[Federal Register: May 12, 2009 (Volume 74, Number 90)]
[Notices]
[Page 22154-22158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my09-30]
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CONSUMER PRODUCT SAFETY COMMISSION
Notice of Stay of Enforcement Pertaining to Youth Motorized
Recreational Vehicles
AGENCY: Consumer Product Safety Commission.
ACTION: Stay of enforcement.
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SUMMARY: This notice announces the decision of the Consumer Product
Safety Commission (``CPSC'' or ``Commission'') to stay enforcement of
section 101(a) of the Consumer Product Safety Improvement Act of 2008
(``CPSIA''), Public Law 110-314 with regard to certain parts and youth
motorized vehicles that contain those parts. Specifically, the
Commission is staying enforcement of the specified lead level as it
pertains to certain parts of youth all-terrain vehicles, youth off-road
motorcycles and youth snowmobiles (``Youth Motorized Recreational
Vehicles'' or ``Vehicles''), specifically battery terminals containing
up to 100 percent lead, and components made with metal alloys,
including steel containing up to 0.35 percent lead, aluminum with up to
0.4 percent lead, and copper with up to 4.0 percent lead, and the
vehicles that contain them.
This stay will remain in effect until May 1, 2011, unless prior to
that time the Commission, based upon evidence submitted to it, decides
to continue the stay for an additional period of time with regard to
all or some of the vehicles.
DATES: This stay of enforcement is effective on May 12, 2009.
FOR FURTHER INFORMATION CONTACT: John ``Gib'' Mullan, Assistant
Executive Director for Compliance and Field Operations, U.S. Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, Maryland
20814; e-mail jmullan@cpsc.gov.
[[Page 22155]]
SUPPLEMENTARY INFORMATION:
I. Background
On August 14, 2008, Congress enacted the Consumer Product Safety
Improvement Act of 2008 (``CPSIA''), Public Law 110-314, 122 Stat.
3016. Section 101(a) of the CPSIA phases in declining limits on
allowable lead content in children's products (defined as a consumer
product designed or intended primarily for children 12 years of age or
younger), starting on February 10, 2009 with 600 ppm and decreasing to
300 ppm on August 14, 2009. On August 15, 2011, the lead limit will be
100 ppm unless the Commission determines that a limit of 100 ppm is not
technologically feasible for a product or a product category. The law
does contain certain exclusions from the lead limits. One is for
component parts that contain more than the allowable lead content but
where the component is not accessible to a child through normal and
reasonably foreseeable use and abuse. The Commission can also
determine, for certain electronic devices, that it is not
technologically feasible for them to comply immediately with the lead
limits and shall establish a schedule by which such devices shall be in
full compliance unless the Commission determines that full compliance
will not be technologically feasible for such devices within a schedule
set by the Commission. The Commission may also, under section 101(b)(1)
exclude a specific product or material that exceeds the lead limits 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: (1) Result in the absorption of any lead into
the human body, taking into account 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 (2) have any other adverse impact on public health or
safety.
On March 11, 2009, the Commission issued a final rule on procedures
and requirements for seeking, inter alia, an exclusion under section
101(b)(1) of the CPSIA for materials and products that exceed the lead
content limits. 74 FR 10475. The final rule set forth: (1) That a
request for exclusion must be accompanied by evidence that will meet
the statutory test for the exclusion outlined above; and (2) that the
EXHR staff would evaluate the evidence and provide a scientific
recommendation to the Commission as to whether the party submitting the
request had met this statutory test.
