1.This Act may be cited as the
Enhancing CPSC Authority and
Discretion Act of 2011
.
2.Definition of
Children’s Product
(a)Section 3(a)(2) of the Consumer Product
Safety Act (15 U.S.C. 2052(a)(2)) is amended in the matter preceding
subparagraph (A)—
(1)by striking
intended primarily for children
and inserting primarily
intended for use by children
; and
(2)by striking
intended for a child
and inserting intended for use by a
child
.
(b)Section 101(a)(1)
of the Consumer Product Safety Improvement Act of 2008 (15 U.S.C. 1278a(a)(1))
is amended by striking (as defined in section 3(a)(16) of the Consumer
Product Safety Act (15 U.S.C. 2052(a)(16)))
and inserting (as
defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C.
2052(a)))
.
3.Children’s
products containing lead
(a)Section 101(a)(2) of
the Consumer Product Safety Improvement Act of 2008 (15 U.S.C. 1278a(a)(2)) is
amended—
(1)in subparagraph
(A), by striking 600 parts per million
both places it appears
and inserting 0.06 percent
;
(2)by striking
subparagraphs (B) and (C) and inserting the following:
(B)Except as provided in
subparagraphs (C), (D), (F) and (G), beginning August 14, 2009, the lead limit
referred to in paragraph (1) is 0.03 percent total lead content by weight for
any part of a children’s product.
(C)Except as provided in
subparagraphs (D) and (G), beginning on the date that is 4 years after the date
of enactment of this Act, the lead limit referred to in paragraph (1) is 0.01
percent total lead content by weight for any part of a children’s product
that—
(i)is
designed or intended primarily for use by a child 6 years of age or younger;
and
(ii)can be placed in
a child’s
mouth.
;
(3)in subparagraph
(D)—
(A)by striking
100 parts per million
and inserting 0.01
percent
;
(B)by inserting
described in such subparagraph
after product
category
;
(C)by striking
300 parts per million
both places it appears and inserting
0.03 percent
; and
(D)by striking
3 years
and inserting 4 years
;
(4)by redesignating
subparagraph (E) as subparagraph (G) and inserting after subparagraph (D) the
following:
(E)For purposes of
subparagraphs (C)(ii) and (D) and subsection (b)(1)(A)(ii), a children’s
product can be placed in a child’s mouth if any part of the children’s product
can actually be brought to the mouth and kept in the mouth by a child so that
it can be sucked and chewed. If the children’s product can only be licked, it
is not regarded as able to be placed in the mouth. If a toy or part of a toy in
one dimension is smaller than 5 centimeters, it can be placed in the
mouth.
(F)Application of
more stringent limit to other children’s productsThe Commission
may, by regulation, apply the limit set forth in subparagraph (C) or (D) to any
children’s product or class of products if it determines after a hearing that
the lead content in such product or class of products, as limited by
subparagraph (B), presents an unreasonable risk to children’s
health.
;
and
(5)in subparagraph
(G) (as so redesignated), by striking or (D)
and inserting
(D), or (F)
.
(b)Prospective
application of lead limit for children’s productsSection 101(a) of the Consumer Product
Safety Improvement Act of 2008 (15 U.S.C. 1278a(a)) is further amended by
adding at the end the following:
(3)Each limit set forth in paragraph (2)
(except for the limit set forth in subparagraph (A)) shall apply only to a
children’s product (as defined in section 3(a) of the Consumer Product Safety
Act (15 U.S.C. 2052(a))) that is manufactured after the effective date of such
respective
limit.
.
(c)Alternative
limits and exceptionsSection
101(b) of such Act (15 U.S.C. 1278a(b)(1)) is amended—
(1)by striking
paragraph (1) and inserting the following:
(1)Functional
Purpose exception
(A)The Commission, on
its own initiative or upon petition by an interested party, shall grant an
exception to the prohibition in subsection (a) for a specific product,
material, or component part if the Commission, after notice and comment in
accordance with subparagraph (B), determines that—
(i)the product, material, or component part
requires the inclusion of lead because it is not practicable or not
technologically feasible to manufacture such product, material, or component
part, as the case may be, in accordance with subsection (a) by removing the
excessive lead or by making the lead inaccessible;
(ii)the product,
material, or component part is not likely to be placed in the mouth or
ingested, taking into account normal and reasonably foreseeable use and abuse
of such product, material, or component part by a child; and
(iii)an exception for the product, material, or
component part will have no measurable adverse effect on public health or
safety, taking into account normal and reasonably foreseeable use and
abuse.
