Thursday, July 14, 2011

Can't meet 100ppm? "Just petition us!"

At yesterday’s hearing on the technological feasibility of dropping the lead content limit to 100ppm, it was stated that if there’s any manufacturer out there that’s having trouble reaching this lead content limit (even though the Commission’s Majority already made the decision that it’s technologically feasible for all products to meet 100ppm)----just file a petition with the Commission, and we’ll consider it.

Really…’s that simple?

Aside from the fact that there is a clear split among the Commissioners regarding how they view the flexibility allowed by Section 101 of the statute, the petitioning process for any company, under just about any of our statutes, is immensely complicated. Here are some key considerations for a company filing a petition as well as some facts and figures to keep in mind:

- First, does the company’s request for relief count as a “petition”? In the past 2 years, the Commission has docketed approximately 6 petitions in the Federal Register. All this illustrates is that these documents were prepared to the required specifications to be deemed a "petition" by the Commission. This does not, however, count the many requests for relief that we rule out simply because they do not meet the guidelines to be considered a “petition” outlined in our regulations.

- Can the manufacturer make the scientific, engineering, legal and other showing necessary to support their petition for relief? While the largest of businesses may be able to achieve this feat, most small businesses do not have metallurgists or a legal team on hand to put together such a petition.

- Who can afford the cost? We know from one former petitioner to our agency that the cost to file a petition, including legal fees, was approximately $50,000—-and can run much more. Mind you, that is without the odds favoring any guarantee that the Commission will even grant their request.

- Is there a chance of winning? Granting petitions by the Commission is always subjective. As seen in today’s hearing, there are a wide variety of opinions regarding the statute’s flexibility on 100ppm – and even regarding the lack of a health benefit. Just for perspective, it is helpful to remember that every product-specific petition for exclusion filed previously under Section 101 (e.g., petitions for bicycles, ATVs, ball point pens, crystals, and toy cars with brass axles…) has been denied.

- Do you have the time to wait? As a number of manufacturers already know, the petitioning process takes time – including a notice and comment period for the public, and taking into account the many other priorities of the Commission. There is no guarantee that a company will receive the decision they need, and in time to make a difference.

- And realistically…if your business is failing due to the Commission’s decision that it was technologically feasible for you to drop to 100ppm (and/or due to the CPSIA’s myriad mandates)…do you really have a spare $50,000 and the time necessary to petition a federal agency?

As of yesterday’s vote, the Commission may have unnecessarily consigned an unknown number of products and businesses to oblivion. Let's at least have the spine to admit it, rather than pretend we are awaiting the opportunity to provide relief, through petitions, to all comers.

Stay tuned in the upcoming days for my statement and further commentary on the 100ppm decision….

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