2009 Archive

2009 Legislative Wrap Up
Jerry Abboud, Executive Director, with the use of some material provided by Melissa Kuipers of CADA
g.abboud@comcast.net

All in all a good session if you exclude the majority party’s surcharges and taxes. Good things happened due to PDAC’s diligence and hard work. This marks my 23rd session on behalf of the dealers so pass the Motrin; it’s not getting any easier. A PDAC bill is noted as such and others are those we supported, brought by other entities.

SB91: By Senator Romer and Representative Rice. Motor vehicle and Powersports franchise law changes. CADA wrote a very good bill for motor vehicles but PDAC had to amend it to add powersports. We worked hard and the dealers who testified did an outstanding job. The key elements include:

Warranty and Sales Incentives Audits: Requires dealers to submit warranty and sales incentive claims within 15 months of making sale or providing service. Manufacturer will then have 15 months from the date these claims were submitted to audit the dealer on those claims.

Dualing: Protects dealers from manufacturer mandates to build and maintain facilities exclusive to one line-make. Requires dealers to provide 90 day written notice to manufacturers of their intent to acquire additional vehicle brands in an existing facility. This 90 day time frame is not an authorization period for the manufacturer to approve or disapprove the addition of a line-make. It is strictly a notice period whereby the dealer informs the manufacturer of its intent to dual.

Incentives tied to facilities upgrades: Protects dealers from manufacturer mandates to upgrade existing dealer facilities. If manufacturer offers incentive programs to dealers to upgrade facilities, these programs must be offered to all dealers equally in Colorado and participation in these programs on the part of the dealer is entirely voluntary.

Pricing variances: Requires manufacturers to offer price incentives to all dealers equally in Colorado. The dealer in rural Colorado would be provided with the same pricing and/or sales incentives offered by the manufacturer that are offered to a dealer in urban Colorado.

Termination & Market Withdrawal: If a manufacturer discontinues production of certain lines vehicles, they must provide the dealer with payment for 12 months of rent for their facility and the goodwill value of the dealership on the date the announcement is made to terminate the brand.

Buy/Sell/Transfer/Change of Management/Relocation: Manufacturers must provide their approval or disapproval within 80 days, with an inclusionary timeline of 20 days to tell the dealer specifically what documentation it needs to render a decision. In no event shall this process take more than 100 days.

“Grandfather-in” existing manufacturer, but prohibit future licenses: There is one truck manufacturer currently selling used trucks in Colorado, and this law “grandfathers” them in, but prohibits any manufacturer from selling used vehicles in the future. The sale of new vehicles by manufacturers is already prohibited

Please note as the auto dealers are finding out, state franchise laws do not apply to manufacturers who have filed bankruptcy. This is out of the state’s hands.

HB1026: By Representative Marostica and Senator Williams. This bill, written by the PDAC is one that will certainly make 50cc and under scooter sales go more smoothly.

Low Powered Scooters: The term motorized bicycle has now been changed to low powered scooter to reflect what the vehicles are. Mopeds are still allowed. The new definition removes the 30 mph design speed and allows for a clutchless shift mechanism not just an automatic transmission. It also includes electric scooters of a certain wattage.

Speed limit: Because manufacturers no longer design 50cc scooters with a maximum design speed dealers and county clerks were in a real pickle as to how to treat any given scooter: is it a motorcycle or a 50cc scooter? The new law sets a speed limit of 40 mph and if the operator exceeds that speed they may get a ticket for speeding only. Prior to this law many law enforcement officers wrote the person going 35 mph a ticket for no plates and registration, no proof of insurance and no motorcycle endorsement.

Insurance: The General Assembly added the requirement of standard liability insurance to low powered scooters. These policies run under $100 dollars and will avoid future complaints as scooters fill the streets and are involved in accidents. PDAC was able to write language that allows dealers to have the proof of financial responsibility document at the dealership where the 3 year registration is purchased. Dealers are held harmless if this document is either falsified or inadvertently unsigned.

HB1230: By Rep. Ken Summers and Sen. Abel Tapia, a CADA bill. This bill provides a hold harmless for dealers who collect taxes based on erroneous primary address information provided by purchaser. In order to receive protections of this bill, a dealer must inform the purchaser that providing false address information is illegal and must obtain an affidavit from the purchaser that the address they have provided is true and correct.