For purposes of clause (iii),
there is no measurable adverse effect on public health or safety if the
exception described in this subparagraph will result in no measurable increase
in blood lead levels.(B)Procedures for
granting exception
(i)Notice and
comment periodBefore
granting an exception under subparagraph (A), the Commission shall allow not
fewer than 60 days for public comment after publishing the notice of the
proposed exception.
(ii)A party seeking an exception under subparagraph (A) has the
burden of demonstrating that it meets the requirements of such
subparagraph.
(iii)In the case where a
party has petitioned for an exception, in determining whether to grant the
exception, the Commission may base its decision solely on the materials
presented by the party seeking the exception and any materials received through
notice and comment.
(iv)In demonstrating
that it meets the requirements of subparagraph (A), a party seeking an
exception under such subparagraph may rely on any nonproprietary information
submitted by any other party seeking such an exception and such information
shall be considered part of the record presented by the party that relies on
that information.
(v)If an exception is
sought for an entire product, the burden is on the petitioning party to
demonstrate that the criteria in subparagraph (A) are met with respect to every
accessible component or accessible material of the product.
(C)If the Commission
grants an exception for a product, material, or component part under
subparagraph (A), the Commission may, as necessary to protect public health or
safety—
(i)require each manufacturer of such product,
material, or component part to reduce the level of lead in such product,
material, or component part; or
(ii)place a manufacturing expiration date on
such exception or establish a schedule after which the manufacturer of such
product, material, or component part shall be in full compliance with the
limits in subsection (a).
(D)An exception under
subparagraph (A) for a product, material, or component part shall apply
regardless of the date of manufacture unless the Commission expressly provides
otherwise.
(E)Previously
submitted petitionsA party
seeking an exception under this paragraph may rely on materials previously
submitted in connection with a petition for exclusion under this section. In
such cases, petitioners must notify the Commission of their intent to rely on
materials previously submitted. Such reliance does not affect petitioners’
obligation to demonstrate that they meet all requirements of this paragraph as
required by subparagraph
(B)(ii).
;
(2)in paragraph
(2)(A), by striking include to,
and inserting
include
;
(3)by redesignating
paragraph (5) as paragraph (7) and inserting after paragraph (4) the
following:
(5)Certain outdoor
recreational products
(A)In lieu of the lead limits established in subsection
(a)(2), the limits set forth for each respective material in section 1500.88 of
title 16, Code of Federal Regulations (as in effect on January 20, 2010) shall
apply to metal component parts made of such materials in children’s products,
other than apparel, intended primarily for outdoor recreational use, regardless
of the date on which such products were manufactured.
(B)The lead limits
established in subsection (a)(2) shall not apply to battery terminals in
children’s products intended primarily for outdoor recreational use.
(6)Exclusion of
certain used children’s products
(A)The lead limits
established under subsection (a) shall not apply to a used children’s
product.
(B)The term used children’s
product means a children’s product that was obtained by the seller for
use and not for the purpose of resale or was obtained by the seller, either
directly or indirectly, from a person who obtained such children’s product for
use and not for the purpose of resale. Such term also includes a children’s
product that was donated to the seller for charitable distribution or resale to
support charitable purposes. Such term shall not include—
(i)children’s metal
jewelry; or
(ii)any children’s product for which the
donating party or the seller has actual knowledge that the product is in
violation of the lead limits in this section.
For
purposes of this definition, the term seller includes a person who
lends or donates a used children’s
product.;
and
(4)in paragraph (7)
(as so redesignated)—
(A)by inserting
the alternative limits set forth in this subsection and
after
review and revise
; and
(B)by striking
the first promulgation of a of a regulation under this
subsection
and inserting the date of enactment of the Enhancing
CPSC Authority and Discretion Act of 2011,
.
