It is targeted at the thousands of foreign manufacturers who ship electronics, toys, clothing, and consumer goods into the US. It is intended to make those companies subject to, and easily accessible by, the US tort system. It also includes any suppliers to those companies – such as companies that make boxes, pallets, packaging materials, straps, plastics, etc.

We, the vintage dirt bikers, are just a little invisible community that will be squashed if this bill passes.

I read an interesting quote today from the folks at Downsize DC, an activist group fighting for smaller government:

Politicians and bureaucrats constantly speak with a forked tongue…

• They claim they’re protecting “the little guy” from “the fat cats,” when in reality…
• The State actually works for the fat cats (though in an unreliable Mafia kind of way).

This is quite perceptive, and is what is actually occurring with H.R.4678. The bureaucrats and politicians push out one more sweeping piece of legislation, under the guise of protecting us, that incidentally crushes the small guys while offering barely a hurdle to the billion-dollar corporations.

Here is a sad, relevant tale of collateral damage under the CPSIA – the story of small-but-growing home business crushed under the weight of legislation which big corporations are now using to browbeat their small suppliers.

To address the reams of similar horror stories that have emerged from CPSIA, H.R.4678 contains provisions for rule-making on the “minimum amount” that triggers the need to register — a process that, ostensibly, will relieve the burden on small businesses. But how will that work? Let’s look at one observer’s analysis — Rick Woldenberg of CPSIA blog:

And consider how this rule might be applied. To determine whether you are above or below the threshold, you must disclose your revenues and volumes to the government for their scrutiny and approval. This is remarkably invasive and is reason enough for many factories to concentrate on sales to South America, Europe, Asia and the Middle East. Who needs this nonsense?

[And if registration is unavoidable, the registration process itself is also tedious and requires the disgorgement of lots of detailed information - which not only will discourage participation but also sets up the foreign manufacturers for liability to the government for "false" statements if they make errors. We have 1500 catalog items, so I can identify with the problems that this kind of requirement might create. It's nothing more than a bureaucratic set-up for regulators to accumulate causes of action to use as they see fit.]

There are people, some of them knowledgeable, who disagree with Woldenberg. But to his point, how else will the US Government or Agency know that you are under its threshold for registration if you don’t disclose all the relevant information?

If you are GMC of Australia, or Sammy Miller Products of the UK, or that guy in Australia who re-pops rubber carb boots and such out of his shed, are you going to hire a solicitor in your country to guide you through this process? Are you going to turn over your books to the US Government? What if you’re Northwest Maico/CZ, or AMS Racing? Are you going to get all your suppliers certified with the government?

What about individuals, can we order something from overseas even if it isn’t imported? Are we then importers? Will the item be allowed through Customs? I do not know the answers to these questions.

What I do know is that if this piece of legislation passes, rule-making or no, it is a potential nightmare for our hobby. The only way we can fight back is to contact our Congressmen now and let them know the serious impact this could have, and that their solution to the problem is inadequate.

This bill has 63 cosponsors ( list available at Thomas.gov) and if your representative is on this list it is critically important you make your views known now, early in the process. If you are importing parts, you should contact your Congressman now.

We are unlikely to get support from any of our organizations. We are too few, too quiet, and too easily dismissed. We must stand up for ourselves, before it is too late.

A couple of years ago the motorcycle industry was caught by surprise when Congress enacted, and then deployed, the Consumer Product Safety Improvement Act (CPSIA) — almost immediately wiping out a $1 billion youth motorcycle and atv industry. Over the ensuing two years the CPSIA proved to be a massive screw job for all sorts of small businesses.

On Wednesday, June 30, 2010 the House Energy and Commerce Committee passed (by voice vote) another piece of legislation that could be equally devastating to the vintage dirt bike scene — the Foreign Manufacturers Legal Accountability Act of 2010, H.R. 4678. The bill now moves to the larger Ways and Means Committee or perhaps to the floor for a vote.

This act is aimed at forcing foreign manufacturers into the US tort system for liability law suits. Like most laws, that sounds great in a sound byte on the news – force all those big Chinese and Taiwanese companies to be accessible to our thousands of personal injury lawyers.

The truth is that if you’re a vintage dirt bike fan and you buy or use any part that’s made in the UK, China, Taiwan, Australia, or Europe by a small manufacturer you may well find that part is no longer available to you. Those cool CZ parts Bertus brings in from Czechoslovakia? Not gonna happen if this bill passes. Nifty trials parts for your Ty250 or TL125 from Great Britain? Kiss them goodbye. Replica frames from GMC in Australia? Adios, amigo.

To get a little more insight into this bill I called Paul Vitrano, General Counsel for the Motorcycle Industry Council (MIC) and the Motorcycle Safety Foundation (MSF), to discuss it.

According to Paul, the MIC currently has no official position on the bill and has not been involved at the draft stage. However, he did offer some comments based on his reading of the bill text and previous experience with the CPSIA.

My first question to Paul was whether this bill was actually as ominous as it seemed, and whether people like me — vintage bike hobbyists — should be concerned. His answer? A definite Yes, with a couple of caveats.

As currently written the bill does not encompass products that are otherwise covered by the Department of Transportation (DOT). What this means is that manufacturers of parts, pieces, and materials that are DOT-approved for street use should not be subject to the new regulations. Essentially the street bike crowd should be relatively safe. But if you’re into performance (non-DOT) parts for vintage road racing you’re vulnerable.

As for us dirt bike guys, almost none of our stuff is DOT-approved. There may be some parts for early dual-purpose bikes, but I’m not aware of anything. Typically, everything that comes in from overseas for dirt bikes is stamped “For Competition Use Only” specifically as a way of avoiding liability. None of this stuff will be allowed through customs unless the manufacturer has  complied with the onerous registration, agency, and disclosure requirements of the bill.

Paul’s second caveat was that the bill does allow for rule-making after passage. He sees this as a good thing, as the main problem with the CPSIA was that limits were set in the law itself, allowing for little or no flexibility on the part of the bureaucrats responsible for implementation.

Specifically, the bill provides for the administrative bureaucrats to determine the minimum size of the manufacturers to be regulated, based on dollar volume, unit volume, and number of incoming shipments. This means there is the potential for certain small businesses to be exempt, but I fail to see any incentive for the bureaucrats to exempt them. Small, cottage businesses in foreign countries don’t have any political representation in this country, and can’t pay lobbyists to fight on their behalf.

I am not any more comfortable with idiot bureaucrats making laws than I am idiot Congressmen but, to Paul’s point, at least that allows for some input by the affected parties — however difficult and expensive that input may be. With CPSIA there was no input mechanism at all and the result was a legal quagmire of historic proportions.

Paul’s closing comment was that there are some benefits to the bill, in terms of making large foreign manufacturers more accountable, but it definitely bears watching and could  pose serious problems to the vintage hobby.

I first became aware of the bill here, at the Learning Resources, Inc. blog. Editor Rick Woldenberg has posted additional commentary on the bill, specifically on the rule-making and minimum size aspects, here.

If you’re interested I have posted a Government Printing Office PDF of the bill, or you can track it at Thomas.gov using HR4678 for your search. (Note: If you open the PDF it may appear to hang for a minute as it goes out to the GPO site to validate authenticity of the document.)

In summary, I think this is going to be another bad piece of legislation and, unless we are very careful and proactive, the vintage dirt bike hobby could take a real beating on this deal. Few, if any, of the vintage parts guys are members of the MIC (as far as I know) and cannot expect to be represented by them. As to whether the AMA or AHRMA will take a position on this, I do not know.  I will keep you updated here as I learn more.