In the event of a future audit on that sale, dealers would simply produce the consumer affidavit and they will be held harmless for any fees, penalties or taxes due based on the consumer’s false information. This bill does not extend to home rule jurisdictions (including Denver) but CADA will be working this summer to have home rule jurisdictions adopt a similar ordinance. Additionally, the bill directs the TLRC (Transportation Legislation Review Committee) to study the accuracy and availability of state approved sales tax databases, how often these databases are updated, the efficiency of the collection of sales tax on the sale of motor vehicles by home rule counties and municipalities, and the number of occurrences in which motor vehicle registrations and titles are returned to the dealer due to sales tax discrepancies. The first TLRC meeting for the summer is scheduled for Wednesday, June 24th at 8:00 AM

SB150: by Sen. Rollie Heath and Rep. Claire Levy. This bill addresses the bankruptcy issue where perfection of liens dated back to their being recorded giving purchasers of motor vehicles the ability to avoid lien perfection and screw the dealer and lender.

Since Governor Ritter signed the bill and it is now law, should the consumer bankruptcy scenario ever occur, dealers and lien holders now have a super priority interest in a bankruptcy proceeding as the perfection of the lien, presuming it is done within 30 days of the sale, relates back to the date of purchase not the date it is received or recorded.

SB275: By Sen. Abel Tapia and Rep. Mark Ferrandino. The law on this issue allows vendors to collect the reduced sales tax 1.35% vendor fee through June 30, 2009. Thereafter and continuing through June 30, 2011, vendors shall not collect any vendor fee. There is language in the bill that says if the September 2010 revenue forecast meets certain criteria, then the full vendor fee will be reinstated by January 1, 2011 (instead of June 30, 2011).

CADA, along with several other business groups, will likely seek a bill during the 2010 Session that reinstates the vendor fee by July 1, 2010. However, it is too early to measure the political and economic viability of such an effort at this point in time. If the bill is run PDAC will join the fight.

SB108: Senator Gibbs and Representative Rice. Not much to say here other than the governor rammed a surcharge down the throats of the public by collecting more fees on motor vehicle registrations for highways. PDAC made a strong run at the governor and democrats with an amendment sponsored by Senator Lois Tochtrop reducing the $34 dollar fee in half. Unfortunately, the amendment was lost 17 to18. It is enough to make you sick. And I thought the Dems didn’t like regressive taxation. If you own a $150K Porsche and are a multi-millionaire you pay the same tax as the person who drives a 1990 Dodge Diplomat and lives at the poverty level. Huh?

SB1245: By Representative Marostica. Many of you have requested a title for powersports products and a taxing scheme for such products that reflects the current motor vehicle collections process. Despite the realization that such a bill carries a fiscal impact and no bill with a fiscal impact much over $30K had a chance, PDAC had such a bill drafted to pave the way for a follow up attempt.

The good news is the bill was well received by both the County Clerks and the Department of Revenue. Also a hard number of $196,000 was identified so that PDAC can work on just how we can get this bill moving next session by either reducing the fiscal note or finding some way to borrow the money.

HB1226: By representative Mcgihon and Senator Carroll. It’s back. No Fault Insurance one more time. The only thing to be said for this bill is the sponsors had it drafted to exclude motorcycles. Nevertheless these bills are so worrisome that their mere presence causes concern as they can be amended to include motorcycles. Bird dogged until it died in committee, I wonder how many more times personal injury protection will return.


Certification of Dirt Bikes for Street Use
Jerry Abboud

There has been a great deal of discussion regarding the status of certifying a dirt bike for street use. I have spent the last few days tracking down the situation and correcting errors in the new "Certificate of Equipment Compliance: DR 2686" that can be used now but the old form is still allowed until July. The old "VIN Inspection" form number was DR 2395, now replaced by DR 2704. The Inspectors keep the VIN forms so that should not be a problem because they will have the correct one.

There is confusion about how the new process will work regarding equipment, however. In the past with the old equipment form, the owner merely signed off that the bike had the appropriate street legal equipment. Beginning in July the owner will need to have a Certified VIN Inspector look at the motorcycle and fill out the checklist that accompanies the form. The equipment is the same as the old form with the exception of specifying DOT tires.

Where the confusion comes in is that the new form mistakenly requires reflectors on the front, back and sides. This is incorrect and the Department of Motor vehicles has stated to me that the form will be corrected. Also, there is an implied need for turn signals and this is also incorrect and will be revised.