4.Application of
third-party testing requirements
(a)Applicable
children’s productsSection
14(a) of the Consumer Product Safety Act (15 U.S.C. 2063(a)) is amended—
(1)in paragraph
(2)—
(A)in the matter
preceding subparagraph (A), by inserting described in paragraph
(3)(B)
after a children’s product safety rule
;
(B)in subparagraph
(B), by striking the children’s product safety rule
and
inserting such children’s product safety rule
; and
(C)by striking the
flush sentence following subparagraph (B); and
(2)in paragraph
(3)—
(A)in subparagraph
(A), by inserting described in subparagraph (B)
after a
children’s product safety rule
; and
(B)by amending
subparagraph (B)(vi) to read as follows:
(vi)Other durable
nursery productsThe
Commission shall publish notice of the requirements for accreditation of
third-party conformity assessment bodies to assess conformity with other rules
promulgated under section 104 of the Consumer Product Safety Improvement Act of
2008 not later than 90 days before such rules or revisions take
effect.
.
(b)Third-party
testing requirements
(1)Section
14(b) of the Consumer Product Safety Act (15 U.S.C. 2063(b)) is amended to read
as follows:
(b)
(1)The Commission may,
by rule, prescribe reasonable testing programs to be used as the basis for
certification under subsection (a).
(2)Testing by an
independent third partyAny
test or testing program on the basis of which a certificate is issued under
subsection (a) may, at the option of the person required to certify the
product, be conducted by an independent third party qualified to perform such
tests, unless the Commission, by rule and in accordance with paragraph (3),
requires testing by an independent third party for—
(A)a particular rule,
regulation, standard, ban;
(B)any portion of a
particular rule, regulation, standard, or ban; or
(C)a particular class
of products.
(3)Requirements for
testing by an independent third party
(A)The
Commission may not require testing by an independent third party under
paragraph (2) until the Commission has—
(i)established and
published notice of the requirements for accreditation of third-party
conformity assessment bodies who are determined to be qualified by the
Commission to conduct such testing;
(ii)determined that the testing capacity of
accredited third-party conformity assessment bodies, taken together as a whole,
is sufficient or is likely to be sufficient in a reasonable period of time to
prevent unreasonable delays due to testing;
(iii)established, by
rule, exemptions or alternative testing procedures for the certification of
works of art and other one-of-a-kind products and of specialty products for the
disabled, and products that are produced in small quantities such that the cost
of testing by an independent third party is not economically practicable;
and
(iv)made a reasoned
determination—
(I)that the benefits
from requiring third-party testing justify the costs; and
(II)that any rule
issued pursuant to this paragraph is tailored to impose the least possible
burden, taking into account to the extent practicable, the costs of cumulative
regulations.
(B)Produced in
small quantities definedFor
purposes of subparagraph (A)(iii), the term produced in small
quantities means that not more than 10,000 units of the same product (or
substantially similar products) are produced in one year by a manufacturer and
any affiliated manufacturer. A manufacturer may not subdivide the production of
such manufacturer into small quantities in order to evade third-party testing
requirements.
(4)Stay of
enforcement and review of requirements
(A)The Commission may not enforce any third-party
testing requirement relating to lead content limits (other than for children’s
metal jewelry), phthalate limits, or the mandatory toy standard until the
Commission has complied with the requirements of paragraph (3) with respect to
such requirement.
(B)The
Commission may modify any other third-party testing requirement it has adopted,
based on a review of such requirements in accordance with paragraph (3), to
provide additional flexibility or to eliminate unnecessary
burdens.
.
(2)Section 19(a)(14) of the
Consumer Product Safety Act (15 U.S.C. 2068(a)(14)) is amended by inserting
before the period the following: , or to subdivide the production of any
children’s product into small quantities in order to evade any third-party
testing requirements under section 14(a)(2)
.
