[Federal Register: February 9, 2009 (Volume 74, Number 25)]
[Notices]
[Page 6396-6399]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe09-24]
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CONSUMER PRODUCT SAFETY COMMISSION
Notice of Stay of Enforcement of Testing and Certification
Requirements
AGENCY: Consumer Product Safety Commission.
ACTION: Stay of enforcement.
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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\
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\1\ The Commission voted 2-0 to implement the stay. The
Commissioners' statements concerning the stay are available on the
Commission Web site at http://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
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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.
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\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.''
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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:
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\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. http://www.cpsc.gov/about/cpsia/
ComponentPartsComments.pdf.
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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.
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\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.
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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\
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\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.
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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.
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\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).
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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:
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\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.
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(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
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\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.
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(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