For now I suggest you use the old form of DR 2686 dated 4/04/08 that does not require an equipment inspection. When the new form takes effect you will have to identify a Certified VIN Inspector and they are specially trained law enforcement officers. I believe the charge is $20. They are the same individuals who inspect and sign the DR 2704 "Certified VIN Inspection form."

I have no doubt that some of the problems you have encountered revolve around the old and new forms and when they become effective. I have contacted the Colorado County Clerks Association to try and make sure the clerks understand when the new form is required and that they can still accept the old form until July 1, 2009.

It is not yet clear if you can have both the VIN number inspected and the equipment at the same time since both require the same person. It would only make sense that two trips are not needed, but to make sure you can call the State Patrol’s VIN Inspection number at 303 239-4545.

Although I cannot say with absolute certainty that the confusion some of you have encountered is a result of the new form and process and that the County Clerks are expecting to see the new form, I am guessing it might.

For those of you encountering a clerk who says that the vehicle cannot be converted, make sure you point them to the new and old DR 2686 that clearly identifies the process for conversion to street use. Make sure, however, that the new form has been corrected and eliminates the incorrect reflector and turn signal language on the equipment check off list.


New Bully on the Block: Responsible Trails America

I was first introduced to the newest anti-motorized organization at a 2008 meeting of the Western Association of Counties. Visit the RTA website to get the full impact of their venom: http://www.responsibletrails.org

It appears that they are a well funded outfit out of Alexandria, Virginia. They are working state legislatures to cripple or rob OHV programs and are the likely culprits behind the efforts to rob Colorado’s OHV program. They are listed as a client of the local lobbying firm known as Political Works. Since it was a lobbyist from Political Works that was pushing the Joint Budget Committee to rob the fund; Sherlock Holmes can rest in peace - I think we can figure this one out.

This is a well funded outfit I am told, willing to spend big money to deprive motorized recreationists of their access. Most recently they have been active in New Mexico, Arizona and Colorado. They seem to specialize in redirecting OHV funds to law enforcement. I would guess since Colorado has state peace officers authorized to enforce travel management on federal public lands that stealing all the money was a better option.

They have an interesting strategy, which is to paint OHV recreationist as composed of a criminal element in need of education and jail time. You will note on their website that they go so far as to have a news report in which a thief was caught who happened to be riding an ATV. And this equates to responsible recreation, how?

Also, they have only a post office box for an address. Strange for a nationwide organization don’t you think?

I am sure we will see their lobbyist regularly, now trying to legislate problems and steal money.

My question is a simple one: If you are all about safety, responsibility and environmental mitigation, why would you wish to rob the only fund in this state that provides these efforts? The money and help sure as hell isn’t coming from anyplace else.

Better yet, why would the Colorado Department of Natural Resources listen closely to an outfit that is not a Colorado constituent group whereas the OHV registrants are primarily Colorado residents? Why would the DNR hide behind an anti OHV group when Colorado taxpayers are getting screwed?

Perhaps an investigation by the General Assembly is in order.

AUTO INDUSTRY DIVISION ANNOUNCES SIGNIFICANT LICENSE FEE INCREASE
Reprinted from the Colorado Automobile Dealers Newsletter
The Motor Vehicle Dealer Board (MVDB) regular monthly meeting was last Thursday, May 14th. At that meeting, the Auto Industry Division announced that the Department of Revenue Executive Director had approved their request for a ninety percent increase in fees, effective July 1, 2009. At the prior board meeting in March, the board voted to allow an eighty percent increase. However, the dealer board simply recommends increases; the power to determine and set final fees lies with the Executive Director.

Over the past few months, AID has temporarily transferred about one-third of their staff, closed branch offices, and cut expenses as much as they believe possible while still allowing the department to be responsive to the public. However, a combination of events has led to such a significant increase at one time:

  • Primarily, licensing revenues are down substantially due to the drop-off in the auto industry

  • Unlike other industry boards in Colorado, the dealer board and AID have only one opportunity each year to set fees, so there is little opportunity to address changing economic conditions

  • Last year's licensing fee increase was 3.5%, and was the first increase in several years

  • As a cash funded agency in Colorado, supported by industry license fees, the Division must end the year with net-positive revenue over expenses

  • An operating loan was also obtained for the rest of this fiscal year; that must be paid back as

  • This increase must be sufficient to also show a budget to the state controller that puts the Division in the black for the next fiscal year as well.

