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[Federal Register Volume 78, Number 31 (Thursday, February 14, 2013)]
[Rules and Regulations]
[Pages 10503-10507]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03400]

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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2012-0040]

16 CFR Part 1199

Children's Toys and Child Care Articles Containing Phthalates; 
Final Guidance on Inaccessible Component Parts

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: On August 14, 2008, Congress enacted the Consumer Product 
Safety Improvement Act of 2008 (CPSIA), Public Law 110-314. Section 108 
of the CPSIA, as amended by Public Law 112-28, provides that the 
prohibition on specified products containing phthalates does not apply 
to any component part of children's toys or child care articles that is 
not accessible to a child through normal and reasonably foreseeable use 
and abuse of such product. In this document, the Consumer Product 
Safety Commission (CPSC or Commission) issues guidance on inaccessible 
component parts in children's toys or child care articles subject to 
section 108 of the CPSIA.

DATES: This rule is effective February 14, 2013.

FOR FURTHER INFORMATION CONTACT: Kristina M. Hatlelid, Ph.D., M.P.H., 
Toxicologist, Office of Hazard Identification and Reduction, U.S. 
Consumer Product Safety Commission, 5 Research Place, Rockville, MD 
20850; telephone (301) 987-2558; khatlelid@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

1. Statutory Authority

    On August 14, 2008, Congress enacted the CPSIA (Pub. L. 110-314), 
as amended on August 12, 2011, by Public Law 112-28. Section 108 of the 
CPSIA, titled, ``Prohibition on Sale of Certain Products Containing 
Specified Phthalates,'' permanently prohibits the sale of any 
``children's toy or child care article'' containing more than 0.1 
percent of three specified phthalates (di-(2-ethylhexyl) phthalate 
(DEHP), dibutyl phthalate (DBP), and benzyl butyl phthalate (BBP)). 
Section 108 of the CPSIA also prohibits, on an interim basis, ``toys 
that can be placed in a child's mouth'' or ``child care article'' 
containing more than 0.1 percent of three additional phthalates 
(diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-
octyl phthalate (DnOP)). These prohibitions became effective on 
February 10, 2009. 15 U.S.C. 2057c(a), (b). The terms or phrases 
``children's toy,'' ``toy that can be placed in a child's mouth,'' and 
``child care article,'' are defined in section 108(g) of the CPSIA. A 
``children's toy'' is defined as a ``consumer product designed or 
intended by the manufacturer for a child 12 years of age or younger for 
use by the child when the child plays.'' A toy can be placed in a 
child's mouth ``if any part of the toy can actually be brought to the 
mouth and kept in the mouth by a child so that it can be sucked and 
chewed. If the children's product can only be licked, it is not 
regarded as able to be placed in the mouth. If a toy or part of a toy 
in one dimension is smaller than 5 centimeters, it can be placed in a 
child's mouth.'' The term ``child care article'' means ``a consumer 
product designed or intended by the manufacturer to facilitate sleep or 
the feeding of children age 3 years and younger, or to help such 
children with sucking or teething.'' 15 U.S.C. 2057c(g).
    Section 108(d) of the CPSIA provides that the prohibitions for the 
specified phthalates 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. That section further provides 
that a component part is not accessible, 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 includes 
swallowing, mouthing, breaking, or other children's activities, and the 
aging of the product. 15 U.S.C. 2057c(d)(1).
    The CPSIA directs the Commission to: (A) Promulgate a rule 
providing guidance with respect to what product components, or classes 
of components, will be considered to be inaccessible; or (B) adopt the 
same guidance with respect to inaccessibility that was adopted by the 
Commission with regard to accessibility of lead under section 
101(b)(2)(B) (15 U.S.C. 1278a(b)(2)(B)), with additional consideration, 
as appropriate, of whether such component can be placed in a child's 
mouth. 15 U.S.C. 2057c(d)(3).
    Section 108 of the CPSIA also directed the Commission, not earlier 
than 180 days after the date of enactment of this Act [enacted Aug. 14, 
2008], to appoint a Chronic Hazard Advisory Panel (CHAP), pursuant to 
the procedures of section 28 of the CPSA (15 U.S.C. 2077), to study the 
effects on children's health of all phthalates and phthalate 
alternatives as used in children's toys and child care articles. 15 
U.S.C. 2057c(b)(2). The Commission appointed the CHAP on April 14, 
2010, to study the effects on children's health of all phthalates and 
phthalate alternatives, as used in children's toys and child care 
articles. The CHAP currently is working on a report, including 
recommendations, to be sent to the Commission.
    Under section 108(d)(2) of the CPSIA, the Commission may revoke any 
or all exclusions granted based on the inaccessible component parts 
provision of section 108 of the CPSIA, at any time, and require that 
any or all component parts manufactured after such exclusion is 
revoked, comply with the prohibitions of phthalates, if the Commission 
finds, based on scientific evidence, that such compliance is necessary 
to protect the public health or safety. 15 U.S.C. 2057c(d)(2).

