Interim Enforcement Policy on Component Testing and Certification of Children's Products and Other Consumer Products to the August 14, 2009 Lead Limits, 68593-68596 [E9-30669]
Download as PDF
<![CDATA[
Federal Register / Vol. 74, No. 247 / Monday, December 28, 2009 / Notices
• Candles with lead wicks (16 CFR
1500.12(a)(2) and 1500.17(a)(13(i)–(ii));
• Cellulose insulation (16 CFR part
1209);
• Garage door openers (16 CFR part
1211);
• Cigarette lighters (16 CFR part
1210);
• Multi-purpose lighters (16 CFR part
1212); and
• Fireworks (16 CFR 1500.14(b)(7),
1500.17(a)(3), 1500.17(a)(8–9),
1500.17(a)(11–12), 1500.83(a)27,
1500.85(a)(2) and part 1507).
III. The Stay
erowe on DSK5CLS3C1PROD with NOTICES
The United States Consumer Product
Safety Commission hereby lifts the stay
of enforcement that was announced in
the Federal Register on February 9,
2009 as being effective until February
10, 2010. There will be no vote to lift
the stay on February 10, 2010 as
previously described in the Federal
Register because the Commission has
agreed that its issuance of this notice
supersedes the earlier requirement for a
vote on February 10, 2010.
Thus, as of February 11, 2010, except
as stated above in part II, manufacturers
(including importers) and private
labelers of consumer products and
children’s products must comply with
the testing and certification
requirements set forth in paragraphs
14(a)(1), (a)(2), (a)(3), and (g) of the
CPSA, as amended by section 102(a) of
CPSIA. Products subject to CPSA or
FHSA bans which are not expressly
addressed by the Commission in this
document do not require certification at
this time. To the extent that any
consumer product or children’s product
remains subject to a stay of enforcement
as described above in part II, the
Commission reiterates that such stay of
enforcement does not alter or otherwise
affect the requirement that the 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: December 18, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. E9–30663 Filed 12–24–09; 8:45 am]
CONSUMER PRODUCT SAFETY
COMMISSION
numbered each paragraph in the interim
enforcement policy.
Interim Enforcement Policy on
Component Testing and Certification
of Children’s Products and Other
Consumer Products to the August 14,
2009 Lead Limits
II. Lower Limits for Lead in Paint and
in Children’s Products
1. On August 14, 2009, the limit for
lead in paint and similar surface
coatings was reduced from 600 parts per
million (ppm) to 90 ppm. Section
101(f)(1) of the Consumer Product
Safety Improvement Act of 2008
(CPSIA), Public Law No. 110–314 (Aug.
14, 2008) required the Commission to
modify its pre-existing regulation
banning lead in paint by decreasing the
applicable limit to 90 ppm (see 73 FR
77492 (Dec. 19, 2008)).
To simplify discussion, we use the
term ‘‘paint’’ broadly herein to include
any type of surface coating that is
subject to 16 CFR part 1303. The new
lower limit applies not only to paint
sold to consumers as such (for example,
a gallon of paint sold at a hardware
store), but also to any paint on toys or
other articles for children and to any
paint on certain household furniture
items (not limited to children’s
furniture). See 16 CFR part 1303.
2. Also on August 14, 2009, the
general limit for lead in any accessible
part of a children’s product was reduced
from 600 ppm to 300 ppm (see section
101(a)(2)(B) of the CPSIA). In this
context, the term ‘‘children’s product’’
means any consumer product that is
designed or intended primarily for
children 12 years of age or younger (see
15 U.S.C. 2052(a)(2)). Congress set out
four factors that must be considered in
determining whether a consumer
product is primarily intended for
children 12 and under; a statement of
the manufacturer’s intent concerning
the appropriate age for users of the
product is not determinative, but must
be considered as one factor if it is
reasonable. The Commission has
promulgated a final rule for determining
when parts of a children’s product may
be deemed inaccessible (see 74 FR
39535 (August 7, 2009)).
3. The Commission has established
higher lead content limits for certain
electronics components of children’s
products and has exempted certain
other electronics components, such as
cathode ray tubes, altogether (see 74 FR
6990 (February 12, 2009)). The
Commission has denied exemptions in
all other cases that have come before it
to date, but it has temporarily stayed
enforcement of the applicable lead
content limits for certain metal
components of youth motorized
vehicles and youth bicycles (see 74 FR
22154 (May 12, 2009) (stay of
enforcement pertaining to youth
motorized recreational vehicles)); 74 FR
AGENCY: Consumer Product Safety
Commission.
ACTION: Notice.
SUMMARY: The Consumer Product Safety
Commission (‘‘CPSC,’’ ‘‘Commission,’’
or ‘‘we’’) is announcing an interim
enforcement policy regarding
component testing and certification of
children’s products and other consumer
products to the 90 parts per million
(ppm) lead in paint limit and to the 300
ppm lead limit for children’s products
established in section 101 of the
Consumer Product Safety Improvement
Act of 2008 (‘‘CPSIA’’).
DATES: The interim enforcement policy
is effective on December 16, 2009.
