Notice of Stay of Enforcement of Testing and Certification Requirements, 6396-6399 [E9-2590]
Download as PDF
<![CDATA[
6396
Federal Register / Vol. 74, No. 25 / Monday, February 9, 2009 / Notices
sroberts on PROD1PC70 with NOTICES
SUMMARY: In accordance with the
Marine Mammal Protection Act
(MMPA) and implementing regulations,
notification is hereby given that a 1–
year letter of authorization (LOA) has
been issued to the U.S Navy (Navy) for
the incidental take of marine mammals
during training, maintenance, and
research, development, testing, and
evaluation (RDT&E) activities conducted
within the Navy’s Hawaii Range
Complex (HRC). These activities are
considered military readiness activities
pursuant to the Marine Mammal
Protection Act (MMPA), as amended by
the National Defense Authorization Act
of 2004 (NDAA).
DATES: Effective January 8, 2009,
through January 7, 2010.
ADDRESSES: The LOA and supporting
documentation are available by writing
to Michael Payne, Chief, Permits,
Conservation, and Education Division,
Office of Protected Resources, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910–3225, by telephoning one of the
contacts listed here (FOR FURTHER
INFORMATION CONTACT), or online at:
https://www.nmfs.noaa.gov/pr/permits/
incidental.htm.
FOR FURTHER INFORMATION CONTACT: Jolie
Harrison, Office of Protected Resources,
NMFS.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce (Secretary)
to allow, upon request, the incidental,
but not intentional taking of marine
mammals by U.S. citizens who engage
in a specified activity (other than
commercial fishing) during periods of
not more than five consecutive years
each if certain findings are made and
regulations are issued or, if the taking is
limited to harassment and of no more
than 1 year, the Secretary shall issue a
notice of proposed authorization for
public review.
Authorization shall be granted if
NMFS finds that the taking will have a
negligible impact on the species or
stock(s), will not have an unmitigable
adverse impact on the availability of the
species or stock(s) for subsistence uses,
and if the permissible methods of taking
and requirements pertaining to the
mitigation, monitoring and reporting of
such taking are set forth.
NMFS has defined ‘‘negligible
impact’’ in 50 CFR 216.103 as:
an impact resulting from the specified
activity that cannot be reasonably expected
to, and is not reasonably likely to, adversely
affect the species or stock through effects on
annual rates of recruitment or survival.
VerDate Nov<24>2008
16:35 Feb 06, 2009
Jkt 217001
The NDAA (Public Law 108–136)
removed the ‘‘small numbers’’ and
‘‘specified geographical region’’
limitations and amended the definition
of ‘‘harassment’’ as it applies to a
‘‘military readiness activity’’ to read as
follows (Section 3(18)(B) of the MMPA):
(i) any act that injures or has the significant
potential to injure a marine mammal or
marine mammal stock in the wild [Level A
Harassment]; or (ii) any act that disturbs or
is likely to disturb a marine mammal or
marine mammal stock in the wild by causing
disruption of natural behavioral patterns,
including, but not limited to, migration,
surfacing, nursing, breeding, feeding, or
sheltering, to a point where such behavioral
patterns are abandoned or significantly
altered [Level B Harassment].
Summary of Request
On June 25, 2007, NMFS received an
application from the Navy requesting
authorization for the take of 24 species
of marine mammals incidental to
upcoming Navy training activities to be
conducted within the HRC, which
covers 235,000 nm2 around the Main
Hawaiian Islands (see map on page 17
of the application), over the course of 5
years. These training activities are
classified as military readiness
activities. These training activities may
incidentally take marine mammals
present within the HRC by exposing
them to sound from mid-frequency or
high frequency active sonar (MFAS/
HFAS) or to underwater detonations at
levels that NMFS associates with the
take of marine mammals. The Navy
requested authorization to take
individuals of 24 species of marine
mammals by Level B Harassment.
Further, though they do not anticipate it
to occur, the Navy requested
authorization to take, by injury or
mortality, up to 10 individuals each of
11 species over the course of the 5–year
period (bottlenose dolphin, Kogia spp.,
melon-headed whale, pantropical
spotted dolphin, pygmy killer whale,
short-finned pilot whale, striped
dolphin, and Cuvier’s, Longman’s, and
Blainville’s beaked whale).
Authorization
On January 5, 2009, NMFS’ final rule
governing the take of marine mammals
incidental to U.S. Navy Training in the
Hawaii Range Complex became
effective. In accordance with the final
rule, NMFS issued an LOA to the Navy
on January 8, 2009, authorizing Level B
harassment of 24 species of marine
mammals and mortality of 11 species of
marine mammals incidental to U.S.
Navy training, maintenance, and RDT&E
activities in the HRC. Issuance of this
LOA is based on findings, described in
the preamble to the final rule (74 FR
PO 00000
Frm 00034
Fmt 4703
Sfmt 4703
1456, January 12, 2009), that the taking
resulting from the activities described in
this LOA will have a negligible impact
on marine mammal stocks and will not
have an unmitigable adverse impact on
the availability of the affected marine
mammal stock for subsistence uses. The
LOA describes the permissible methods
of taking and includes requirements
pertaining to the mitigation, monitoring
and reporting of such taking.
Dated: February 4, 2009.
P. Michael Payne,
Chief, Permits, Conservation, and Recreation,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. E9–2661 Filed 2–6–09; 8:45 am]
BILLING CODE 3510–22–S
CONSUMER PRODUCT SAFETY
COMMISSION
Notice of Stay of Enforcement of
Testing and Certification Requirements
AGENCY: Consumer Product Safety
Commission.