2. Notice of Proposed Guidance

    In the Federal Register notice of July 31, 2012 (77 FR 45297), the 
Commission published a proposed guidance on inaccessible phthalate-
containing component parts. As stated in the preamble to the proposed 
guidance (77 FR 45299), the Commission proposed to adopt the lead 
guidance for determining inaccessible component parts for phthalates, 
with the exception of polyvinyl chloride (PVC or vinyl) or other 
plasticized materials covering mattresses and other sleep surfaces 
designed or intended by the manufacturer to facilitate sleep of 
children age 3 and younger. Both the lead guidance and proposed 
phthalate guidance specified that a children's product, toy, or child 
care article that is completely enclosed or covered by fabric is 
considered inaccessible to a child, unless the product or part of the 
product in one dimension is smaller

[[Page 10504]]

than 5 centimenters. However, the lead guidance did not exclude vinyl 
or other plasticized materials covering mattresses and other sleep 
surfaces. The proposed phthalate guidance found that while lead is 
unlikely to leach through fabric except in the case of mouthing or 
swallowing an item, sheets or mattress pads that cover a vinyl sleep or 
other plasticized sleep surface should not serve as a barrier to the 
potential exposure of phthalates for young children. A child's skin 
comes into close contact with mattresses and similar products for large 
portions of a day, and a mattress cover could be dampened with a 
spilled beverage, saliva, sweat, urine, or other liquid, which could 
facilitate phthalate migration through a fabric covering. 74 FR 39539 
(August 7, 2009).
    In addition, although section 108 did not specifically disqualify 
paint, coatings, or electroplating as barriers that would render 
phthalates inaccessible, the Commission proposed to adopt the same 
guidance with respect to inaccessibility for phthalates that was 
adopted by the Commission with regard to inaccessibility of lead. The 
proposed phthalates guidance stated that paint, coatings, and 
electroplating may not be considered a barrier that would render 
phthalate-containing component parts of toys and child care articles 
inaccessible. The proposed phthalates guidance also noted that in some 
applications, phthalates are added to paint, printing inks, or 
coatings. 77 FR45299.
    In addition, the Commission determined preliminarily that:
     An accessible component part is one that is capable of 
being touched or mouthed by a child;
     An inaccessible component part is one that is located 
inside the product and not capable of being touched or mouthed by a 
child, whether or not such part is visible to a user of the product;
     An inaccessible part is one that may be enclosed in any 
type of material, e.g., hard or soft plastic, rubber, or metal (with 
the exception of vinyl or other plasticized materials covering 
mattresses or other sleep surfaces for children age 3 and younger);
     To assess whether a part is inaccessible, the 
accessibility probes defined in the Commission's existing regulations 
for evaluating accessibility of sharp points or sharp metal or glass 
edges (16 CFR 1500.48 and 1500.49) are appropriate. An ``accessible 
phthalate-containing component part'' would be considered one that 
contacts any portion of the specified segment of the accessibility 
probe. An ``inaccessible phthalate-containing component part'' would be 
considered as one that cannot be contacted by any portion of the 
specified segment of the accessibility probe; and
     Use and abuse tests are appropriate for evaluating whether 
phthalate-containing component parts of a product become accessible to 
a child during normal and reasonably foreseeable use and abuse of the 
product by a child (with the exception of the bite test). The purpose 
of the tests is to simulate use and damage or abuse of a product by 
children and to expose potential hazards that might result from use and 
abuse. 16 CFR 1500.50-1500.53.

B. Discussion of Comments to the Proposed Guidance and CPSC's Responses

    Five comments were received on the proposed guidance. Two of the 
comments were from industry and three from consumers or nonprofit 
consumer and public health organizations. Most comments express general 
support for the guidance.