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; email jmullan@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
This statement sets forth the
Commission’s interim enforcement
policy with regard to testing and
certification of consumer products to
the lead paint and lead content limits
that took effect on August 14, 2009.1 It
states the circumstances under which
domestic manufacturers or importers
may certify children’s products as in
compliance with lead limits based on
testing, at different times, of
components or paints used on those
products. As explained more fully
below in part V of this document, a
domestic manufacturer or importer may
certify compliance with lead limits if,
for each accessible component and each
type of paint used on a product, it either
obtains passing test results from a
recognized third-party test laboratory or
holds a certificate from another person
based on passing test results from a
recognized third-party test laboratory.
To make it easier for interested parties
to understand the interim enforcement
policy’s provisions and how certain
provisions interact with others, we have
BILLING CODE 6355–01–P
1 The Commission voted 5–0 to publish this
notice in the Federal Register. Commissioner Anne
Northup issued a statement, and the statement can
be found at https://www.cpsc.gov/PR/
northup12162009comptest.pdf.
VerDate Nov<24>2008
11:00 Dec 24, 2009
Jkt 220001
68593
PO 00000
Frm 00028
Fmt 4703
Sfmt 4703
E:\FR\FM\28DEN1.SGM
28DEN1
68594
Federal Register / Vol. 74, No. 247 / Monday, December 28, 2009 / Notices
erowe on DSK5CLS3C1PROD with NOTICES
31254 (June 30, 2009) (stay of
enforcement pertaining to youth
bicycles and related products)).
4. Beginning on August 14, 2009, it
became unlawful to sell, offer for sale,
manufacture for sale, distribute in
commerce or import into the United
States any product that is subject to the
new lead limits, but fails to comply,
regardless of when the product was
made. Under section 101(a)(1) of CPSIA,
any children’s product containing lead
above the limit is to be treated as a
banned hazardous substance under the
Federal Hazardous Substances Act. It is
unlawful for any person to sell, offer for
sale, import or distribute a banned
hazardous substance (see 15 U.S.C.
2068(a)(2)(D); see also 15 U.S.C.
1263(a)). Products that do not comply
with the applicable lead limits are
classified as banned hazardous
substances and thus are also subject to
export restrictions (see 15 U.S.C.
2068(a)(15)(A)).
III. Certification Requirements and
Effective Dates
5. Any children’s product that bears
paint and is manufactured after August
14, 2009 must be certified as in
compliance with the 90 ppm lead limit
(see 15 U.S.C. 2063(a)(2) and
(a)(3)(B)(i)). The certification must be
based on testing by a third-party
conformity assessment body listed on
CPSC’s Web site as qualified to test for
lead in paint (see https://www.cpsc.gov/
cgi-bin/labapplist.aspx and use the
‘‘Narrow the Laboratory List’’ function
to identify conformity assessment
bodies that are accredited to a specific
scope). For convenience, we use the
term ‘‘third-party test lab’’ as shorthand
for ‘‘third-party conformity assessment
body.’’ In addition, we refer to a thirdparty test lab as ‘‘recognized’’ when it
has been listed on CPSC’s Web site as
qualified to test products for compliance
with a particular standard, ban or
regulation.
6. The testing and certification
requirements for paint sold as such and
for consumer products that are subject
to the lead paint limits but are not
intended primarily for children age 12
and younger (such as certain household
furniture items) were stayed by vote of
the Commission on January 30, 2009
(see 74 FR 6396 (February 9, 2009)).
With respect to these products, the stay
of enforcement relating to the lead in
paint limit will be lifted as of February
10, 2010. Accordingly, such products, if
manufactured after that date, will have
to be certified to the 90 ppm limit based
on a test of each product or a reasonable
testing program (see 15 U.S.C.
2063(a)(1)(A)).
VerDate Nov<24>2008
11:00 Dec 24, 2009
Jkt 220001
7. Children’s metal jewelry that is
manufactured after August 14, 2009
must be certified as in compliance with
the 300 ppm limit on lead in any
accessible metal part. (The stay of
enforcement discussed in paragraph 6
does not apply to the certification of
metal components of children’s metal
jewelry.) The Commission has
promulgated guidance for determining
when a part is inaccessible (see 74 FR
39535). Neither paint nor electroplating
may be considered as making
underlying materials inaccessible (see
section 101(b)(3) of the CPSIA). The
certification must be based on testing by
a third-party test lab listed on CPSC’s
Web site as qualified to test for lead in
children’s metal jewelry (see https://
www.cpsc.gov/cgi-bin/labapplist.aspx
and use the ‘‘Narrow the Laboratory
List’’ function to identify conformity
assessment bodies that are accredited to
a specific scope). If the children’s metal
jewelry bears paint, it must also be
certified as in compliance with the 90
ppm limit, as discussed in paragraph 5.
8. The Commission has determined
that some materials, by their nature, will
never exceed the lead content limits.
These include many natural materials
such as gemstones, wood, cotton and
wool, as well as certain refined metals
and alloys. For a more complete list of
such materials, see 74 FR 43031 (August
26, 2009). If all accessible parts of a
children’s product consist of such
materials, then that product need not be
tested or certified as in compliance with
the lead content limits. The Commission
recently issued a ‘‘Statement of Policy
on Testing and Certification of Lead
Content in Children’s Products’’ (see 74
FR 55820 (Oct. 29, 2009)).
