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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2436 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 

CPSIA provides that the Commission 

issue requirements by regulation to 

eliminate or minimize the potential for 

exposure to and accessibility of lead in 

such electronic devices, and establish a 

schedule for achieving full compliance 

unless the Commission determines that 

full compliance with the lead limits is 

not technologically feasible within such 

a schedule. Technological feasibility is 

based on the commercial availability of 

products, technology, or other practices 

that will allow compliance with the lead 

limits. 

On September 26, 2008, the 

Commission staff requested comments 

on the CPSC Web site on section 

101(b)(2), Exception for Inaccessible 

Component Parts, and section 101(b)(4), 

Certain Electronic Devices. Staff 

specifically requested comments and 

information regarding: 

• The identification of children’s 

electronic devices for which lead is 

currently used in any concentration in 

any part or component of the product. 

• Whether it is technologically 

feasible to achieve in all parts of 

children’s electronic devices the 600 

ppm lead limit; the 300 ppm limit; the 

100 ppm limit. 

• Whether any children’s electronic 

product currently on the market 

contains lead-containing component 

parts that are inaccessible, and the 

reasons why such component parts are 

considered inaccessible. 

• Current compliance with or 

possibility of compliance with 

regulations, such as the European Union 

directive on the restriction of use of 

hazardous substances (EU RoHS 

Directive 2002/95/EC), or other 

standards including information on: The 

lead limit in the standard being met 

(e.g., EU RoHS lead limit is 1000 ppm); 

whether compliance with such a 

standard was being met because of the 

existence of an exemption that 

specifically allows the use of lead in 

some parts of a product, and 

identification of such lead-containing 

parts. 

B. Comments 

Fourteen comments addressed the use 

of lead in children’s electronic devices. 

Eight comments addressed the issue of 

the technological feasibility of certain 

electronic devices meeting the CPSIA 

lead limits, indicating that for certain 

materials or parts, it would be difficult 

to achieve the specified maximum lead 

limits. One commenter interpreted 

technological feasibility as referring to 

cost-benefit analysis. 

The Commission’s proposed 

exemptions are based in part on the 

information provided by these 

commenters, along with other 

information provided by the 

Commission staff, regarding the 

difficulty in attaining compliance with 

the CPSIA for certain materials or 

products. Technological feasibility as 

defined in the CPSIA means commercial 

availability of materials or parts, or the 

possible future availability of materials 

or parts. It does not refer to economic 

considerations, such as cost-benefit 

analysis. 

Six comments addressed electronic 

components that are generally enclosed 

within the product, asserting that only 

ingestible parts should be considered 

accessible, based on small parts testing. 

The CPSIA defines accessibility as 

physical exposure to lead-containing 

component parts. Based on staff’s 

review, the Commission preliminarily 

determines that an accessible 

component part of a children’s product 

is one that a child may touch or place 

in the mouth, not just a part that a child 

might ingest. Physical inaccessibility 

refers generally to a component part that 

is located inside a product that a child 

cannot touch. Accordingly, the 

Commission is recommending in a 

proposed interpretative rule published 

elsewhere in this Federal Register, the 

use of accessibility probes, as well as 

appropriate use and abuse testing, to 

evaluate access to lead-containing 

component parts. 

Several comments were received on 

other standards that address the use of 

lead in electronic devices, specifically 

the European Union Directive 2002/95/ 

EC on the restriction of the use of 

certain hazardous substances in 

electrical and electronic equipment 

(often abbreviated as EU RoHS). Most 

comments stated that EU RoHS 

requirements would be appropriate for 

regulating children’s electronic 

products. One comment cautioned that 

the EU RoHS directive does not allow 

an exemption for inaccessible parts and 

should not be adopted for use in the 

United States. 

Because the Commission recognizes 

that it is currently not technologically 

feasible for certain parts of electronic 

devices to comply with the CPSIA lead 

limits, and because the exemptions 

published in the Annex to EU Directive 

2002/95/EC are based, in part, on 

scientific technological feasibility, the 

Commission proposes to adopt, as 

exemptions to the CPSIA lead limits for 

electronic devices, those exemptions, 

provided that the exemption is based on 

a functional requirement both for the 

use of a lead-containing component and 

for the use of lead in such component. 

