Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 2433 

and explain that the request may be 

resubmitted when the deficiency is 

corrected. 

(e) Each complete request for 

exclusion will be reviewed by the Office 

of Hazard Identification and Reduction, 

who will preliminarily recommend 

granting or denying the request. Where 

the preliminary determination is to 

grant, the Commission will publish a 

notice of proposed rulemaking inviting 

public comment on whether the 

proposed exclusion should be issued in 

final form, and the Office of Hazard 

Identification and Reduction will 

review and evaluate the comments and 

supporting documentation before 

making its recommendation to the 

Commission for final agency action. 

(f) The filing of a request for exclusion 

does not have the effect of automatically 

staying the effect of any provision or 

limit under the statutes and regulations 

enforced by the Commission. Even 

though a request for an exclusion has 

been filed, unless an exclusion is issued 

in final form by the Commission after 

notice and comment, materials or 

products subject to the lead limits under 

section 101 of the CPSIA are considered 

to be banned hazardous substances if 

they do not meet the lead limits. 

Dated: January 9, 2009. 

Todd A. Stevenson, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. E9–715 Filed 1–14–09; 8:45 am] 

BILLING CODE 6335–01–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1500 

Children’s Products Containing Lead; 

Proposed Determinations Regarding 

Lead Content Limits on Certain 

Materials or Products; Notice of 

Proposed Rulemaking 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: On August 14, 2008, Congress 

enacted the Consumer Product Safety 

Improvement Act of 2008 (CPSIA), 

Public Law 110–314, 122 Stat. 3016. 

This notice of proposed rulemaking 

(NPR) initiates a proceeding under 

section 3 of the CPSIA authorizing the 

Commission to issue regulations, as 

necessary, to implement the CPSIA. In 

this document, the Commission solicits 

written comments concerning 

preliminary determinations on certain 

natural, untreated and unadulterated 

materials and metals that have not been 

found to exceed the lead content limits 

prescribed under section 101(a) of the 

CPSIA. 

DATES: Written comments and 

submissions in response to this notice 

must be received by February 17, 2009. 

ADDRESSES: Comments should be 

e-mailed to 

Sec101Determinations@cpsc.gov. 

Comments should be captioned 

‘‘Section 101 Determinations of Certain 

Materials or Products NPR.’’ Comments 

may also be mailed, preferably in five 

copies, to the Office of the Secretary, 

Consumer Product Safety Commission, 

Room 502, 4330 East West Highway, 

Bethesda, Maryland 20814, or delivered 

to the same address (telephone (301) 

504–7923). Comments also may be filed 

by facsimile to (301) 504–0127. 

FOR FURTHER INFORMATION CONTACT: 

Kristina Hatlelid, PhD, M.P.H., 

Directorate for Health Sciences, 

Consumer Product Safety Commission, 

4330 East West Highway, Bethesda, 

Maryland 20814; telephone (301) 504– 

7254, e-mail khatlelid@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Under section 101(a) of CPSIA, 

consumer products designed or 

intended primarily for children 12 years 

old and younger that do not contain 

more than 600 ppm of lead (as of 

February 10, 2009), 300 ppm of lead (as 

of August 14, 2009); 100 ppm after three 

years (as of August 14, 2011), unless the 

Commission determines that it is not 

technologically feasible to have this 

lower limit, are not considered to be 

banned hazardous substances under the 

Federal Hazardous Substances Act 

(FHSA). However, in the absence of 

Commission action, these products and 

materials remain subject to the testing 

requirements of section 102 of the 

CPSIA (codified at § 14 of the Consumer 

Product Safety Act (CPSA)). 

Under these provisions, on and after 

February 10, 2009, general conformity 

certificates certifying that they comply 

with the applicable lead content limit 

are required for children’s products. The 

certification must be based on tests of 

each product or a reasonable testing 

program. On and after August 14, 2009, 

absent Commission action to the 

contrary, the certificates must be based 

on testing performed by a laboratory 

whose accreditation to perform the 

testing has been accepted by the 

Commission. 

Section 3 of the CPSIA grants the 

Commission general rulemaking 

authority to issue regulations, as 

necessary, to implement the CPSIA. 

There may be certain products or 

materials that inherently do not contain 

lead or contain lead at levels that do not 

exceed the lead content limits under 

section 101(a) of the CPSIA. To the 

extent that such materials or products 

exist, the Commission, of its own 

initiative, is proposing to exercise its 

section 3 authority to make preliminary 

determinations that certain commodities 

or classes of materials or products do 

not exceed the lead limits prescribed in 

section 101(a) of the CPSIA. The effect 

of such a Commission finding would be 

to relieve the material or product from 

the testing requirement of section 102 of 

the CPSIA for purposes of supporting 

the required certification. Of course 

even where a material or product has 

been so relieved of the testing 

requirement, it must still meet the 

statutory lead level requirements in 

actual fact. The Commission will obtain 

and test products in the marketplace to 

assure that this remains the case and 

will take appropriate enforcement 

action in situations where that is not the 

case. 

