Showing posts with label lead laws and regulations. Show all posts
Showing posts with label lead laws and regulations. Show all posts

August 2, 2011

CPSIA "fixes" passed in the Consumer Product Safety Flexibility Act of 2011 [August 1, 2011]


Below is the final version of H.R. 2715 with the snappy title of "To provide the Consumer Product Safety Commission with greater authority and discretion in enforcing the consumer product safety laws, and for other purposes." that was sponsored by Rep Bono Mack, Mary [CA-45] and "introduced " on August 1, 2011, interestingly/amazingly with the same "effective date" (and of course this has not yet been signed by the President). On motion to suspend the rules and pass the bill, it was passed in the house of representatives as follows: 421 yes votes and 2 votes against (Roll no. 683). It was Passed/agreed to in Senate without amendment by "Unanimous Consent". We do not have the senate version of the bill at the time of posting. The Senate version is apparently titled the "Consumer Product Safety Flexibility Act of 2011" and we think is under number S. 1448. (However as of this posting the bill text under S. 1448 did not match that of the House bill below [HR 2715] and appears to be outdated info) (see the House press release after the end of the bill).

This bill primarily fixes the new CPSC/CPSIA 100 ppm lead requirement, which is/was set to take effect August 14, and would make it impossible to sell merchandise that is already on the shelves. Under the bill below (section 1), only products manufactured after August 14, 2011 will have to meet the 100 ppm lead standard, allowing older products to be sold under the higher lead limits in effect before August 14. This was the primary impetus to get the bill passed before August 14. There is quite a bit packed in this relatively short bill so have a quick read below and see if the provisions will affect your business.

This bill and the path it has taken is an example of why people are very frustrated with Congress and getting legislation passed in general. These "legislative" fixes have been getting passed around in backrooms for months and when they finally did come to a "vote" the "fix" was already in and they sailed thru in minutes or seconds on votes that were purely formalities. There was really no warning that this would be passed when it did or in this fashion. If you did not get what you wanted in here well that's too bad because you are not likely to see any further relief for some time. Apparently Congress is going to be in recess until after Labor day as they had to work so hard to pass the debt ceiling bill.

H.R.2715 -- To provide the Consumer Product Safety Commission with greater authority and discretion in enforcing the consumer product safety laws, and for other purposes. (Engrossed in House [Passed House] - EH)

SECTION 1. LIMITATION ON LEAD IN CHILDREN'S PRODUCTS.

SEC. 2. APPLICATION OF THIRD PARTY TESTING REQUIREMENTS.

SEC. 3. APPLICATION OF AND PROCESS FOR UPDATING DURABLE NURSERY PRODUCTS STANDARDS.

SEC. 4. APPLICATION OF SECTION 106 TO FDA-REGULATED PRODUCTS.

SEC. 5. APPLICATION OF PHTHALATES LIMIT.

SEC. 6. AUTHORITY TO MODIFY TRACKING LABELS REQUIREMENT.

SEC. 7. IMPROVED PRODUCT IDENTIFICATION FOR PUBLIC DATABASE.

SEC. 8. SUBPOENA AUTHORITY.

SEC. 9. DEADLINE FOR RULE BY CONSUMER PRODUCT SAFETY COMMISSION ON STANDARDS FOR ALL TERRAIN VEHICLES.

SEC. 10. TECHNICAL AMENDMENTS.

SEC. 11. EFFECTIVE DATE.


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.

`(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 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

`(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.

`(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.

`(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.

`(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 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 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, 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.

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.

Passed the House of Representatives August 1, 2011.

Press Release
House Votes to Protect Jobs and Reduce Regulatory Burdens on American Businesses


August 1, 2011

WASHINGTON, DC – The U.S. House of Representatives voted today to protect jobs and reduce onerous regulations with passage of H.R. 2715, a bill to provide the Consumer Product Safety Commission with greater authority and discretion in enforcing the consumer product safety laws. The measure passed the House with strong bipartisan support by a vote of 421 to 2.

The bill, authored by Commerce, Manufacturing, and Trade Subcommittee Chairman Mary Bono Mack (R-CA) and Ranking Member G.K. Butterfield (D-NC) makes important and necessary modifications to the troubled Consumer Product Safety Improvement Act. Congress had good intentions when it passed the CPSIA in 2008, but the law created a series of unintended consequences forcing small businesses to close their doors as a result of the law’s rigid restrictions and costly regulations.

The bill approved by the House today makes great strides toward cleaning up the regulatory mess created by the CPSIA, giving the Consumer Product Safety Commission the flexibility it needs to regulate based on risk. The bill’s changes aim to reduce the burden of the law while maintaining strong protections for children. The legislation includes provisions to ensure valuable store inventory is not wasted and to allow for the continued sale of used children’s items.