9. Children’s products other than
those described in paragraphs 7 or 8
must be certified as in compliance with
the 300 ppm lead content limit only if
they are manufactured after February
10, 2011 and only as to accessible parts
that are not subject to the Commission
determination described in paragraph 8
above. Pursuant to section 14(a)(2) of
the Consumer Product Safety Act
(CPSA), the certification must be based
on testing by a third-party test lab listed
on CPSC’s Web site as qualified to test
for lead in children’s products. The
Commission has issued a notice of
requirements for recognizing
laboratories as qualified to test for lead
content in children’s products (see 74
FR 55820 (October 29, 2009)).
10. By rule, the Commission has
specified that products made within the
United States must be certified by the
domestic manufacturer; products made
outside the United States must be
certified by the importer (see 16 CFR
PO 00000
Frm 00029
Fmt 4703
Sfmt 4703
1110.7). Neither a foreign manufacturer
nor a private labeler is currently
required to certify compliance, but
either may do so voluntarily.
IV. Certification to Lead Paint Limits
Based on Testing of Paint Samples Not
Obtained From the Final Product
11. In general, certification of
children’s products must be based on
testing of samples of the final product,
in the same condition as it would be in
when sold to a consumer, or samples
that are ‘‘identical in all material
respects’’ (see 15 U.S.C. 2063(a)(2)(A)
(manufacturer must provide a test lab
with ‘‘sufficient samples of the
children’s product or samples that are
identical in all material respects to the
product’’)). In the case of lead paint
limits, the manufacturer of a children’s
product can send samples of the final
product to a test laboratory so that each
type of paint may be scraped off and
tested individually. Where small
amounts of a particular paint are used,
however, a large number of samples of
the children’s product may be needed to
obtain enough of that paint to test.
12. The Commission intends to issue
rules addressing when certification may
be based on testing of paints before they
are applied to a product rather than
based on testing of paints after they
have been applied to such a product and
then scraped off the product. Until
issuance of such rules, and subject to
paragraph 24, the Commission will
permit certification of a children’s
product as being in compliance with the
90 ppm lead paint limit if, for each
paint used on the product, the domestic
manufacturer or importer who certifies
the product either has obtained a test
report as described in paragraph 13 or
holds a paint certificate as described
paragraph 14. The certificate
accompanying the children’s product
should list each paint used, by color,
location or other means, and for each
paint, should identify the corresponding
test report or paint certificate on which
the product certification is based.
13. As part of its basis for certification
of a children’s product to the 90 ppm
lead in paint limit, a domestic
manufacturer or importer may rely on a
test report showing passing test results
for one or more paints used on the
product, based on testing either of them
has commissioned from a recognized
third-party test lab. The manufacturer of
the children’s product should ensure
that each paint sample sent to a thirdparty test lab is representative of that
used on the final product. Test reports
should identify each paint tested by
color, specification number or other
characteristic, as well as the
E:\FR\FM\28DEN1.SGM
28DEN1
Federal Register / Vol. 74, No. 247 / Monday, December 28, 2009 / Notices
erowe on DSK5CLS3C1PROD with NOTICES
manufacturer of the paint and the
supplier of the paint (if different).
14. As part of its basis for certification
of a children’s product to the 90 ppm
lead in paint limit, a domestic
manufacturer or importer may rely on a
certificate from another person
certifying that paint complies with the
90 ppm lead limit. The paint certificate
must be based on testing of a
representative sample of one or more
paints conducted by a recognized thirdparty test lab. The paint certificate
should identify all test reports
underlying the certification, consistent
with section 14 of the CPSA, 15 U.S.C.
2063.
15. Any person who certifies a
children’s product as complying with
the 90 ppm lead paint limit should be
able to trace each batch of paint that is
used on the product to the paint
manufacturer. The product
manufacturer should ensure that paints
meeting the lead limits when tested and
certified are not later contaminated with
lead from other sources before or during
application to the product.
16. To be ‘‘representative’’ for
purposes of paragraphs 13 and 14, a
paint sample need not be of the same
quantity as is applied to the children’s
product nor must it be painted on the
same substrate material; rather, it may
consist of any quantity of paint that is
sufficient for testing purposes, either in
liquid form or in the form of dried film
of the paint on any substrate. In all other
respects, the sample should have the
same composition as the paint used on
the final product. For example, if the
manufacturer of a children’s product
uses a drying agent that mixes with the
paint, then the test sample should
reflect that mixture.
17. For consumer products that are
not children’s products but are subject
to lead paint limits (such as certain
furniture items), a domestic
manufacturer or importer may base its
certification to the 90 ppm lead paint
limit (when required as explained in
paragraph 6 above) on its own testing of
each paint used on the product, on
testing by any third-party test lab, on
paint certification(s) from any person or
on a combination of these methods.
V. Certification to Lead Content Limits
for Children’s Metal Jewelry and Other
Children’s Products Based on
Component Testing
18. The Commission intends to issue
rules addressing when children’s
products may be certified to lead
content limits based on testing of
components separately from the final
product. (The Commission staff has
previously stated that it would accept
VerDate Nov<24>2008
11:00 Dec 24, 2009
Jkt 220001
certification of a children’s product to
lead content limits based on testing of
individual components in the case of
products, such as building sets, which
consist of an ‘‘assortment’’ of individual
pieces. In such cases, the certificate
should identify the test information for
each piece.)
