[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2715 Engrossed in House (EH)]
112th CONGRESS
1st Session
H. R. 2715
_______________________________________________________________________
AN ACT
To provide the Consumer Product Safety Commission with greater
authority and discretion in enforcing the consumer product safety laws,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. LIMITATION ON LEAD IN CHILDREN'S PRODUCTS.
(a) Prospective Application of Lead Limit for Children's
Products.--Section 101(a) of the Consumer Product Safety Improvement
Act of 2008 (15 U.S.C. 1278a(a)) is amended by adding at the end the
following:
``(3) Application.--Each limit set forth in paragraph (2)
(except for the limit set forth in subparagraphs (A) and (B))
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.''.
(b) Alternative Limits and Exceptions.--Section 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) In general.--The Commission, on its own
initiative or upon petition by an interested party,
shall grant an exception to the limit in subsection (a)
for a specific product, class of product, material, or
component part if the Commission, after notice and a
hearing, determines that--
``(i) the product, class of product,
material, or component part requires the
inclusion of lead because it is not practicable
or not technologically feasible to manufacture
such product, class of 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, class of 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, class of product,
material, or component part by a child; and
``(iii) an exception for the product, class
of 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.
``(B) Measurement.--For purposes of subparagraph
(A)(iii), there is no measurable adverse effect on
public health or safety if the exception described in
subparagraph (A) will result in no measurable increase
in blood lead levels of a child. The Commission may
adopt an alternative method of measurement other than
blood lead levels if it determines, after notice and a
hearing, that such alternative method is a better
scientific method for measuring adverse effect on
public health and safety.
``(C) Procedures for granting exception.--
``(i) Burden of proof.--A party seeking an
exception under subparagraph (A) has the burden
of demonstrating that it meets the requirements
of such subparagraph.
``(ii) Grounds for decision.--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 a hearing.
``(iii) Admissible evidence.--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.
``(iv) Scope of exception.--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.
``(D) Limitation on exception.--If the Commission
grants an exception for a product, class of product,
material, or component part under subparagraph (A), the
Commission may, as necessary to protect public health
or safety--
``(i) establish a lead limit that such
product, class of product, material, or
component part may not exceed; or
``(ii) place a manufacturing expiration
date on such exception or establish a schedule
after which the manufacturer of such product,
class of product, material, or component part
shall be in full compliance with the limit
established under clause (i) or the limit set
forth in subsection (a).
``(E) Application of exception.--An exception under
subparagraph (A) for a product, class of product,
material, or component part shall apply regardless of
the date of manufacture unless the Commission expressly
provides otherwise.
``(F) Previously submitted petitions.--A 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 (C)(i).'';
(2) in paragraph (2)(A), by striking ``include to,'' and
inserting ``include''; and
(3) by redesignating paragraph (5) as paragraph (8) and
inserting after paragraph (4) the following:
``(5) Exception for off-highway vehicles.--
``(A) In general.--Subsection (a) shall not apply
to an off-highway vehicle.
``(B) Off-highway vehicle defined.--For purposes of
this section, the term `off-highway vehicle'--
``(i) means any motorized vehicle--
``(I) that is manufactured
primarily for use off public streets,
roads, and highways;
``(II) designed to travel on 2, 3,
or 4 wheels; and
``(III) that has either--
``(aa) a seat designed to
be straddled by the operator
and handlebars for steering
control; or
``(bb) a nonstraddle seat,
steering wheel, seat belts, and
roll-over protective structure;
and
``(ii) includes a snowmobile.
``(6) Bicycles and related products.--In lieu of the lead
limits established in subsection (a)(2), the limits set forth
for each respective material in the notice of the Commission
entitled `Notice of Stay of Enforcement Pertaining to Bicycles
and Related Products', published June 30, 2009 (74 Fed. Reg.
31254), shall apply to any metal component part of the products
to which the stay of enforcement described in such notice
applies, except that after December 31, 2011, the limits set
forth in such notice shall not be more than 300 parts per
million total lead content by weight for any metal component
part of the products to which such stay pertains.
``(7) Exclusion of certain used children's products.--
``(A) General exclusion.--The lead limits
established under subsection (a) shall not apply to a
used children's product.
``(B) Definition.--In this paragraph, the term
`used children's product' means a children's product
(as defined in section 3(a) of the Consumer Product
Safety Act (15 U.S.C. 2052(a)) 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;
``(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; or
``(iii) any other children's product or
product category that the Commission
determines, after notice and a hearing.
For purposes of this definition, the term `seller'
includes a person who lends or donates a used
children's product.''.
SEC. 2. APPLICATION OF THIRD PARTY TESTING REQUIREMENTS.