“For thousands of American businesses, which strive to be responsible, ‘let’s do what’s best for consumers,’ CPSIA has taken an inordinate amount of their time trying to understand how each new regulation and standard will affect them. Unfortunately, many have gone out of business, attributing their demise to the burdens of compliance,” said Bono Mack. “Today, we are striking a very careful balance. As a nation, we simply cannot afford to lose jobs or stifle innovation because of questionable regulations. But we also have an obligation to make certain that our children’s toys remain safe. This bill is a win-win. It’s good for American consumers and American businesses. I thank Chairman Upton, Ranking Member Waxman and my counterpart, Mr. Butterfield, for their dedication to this issue, and I urge the Senate to pass this important and time-sensitive legislation.”


 

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July 21, 2011

CPSC announces lead limit on childrens products will be reduced from 300ppm to 100ppm effective August 14, 2011


Update to this story posted August 2, 2011

Unfortunately the CPSC decided to move forward and reduce the lead content in products intended for "children" from 300ppm to 100ppm (parts per million) effective August 14, 2011. (Originally it was 600ppm when the law first took effect) This unfortunately was required by Congress, provided the CPSC in its rulemeaking function determined that it was "technologically feasible" to get the lead down to 100ppm. As the bicycle industry indicated in testimony before the CPSC this effectively eliminates the use of all recycled steel frames, most of which are used to make low cost children's bikes (low cost is helpful here as the children quickly outgrow the bikes). The bicycle industry also indicated that at this point in time lead testing results were not very reliable when you try to reach below 300ppm. Ahh..but its "technologically" feasible with NASA level equipment. Well sure, but we are not building a space shuttle and the recreational sports industry does not have NASA's "budget" (tax dollars).

The CPSC of course focused on "technologically" feasible, not "economically" or "reasonably" feasible. Thank you congressional staffer that used a poor choice of words. (see definition in bold below which was what the CPSC was using as guideance).

The bigger point here is that this law was flawed from the start. No children in the USA are dying or  getting sick from lead poisoning in toys, bicycles or motorcycles. The biggest "lead" threat to children does not come from consumer products. The law should only have applied only to specific items likely to go in a child's mouth (shown by empirical evidence). Bicycles, motorcycles and most recreational products don't. Unfortunately Congress chased lead (and a few select phthalates) as the only bogeyman (thanks to misled consumers and the media) and did not even focus on the most plentiful sources of lead to kids. We need to focus on what is really harming kids in the US. Lead is not in the top 20. The bigger problem is the whole race to go from 600ppm to 100pm is futile and will not insure any greater safety, but will incur exponentially more costs for small businesses. This is the problem with regulation. "Regulation" always looks and sounds good from 20,000 feet up until people that really have to make the widgets take a close look at it and what will really be required to implement it. Then you see the nightmare train wreck. But people with lifetime jobs in Government could care less about your small business job. And we wonder why unemployment is still so stubbornly high.

We all thought the CPSC would do the right thing in implementing the law via regulations, but the fact is that no one is willing to stick their neck out in government and declare the "emperor has no clothes" (or that this law and the 100ppm standard really does nothing at all to protect children and just harms US small businesses). The same is true in Congress. If a legislator came out and said reducing lead 600ppm to 100ppm means nothing to children's safety the "children's lobby" would accuse then of "wanting to harm children and puppy dogs". Some have come out and been bold but were outnumbered and outvoted.

There have been numerous bills to address some of the problems in the CPSIA since 2008. None really have moved thru Congress which in the last two years has been in a state of panicked deadline gridlock. Now with the debt crisis coming to a head on August 2, 2011 there are very few days to deal with this issue before the August 14, 2011 deadline. The National Association of Manufacturers is taking their best shot in an ad campaign here:


National Association of Manufacturers Ad Campaign regarding HR 1939


The only thing on the table now with any hope of passing (any time this summer) is HR 1939 which has been stalled in "mark up" since Mid May 2011.


So starting on August 14, 2011 manufacturers and distributors of children's products must comply with the new 100 ppm federal limit for total lead content. CPSC will not enforce the CPSIA's independent third party testing requirement for total lead content until December 31, 2011, due to a stay of enforcement that is already in place. There are some legitimate questions and ambiguities regarding how the new 100 ppm requirement interacts with the latest "bicycle-motorcycle stay" thru December 31, 2011.


The first is whether or not your company complied with the stay's initial requirements (which required some onerous reporting) and if you failed to do that whether or not you can take advantage of the stay thru December 31, 2011.