The Specialty Vehicle Institute of America (SVIA), Polaris
Industries, Inc., American Suzuki Motor Corporation, Arctic Cat Inc.,
Bombardier Recreational Products Inc., Kawasaki Motors Corp., USA,
American Honda Motor Co., Inc., Yamaha Motor Corporation, USA, and the
Motorcycle Industry Council filed a petition to exclude a class of
materials under section 101(b)(1) of the CPSIA. The petition was
submitted prior to March 11, 2009, the date of the issuance of the
final rule on procedures or requirements for seeking an exclusion under
section 101(b)(1) of the CPSIA. The Commission has decided to treat
this petition as a request for exclusion under these procedures. The
petitioners sought exclusion for certain parts of their youth motorized
recreational vehicles including battery terminals containing up to 100
percent lead, and components made with metal alloys, including steel
containing up to 0.35 percent lead, aluminum with up to 0.4 percent
lead, and copper with up to 4 percent lead. Specified components
include: Tire valve stems, fittings and connectors made with copper
(and brass) alloys; brake and clutch levers and other brake components,
throttle controls, engine housings, and carburetors made with aluminum
alloys; and fasteners, frames and structural or engine components made
with steel alloys.
The petitioners submitted an exposure study, extrapolated from the
``best-available existing data'' based on an analysis of the lead in
metal jewelry (for an aluminum and a brass alloy) and a faucet (for a
brass alloy). This study concluded ``estimated lead intakes from
motorized recreational vehicle components are well below background
intakes of lead from food and water, and * * * such intake will not
result in a measurable impact on blood lead levels in children * * *.''
The petitioners also asserted that steel, aluminum, and copper
alloys containing lead are necessary for the functional purpose of the
equipment and replacement-part components, including, but not limited
to, lead batteries, fittings and connectors, engine housing, chassis
parts, frames, drive lines, spoke nipples, tire valve stems, cables and
hoses, brake levers and other brake system component clutch levers, and
throttle controls. For support, they point to the European Union's End-
of-Life Vehicles (ELV) Directive exemptions for lead in steel, aluminum
and copper alloys and lead batteries (January 2008) and the Restriction
of Certain Hazardous Substances in Electrical and Electronic Equipment
(RoHS) Directive (EU Directive 2002/95/EC, January 27, 2003), which are
based on the contribution of lead to the machinability, strength and
corrosion resistance, and the availability (or lack thereof) of
substitute materials that do not contain lead.
The Commission denied the petitioners' request for exclusion under
section 101(b)(1) of the CPSIA. However, for the reasons discussed
below, the Commission has decided to issue a temporary stay of
enforcement.
II. Discussion
The petitioners provided no data on the lead content of the actual
components in the vehicles for which they are seeking exclusion (other
than that some battery terminals could be up to 100 percent lead).
There was no attempt to differentiate among the types of vehicles or
the various manufacturers in the petition, which makes it impossible
for the Commission to know the actual state of affairs with regard to
these vehicles. The petition was filed before the Commission issued its
final rule on procedures and requirements, and therefore, before the
petitioners knew how the Commission would interpret the language in
section 101(b)(1). Thus they presented information that the lead
exposure from their components would neither result in any measurable
increase in blood lead level (a conclusion that the Commission has
since determined is not dispositive of the absorption analysis in
section 101(b)(1), although certainly important to scientists
considering the risk of lead exposure), nor have any adverse impact on
public health and safety. As noted above, the exposure study was not
based on actual measurements or analysis of youth motorized
recreational vehicle component parts and the materials may or may not
be sufficiently similar to serve as a reasonable basis for the
evaluation. Children riding these vehicles will interact with the metal
brake and clutch levers and the throttle controls and may also interact
with the tire valve stem and with certain of the other component parts.
The study submitted by the petitioners did conclude that some lead
would be ingested by a child who touched component parts containing
lead in the amount the report determined to be comparable to a child
handling the brake levers and the valve stem of a vehicle. The
Commission has determined that some portion of ingested lead will be
absorbed into the body, however small the absorbed amount. Because the
petitioners' study
[[Page 22156]]
indicated that children's use of youth motorized recreational vehicles
could result in intake of lead, and therefore absorption, the petition
does not meet the statutory requirement for exclusion set out in
section 101(b)(1)(A).
