[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