(a) In General.--Section 14(d) of the Consumer Product Safety Act
(15 U.S.C. 2063(d)) is amended--
(1) in paragraph (2)(B)(ii), by striking ``random'' and
inserting ``representative''; and
(2) by adding at the end the following:
``(3) Reducing third party testing burdens.--
``(A) Assessment.--Not later than 60 days after the
date of enactment of this paragraph, the Commission
shall seek public comment on opportunities to reduce
the cost of third party testing requirements consistent
with assuring compliance with any applicable consumer
product safety rule, ban, standard, or regulation. The
request for public comment shall include the following:
``(i) The extent to which the use of
materials subject to regulations of another
government agency that requires third party
testing of those materials may provide
sufficient assurance of conformity with an
applicable consumer product safety rule, ban,
standard, or regulation without further third
party testing.
``(ii) The extent to which modification of
the certification requirements may have the
effect of reducing redundant third party
testing by or on behalf of 2 or more importers
of a product that is substantially similar or
identical in all material respects.
``(iii) The extent to which products with a
substantial number of different components
subject to third party testing may be evaluated
to show compliance with an applicable rule,
ban, standard, or regulation by third party
testing of a subset of such components selected
by a third party conformity assessment body.
``(iv) The extent to which manufacturers
with a substantial number of substantially
similar products subject to third party testing
may reasonably make use of sampling procedures
that reduce the overall test burden without
compromising the benefits of third party
testing.
``(v) The extent to which evidence of
conformity with other national or international
governmental standards may provide assurance of
conformity to consumer product safety rules,
bans, standards, or regulations applicable
under this Act.
``(vi) The extent to which technology,
other than the technology already approved by
the Commission, exists for third party
conformity assessment bodies to test or to
screen for testing consumer products subject to
a third party testing requirement.
``(vii) Other techniques for lowering the
cost of third party testing consistent with
assuring compliance with the applicable
consumer product safety rules, bans, standards,
and regulations.
``(B) Regulations.--Following the public comment
period described in subparagraph (A), but not later
than 1 year after the date of enactment of this
paragraph, the Commission shall review the public
comments and may prescribe new or revised third party
testing regulations if it determines that such
regulations will reduce third party testing costs
consistent with assuring compliance with the applicable
consumer product safety rules, bans, standards, and
regulations.
``(C) Report.--If the Commission determines that it
lacks authority to implement an opportunity for
reducing the costs of third-party testing consistent
with assuring compliance with the applicable consumer
product safety rules, bans, standards, and regulations,
it shall transmit a report to Congress reviewing those
opportunities, along with any recommendations for any
legislation to permit such implementation.
``(4) Special rules for small batch manufacturers.--
``(A) Special consideration; exemption.--
``(i) Consideration; alternative
requirements.--Subject to subparagraph (C), in
implementing third party testing requirements
under this section, the Commission shall take
into consideration any economic,
administrative, or other limits on the ability
of small batch manufacturers to comply with
such requirements and shall, after notice and a
hearing, provide alternative testing
requirements for covered products manufactured
by small batch manufacturers in lieu of those
required under subsection (a) or (b). Any such
alternative requirements shall provide for
reasonable methods to assure compliance with
any applicable consumer product safety rule,
ban, standard, or regulation. The Commission
may allow such alternative testing requirements
for small batch manufacturers with respect to a
specific product or product class or with
respect to a specific safety rule, ban,
standard, or regulation, or portion thereof.
``(ii) Exemption.--If the Commission
determines that no alternative testing
requirement is available or economically
practicable, it shall exempt small batch
manufacturers from third party testing
requirements under subsections (a) and (b).
``(iii) Certification.--In lieu of or as
part of any alternative testing requirements
provided under clause (i), the Commission may
allow certification of a product to an
applicable consumer product safety rule, ban,
standard, or regulation, or portion thereof,
based on documentation that the product
complies with another national or international
governmental standard or safety requirement
that the Commission determines is the same or
more stringent than the consumer product safety
rule, ban, standard, or regulation, or portion
thereof. Any such certification shall only be
allowed to the extent of the equivalency with a
consumer product safety rule, ban, standard, or
regulation and not to any other part of the
consumer product safety rule, ban, standard, or
regulation.
``(iv) Restriction.--Except as provided in
subparagraph (C), and except where the
Commission determines that the manufacturer
does not meet the definition of a small batch
manufacturer, for any small batch manufacturer
registered pursuant to subparagraph (B), the
Commission may not require third party testing
of a covered product by a third party
conformity assessment body until the Commission
has provided either an alternative testing
requirement or an exemption in accordance with
clause (i) or (ii), respectively.
``(B) Registration.--Any small batch manufacturer
that utilizes alternative requirements or an exemption
under this paragraph shall register with the Commission
prior to using such alternative requirements or
exemptions pursuant to any guidelines issued by the
Commission to carry out this requirement.