The second is to keep in mind that as to bicycles the stay only deals with components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent lead. (see 74 FR at 31257 for all details)


Finally there is a question as to how the stay thru December 31, 2011 interacts with the current 100 ppm lead requirement. One could argue that you have to make sure lead is below 100 ppm in your children's product but you don't have to "test and certify". Apparently this sort of "catch 22" makes sense to people in government. The reality is that the CPSC likely will not be chasing down manufactures of bicycles and motorcycles on the 100 ppm requirement until after December 31, 2011, but I would not want to bet my company on that or anything the CPSC may or may not do. They are just too unpredictable these days.


Finally, to add to the confusion, lead content levels for children's products (the base material) are different than the so called "lead paint/coatings standard" which has been .009 percent since August 14, 2009.

FOR IMMEDIATE RELEASE
July 15, 2011
Release #11-278
CPSC Announces New, Lower Limit for Lead Content in Children’s Products

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC) voted (3-2) that there was insufficient evidence to make a determination that manufacturers of children’s products sold in the United States could not meet a total lead content limit of 100 parts per million (ppm) for a product or product category. The new total lead content limit, which is called for in the Consumer Product Safety Improvement Act (CPSIA), goes into effect on August 14, 2011 for manufacturers, importers, retailers and distributors of children’s products.

Through the CPSIA, Congress set tough new levels for lead content in products designed or primarily intended for children 12 and younger. Lead is a heavy metal that is toxic for children, and associated with lowered levels of learning, impaired hearing, brain damage and, at high levels, can be fatal.

Congress directed CPSC to phase in the reduced levels for lead content over a three year period, starting with 600 ppm on February 10, 2009. The level dropped to 300 ppm on August 14, 2009. Finally, Congress directed the total lead content limit be set at 100 ppm, unless the Commission determined it was not technologically feasible for a product or product category.

The Commission was not able to determine that 100 ppm total lead content is not technologically feasible, as staff found that materials containing less than 100 ppm total lead content are commercially available in the marketplace for manufacturers. CPSC staff also found many products currently on the market, that have been tested by CPSC or other organizations, that are already in compliance with the new 100 ppm total lead content limit.

Starting on August 14, 2011, manufacturers, importers, retailers and distributors of children’s products must comply with the new 100 ppm federal limit for total lead content. CPSC will not enforce the CPSIA’s independent third party testing requirement for total lead content until December 31, 2011, due to a stay of enforcement that is already in place.

The stay of enforcement does not apply to children’s metal jewelry, which currently must undergo independent third party testing.

The new 100 ppm lead content limit does not apply to inaccessible (internal) parts of children’s products and certain component parts of children’s electronic devices, like electronic connectors and plugs, including headphone plugs.

Lead content levels for children’s products are different from the levels Congress set for lead in paint or surface coatings. The limit for lead in paint or surface coatings is .009 percent. The .009 percent level has been in place since August 14, 2009 and independent third party testing is required for all paints or surfaces coatings used on children’s products.

Commissioner's Statements: Chairman Inez Tenenbaum and Commissioner Nancy Nord (both PDF).

[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)] [Notices] [Pages 12944-12945] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 2011-5231]

CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2010-0080]

Children's Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content; Notice, Reopening of the Hearing Record

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Notice, reopening of the hearing record.

-----------------------------------------------------------------------

SUMMARY: Section 101(a) of the Consumer Product Safety Improvement Act (``CPSIA'') provides that, as of August 14, 2011, children's products may not contain more than 100 parts per million (``ppm'') of lead unless the U.S. Consumer Product Safety Commission (``CPSC,'' ``Commission,'' or ``we'') determines that such a limit is not technologically feasible. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children's products. On February 16, 2011, the Commission conducted a public hearing to receive views from all interested parties about the technological feasibility of meeting the 100 ppm lead content limit for children's products and associated public health considerations. Individual Commissioners requested at the hearing that certain participants respond to additional questions in writing, as well as submit relevant studies and additional data referenced in oral presentations. Accordingly, through this notice, the Commission is reopening the hearing record until March 24, 2011.

ADDRESSES: Supplemental Materials identified by Docket No. CPSC-2010- 0080 may be submitted by any of the following methods:

Electronic Submissions

Supplemental Materials may be submitted to the Office of the Secretary by e-mail at cpsc-os@cpsc.gov.

Written Submissions

Submit written submissions in the following way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

Instructions: All submissions received must include the agency name and docket number for this notice. All materials received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Concerning submission of materials: Rockelle Hammond, U.S. Consumer Product Safety Commission, Bethesda, MD 20814; telephone: (301) 504-6833; e-mail: cpscos@cpsc.gov. For all other matters: Dominique Williams, U.S. Consumer Product Safety Commission, Bethesda, MD 20814; telephone: (301) 504-7597; e-mail: dwilliams@cpsc.gov.