ACTION: Stay of enforcement.
SUMMARY: This notice announces the
decision of the Consumer Product
Safety Commission (‘‘CPSC’’ or
‘‘Commission’’) to stay enforcement of
certain provisions of subsection 14(a) of
the Consumer Product Safety Act
(‘‘CPSA’’) as amended by section 102(a)
of the Consumer Product Safety
Improvement Act of 2008 (‘‘CPSIA’’),
Public Law 110–314. Specifically, the
Commission is staying certain of the
requirements of paragraphs 14(a)(1), (2),
and (3) that otherwise require testing
and issuance of certificates of
compliance by manufacturers, including
importers, of products subject to an
applicable consumer product safety rule
as defined in the CPSA or similar rule,
ban, standard, or regulation under any
other Act enforced by the Commission.
This stay covers all such requirements
with the exception of:
(1) Those where testing and
certification was required by subsection
14(a) of the CPSA prior to enactment of
the CPSIA; and
(2) Those requirements, when they
become effective, applicable to
children’s product certifications
required to be supported by third party
testing for which the Commission has
issued requirements for acceptance of
accreditation of third party testing
laboratories to test for:
• Lead paint (effective for products
manufactured after December 21, 2008),
• Full-size and non-full size cribs and
pacifiers (effective for products
manufactured after January 20, 2009),
E:\FR\FM\09FEN1.SGM
09FEN1
Federal Register / Vol. 74, No. 25 / Monday, February 9, 2009 / Notices
sroberts on PROD1PC70 with NOTICES
• Small parts (effective for products
manufactured after February 15, 2009),
and
• Metal components of children’s
metal jewelry (effective for products
manufactured after March 23, 2009);
and
(3) Any and all certifications
expressly required by CPSC regulations;
and
(4) The certifications required due to
certain requirements of the Virginia
Graeme Baker Pool & Spa Safety Act
being defined as consumer product
safety ‘‘rules;’’ and
(5) The certifications of compliance
required for ATVs in section 42(a)(2) of
the CPSA which were added by CPSIA;
and
(6) Any voluntary guarantees
provided for in the Flammable Fabrics
Act (‘‘FFA’’) or otherwise (to the extent
a guarantor wishes to issue one).
This stay will remain in effect until
February 10, 2010, at which time the
Commission will vote to terminate the
stay. This stay does not alter or
postpone the requirement that all
products meet applicable consumer
product safety rules as defined in the
CPSA or similar rules, bans, standards,
or regulations under any other Act
enforced by the Commission.
DATES: Effective Date: This stay is
effective February 10, 2009.1
FOR FURTHER INFORMATION CONTACT: John
‘‘Gib’’ Mullan, Assistant Executive
Director for Compliance and Field
Operations, U.S. Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, Maryland 20814;
e-mail jmullan@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission is aware that there is
substantial confusion as to which
testing and certification requirements of
subsection 14(a) of the CPSA apply to
which products under the Commission’s
jurisdiction, what sort of testing is
required where the provisions do apply,
whether testing is necessary for
children’s products that may not by
their nature contain lead, whether
testing to demonstrate compliance must
be conducted on the final product rather
than on its parts prior to assembly or
manufacture, whether manufacturers
and importers must issue certificates of
compliance to address the labeling
requirements under the Federal
Hazardous Substance Act (‘‘FHSA’’),
and what sort of certificate must be
1 The Commission voted 2–0 to implement the
stay. The Commissioners’ statements concerning
the stay are available on the Commission Web site
at https://www.cpsc.gov.
VerDate Nov<24>2008
16:35 Feb 06, 2009
Jkt 217001
issued and by whom. The Commission
has received literally thousands of email, telephone, and written inquiries as
to how to comply, when to comply,
what is required in support of the
various certifications, what form the
required certificates must take, and who
must issue them. Likewise, the
Commission has received innumerable
inquiries seeking relief from the expense
of testing children’s products that either
may not contain lead or may be subject
to exemptions that the Commission may
announce in the near future as a result
of ongoing rulemakings either required
or permitted by the CPSIA.2
Commission staff has been unable to
respond to many of these inquiries due
to the press of its usual regulatory and
compliance activities and the additional
burden of the very early, multiple
statutory deadlines imposed on the
agency by the CPSIA, including those
necessitating issuance of fourteen
proposed and final rules in the six
months since CPSIA was signed into
law on August 14, 2008. Furthermore,
the Commission is operating in fiscal
year 2009 with the same level of
funding appropriated to it for fiscal year
2008, before the CPSIA as well as two
other acts also requiring significant
additional Commission efforts—the
Virginia Graeme Baker Pool and Spa
Safety Act and the Children’s Gasoline
Burn Prevention Act—were enacted.
This funding constraint is a severe
handicap on the Commission’s ability to
staff up to address the numerous new
requirements imposed by the CPSIA.
The Commission has embarked on
four rulemakings to address many of
these issues 3 as they relate to the lead
content of children’s products:
• Determinations that certain
materials inherently will not exceed the
statutory CPSIA limits on the lead
content of children’s products. 74 FR
2433 (January 15, 2009).
• Exemption of certain electronic
devices from otherwise applicable limits
on lead in children’s products. 74 FR
2435 (January 15, 2009).
• Guidance on determining
inaccessibility of components of
children’s products containing lead. 74
FR 2439 (January 15, 2009).
2 ‘‘Children’s products’’ are defined in section
3(a)(2) of Consumer Product Safety Act, as
amended, as consumer products ‘‘designed or
intended primarily for children 12 years of age or
younger.’’