Petitioners also analogize their situation to the technological
feasibility criterion in the electronics device exclusion for their
reliance on the ELV and RoHS exemptions for batteries and certain metal
alloys. However, no such criterion is specified in section 101(b). The
ELV and the RoHS Directives are focused on reducing hazardous waste in
landfills and encouraging recycling of these hazardous waste products
and thus have quite different purposes than the lead provisions of the
CPSIA, which focus on protecting children from unnecessary exposure to
lead through contact with it in children's products. Nevertheless, the
Commission recognizes that unless it takes some action with regard to
the information provided by the petitioners, the riders of these
vehicles--children 12 and younger--would likely face a more serious and
immediate risk of injury or death. For the reasons discussed in more
detail below, the Commission is today announcing a time-limited stay of
enforcement with regard to certain parts and the vehicles that contain
these parts.
The petitioners allege, and the Commission believes it could bear
out that if any period of time passes in which youth motorized
recreational vehicles are not available for sale (or existing ones are
not able to be serviced) that some parents would allow their children
to instead ride adult models or over-sized and over-powered versions of
the youth models. Our work on ATVs has shown that the vast majority of
the deaths of children from driving ATVs occur on adult-sized models.
Part of the Commission's work in its ongoing ATV rulemaking is to
encourage the development of accurately sized and powered vehicles for
children so they will not ride an adult model. Some manufacturers have
told the Commission that they have instructed their dealers to remove
youth motorized recreational vehicles from their showrooms and to not
sell them. The Commission has received reports of dealers refusing to
do routine maintenance on previously sold youth vehicles. Finally, one
manufacturer has written to the Commission informing it that they are
relabeling their Y-6+ and their Y-10+ youth vehicles to Y-12+ and they
are advising their dealers they can remove the speed limiting devices
from these vehicles. Due to the long lead time in designing and
manufacturing these motor vehicles, it would likely be model year 2011
or 2012 before a complying youth ATV could be on the market (ignoring
for a moment the other issues concerning the feasibility of making a
completely complying vehicle). This safety dilemma applies equally to
vehicles that have already been made and are in inventory with dealers
or have already been sold and are in the hands of resellers or
consumers. If parents of youth riders are unable to buy youth-sized
vehicles (whether new or used) they may very well choose to allow their
children to ride adult or over-powered, wrongly-sized versions of youth
ATVs. Because used ATVs need periodic maintenance and repair, an
inability to obtain certain replacement parts could lead to these
vehicles becoming inoperable. If no youth-sized substitutes are
available, this would similarly lead to parents consenting to their
children crossing over to adult-sized machines before they are
physically and mentally capable of safely operating them. While it
might be possible to change out some of the non-complying components on
existing vehicles, for many of the components that is simply not an
option. Thus replacement parts that have the same amount of lead
content (or less) as the original part are included in our enforcement
stay.
The other safety-related allegation made by the petitioners is that
a certain amount of lead is needed in some component parts of their
vehicles for ``functionality, durability and other reasons that are
safety critical to the components.'' See Statement of David Murray,
Counsel for Yamaha, at the March 11, 2009, public meeting on ATVs and
other youth motorized recreational vehicles.
The petitioners again point to the ELV Directive for their support
of this contention. However, the ELV report's exemption for steel for
machining purposes containing up to 0.35% lead by weight seems to rest
more on the easier machining properties of leaded steel than on safety
considerations. The ELV report deals with leaded steels versus unleaded
steels, rather than an analysis of how much lead is actually needed for
any particular application. Galvanized steel does, according to the
report, have advantages in corrosion resistance, which could have
safety implications. The exemption for aluminum for machining purposes
with a lead content up to 0.4% by weight was granted due to its higher
resistance to corrosion and to the extent it is used in brake and
clutch systems and perhaps certain other applications, such an
exemption would appear to be safety related. The granting of the
exemption for copper alloy containing up to 4% lead by weight, like
steel for machining purposes, appears to be chiefly because the lead
makes the copper more easily machinable. The ELV report noted that the
presence of lead did not significantly affect the strength or corrosion
resistance of the copper alloy. The petitioners do state that the
enhanced machinability of copper alloys ``permits the creation of deep
grooves in threaded parts such as valve stems that are needed to ensure
secure cap and air valve fitment for safety reasons.'' See Petition for
Temporary Final Rule to Exclude a Class of Materials Under Section
101(b) of the Consumer product Safety Improvement Act, dated January
27, 2009, at 13. For the last ELV review, the copper industry was asked
to indicate the applications in which the unavoidable use of lead had
safety implications, but their response had not been received at the
time the report was written. Thus the report's conclusion on copper
alloys was that they were not able to carry out an in-depth evaluation
based on the information that was made available to them and that the
exemption should continue until a full assessment is carried out. The
exemption for lead in batteries noted that the substitution of lead in
lead-acid batteries is ``not possible'' and that avoiding the use of
lead would require an alternative battery system. The report's
conclusion was that lead-free alternatives to lead-acid batteries would
reduce the functionality and reliability of vehicles and that the use
of lead in this function is unavoidable at this time. It did note,
however, that research was being actively pursued to develop a
substitute for lead in this application.