Until such rulemaking is completed,
subject to paragraph 24, the Commission
will permit certification of a children’s
product as being in compliance with the
300 ppm lead content limit (when
required as discussed in paragraphs 7
and 9 above) if, for each accessible
component of the product, the domestic
manufacturer or importer who certifies
the product either has obtained a test
report as described in paragraph 19 or
holds a component certificate as
described in paragraph 20. The
certificate accompanying the children’s
product should list each component
required to be tested by part number or
other specification and for each such
part, should identify the corresponding
test report or component certificate on
which product certification is based.
The determination of which, if any,
parts are inaccessible must be based on
an evaluation of the final product, not
of individual components.
19. As part of its basis for certification
of a children’s product to the 300 ppm
lead content limit, a domestic
manufacturer or importer may rely on a
test report showing passing test results
for one or more components used on the
product, based on testing either of them
has commissioned from a recognized
third-party test lab. For each type of
component to be tested, the
manufacturer of the children’s product
should draw a random sample from the
batch or lot of such components to be
used in making the final product. Test
reports should identify each component
tested, by part number or other
specification, as well as the
manufacturer of the component and the
supplier (if different).
20. As part of its basis for certification
of a children’s product to the 300 ppm
lead content limit, a domestic
manufacturer or importer may rely on a
certificate from another person
certifying that a component complies
with the 300 ppm lead limit. The
component certificate must be based on
testing of a representative sample of the
component(s) by a recognized thirdparty test lab. The component certificate
should identify all test reports
underlying the certification consistent
with section 14 of the CPSA, 15 U.S.C.
2063.
21. Any person who certifies a
children’s product as complying with
the lead content limits should be able to
PO 00000
Frm 00030
Fmt 4703
Sfmt 4703
68595
trace each component of the product to
the component’s manufacturer.
22. To be ‘‘representative’’ of a
component for purposes of paragraph
20, a sample need not be of the same
size, shape or finish condition as the
component of the final product; rather,
it may consist of any quantity that is
sufficient for testing purposes and in
any form that has the same content as
the component of the final product. For
example, if a manufacturer receives
plastic resins or compounds from a
supplier in a raw state, such as pellets,
that are later molded into a component
or a finished children’s product in the
manufacturing process, the
manufacturer may send the third-party
test lab samples of the plastic either in
the form received or in their finished
state. The manufacturer must take care,
however, that the manufacturing
process does not add lead from an
untested source, such as the material
hopper, regrind equipment, or other
equipment used in the assembly of the
finished product.
VI. Composite Testing
23. In testing paints for compliance
with lead limits, third-party test labs
may test a combination of different
paint samples so long as they follow
procedures ensuring that no failure to
comply with the lead limits will go
undetected. For an example of an
acceptable methodology, see Test
Method: CPSC–CH–E1003–09, Standard
Operating Procedure for Determining
Lead (Pb) in Paint and Other Similar
Surface Coatings (April 26, 2009)
(available on the Internet at https://
www.cpsc.gov/about/cpsia/CPSC-CHE1003-09.pdf). Similarly, third-party
test labs may test a combination of
plastic components or a combination of
metal components so long as they
follow procedures ensuring that no
failure to comply with the lead limits
will go undetected.
VII. Requirement That Reliance Be
Reasonable
24. No person may rely on a test
report, a paint certificate or a
component certificate, nor certify a
product based on such a test report or
certificate, if such person knows, or in
the exercise of due care has reason to
know, that the test report or certificate
is false or misleading in any material
respect.
VIII. Enforcement Policy
25. A domestic manufacturer or
importer who certifies a children’s
product as in compliance with lead
limits based on component testing in
accordance with this policy statement
E:\FR\FM\28DEN1.SGM
28DEN1
68596
Federal Register / Vol. 74, No. 247 / Monday, December 28, 2009 / Notices
shall not be subject to civil or criminal
penalties for failure to certify or for false
certification on the grounds of having
certified to such limits without
submitting samples of the final
children’s product (i.e., the product in
its entirety) for testing. A retailer or
other seller of a product who holds a
certificate based on component testing
in accordance with this policy statement
may rely upon it to the same extent as
if it had been based on testing of the
final product. Any person who issues a
false or misleading certificate for any
paint or component is subject to
penalties.
Dated: December 18, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. E9–30669 Filed 12–24–09; 8:45 am]
IX. Disclaimer
AGENCY: Consumer Product Safety
Commission.
ACTION: Notice.
26. Certification of a product in
accordance with all conditions of this
policy statement does not exempt any
manufacturer (including an importer)
from the duty to ensure that each
product unit manufactured or imported
complies with all applicable lead limits,
nor from the duty to report to the
Commission immediately should it
obtain information which reasonably
supports the conclusion that such
product fails to comply with applicable
lead limits.
X. Delegation
27. The Commission hereby delegates
to the Assistant Executive Director,
Office of Compliance and Field
Operations, authority to implement this
policy and to depart from the policy in
individual cases if warranted by
unusual circumstances. The Assistant
Executive Director shall notify the
Commission promptly where he deems
it advisable to depart from the policy in
individual cases.
erowe on DSK5CLS3C1PROD with NOTICES
XI. Effective Dates
28. This interim statement of policy
will take effect immediately upon
approval by the Commission. It
supersedes: (1) The ‘‘Statement of
Commission Enforcement Policy on
Section 101 Lead Limits’’ announced on
February 6, 2009 (available on the
Internet at https://www.cpsc.gov/about/
cpsia/101lead.pdf); and (2) the ‘‘Interim
Enforcement Policy for Children’s Metal
Jewelry Containing Lead’’ issued
February 3, 2005 (available on the
Internet at https://www.cpsc.gov/
BUSINFO/pbjewelgd.pdf). This interim
policy shall remain in effect until it is
revoked, modified or superseded by
Commission vote.
