CPSC Lead Ban: Ed Moreland Interview

January 12, 2010
Bart Madson
By Bart Madson
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Bashing away at the MotoUSA keyboard for nine years now, Madson lends his scribbling and editorial input on everything from bike reviews to industry analysis and motorcycle racing reports.

Motorcycle rider Chase Yentzer  center   his dad Rod  left   and AMA VP for Government Relations Ed Moreland  right  request the CPSIA to remove the ban from Youth OHV.
AMA VP for Government Relations Ed Moreland (right) urges the CPSIA to remove the ban from Youth ATVs and Dirt Bikes.

Last year the motorcycle industry reeled when youth OHV sales were outlawed thanks to the CPSC lead ban. It took three months for the banned models to get back on sales floors with OHV dealers. Now with the industry sputtering from a terrible year for bike sales and the lead ban story has fading into memory, the whole issue must be resolved, right?

Wrong. The sale of youth OHVs is still technically illegal. The industry only operates under two stays of enforcement from the CPSC (Consumer Product Safety Commission – the federal agency tasked with enforcing the lead ban law), which were set to expire in 2010 before being extended to 2011. Yet even with the stays, there’s some debate as to whether zealous state attorneys could still prosecute the law without the CPSC. A permanent fix needs to be found, but where does the issue stand right now?

AMA Vice President Ed Moreland. took time out of his busy schedule in Washington to get us up to speed on the issue and the status of efforts to reverse the decision – including an important deadline this weekend, on January 15th.
(Update: The MIC [Motorcycle Industry Council] have since come out with a formal statement, urging the CPSC in its January 15th report to Congress to recommend an amendment that would end the current ban on youth OHVs.)  

There’s still some confusion how the whole thing came about, it seems even the lawmakers that passed it didn’t anticipate the lead ban happening.

“We think the original intent of the bill was laudable, in that it sought to protect kids from exposure to lead-based products. I think originally the intent was to prevent the sale of those products that kids had an opportunity to chew on or ingest lead, and it grew out of a couple kids getting sick after chewing on lead-based paint that was on children’s toys. And so there was a lot of fervor on Washington, as there always is when it comes to something that makes the media, and they, in sort of a knee-jerk reaction decided to ban all products that contained any lead that would come into contact with kids. Among those products were motorcycles and ATVs that were built for kids. They’ll tell you it was an unintended consequence, I can’t tell you differently necessarily, but I can say somewhere along the way someone should have applied some common sense to the rule and exempted kids motorcycles and ATVs from the rule.”

It seems there may have been some language that left the opportunity for the CPSC to actually exempt them.

“Yes. The CPSC asserted last year that they didn’t have the power to make exemptions. That’s because of the way Congress wrote it, they used the word ‘any’, and so ‘any’ lead. Because they used the word any, that meant zero, and if you couldn’t prove that it didn’t have zero then it had to be included. So the CPSC said it didn’t have the power to change what Congress had sent over to them, their job was simply to promulgate the rule and put it in force. Congress said ‘well you’ve got the power to make exemptions if you want to,’ and CPSC said ‘no we don’t, it’s clearly in the law – it says any.’”

So that is the true conflict right there.

“The conflict is the word any. It’s a three letter word that’s had huge meaning.”

Only a temporary stay of enforcement allows youth OHV sales to continue. The stay has been extended to 2011.

And right now we’re operating under a “stay of enforcement?”

“Well, there are two stays. Originally, there was a February 2010, like next month, stay on the certification. And the certification and enforcement were two different stays. One was if you violated the rule or if you tested a product and it had more than 100 parts per million (ppm) of lead in it, then they would try to prosecute for not adhering to the law [CPSIA] and that’s the enforcement part of it. That was set out to be in May of 2011, so that’s the one everyone made such a big deal about last year.

“The other one was this February 2010 stay of certification, which was that manufacturers had to certify their products no more than 300 ppm, now it’s down to 100 ppm. The difference is one is an offense based on the government’s testing of your products, the other one is an offense based on how you certify your own products. And the testing and certification is what costs millions of dollars and what the manufacturers are worried would be impossible for them to meet, simply because they haven’t had to test them in the past and all of a sudden they had to create new testing programs to measure all the lead content in every piece of metal they put in a motorcycle or ATV.”

That’s active right now?

“That’s active but it’s been extended out to February of 2011. So now it’s February 2011 and May of 2011.”

So essentially we’re looking for a legislative fix, and that would render the two stays unnecessary because the law would then be changed?