Another argument advanced by the petitioners and also supported by
the ELV report is that for certain alloys no acceptable substitutes
exist or if they exist, they do not exist in sufficient quantities to
satisfy the global requirements. The ELV report found, for example,
that there was as yet no technically feasible way to remove lead from
aluminum.
The Commission staff had very little time to assess these issues
independently. Therefore, the ELV report's analysis, which was strictly
limited to the technological feasibility of a substitute for lead and
not on the higher cost of a viable substitute, is instructive. To the
extent that these alloys are required for safety reasons related to
functionality, greater durability, or corrosion resistance, removing
the lead from those alloys could result in a vehicle that is more
[[Page 22157]]
prone to structural breakage, premature brake failure, or other defects
that could present a risk of death or serious injury. For example,
failure of a less durable brake lever may result in an inability to
stop or control a vehicle and result in death or serious injury to the
child operating the vehicle. In contrast, Congress has eliminated the
risk analysis associated with the absorption of lead. Yet, while we
acknowledge that there are adverse health effects associated with lead
poisoning or elevated blood lead levels, we also must acknowledge that,
based on our experience with these vehicles and current available
information, the risk of death or serious injury associated with broken
or defective vehicle parts is both more likely and more significant
than any risks associated with possible absorption of lead. In such
circumstances, enforcement discretion is the only means for the
Commission to protect riders of youth ATVs.
The petitioners did not address what level of lead is necessary for
their various components to meet acceptable functionality, durability
and corrosion criteria. The industry, at the March 2009 public meeting
indicated that in terms of the uncontrollable variability of the lead
content in the metal alloys they buy, the 600 ppm limit was ``probably
not an issue.'' It would, however, be a problem when the lead limit
drops to 300 ppm in August of this year. The statement was also made at
that meeting that they were seeking exclusions for these metal alloys
``at or below'' the levels established by the European Union. But how
much below the EU level they can go toward the statutory limit without
compromising safety is something they do not appear to know at this
time. A spokeswoman for the industry stated at the public meeting that
it should not take several years for the industry to test the metal
alloys, but it will take some time because certain considerations such
as the aging of the materials will have to be taken into account. She
also asserted that all of the members of their coalition were willing
to move to low lead alloys if they can be shown to be appropriate for
real-world applications under real-world stresses.
The petitioners appear to be in various stages of attempting to
comply with the lead limits. They stated at the March public meeting
that their clients have been working diligently to remove, substitute
or shield from accessibility, non-complying, lead-containing components
in their vehicles. They appear to have removed lead from the vinyl
components of their vehicles, such as the handlebar grips and the
seats. One of the largest makers of youth ATVs stated that their
battery is in a recessed compartment and that they could put a cover
over it and screw it in place. Under the Commission's accessibility
proposals, that should qualify to make the engine components
inaccessible and remove the 100 percent lead terminals as a matter of
concern for their vehicles. Another spokesman at the meeting assured
our staff that the industry members represented there were all
exploring the issue of encasing their batteries. It was also noted that
small motorcycles do not have batteries. A snowmobile manufacturer
indicated at that same meeting that they had sent retrofit kits to all
of their dealers to switch out a substitute ``for those few
components'' that did not meet the lead limits. They additionally put a
latch on the hood to make the engine inaccessible to children. They
may, therefore, not need relief for their future production. A
spokesman for the petitioners indicated they thought they could make
other parts, such as the valve stem and some cable systems
inaccessible. Thus even some of the parts that contain metal alloys
that the petitioners were seeking exclusion for could, with time, be
made compliant.
