Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 10503 

Blankenfelde-Mahlow, Germany; phone: 49 0 

33–7086–1883; fax: 49 0 33–7086–3276, for a 

copy of this service information. 

(3) You may view this service information 

at the FAA, Engine & Propeller Directorate, 

12 New England Executive Park, Burlington, 

MA. For information on the availability of 

this material at the FAA, call 781–238–7125. 

(i) Material Incorporated by Reference 

None. 

Issued in Burlington, Massachusetts, on 

February 5, 2013. 

Robert J. Ganley, 

Acting Manager, Engine & Propeller 

Directorate, Aircraft Certification Service. 

[FR Doc. 2013–03269 Filed 2–13–13; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 

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10504 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

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 phthalatecontaining 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 phthalatecontaining 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, nonphthalate-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 

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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 phthalatescontaining 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 phthalatecontaining 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 phthalatecontaining 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 phthalatecontaining 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 §§ 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 phthalatecontaining 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 leadcontaining 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 phthalatecontaining 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 

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10506 Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 

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. 

§ 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 phthalatecontaining 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 § 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 § 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 § 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 

§ 1500.53(c)) intended for children ages 

37–96 months should be used to 

evaluate accessibility of phthalatecontaining 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 

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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations 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 phthalatecontaining 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 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[SATS No. MT–032–FOR; Docket ID No. 

OSM–2011–0011] 

Montana Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: We are issuing a final 

decision on an amendment to the 

Montana regulatory program (the 

Montana program) under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act). We are not 

approving the amendment. Montana 

proposes changes to the Montana Strip 

and Underground Mine Reclamation 

Act (MSUMRA) that differentiate 

between coal beneficiation and coal 

preparation plants. Montana revised its 

program to clarify ambiguities and 

improve operational efficiency. 

DATES: Effective Date: February 14, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Fleischman, Casper Field Office 

Director, Telephone: (307) 261–6550, 

Internet address: 

jfleischman@OSMRE.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Montana Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s (OSMRE’s) Findings 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Montana Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Montana 

program on April 1, 1980. You can find 

background information on the Montana 

program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval in the April 

1, 1980, Federal Register (45 FR 21560). 

You can also find later actions 

concerning Montana’s program and 

program amendments at 30 CFR 926.15, 

926.16, and 926.30. 

II. Submission of the Proposed 

Amendment 

By letter dated June 7, 2011, Montana 

sent us a proposed amendment to its 

program (SATS number: MT–032–FOR, 

Administrative Record Docket ID No. 

OSM–2011–0011) under SMCRA (30 

U.S.C. 1201 et seq.). Montana submitted 

the amendment to include changes 

made to the MSUMRA as a result of the 

Montana Legislature’s 2011 passage of a 

Senate Bill (SB 297) relating to coal 

beneficiation. Montana sent the 

amendment to include changes made at 

its own initiative. 

We announced receipt of the 

proposed amendment in the October 17, 

2011, Federal Register (76 FR 64045). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment’s adequacy 

(Administrative Record No. MT–29–11; 

Administrative Record Document ID No. 

OSM–2011–0011–0001). We did not 

hold a public hearing or meeting 

because no one requested one. The 

public comment period ended on 

November 16, 2011. We received four 

public comments and four Federal 

agency comments (discussed under ‘‘IV. 

Summary and Disposition of 

Comments’’). 

During our review of Montana’s 

submittal and the comments received, 

we identified concerns with the 

amendment proposal including its 

newly proposed statutory definition of 

‘‘Coal beneficiation plant’’ at Montana 

Code Annotated (MCA) Section 82–4– 

203(9), as well as proposed revisions to 

its currently approved statutory 

definitions of ‘‘Coal preparation plant’’ 

at MCA Section 82–4–203(11); 

‘‘Operation’’ at MCA Section 82–4– 

203(34); ‘‘Operator’’ at MCA Section 82– 

4–203(35); ‘‘Strip mining’’ at MCA 

Section 82–4–203(48) (b); and 

‘‘Underground mining’’ at MCA Section 

82–4–203(52). We notified Montana of 

these concerns by letter dated February 

14, 2012 (Administrative Record No. 

MT–29–15; Administrative Record 

Document ID No. OSM–2011–0011– 

0011). 

We delayed final rulemaking to afford 

Montana the opportunity to submit new 

material to address the deficiencies. 

Montana responded in a letter dated 

March 14, 2012, that all of the proposed 

changes are legislative amendments to 

the MSUMRA and because they are 

changes in statute and not rule, the 

Montana Department of Environmental 

Quality (DEQ) has no authority to 

amend them (Administrative Record No. 

MT–29–16; Administrative Record 

Document ID No. OSM–2011–0011– 

0012). As a result, Montana stated that 

it will not be submitting revised 

amendments or draft proposed changes 

in response to our February 14, 2012, 

letter. Therefore, we are proceeding 

with the final rule Federal Register 

document. 

III. OSMRE’s Findings 

30 CFR 732.17(h)(10) requires that 

State program amendments meet the 

criteria for approval of State programs 

set forth in 30 CFR 732.15, including 

that the State’s laws and regulations are 

in accordance with the provisions of the 

Act and consistent with the 

requirements of 30 CFR Part 700. In 30 

CFR 730.5, OSMRE defines ‘‘consistent 

with’’ and ‘‘in accordance with’’ to 

mean (a) with regard to SMCRA, the 

State laws and regulations are no less 

stringent than, meet the minimum 

requirements of, and include all 

applicable provisions of the Act and (b) 

with regard to the Federal regulations, 

the State laws and regulations are no 

less effective than the Federal 

regulations in meeting the requirements 

of SMCRA. 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

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