3 The Commission has also requested comments
on section 102 of the CPSIA, entitled ‘‘Mandatory
Third-Party Testing for Certain Children’s
Products,’’ specifically seeking input on the
possibility of testing of component parts rather than
the final children’s products. https://www.cpsc.gov/
about/cpsia/ComponentPartsComments.pdf.
PO 00000
Frm 00035
Fmt 4703
Sfmt 4703
6397
• Procedures for seeking
determinations as to lead content of
materials or products and exclusions
from otherwise applicable limits on lead
content of children’s products. 74 FR
2428 (January 15, 2009).
These proposed rules present
complex scientific, technical, and
procedural issues that will not be
resolved by February 10, 2009, the
effective date of CPSIA’s initial 600
parts per million (‘‘ppm’’) limit on the
lead content of children’s products.
Moreover, on that same date—February
10, 2009—additional sweeping
requirements of the CPSIA come into
effect, including those related to the
phthalates content of children’s toys
and child care articles, the myriad
requirements of the ASTM F963
voluntary toy standard becoming
mandatory CPSC consumer product
safety standards,4 and the recently
issued CPSIA regulations related to
print and catalog advertising of certain
children’s products.
These extensive changes to the
regulatory landscape cut a broad swath
through the business community from
books to children’s apparel to toys and
sporting goods to children’s electronic
products. Many firms making consumer
products, especially children’s
products, are small businesses. Bureau
of Census data indicates that
approximately ninety-eight percent of
the domestic manufacturers of toys,
dolls and games fall into the Small
Business Administration’s traditional
definition of small business (less than
500 employees), approximately eighty
one percent of manufacturers of such
products have fewer than twenty
employees, and over fifty percent have
fewer than five employees. According to
the same source, over 99 percent of
firms making apparel (including
clothing for children and infants) are
small businesses. Moreover, the testing
and certification requirements affect
companies that have not previously
been regulated (or did not realize that
they could be regulated) by the
Commission, such as book publishers
and craft makers. These entities too are
dominated by small businesses.
According to a 2000 survey conducted
by the Craft Organization Directors
Association, 64 percent of craftspeople
4 To add even further complexity with respect to
the F963 toy standard, while the CPSIA explicitly
states that the version of F963 as it existed on the
date of enactment of CPSIA (August 14, 2008)
presumably F963–07, is what becomes mandatory
on February 10, 2009, the Commission understands
that ASTM either has issued or intends to issue a
new version of F963–F963–08—in the very near
future.
E:\FR\FM\09FEN1.SGM
09FEN1
sroberts on PROD1PC70 with NOTICES
6398
Federal Register / Vol. 74, No. 25 / Monday, February 9, 2009 / Notices
worked alone, and nearly all of them
employed fewer than 5 people.
The new requirements pose many
significant technical challenges. Since
the passage of the CPSIA, the
Commission’s technical staff has had to
verify testing methods for total lead in
metallic substrates. The staff has also
been working diligently to validate
testing methodologies for lead in
plastics and other organic substrates to
meet the lead content requirements of
section 101 of the CPSIA. As soon as
those methodologies are confirmed, they
will be announced publicly. A method
for testing for phthalates was identified
by staff, but the extremely tight
timeframe precluded meaningful public
comment and input from the
laboratories that will ultimately have to
perform the testing. While the x-ray
fluorescence screening method for lead
has proven a useful tool, there is
presently no similar screening method
for preliminary testing for phthalates,
although several promising ideas are
under development. Finding
appropriate screening tests for
phthalates is essential given the costly
and burdensome destructive testing
currently required for the chemical
analysis measuring phthalate
concentrations. Commission staff needs
time to work with laboratories to assure
uniform understanding of the testing
requirements adequate to support
certification of compliance. We also
need time to educate the numerous
businesses, both big and small, for
which this expansion of mandatory
regulatory requirements is all new.
Smaller businesses that make up a
significant portion of companies
manufacturing products under the
Commission’s jurisdiction do not have
laboratory test facilities and must turn
to outside labs. The testing required to
confirm compliance with requirements
of the F963 toy standard ranges from
chemical tests for antimony, arsenic,
barium, cadmium, and chromium in
surface coatings to various acoustic
measurements for sound producing
toys, tests for surface temperatures in
battery operated toys, and tests for
breakaway features on cords, straps, and
elastic, among other things. To enforce
certification on February 10, 2009,
without the Commission having
identified the labs accredited to do such
testing disadvantages these small
businesses and could result in these
businesses paying for testing twice if the
accreditation of the laboratory they
choose for testing is not later accepted
by the Commission. Also, the
Commission has not had enough time or
resources to educate the craft and
handmade toy businesses on these new
VerDate Nov<24>2008
16:35 Feb 06, 2009
Jkt 217001
standards and testing requirements.
While many of the larger manufacturers
may already be conducting testing and
certification, many smaller companies
are only just learning which CPSIA
requirements apply to them. Companies
cannot test and certify products when it
is still unclear to them what standards
apply.