1. Fabric Materials as a Barrier to Accessibility of Component Parts

    Comment: One commenter states that fabric should not be considered 
a barrier, regardless of the size of the component, because children 
could be exposed to phthalates through the fabric.
    Response: As provided in CPSC staff's briefing memo ``Guidance for 
Evaluating Accessibility of Phthalate-Containing Component Parts'' 
dated July 13, 2012, CPSC staff is not aware of any studies that show 
the propensity for phthalates to move from a phthalate-containing 
material through an intact, non-phthalate-containing material, such as 
an outside covering, where it could eventually reach the outside of a 
product. Furthermore, CPSC staff's review showed that the non-vapor 
passive movement of phthalates within a product, if it exists, would be 
exceedingly slow and would never account for any more than a small, 
negligible fraction of the original phthalate content of the 
inaccessible phthalate-containing part. Based on CPSC staff's analysis, 
the Commission finds that, in most cases, phthalates that are 
inaccessible would not result in physical exposure to phthalates, 
unless it is reasonably foreseeable that a component part will become 
physically exposed through mouthing, swallowing, breaking, or other 
children's activities, and aging of the product. Accordingly, a 
children's toy or child care article that is, or contains, a phthalate-
containing part that is enclosed, encased, or covered by fabric and 
passes the appropriate use and abuse tests on such covers, is 
considered inaccessible to a child, unless the product, or part of the 
product, in one dimension, is smaller than 5 centimeters; i.e., a 
fabric-covered component part is not inaccessible if the product, or 
part of the product, can be placed in a child's mouth.
    Moreover, the Commission reiterates that vinyl or other plasticized 
materials covering mattresses and other sleep surfaces designed or 
intended by a manufacturer to facilitate sleep for children age 3 and 
younger should not be considered to be made inaccessible through the 
use of a fabric covering. As discussed in the preamble of the proposed 
guidance, the Commission reviewed phthalate-containing vinyl or other 
plasticized materials covering mattresses and sleep surfaces intended 
for young children. These mattresses or sleep surfaces are too large to 
be placed in a child's mouth. Although such mattresses or sleep 
surfaces may be covered by fabric, such as sheets or mattress pads, 
additional consideration was given to whether children would become 
physically exposed to the vinyl or other plasticized materials covering 
the surface through reasonably foreseeable use and abuse of the 
products, including swallowing, mouthing, breaking, or other children's 
activities, and the aging of the product. The Commission determined 
there may be instances in which a child's skin comes into close contact 
with a fabric covering over a phthalate-containing item for large 
portions of a day, such as a vinyl or other plasticized material 
covering a mattress or other sleep surface. Young children typically 
spend more than half of each day sleeping or resting, frequently on a 
mattress or similar item. While a mattress is typically covered with a 
sheet or mattress pad, such non-permanently affixed coverings that are 
either supplied with the mattress or provided by the consumer should 
not be considered to render the underlying material inaccessible. As 
with the potential transfer of phthalates by saliva during mouthing of 
an item, a mattress cover dampened with a spilled beverage, saliva, 
sweat, urine, or other liquid, could facilitate phthalate migration 
through the fabric. Furthermore, a nonpermanent covering cannot be 
assumed to be in use at all times; if it is not, the mattress could no 
longer be considered inaccessible. For these reasons, vinyl (or other 
plasticized material) covered mattresses/sleep surfaces, which contain 
phthalates, designed or intended by a manufacturer

[[Page 10505]]

