[Federal Register Volume 74, Number 247 (Monday, December 28, 2009)]
[Notices]
[Pages 68593-68596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30669]


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CONSUMER PRODUCT SAFETY COMMISSION


Interim Enforcement Policy on Component Testing and Certification 
of Children's Products and Other Consumer Products to the August 14, 
2009 Lead Limits

AGENCY: Consumer Product Safety Commission.

ACTION: Notice.

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SUMMARY: The Consumer Product Safety Commission (``CPSC,'' 
``Commission,'' or ``we'') is announcing an interim enforcement policy 
regarding component testing and certification of children's products 
and other consumer products to the 90 parts per million (ppm) lead in 
paint limit and to the 300 ppm lead limit for children's products 
established in section 101 of the Consumer Product Safety Improvement 
Act of 2008 (``CPSIA'').

DATES: The interim enforcement policy is effective on December 16, 
2009.

FOR FURTHER INFORMATION CONTACT: John ``Gib'' Mullan, Assistant 
Executive Director for Compliance and Field Operations, U.S. Consumer 
Product Safety Commission, 4330 East-West Highway, Bethesda, Maryland 
20814; e-mail [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction

    This statement sets forth the Commission's interim enforcement 
policy with regard to testing and certification of consumer products to 
the lead paint and lead content limits that took effect on August 14, 
2009.\1\ It states the circumstances under which domestic manufacturers 
or importers may certify children's products as in compliance with lead 
limits based on testing, at different times, of components or paints 
used on those products. As explained more fully below in part V of this 
document, a domestic manufacturer or importer may certify compliance 
with lead limits if, for each accessible component and each type of 
paint used on a product, it either obtains passing test results from a 
recognized third-party test laboratory or holds a certificate from 
another person based on passing test results from a recognized third-
party test laboratory.
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    \1\ The Commission voted 5-0 to publish this notice in the 
Federal Register. Commissioner Anne Northup issued a statement, and 
the statement can be found at http://www.cpsc.gov/PR/northup12162009comptest.pdf.
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    To make it easier for interested parties to understand the interim 
enforcement policy's provisions and how certain provisions interact 
with others, we have numbered each paragraph in the interim enforcement 
policy.

II. Lower Limits for Lead in Paint and in Children's Products

    1. On August 14, 2009, the limit for lead in paint and similar 
surface coatings was reduced from 600 parts per million (ppm) to 90 
ppm. Section 101(f)(1) of the Consumer Product Safety Improvement Act 
of 2008 (CPSIA), Public Law No. 110-314 (Aug. 14, 2008) required the 
Commission to modify its pre-existing regulation banning lead in paint 
by decreasing the applicable limit to 90 ppm (see 73 FR 77492 (Dec. 19, 
2008)).
    To simplify discussion, we use the term ``paint'' broadly herein to 
include any type of surface coating that is subject to 16 CFR part 
1303. The new lower limit applies not only to paint sold to consumers 
as such (for example, a gallon of paint sold at a hardware store), but 
also to any paint on toys or other articles for children and to any 
paint on certain household furniture items (not limited to children's 
furniture). See 16 CFR part 1303.
    2. Also on August 14, 2009, the general limit for lead in any 
accessible part of a children's product was reduced from 600 ppm to 300 
ppm (see section 101(a)(2)(B) of the CPSIA). In this context, the term 
``children's product'' means any consumer product that is designed or 
intended primarily for children 12 years of age or younger (see 15 
U.S.C. 2052(a)(2)). Congress set out four factors that must be 
considered in determining whether a consumer product is primarily 
intended for children 12 and under; a statement of the manufacturer's 
intent concerning the appropriate age for users of the product is not 
determinative, but must be considered as one factor if it is 
reasonable. The Commission has promulgated a final rule for determining 
when parts of a children's product may be deemed inaccessible (see 74 
FR 39535 (August 7, 2009)).
    3. The Commission has established higher lead content limits for 
certain electronics components of children's products and has exempted 
certain other electronics components, such as cathode ray tubes, 
altogether (see 74 FR 6990 (February 12, 2009)). The Commission has 
denied exemptions in all other cases that have come before it to date, 
but it has temporarily stayed enforcement of the applicable lead 
content limits for certain metal components of youth motorized vehicles 
and youth bicycles (see 74 FR 22154 (May 12, 2009) (stay of enforcement 
pertaining to youth motorized recreational vehicles)); 74 FR

[[Page 68594]]

31254 (June 30, 2009) (stay of enforcement pertaining to youth bicycles 
and related products)).
    4. Beginning on August 14, 2009, it became unlawful to sell, offer 
for sale, manufacture for sale, distribute in commerce or import into 
the United States any product that is subject to the new lead limits, 
but fails to comply, regardless of when the product was made. Under 
section 101(a)(1) of CPSIA, any children's product containing lead 
above the limit is to be treated as a banned hazardous substance under 
the Federal Hazardous Substances Act. It is unlawful for any person to 
sell, offer for sale, import or distribute a banned hazardous substance 
(see 15 U.S.C. 2068(a)(2)(D); see also 15 U.S.C. 1263(a)). Products 
that do not comply with the applicable lead limits are classified as 
banned hazardous substances and thus are also subject to export 
restrictions (see 15 U.S.C. 2068(a)(15)(A)).