(c)Section 14(d)(2) of
the Consumer Product Safety Act (15 U.S.C. 2063(d)(2)) is amended—
(1)by striking
Not later than 15 months after the date of enactment of the Consumer
Product Safety Improvement Act of 2008, the
and inserting (A)
The
;
(2)by redesignating
clauses (i) through (iv) of subparagraph (B) as subclauses (I) through (IV),
respectively, and by redesignating subparagraphs (A) and (B) as clauses (i) and
(ii), respectively;
(3)in the matter
preceding clause (i) (as so redesignated), by striking
shall
;
(4)in clause (i) (as so redesignated), by
striking initiate
and inserting not later than 15 months
after the date of enactment of the Consumer Product Safety Improvement Act of
2008, shall initiate
; and
(5)in clause (ii) (as so redesignated), by
striking establish
and inserting may establish
;
and
(6)by inserting at
the end the following:
(B)The Commission may not enforce any
third-party testing requirement pursuant to this paragraph without first having
determined that such requirement is consistent with the requirements of
subsection
(b)(3)(A)(iv).
.
5.Application of
and process for updating durable nursery products standards
(a)Section 104(b) of the Consumer Product Safety
Improvement Act of 2008 (15 U.S.C. 2056a(b)) is amended by adding at the end
the following:
(4)Process for
considering subsequent revisions to voluntary standard
(A)Notice of
adoption of voluntary standardWhen the Commission promulgates a consumer
product safety standard under this subsection that is based, in whole or in
part, on a voluntary standard, the Commission shall notify the organization
that issued the voluntary standard of the Commission’s action and shall provide
a copy of the consumer product safety standard to the organization.
(B)Commission
action on revised voluntary standardIf an organization revises a standard that
has been adopted, in whole or in part, as a consumer product safety standard
under subparagraph (A), it shall notify the Commission. The revised voluntary
standard shall be considered to be a consumer product safety standard issued by
the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C.
2058), effective 180 days after the date on which the organization notifies the
Commission (or such later date specified by the Commission in the Federal
Register) unless, within 90 days after receiving that notice, the Commission
notifies the organization that it has determined that the proposed revision
does not improve the safety of the consumer product covered by the standard and
that the Commission is retaining the existing consumer product safety
standard.
.
(b)Section 104(c) of
the Consumer Product Safety Improvement Act of 2008 (15 U.S.C. 2056a) is
amended by redesignating paragraph (3) as paragraph (4) and inserting after
paragraph (2) the following:
(3)
(A)Paragraph (1) shall
not apply to any revision of the standard promulgated under subsection
(b)(1)(B) subsequent to the initial promulgation of a standard under such
subsection.
(B)Special rule for
fixed-side cribs subject to certain State or local law
requirementsParagraph (1)
shall not apply to a fixed-side crib that has not been recalled and that is
offered or provided for use in a licensed child care facility (other than a
family child care home) that is subject to the following requirements under the
law of a State or a political subdivision of a State:
(i)The facility may
not allow a child to remain in a crib for any significant amount of time while
the child is awake.
(ii)The facility may
not place in a crib a child over the age of 16 months.
(iii)An adult must be
present whenever a child is in a
crib.
.
6.Application of
section 106 to FDA-regulated productsSection 106(a) of the Consumer Product
Safety Improvement Act (15 U.S.C. 2056b(a)) is amended by inserting or
any provision that restates or incorporates a regulation promulgated by the
Food and Drug Administration or any statute administered by the Food and Drug
Administration
after or by statute
.
7.Application of
phthalates standard
(a)Accessible,
plasticized component partsSection 108 of the Consumer Product Safety
Improvement Act of 2008 (15 U.S.C. 2057c) is amended—
(1)by redesignating
subsections (c) through (e) as subsections (d) through (f), respectively;
and
(2)by inserting after
subsection (b) the following:
(c)
(1)Accessible
component partsEffective on the date of enactment of this Act,
subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3)
shall apply to any accessible, plasticized component part of a children’s toy
or child care article.