  • This fee increase must also make-up for a continued, expected revenue drop-off in licensing revenue throughout the end of next fiscal year

  • The Powersports industry licensing revenues were much lower than initially estimated—the expected number of licenses was way-overestimated. [Powersports was brought under 'motor vehicles' with the MVDB sunset bill in 2007]

  • The Division has issued lay-off notices to all but a couple staff – depending on where May numbers fall, they may need to lay-off nearly all staff for the month of June. Layoff notice of state employees is required by state law; however, the Division is cautiously optimistic the mass layoff will not be necessary

  • In times of economic downturn, there are many more out-of-trust situations, more consumer complaints, and in general complaints are more complex. In April there were 420 open cases, as of last week there were 615 at the Division

  • Go to this web address for for the Auto Industry Division fee schedule, effective July 1, 2009: http://www.cadaonline.org/enewsletter/links/aid_fees_2009.pdf

    While we all realize this fee increase is difficult for dealerships in this current economic environment, it is necessary given the licensing revenue decreases and the factors noted above. CADA (and PDAC!) will be working closely with AID to pursue fee-setting authority that allows flexibility to changing economic conditions and other unforeseen circumstances. It is expected that the board will also look more closely at setting fees for various categories of licenses and services to more accurately reflect the cost of those particular classes of licenses/services

    .

    Board of Directors
    Chairman, Kurt Finley - Colorado Powersports
    Vice-Chairman/Treasurer, Jason White - Fay Myers Motorcycle World
    Director, Dave Burke/Duane Akiyama - Sun Enterprises
    Director, Bill Comegys - Grand Prix Motorsports
    Director, Brian Harris - Fort Collins Motorsports
    Director, Jack Starr - RPM Motorsports
    Director, Mike Hendry - Foothills BMW/Triumph
    Director, Steve Larson - Greeley H-D, Honda, Yamaha
    Director, Brent Flambures, G-Force Powersports
    Director, Marshall Van Thorne - Interstate Honda

    Executive Director, Jerry Abboud
    Members
    Alpine Motorsports
    Apex Motorsports
    Colorado Powersports
    Coyote Motorsports
    Davis Service Center
    Fay Meyers Motorcycle World
    Foothills BMW/Triumph
    Fort Collins Motorsports
    G-Force Powersports
    Grand Junction HD
    Grand Prix Motorsports
    Greely HD, Honda, Yamaha
    Handlebar Cycle
    Interstate Honda

    Motorcycle Accessories
    Rocky Mountain Kawasaki
    RPM Motorsports
    Sun Enterprises
    Vickery Motorsports
    Associates:
    Zurich
    Tucker Rocky Dist
    PSN
    Western Powersports
    T3RG Motorcycle School

    Disclaimer: PDAC is not authorized to dispense legal advice. The information contained in this newsletter is for informational purposes only. PDAC advises that dealers consult legal counsel on the specifics of any law or regulation to ensure full compliance.


    Colorado Legislative Session Begins
    Jerry Abboud, Executive Director
    g.abboud@comcast.net

    The first 6 weeks of the legislative session have been filled with activity and many challenges. For the first time in years, the Motorcycle Industry Council is looking to hire a lobbyist to fight Colorado Franchise legislation initiated by the Colorado Automobile Dealers Association and joined by PDAC with the addition of a Power Sports Franchise Amendment to address non-motor vehicle product.

    SB-091

    This legislation has a number of key provisions to assist dealers in bringing fairness to dealer/manufacturer relations:

  • SB09-91 provides improvements to the current motor vehicles franchise laws by compensating dealers when they terminate or are terminated for the fair market value of the goodwill of the business, compensation for an outstanding lease or value of a year’s lease of the property if owned by the dealer. Establishes the method for determining value.

  • SB09-91 provides a 30 day time frame for a manufacturer to deny a request for sale or transfer or change of executive management. It also provides for similar notice on initial site location or request for relocation.

  • SB09-91 Currently manufacturers can condition sale, transfer, relocation or renewal of a franchise on the sole basis of site location. Site location is removed as a sole reason for denial.

  • SB09-91 places dealers in a position to compete without the threat of the loss of their franchise or certain models over unreasonable manufacturer’s demands; particularly prohibiting more than one product line sharing common facilities.