B. Proposed Determinations on Certain 

Products and Materials 

The Commission staff identified a 

number of commodities or classes of 

materials that do not inherently contain 

lead or contain lead that does not 

exceed the CPSIA lead limits of 600 

ppm or 300 ppm. 

Certain Natural Materials 

Based on the staff’s review, the 

Commission preliminarily determines 

that the following natural materials do 

not exceed the 600 ppm or 300 ppm 

lead content limits under section 101(a) 

of the CPSIA. These preliminary 

determinations are based on materials 

that are untreated and unadulterated 

with respect to the addition of materials 

or chemicals, including pigments, dyes, 

coatings, finishes or any other 

substance, and that do not undergo any 

processing that could result in the 

addition of lead into the product or 

material: 

1. Precious gemstones: Diamond, 

ruby, sapphire, emerald 

2. Certain semiprecious gemstones 

provided that the mineral or material is 

not based on lead or lead compounds 

and is not associated in nature with any 

mineral that is based on lead or lead 

compounds (minerals that contain lead 

or are associated in nature with 

minerals that contain lead include, but 

are not limited to, the following: 

Aragonite, bayldonite, boleite, cerussite, 

crocoite, linarite, mimetite, phosgenite, 

vanadinite, and wulfenite) 

3. Natural or cultured pearls 

4. Wood 

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2434 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 

5. Natural fibers such as cotton, silk, 

wool, hemp, flax, linen 

6. Other natural materials including 

coral, amber, feathers, fur, untreated 

leather 

Certain Metals and Alloys 

Based on the staff’s review, the 

Commission preliminarily determines 

that the following metals and alloys do 

not exceed the 600 ppm or 300 ppm 

lead content limits under section 101(a) 

of the CPSIA provided that no lead or 

lead-containing metal is intentionally 

added: 

1. Surgical steel 

2. Precious metals: Gold (at least 10 

karat); sterling silver (at least 925/1000); 

platinum; palladium; rhodium; osmium; 

iridium; ruthenium 

The preliminary determinations do 

not extend to the non-steel or nonprecious metal components of a 

product, such as solder or base metals 

in electroplate, clad, or fill applications. 

C. Requests for Comments 

All interested persons are invited to 

submit to the Commission their 

comments and data concerning the 

Commission’s preliminary 

determinations on the listed natural 

materials and metals and alloys. In 

particular, the Commission invites 

interested persons to submit any test 

results showing that substances covered 

by the proposed rule had lead exceeding 

the lead limits in section 101(a) of the 

CPSIA. In addition, the Commission 

seeks comments on: 

• Other natural fibers that would not 

exceed the lead content limits 

• Other natural materials that would 

not exceed the lead content limits 

• Other metals or alloys that would 

not exceed the lead content limits 

• Other materials, which by their 

nature, would not exceed the lead 

content limits. 

Comments should be e-mailed to 

Sec101Determinations@cpsc.gov. 

Comments should be captioned 

‘‘Section 101 Determinations of Certain 

Materials or Products NPR.’’ Comments 

may also be mailed, preferably in five 

copies, to the Office of the Secretary, 

Consumer Product Safety Commission, 

Room 502, 4330 East West Highway, 

Bethesda, Maryland 20814, or delivered 

to the same address (telephone (301) 

504–7923). Comments also may be filed 

by facsimile to (301) 504–0127. All 

comments and submissions should be 

received no later than February 17, 

2009. 

D. Impact on Small Businesses 

Under the Regulatory Flexibility Act 

(RFA), when an agency issues a 

proposed rule, it generally must prepare 

an initial regulatory flexibility analysis 

describing the impact the proposed rule 

is expected to have on small entities. 5 

U.S.C. 603. The RFA does not require a 

regulatory flexibility analysis if the head 

of the agency certifies that the rule will 

not have a significant effect on a 

substantial number of small entities. 

The Commission’s Directorate for 

Economic Analysis prepared a 

preliminary assessment of the impact of 

relieving certain materials or products 

from the testing requirements of section 

102 of the CPSIA if they were found to 

be inherently under the lead content 

limits prescribed. The number of small 

businesses that will be directly affected 

by the rule is unknown but could be 

considerable. However, it will not result 

in any increase in the costs of 

production for any firm. Its only effect 

on businesses, including small 

businesses, will be to reduce the costs 

that would have been associated with 

testing the materials under section 102 

of the CPSIA. Based on the foregoing 

assessment, the Commission 

preliminarily finds that the proposed 

rule would not have a significant impact 

on a substantial number of small 

entities. 