SUPPLEMENTARY INFORMATION: Section 101(a)(2)(C) of the CPSIA (15 U.S.C. 1278a(a)(2)(C)) provides that, as of August 14, 2011, children's products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible. The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children's products. Section 101(d) of the CPSIA (15 U.S.C. 1278a(d)) provides that a lead limit shall be deemed technologically feasible with regard to a product or product category if:

(1) A product that complies with the limit is commercially available in the product category;

(2) Technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term;

(3) Industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or

(4) Alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.

In the Federal Register of January 26, 2011 (76 FR 4641), we published a notice (``hearing notice'') announcing that the Commission would hold a public hearing pursuant to section 101(a) of the CPSIA. The hearing notice stated that the Commission was seeking information on specific issues, such as whether any product or product category already complies with the 100 ppm limit and what factors or considerations we should evaluate in deciding whether a technology is ``commercially available.''

We held the hearing on February 16, 2011. We heard presentations by and received comments from consumer groups, manufacturers, associations, and laboratories regarding the technological feasibility of meeting the 100 ppm lead content limit. At the hearing, individual Commissioners requested that certain participants respond to additional questions in writing and submit relevant studies and additional data. Through this notice, we are announcing that we have placed individual Commissioner's additional questions into the docket and will place any responses into the docket. The questions submitted and responses that are received will be made available on http://www.regulations.gov under Docket No. CPSC-2010-0080, Supporting and Related Material. The Commission will consider any additional material received during the reopening of the hearing record, in addition to information collected at the hearing, in the course of evaluating its response. The Commission is reopening the hearing record to add individual Commissioner's questions to the docket and allow for responses to those questions, and so the hearing record will remain open until March 24, 2011.

Dated: March 3, 2011. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. 2011-5231 Filed 3-8-11; 8:45 am] BILLING CODE 6355-01-P

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May 13, 2011

Attempts to amend or "fix" CPSIA move forward in Congress under HR __ “Enhancing CPSC Authority and Discretion Act of 2011 (ECADA).”

Things move pretty slowly in congress. This has been about the 15th "bill" (or attempted bill or amendment or other "maneuver") to try an amend/fix the dreaded Consumer Product Safety Improvement Act "CPSIA" which quite frankly looked much more harmless in 2008. That was before the recession and before the Consumer Product Safety Commission "CPSC" started taking a close look at CPSIA and spitting out thousands of pages of regulations and other documents in trying to wrestle with its draconian requirements. This is just the latest attempt to ameliorate some of the more problematic provisions of the 2008 CPSIA. As you can well imagine trying to get the attention of Congress these days is not too easy. And it's a very hostile political environment these days. News of increased regulation usually sounds good in TV sound bites by politicians, but when you get down to the really ugly nitty gritty its not very pretty (especially if you are the company that has to comply). And worse, you end up with hundreds of laws and regulations with huge penalties...all of which can be applied (or interpreted) in an "uneven" fashion to say the least by some regulatory bureaucrat who decides he or she does not like your company's attitude. You see the problem. And its really hard on "small" businesses. Companies like Mattel and Wal Mart hire teams of people to assist with regulatory compliance work and have the clout to force their smaller suppliers to bear the risk of non compliance. Small(er) businesses do not.

Hats off to the Bicycle Products Suppliers Association (BPSA) for really trying to stay on top of this. Without a full time lobbyist in congress its really hard to know when things are going to happen or not happen on a given day. And unfortunately, to be effective, you have to know before Congress acts not after. The motorcycle / ATV industry is also working hard on this as are a number of other industries heavily impacted by CPSIA. The fact is these days if you don't work really hard at getting your voice heard in Congress (and that means yelling really loud with lots of well reasoned voices) you are going to get rolled over. Its unfortunate that more attention was not paid to this law well before it passed in August 2008.

The April 7, 2011 testimony before The Subcommittee on Commerce, Manufacturing, and Trade by the BPSA is good to read first just as background for what we were seeking. And this is the the May 10, 2011 version of the “Enhancing CPSC Authority and Discretion Act of 2011 (ECADA)” along with some opening comments, markups and amendments made May 12, 2011. Obviously you don't get everything you ask for. Section 9 is of interest as it affects the now infamous "consumer products safety information database" which just rolled out in March 2011. Some of these fixes will be helpful but I fear we will need to go a year or so with the database before we begin to see even more problems that need fixing once again via Congress of course. I had to chuckle a bit when I read this article dealing with the new "CPSC like" agency regulating banks. Apparently banks don't like public complaint databases either. I guess misery loves company.

Press Release
Commerce, Manufacturing, and Trade Subcommittee Votes to Improve Consumer Product Safety Law

May 12, 2011

WASHINGTON, DC – The Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade took an important step to improve consumer product safety protections today by approving the discussion draft of H.R. ___,(bill number yet to be attached) “Enhancing CPSC Authority and Discretion Act of 2011 (ECADA).”

