The ATV Stay of Enforcement was published today by the CPSC. I have written extensively about this topic. Now that the final words of wisdom are available for scrutiny, I find myself tied up in knots about various aspects of this decision:
a. The ATV Stay is LEGISLATION - AND IS AN ILLEGAL ACT BY THE CPSC. The Statement of Nancy Nord says it all: "We have heard from Members of Congress that they did not mean for the law to impact youth ATV's in this way, that we should use stays of enforcement to address "anomalies" in the law, and that, with respect to ATV's, we should regulate prospectively." WHOA! Hold on, Jack! I must be imagining things. I have a rather vivid recollection of the CPSC General Counsel intoning publicly on November 6 that Congress MEANT the CPSIA to apply retroactively and that Members of Congress had told the CPSC privately (and adamantly) that they had carefully considered this provision and wrote it to be retroactive. In fact, I remember a particularly colorful turn of phrase used to describe the manner in which this message was delivered to said General Counsel by these Members of Congress when they asserted that her September 12 opinion letter on retroactivity was not "tough" enough. . . . The phrase used left no doubt as to the urgent and emphatic nature of the message from Congress that retroactivity was intended. And NOW, Members of Congress seem to be having a rather different recollection. With all these memory issues, you'd think that someone would think to defer to the written law. . . .
The decision of the CPSC to rewrite the law on ATVs is called LEGISLATION even if 28 Senators really really wanted them to do it. It is also called baloney. Of course, it is politically expedient for Congress to require the CPSC to be its clean-up crew. Problem - what about the REST OF US? Hmmm, I guess Congress' careful consideration of retroactivity will produce yet more "unintended consequences". What's the difference, anyhow? Once the ruckus over ATVs dies down, Congress can go back to whatever it is doing and safely ignore the devastation in the rest of the children's market.
b. The ATV Problem Comes With A Built-In Excuse to Act - So How Will The CPSC Find Loopholes for Bikes, Books and Pens? The CPSC pointed to the dilemma of holding kid-sized ATVs off the market for admitted lead standard violations, given that parents would simply let their kids ride adult-sized ATVs which are known to be unsafe for kids. Skewered on the horns of a dilemma, the CPSC resolved the ATV problem with common sense (illegally, but sensibly). But now there's the not insignificant issue that no such excuse allows the CPSC to manhandle the law for the benefit of other CPSIA poster children, such as library books or ballpoint pens. Consider, for example, the Request for Exemption by the Writing Instrument Manufacturing Association. Guess how much lead you would absorb from one minute's sweat contact exposure to a ballpoint pen . . . . Try four one-hundred-TRILLIONTHS of a gram (0.00000000000004 grams). Yes, that's right. Put another way, how long would you have to exposure yourself to a pen in your sweaty palm to absorb a microgram of lead (one-millionth of a gram) through sweat? Between 475 and 476 years. Personally, I wouldn't make it that long writing on my hand.
If the ATV decision means that administration of the CPSIA going forward will depend on constantly taking the temperature of Congress, expressed not as laws crafted in the light of day subject to established legislative process but instead as backroom conversations or advice from shadowy staffers who seek to make the CPSIA spin like a top, then perhaps the agency will be able to cut these product classes and industries free. Anything's possible, I guess, especially if there is no real legal process, just a sham to give the appearance of accountable governance. Nifty - the only cost we will incur is the loss of the integrity of our legal system. To me, this is an incredible abuse of power.
c. The CPSC Confirms that Lead Intake Which Has No Measurable Impact on Blood Lead Levels Cannot be Tolerated under the CPSIA. I cannot say this is a revelation but at least we have it now in unambiguous terms, written down: "[The ATV Applicants] presented information that the lead exposure from their components would [not] result in any measurable increase in blood lead level (a conclusion . . . not dispositive of the absorption analysis in section 101(b)(1)), although certainly important to scientists considering the risk of lead exposure . . . ." You know, like the professional staff at the CPSC used to be allowed to do.
The Notice goes on: "To the extent that [ATV component alloys] are required for safety reasons relating to functionality, greater durability or corrosion resistance, removing the lead from these alloys could result in a vehicle more prone to structural breakage, premature brake failure, or other defects that could present a risk of death or serious injury." To me, this seems like a small price to pay for a day's ATV ride to avoid taking in the same lead you would breathe in less than five minutes. It continues: "In contrast, Congress has eliminated the risk analysis associated with the absorption of lead." Brave New World - learn to love it, guys!
Bottom line: The ATV decision is make-it-up-as-you-go-along law. That is TERRIBLE news for everyone, even those who seem to benefit in the short run from this particular decision. Beware this kind of gift. Law crafted in shadows has a tendency to bite hard.