VerDate Nov<24>2008
11:00 Dec 24, 2009
Jkt 220001
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[Docket No.CPSC–2009–0108]
Petition Requesting Component Part
Testing for Spray Sampling, Multiple
Stamping and Finished Component
Part Testing
SUMMARY: The Consumer Product Safety
Commission (Commission or CPSC) has
received a petition requesting an
amendment of the Commission’s
regulations at 16 CFR 1303 to authorize
test procedures for ‘‘spray sampling,’’
‘‘multiple stamping’’ and ‘‘finished
component testing’’ and adopt an
interpretative rule that clarifies that test
procedures for ‘‘spray sampling,’’
‘‘multiple stamping,’’ and ‘‘finished
component testing’’ under the
Consumer Product Safety Act (CPSA),
15 U.S.C. 2051 et seq. The Commission
solicits written comments concerning
the petition.
DATES: The Office of the Secretary must
receive comments on the petition by
February 26, 2010.
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2009–
0108, by any of the following methods:
Submit electronic comments in the
following way:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
To ensure timely processing of
comments, the Commission is no longer
accepting comments submitted by
electronic mail (e-mail) except through
https://www.regulations.gov.
Submit written submissions in the
following way:
Mail/Hand delivery/Courier (for
paper, disk, or CD–ROM submissions),
preferably in five copies, to: Office of
the Secretary, Consumer Product Safety
Commission, Room 502, 4330 East West
Highway, Bethesda, MD 20814;
telephone (301) 504–7923.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received may be posted
without change, including any personal
identifiers, contact information, or other
PO 00000
Frm 00031
Fmt 4703
Sfmt 4703
personal information provided, to
https://www.regulations.gov. Do not
submit confidential business
information, trade secret information, or
other sensitive or protected information
electronically. Such information should
be submitted in writing.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Rocky Hammond, Office of the
Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, Maryland, 20814; telephone
(301) 504–6833, e-mail
rhammond@cpsc.gov.
SUPPLEMENTARY INFORMATION: Intertek
Consumer Goods NA and the American
Apparel & Footwear Association
(petitioners) submitted a petition stating
that section 14(a) of the CPSA, as
amended by section 102(a) of the
Consumer Product Safety Improvement
Act (CPSIA), 15 U.S.C. 2063(a), requires
that samples submitted for testing be
‘‘identical in all material respects to the
product.’’ Petitioners assert that only
completely assembled final products
may be used for testing to support
required third party testing and
certification under the CPSIA, including
the lead paint standard. Petitioners state
that as a result of the final product
testing for lead in paint, many samples
must be destroyed—sometimes several
hundred—to obtain a sufficient sample
size. The petitioners assert that although
composite testing of different paints is
now allowed under certain conditions,
there are numerous situations where
there is only one small-area color on a
product to test, or where even
composite testing of up to three unlike
paints, still requires the destruction of
many product samples. To address these
issues, petitioners request the use of
alternative test procedures through
amendment under the Commission’s
regulations at 16 CFR 1303 and through
an interpretative rule under section
14(a) of the CPSA. Through spray
sampling, multiple stamping, and
finished component testing, petitioners
assert that only one or a few samples or
components would need to be
destroyed, thus avoiding the
unnecessary destruction of the final
products themselves, without any
reduction in the validity or reliability of
the tests themselves.
Interested parties may obtain a copy
of the petition by writing or calling the
Office of the Secretary, Consumer
Product Safety Commission, 4330 East
West Highway, Bethesda, MD 20814;
telephone (301) 504–6833. The petition
E:\FR\FM\28DEN1.SGM
28DEN1
]]>Agencies
[Federal Register Volume 74, Number 247 (Monday, December 28, 2009)]
[Notices]
[Pages 68593-68596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30669]
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
Interim Enforcement Policy on Component Testing and Certification
of Children's Products and Other Consumer Products to the August 14,
2009 Lead Limits
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Consumer Product Safety Commission (``CPSC,''
``Commission,'' or ``we'') is announcing an interim enforcement policy
regarding component testing and certification of children's products
and other consumer products to the 90 parts per million (ppm) lead in
paint limit and to the 300 ppm lead limit for children's products
established in section 101 of the Consumer Product Safety Improvement
Act of 2008 (``CPSIA'').
DATES: The interim enforcement policy is effective on December 16,
2009.
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. Introduction
This statement sets forth the Commission's interim enforcement
policy with regard to testing and certification of consumer products to
the lead paint and lead content limits that took effect on August 14,
2009.\1\ It states the circumstances under which domestic manufacturers
or importers may certify children's products as in compliance with lead
limits based on testing, at different times, of components or paints
used on those products. As explained more fully below in part V of this
document, a domestic manufacturer or importer may certify compliance
with lead limits if, for each accessible component and each type of
paint used on a product, it either obtains passing test results from a
recognized third-party test laboratory or holds a certificate from
another person based on passing test results from a recognized third-
party test laboratory.
---------------------------------------------------------------------------
\1\ The Commission voted 5-0 to publish this notice in the
Federal Register. Commissioner Anne Northup issued a statement, and
the statement can be found at https://www.cpsc.gov/PR/northup12162009comptest.pdf.