III. Certification Requirements and Effective Dates

    5. Any children's product that bears paint and is manufactured 
after August 14, 2009 must be certified as in compliance with the 90 
ppm lead limit (see 15 U.S.C. 2063(a)(2) and (a)(3)(B)(i)). The 
certification must be based on testing by a third-party conformity 
assessment body listed on CPSC's Web site as qualified to test for lead 
in paint (see http://www.cpsc.gov/cgi-bin/labapplist.aspx and use the 
``Narrow the Laboratory List'' function to identify conformity 
assessment bodies that are accredited to a specific scope). For 
convenience, we use the term ``third-party test lab'' as shorthand for 
``third-party conformity assessment body.'' In addition, we refer to a 
third-party test lab as ``recognized'' when it has been listed on 
CPSC's Web site as qualified to test products for compliance with a 
particular standard, ban or regulation.
    6. The testing and certification requirements for paint sold as 
such and for consumer products that are subject to the lead paint 
limits but are not intended primarily for children age 12 and younger 
(such as certain household furniture items) were stayed by vote of the 
Commission on January 30, 2009 (see 74 FR 6396 (February 9, 2009)). 
With respect to these products, the stay of enforcement relating to the 
lead in paint limit will be lifted as of February 10, 2010. 
Accordingly, such products, if manufactured after that date, will have 
to be certified to the 90 ppm limit based on a test of each product or 
a reasonable testing program (see 15 U.S.C. 2063(a)(1)(A)).
    7. Children's metal jewelry that is manufactured after August 14, 
2009 must be certified as in compliance with the 300 ppm limit on lead 
in any accessible metal part. (The stay of enforcement discussed in 
paragraph 6 does not apply to the certification of metal components of 
children's metal jewelry.) The Commission has promulgated guidance for 
determining when a part is inaccessible (see 74 FR 39535). Neither 
paint nor electroplating may be considered as making underlying 
materials inaccessible (see section 101(b)(3) of the CPSIA). The 
certification must be based on testing by a third-party test lab listed 
on CPSC's Web site as qualified to test for lead in children's metal 
jewelry (see http://www.cpsc.gov/cgi-bin/labapplist.aspx and use the 
``Narrow the Laboratory List'' function to identify conformity 
assessment bodies that are accredited to a specific scope). If the 
children's metal jewelry bears paint, it must also be certified as in 
compliance with the 90 ppm limit, as discussed in paragraph 5.
    8. The Commission has determined that some materials, by their 
nature, will never exceed the lead content limits. These include many 
natural materials such as gemstones, wood, cotton and wool, as well as 
certain refined metals and alloys. For a more complete list of such 
materials, see 74 FR 43031 (August 26, 2009). If all accessible parts 
of a children's product consist of such materials, then that product 
need not be tested or certified as in compliance with the lead content 
limits. The Commission recently issued a ``Statement of Policy on 
Testing and Certification of Lead Content in Children's Products'' (see 
74 FR 55820 (Oct. 29, 2009)).
    9. Children's products other than those described in paragraphs 7 
or 8 must be certified as in compliance with the 300 ppm lead content 
limit only if they are manufactured after February 10, 2011 and only as 
to accessible parts that are not subject to the Commission 
determination described in paragraph 8 above. Pursuant to section 
14(a)(2) of the Consumer Product Safety Act (CPSA), the certification 
must be based on testing by a third-party test lab listed on CPSC's Web 
site as qualified to test for lead in children's products. The 
Commission has issued a notice of requirements for recognizing 
laboratories as qualified to test for lead content in children's 
products (see 74 FR 55820 (October 29, 2009)).
    10. By rule, the Commission has specified that products made within 
the United States must be certified by the domestic manufacturer; 
products made outside the United States must be certified by the 
importer (see 16 CFR 1110.7). Neither a foreign manufacturer nor a 
private labeler is currently required to certify compliance, but either 
may do so voluntarily.

