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[Federal Register Volume 78, Number 132 (Wednesday, July 10, 2013)]
[Rules and Regulations]
[Pages 41298-41299]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15944]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500

[Docket No. CPSC-2009-0004]

Children's Products Containing Lead; Procedures and Requirements 
for Exclusions From Lead Limits Under Section 101(b) of the Consumer 
Product Safety Improvement Act

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) is 
issuing this rule to amend its existing regulations pertaining to 
procedures and requirements for exclusions from lead limits under 
section 101(b) of the Consumer Product Safety Improvement Act of 2008 
(CPSIA) to reflect statutory changes mandated by Public Law 112-28.

DATES: Effective Date: July 10, 2013.

FOR FURTHER INFORMATION CONTACT: Hyun Sun Kim, Office of the General 
Counsel, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814; email: hkim@cpsc.gov; telephone: 301-504-7632.

SUPPLEMENTARY INFORMATION: Under section 101(a) of the CPSIA, consumer 
products designed or intended primarily for children 12 years old and 
younger that contain lead content in excess of 100 ppm are considered 
to be banned hazardous substances under the Federal Hazardous 
Substances Act (FHSA). The Commission previously published 16 CFR 
1500.90 to provide procedures and requirements for evaluating products 
or materials for possible exclusion from the lead limits under section 
101(b)(1) of the CPSIA.
    On August 12, 2011, Public Law 112-28 replaced section 101(b)(1) of 
the CPSIA in its entirety. Section 101(b)(1) of the CPSIA, as amended, 
now provides for a functional purpose exception from the lead content 
limits under certain circumstances and sets forth the procedures for 
granting an exception in the statute. 15 U.S.C. 1278(a)(b). Because the 
existing regulations at 16 CFR 1500.90 no longer reflect the current 
law, the Commission is amending that section to replace the current 
procedures and requirements with the statutory procedures and 
requirements set forth under Public Law 112-28. In addition, the 
Commission anticipates providing the public with a staff guidance on 
the applicable procedures for requesting an exemption, which will be 
made available on the CPSC Web site.
    Although the Administrative Procedure Act (APA) generally requires 
notice and comment rulemaking, section 553 of the APA provides an 
exception when the agency, for good cause, finds that notice and public 
procedure are ``impracticable, unnecessary, or contrary to the public 
interest.'' In this circumstance, the Commission concludes that notice 
and comment is not necessary. The statutory provision upon which 16 CFR 
1500.90 was based has been revised and there is no action the 
Commission could take in response to comments that would change the 
underlying statutory provision.

List of Subjects in 16 CFR Part 1500

    Consumer protection, Hazardous materials, Hazardous substances, 
Imports, Infants and children, Labeling, Law enforcement, and Toys.
    For the reasons stated above in the preamble, the Commission amends 
title 16 of the Code of Federal Regulations as follows:

PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND 
ENFORCEMENT REGULATIONS

0
1. The authority citation for part 1500 continues to read as follows:

    Authority:  15 U.S.C. 1261-1278, 122 Stat. 3016, 125 Stat. 273.

0
2. In Sec.  1500.90, revise paragraph (b) and remove paragraphs (c) 
through (h) to read as follows:
* * * * *
    (b) Exclusion of certain materials or products and inaccessible 
component parts. The CPSIA provides the following functional purpose 
exception from the lead limits stated in section 101(a) of the CPSIA.
    (1) Functional purpose exception--(i) In general. The Commission, 
on its own initiative or upon petition by an interested party, shall 
grant an exception to the limit under paragraph (a) of this section for 
a specific product, class of product, material, or component part if 
the Commission, after notice and a hearing, determines that:
    (A) 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 
paragraph (a) of this section by removing the excessive lead or by 
making the lead inaccessible;
    (B) 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
    (C) 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.
    (ii) Measurement. For purposes of paragraph (b)(1)(i)(C) of this 
section, there is no measurable adverse effect on public health or 
safety if the exception described in paragraph (b)(1)(i) of this 
section will result in no measurable increase in blood lead levels of a 
child.

[[Page 41299]]

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.
    (iii) Procedures for granting exception--(A) Burden of proof. A 
party seeking an exception under paragraph (b)(1)(i) of this section 
has the burden of demonstrating that it meets the requirements of such 
paragraph.
    (B) 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.
    (C) Admissible evidence. In demonstrating that it meets the 
requirements of paragraph (b)(1)(i) of this section, a party seeking an 
exception under such paragraph 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.
    (D) 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 paragraph (b)(1)(i) of this section are met with respect to 
every accessible component or accessible material of the product.
    (iv) Limitation on exception. If the Commission grants an exception 
for a product, class of product, material, or component part under 
paragraph (b)(1)(i) of this section, the Commission may, as necessary 
to protect public health or safety:
    (A) Establish a lead limit that such product, class of product, 
material, or component part may not exceed; or
    (B) 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 paragraph (b)(1)(iv)(A) of 
this section or the limit set forth under paragraph (a) of this 
section.
    (v) Application of exception. An exception under paragraph 
(b)(1)(i) of this section for a product, class of product, material, or 
component part shall apply regardless of the date of manufacture unless 
the Commission expressly provides otherwise.
    (vi) 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 paragraph (b)(1)(iii)(A) of this 
section.
    (2) [Reserved]
* * * * *

    Dated: June 28, 2013.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2013-15944 Filed 7-9-13; 8:45 am]
BILLING CODE 6355-01-P
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