to facilitate sleep for children age 3 and younger, should not be 
considered to be made inaccessible through the use of a fabric 
covering.
    Comment: One commenter states that the proposed guidance ``exempts 
components covered in fabric provided that the underlying component is 
not smaller than 5 centimeters in any one dimension.'' According to the 
commenter, any exposure to phthalates-containing component parts within 
fabric coverings is very low and all phthalate-containing components 
parts covered by fabric should be exempt, irrespective of the size of 
the part. The commenter also suggests that a de minimis exception 
should be considered for accessible small plasticized parts.
    Response: The commenter misinterprets the fabric covering 
restriction in the proposed guidance on inaccessible phthalate-
containing component parts. The proposed guidance states that ``a 
children's product that is or contains a phthalate-containing part 
which is enclosed, encased, or covered by fabric and passes the 
appropriate use and abuse tests on such covers, is inaccessible to a 
child unless the product or part of the product in one dimension is 
smaller than 5 centimeters.'' However, the 5 centimeter measure is 
applied to the fabric-covered part or product (i.e., a fabric covered 
plastic button), not to the size of the underlying phthalate-containing 
component part. If a toy or part of a toy in one dimension is smaller 
than 5 centimeters, it can be placed in a child's mouth (i.e., a fabric 
covered plastic ear on a stuffed animal). A phthalate-containing 
component part which is encased by a fabric covering is considered to 
be accessible to a child if the part or product is smaller than 5 
centimeters in any dimension because such a part or product could be 
placed in a child's mouth, and the fabric is not expected to perform as 
a barrier to saliva or other fluids or to prevent direct contact by the 
child with the saliva or other fluid after a fluid's contact with the 
phthalate-containing part. Even if a fabric covering passes the 
applicable use and abuse tests, such a covering is not a barrier to the 
underlying material if the product can be placed in the mouth because 
it is smaller than 5 centimeters.
    If the phthalate-containing component part that is encased by 
fabric covering is 5 centimeters or greater in dimension, such a part 
of product is considered to be inaccessible to a child, because the 
part or product in not likely to be put in the mouth or swallowed 
(i.e., plastic electronic box inside a stuffed animal). As discussed 
above, however, vinyl or other plasticized material covering a mattress 
or other sleep surface which is designed or intended by a manufacturer 
to facilitate sleep of children age 3 and younger, even when covered 
with a sheet or mattress pad, will still be considered accessible given 
that the foreseeable use and abuse of the product, including spilled 
beverages, saliva, sweat, urine, or other liquids, may facilitate 
phthalate migration through the fabric.
    The statute does not provide for a de minimis exception for 
accessible component parts, and the Commission is not considering in 
this guidance such exceptions for accessible phthalate-containing 
children's toys and child care articles. However, we note that a CHAP 
has been convened to study the effects on children's health of all 
phthalates and phthalate alternatives, as used in children's toys and 
child care articles. Based on the findings and recommendations of the 
CHAP, any guidance concerning phthalates may be modified and revised, 
as appropriate.
    Comment: The same commenter also states that the exclusion of 
fabric materials as a barrier to accessibility for phthalate-containing 
parts or products smaller than 5 centimeters is inconsistent with the 
Commission's use and abuse testing.
    Response: The proposed guidance provides that accessibility of 
component parts, as a result of normal and reasonably foreseeable use 
and abuse of the product, should be evaluated using the use and abuse 
tests under the Commission's regulations at 16 CFR 1500.50 through 
1500.53 (excluding the bite test in paragraph (c) of Sec. Sec.  
1500.51-1500.53). We disagree that the exclusion of fabric materials as 
a barrier to accessibility is inconsistent with the Commission's use 
and abuse testing. The Commission finds, in general, that fabric 
coverings can be considered barriers to the underlying materials 
because such coverings prevent direct physical contact with the 
phthalate-containing parts. The appropriate use and abuse tests, such 
as the test for the integrity of seams, should be used to evaluate 
fabric coverings to ensure that the component parts remain physically 
inaccessible to a child. Use and abuse testing generally is applied to 
evaluate whether a component part may become physically accessible as a 
result of reasonably foreseeable use and abuse of the product, 
including swallowing, mouthing, breaking, or other children's 
activities. Historically, this testing has been used to evaluate the 
presence of physical hazards, such as small parts, which may be choking 
hazards, or sharp points and edges. In the case of lead-containing or 
phthalate-containing component parts, these tests are used to evaluate 
the potential for physical contact with the parts. The material beneath 
a fabric covering should not be considered to be inaccessible to a 
child if the part or product is smaller than 5 centimeters in any 
dimension because such a part or product could be placed in a child's 
mouth, and fabric is not expected to perform as a barrier to saliva or 
other fluids or to prevent direct contact by the child with the saliva 
or other fluid after a fluid's contact with the phthalate-containing 
part. Even if a fabric covering passes the applicable use and abuse 
tests, such a covering is not a barrier to the underlying material if 
the product can be placed in the mouth.

