[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Proposed Rules]
[Page 2433-2435]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-56]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
Children's Products Containing Lead; Proposed Determinations
Regarding Lead Content Limits on Certain Materials or Products; Notice
of Proposed Rulemaking
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: On August 14, 2008, Congress enacted the Consumer Product
Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, 122 Stat.
3016. This notice of proposed rulemaking (NPR) initiates a proceeding
under section 3 of the CPSIA authorizing the Commission to issue
regulations, as necessary, to implement the CPSIA. In this document,
the Commission solicits written comments concerning preliminary
determinations on certain natural, untreated and unadulterated
materials and metals that have not been found to exceed the lead
content limits prescribed under section 101(a) of the CPSIA.
DATES: Written comments and submissions in response to this notice must
be received by February 17, 2009.
ADDRESSES: Comments should be e-mailed to
Sec101Determinations@cpsc.gov. Comments should be captioned ``Section
101 Determinations of Certain Materials or Products NPR.'' Comments may
also be mailed, preferably in five copies, to the Office of the
Secretary, Consumer Product Safety Commission, Room 502, 4330 East West
Highway, Bethesda, Maryland 20814, or delivered to the same address
(telephone (301) 504-7923). Comments also may be filed by facsimile to
(301) 504-0127.
FOR FURTHER INFORMATION CONTACT: Kristina Hatlelid, PhD, M.P.H.,
Directorate for Health Sciences, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, Maryland 20814; telephone (301) 504-
7254, e-mail khatlelid@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Under section 101(a) of CPSIA, consumer products designed or
intended primarily for children 12 years old and younger that do not
contain more than 600 ppm of lead (as of February 10, 2009), 300 ppm of
lead (as of August 14, 2009); 100 ppm after three years (as of August
14, 2011), unless the Commission determines that it is not
technologically feasible to have this lower limit, are not considered
to be banned hazardous substances under the Federal Hazardous
Substances Act (FHSA). However, in the absence of Commission action,
these products and materials remain subject to the testing requirements
of section 102 of the CPSIA (codified at Sec. 14 of the Consumer
Product Safety Act (CPSA)).
Under these provisions, on and after February 10, 2009, general
conformity certificates certifying that they comply with the applicable
lead content limit are required for children's products. The
certification must be based on tests of each product or a reasonable
testing program. On and after August 14, 2009, absent Commission action
to the contrary, the certificates must be based on testing performed by
a laboratory whose accreditation to perform the testing has been
accepted by the Commission.
Section 3 of the CPSIA grants the Commission general rulemaking
authority to issue regulations, as necessary, to implement the CPSIA.
There may be certain products or materials that inherently do not
contain lead or contain lead at levels that do not exceed the lead
content limits under section 101(a) of the CPSIA. To the extent that
such materials or products exist, the Commission, of its own
initiative, is proposing to exercise its section 3 authority to make
preliminary determinations that certain commodities or classes of
materials or products do not exceed the lead limits prescribed in
section 101(a) of the CPSIA. The effect of such a Commission finding
would be to relieve the material or product from the testing
requirement of section 102 of the CPSIA for purposes of supporting the
required certification. Of course even where a material or product has
been so relieved of the testing requirement, it must still meet the
statutory lead level requirements in actual fact. The Commission will
obtain and test products in the marketplace to assure that this remains
the case and will take appropriate enforcement action in situations
where that is not the case.
B. Proposed Determinations on Certain Products and Materials
The Commission staff identified a number of commodities or classes
of materials that do not inherently contain lead or contain lead that
does not exceed the CPSIA lead limits of 600 ppm or 300 ppm.
Certain Natural Materials
Based on the staff's review, the Commission preliminarily
determines that the following natural materials do not exceed the 600
ppm or 300 ppm lead content limits under section 101(a) of the CPSIA.