---------------------------------------------------------------------------
To make it easier for interested parties to understand the interim
enforcement policy's provisions and how certain provisions interact
with others, we have numbered each paragraph in the interim enforcement
policy.
II. Lower Limits for Lead in Paint and in Children's Products
1. On August 14, 2009, the limit for lead in paint and similar
surface coatings was reduced from 600 parts per million (ppm) to 90
ppm. Section 101(f)(1) of the Consumer Product Safety Improvement Act
of 2008 (CPSIA), Public Law No. 110-314 (Aug. 14, 2008) required the
Commission to modify its pre-existing regulation banning lead in paint
by decreasing the applicable limit to 90 ppm (see 73 FR 77492 (Dec. 19,
2008)).
To simplify discussion, we use the term ``paint'' broadly herein to
include any type of surface coating that is subject to 16 CFR part
1303. The new lower limit applies not only to paint sold to consumers
as such (for example, a gallon of paint sold at a hardware store), but
also to any paint on toys or other articles for children and to any
paint on certain household furniture items (not limited to children's
furniture). See 16 CFR part 1303.
2. Also on August 14, 2009, the general limit for lead in any
accessible part of a children's product was reduced from 600 ppm to 300
ppm (see section 101(a)(2)(B) of the CPSIA). In this context, the term
``children's product'' means any consumer product that is designed or
intended primarily for children 12 years of age or younger (see 15
U.S.C. 2052(a)(2)). Congress set out four factors that must be
considered in determining whether a consumer product is primarily
intended for children 12 and under; a statement of the manufacturer's
intent concerning the appropriate age for users of the product is not
determinative, but must be considered as one factor if it is
reasonable. The Commission has promulgated a final rule for determining
when parts of a children's product may be deemed inaccessible (see 74
FR 39535 (August 7, 2009)).
3. The Commission has established higher lead content limits for
certain electronics components of children's products and has exempted
certain other electronics components, such as cathode ray tubes,
altogether (see 74 FR 6990 (February 12, 2009)). The Commission has
denied exemptions in all other cases that have come before it to date,
but it has temporarily stayed enforcement of the applicable lead
content limits for certain metal components of youth motorized vehicles
and youth bicycles (see 74 FR 22154 (May 12, 2009) (stay of enforcement
pertaining to youth motorized recreational vehicles)); 74 FR
[[Page 68594]]
31254 (June 30, 2009) (stay of enforcement pertaining to youth bicycles
and related products)).
4. Beginning on August 14, 2009, it became unlawful to sell, offer
for sale, manufacture for sale, distribute in commerce or import into
the United States any product that is subject to the new lead limits,
but fails to comply, regardless of when the product was made. Under
section 101(a)(1) of CPSIA, any children's product containing lead
above the limit is to be treated as a banned hazardous substance under
the Federal Hazardous Substances Act. It is unlawful for any person to
sell, offer for sale, import or distribute a banned hazardous substance
(see 15 U.S.C. 2068(a)(2)(D); see also 15 U.S.C. 1263(a)). Products
that do not comply with the applicable lead limits are classified as
banned hazardous substances and thus are also subject to export
restrictions (see 15 U.S.C. 2068(a)(15)(A)).
III. Certification Requirements and Effective Dates
5. Any children's product that bears paint and is manufactured
after August 14, 2009 must be certified as in compliance with the 90
ppm lead limit (see 15 U.S.C. 2063(a)(2) and (a)(3)(B)(i)). The
certification must be based on testing by a third-party conformity
assessment body listed on CPSC's Web site as qualified to test for lead
in paint (see https://www.cpsc.gov/cgi-bin/labapplist.aspx and use the
``Narrow the Laboratory List'' function to identify conformity
assessment bodies that are accredited to a specific scope). For
convenience, we use the term ``third-party test lab'' as shorthand for
``third-party conformity assessment body.'' In addition, we refer to a
third-party test lab as ``recognized'' when it has been listed on
CPSC's Web site as qualified to test products for compliance with a
particular standard, ban or regulation.
6. The testing and certification requirements for paint sold as
such and for consumer products that are subject to the lead paint
limits but are not intended primarily for children age 12 and younger
(such as certain household furniture items) were stayed by vote of the
Commission on January 30, 2009 (see 74 FR 6396 (February 9, 2009)).
With respect to these products, the stay of enforcement relating to the
lead in paint limit will be lifted as of February 10, 2010.
Accordingly, such products, if manufactured after that date, will have
to be certified to the 90 ppm limit based on a test of each product or
a reasonable testing program (see 15 U.S.C. 2063(a)(1)(A)).
7. Children's metal jewelry that is manufactured after August 14,
2009 must be certified as in compliance with the 300 ppm limit on lead
in any accessible metal part. (The stay of enforcement discussed in
paragraph 6 does not apply to the certification of metal components of
children's metal jewelry.) The Commission has promulgated guidance for
determining when a part is inaccessible (see 74 FR 39535). Neither
paint nor electroplating may be considered as making underlying
materials inaccessible (see section 101(b)(3) of the CPSIA). The
certification must be based on testing by a third-party test lab listed
on CPSC's Web site as qualified to test for lead in children's metal
jewelry (see https://www.cpsc.gov/cgi-bin/labapplist.aspx and use the
``Narrow the Laboratory List'' function to identify conformity
assessment bodies that are accredited to a specific scope). If the
children's metal jewelry bears paint, it must also be certified as in
compliance with the 90 ppm limit, as discussed in paragraph 5.