Furthermore, the CPSIA tasks the
Commission with issuing a number of
additional rules within the first 15
months of enactment addressing testing
and certification of compliance of
children’s products that will help to
clarify the responsibilities of importers,
manufacturers, distributors, retailers,
and testing labs. These include
requirements addressing mandatory
third party testing to all applicable
children’s product safety rules 5 due by
statute in June 2009, rules addressing
auditing of accredited children’s
product testing laboratories also due in
June 2009, and comprehensive rules
addressing compliance labeling of
consumer products and production
testing of children’s products subject to
third party testing and certification for
continued compliance with applicable
requirements, including random
sampling protocols, required by CPSIA
to be issued in November of 2009. These
rules will define, among other things,
which tests on what products will be
required and how frequently those tests
will need to be conducted. These
answers are needed to ensure that the
right tests are run on the right products
without unnecessary and expensive
testing on products likely to be
exempted in some manner by the
Commission in the coming months.6
The Commission anticipates that
when these rules are finalized and our
ongoing stakeholder information and
education efforts have been in place for
sufficient time for the new requirements
to become known and understood
within the regulated community,
implementation of the stayed testing
and certification requirements could
5 Children’s product safety rule means ‘‘a
consumer product safety rule under this Act [the
CPSA] or similar rule, regulation, standard, or ban
under any other Act enforced by the Commission,
including a rule declaring a consumer product to
be a banned hazardous product or substance.’’
CPSA at § 14(f)(1), as amended by CPSIA § 102(b).
6 Because of the tremendous burden all of this has
placed on the agency, the Commission staff has
been unable to respond to questions from
businesses small and large on the general
certification requirements for all consumer product
safety rules and similar rules which went into effect
on November 12, 2008. Indeed, several requests for
relief from those provisions have not yet been acted
upon by the Commission. This stay provides relief
from those certification requirements as well but
does not provide any defense or excuse for noncompliance with the underlying standards or bans.
PO 00000
Frm 00036
Fmt 4703
Sfmt 4703
move forward by Commission action in
orderly fashion supported by sound
scientific and technical analysis and
determinations. Accordingly, the stay
will remain in effect until February 10,
2010, at which time the Commission
will vote to terminate the stay. We
believe at this time that the stay will
give us the time needed to develop
sound rules and requirements as well as
implement outreach efforts to explain
these requirements of the CPSIA and
their applicability.
The stay will provide the Commission
with the ability to focus in the
immediate future on high priority
enforcement matters such as those
related to cribs, where the Commission
has recognized the need for a thorough
investigation of what appear to be
potentially widespread safety issues (see
73 FR 71570), small parts, and lead in
children’s metal jewelry. Also, the
Commission’s technical and scientific
staff will be able to focus on areas such
as children’s wearing apparel and
children’s books where certain of the
pending rulemakings noted above may
be able to provide appropriate relief,
well in advance of the lifting of this
stay, assuming that those industries
provide the additional information
requested by our staff in a timely
manner. Among the children’s products
issues staff will need to address are
bicycles intended or designed primarily
for children 12 and under, where spokes
and tire inflation valves raise complex
issues related to the lead provisions of
CPSIA.
Leaving in place the manufacturer,
including importer, certification and
testing requirements for lead paint, fullsize and non-full-size cribs, pacifiers,
small parts, and lead in metal
components of children’s metal jewelry,
where laboratory accreditation
requirements have been issued by the
Commission will provide a high degree
of assurance of safety in children’s
products manufactured during the
pendency of the stay and reflects the
priorities attached to those products by
Congress in the CPSIA. Also, the
Commission emphasizes that the stay
only applies to testing and certification,
not to the sale of products that do not
comply with applicable mandatory
safety requirements. All children’s
products must comply with all
applicable children’s product safety
rules, including, but not limited to, the
upcoming limits on lead and phthalates
in the CPSIA.7 Failure to comply with
7 Children’s product safety rule means ‘‘a
consumer product safety rule under this Act [the
CPSA] or similar rule, regulation, standard, or ban
under any other Act enforced by the Commission,
E:\FR\FM\09FEN1.SGM
09FEN1
Federal Register / Vol. 74, No. 25 / Monday, February 9, 2009 / Notices
all applicable product safety rules as
defined in the CPSA or similar rules,
bans, standards, or regulations under
any other Act enforced by the
Commission will remain prohibited in
accordance with section 19 of the CPSA
as amended by CPSIA.
sroberts on PROD1PC70 with NOTICES
II. The Stay
The United States Consumer Product
Safety Commission hereby stays
applicability to manufacturers,
including importers, of the requirements
for testing and certification 8 of products
set forth in paragraphs 14(a)(1), (2) and
(3) of the CPSA, as amended by
subsection 102(a) of CPSIA, with the
exception of:
(1) The requirements of any CPSC
regulation, or of subsection 14(a) of the
CPSA as it existed prior to amendment
by the CPSIA, for product testing and
certification, including existing
requirements for certification of
automatic residential garage door
openers, bike helmets, candles with
metal core wicks, lawnmowers, lighters,
mattresses, and swimming pool slides; 9
and
(2) The certifications required due to
certain requirements of the Virginia
Graeme Baker Pool & Spa Safety Act
being defined as consumer product
safety ‘‘rules;’’ and
(3) The certifications of compliance
required for ATVs in section 42(a)(2) of
the CPSA which were added by CPSIA;
and
(4) Any voluntary guarantees
provided for in the Flammable Fabrics
Act (‘‘FFA’’) or otherwise (to the extent
a guarantor wishes to issue one); and
(5) The requirements on
manufacturers, including importers, of
children’s products to use third party
laboratories to test and to certify, on the
basis of that testing, compliance of
children’s products with:
• Requirements on the lead content of
paint and other surface coatings
effective for products manufactured
after December 21, 2008;
including a rule declaring a consumer product to
be a banned hazardous product or substance.’’
CPSA at § 14(f)(1), as amended by CPSIA § 102(b).