In the interim final rule on electronic devices where the
Commission referenced the exemptions in the RoHs Directive, the
Commission stated that it ``expects that manufacturers will continue to
assess the technological feasibility of making electronic devices that
have accessible component parts which contain lead above the lead
content limits inaccessible, and make such component parts inaccessible
whenever possible.'' Similarly, the stay of enforcement is issued with
the expectation that manufacturers will not simply rely on the
continued stay of enforcement for a particular metal alloy, but will
explore other ways in which to comply with the lead limits. A periodic
review is required in RoHS and ELV, a process the industry appears to
embrace. As long as manufacturers are alleging that it is
technologically infeasible for certain components to comply with the
CPSIA either through being made inaccessible or otherwise, they must be
required to periodically justify, with specificity as to the components
and alloys from which the components are made, the continued need for
enforcement abeyance.
In carrying out its responsibilities to protect the public, it is
the Commission's role to take a broader view of any product and
evaluate a safety versus safety tradeoff presented by a product's
design when one appears. The Commission currently lacks the information
it needs to make a vehicle by vehicle assessment of this industry's
state of compliance with the lead limits. The industry needs more time
to gather this information, taking into account their on-going work in
this area, and the Commission needs time to review that information.
Even a time-limited stay that has as its goals moving these vehicles
toward compliance in a fashion that does not drive children to a
riskier alternative and systematically reducing the lead content of
these vehicles to the lowest level possible from a safety standpoint is
not our preferred way to handle these types of issues. However, given
the alternatives available to us and the information received thus far,
we feel that this procedure is not inconsistent with the overall intent
of the CPSIA, which is to protect consumers, particularly our children,
from serious risk of harm, when the result of forcing compliance with
the provisions within the original time constraints could result in a
more immediate and potentially more serious hazard than a limited stay
of enforcement.
To afford the manufacturers an appropriate amount of time to
continue the testing they are already doing and to conduct any research
and development necessary to bring component parts into compliance with
the CPSIA and to identify any parts that are either technologically
infeasible to bring into compliance during the stay period or identify
those where such compliance, while technologically feasible, would
expose children to other and greater safety risks, the stay will remain
in effect until May 1, 2011.
III. The Stay
The United States Consumer Product Safety Commission hereby stays
enforcement of section 101(a) of the Consumer Product Safety
Improvement Act of 2008 (``CPSIA'') and related provisions with respect
to certain parts of motorized recreational vehicles designed or
intended primarily for children 12 years of age or younger, namely
youth all-terrain vehicles, youth off-road motorcycles and youth
snowmobiles, until May 1, 2011, upon the following conditions:
A. The stay shall apply to youth all-terrain vehicles, youth off-
road motorcycles and youth snowmobiles (``Youth Motorized Recreational
Vehicles'' or ``Vehicles'') that were manufactured before February 10,
2009, and to Youth Motorized Recreational Vehicles made on or after
that date through April 30, 2011. The stay with regard to Youth
Motorized Recreational Vehicles made during this time period
[[Page 22158]]
shall remain in effect for the life of those Vehicles.
B. The stay shall apply only to the following types of original
equipment parts for Youth Motorized Recreational Vehicles: battery
terminals containing up to 100 percent lead, and components made with
metal alloys, including steel containing up to 0.35 percent lead,
aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent
lead.
C. The stay shall also apply to any metal part sold separately as a
replacement for one of the parts described above, provided that the
lead content in the replacement part is less than or equal to the lead
content in the part originally installed on the Vehicles.
D. Each manufacturer (which can include a distributor where
appropriate) who is covered by the stay shall file with the Secretary
of the Commission, not later than 60 days after the publication of this
stay in the Federal Register, a report identifying each model of Youth
Motorized Recreational Vehicles it has produced between March 1, 2008
and March 1, 2009. For each such model, the manufacturer shall give the
production volume by calendar month and shall list each component part
that is made of metal and that is accessible to children, the material
specification for each part, and a measurement of the lead content of
representative samples of each part in parts per million (ppm). The
lead content measurement may be by x-ray fluorescence or the method
posted on the Commission Web site to test for lead in metal for
certification purposes.