2. Exclusion of the ``Bite Test'' from Use and Abuse Testing

    Comment: Two commenters question the exclusion of the ``bite test'' 
from the use and abuse testing and requested that it be included in the 
guidance.
    Response: Currently, the Commission does not use the bite test 
specified in 16 CFR 1500.51-1500.53), as a result of a court case 
(Clever Idea Co., Inc. v. Consumer Product Safety Commission, 385 F. 
Supp. 688 (E.D. N.Y. 1974)) that questioned the appropriateness of this 
test. Because the bite test currently is not applied as part of use and 
abuse testing for consumer products, it will not be applied for the 
purposes of evaluating products for accessibility of phthalate-
containing component parts. However, this requirement may be modified 
in a future proceeding if the bite test is reevaluated.

3. Requirements for Labeling of Art Materials

    Comment: One commenter requests consistency among the requirements 
for paints and other surface coatings for lead and phthalates and the 
requirements under ASTM D 4236 and ASTM F 963 that address art 
materials. This commenter specifically requests that bottles of paint 
available in retail stores should comply with all requirements because 
such paint could be used by children or on products for children.
    Response: This comment is outside the scope of this guidance, which 
addresses the issue of when a phthalate-containing component part of a 
children's toy or child care article is considered to be inaccessible 
to a child. The Standard Consumer Safety Specification for Toy Safety, 
ASTM F 963 requires that all art materials comply with the Labeling of 
Hazardous Art Materials Act (LHAMA). In addition to the LHAMA 
requirements discussed above, art materials that are designed or

[[Page 10506]]

intended primarily for children 12 years of age or younger, are also 
required, like all children's products, to comply with the requirements 
of the CPSIA, including third party testing and certification.

C. Effective Date

    Although guidance documents do not require a particular effective 
date under the Administrative Procedure Act, 5 U.S.C. 553(d)(2), the 
Commission recognizes the need for providing the guidance 
expeditiously. In addition, material published in the Code of Federal 
Regulations must have an effective date. Accordingly, the guidance will 
take effect upon publication in the Federal Register.

D. Final Guidance

    The Commission is issuing the final guidance without substantive 
change from the proposed guidance.

List of Subjects in 16 CFR Part 1199

    Business and industry, Infants and children, Consumer protection, 
Imports, Toys.

    For the reasons stated above, the Commission adds 16 CFR part 1199 
to read as follows:

PART 1199-- CHILDREN'S TOYS AND CHILD CARE ARTICLES CONTAINING 
PHTHALATES: GUIDANCE ON INACCESSIBLE COMPONENT PARTS

    Authority: 15 U.S.C. 1251-1289, 86 Stat. 1207, 125 Stat. 273.

Sec.  1199.1  Children's toys and child care articles: Phthalate-
containing inaccessible component parts.