E. Environmental Considerations 

Generally, CPSC rules are considered 

to ‘‘have little or no potential for 

affecting the human environment,’’ and 

environmental assessments are not 

usually prepared for these rules (see 16 

CFR 1021.5(c)(1)). The proposed rule 

will not result in any additional lead in 

the environment since such materials do 

not contain lead or contain lead at levels 

that do not exceed the CPSIA limits. 

Therefore, the Commission does not 

expect the proposed rule to have any 

negative environmental impact. 

F. Executive Orders 

According to Executive Order 12988 

(February 5, 1996), agencies must state 

in clear language the preemptive effect, 

if any, of new regulations. The 

preemptive effect of regulations such as 

this proposal is stated in section 18 of 

the FHSA. 15 U.S.C. 1261n. 

G. Effective Date 

The Administrative Procedure Act 

requires that a substantive rule must be 

published not less than 30 days before 

its effective date, unless the rule relieves 

a restriction. 5 U.S.C. 553(d)(1). Because 

the proposed rule would provide relief 

from existing testing requirements 

under the CPSIA, the proposed effective 

date is the date of publication of a final 

rule in the Federal Register. 

H. List of Relevant Documents 

(1) Memorandum from Kristina M. 

Hatlelid, PhD, M.P.H., Toxicologist, 

Directorate for Health Sciences 

‘‘Consumer Product Safety Improvement 

Act of 2008 (CPSIA): Certain Materials 

or Products that Do Not Exceed the 

Limits for Lead Content.’’ December 

2008. 

(2) Memorandum from Robert 

Franklin, Economist, Directorate for 

Economic Analysis, ‘‘Preliminary 

regulatory analysis of a rule making 

determinations that certain materials or 

products do not have lead contents that 

exceed the limits established in section 

101(a) of the CPSIA.’’ December 2008. 

List of Subjects in 16 CFR Part 1500 

Consumer protection, Hazardous 

materials, Hazardous substances, 

Imports, Infants and children, Labeling, 

Law enforcement, and Toys. 

I. Conclusion 

For the reasons stated above, the 

Commission proposes to amend title 16 

of the Code of Federal Regulations as 

follows: 

PART 1500—HAZARDOUS 

SUBSTANCES AND ARTICLES: 

ADMINISTRATION AND 

ENFORCEMENT REGULATIONS 

1. The authority for part 1500 is 

amended to read as follows: 

Authority: 15 U.S.C. 1261–1278, 122 Stat. 

3016. 

2. Add a new § 1500.91 to read as 

follows: 

§ 1500.91 Determinations Regarding Lead 

Content for Certain Materials or Products 

under Section 101 of the Consumer Product 

Safety Improvement Act. 

(a) The Consumer Product Safety 

Improvement Act provides for specific 

lead limits in children’s products. 

Section 101(a) of the CPSIA provides 

that by February 10, 2009, products 

designed or intended primarily for 

children 12 and younger may not 

contain more than 600 ppm of lead. 

After August 14, 2009, products 

designed or intended primarily for 

children 12 and younger cannot contain 

more than 300 ppm of lead. On August 

14, 2011, the limit may be further 

reduced to 100 ppm, unless the 

Commission determines that it is not 

technologically feasible to have this 

lower limit. Paint, coatings or 

electroplating may not be considered a 

barrier that would make the lead 

content of a product inaccessible to a 

child. 

(b) Section 3 of the CPSIA grants the 

Commission general rulemaking 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 2435 

authority to issue regulations, as 

necessary, either on its own initiative or 

upon the request of any interested 

person, to make a determination that a 

material or product does not exceed the 

lead limits as provided under paragraph 

(a) of this section. 

(c) The following natural materials do 

not exceed the 600 ppm or 300 ppm 

lead content limits under section 101(a) 

of the CPSIA provided that these 

materials have neither been treated or 

adulterated with the addition of 

materials or chemicals such as 

pigments, dyes, coatings, finishes or any 

other substance, nor undergone any 

processing that could result in the 

addition of lead into the product or 

material: 

(1) Precious gemstones: Diamond, 

ruby, sapphire, emerald. 

(2) Semiprecious gemstones provided 

that the mineral or material is not based 

on lead or lead compounds and is not 

associated in nature with any mineral 

that is based on lead or lead compounds 

(minerals that contain lead or are 

associated in nature with minerals that 

contain lead include, but are not limited 

to, the following: Aragonite, bayldonite, 

boleite, cerussite, crocoite, linarite, 

mimetite, phosgenite, vanadinite, and 

wulfenite). 

(3) Natural or cultured pearls. 

(4) Wood. 