8. The Commission has determined that some materials, by their
nature, will never exceed the lead content limits. These include many
natural materials such as gemstones, wood, cotton and wool, as well as
certain refined metals and alloys. For a more complete list of such
materials, see 74 FR 43031 (August 26, 2009). If all accessible parts
of a children's product consist of such materials, then that product
need not be tested or certified as in compliance with the lead content
limits. The Commission recently issued a ``Statement of Policy on
Testing and Certification of Lead Content in Children's Products'' (see
74 FR 55820 (Oct. 29, 2009)).
9. Children's products other than those described in paragraphs 7
or 8 must be certified as in compliance with the 300 ppm lead content
limit only if they are manufactured after February 10, 2011 and only as
to accessible parts that are not subject to the Commission
determination described in paragraph 8 above. Pursuant to section
14(a)(2) of the Consumer Product Safety Act (CPSA), the certification
must be based on testing by a third-party test lab listed on CPSC's Web
site as qualified to test for lead in children's products. The
Commission has issued a notice of requirements for recognizing
laboratories as qualified to test for lead content in children's
products (see 74 FR 55820 (October 29, 2009)).
10. By rule, the Commission has specified that products made within
the United States must be certified by the domestic manufacturer;
products made outside the United States must be certified by the
importer (see 16 CFR 1110.7). Neither a foreign manufacturer nor a
private labeler is currently required to certify compliance, but either
may do so voluntarily.
IV. Certification to Lead Paint Limits Based on Testing of Paint
Samples Not Obtained From the Final Product
11. In general, certification of children's products must be based
on testing of samples of the final product, in the same condition as it
would be in when sold to a consumer, or samples that are ``identical in
all material respects'' (see 15 U.S.C. 2063(a)(2)(A) (manufacturer must
provide a test lab with ``sufficient samples of the children's product
or samples that are identical in all material respects to the
product'')). In the case of lead paint limits, the manufacturer of a
children's product can send samples of the final product to a test
laboratory so that each type of paint may be scraped off and tested
individually. Where small amounts of a particular paint are used,
however, a large number of samples of the children's product may be
needed to obtain enough of that paint to test.
12. The Commission intends to issue rules addressing when
certification may be based on testing of paints before they are applied
to a product rather than based on testing of paints after they have
been applied to such a product and then scraped off the product. Until
issuance of such rules, and subject to paragraph 24, the Commission
will permit certification of a children's product as being in
compliance with the 90 ppm lead paint limit if, for each paint used on
the product, the domestic manufacturer or importer who certifies the
product either has obtained a test report as described in paragraph 13
or holds a paint certificate as described paragraph 14. The certificate
accompanying the children's product should list each paint used, by
color, location or other means, and for each paint, should identify the
corresponding test report or paint certificate on which the product
certification is based.
13. As part of its basis for certification of a children's product
to the 90 ppm lead in paint limit, a domestic manufacturer or importer
may rely on a test report showing passing test results for one or more
paints used on the product, based on testing either of them has
commissioned from a recognized third-party test lab. The manufacturer
of the children's product should ensure that each paint sample sent to
a third-party test lab is representative of that used on the final
product. Test reports should identify each paint tested by color,
specification number or other characteristic, as well as the
[[Page 68595]]
manufacturer of the paint and the supplier of the paint (if different).
14. As part of its basis for certification of a children's product
to the 90 ppm lead in paint limit, a domestic manufacturer or importer
may rely on a certificate from another person certifying that paint
complies with the 90 ppm lead limit. The paint certificate must be
based on testing of a representative sample of one or more paints
conducted by a recognized third-party test lab. The paint certificate
should identify all test reports underlying the certification,
consistent with section 14 of the CPSA, 15 U.S.C. 2063.
15. Any person who certifies a children's product as complying with
the 90 ppm lead paint limit should be able to trace each batch of paint
that is used on the product to the paint manufacturer. The product
manufacturer should ensure that paints meeting the lead limits when
tested and certified are not later contaminated with lead from other
sources before or during application to the product.
16. To be ``representative'' for purposes of paragraphs 13 and 14,
a paint sample need not be of the same quantity as is applied to the
children's product nor must it be painted on the same substrate
material; rather, it may consist of any quantity of paint that is
sufficient for testing purposes, either in liquid form or in the form
of dried film of the paint on any substrate. In all other respects, the
sample should have the same composition as the paint used on the final
product. For example, if the manufacturer of a children's product uses
a drying agent that mixes with the paint, then the test sample should
reflect that mixture.
17. For consumer products that are not children's products but are
subject to lead paint limits (such as certain furniture items), a
domestic manufacturer or importer may base its certification to the 90
ppm lead paint limit (when required as explained in paragraph 6 above)
on its own testing of each paint used on the product, on testing by any
third-party test lab, on paint certification(s) from any person or on a
combination of these methods.
V. Certification to Lead Content Limits for Children's Metal Jewelry
and Other Children's Products Based on Component Testing
18. The Commission intends to issue rules addressing when
children's products may be certified to lead content limits based on
testing of components separately from the final product. (The
Commission staff has previously stated that it would accept
certification of a children's product to lead content limits based on
testing of individual components in the case of products, such as
building sets, which consist of an ``assortment'' of individual pieces.