The draft legislation, which passed the subcommittee by voice vote, would revise the Consumer Product Safety Improvement Act of 2008 (CPSIA), seeking to reduce the regulatory burdens of the current law while maintaining consumer protection. The proposal calls for greater flexibility for the Consumer Product Safety Commission to regulate based on risk.

“While CPSIA has many virtues, there are some unintended consequences of the law as well. Our common sense reforms will help to make a good law even better, saving thousands of American jobs in the process and providing our children with the important protections they need,” said Subcommittee Chairman Mary Bono Mack (R-CA). “This was a careful balancing act, but even the Consumer Product Safety Commission has recognized the problems with CPSIA and requested greater flexibility in implementing the new law.”


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June 21, 2010

CPSC Response to April 2010 BPSA Petition for Extension of Stay Regarding CPSIA Testing and Certification Requirements for Bicycles

U.S. CONSUMER PRODUCT SAFETY COMMISSION
4330 EAST WEST HIGHWAY BETHESDA, MARYLAND 20814-4408
Todd A. Stevenson Tel: 301-504-6836
Office of the Secretary Fax: 301-504-0127
Email: tstevenson@cpsc.gov

Draft Response
June__, 2010

To: Erika Z. Jones Counsel to Bicycle Product Suppliers Association

Dear Ms. Jones, This responds to your petition, dated April 1 2010 on behalf of the Bicycle Product Suppliers Association (BPSA). The petition requested an extension of the stay of enforcement of the testing and certification requirements related to 16 CFR part 1512 imposed by section 14 of the Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safely Improvement Act of 2008 (CPSIA).

The Consumer Product Safety commission has decided to extend the stay related to 16 CFR part 1512 (other than 16 CFR sec. 1512.16, as discussed below) until August 14, 2010. Manufacturers and importers of products subject to 16 CFR part 1512 that arc manufactured on or after August 14, 2010 will need to certify that their product complies with 16 CFR part 1512. Certifications of bicycles intended primarily for children 12 years of age or younger must be based on tests conducted by a third party conformity assessment body whose accreditation has been accepted by the CPSC. As you are aware the CPSC maintains a list of third party conformity assessment bodies on its website. Certifications of non-children's bicycles must be based on a test of each product or upon a reasonable testing program.

The commission is aware that there are currently no CPSC·accepted conformity assessment bodies accredited to test reflectors for compliance with 16 CFR 1512.16 Commission staff will be discussing this issue with conformity assessment bodies in the coming weeks. We encourage BPSA members to work diligently to inform the conformity assessment body industry of the bicycle industry's need for CPSC accepted third party conformity assessment bodies that will be capable of testing reflectors. Nevertheless, because there are not currently any CPSC-accepted third party conformity assessment bodies accredited to perform reflector tests, a stay related solely to 16 CFR 1512.16 will remain in effect until November 14, 2010. Reflectors on children's bicycles manufactured on or after November 14, 2010, must be third-party tested, absent a finding by the Commission that conformity assessment body capacity remains insufficient.

The Commission is aware that bicycles with non-quill-type stems may not be able to comply with the insertion mark requirement of 16 C.F.R. § 1512.6(a). Until this issue can be addressed by revision of the regulations, therefore, the insertion mark requirement for non-quill-type stems is hereby excluded from the certification requirement.

Thus, with respect to 16 CFR part 1512, the Commission expects that, for children's bicycles, the requirements of 16 CFR part 1512 that do not pertain to reflectors Will be tested by CPSC-accepted third party conformity assessment bodies. For non-children's products, the requirements of 16 CFR part 1512 that do not pertain to reflectors will be subject to either a test of each product or a reasonable testing program. For reflectors, the Commission. will continue the stay until November 14,2010. Additionally, as stated in the previous paragraph, for all bicycles with non-quill-type stems, the insertion mark requirement is excluded from the certification requirement.

The Commission is also aware that part 1512 does not address the technologies and designs used in conjunction with today's bicycles. The Commission is beginning the process of reviewing its regulations to determine what revisions are necessary. The compliance staff requests that manufacturers who believe they are unable to certify current designs to part 1512 provide, no later than June 4, 2010, specific information as to which provisions of the current regulation are problematic, which models or classes of bicycles are affected, and an explanation of the issue. The staff will provide guidance on these issues as soon as feasible thereafter.