These preliminary determinations are based on materials that are
untreated and unadulterated with respect to the addition of materials
or chemicals, including pigments, dyes, coatings, finishes or any other
substance, and that do not undergo any processing that could result in
the addition of lead into the product or material:
1. Precious gemstones: Diamond, ruby, sapphire, emerald
2. Certain semiprecious gemstones provided that the mineral or
material is not based on lead or lead compounds and is not associated
in nature with any mineral that is based on lead or lead compounds
(minerals that contain lead or are associated in nature with minerals
that contain lead include, but are not limited to, the following:
Aragonite, bayldonite, boleite, cerussite, crocoite, linarite,
mimetite, phosgenite, vanadinite, and wulfenite)
3. Natural or cultured pearls
4. Wood
[[Page 2434]]
5. Natural fibers such as cotton, silk, wool, hemp, flax, linen
6. Other natural materials including coral, amber, feathers, fur,
untreated leather
Certain Metals and Alloys
Based on the staff's review, the Commission preliminarily
determines that the following metals and alloys do not exceed the 600
ppm or 300 ppm lead content limits under section 101(a) of the CPSIA
provided that no lead or lead-containing metal is intentionally added:
1. Surgical steel
2. Precious metals: Gold (at least 10 karat); sterling silver (at
least 925/1000); platinum; palladium; rhodium; osmium; iridium;
ruthenium
The preliminary determinations do not extend to the non-steel or
non-precious metal components of a product, such as solder or base
metals in electroplate, clad, or fill applications.
C. Requests for Comments
All interested persons are invited to submit to the Commission
their comments and data concerning the Commission's preliminary
determinations on the listed natural materials and metals and alloys.
In particular, the Commission invites interested persons to submit any
test results showing that substances covered by the proposed rule had
lead exceeding the lead limits in section 101(a) of the CPSIA. In
addition, the Commission seeks comments on:
Other natural fibers that would not exceed the lead
content limits
Other natural materials that would not exceed the lead
content limits
Other metals or alloys that would not exceed the lead
content limits
Other materials, which by their nature, would not exceed
the lead content limits.
Comments should be e-mailed to Sec101Determinations@cpsc.gov. Comments
should be captioned ``Section 101 Determinations of Certain Materials
or Products NPR.'' Comments may also be mailed, preferably in five
copies, to the Office of the Secretary, Consumer Product Safety
Commission, Room 502, 4330 East West Highway, Bethesda, Maryland 20814,
or delivered to the same address (telephone (301) 504-7923). Comments
also may be filed by facsimile to (301) 504-0127. All comments and
submissions should be received no later than February 17, 2009.
D. Impact on Small Businesses
Under the Regulatory Flexibility Act (RFA), when an agency issues a
proposed rule, it generally must prepare an initial regulatory
flexibility analysis describing the impact the proposed rule is
expected to have on small entities. 5 U.S.C. 603. The RFA does not
require a regulatory flexibility analysis if the head of the agency
certifies that the rule will not have a significant effect on a
substantial number of small entities.
The Commission's Directorate for Economic Analysis prepared a
preliminary assessment of the impact of relieving certain materials or
products from the testing requirements of section 102 of the CPSIA if
they were found to be inherently under the lead content limits
prescribed. The number of small businesses that will be directly
affected by the rule is unknown but could be considerable. However, it
will not result in any increase in the costs of production for any
firm. Its only effect on businesses, including small businesses, will
be to reduce the costs that would have been associated with testing the
materials under section 102 of the CPSIA. Based on the foregoing
assessment, the Commission preliminarily finds that the proposed rule
would not have a significant impact on a substantial number of small
entities.
E. Environmental Considerations
Generally, CPSC rules are considered to ``have little or no
potential for affecting the human environment,'' and environmental
assessments are not usually prepared for these rules (see 16 CFR
1021.5(c)(1)). The proposed rule will not result in any additional lead
in the environment since such materials do not contain lead or contain
lead at levels that do not exceed the CPSIA limits. Therefore, the
Commission does not expect the proposed rule to have any negative
environmental impact.
F. Executive Orders
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations. The preemptive effect of regulations such as this proposal
is stated in section 18 of the FHSA. 15 U.S.C. 1261n.