  • SB09-91 closes the loophole on OEM sales of used vehicles while grandfathering manufacturers selling used vehicles prior to 07/01/09.

  • SB09-91 provides a mutual right to audit while fixing the "look back" period at 12 months for both dealers and manufacturers. This period is waived in cases of fraud initiated in a court of competent jurisdiction.

  • The MIC is looking for a top gun lobbyist to kill the bill or take the motorcycle industry out. This is a tough fight but worth it for Colorado’s Powersports dealers.


    HB-1026

    This legislation was developed by PDAC to help with small scooter sales. The new name is low powered scooter (LPS). Currently, the law limits a scooter of 50cc or less to 30mph on level ground and requires an automatic transmission. A small scooter is also inaccurately referred to as a motorized bicycle. Additionally, customers were written a fistful of tickets if they exceeded the 30 mph limit. The limit would be 40 mph and operator controlled. Speeding would be the only violation for exceeding the 40mph speed limit.

  • Retains the $5.00, 3 year registration and sticker.

  • Requires proof of liability insurance under the Financial Responsibility Act. Gives owners of LPSs one year to comply with this requirement.

  • Increases the top operating speed to 40 MPH and provides penalties for exceeding this speed limit.

  • "Low powered scooter" will include electric powered scooters of 7 HP or less that have been previously excluded.

  • Retains the requirement of having a valid driver license to operate a LPS


  • HB-1071

    An effort for cities to try to tap into search and rescue funds with an increase from $.25 cents to $1.00. PDAC supported a successful amendment by the county sheriffs of Colorado to reduce the fee to a reasonable $.50 cents and prevented cities from access to what is essentially rural and mountain search and rescue funds paid by OHV recreationists, snowmobilers and hunters and fishermen.

    SB-108

    Affectionately referred to by some as Bill Ritter’s revenge, adds surcharges to all motor vehicles for highway safety and bridge and road reconstruction. Motorcycles are charged at the lowest tier $29 per year and low powered scooter (motorized bicycles) are exempt. PDAC has argued with the legislature and administration that the motorcycle surcharge is too high, however, Democrats have repeatedly stopped the amendment to reduce the fee to $15.

    HB-1226

    This legislation sought to reinstate no fault insurance, but was killed in the House of Representatives. Wasn’t it just 4 years ago we said good bye to no-fault?

    Other bills being monitored include liens against titles and forest health. Also of concern, due to the state's budget woes, would be possible theft of motorcycle safety funds and OHV and snowmobile cash funds. Although to date, PDAC has managed to keep these funds off the table.


    NATIONAL COUNCIL OF MOTORCYCLE DEALER ASSOCIATIONS
    The National Council of Motorcycle Dealer Associations has taken a number of actions to strengthen state dealer associations and provide much needed health insurance for dealers along with their employees and their families.

    It was determined at the annual meeting that most state dealer associations lacked the revenue base to provide essential services and lacked the dealer base to attract insurance carriers. It was decided that the NCMDA would facilitate regional management for state associations. Regional offices would provide administration and recruitment for multiple state Dealer Associations. Regional conferences will be held to inform dealers of all association activities and to provide real world real time information on current market conditions and specific actions being taken by dealers.

    NCMDA has entered into discussions with a major, international insurance carrier to craft a national health insurance program to provide coverage for all dealers who are members of their state dealer associations.

    Members at the annual meeting also reaffirmed the intention to enact legislation in all states to eliminate any form of wholesale tie in to retail promotions offered by OEM suppliers. It was also decided to conduct an information campaign to the industry aftermarket to gain their support for this needed legislation. It is very much in the interest of aftermarket suppliers that dealers have the ability to buy from suppliers of their choice in quantities deemed appropriate by the dealer.

    Wholesale tie ins to retail promotions are an end run around state franchise laws and anti trust measures and are subject to abuse by OE suppliers to the detriment of dealers and aftermarket suppliers. Efforts to establish a cooperative dialogue with OEMs via the MIC, have failed, resulting in stonewalling by the MIC. NCMDA and the state associations will continue to attempt to obtain input from major OEMs via direct contact with them.

    For more information contact Karen Rasmussen, Executive Secretary, NCMDA 340 719 8591.