8 By immediate final rule published November
18, 2008 (73 FR 68,328–32), the Commission
limited the testing and certification requirement to
importers and U.S. domestic manufacturers.
9 Prior to amendment by the CPSIA, § 14(a) of the
CPSA required testing and issuance of a
certification for each product subject to a CPSA
consumer product safety standard, namely a
product subject any requirement of 16 CFR parts
1201 through 1213, e.g., part 1205 for walk-behind
power mowers or part 1211 for automatic
residential garage door operators. Certain CPSC
regulations themselves require certification of
compliance or a statement of conformity. See, e.g.
16 CFR part 1633 for flammability (open flame) of
mattresses or 16 CFR 1500.17(a)(13(i)(B) for candles
made with metal-cored wicks.
VerDate Nov<24>2008
16:35 Feb 06, 2009
Jkt 217001
6399
• Requirements applicable to full-size
and non-full-size cribs and pacifiers
effective for products manufactured
after January 20, 2009;
• Requirements concerning small
parts effective for products
manufactured after February 15, 2009;
and
• Requirements on the lead content of
metal components of children’s metal
jewelry effective for products
manufactured after March 23, 2009.
This action by the Commission does
not stay the requirement that products
meet all applicable product safety rules
as defined in the CPSA or similar rules,
bans, standards, or regulations under
any other Act enforced by the
Commission.
Center, 503 Robert Grant Ave., Silver
Spring, MD 20910–7500.
FOR FURTHER INFORMATION CONTACT: Dr.
Charles Schlagel, Director, Office of
Technology Transfer, Naval Medical
Research Center, 503 Robert Grant Ave.,
Silver Spring, MD 20910–7500,
telephone: 301–319–7428.
Dated: February 2, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. E9–2590 Filed 2–6–09; 8:45 am]
Notice of Proposed Information
Collection Requests
BILLING CODE 6355–01–P
DEPARTMENT OF DEFENSE
Department of the Navy
Notice of Intent To Grant a Partially
Exclusive Patent License; Intellikine,
Inc.
Department of the Navy, DoD.
Notice.
AGENCY:
ACTION:
SUMMARY: The Department of the Navy
hereby gives notice of its intent to grant
to Intellikine, Inc., a revocable,
nonassignable, partially exclusive
license to practice worldwide the
Government owned inventions
described in U.S. Patent 6,632,789
entitled ‘‘Methods for Modulating T Cell
Responses by Manipulating Intracellular
Signal Transduction’’ issued 14 October
2003 and related foreign filings in the
fields of diagnosis, prevention and/or
treatment of disease in humans and/or
animals utilizing methods for
modulating T cell responses by
manipulating intracellular signals
associated with T cell costimulation.
DATE: Anyone wishing to object to the
grant of this license has fifteen (15) days
from the date of this notice to file
written objections along with
supporting evidence, if any. Written
objections are to be filed with the Office
of Technology Transfer, Naval Medical
Research Center, 503 Robert Grant Ave.,
Silver Spring, MD 20910–7500,
telephone: 301–319–7428.
ADDRESSES: Written objections are to be
filed with the Office of Technology
Transfer, Naval Medical Research
PO 00000
Frm 00037
Fmt 4703
Sfmt 4703
Dated: February 3, 2009.
A.M. Vallandingham,
Lieutenant Commander, Judge Advocate
General’s Corps, U.S. Navy, Federal Register
Liaison Officer.
[FR Doc. E9–2614 Filed 2–6–09; 8:45 am]
BILLING CODE 3810–FF–P
DEPARTMENT OF EDUCATION
Department of Education.
The Director, Information
Collection Clearance Division,
Regulatory Information Management
Services, Office of Management, invites
comments on the proposed information
collection requests as required by the
Paperwork Reduction Act of 1995.
DATES: Interested persons are invited to
submit comments on or before April 10,
2009.
SUPPLEMENTARY INFORMATION: Section
3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Chapter 35) requires
that the Office of Management and
Budget (OMB) provide interested
Federal agencies and the public an early
opportunity to comment on information
collection requests. OMB may amend or
waive the requirement for public
consultation to the extent that public
participation in the approval process
would defeat the purpose of the
information collection, violate State or
Federal law, or substantially interfere
with any agency’s ability to perform its
statutory obligations. The Director,
Regulatory Information Management
Services, Office of Management,
publishes that notice containing
proposed information collection
requests prior to submission of these
requests to OMB. Each proposed
information collection, grouped by
office, contains the following: (1) Type
of review requested, e.g., new, revision,
extension, existing or reinstatement; (2)
Title; (3) Summary of the collection; (4)
Description of the need for, and
proposed use of, the information; (5)
Respondents and frequency of
collection; and (6) Reporting and/or
Recordkeeping burden. OMB invites
public comment.
The Department of Education is
especially interested in public comment
AGENCY:
SUMMARY:
E:\FR\FM\09FEN1.SGM
09FEN1
]]>Agencies
[Federal Register Volume 74, Number 25 (Monday, February 9, 2009)]
[Notices]
[Pages 6396-6399]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2590]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
Notice of Stay of Enforcement of Testing and Certification
Requirements
AGENCY: Consumer Product Safety Commission.
ACTION: Stay of enforcement.
-----------------------------------------------------------------------
SUMMARY: This notice announces the decision of the Consumer Product
Safety Commission (``CPSC'' or ``Commission'') to stay enforcement of
certain provisions of subsection 14(a) of the Consumer Product Safety
Act (``CPSA'') as amended by section 102(a) of the Consumer Product
Safety Improvement Act of 2008 (``CPSIA''), Public Law 110-314.