(2)The Commission may, by rule, exempt any children’s toy
or child care article described in paragraph (1) or any class of such products
or materials used in such products from any of the prohibitions under
subsections (a) and (b)(1) and any rule promulgated under subsection (b)(3)
where the Commission determines that compliance with any such prohibition is
not necessary to protect children’s
health.
.
(b)Effect of
conclusions of the Chronic Hazard Advisory PanelSection 108(b)(3) of such Act (15 U.S.C.
2057c(b)(3)) is amended—
(1)by striking
Not later than
and inserting the following:
(A)Not later
than
;
(2)by redesignating
subparagraphs (A) and (B) as clauses (i) and (ii), respectively;
(3)in clause (i) (as
so redesignated), by inserting or terminate such prohibition
after margin of safety
; and
(4)by adding at the
end the following:
(B)Deadline and
effect on prohibitionIf the
Commission does not commence a rulemaking proceeding within 90 days after
receiving the report required by paragraph (2)(C) or does not issue a final
rule as required by subparagraph (A) within 180 days after commencing a
rulemaking, the prohibition in paragraph (1) shall
terminate.
.
(c)Section
108(f) of the Consumer Product Safety Improvement Act of 2008 (15 U.S.C.
2057c(f)) (as redesignated by subsection (a)) is amended—
(1)in paragraph
(1)—
(A)in subparagraph (B), by striking
consumer product
and all that follows and inserting
children’s product that is subject to the standard made mandatory by
section 106(b) or any successor standard
;
(B)in subparagraph
(C), by striking consumer product
and inserting
children’s product
; and
(C)in subparagraph
(D)—
(i)by
striking consumer product
and inserting children’s
product
;
(ii)by
striking section 3(a)(1)
and inserting section
3(a)
; and
(iii)by
striking 2052(a)(1)
and inserting 2052(a)
;
and
(2)by amending
paragraph (2) to read as follows:
(2)For purposes of
this section, a toy can be placed in a child’s mouth if any part of the toy can
actually be brought to the mouth and kept in the mouth by a child so that it
can be sucked and chewed. If the children’s product can only be licked, it is
not regarded as able to be placed in the mouth. If a toy or part of a toy in
one dimension is smaller than 5 centimeters, it can be placed in the
mouth.
.
8.Exemption
authority for tracking labels requirementSection 14(a)(5) of the Consumer Product
Safety Act (15 U.S.C. 2063(a)(5)) is amended—
(1)by striking
Effective 1 year
and inserting (A) Effective 1
year
;
(2)by redesignating
subparagraphs (A) and (B) as clauses (i) and (ii), respectively; and
(3)by adding at the
end the following:
(B)The Commission may, by regulation, exclude
a specific product or class of products from the requirements in subparagraph
(A) if the Commission determines that it is not practicable for such product or
class of products to bear the marks required by such subparagraph. The
Commission may establish alternative requirements for any product or class of
products excluded under the preceding sentence consistent with the purposes
described in clauses (i) and (ii) of subparagraph
(A).
.
9.Requirements for
public database
(a)Requirements for
submissions to the databaseSection 6A(b) of the Consumer Product
Safety Act (15 U.S.C. 2055a(b)) is amended—
(1)in paragraph
(1)(A)—
(A)in clause (i), by
striking consumers
and inserting persons who suffer harm
or risk of harm related to the use of a product, their next of kin or members
of their household, their legal representative, or another person expressly
authorized by any such person
; and
(B)in clause (v), by
striking public safety entities
and inserting police,
fire, ambulance, emergency medical services, Federal, State, and local law
enforcement entities, and other public safety officials
;
(2)in paragraph
(2)(B)—
(A)in clause (i), by
inserting and its location and availability
after
concerned
;
(B)in clause (iv), by
inserting and if such person is not the person harmed by the product,
the name and contact information of the person who suffered the harm or risk of
harm related to the use of the product
after report
; and
(C)in clause (v), by
inserting that such person is the consumer who used the product that
gave rise to the harm, the user’s next of kin, a member of the user’s
household, the legal representative of the user, another person expressly
authorized by any such person, or a person authorized to submit reports of harm
under paragraph (1)(A) and
after person submitting the
information
; and
(3)in paragraph (6), by inserting or
any person on whose behalf such a report was submitted,
after
paragraph (1)(A),
.