(5) Natural fibers such as cotton, silk, 

wool, hemp, flax, linen. 

(6) Other natural materials including 

coral, amber, feathers, fur, untreated 

leather. 

(d) The following metals and alloys 

do not exceed the 600 ppm or 300 ppm 

lead content limits under section 101(a) 

of the CPSIA provided that no lead or 

lead-containing metal is intentionally 

added but does not include the nonsteel or non-precious metal components 

of a product, such as solder or base 

metals in electroplate, clad, or fill 

applications: 

(1) Surgical steel. 

(2) Precious metals: Gold (at least 10 

karat); sterling silver (at least 925/1000); 

platinum; palladium; rhodium; osmium; 

iridium; ruthenium. 

Dated: January 9, 2009. 

Todd A. Stevenson, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. E9–714 Filed 1–14–09; 8:45 am] 

BILLING CODE 6335–01–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1500 

Children’s Products Containing Lead; 

Exemptions for Certain Electronic 

Devices; Notice of Proposed 

Rulemaking 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: On August 14, 2008, Congress 

enacted the Consumer Product Safety 

Improvement Act of 2008 (CPSIA), 

Public Law 110–314, 122 Stat. 3016. 

Section 101 of the CPSIA provides for 

specific lead limits in children’s 

products. Section 101(b)(2) of the CPSIA 

provides that the lead limits will not 

apply to any component part of a 

children’s product that is not accessible 

to a child through normal and 

reasonably foreseeable use and abuse. In 

addition, section 101(b)(4) of the CPSIA 

provides that if the Commission 

determines that it is not technologically 

feasible for certain electronic devices to 

comply with the lead limits, the 

Commission must issue requirements by 

regulation to eliminate or minimize the 

potential for exposure to and 

accessibility of lead in such electronic 

devices and establish a compliance 

schedule unless the Commission 

determines that full compliance is not 

technologically feasible. For certain 

electronic devices for which it is not 

technologically feasible to meet the lead 

limits, the Commission is proposing 

requirements to eliminate or minimize 

the potential for exposure and 

accessibility of lead. 

DATES: Written comments and 

submissions in response to this notice 

must be received by February 17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Comments should be e-mailed to 

Sec101ElectronicDevices@cpsc.gov. 

Comments should be captioned 

‘‘Section 101 Electronic Devices NPR.’’ 

Comments may also be mailed, 

preferably in five copies, to the Office of 

the Secretary, Consumer Product Safety 

Commission, Room 502, 4330 East West 

Highway, Bethesda, Maryland 20814, or 

delivered to the same address 

(telephone (301) 504–7923). Comments 

also may be filed by facsimile to (301) 

504–0127. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The CPSIA provides for specific lead 

limits in children’s products. Section 

101(a) of the CPSIA provides that by 

February 10, 2009, products designed or 

intended primarily for children 12 and 

younger may not contain more than 600 

ppm of lead. After August 14, 2009, 

products designed or intended primarily 

for children 12 and younger cannot 

contain more than 300 ppm of lead. The 

limit may be further reduced to 100 

ppm after three years, or August 14, 

2011, unless the Commission 

determines that it is not technologically 

feasible to have this lower limit. A 

children’s product is defined as a 

consumer product designed or intended 

primarily for children 12 years of age or 

younger under section 235(a) of the 

CPSIA (to be codified at section 3(a)(2) 

of the Consumer Product Safety Act). In 

determining whether a consumer 

product is primarily intended for a child 

12 years of age or younger, the following 

factors will be considered: 

• A statement by the manufacturer 

about the intended use of such product, 

including a label on such product if 

such statement is reasonable. 

• Whether the product is represented 

in its packaging, display, promotion or 

advertising as appropriate for use by 

children 12 years of age or younger. 

• Whether the product is commonly 

recognized by consumers as being 

intended for use by a child 12 years of 

age or younger. 

• The Age Determination Guidelines 

issued by the Commission in September 

2002, and any successor to such 

guidelines. 

Section 101(b)(2) of the CPSIA 

provides that the lead limits do not 

apply to component parts of a product 

that are not accessible to a child. This 

section specifies that 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, as 

determined by the Commission. Paint, 

coatings, or electroplating may not be 

considered to be a barrier that would 

render lead in the substrate to be 

inaccessible to a child. Section 101 

(b)(2)(B) further provides that the 

Commission must promulgate a rule 

providing guidance with respect to what 

product components or classes of 

components will be considered to be 

inaccessible. A proposed interpretative 

rule providing guidance on 

inaccessibility is published elsewhere in 

this Federal Register. 

In addition, if the Commission 

determines that it is not now 

technologically feasible for certain 

electronic devices to comply with the 

lead limits, section 101(b)(4) of the 

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