``(C) Limitation.--The Commission shall not provide
or permit to continue in effect any alternative
requirements or exemption from third party testing
requirements under this paragraph where it determines,
based on notice and a hearing, that full compliance
with subsection (a) or (b) is reasonably necessary to
protect public health or safety. The Commission shall
not provide any alternative requirements or exemption
for--
``(i) any of the third party testing
requirements described in clauses (i) through
(v) of subsection (a)(3)(B); or
``(ii) durable infant or toddler products,
as defined in section 104(f) of the Consumer
Product Safety Improvement Act of 2008 (15
U.S.C. 2056a(f)).
``(D) Subsequent manufacturer.--Nothing in this
paragraph shall be construed to affect third party
testing or any other requirements with respect to a
subsequent manufacturer or other entity that uses
components provided by one or more small batch
manufacturers.
``(E) Definitions.--For purposes of this
paragraph--
``(i) the term `covered product' means a
consumer product manufactured by a small batch
manufacturer where no more than 7,500 units of
the same product were manufactured in the
previous calendar year; and
``(ii) the term `small batch manufacturer'
means a manufacturer that had no more than
$1,000,000 in total gross revenue from sales of
all consumer products in the previous calendar
year. The dollar amount contained in this
paragraph shall be adjusted annually by the
percentage increase in the Consumer Price Index
for all urban consumers published by the
Department of Labor.
For purposes of determining the total gross revenue for
all sales of all consumer products of a manufacturer
under this subparagraph, such total gross revenue shall
be considered to include all gross revenue from all
sales of all consumer products of each entity that
controls, is controlled by, or is under common control
with such manufacturer. The Commission shall take steps
to ensure that all relevant business affiliations are
considered in determining whether or not a manufacturer
meets this definition.
``(5) Exclusion from third party testing.--
``(A) Certain printed materials.--
``(i) In general.--The third party testing
requirements established under subsection (a)
shall not apply to ordinary books or ordinary
paper-based printed materials.
``(ii) Definitions.--
``(I) Ordinary book.--The term
`ordinary book' means a book printed on
paper or cardboard, printed with inks
or toners, and bound and finished using
a conventional method, and that is
intended to be read or has educational
value. Such term does not include books
with inherent play value, books
designed or intended for a child 3
years of age or younger, and does not
include any toy or other article that
is not a book that is sold or packaged
with an ordinary book.
``(II) Ordinary paper-based printed
materials.--The term `ordinary paper-
based printed materials' means
materials printed on paper or
cardboard, such as magazines, posters,
greeting cards, and similar products,
that are printed with inks or toners
and bound and finished using a
conventional method.
``(III) Exclusions.--Such terms do
not include books or printed materials
that contain components that are
printed on material other than paper or
cardboard or contain nonpaper-based
components such as metal or plastic
parts or accessories that are not part
of the binding and finishing materials
used in a conventional method.
``(B) Metal component parts of bicycles.--The third
party testing requirements established under subsection
(a) shall not apply to metal component parts of
bicycles with respect to compliance with the lead
content limits in place pursuant to section 101(b)(6)
of the Consumer Product Safety Improvement Act of
2008.''.
(b) Prohibited Act.--Section 19(a)(14) of the Consumer Product
Safety Act (15 U.S.C. 2068(a)(14)) is amended by striking the period
and inserting ``, or to subdivide the production of any children's
product into small quantities that have the effect of evading any third
party testing requirements under section 14(a)(2);''.
SEC. 3. APPLICATION OF AND PROCESS FOR UPDATING DURABLE NURSERY
PRODUCTS STANDARDS.
(a) Updating Standard.--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 standard.--
When 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
standard.--If an organization revises a standard that
has been adopted, in whole or in part, as a consumer
product safety standard under this subsection, 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) Application of Standard.--Section 104(c) of the Consumer
Product Safety Improvement Act of 2008 (15 U.S.C. 2056a(c)) is amended
by redesignating paragraph (3) as paragraph (4) and inserting after
paragraph (2) the following:
``(3) Application of any revision.--With respect to any
revision of the standard promulgated under subsection (b)(1)(B)
subsequent to the initial promulgation of a standard under such
subsection, paragraph (1) shall apply only to a person that
manufactures or imports cribs, unless the Commission determines
that application to any other person described in paragraph (2)
is necessary to protect against an unreasonable risk to health
or safety. If the Commission determines that application to a
person described in paragraph (2) is necessary, it shall
provide not less than 12 months for such person to come into
compliance.''.
SEC. 4. APPLICATION OF SECTION 106 TO FDA-REGULATED PRODUCTS.
Section 106(a) of the Consumer Product Safety Improvement Act of
2008 (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''.
SEC. 5. APPLICATION OF PHTHALATES LIMIT.
