ARMCADistrict 23

This article appeared in the Minneapolis Star Tribune on Sunday, March 8, 2009 and definitely got Senator Amy Klobuchar’s attention. She called me in my office the next day and promised to work to make it right.

By HERÓN MÁRQUEZ ESTRADA, Star Tribune updated: March 8, 2009 – 8:57 AM

At age 12, Jacqueline Riess is already a two-time state Supercross champion, at times racing motorcycles against women two or three times her age.

But the Eden Prairie sixth-grader might not get a chance to defend her title this year because of off-the-track issues — not hers, but those of some grownups in Washington.

One tiny word in a new child-safety law is causing big problems between Congress and the Consumer Product Safety Commission, which are at war over how best to limit lead in kids’ products.

Caught in the crossfire are Riess and thousands of other motorcycle and ATV riders across the country who suddenly were not able to buy new bikes or parts when the law went into effect Feb. 10 because stores were told they exceeded the new lead limits.

“Our hands are tied,” said Joseph Martyak, acting director of public affairs for the safety commission. “The agency can only [exempt] if the product will not result in the absorption of ‘any’ lead in the human body. … That is the crux.”

The commission says the law’s limits are so tight that even tiny amounts of lead in pre-1985 children’s books and in metal stems on bicycle tires can leave enough of a trace on children’s fingers to violate the new standards.

What’s more, agency officials say they told Congress they would have to interpret the law this way. But Congress passed it anyway.

The bill’s sponsors, including Minnesota Sen. Amy Klobuchar, are equally adamant that such an absolute interpretation was not what they intended in the 2008 Consumer Product Safety Improvement Act.

“Their hands are not tied,” Klobuchar said. “We gave the commission the power to implement common-sense rules. Congress never intended it to be interpreted this way.

“We never thought children were going to be sucking on brake handles.”

Sweeping provisions

The new law makes it illegal to provide children with books, toys, clothing, vehicles or any other products with a lead content of more than 600 parts per million.

As a result, more than $1 billion of inventory was pulled or in danger of being pulled from shelves, showrooms, display cases or racks for fear of stiff penalties — up to $100,000 in fines and five years in jail.

In Massachusetts, thrift stores stopped selling kids’ clothing. Around the country, some libraries considered pulling children’s books. In Minnesota, among the hardest hit were ATV and motorcycle dealers, who pulled thousands of vehicles from showrooms.

Among the items suddenly not available was the 100cc Kawasaki motorcycle that Jacqueline Riess needs to start training to defend her title this season, beginning in April.

“It’s almost unfathomable how far [the new law] reaches,” said Owen Riess, Jacqueline’s father. “She can’t believe that you think she could get lead poisoning from motorcycles. She thinks they’ve all gone crazy to think that they are going to eat their motorcycles.”

The ban also affects motorcycle parts, so even though Jacqueline will use last year’s motorcycle — an 85cc Suzuki — if it breaks down this year she will not be able to fix it.

“This is endangering my daughter and jeopardizing her season,” Riess said. “If I can’t replace a part that needs to be replaced for safety, then we’re done. The season’s over.”

Although libraries, manufacturers, dealerships, thrift stores, jewelers and others knew the changes were coming, there was hope the commission would grant exemptions for products obviously not meant to be ingested, such as books and motorcycles.

But a strict, near-zero-tolerance interpretation of the new law by the Consumer Product Safety Commission has parents, consumers, manufacturers and politicians angry and frustrated.

Many members of Congress, including Klobuchar, are upset at the way the commission is applying the law. Last month, Sen. Jay Rockefeller and others wrote to President Obama asking that Nancy Nord be replaced as commission chairwoman.

“The implementation process of the [law] has been grossly mishandled … by Nancy Nord,” Rockefeller wrote. “The commission continues to exhibit severe elements of dysfunction and is in need of a change in its leadership.”

But the commission’s Martyak said that Klobuchar, Rockefeller and other senators and representatives were warned by commission scientists last year that using the word “any” would become problematic.

“That is a very, very, very tight standard,” Martyak said. “Congress wrote that and Congress knew that. Our technical people — not our political people — advised them in some of the meetings that if you use this word ‘any’ it will be practically impossible for anything to get an exclusion.

“We were told by some of the [congressional] staff, ‘We know that, that’s what we intended. You are here to give us technical advice. Now move on.’”

‘A common-sense way’

Klobuchar, a prime sponsor of the bill, said she never met with commission staff and was never told directly about their concerns over the strict language.

She and others argue that Congress foresaw the potential problems and in fact gave the commission enough leeway to interpret the law in “a common-sense way.”

There is a provision in the bill allowing the commission to exclude products such as motorcycles if commissioners “take into account normal and foreseeable use and abuse of such products by a child,” Klobuchar noted.

“Commissioner Nord made it very clear she was not happy with this law, and that was apparent from the very beginning,” Klobuchar said.

“The commission needs to step up and do the right thing.”

Heron Marquez Estrada • 612-673-4280