    (a) Section 108 of the Consumer Product Safety Improvement Act of 
2008 (CPSIA) permanently prohibits the sale of any ``children's toy or 
child care article'' containing more than 0.1 percent of three 
specified phthalates (di-(2-ethylhexyl) phthalate (DEHP), dibutyl 
phthalate (DBP), and benzyl butyl phthalate (BBP)). Section 108 of the 
CPSIA also prohibits, on an interim basis, ``toys that can be placed in 
a child's mouth'' or ``child care article'' containing more than 0.1 
percent of three additional phthalates (diisononyl phthalate (DINP), 
diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP)). A 
``children's toy'' is defined as a consumer product designed or 
intended by the manufacturer for a child 12 years of age or younger for 
use by the child when the child plays. A toy can be placed in a child's 
mouth if any part of the toy can actually be brought to the mouth and 
kept in the mouth by a child so that it can be sucked and chewed. If 
the children's product can only be licked, it is not regarded as able 
to be placed in the mouth. If a toy or part of a toy in one dimension 
is smaller than 5 centimeters, it can be placed in the mouth. The term 
``child care article'' means a consumer product designed or intended by 
the manufacturer to facilitate sleep or the feeding of children age 3 
years and younger, or to help such children with sucking or teething.
    (b) Section 108(d) of the CPSIA provides that the prohibitions in 
paragraph (a) of this section do not apply to component parts of a 
children's toy or child care article that are not accessible to 
children through normal and reasonably foreseeable use and abuse of 
such product, as determined by the Commission. A component part is not 
accessible if it 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, including 
swallowing, mouthing, breaking, or other children's activities, and the 
aging of the product.
    (c) Section 108(d)(3) of the CPSIA directs the Commission to 
promulgate a rule to provide guidance with respect to what product 
components or classes of components will be considered to be 
inaccessible for a children's toy or child care article that contains 
phthalates or adopt the same guidance with respect to inaccessibility 
that was adopted by the Commission with regard to accessibility of lead 
under section 101(b)(2)(B) (15 U.S.C. 1278a(b)(2)(B)), with additional 
consideration, as appropriate, of whether such component can be placed 
in a child's mouth. 15 U.S.C. 2057c(d)(3). The Commission adopts the 
same guidance with respect to inaccessibility for the phthalates that 
was adopted by the Commission with regard to accessibility of lead, 
however, vinyl (or other plasticized material) covered mattresses/sleep 
surfaces, that contain phthalates that are designed or intended by the 
manufacturer to facilitate sleep of children age 3 and younger, are 
considered accessible and would not be considered inaccessible through 
the use of fabric coverings, including sheets and mattress pads.
    (d) The accessibility probes specified for sharp points or edges 
under the Commission's regulations at 16 CFR 1500.48-1500.49 should be 
used to assess the accessibility of phthalate-containing component 
parts of a children's toy or child care article. A phthalate-containing 
component part would be considered accessible if it can be contacted by 
any portion of the specified segment of the accessibility probe. A 
phthalate-containing component part would be considered inaccessible if 
it cannot be contacted by any portion of the specified segment of the 
accessibility probe.
    (e) For children's toys or child care articles intended for 
children that are 18 months of age or younger, the use and abuse tests 
set forth under the Commission's regulations at 16 CFR 1500.50 and 16 
CFR 1500.51 (excluding the bite test of Sec.  1500.51(c)), should be 
used to evaluate accessibility of phthalate-containing component parts 
of a children's toy or child care article as a result of normal and 
reasonably foreseeable use and abuse of the product.
    (f) For children's toys or child care articles intended for 
children that are over 18 months, but not over 36 months of age, the 
use and abuse tests set forth under the Commission's regulations at 16 
CFR 1500.50 and 16 CFR 1500.52 (excluding the bite test of Sec.  
1500.52(c)), should be used to evaluate accessibility of phthalate-
containing component parts of a children's toy or child care article as 
a result of normal and reasonably foreseeable use and abuse of the 
product.
    (g) For children's toys intended for children that are over 36 
months, but not over 96 months of age, the use and abuse tests set 
forth under the Commission's regulations at 16 CFR 1500.50 and 16 CFR 
1500.53 (excluding the bite test of Sec.  1500.53(c)), should be used 
to evaluate accessibility of phthalate-containing component parts of a 
children's toy as a result of normal and reasonably foreseeable use and 
abuse of the product.
    (h) For children's toys intended for children over 96 months 
through 12 years of age, the use and abuse tests set forth under the 
Commission's regulations at 16 CFR 1500.50 and 16 CFR 1500.53 
(excluding the bite test of Sec.  1500.53(c)) intended for children 
ages 37-96 months should be used to evaluate accessibility of 
phthalate-containing component parts of a children's toy as a result of 
normal and reasonably foreseeable use and abuse of the product.
    (i) Because the Commission adopts the same guidance with respect to 
inaccessibility for phthalates that was adopted by the Commission with 
regard to inaccessibility of lead, paint, coatings, and electroplating 
may not be considered a barrier that would render phthalate-containing 
component parts of toys and child care articles inaccessible. A 
children's toy or child care article that is or contains a phthalate-
containing part that is enclosed, encased, or covered by fabric and 
passes the appropriate use and

[[Page 10507]]

abuse tests on such covers, is considered inaccessible to a child, 
unless the product or part of the product, in one dimension, is smaller 
than 5 centimeters. However, vinyl (or other plasticized material) 
covered mattresses/sleep surfaces that contain phthalates that are 
designed or intended by the manufacturer to facilitate sleep of 
children age 3 and younger, are considered accessible and would not be 
considered inaccessible through the use of fabric coverings, including 
sheets and mattress pads.
    (j) The intentional disassembly or destruction of products by 
children older than age 8 years, by means or knowledge not generally 
available to younger children, including use of tools, will not be 
considered in evaluating products for accessibility of phthalate-
containing components.

    Dated: February 11, 2013.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2013-03400 Filed 2-13-13; 8:45 am]
BILLING CODE 6335-01-P
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