    The stimulus: what's in it for you
    A hundred billion reasons why individuals might feel a little better about the bill

    All the talk the past few days about the stimulus bill was about compromise and slimming down. What is left, though, is a huge spending bill, with well over $100 billion in tax breaks and handouts for individuals. Here are a few that may affect you as an employer and a powersports dealer:

    Payroll tax

    In 2009 and 2010, there is a tax credit of up to $400 for individuals and $800 for married couples filing their taxes jointly.

    You calculate your credit, which is subtracted from any other federal taxes you owe, by taking 6.2 percent of your earned income.

    Your eligibility for this credit begins to phase out if you're an individual with an adjusted gross income over $75,000 or a couple with income higher than $150,000.

    Employers may end up adjusting tax withholdings on paychecks so that this credit trickles into your bank account over the course of the year. People who are self-employed can adjust their quarterly tax filings to account for the credit.

    This credit is refundable,meaning that even if you have no federal income tax liability, you will still get the money.


    Health insurance

    If you get fired, your company is required, thanks to a law known as COBRA, to allow you to pay to keep your health insurance, generally for up to 18 months. The problem is, it can cost you $1,000 a month or more to keep the coverage.

    Now, the federal government will subsidize 65 percent of the premium for up to nine months. To be eligible, you need to have been forced out of your job between Sept. 1, 2008, and Dec. 31, 2009. Also, your income in the year you receive the subsidy cannot be more than $125,000 for individuals or $250,000 for married couples filing their taxes jointly.

    If you lost your job after Sept. 1, 2008, and declined COBRA coverage, you'll now get another chance to sign up. Call your former company in the next two months to find out how this will work.


    Motorcycle buyer tax deduction

    For the rest of 2009, you'll be able to deduct the state and local sales and excise taxes you pay on the purchase of a new (not used) car, light truck, recreational vehicle or motorcycle.

    This will be what's known as an "above-the-line deduction," according to Clint Stretch, the managing principal of tax policy at Deloitte LLC in Washington. That means you can take it regardless of whether you itemize other deductions on your tax return.

    Specifically, motorcycles are included as "qualified vehicles" in Section 1008 of the legislation. Those purchasing a new motorcycle between now and January first 2010 will be able to deduct the sales and excise taxes on their 2009 tax returns. The motorcycles must cost less than $49,500, and the bike must be less than 8,500 pounds. Owners must make less than $125,000 a year, or $250,000 for joint filers. It also says deductions depend on your modified adjusted gross income. Prior to the actions taken by the AMA and others, the deductions only applied to the purchase of a new car or light truck.

    The bill also expands credits for plug-in hybrid vehicles, an emerging market. Buyers will get a tax credit up to $7,500 for a plug-in electric car and a 10% credit (up to $2,500) for two- and three-wheel vehicles such as electric scooters.

     


    CPSC Spells Out Enforcement Policy For New Lead Limits In Children's Products Effective February 10
    WASHINGTON, D.C. - Starting on February 10, 2009, consumer products intended for children 12 and under cannot have more than 600 parts per million of lead in any accessible part. This new safety requirement is a key component of the Consumer Product Safety Improvement Act (CPSIA) aimed at further reducing children's exposure to lead.

     

    In an effort to provide clear and reasonable guidance to those impacted by this important law, the U.S. Consumer Product Safety Commission (CPSC) is announcing its enforcement policy on the lead limits established by the CPSIA.

    Manufacturers, importers, distributors, and retailers should also be aware that CPSC will:

    *Not impose penalties against anyone for making, importing, distributing, or selling

    **a children's product to the extent that it is made of certain natural materials, such as wood, cotton, wool, or certain metals and alloys which the Commission has recognized rarely, if ever, contain lead;

    **an ordinary children's book printed after 1985; or

    **dyed or undyed textiles (not including leather, vinyl or PVC) and non-metallic thread and trim used in children's apparel and other fabric products, such as baby blankets.

    (The Commission generally will not prosecute someone for making, selling or distributing items in these categories even if it turns out that such an item actually contains more than 600 ppm lead.) Sellers will not be immune from prosecution if CPSC's Office of Compliance finds that someone had actual knowledge that one of these children's products contained more than 600 ppm lead or continued to make, import, distribute or sell such a product after being put on notice. Agency staff will seek recalls of violative children's products or other corrective actions, where appropriate.

    *Issue an interim final rule effective February 10, 2009, which establishes alternative lead limits for certain electronic devices, in order to prevent unnecessary removal of certain children's products from store shelves.