(b)Adequacy and
accuracy of information reported to the public databaseSection
6A(c)(2) of the Consumer Product Safety Act (15 U.S.C. 2055a(c)(2)) is
amended—
(1)in subparagraph
(A), by striking to submit
and all that follows and inserting
to—(i)notify the Commission within 10 business
days after receipt of the report that the information provided in the report is
insufficient for determining which of the manufacturer’s products is the
subject of the complaint, in which case the manufacturer shall provide the
Commission (and the person submitting the complaint, if that person has
consented to disclosure of contact information) with information to assist the
person submitting the report to sufficiently identify or provide an adequate
description of the product;
(ii)notify the Commission within 10 business
days after receipt of the report that the information provided in the report is
materially inaccurate and to provide the Commission with any additional
information supporting the manufacturer’s claim of inaccuracy; and
(iii)submit other comments to the Commission on
the information contained in such
report.
;
and
(2)by redesignating
subparagraphs (B) and (C) as subparagraphs (C) and (D), respectively, and
inserting after subparagraph (A) the following:
(B)
(i)Insufficient
product identificationIf a
manufacturer notifies the Commission of the insufficiency of the product
information in a report pursuant to subparagraph (A)(i), and the Commission
agrees that the information provided is insufficient to identify the product,
the Commission shall provide the information provided by the manufacturer to
the person submitting the report (unless such information has already been
provided directly by the manufacturer) and seek to obtain from such person an
adequate description of the product.
(ii)Materially
inaccurate informationIf a manufacturer notifies the Commission
of a material inaccuracy in a report pursuant to subparagraph (A)(ii), and the
Commission determines that the claim is potentially valid, the Commission shall
seek to resolve the inaccuracy by any of the following:
(I)Obtaining from the
person submitting the report such additional information necessary to correct
the inaccuracy.
(II)Investigating the
incident giving rise to the report in order to correct any such
inaccuracy.
(III)Providing the
manufacturer a reasonable period of time to investigate and provide additional
information to correct any inaccuracy.
(iii)Stay on
inclusion in databaseThe Commission shall not include in the
database a report described in clauses (i) or (ii) until the product is
specifically identified and any material inaccuracy
corrected.
.
(c)Misrepresentation
prohibitedSection 19(a)(13) of the Consumer Product Safety Act
(15 U.S.C. 2068(a)(13)) is amended by inserting related to a submission
of information to the database established under section 6A, or
after
misrepresentation to such an officer or employee
.
10.Section 27(b) of the
Consumer Product Safety Act (15 U.S.C. 2076(b)) is amended—
(1)in paragraph (3),
by inserting and physical
after documentary
;
(2)in paragraph (8),
by striking and
;
(3)by redesignating
paragraph (9) as paragraph (10) and inserting after paragraph (8) the
following:
(9)to delegate to the general counsel of the
Commission the authority to issue subpoenas solely to Federal, State, or local
government agencies for evidence described in paragraph (3);
and
;
and
(4)in paragraph (10)
(as so redesignated), by inserting (except as provided in paragraph
(9))
after paragraph (3)
.
11.Availability of
certain personal and medical information to the CPSCSection 5 of the Consumer Product Safety Act
(15 U.S.C. 2054) is amended by adding at the end the following new
subsection:
(e)Availability of
personal and medical information under HIPAAIn order to carry out its investigative and
enforcement activities under this Act and under any of the Acts enforced by the
Commission, the Commission shall be deemed a public health authority within the
meaning of section 164.512(b)(i) of title 45, Code of Federal Regulations, for
purposes of permitted disclosures of protected health information authorized
under such section.
.
12.Section 14 of the
Consumer Product Safety Act (15 U.S.C. 2063) is further amended by
redesignating the second subsection (d) as subsection (i).
13.Except as provided
otherwise, the amendments made by this Act shall take effect on the date of
enactment of this Act.