[United States Statutes at Large, Volume 125, 112th Congress, 1st Session]
[From the U.S. Government Publishing Office, www.gpo.gov]


Public Law 112-28
112th Congress

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.

[[Page 274]]

``(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

[[Page 275]]

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

[[Page 276]]

``(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.

[[Page 277]]

``(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.

[[Page 278]]

``(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.

[[Page 279]]

``(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

[[Page 280]]

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

[[Page 281]]

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,

[[Page 282]]

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.

[[Page 283]]

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.

Approved August 12, 2011.

LEGISLATIVE HISTORY--H.R. 2715:
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CONGRESSIONAL RECORD, Vol. 157 (2011):
Aug. 1, considered and passed House and Senate.