E. No later than November 1, 2009, each manufacturer covered by the
stay shall present a comprehensive plan to the Commission describing
how and when it intends to reduce the lead exposure from each part
described in paragraph D above whose measured lead content exceeds 300
parts per million. The plan shall set forth the steps the manufacturer
intends to take to limit children's lead exposure in future production
and an estimated schedule for achieving such reductions. The
manufacturer should include a discussion of any adverse safety impacts
that could result from accelerating the estimated schedule. If some
Vehicles have been modified after January 27, 2009, to reduce the lead
content of certain parts or to make certain parts inaccessible, the
manufacturer should outline those changes in general terms and the
dates such changes were made.
F. Manufacturers who have timely submitted both the report in
paragraph D and the plan in paragraph E above, who need additional time
to complete their plan prior to the expiration of the stay may seek an
extension of the stay. They shall, no later than December 1, 2010, file
a request with the Secretary of the Commission for an extension
containing all of the information described in paragraph D above,
including an update of the production volume by month for each
previously listed model and for any new youth model introduced after
the date of the prior report, lead content measurements taken within 90
days of the report submission for each part to be subject to the stay
extension and a revised timetable for the reduction of lead exposure
from those parts. The report shall detail the manufacturer's progress
in reducing children's exposure to lead from each part containing more
than 300 ppm, specifying what actions have been taken with regard to
each affected part. The report will also explain why any parts that
remain above 300 ppm have not able to be made inaccessible, substituted
with another material, or made with a complying level of lead.
G. Any report submitted under paragraph F shall also identify the
Youth Motorized Recreational Vehicles by model that the manufacturer
intends to produce on or after May 1, 2011. The manufacturer shall
provide a listing of each component part that is expected to be used in
the production Vehicles if its lead content is expected to exceed 100
ppm and will be accessible to children. For each such part the
manufacturer shall explain why it is not feasible to make the part
inaccessible or why it is not technologically feasible to reduce the
lead content to 100 ppm or lower.
H. While the stay is in effect for particular Vehicles, the Office
of Compliance shall not prosecute any person for any violation of laws
administered by the Commission based on the lead content of any part
of, or replacement part for, those Vehicles to which the stay applies,
including provisions relating to certification of compliance, reporting
of noncompliances, or the sale, offering for sale, importation or
exportation.
I. While the stay is in effect for particular Vehicles, the
Commission will not refuse admission into the United States of such
Vehicles based on the lead content of any part of such Vehicles to
which the stay applies or any replacement part for such Vehicles as
described in paragraph C.
J. This stay does not apply to Vehicles that are stockpiled by the
manufacturer. Stockpiling shall be determined on a model-by-model
basis. Vehicles shall be deemed to be stockpiled if their production in
the six-month period ending on April 30, 2011 exceeds by more than
fifteen percent the production of that model or its predecessor during
the six-month period ending on April 30, 2010. The production of new
models must not exceed by more than fifteen percent the production of
similar models by the same manufacturer.
K. The Commission hereby delegates to the Assistant Executive
Director, Office of Compliance and Field Operations, authority to
implement the stay of enforcement as specified here and the authority
to modify provisions in individual cases where necessary due to unique
or unforeseen circumstances.
The stay in no way limits the Commission's ability to take action
with regard to Youth Motorized Recreational Vehicles for other safety-
related issues including, but not limited to, failure to comply with
the ban on lead-containing paint or with the American National Standard
for Four Wheel All-Terrain Vehicles Equipment Configuration, and
Performance Requirements developed by the Specialty Vehicle Institute
of America effective on April 13, 2009 and the requirement to comply in
all respects with an action plan on file with the Commission as set
forth in the CPSIA.
Dated: May 1, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E9-10981 Filed 5-11-09; 8:45 am]
BILLING CODE 6355-01-P