However, the Commission does not 

propose to adopt the EU RoHS 

exemption for crystal glass or any other 

exemption for uses of lead that are 

solely decorative or otherwise nonfunctional since those articles would 

customarily be subject to the CPSIA lead 

limits. The current EU RoHS 

exemptions are available at http://eurlex.europa.eu/en/index/htm, and an 

annotated version is attached to the staff 

briefing memorandum referenced in the 

list of relevant documents. Since the EU 

RoHS process for reviewing exemptions 

is ongoing, the Commission proposes to 

adopt future exemptions promulgated 

under EU Directive 2002/95/EC, if 

consistent with the Commission’s 

determinations that are issued in a final 

rule on exemptions for certain 

electronic devices. The general lead 

limit in the EU RoHS directive is 0.1 

percent (equivalent to 1000 parts per 

million (ppm)), while the CPSIA limits 

are 600 ppm as of February 10, 2009, 

300 ppm as of August 14, 2009, and as 

of August 14, 2011, 100 ppm, if 

technologically feasible. Under the 

Commission’s proposed approach, 

exemption is necessary for any 

accessible component exceeding the 

pertinent CPSIA lead limit. 

C. Exemptions for Certain Electronic 

Devices 

Electronic devices are included in 

certain children’s products regulated 

under the provisions of the CPSIA. The 

CPSIA provides authority for the 

Commission under section 101(b)(4), to 

issue regulations concerning certain 

electronic devices to eliminate or 

minimize the potential for exposure to 

and accessibility of lead in such 

electronic devices if it is not 

technologically feasible to comply with 

the lead limits set by the Act. 

1. Inaccessible Electronic Devices 

Some lead-containing component 

parts of electronic devices are, by 

design, not accessible to children 

because the lead is fully enclosed 

within a component that is itself within 

the electronic device. Other components 

could be made to be inaccessible, taking 

account of normal and reasonably 

foreseeable use and abuse by children. 

Accessibility of the lead-containing 

component may be evaluated through 

application of the accessibility probes 

described in 16 CFR 1500.48 and 

1500.49, before and after use and abuse 

tests at 16 CFR 1500.50 through 1500.53 

(excluding the bite tests of 1500.51(c) 

and 1500.52(c)). If a component, 

whether an electronic device or not, is 

not accessible to a child, it is not subject 

to the lead limits under the CPSIA. A 

proposed guidance rule on 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 2437 

1European Union Directive 2002/95/EC and 

amendments to the directive are available at http:// 

eur-lex.europa.eu/en/index.htm. 

inaccessibility is published elsewhere in 

this Federal Register. 

2. Accessible Electronic Devices That 

Are Exempt 

Certain components cannot be 

produced without lead for safety 

reasons and cannot be made physically 

inaccessible. An example is a cathode 

ray tube, in which the lead in the glass 

protects users from the x-ray radiation 

generated by the device during normal 

operation. 

The European Union and other 

countries and authorities have adopted 

restrictions on the use of lead and other 

chemicals in electronic devices. The 

purpose of the restrictions is to address 

concerns related to human health and 

environmental impacts of waste 

electrical and electronic equipment. EU 

Directive 2002/95/EC1 on the restriction 

of the use of certain hazardous 

substances in electrical and electronic 

equipment, implemented July 1, 2006, 

specifies that substances such as lead be 

substituted with safer materials. The 

directive specifies a maximum 

concentration for lead of 0.1 percent 

(equivalent to 1000 parts per million 

(ppm)) in each homogeneous material in 

an electronic device. 

The directive allows certain 

exemptions ‘‘if substitution is not 

possible from the scientific and 

technical point of view or if the negative 

environmental or health impacts caused 

by substitution are likely to outweigh 

the human and environmental benefits 

of the substitution,’’ but it also specifies 

that exemptions must be reviewed at 

least every four years with the aim of 

removing such exemptions if it becomes 

technologically or scientifically possible 

to replace the lead in a particular 

application. Most exemptions refer to 

specific types of products or 

components or other applications 

without providing restrictions on lead 

concentration. Other exemptions allow 

applications that exceed the generally 

applicable 1000 ppm limit for lead 

content, but specify alternate maximum 

lead concentrations for the indicated 

materials. There is no exemption in the 

directive based on inaccessibility, since 

the goal is to restrict the overall use of 

lead in products. 

Some of the EU RoHS exemptions 

involve lead-containing components 

that would likely be inaccessible to 

children using electronic devices. Under 

the CPSIA, if the component is not 

accessible to a child, it would not be 

subject to the lead limits. A proposed 

guidance rule on inaccessibility is 

published elsewhere in this Federal 

Register. However, the Commission 

believes that some exempted uses of 

lead, such as the cathode ray tubes 

discussed above, and certain other 

components that create electrical 

connections or that are required for 

product functions, cannot be made 

inaccessible. With respect to children’s 

electronic devices, the Commission 

seeks comments on what components 

listed in the EU Directive 2002/95/EC, 

other than cathode ray tubes, cannot 

currently be made inaccessible to a 

child and why. 