IV. Certification to Lead Paint Limits Based on Testing of Paint 
Samples Not Obtained From the Final Product

    11. In general, certification of children's products must be based 
on testing of samples of the final product, in the same condition as it 
would be in when sold to a consumer, or samples that are ``identical in 
all material respects'' (see 15 U.S.C. 2063(a)(2)(A) (manufacturer must 
provide a test lab with ``sufficient samples of the children's product 
or samples that are identical in all material respects to the 
product'')). In the case of lead paint limits, the manufacturer of a 
children's product can send samples of the final product to a test 
laboratory so that each type of paint may be scraped off and tested 
individually. Where small amounts of a particular paint are used, 
however, a large number of samples of the children's product may be 
needed to obtain enough of that paint to test.
    12. The Commission intends to issue rules addressing when 
certification may be based on testing of paints before they are applied 
to a product rather than based on testing of paints after they have 
been applied to such a product and then scraped off the product. Until 
issuance of such rules, and subject to paragraph 24, the Commission 
will permit certification of a children's product as being in 
compliance with the 90 ppm lead paint limit if, for each paint used on 
the product, the domestic manufacturer or importer who certifies the 
product either has obtained a test report as described in paragraph 13 
or holds a paint certificate as described paragraph 14. The certificate 
accompanying the children's product should list each paint used, by 
color, location or other means, and for each paint, should identify the 
corresponding test report or paint certificate on which the product 
certification is based.
    13. As part of its basis for certification of a children's product 
to the 90 ppm lead in paint limit, a domestic manufacturer or importer 
may rely on a test report showing passing test results for one or more 
paints used on the product, based on testing either of them has 
commissioned from a recognized third-party test lab. The manufacturer 
of the children's product should ensure that each paint sample sent to 
a third-party test lab is representative of that used on the final 
product. Test reports should identify each paint tested by color, 
specification number or other characteristic, as well as the

[[Page 68595]]

manufacturer of the paint and the supplier of the paint (if different).
    14. As part of its basis for certification of a children's product 
to the 90 ppm lead in paint limit, a domestic manufacturer or importer 
may rely on a certificate from another person certifying that paint 
complies with the 90 ppm lead limit. The paint certificate must be 
based on testing of a representative sample of one or more paints 
conducted by a recognized third-party test lab. The paint certificate 
should identify all test reports underlying the certification, 
consistent with section 14 of the CPSA, 15 U.S.C. 2063.
    15. Any person who certifies a children's product as complying with 
the 90 ppm lead paint limit should be able to trace each batch of paint 
that is used on the product to the paint manufacturer. The product 
manufacturer should ensure that paints meeting the lead limits when 
tested and certified are not later contaminated with lead from other 
sources before or during application to the product.
    16. To be ``representative'' for purposes of paragraphs 13 and 14, 
a paint sample need not be of the same quantity as is applied to the 
children's product nor must it be painted on the same substrate 
material; rather, it may consist of any quantity of paint that is 
sufficient for testing purposes, either in liquid form or in the form 
of dried film of the paint on any substrate. In all other respects, the 
sample should have the same composition as the paint used on the final 
product. For example, if the manufacturer of a children's product uses 
a drying agent that mixes with the paint, then the test sample should 
reflect that mixture.
    17. For consumer products that are not children's products but are 
subject to lead paint limits (such as certain furniture items), a 
domestic manufacturer or importer may base its certification to the 90 
ppm lead paint limit (when required as explained in paragraph 6 above) 
on its own testing of each paint used on the product, on testing by any 
third-party test lab, on paint certification(s) from any person or on a 
combination of these methods.

V. Certification to Lead Content Limits for Children's Metal Jewelry 
and Other Children's Products Based on Component Testing