    *Accept a manufacturer's determination that a lead-containing part on their product is inaccessible to a child and not subject to the new lead limits, if it is consistent with the Commission's proposed guidance or is based on a reasonable reading of the inaccessibility requirement. Paint and other coatings or electroplating are not considered barriers that make a component inaccessible.

    This enforcement policy will remain in effect until superseded by action of the Commission.

    CPSC still expects companies to meet their reporting obligation under federal law and immediately tell the Commission if they learn of a children's product that exceeds the new lead limits starting on February 10, 2009. Companies also should know that the CPSIA generally prohibits the export for sale of children's products that exceed the new lead limits.

    As announced on January 30, 2009, the Commission approved a one year stay of enforcement for certain testing and certification requirements for manufacturers and importers. Significant to makers of children's products, the 'stay' provides limited relief from the testing and certification for total lead content limits, phthalates limits for certain products and mandatory toy standards. Manufacturers and importers - large and small - of children's products will not need to test or certify to these new requirements, but will still need to meet the lead and phthalates limits, mandatory toy standards and other requirements. Certification based on testing by an accredited laboratory is still required for painted children's products and soon will be required for children's metal jewelry, as well as certain other products for non-lead issues.

    Guidance for Small Businesses Selling Products that May Contain Lead
    This link provides the latest guidance for small business selling products that may contain lead. The CPSC has not ruled on an exclusion for children's powersports products so they are not available for sale as of today.

    The link below contains the latest guidance on the sales of children's products.

    Please read it in its entirety as you may have childrens' products other than rolling stock that can be sold based upon your actual knowledge of whether or not they contain legal limits of or no lead.

    http://www.cpsc.gov/about/cpsia/smbus/sbguide.pdf


    Don't Misconstrue the CPSC Suspension of Enforcement

    Some folks may misconstrue the CPSC suspension of enforcement on items that you have no actual knowledge of actual lead content.

    Please remember this does not address your civil liability should there be lead over the 600ppm and someone is injured. You can still be sued. It just means that the CPSC prosecution may not apply.

    Also, follow your OEM's instructions very closely on rolling stock. Many products have been identified with lead in excess of 600ppm. We recognize that these are difficult times, but stretching the law is a sure fire way to not be around in 6 months.

    Once again, this is NOT legal advice. Rather you are encouraged to contact a lawyer. There is great liability exposure and an attorney who has worked the law is a great help. Try Bill Walters - he is familiar with the issue.

    Bill Walters
    Kelly Garnsey Hubbell + Lass LLC
    1441 Eighteenth Street, Suite 300
    Denver, Colorado 80202
    303.296.9412 303.293.8705 Fax

    Stop the Ban of Youth Motorcycles and ATVs!
    Write your Representatives and the Consumer Product Safety Commission Today!
    ,br> On August 14th, 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (CPSIA). Intended to make children's everyday toys safer, the rule governing implementation of the act threatens to end youth off-highway vehicle (OHV) riding entirely.

    According to section 101(a) of the enacted legislation, all youth products containing lead must have less than 600 parts per million (ppm) by weight. The Consumer Product Safety Commission (CPSC) has interpreted the law to apply to various components of youth OHVs including the engine, brakes, suspension, battery and other mechanical parts. Even though the lead levels in these parts are small, they are still above the minimum threshold.

    The unavailability of youth OHVs will devastate family OHV recreation and cripple amateur competition, creating a domino effect across all aspects of motorized recreation.

    In order to assure continued availability and access to youth OHVs, the Motorcycle Industry Council (MIC) and Specialty Vehicle Industry Association (SVIA) submitted petitions to the CPSC asking that certain vehicles be excluded from the final rule governing the law.

    It is critical that Congress and the CPSC know the petition exists and that they act on it to maintain a vital form of recreation for American families, preserve youth racing and protect the thousands of jobs associated with this industry.

    Please write or call your Representative and the CPSC today and ask them to approve the petition to exclude youth OHVs from the CPSIA lead content requirements.

    You can send your Representative a letter by using the 'Take Action' option. To contact the CPSC directly, use their contact form by clicking here.


    Summit County Off Road Riders Need Help
    By Chuck Ginsburg, Summit County Off Road Riders President
    Things are coming down to the wire for our Tenderfoot Mountain trail system project - AND WE ARE LOSING!