G. Effective Date
The Administrative Procedure Act requires that a substantive rule
must be published not less than 30 days before its effective date,
unless the rule relieves a restriction. 5 U.S.C. 553(d)(1). Because the
proposed rule would provide relief from existing testing requirements
under the CPSIA, the proposed effective date is the date of publication
of a final rule in the Federal Register.
H. List of Relevant Documents
(1) Memorandum from Kristina M. Hatlelid, PhD, M.P.H.,
Toxicologist, Directorate for Health Sciences ``Consumer Product Safety
Improvement Act of 2008 (CPSIA): Certain Materials or Products that Do
Not Exceed the Limits for Lead Content.'' December 2008.
(2) Memorandum from Robert Franklin, Economist, Directorate for
Economic Analysis, ``Preliminary regulatory analysis of a rule making
determinations that certain materials or products do not have lead
contents that exceed the limits established in section 101(a) of the
CPSIA.'' December 2008.
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, and Toys.
I. Conclusion
For the reasons stated above, the Commission proposes to amend
title 16 of the Code of Federal Regulations as follows:
PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND
ENFORCEMENT REGULATIONS
1. The authority for part 1500 is amended to read as follows:
Authority: 15 U.S.C. 1261-1278, 122 Stat. 3016.
2. Add a new Sec. 1500.91 to read as follows:
Sec. 1500.91 Determinations Regarding Lead Content for Certain
Materials or Products under Section 101 of the Consumer Product Safety
Improvement Act.
(a) The Consumer Product Safety Improvement Act provides for
specific lead limits in children's products. Section 101(a) of the
CPSIA provides that by February 10, 2009, products designed or intended
primarily for children 12 and younger may not contain more than 600 ppm
of lead. After August 14, 2009, products designed or intended primarily
for children 12 and younger cannot contain more than 300 ppm of lead.
On August 14, 2011, the limit may be further reduced to 100 ppm, unless
the Commission determines that it is not technologically feasible to
have this lower limit. Paint, coatings or electroplating may not be
considered a barrier that would make the lead content of a product
inaccessible to a child.
(b) Section 3 of the CPSIA grants the Commission general rulemaking
[[Page 2435]]
authority to issue regulations, as necessary, either on its own
initiative or upon the request of any interested person, to make a
determination that a material or product does not exceed the lead
limits as provided under paragraph (a) of this section.
(c) The following natural materials do not exceed the 600 ppm or
300 ppm lead content limits under section 101(a) of the CPSIA provided
that these materials have neither been treated or adulterated with the
addition of materials or chemicals such as pigments, dyes, coatings,
finishes or any other substance, nor undergone any processing that
could result in the addition of lead into the product or material:
(1) Precious gemstones: Diamond, ruby, sapphire, emerald.
(2) Semiprecious gemstones provided that the mineral or material is
not based on lead or lead compounds and is not associated in nature
with any mineral that is based on lead or lead compounds (minerals that
contain lead or are associated in nature with minerals that contain
lead include, but are not limited to, the following: Aragonite,
bayldonite, boleite, cerussite, crocoite, linarite, mimetite,
phosgenite, vanadinite, and wulfenite).
(3) Natural or cultured pearls.
(4) Wood.
(5) Natural fibers such as cotton, silk, wool, hemp, flax, linen.
(6) Other natural materials including coral, amber, feathers, fur,
untreated leather.
(d) The following metals and alloys do not exceed the 600 ppm or
300 ppm lead content limits under section 101(a) of the CPSIA provided
that no lead or lead-containing metal is intentionally added but does
not include the non-steel or non-precious metal components of a
product, such as solder or base metals in electroplate, clad, or fill
applications:
(1) Surgical steel.
(2) Precious metals: Gold (at least 10 karat); sterling silver (at
least 925/1000); platinum; palladium; rhodium; osmium; iridium;
ruthenium.
Dated: January 9, 2009.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E9-714 Filed 1-14-09; 8:45 am]
BILLING CODE 6335-01-P