    18. The Commission intends to issue rules addressing when 
children's products may be certified to lead content limits based on 
testing of components separately from the final product. (The 
Commission staff has previously stated that it would accept 
certification of a children's product to lead content limits based on 
testing of individual components in the case of products, such as 
building sets, which consist of an ``assortment'' of individual pieces. 
In such cases, the certificate should identify the test information for 
each piece.)
    Until such rulemaking is completed, subject to paragraph 24, the 
Commission will permit certification of a children's product as being 
in compliance with the 300 ppm lead content limit (when required as 
discussed in paragraphs 7 and 9 above) if, for each accessible 
component of the product, the domestic manufacturer or importer who 
certifies the product either has obtained a test report as described in 
paragraph 19 or holds a component certificate as described in paragraph 
20. The certificate accompanying the children's product should list 
each component required to be tested by part number or other 
specification and for each such part, should identify the corresponding 
test report or component certificate on which product certification is 
based. The determination of which, if any, parts are inaccessible must 
be based on an evaluation of the final product, not of individual 
components.
    19. As part of its basis for certification of a children's product 
to the 300 ppm lead content limit, a domestic manufacturer or importer 
may rely on a test report showing passing test results for one or more 
components used on the product, based on testing either of them has 
commissioned from a recognized third-party test lab. For each type of 
component to be tested, the manufacturer of the children's product 
should draw a random sample from the batch or lot of such components to 
be used in making the final product. Test reports should identify each 
component tested, by part number or other specification, as well as the 
manufacturer of the component and the supplier (if different).
    20. As part of its basis for certification of a children's product 
to the 300 ppm lead content limit, a domestic manufacturer or importer 
may rely on a certificate from another person certifying that a 
component complies with the 300 ppm lead limit. The component 
certificate must be based on testing of a representative sample of the 
component(s) by a recognized third-party test lab. The component 
certificate should identify all test reports underlying the 
certification consistent with section 14 of the CPSA, 15 U.S.C. 2063.
    21. Any person who certifies a children's product as complying with 
the lead content limits should be able to trace each component of the 
product to the component's manufacturer.
    22. To be ``representative'' of a component for purposes of 
paragraph 20, a sample need not be of the same size, shape or finish 
condition as the component of the final product; rather, it may consist 
of any quantity that is sufficient for testing purposes and in any form 
that has the same content as the component of the final product. For 
example, if a manufacturer receives plastic resins or compounds from a 
supplier in a raw state, such as pellets, that are later molded into a 
component or a finished children's product in the manufacturing 
process, the manufacturer may send the third-party test lab samples of 
the plastic either in the form received or in their finished state. The 
manufacturer must take care, however, that the manufacturing process 
does not add lead from an untested source, such as the material hopper, 
regrind equipment, or other equipment used in the assembly of the 
finished product.

VI. Composite Testing

    23. In testing paints for compliance with lead limits, third-party 
test labs may test a combination of different paint samples so long as 
they follow procedures ensuring that no failure to comply with the lead 
limits will go undetected. For an example of an acceptable methodology, 
see Test Method: CPSC-CH-E1003-09, Standard Operating Procedure for 
Determining Lead (Pb) in Paint and Other Similar Surface Coatings 
(April 26, 2009) (available on the Internet at http://www.cpsc.gov/about/cpsia/CPSC-CH-E1003-09.pdf). Similarly, third-party test labs may 
test a combination of plastic components or a combination of metal 
components so long as they follow procedures ensuring that no failure 
to comply with the lead limits will go undetected.

VII. Requirement That Reliance Be Reasonable

    24. No person may rely on a test report, a paint certificate or a 
component certificate, nor certify a product based on such a test 
report or certificate, if such person knows, or in the exercise of due 
care has reason to know, that the test report or certificate is false 
or misleading in any material respect.

VIII. Enforcement Policy

    25. A domestic manufacturer or importer who certifies a children's 
product as in compliance with lead limits based on component testing in 
accordance with this policy statement

[[Page 68596]]

shall not be subject to civil or criminal penalties for failure to 
certify or for false certification on the grounds of having certified 
to such limits without submitting samples of the final children's 
product (i.e., the product in its entirety) for testing. A retailer or 
other seller of a product who holds a certificate based on component 
testing in accordance with this policy statement may rely upon it to 
the same extent as if it had been based on testing of the final 
product. Any person who issues a false or misleading certificate for 
any paint or component is subject to penalties.

IX. Disclaimer

    26. Certification of a product in accordance with all conditions of 
this policy statement does not exempt any manufacturer (including an 
importer) from the duty to ensure that each product unit manufactured 
or imported complies with all applicable lead limits, nor from the duty 
to report to the Commission immediately should it obtain information 
which reasonably supports the conclusion that such product fails to 
comply with applicable lead limits.

X. Delegation

    27. The Commission hereby delegates to the Assistant Executive 
Director, Office of Compliance and Field Operations, authority to 
implement this policy and to depart from the policy in individual cases 
if warranted by unusual circumstances. The Assistant Executive Director 
shall notify the Commission promptly where he deems it advisable to 
depart from the policy in individual cases.

XI. Effective Dates

    28. This interim statement of policy will take effect immediately 
upon approval by the Commission. It supersedes: (1) The ``Statement of 
Commission Enforcement Policy on Section 101 Lead Limits'' announced on 
February 6, 2009 (available on the Internet at http://www.cpsc.gov/about/cpsia/101lead.pdf); and (2) the ``Interim Enforcement Policy for 
Children's Metal Jewelry Containing Lead'' issued February 3, 2005 
(available on the Internet at http://www.cpsc.gov/BUSINFO/pbjewelgd.pdf). This interim policy shall remain in effect until it is 
revoked, modified or superseded by Commission vote.

    Dated: December 18, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E9-30669 Filed 12-24-09; 8:45 am]
BILLING CODE 6355-01-P