The Commission will publish a notice in the Federal Register that Will communicate to the public the decision expressed in this letter. BPSA meeting.With Commission staff on May 3, 2010, to discuss the issues we look forward to continuing to work with the BPSA


April 1, 2010 letter to CPSC from BPSA counsel
Re: Petition for Extension of Stay of Enforcement of the Requirement for a General Certificate of Conformity for Bicycles to the Requirements of16 C.F.R. Part 1512, 74 Fed. Reg. 68588 (December 28. 2009)

Dear Mr. Stevenson:

I am writing on behalf of the Bicycle Product Suppliers Association, ("BPSA") which is an association of suppliers of bicycles, parts, accessories and services who serve the specialty bicycle retailer. On December 28,2009, the U.S. Consumer Product Safety Commission published a . decision to stay enforcement of certain testing and certification provisions of section 14 of the Consumer Product Safety Act ("CPSA") as amended by section 102(a) of the Consumer Product Safety Improvement Act of 2008 ("CPSIA"). 74 Fed. Reg. 68588. Specifically, the decision stayed enforcement of the requirement to issue a General Certificate of Conformity (GCC) certifying compliance with certain identified CPSC rules, bans, regulations and standards, including the safety standard for bicycles, 16 C.F.R. Part 1512.

Regarding the bicycle standard, the Commission decision noted:

The Commission plans to keep the stay in effect for the bicycle regulations (16 CPR part 1512) as applicable to all bicycles, both non children's and children's, until May 17, 2010. With regard to bicycles, the Commission has determined that there is insufficient laboratory capacity for third-party testing of bicycles at this time despite the fact that the notice of accreditation of laboratories issued more than 90 days ago. The Commission understands that the laboratories are communicating with staff about their applications, capabilities and related timing issues. Should the extension of this stay until May 17, 2010 prove insufficient, the bicycle manufacturers and laboratories must petition the Commission for additional relief no later than April 1, 2010. 74 Fed. Reg. at 68590.

In accordance with the December decision, the BPSA is petitioning for a one year extension of the stay of the requirement to issue a GCC for compliance with Part 1512 because the facts supporting the December 2009 decision to extend the compliance date have not materially changed, and there is still insufficient laboratory capacity for third-party testing of bicycles at this time.

1. There are only four certified laboratories for Part 1512 testing, only one of which is certified to test for compliance to the entire standard.

At the time of the December 2009 decision, the Commission determined that the small number of accredited laboratories was "insufficient laboratory capacity for third-party testing of bicycles". In April 2010, the situation is still inadequate. The CPSC website now lists four certified laboratories capable of performing some third-party testing for Part 1512 compliance, and only one laboratory is certified to test for compliance to the entire standard. Each of the other three are only partially accredited (meaning that one or more provision of Part 1512 is excluded from the accreditation). The one laboratory that appears to have unconditional accreditation received its approval approximately two weeks ago. Clearly, the availability of only a single third-party laboratory to handle all of the GCC requirements for the entire children's bicycle sector is inadequate.

2. Part 1512 is out of date in many respects, and may be scheduled for revision in the near future.

In the December decision, the CPSC noted that a pending rule making proceeding affecting the product is one factor that supported extending the GCC stay for products in certain categories (such as baby walkers and bath seats, for which the CPSC had issued proposed rules to revise the standards).

BPSA understands that the CPSC may intend to commence rule making to revise Part 1512 in the near future, and urges the Commission to do so. As BPSA has noted in previous communications with the Commission, Part 1512 is out of date in many respects, and requires modernization to reflect contemporary bicycle designs. It has not been substantively revised since 1976, and bicycle technology and design have changed substantially since that time. Several provisions of the current Part 1512 need to be revised to reflect modern adult bicycles. Until that rule making is completed, a requirement for a GCC for Part 1512 compliance raises interpretation questions that are unresolved. For example, how does Section 1512.6(a) (relating to the stem minimum insertion mark) apply to adult bicycles that use threadless headsets that have no stem to be inserted? Or, how does Section 1512.16(e) (related to pedal reflectors) apply to adult bicycles that use clipless pedals that have no surfaces available to attach reflectors?

As the CPSC noted with re~pect to other products that are subject to pending rule making or for which rule making was planned, it is sensible to stay the requirements for testing and certification until after the rule making proceeding is complete. BPSA urges the CPSC to apply the same factor to the bicycle industry, if Part 1512 is scheduled for revision in the near future, and to defer the requirement for a GCC for Part 1512 compliance for one year, or if necessary, until that proceeding is concluded.

3. The bicycle industry has a good record of Part 1512 compliance.

Despite our observations above regarding the obsolescence of portions of Part 1512, the core requirements of the standard are well understood to the industry, and there are not recurring compliance issues in this industry. Bicycles are a safe, healthy and environmentally sensitive form of transportation and recreation. There will be no degradation to the public interest by granting this petition, nor any increased risk to public health and safety. By contrast, granting this petition will relieve administrative burdens (including third-party testing costs) for members of the bicycle industry and allow time for the orderly evolution of the third-party testing market to a position where there is more than one laboratory fully accredited to test for Part 1512 compliance.

