteries, contain lead in excess of the limits,"
Vitrano explained. "Notwithstanding that lead content, we've been able
to demonstrate in our petitions to CPSC that the lead in those products
pose no risk to kids' safety because the only interaction that they're
having, at worst, is with a bare hand. We've had a toxicologist study
the exposure that results from that, and it's substantially less than
the intake of lead from food and water."

The SVIA and CPSC, until this point, have had a functional and
productive relationship, with the CPSC consulting with, and enacting,
many of the safety standards set forth by the SVIA. So when this was
handed down from Congress to the CPSC for interpretation and
enforcement, it came as quite a surprise that the motorcycle industry
was handed the short end of the stick.

"This is a law that came out of Congress and was signed by President
Bush in August," Vitrano explained. "The CPSC are not the ones that
imposed these obligations, but they have been charged with implementing
it. And we've not been able to get the implementation that we were
hoping and [that] would provide relief to our industry because there's
no safety risk."

Numerous petitions were filed with the CPSC requesting a Temporary Final
Rule from the law - as specified under Section 101(b)(1) of the law, the
Commission has the power to do so.

The section reads: "The Commission may, by regulation, exclude a
specific product or material... if the Commission... determines on the
basis of the best available objective, peer-reviewed, scientific
evidence that lead in such product or material will neither (A) result
in the absorption of any lead into the human body, taking into account
of 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."

Along with the SVIA and MIC, similar petitions were filed by Polaris,
Suzuki, Arctic Cat, Kawasaki, Honda, Yamaha, Bombardier, Cycle Barn
Motorsports Group and Bicycle Product Suppliers Association (since
jogger strollers and bicycle trailers were also swept up in this law).
All petitions received the same canned answer from the CPSC, claiming
that the Commission "lacks the authority to grant the 'temporary final
rule.'"

Vitrano and the SVIA disagree with the Commission's claim that their
hands are tied.

"We don't necessarily agree that their [the CPSC's] hands are tied,"
Vitrano says. "They have the power to grant the exclusions for us under
the law as it's currently written. That letter basically said that they
don't think they have authority to grant temporary relief. Since that
time, they have promulgated the final rule on the exclusion process -
that was on Wednesday [March 4 - two days prior to the time of this
interview]. It was in that final rule that they took the narrow, strict
interpretation of the exclusion provision, which is not helpful to us."

This brings us to the present, and Vitrano answered questions as to
what's coming next and what we can all do to help.

Why was the industry so blindsided by this?

"It actually didn't sneak up on those of us who have been following it
for some time. We were aware, since when the law was passed, it was
included. But since CPSC is the one that implements and interprets the
law and sees how it's going to be applied, we've been in discussion with
[them] for months on various aspects of this very comprehensive law. The
critical issues related to the exclusions were only acted on by CPSC in
mid-January - that is the proposed rules for the exclusion process and
other applications for the exclusion provisions. The CPSC needs to
promulgate rules in order to implement these statutes. They put the
proposed rule out in mid-January. The comment period wasn't even
scheduled to close until a week after the ban took effect, and within a
matter of days of the proposed rules, we had our petitions on file with
toxicology and human-factors expert reports in [our] support. We
actually jumped the gun on when we really were entitled to seek
exclusions, but we needed to act as soon as possible in order to get
relief.

"Until they put forth a proposed rule, they did not identify at all what
you had to demonstrate in order to get one of these exclusions. As soon
as they did, we acted. Once they put out the proposed rule, the MIC and
SVIA were in communication with them, along with our members, and we had
started getting the public aware of this issue back in mid- to late
January."

It sounds like the MIC and SVIA have been very busy with this. How has
the AMA been involved?

"The AMA has been a partner in the effort. Since this is an issue that
directly impacts the industry, we were first on it and have been taking
the lead. But the AMA has been very supportive and helping us along the
way. In fact, I was in Jefferson City on Wednesday, along with Ed
Moreland of the AMA, for a press conference with State Representative
Tom Self, who's been leading the charge on this issue from a grass-roots
effort to continue to promote awareness and action on behalf of the
industry."

If the CPSC is a dead end, who else would we be able to appeal to?

"We would need to get relief from Congress by way of an amendment of the
exclusion provision so that it provides the flexibility that CPSC says
it needs. We - the SVIA and MIC and others who are working on this - are
about to launch a new campaign of communication to Congress asking them
for such an amendment. The key committees in Congress are Energy and
Commerce [in the House of Representatives] and Commerce, Science and
Technology [in the Senate]. We're focusing our communication efforts on
those committee members.

What is it that people can do to help at this point?

"What we're encouraging everyone to do is go to our website [MIC.org]
and there's a huge banner on the homepage that says 'Stop the Ban,' and
on that page is a whole slew of new letters and e-mail communication
opportunities to contact Congress directly to ask for relief for our
industry. The most focused effort at this point would be to have as many
people as possible write letters individually to the congressional
members - and members of these committees - because we have gotten their
attention with all the contacts and publicity we've been able to
generate so far. In light of CPSC's latest action, it's really important
to focus on Congress at this point, and that's what we want to do."

Stay tuned to CycleNews.com for continuing updates on the kids' bike
ban.