Specifically, the Commission is staying certain of the requirements of
paragraphs 14(a)(1), (2), and (3) that otherwise require testing and
issuance of certificates of compliance by manufacturers, including
importers, of products subject to an applicable consumer product safety
rule as defined in the CPSA or similar rule, ban, standard, or
regulation under any other Act enforced by the Commission. This stay
covers all such requirements with the exception of:
(1) Those where testing and certification was required by
subsection 14(a) of the CPSA prior to enactment of the CPSIA; and
(2) Those requirements, when they become effective, applicable to
children's product certifications required to be supported by third
party testing for which the Commission has issued requirements for
acceptance of accreditation of third party testing laboratories to test
for:
Lead paint (effective for products manufactured after
December 21, 2008),
Full-size and non-full size cribs and pacifiers (effective
for products manufactured after January 20, 2009),
[[Page 6397]]
Small parts (effective for products manufactured after
February 15, 2009), and
Metal components of children's metal jewelry (effective
for products manufactured after March 23, 2009); and
(3) Any and all certifications expressly required by CPSC
regulations; and
(4) The certifications required due to certain requirements of the
Virginia Graeme Baker Pool & Spa Safety Act being defined as consumer
product safety ``rules;'' and
(5) The certifications of compliance required for ATVs in section
42(a)(2) of the CPSA which were added by CPSIA; and
(6) Any voluntary guarantees provided for in the Flammable Fabrics
Act (``FFA'') or otherwise (to the extent a guarantor wishes to issue
one).
This stay will remain in effect until February 10, 2010, at which
time the Commission will vote to terminate the stay. This stay does not
alter or postpone the requirement that all products meet applicable
consumer product safety rules as defined in the CPSA or similar rules,
bans, standards, or regulations under any other Act enforced by the
Commission.
DATES: Effective Date: This stay is effective February 10, 2009.\1\
---------------------------------------------------------------------------
\1\ The Commission voted 2-0 to implement the stay. The
Commissioners' statements concerning the stay are available on the
Commission Web site at https://www.cpsc.gov.
FOR FURTHER INFORMATION CONTACT: John ``Gib'' Mullan, Assistant
Executive Director for Compliance and Field Operations, U.S. Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, Maryland
---------------------------------------------------------------------------
20814; e-mail jmullan@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission is aware that there is substantial confusion as to
which testing and certification requirements of subsection 14(a) of the
CPSA apply to which products under the Commission's jurisdiction, what
sort of testing is required where the provisions do apply, whether
testing is necessary for children's products that may not by their
nature contain lead, whether testing to demonstrate compliance must be
conducted on the final product rather than on its parts prior to
assembly or manufacture, whether manufacturers and importers must issue
certificates of compliance to address the labeling requirements under
the Federal Hazardous Substance Act (``FHSA''), and what sort of
certificate must be issued and by whom. The Commission has received
literally thousands of e-mail, telephone, and written inquiries as to
how to comply, when to comply, what is required in support of the
various certifications, what form the required certificates must take,
and who must issue them. Likewise, the Commission has received
innumerable inquiries seeking relief from the expense of testing
children's products that either may not contain lead or may be subject
to exemptions that the Commission may announce in the near future as a
result of ongoing rulemakings either required or permitted by the
CPSIA.\2\ Commission staff has been unable to respond to many of these
inquiries due to the press of its usual regulatory and compliance
activities and the additional burden of the very early, multiple
statutory deadlines imposed on the agency by the CPSIA, including those
necessitating issuance of fourteen proposed and final rules in the six
months since CPSIA was signed into law on August 14, 2008. Furthermore,
the Commission is operating in fiscal year 2009 with the same level of
funding appropriated to it for fiscal year 2008, before the CPSIA as
well as two other acts also requiring significant additional Commission
efforts--the Virginia Graeme Baker Pool and Spa Safety Act and the
Children's Gasoline Burn Prevention Act--were enacted. This funding
constraint is a severe handicap on the Commission's ability to staff up
to address the numerous new requirements imposed by the CPSIA.
---------------------------------------------------------------------------
\2\ ``Children's products'' are defined in section 3(a)(2) of
Consumer Product Safety Act, as amended, as consumer products
``designed or intended primarily for children 12 years of age or
younger.''
---------------------------------------------------------------------------
The Commission has embarked on four rulemakings to address many of
these issues \3\ as they relate to the lead content of children's
products:
---------------------------------------------------------------------------
\3\ The Commission has also requested comments on section 102 of
the CPSIA, entitled ``Mandatory Third-Party Testing for Certain
Children's Products,'' specifically seeking input on the possibility
of testing of component parts rather than the final children's
products. https://www.cpsc.gov/about/cpsia/
ComponentPartsComments.pdf.
---------------------------------------------------------------------------
Determinations that certain materials inherently will not
exceed the statutory CPSIA limits on the lead content of children's
products. 74 FR 2433 (January 15, 2009).
Exemption of certain electronic devices from otherwise
applicable limits on lead in children's products. 74 FR 2435 (January
15, 2009).
Guidance on determining inaccessibility of components of
children's products containing lead. 74 FR 2439 (January 15, 2009).
Procedures for seeking determinations as to lead content
of materials or products and exclusions from otherwise applicable
limits on lead content of children's products. 74 FR 2428 (January 15,
2009).