We appreciate your consideration of this petition

Sincerely, Erika Z. Jones
Counsel to Bicycle Product Suppliers Association


 

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June 18, 2010

CPSC extending the CPSIA stay for certain testing and certification provisions for bicycles under 16 CFR part 1512 until August 14, 2010

CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1512
Consumer Product Safety Act: Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements

34360 Federal Register / Vol. 75, No. 116 / Thursday, June 17, 2010 / Rules and Regulations

ACTION: Limited extensions of stay of enforcement.

SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) is extending its stay of enforcement of certain testing and certification provisions of section 14 of the Consumer Product Safety Act (CPSA) as amended by section 102 of the Consumer Safety Improvement Act of 2008 (CPSIA). The Commission is extending the stay for products under 16 CFR part 1512 (bicycles) until August 14, 2010, with two exceptions. First, the Commission is extending the stay related to 16 CFR 1512.16 (reflectors) until November 14, 2010. Second, bicycles with non-quill-type stems are excluded from certifying compliance to 16 CFR 1512.6(a) (handlebar stem insertion mark) until further notice. DATES: As it pertains to products under 16 CFR part 1512, the stay of enforcement is extended until August 14, 2010, except for products under 16 CFR 1512.16, for which the stay is extended until November 14, 2010, and except for bicycles with non-quill-type stems, which are excluded from the certification requirement regarding the handlebar stem insertion mark at 16 CFR 1512.6(a) until further notice.

FOR FURTHER INFORMATION CONTACT: Matthew M. Lee, Compliance Officer, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail mlee@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Section 14 of the CPSA requires that every manufacturer of a product (and the private labeler, if the product bears a private label) that is subject to a consumer product safety rule, ban, standard, or regulation enforced by the Commission certify, based on testing, that its product complies with the applicable safety rule, ban, standard, or regulation. For nonchildren’s products, the certification must be based on a test of each product or a reasonable testing program. For children’s products, the certification must be based on testing conducted by a CPSC-accepted third party conformity assessment body (laboratory). The Commission announced the criteria and process for its acceptance of the accreditation of third party conformity assessment bodies to test children’s products under 16 CFR part 1512 in a notice of requirements that appeared in the Federal Register on September 2, 2009. 74 FR 45428.

On February 9, 2009, the Commission published a notice in the Federal Register staying enforcement of the testing and certification requirements for many products, including bicycles. 74 FR 6396. The Commission committed to the stay for one year, explaining that the stay was necessary to ‘‘give us the time needed to develop sound rules and requirements as well as implement outreach efforts to explain these [new] requirements of the CPSIA and their applicability.’’ 74 FR 6396, 6398. On December 28, 2009, the Commission published a notice in the Federal Register revising the terms of the stay. 74 FR 68588. In that notice, the Commission lifted the stay for some CPSC regulations and extended the stay for other CPSC regulations. Relevant for present purposes, the Commission stated that it ‘‘plans to keep the stay in effect for the bicycle regulations (16 CFR part 1512) as applicable to all bicycles, both non children’s (sic) and children’s, until May 17, 2010. With regard to bicycles, the Commission has determined that there is insufficient laboratory capacity for third-party testing of bicycles at this time * * *. Should the extension of this stay until May 17, 2010 prove insufficient, the bicycle manufacturers and laboratories must petition the Commission for additional relief no later than April 1, 2010.’’ 74 FR 68588, 68590.

On April 1, 2010, the Bicycle Product Suppliers Association (BPSA) petitioned the Commission for an extension of the stay of enforcement as it relates to 16 CFR part 1512, the CPSC safety regulations for bicycles. The BPSA contended that laboratory capacity was still inadequate. It also asserted that 16 CFR part 1512 is ‘‘out of date in many respects,’’ and urged the Commission to revise the regulation. Finally, BPSA maintained that the bicycle industry has a good record of compliance with part 1512 and so extending the stay would not increase risk to public health or safety. The CPSC invited the BPSA to meet to discuss the petition, and such a meeting was held on May 3, 2010.

II. Limited Extensions of Stay of Enforcement

The Commission has decided to extend the stay of enforcement of the testing and certification requirements imposed by section 14 of the CPSA with regard to the safety regulations in 16 CFR part 1512 (bicycles) until August 14, 2010, with two exceptions noted immediately below. As of May 12, 2010, there are five CPSC-accepted conformity assessment bodies accredited to test to some or most of the standards contained in 16 CFR part 1512. This limited extension of the stay will provide time for the development of additional laboratory capacity for the testing of children’s bicycles. Nevertheless, bicycle manufacturers must certify based on testing that their products, both nonchildren’s and children’s, manufactured after August 14, 2010, comply with 16 CFR part 1512.