    Citizen’s groups have organized against our project and the organizations below have received HUNDREDS of letters from people against our Tenderfoot Mountain project. They have sent letters to the entities below that need to hear from us:

  • Summit County Board of County Commissioners

  • White River National Forest

  • US Forest Service Dillon Ranger District

  • Town of Dillon
  • Please copy and paste the email addresses below into your "to" line in your email. These entities need to get hundreds of letters from our user group QUICKLY!

    webmaster@co.summit.co.us; bobf@co.summit.co.us; thomasd@co.summit.co.us; karns@co.summit.co.us; jcutts@fs.fed.us; mailroom_r2_white_river@fs.fed.us; deving@townofdillon.com; chuckginsburg@comcast.net

    Please title your email something like - "Allow off road motorcycles on Tenderfoot Mountain please." Your letter does not have to be long and detailed but it does have to be respectful and from the heart. Here are a few topics to use in your letter - feel free to add your own:

  • In the County Master Plan, the area should remain open to motorized use because of the dispersed camping availability, hunting access, family and elderly and disabled access, as well as motorized recreation.

  • According to the Forest Service there is not any other area in Summit County with a significant amount of singletrack trails. The entire WRNF alternative “G” has only 67 miles of motorized singletrack and if this area is closed to motorized use there will be only about 50 miles in the entire WRNF and only 4 miles in Summit County in the Golden Horseshoe.

  • There are about 1400 registered OHV users that live in Summit County. We need a managed, legal place to ride locally.

  • SCORR is working with the Forest Service to look for compromise in the trail layout and orientation to mitigate noise and user conflict issues. The revised plan has no motorized trails within a half mile of any residence.

  • The concerns about the elk herd are mistaken because the elk summer at higher elevation than where the riding area will be and the carnivores follow the elk.

  • Give SCORR a chance to show that responsible off road motorcycling is possible and that the actions of a few irresponsible individuals does not define the whole user group.

  • Tell them what you like about riding on Tenderfoot Mountain.

  • PLEASE WRITE THIS LETTER TODAY! The Forest Supervisor in Glenwood Springs has said she will not sign off on ANY motorized use on Tenderfoot Mountain unless the violently opposed entities can be somewhat calmed. This may be your last chance to help us save this project or lose the riding area for good - possibly the last one in Summit County! Please forward email this to anyone who rides off road motorcycles!

    Thanks!
    Chuck Ginsburg - President
    SCORR - Summit County Off Road Riders
    phone 970-668-2125
    fax 970-668-2125
    cell 970-390-5600
    chuckginsburg@comcast.net


    Board of Directors
    Chairman, Kurt Finley - Colorado Powersports
    Vice-Chairman/Treasurer, Jason White - Fay Myers Motorcycle World
    Director, Donavan Facey - Xtreme Performance
    Director, Dave Burke/Duane Akiyama - Sun Enterprises
    Director, Bill Comegys - Grand Prix Motorsports
    Director, Brian Harris - Fort Collins Motorsports
    Director, Jack Starr - RPM Motorsports
    Director, Mike Hendry - Foothills BMW/Triumph
    Director, Steve Larsen - Greeley H-D, Honda, Yamaha
    Director, Brent Flambures, G-Force Powersports
    Director, Marshall Van Thorne - Interstate Honda

    Executive Director, Jerry Abboud
    Members
    All Sports Honda
    Alpine Motorsports
    Apex Motorsports
    Aurora Honda
    Colorado Powersports
    Coyote Motorsports
    Davis Service Center
    Fay Meyers Motorcycle World
    Foothills BMW/Triumph
    Fort Collins Motorsports
    Junction HD
    Grand Prix Motorsports
    G-Force Powersports
    Greely HD, Honda, Yamaha
    Handlebar Cycle
    Hi Country Motorsports
    Interstate Honda

    Motoadventure
    Motorcycle Accessories
    Pikes Peak Harley Davidson
    Rocky Mountain Kawasaki
    RPM Motorsports
    Sun Enterprises
    Sun Sports Unlimited
    Twin Peaks Motorsports
    Vickery Motorsports
    Xtreme Performance Center
    Associates:
    Universal Underwriters
    Tucker Rocky Dist
    PSN
    Western Powersports
    Retail Powersports Mang. Group
    T3RG Motorcycle School

    Disclaimer: PDAC is not authorized to dispense legal advice. The information contained in this newsletter is for informational purposes only. PDAC advises that dealers consult legal counsel on the specifics of any law or regulation to ensure full compliance.