These proposed rules present complex scientific, technical, and
procedural issues that will not be resolved by February 10, 2009, the
effective date of CPSIA's initial 600 parts per million (``ppm'') limit
on the lead content of children's products. Moreover, on that same
date--February 10, 2009--additional sweeping requirements of the CPSIA
come into effect, including those related to the phthalates content of
children's toys and child care articles, the myriad requirements of the
ASTM F963 voluntary toy standard becoming mandatory CPSC consumer
product safety standards,\4\ and the recently issued CPSIA regulations
related to print and catalog advertising of certain children's
products.
---------------------------------------------------------------------------
\4\ To add even further complexity with respect to the F963 toy
standard, while the CPSIA explicitly states that the version of F963
as it existed on the date of enactment of CPSIA (August 14, 2008)
presumably F963-07, is what becomes mandatory on February 10, 2009,
the Commission understands that ASTM either has issued or intends to
issue a new version of F963-F963-08--in the very near future.
---------------------------------------------------------------------------
These extensive changes to the regulatory landscape cut a broad
swath through the business community from books to children's apparel
to toys and sporting goods to children's electronic products. Many
firms making consumer products, especially children's products, are
small businesses. Bureau of Census data indicates that approximately
ninety-eight percent of the domestic manufacturers of toys, dolls and
games fall into the Small Business Administration's traditional
definition of small business (less than 500 employees), approximately
eighty one percent of manufacturers of such products have fewer than
twenty employees, and over fifty percent have fewer than five
employees. According to the same source, over 99 percent of firms
making apparel (including clothing for children and infants) are small
businesses. Moreover, the testing and certification requirements affect
companies that have not previously been regulated (or did not realize
that they could be regulated) by the Commission, such as book
publishers and craft makers. These entities too are dominated by small
businesses. According to a 2000 survey conducted by the Craft
Organization Directors Association, 64 percent of craftspeople
[[Page 6398]]
worked alone, and nearly all of them employed fewer than 5 people.
The new requirements pose many significant technical challenges.
Since the passage of the CPSIA, the Commission's technical staff has
had to verify testing methods for total lead in metallic substrates.
The staff has also been working diligently to validate testing
methodologies for lead in plastics and other organic substrates to meet
the lead content requirements of section 101 of the CPSIA. As soon as
those methodologies are confirmed, they will be announced publicly. A
method for testing for phthalates was identified by staff, but the
extremely tight timeframe precluded meaningful public comment and input
from the laboratories that will ultimately have to perform the testing.
While the x-ray fluorescence screening method for lead has proven a
useful tool, there is presently no similar screening method for
preliminary testing for phthalates, although several promising ideas
are under development. Finding appropriate screening tests for
phthalates is essential given the costly and burdensome destructive
testing currently required for the chemical analysis measuring
phthalate concentrations. Commission staff needs time to work with
laboratories to assure uniform understanding of the testing
requirements adequate to support certification of compliance. We also
need time to educate the numerous businesses, both big and small, for
which this expansion of mandatory regulatory requirements is all new.
Smaller businesses that make up a significant portion of companies
manufacturing products under the Commission's jurisdiction do not have
laboratory test facilities and must turn to outside labs. The testing
required to confirm compliance with requirements of the F963 toy
standard ranges from chemical tests for antimony, arsenic, barium,
cadmium, and chromium in surface coatings to various acoustic
measurements for sound producing toys, tests for surface temperatures
in battery operated toys, and tests for breakaway features on cords,
straps, and elastic, among other things. To enforce certification on
February 10, 2009, without the Commission having identified the labs
accredited to do such testing disadvantages these small businesses and
could result in these businesses paying for testing twice if the
accreditation of the laboratory they choose for testing is not later
accepted by the Commission. Also, the Commission has not had enough
time or resources to educate the craft and handmade toy businesses on
these new standards and testing requirements. While many of the larger
manufacturers may already be conducting testing and certification, many
smaller companies are only just learning which CPSIA requirements apply
to them. Companies cannot test and certify products when it is still
unclear to them what standards apply.
Furthermore, the CPSIA tasks the Commission with issuing a number
of additional rules within the first 15 months of enactment addressing
testing and certification of compliance of children's products that
will help to clarify the responsibilities of importers, manufacturers,
distributors, retailers, and testing labs. These include requirements
addressing mandatory third party testing to all applicable children's
product safety rules \5\ due by statute in June 2009, rules addressing
auditing of accredited children's product testing laboratories also due
in June 2009, and comprehensive rules addressing compliance labeling of
consumer products and production testing of children's products subject
to third party testing and certification for continued compliance with
applicable requirements, including random sampling protocols, required
by CPSIA to be issued in November of 2009. These rules will define,
among other things, which tests on what products will be required and
how frequently those tests will need to be conducted. These answers are
needed to ensure that the right tests are run on the right products
without unnecessary and expensive testing on products likely to be
exempted in some manner by the Commission in the coming months.\6\
---------------------------------------------------------------------------
\5\ Children's product safety rule means ``a consumer product
safety rule under this Act [the CPSA] or similar rule, regulation,
standard, or ban under any other Act enforced by the Commission,
including a rule declaring a consumer product to be a banned
hazardous product or substance.'' CPSA at Sec. 14(f)(1), as amended
by CPSIA Sec. 102(b).
\6\ Because of the tremendous burden all of this has placed on
the agency, the Commission staff has been unable to respond to
questions from businesses small and large on the general
certification requirements for all consumer product safety rules and
similar rules which went into effect on November 12, 2008. Indeed,
several requests for relief from those provisions have not yet been
acted upon by the Commission. This stay provides relief from those
certification requirements as well but does not provide any defense
or excuse for non-compliance with the underlying standards or bans.