“Right, and that’s where everyone is. They’re hoping that Congress decides to accept the error of their ways and come back and offer a clean-up bill that essentially offers exemptions to all the products they believe don’t belong in the list – including kid’s books and things like that, fountain pens, and everything else a kid could possibly come in contact with.

“Our problem was that we had arguably the most compelling case to tell in Washington about our products, but members of Congress didn’t want to offer exemptions to specific industries. They wanted to do one big bill, to take care of everyone at the same time.”

What’s the status on HR 1587 (a House bill sponsored by Montana Republican Denny Rehberg)? Is 1587 the fix bill, or a different bill?

“What 1587 does is prohibit the CPSC from using any of their funds appropriated from Congress, any of their budget money, to enforce any provision in that bill [original CPSIA] that has to do with kids motorcycles and ATVs. So essentially it says you can’t spend any of your budget on doing this, so that means you can’t enforce it.”

And then there was a second legislative effort in the Omnibus appropriations bill.

“Yes. And that’s the language that they took from the Rehberg language and inserted it in the financial services and general government appropriations bill.”

And did that pass?

“It did pass.”

Then right now the CPSC has no funding to enforce the law?

“Well, no, what it did is it created – it’s vague language, it’s not as specific and spelled out as Mr. Rehberg’s language – but what it did do is put them [CPSC] on notice that Congress believes the rule was misapplied to motorcycles and ATVs and that they should take another look at it and report back to Congress what they’re going to do about it. And that deadline is Jan. 15 of next week.

Do you have any expectation of what that ruling will be?

“No we don’t have an expectation of what it’s going to be, but we are optimistic that the CPSC is going to come back and tell Congress that they also don’t think that motorcycles and ATVs should be on the list. They’ve said as much in other letters to Congress.”

So the ball is sort of in the CPSC’s court again. It gives them the opportunity to say, “we don’t want kids OHVs regulated that way.” And then what?

“Well, that’s the question. We don’t know what. We’re going to push for hearings. We have asked all of our membership in the latest issue of our magazine to send prewritten postcards to the chairman of both relevant committees in both the House and the Senate, Mr. Waxman [D-California] and Mr. Rockerfeller [D-West Virginia], asking them to hold hearings on this specific issue to get an answer and start moving in a direction. Because just like we thought last year, a year in legislative terms is a really short time, that’s tomorrow. And right now we’re almost at that deadline they set last year, but thankfully we were able to get an extension. But we want them to hold hearings soon, to get the issue resolved once and for all in both the House and the Senate.”

But the expectation is that a fix will probably require a congressional act?

“That seems to the conventional wisdom at the time, that it’s going to require some congressional action. Mr. Rehberg’s bill is still out there, Mr. Tester’s bill is out there [Senator Jon Tester, a Democrat from Montana introduced a Senate bill, SB 608, to address the OHV lead ban issue). And it [SB 608] doesn’t do quite the same things that Mr. Rehberg’s bill does, but we’re hopeful that we get some genuine movement in the next couple of months to give everyone some relief so we don’t have to worry about its anymore.”

You’re in Washington and you deal with the political angles all the time. Has there been bipartisan support for a fix to this?

“Strangely enough, in all my time in Washington I’ve never seen more people stumble over each other to agree with us that they shouldn’t be on the list, but no one can figure out how to get them off the list.”

It would seem even the CPSC agrees that kids are potentially put in a more dangerous position, as banning youth-sized OHVs puts them on the bigger vehicles.

“Yeah, they agree with us, and Congress agrees with us on that. That word ‘any’ seems to keep creeping into the conversation.”

On the list of things the AMA is working on in Washington right now, where does the CPSC issue rank?

“It’s at the top of the list. For all motorcycle organizations – the industry and AMA – the CPSC is right at the top of the list, the wilderness bill is right at the top of the list, the highway bill, that’s being considered right now, top of the list. I’d say those three issues are really competing for our attention. It’s difficult to rank them, but CPSC has certainly taken a lot of our attention over the last year.”

Any final thoughts on what the AMA wants riders to know as far as this issue goes?

“We just want riders to know that the issue is not over, and, because they’re probably not hearing as much now as they were in the early part of 2009, not to be lulled into a false sense of security. And to continue to contact their senators and congressman, asking for a fix and asking for a hearing. If they’d like to go to our website, please do so, because we’ve got prewritten letters there and they don’t have to be members to use the letters.”

Visit www.ama-cycle.org for more information.

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