January 16, 2010

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By Product Safety Letter staff

CPSC late Friday, January 15, sent three recommendations to Congress for improving the CPSIA. The suggestions received unanimous support from commissioners. The first involves flexibility in applying the section 101(a) lead provisions. The commission mentions children's off-road vehicles, bicycles and books as items that are falling under the lead-content restrictions and suggests that Congress likely did not intend that. While not going into specifics, commissioners asked for flexibility to help it deal with such unintended situations.

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Second is a request to exclude children's books and other "paper-based printed material" from the 101(a) lead restrictions

Third, the commission seeks a lifting of the retroactivity of the coming 100 parts-per-million (ppm) lead limit. The commission points to resellers and notes that the 100-ppm limit will come into force only if technologically feasible. It thus urges that the limit apply only to products made after it becomes effective.

A fourth item in the recommendations sections -- addressing small businesses and crafters -- is simply a statement that the commission will continue to consider their needs during rulemakings. It does not recommend any changes.

Below is a verbatim selection from the report to Congress. As well, here are links to the statements of Chairman Inez Tenenbaum, Commissioner Robert Adler, Commissioner Nancy Nord, and Commissioner Ann Northup.

Meanwhile, Nord, on her blog, suggests there are other needed changes, including either listing exempt products or changing age limits, giving CPSC more ability to deal with the challenges of small manufacturers, and making explicit assurance that the law does not inhibit the resale of used children's garments. Northup also mentioned the report on her blog.

Congress, in December, gave CPSC the January 15 deadline for making recomendations.

II. Recommendations for Improvement to the Statute

The following suggestions represent the unanimous and bipartisan opinion of the Consumer Product Safety Commission in response to Congress' direction to recommend improvements to the CPSIA. As always, the Commission's first priority is the health and safety of consumers. Accordingly, the following consensus recommendations are intended to maintain the safety and welfare of consumers while minimizing administrative burdens on the agency, or significant market disruptions, caused by the implementation of specific provisions of the CPSIA. Although individual Commissioners may have differing ideas on the exact avenues to achieve the suggested improvements listed below, the Commission is united in its belief that these recommendations would be useful to facilitate a more orderly implementation of the statute and enhance Commission enforcement efforts. In addition to these consensus items, individual Commissioners may have further recommendations designed to improve implementation of the Act.

Section 101(b) Exclusions

The Conferees stated that they believed there may be parts of some products subject to the strict lead ban under section 101(a) of the CPSIA that likely were not intended to be included. They mentioned parts of youth motorized off-road vehicles and bicycles, sporting equipment and ordinary books. As the Conferees have urged, the CPSC will continue to consider exemptions under 101(b), however, the Commission believes section 101(b)(1) does not give the agency the flexibility to address the items mentioned above, except in the manner in which it has already addressed youth motorized vehicles and bicycles, which is through enforcement discretion. The Commission believes it could more effectively fulfill its mandate under section 101(a) if it were allowed greater flexibility in granting exclusions from the section 101(a) lead limits. In addition to promulgating final rules on the exemptions for lead in electronic devices and inaccessibility, the Commission has taken a variety of approaches within its authority to try to reduce any unduly burdensome impact of section 101(a) on the regulated market generally and where Congress may not have intended to include certain products within the scope of the lead content limits. Although the Commission has not reached a consensus on a specific approach to improving section 101(b), the Commission is unanimous in its opinion that it needs additional flexibility within this section to grant exclusions from the lead content limits in order to address certain products, including those singled out by the Conferees.

Exclusion for Certain Printed Materials

In the statement of managers attached to the FY 2010 omnibus bill, the Conferees noted their belief that the CPSIA may not have been intended to subject ordinary children's books to the section 101(a) lead content limits. Through our continued implementation efforts, the Commission has worked within its authority to provide a measure of relief for ordinary children's books. The issue continues to present a significant enforcement issue for the Commission, however, as the staff has found that some older children's books (pre-1985) contain highly illustrated pages with lead content above the strict lead ban. These books were not covered by the Commission determination that newer ordinary children's books were not subject to the ban. In order to address this issue, Congress may, with some limitations, choose to consider granting an exclusion for ordinary children's books and other children's paper-based printed materials.

Retroactive Application of the 100 ppm Lead Content Limits

Based on the agency's experience implementing the lead content limits retroactively, market disruption may occur if the 100 ppm lead content limits are applied retroactively. The shift to 100 ppm is particularly challenging compared to the previous shift in allowable lead content due to the requirement for the Commission to determine whether such a limit is technologically feasible. Because they do not make the products they are selling, resellers in particular have found it difficult to deal with reducing lead limits. Resellers have no easy way to determine the material composition of products and, while they have no obligation to test, they still are required to be in compliance with the law. Also, manufacturers or industries with petitions pending before the Commission for technological feasibility determinations will face uncertainty as to whether they should continue to manufacture products prior to a decision by the Commission on their petition. In addition, the new tracking-label requirements that mandate the date of manufacture to be on the product will help to ensure that products manufactured after the 100 ppm deadline goes into effect are compliant with the 100 ppm limit. Accordingly, the Commission believes that a prospective application of the 100 ppm lead limits would be helpful for our continued implementation of the law.

Small Manufacturers' and Crafters' Concerns

The Conferees stated they were aware of concerns among small manufacturers and crafters regarding the third-party testing requirements under section 102 of the CPSIA and urged the Commission to consider those concerns when issuing rules and guidance on third-party testing. The Commission has been mindful of the small business and crafter community in its implementation of the Act and will continue to exercise the discretion granted under section 102 to address these concerns accordingly. For example, the Commission has issued guidance directly targeted to smaller and home-based businesses to help them to understand and to comply with the law's new (and existing) requirements, as well as issued an enforcement policy on testing of lead content and lead paint which allows a great deal of flexibility in both testing of component parts and composite testing of materials. During the development of the mandatory rule on testing and certification, the Commission will be seeking ways to relieve unnecessary testing and certification burdens on business, especially smaller and home-based businesses, without compromising the law's protections for children. The Commission will be looking at volume of production, channels of distribution as well as any similar distinctions other federal agencies have made with respect to smaller businesses, as possible ways to structure the testing and certification requirements. The Commission remains committed to working with Congress to explore other ways to address the concerns of low volume manufacturers.