[Federal Register Volume 74, Number 25 (Monday, February 9, 2009)]
[Notices]
[Pages 6396-6399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2590]


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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 [email protected].

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