There are two exceptions to this extension of the stay. Because there are currently no CPSC-accepted conformity assessment bodies accredited to test to the bicycle reflector requirements at 16 CFR 1512.16, the Commission is extending the stay as it relates to bicycle reflectors and 16 CFR 1512.16 until November 14, 2010. The Commission is allowing this additional three-month period for the development of CPSCaccepted laboratory capacity for bicycle reflector testing. In addition, the Commission is aware that bicycles with non-quill-type stems may not be able to comply with the insertion mark requirement of 16 CFR 1512.6(a). Bicycles with non-quill-type stems are hereby excluded from the requirement to certify compliance with the handlebar stem insertion mark requirement at 16 CFR 1512.6(a). Dated: June 9, 2010. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. 2010–14328 Filed 6–16–10; 8:45 am]

read the notice in PDF format

 

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February 8, 2009

Statement of CPSC Enforcement Policy on Lead Limits

Preparing for "D" Day

On February 6, 2009 the CPSC issued the "Statement of Commission Enforcement Policy on Section 101 Lead Limits" in view of the fact that that the first requirement on the total lead content of children's products, 600 parts per million, becomes effective on February 10, 2009. An interim final rule was necessary at this time because the CPSC's options to craft a rule after public comment and thoughtful consideration are limited by the CPSIA (the law Congress passed in August) after February 10, 2009. This is because CPSIA does not allow the CPSC to stay the applicability of the lead ban to electronics while they finish their "normal" rulemaking process.

I dont not see anything in this Policy that will be "helpful" to most bicycle and recreational product manufacturers that have metal (like recycled steel or brass alloys) in their products.

It is important to point out that Section 214 of the Consumer Product Safety Improvement Act amended section 15(b) of the Consumer Product Safety Act to expand the types of violations that must be reported to the Commission. Under section 15(b) as amended, any manufacturer (including an importer), distributor or retailer must report to the Commission immediately if it obtains information that reasonably supports the conclusion that a product fails to comply with a standard or ban under any Act enforced by the Commission.

Accordingly, manufacturers, distributors and retailers must report to the Commission if they become aware of a children's product that exceeds the applicable lead limits in any accessible part" (including the higher limits for certain electronic components and devices) and that is being manufactured for sale in the United States, imported for sale, distributed, held for distribution or sale, offered for sale, or sold after February 10, 2009.

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February 6, 2009

National Association Of Manufacturers (NAM) Petiion denied

In the latest saga the CPSC just denied, on Feb 5, 2009, the National Association of Manufacturers petition for stay of the lead limits which go into effect on February 10, 2009. The denial can be read by clicking here.

The Commission stated in part:
"What the Commission cannot do, by rule or otherwise, is change the statutory effective date of a congressionally imposed ban. The Consumer Product Safety Improvement Act is quite specific as to the relief the Commission is authorized to take by way of exemptions or exceptions. Section 101(e) even goes so far as to say that the effective dates of the limits set by the Act are not to be delayed by the pendency of a Commission rulemaking proceeding for certain specific issues such as requests for exceptions or exemptions. The Congress has spoken on this issue and while the Commission will do everything in its power to ameliorate the impact of this decision, it cannot change it."


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use

February 1, 2009

Petition by BPSA to CPSC

The press release from the CPSC on Jan 30 2009 was somewhat deceiving. It was not much of a stay of enforcement and will not assist companies whose products likely contain lead over the 600ppm limit which goes into effect Feb 10, 2009. What is most interesting is Congress is now trying to blame the CPSC for the mess, but it was congress who created the 600 ppm lead ban and the February 10, 2008 compliance date with very little clarification. It was relying on the CPSC to get it implemented via implementing regulations between August 2008 when the bill passed and February when the lead limits come into effect. At this point the best thing that the bike related companies can do is write to the CPSC directly asking them to act on the BPSA emergency petition filed with the CPSC last week and ask that they act on it before Feb 10. The National Association of Manufacturers (NAM) is asking for less focused relief (mostly arguing the economic effects which may work better with Congress than the CPSC) and their petition is not based on a scientific testing approach like the BPSA's. Here is the NAM petition: http://www.cpsc.gov/library/foia/foia09/brief/stay101.pdf We feel the BPSA petition is better and more targeted and is more likely to have success with the CPSC. At this time writing to Congress is not the best approach but that may be required next week if the CPSC fails to act on the BPSA petition. In the latest developments, Congress has asked President Obama to ask Acting Chairman Nancy Nord to step down to the confusion that has resulted from this law. The letter can be seen here

Write to:

Acting Chairman Nancy Nord
Commissioner Thomas Moore
U.S. Consumer Product Safety Commission
4330 East-West Highway
Bethesda, MD 20814
Fax: (301) 504-0124 or (301) 504-0025
or email http://www.cpsc.gov/cgibin/commissionernord.aspx


Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
© Copyright 1996-2008 Conditions of Use