---------------------------------------------------------------------------
The Commission anticipates that when these rules are finalized and
our ongoing stakeholder information and education efforts have been in
place for sufficient time for the new requirements to become known and
understood within the regulated community, implementation of the stayed
testing and certification requirements could move forward by Commission
action in orderly fashion supported by sound scientific and technical
analysis and determinations. Accordingly, the stay will remain in
effect until February 10, 2010, at which time the Commission will vote
to terminate the stay. We believe at this time that the stay will give
us the time needed to develop sound rules and requirements as well as
implement outreach efforts to explain these requirements of the CPSIA
and their applicability.
The stay will provide the Commission with the ability to focus in
the immediate future on high priority enforcement matters such as those
related to cribs, where the Commission has recognized the need for a
thorough investigation of what appear to be potentially widespread
safety issues (see 73 FR 71570), small parts, and lead in children's
metal jewelry. Also, the Commission's technical and scientific staff
will be able to focus on areas such as children's wearing apparel and
children's books where certain of the pending rulemakings noted above
may be able to provide appropriate relief, well in advance of the
lifting of this stay, assuming that those industries provide the
additional information requested by our staff in a timely manner. Among
the children's products issues staff will need to address are bicycles
intended or designed primarily for children 12 and under, where spokes
and tire inflation valves raise complex issues related to the lead
provisions of CPSIA.
Leaving in place the manufacturer, including importer,
certification and testing requirements for lead paint, full-size and
non-full-size cribs, pacifiers, small parts, and lead in metal
components of children's metal jewelry, where laboratory accreditation
requirements have been issued by the Commission will provide a high
degree of assurance of safety in children's products manufactured
during the pendency of the stay and reflects the priorities attached to
those products by Congress in the CPSIA. Also, the Commission
emphasizes that the stay only applies to testing and certification, not
to the sale of products that do not comply with applicable mandatory
safety requirements. All children's products must comply with all
applicable children's product safety rules, including, but not limited
to, the upcoming limits on lead and phthalates in the CPSIA.\7\ Failure
to comply with
[[Page 6399]]
all applicable product safety rules as defined in the CPSA or similar
rules, bans, standards, or regulations under any other Act enforced by
the Commission will remain prohibited in accordance with section 19 of
the CPSA as amended by CPSIA.
---------------------------------------------------------------------------
\7\ Children's product safety rule means ``a consumer product
safety rule under this Act [the CPSA] or similar rule, regulation,
standard, or ban under any other Act enforced by the Commission,
including a rule declaring a consumer product to be a banned
hazardous product or substance.'' CPSA at Sec. 14(f)(1), as amended
by CPSIA Sec. 102(b).
---------------------------------------------------------------------------
II. The Stay
The United States Consumer Product Safety Commission hereby stays
applicability to manufacturers, including importers, of the
requirements for testing and certification \8\ of products set forth in
paragraphs 14(a)(1), (2) and (3) of the CPSA, as amended by subsection
102(a) of CPSIA, with the exception of:
---------------------------------------------------------------------------
\8\ By immediate final rule published November 18, 2008 (73 FR
68,328-32), the Commission limited the testing and certification
requirement to importers and U.S. domestic manufacturers.
---------------------------------------------------------------------------
(1) The requirements of any CPSC regulation, or of subsection 14(a)
of the CPSA as it existed prior to amendment by the CPSIA, for product
testing and certification, including existing requirements for
certification of automatic residential garage door openers, bike
helmets, candles with metal core wicks, lawnmowers, lighters,
mattresses, and swimming pool slides; \9\ and
---------------------------------------------------------------------------
\9\ Prior to amendment by the CPSIA, Sec. 14(a) of the CPSA
required testing and issuance of a certification for each product
subject to a CPSA consumer product safety standard, namely a product
subject any requirement of 16 CFR parts 1201 through 1213, e.g.,
part 1205 for walk-behind power mowers or part 1211 for automatic
residential garage door operators. Certain CPSC regulations
themselves require certification of compliance or a statement of
conformity. See, e.g. 16 CFR part 1633 for flammability (open flame)
of mattresses or 16 CFR 1500.17(a)(13(i)(B) for candles made with
metal-cored wicks.
---------------------------------------------------------------------------
(2) The certifications required due to certain requirements of the
Virginia Graeme Baker Pool & Spa Safety Act being defined as consumer
product safety ``rules;'' and
(3) The certifications of compliance required for ATVs in section
42(a)(2) of the CPSA which were added by CPSIA; and
(4) Any voluntary guarantees provided for in the Flammable Fabrics
Act (``FFA'') or otherwise (to the extent a guarantor wishes to issue
one); and
(5) The requirements on manufacturers, including importers, of
children's products to use third party laboratories to test and to
certify, on the basis of that testing, compliance of children's
products with:
Requirements on the lead content of paint and other
surface coatings effective for products manufactured after December 21,
2008;
Requirements applicable to full-size and non-full-size
cribs and pacifiers effective for products manufactured after January
20, 2009;
Requirements concerning small parts effective for products
manufactured after February 15, 2009; and
Requirements on the lead content of metal components of
children's metal jewelry effective for products manufactured after
March 23, 2009.
This action by the Commission does not stay the requirement that
products meet all applicable product safety rules as defined in the
CPSA or similar rules, bans, standards, or regulations under any other
Act enforced by the Commission.
Dated: February 2, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E9-2590 Filed 2-6-09; 8:45 am]
BILLING CODE 6355-01-P