In such cases, the certificate should identify the test information for
each piece.)
Until such rulemaking is completed, subject to paragraph 24, the
Commission will permit certification of a children's product as being
in compliance with the 300 ppm lead content limit (when required as
discussed in paragraphs 7 and 9 above) if, for each accessible
component of the product, the domestic manufacturer or importer who
certifies the product either has obtained a test report as described in
paragraph 19 or holds a component certificate as described in paragraph
20. The certificate accompanying the children's product should list
each component required to be tested by part number or other
specification and for each such part, should identify the corresponding
test report or component certificate on which product certification is
based. The determination of which, if any, parts are inaccessible must
be based on an evaluation of the final product, not of individual
components.
19. As part of its basis for certification of a children's product
to the 300 ppm lead content limit, a domestic manufacturer or importer
may rely on a test report showing passing test results for one or more
components used on the product, based on testing either of them has
commissioned from a recognized third-party test lab. For each type of
component to be tested, the manufacturer of the children's product
should draw a random sample from the batch or lot of such components to
be used in making the final product. Test reports should identify each
component tested, by part number or other specification, as well as the
manufacturer of the component and the supplier (if different).
20. As part of its basis for certification of a children's product
to the 300 ppm lead content limit, a domestic manufacturer or importer
may rely on a certificate from another person certifying that a
component complies with the 300 ppm lead limit. The component
certificate must be based on testing of a representative sample of the
component(s) by a recognized third-party test lab. The component
certificate should identify all test reports underlying the
certification consistent with section 14 of the CPSA, 15 U.S.C. 2063.
21. Any person who certifies a children's product as complying with
the lead content limits should be able to trace each component of the
product to the component's manufacturer.
22. To be ``representative'' of a component for purposes of
paragraph 20, a sample need not be of the same size, shape or finish
condition as the component of the final product; rather, it may consist
of any quantity that is sufficient for testing purposes and in any form
that has the same content as the component of the final product. For
example, if a manufacturer receives plastic resins or compounds from a
supplier in a raw state, such as pellets, that are later molded into a
component or a finished children's product in the manufacturing
process, the manufacturer may send the third-party test lab samples of
the plastic either in the form received or in their finished state. The
manufacturer must take care, however, that the manufacturing process
does not add lead from an untested source, such as the material hopper,
regrind equipment, or other equipment used in the assembly of the
finished product.
VI. Composite Testing
23. In testing paints for compliance with lead limits, third-party
test labs may test a combination of different paint samples so long as
they follow procedures ensuring that no failure to comply with the lead
limits will go undetected. For an example of an acceptable methodology,
see Test Method: CPSC-CH-E1003-09, Standard Operating Procedure for
Determining Lead (Pb) in Paint and Other Similar Surface Coatings
(April 26, 2009) (available on the Internet at https://www.cpsc.gov/about/cpsia/CPSC-CH-E1003-09.pdf). Similarly, third-party test labs may
test a combination of plastic components or a combination of metal
components so long as they follow procedures ensuring that no failure
to comply with the lead limits will go undetected.
VII. Requirement That Reliance Be Reasonable
24. No person may rely on a test report, a paint certificate or a
component certificate, nor certify a product based on such a test
report or certificate, if such person knows, or in the exercise of due
care has reason to know, that the test report or certificate is false
or misleading in any material respect.
VIII. Enforcement Policy
25. A domestic manufacturer or importer who certifies a children's
product as in compliance with lead limits based on component testing in
accordance with this policy statement
[[Page 68596]]
shall not be subject to civil or criminal penalties for failure to
certify or for false certification on the grounds of having certified
to such limits without submitting samples of the final children's
product (i.e., the product in its entirety) for testing. A retailer or
other seller of a product who holds a certificate based on component
testing in accordance with this policy statement may rely upon it to
the same extent as if it had been based on testing of the final
product. Any person who issues a false or misleading certificate for
any paint or component is subject to penalties.
IX. Disclaimer
26. Certification of a product in accordance with all conditions of
this policy statement does not exempt any manufacturer (including an
importer) from the duty to ensure that each product unit manufactured
or imported complies with all applicable lead limits, nor from the duty
to report to the Commission immediately should it obtain information
which reasonably supports the conclusion that such product fails to
comply with applicable lead limits.
X. Delegation
27. The Commission hereby delegates to the Assistant Executive
Director, Office of Compliance and Field Operations, authority to
implement this policy and to depart from the policy in individual cases
if warranted by unusual circumstances. The Assistant Executive Director
shall notify the Commission promptly where he deems it advisable to
depart from the policy in individual cases.
XI. Effective Dates
28. This interim statement of policy will take effect immediately
upon approval by the Commission. It supersedes: (1) The ``Statement of
Commission Enforcement Policy on Section 101 Lead Limits'' announced on
February 6, 2009 (available on the Internet at https://www.cpsc.gov/about/cpsia/101lead.pdf); and (2) the ``Interim Enforcement Policy for
Children's Metal Jewelry Containing Lead'' issued February 3, 2005
(available on the Internet at https://www.cpsc.gov/BUSINFO/pbjewelgd.pdf). This interim policy shall remain in effect until it is
revoked, modified or superseded by Commission vote.
Dated: December 18, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E9-30669 Filed 12-24-09; 8:45 am]
BILLING CODE 6355-01-P
