February 12, 2009

CPSC indefinitely delays determination on industry petitions seeking exclusions from lead limits

The CPSC just posted their "response" to a number of industry petitions filed well before February 10, 2009 seeking exemptions or exclusions from the lead limits for various reasons. It seems the BPSA was in good company as the Motorcycle Industry Council was also petitioning.

The letters in response to the petitions were all about the same. Bottom line: not good news but not bad...just more waiting until the CPSC can figure out what to do. In CPSC speak the letter said in conclusion: "Because the Commission lacks the authority to grant the "temporary final rule" you seek, we are not docketing your request as a petition. Your request will be considered as part of the ongoing rulemakings for exclusions or exceptions from the section 101 lead limits. The staff will assess your request accordingly..." Of course no date was given when they will make a decision. Sound Familiar? In the meantime though all of you in the supply chain are still subject to the lead limits (testing or not) and if and until Congress acts the Sword of Damocles will remain over your heads.

Here are the petitions and the respective letter responses (by the way the letters from the CPSC are all dated February 9, 2009 but this information was not posted by CPSC until late on February 12, 2009):

Bicycle Product Suppliers Association (BPSA) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Jim Boltz Cycle Barn Motorsports Group (January 30, 2009) and Response from CPSC General Counsel (February 9, 2009)

Motorcycle Industry Council (MIC) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Specialty Vehicle Institute of America (SVIA) (January 28, 2009) and Response from CPSC General Counsel (February 9, 2009)

Polaris Industries, American Suzuki Motor Corporation, Arctic Cat Inc., Kawasaki Motors Corp., U.S.A., American Honda Motor Co., Inc., and Yamaha Motor Corporation (January 27, 2009) and Response from CPSC General Counsel (February 9, 2009)

Also on Feb 12, 2009 the CPSC issued a
Notice of Availability of Draft Guidance Regarding Which Children's Products are Subject to the Requirements of CPSIA Section 108 (Regarding Phthalates); Request for Comments and Information The CPSC is seeking comments on whether the Commission should follow the exclusions listed in ASTM F963 for meeting the new Phthalates requirements (along with a host of other issues). The CPSC staff looked to the definition of “toy” in the ASTM F963-07 toy safety standard for guidance. (The CPSIA makes ASTM F963 a mandatory CPSC standard on February 10, 2009) ASTM F963 excludes certain types of articles (such as Bicycles, Tricycles etc; see above pdf for a list) from the definition of toy.

Clearly we want bicycles any other "non toys" to remain free of the new Phthalates requirements as they currently are.

Please read the above PDF and file comments with the CPSC by e-mail to: section108definitions@cpsc.gov. Comments are due by March 12, 2009. Comments also may be filed by fax to (301)504-0127. Comments should be captioned “Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information.”

Last but not least, we have not heard anything further on Senate bill S. 374 except for the request of Senator DEMINT to add the names of the Senator from Kansas (Mr. BROWNBACK), the Senator from Oklahoma (Mr. COBURN), the Senator from Idaho (Mr. CRAPO) and the Senator from Oklahoma (Mr. INHOFE) as cosponsors of S . 374, a bill to amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses. As there is now a groundswell of support against the "unintended consequences" of the lead ban we may see a faster move by Congress than the CPSC (provided Congress can resolve the Stimulus Bill soon as that is using up all available resources in Congress now.)

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