(a) Accessible, Plasticized Component Parts.--Section 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 (e) through (g), respectively; and
(2) by inserting after subsection (b) the following:
``(c) Application.--Effective 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 plasticized component part of a children's
toy or child care article or any other component part of a children's
toy or child care article that is made of other materials that may
contain phthalates.
``(d) Exclusion for Inaccessible Component Parts.--
``(1) In general.--The prohibitions established under
subsections (a) and (b) shall not apply to any component part
of a children's toy or child care article that is not
accessible to a child through normal and reasonably foreseeable
use and abuse of such product, as determined by the Commission.
A component part is not accessible under this paragraph if such
component part is not physically exposed by reason of a sealed
covering or casing and does not become physically exposed
through reasonably foreseeable use and abuse of the product.
Reasonably foreseeable use and abuse shall include swallowing,
mouthing, breaking, or other children's activities, and the
aging of the product.
``(2) Limitation.--The Commission may revoke an exclusion
or all exclusions granted under paragraph (1) at any time and
require that any or all component parts manufactured after such
exclusion is revoked comply with the prohibitions established
under subsections (a) and (b) if the Commission finds, based on
scientific evidence, that such compliance is necessary to
protect the public health or safety.
``(3) Inaccessibility proceeding.--Within 1 year after the
date of enactment of this subsection, the Commission shall--
``(A) promulgate a rule providing guidance with
respect to what product components, or classes of
components, will be considered to be inaccessible for
purposes of paragraph (1); or
``(B) adopt the same guidance with respect to
inaccessibility that was adopted by the Commission with
regards to accessibility of lead under section
101(b)(2)(B), with additional consideration, as
appropriate, of whether such component can be placed in
a child's mouth.
``(4) Application pending commission guidance.--Until the
Commission promulgates a rule pursuant to paragraph (3), the
determination of whether a product component is inaccessible to
a child shall be made in accordance with the requirements laid
out in paragraph (1) for considering a component to be
inaccessible to a child.''.
SEC. 6. AUTHORITY TO MODIFY TRACKING LABELS REQUIREMENT.
Section 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).''.
SEC. 7. IMPROVED PRODUCT IDENTIFICATION FOR PUBLIC DATABASE.
Section 6A(c) of the Consumer Product Safety Act (15 U.S.C.
2055a(c)) is amended--
(1) in paragraph (3)(A), by inserting ``or paragraph (5)''
after ``paragraph (4)(A)'';
(2) in paragraph (4)(A), by striking ``determines that the
information in such report or comment is materially inaccurate,
the Commission shall--'' and inserting ``receives notice that
the information in such report or comment is materially
inaccurate, the Commission shall stay the publication of the
report on the database as required under paragraph (3) for a
period of no more than 5 additional days. If the Commission
determines that the information in such report or comment is
materially inaccurate, the Commission shall--''; and
(3) by adding at the end the following new paragraph:
``(5) Obtaining certain product identification
information.--
``(A) In general.--If the Commission receives a
report described in subsection (b)(1)(A) that does not
include the model or serial number of the consumer
product concerned, the Commission shall seek from the
individual or entity submitting the report such model
or serial number or, if such model or serial number is
not available, a photograph of the product. If the
Commission obtains information relating to the serial
or model number of the product or a photograph of the
product, it shall immediately forward such information
to the manufacturer of the product. The Commission
shall make the report available in the database on the
15th business day after the date on which the
Commission transmits the report under paragraph (1) and
shall include in the database any additional
information about the product obtained under this
paragraph.
``(B) Rule of construction.--Nothing in this
paragraph shall be construed to--
``(i) permit the Commission to delay
transmission of the report under paragraph (1)
until the Commission has obtained the model or
serial number or a photograph of the consumer
product concerned; or
``(ii) make inclusion in the database of a
report described in subsection (b)(1)(A)
contingent on the availability of the model or
serial number or a photograph of the consumer
product concerned.''.
SEC. 8. SUBPOENA AUTHORITY.
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)''.
SEC. 9. DEADLINE FOR RULE BY CONSUMER PRODUCT SAFETY COMMISSION ON
STANDARDS FOR ALL TERRAIN VEHICLES.
The Commission shall issue the final rule described in section
42(d) of the Consumer Product Safety Act (15 U.S.C. 2089(d)) not later
than 1 year after the date of enactment of this Act.
SEC. 10. TECHNICAL AMENDMENTS.
(a) CPSA.--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).
(b) CPSIA.--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)))''.
SEC. 11. EFFECTIVE DATE.
Except as provided otherwise, the amendments made by this Act shall
take effect on the date of enactment of this Act.
Passed the House of Representatives August 1, 2011.
Attest:
Clerk.
112th CONGRESS
1st Session
H. R. 2715
_______________________________________________________________________
AN ACT
To provide the Consumer Product Safety Commission with greater
authority and discretion in enforcing the consumer product safety laws,
and for other purposes.