My comment on this discussion is not whether the kind of equipment being
discussed is covered or not, but the probability of being found to be
nonconforming. The topic I am addressing is not one of law but of
business strategy.

It seems to me that "plausible deniability" might well be used as a
defense plan by a manufacturer (other than Pearl's company) that didn't
want to face the additional expense of manufacturing conforming
equipment, and figured that having it be discovered as nonconforming and
also being penalized was a tolerable business risk. In other words, in
the unlikely event of receiving a citation, one of Pearl's competitors
could claim that the meaning of "fixed installation" was unclear and
that they simply didn't realize that their equipment didn't fit into
that category. They could even claim that they read the Orgalime
information but not the information/interpretation referred to by Nic
Bowker, and they didn't know anything about the Leadfree forum. 

So while John Burke says "Anyone thinks their equipment is exempt just
because they installed it with a rack mounting kit is going to get a BIG
surprise at some point in time," some manufacturers may well figure that
they are willing to take the risk that the rules are practically
unenforceable for their product line.

That puts the conscientious competitor like Pearl's company at some
disadvantage, but that competitor also has a very limited chance of
discovering that the manufacturer of nonconforming equipment is doing
so. The customer is unlikely to invite either the envirocops or Pearl's
company in to conduct an X-ray fluorescence check for lead, so how would
either organization be able to detect a violation? Remember, this kind
of equipment is not sold at Wal-Mart where anyone can buy one and take
it to a lab for scrutiny.

Apart from the ethical issue, it sounds like a pretty tempting
proposition. Not everyone behaves ethically - that's why we have police
and courts and attorneys. Who can say how many manufacturers,
particularly of niche industrial equipment, have decided to take just
such a course of action? 

 

Gordon Davy 


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