Because the EU RoHS exemptions 

were established in part to consider the 

technological feasibility of limiting the 

use of lead, the Commission proposes to 

adopt, as exemptions to the CPSIA lead 

limits for electronic devices, the 

exemptions published in the Annex to 

the EU Directive 2002/95/EC, provided 

that the exemption is based on a 

functional requirement both for the use 

of a lead-containing component and for 

the use of lead in such component. The 

existing EU RoHS exemptions for 

cathode ray tubes and certain 

components or the metal alloys used to 

make certain components allow the use 

of lead in applications for which 

substitution of the lead is not yet 

feasible. On the other hand, the 

directive provides an exemption for 

crystal glass used solely for decorative 

purposes. Since such use is not required 

for the function of the electronic device, 

the Commission proposes to disallow 

the crystal glass exemption and any 

other exemption for decorative or nonfunctional uses of lead for children’s 

electronic devices subject to the CPSIA 

lead limits. 

Except for crystal glass and other nonfunctional uses of lead for children’s 

electronic devices, to the extent that a 

lead-containing component part is used 

in an electronic device and is within the 

exemptions published in the Annex to 

the EU Directive 2002/95/EC, or is 

otherwise inaccessible to a child, that 

component part would be relieved from 

the testing requirement of section 102 

for purposes of supporting the required 

certification. The current EU RoHS 

exemptions are available at http://eurlex.europa.eu/en/index/htm, and an 

annotated list of the exemptions are 

attached to the staff briefing 

memorandum referenced in the list of 

relevant documents. Since the EU RoHS 

process for reviewing exemptions is 

ongoing, the Commission proposes to 

adopt future exemptions promulgated 

under EU Directive 2002/95/EC, if 

consistent with the Commission’s 

determinations that are issued in a final 

rule on exemptions for certain 

electronic devices. 

Of course even where a component 

part has been relieved of the testing 

requirement, other component parts that 

are accessible or that do not fall within 

the scope of the EU RoHS exemptions 

must still meet the statutory lead level 

requirements, and would be subject to 

the testing requirement of section 102 of 

the CPSIA. 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. 

3. Removable or Replaceable 

Component Parts 

Some components of electronic 

devices may be removable or 

replaceable. For example, battery packs 

and light bulbs may be provided as 

spare or replacement parts. Until such 

components are installed in the product, 

lead-containing parts may be accessible 

to a child. However, the Commission 

proposes that spare parts or other 

removable components be considered 

inaccessible under the provisions of the 

CPSIA, provided that the leadcontaining component is inaccessible 

when the product is assembled in 

functional form or if the component 

itself meets the criteria for exemption, 

such as under the possible exemptions 

with respect to EU RoHS. 

4. Accessible Electronic Devices Which 

Are Not Exempt 

All component parts of electronic 

devices that exceed the CPSIA’s 

specified lead limits which cannot be 

made inaccessible and that are not 

exempted on the basis of exemptions 

adopted by the Commission from EU 

RoHS must comply with the lead limits 

specified in the CPSIA. The 

Commission notes that the 

implementation of EU RoHS and similar 

regulations has resulted in enormous 

advances in electronics technologies. 

On the basis of the preliminary 

information obtained by the staff, the 

Commission believes that in many, if 

not most, cases, materials and 

components used in electronic devices 

that meet the EU RoHS directive’s 

general lead limit at 1000 ppm will also 

meet the CPSIA’s 600 ppm limit, and 

possibly the 300 ppm limit. Therefore, 

the Commission’s expectation is that, 

with the exception of a few particular 

applications such as cathode ray tubes, 

many electronic devices will be in 

compliance with the CPSIA lead 

provisions either because they already 

meet the lead content limits or through 

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2438 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Proposed Rules 

containing component parts. However, 

to the extent that an accessible 

component part does not qualify for EU 

RoHS exemption, it must continue to 

meet the CPSIA lower lead limits, not 

the EU RoHS lead limit of 1000 ppm. 

5. Periodic Review 

Because of the changing state of 

technology and continuing progress in 

replacing lead with other substances, 

and consistent with the CPSIA mandate 

to conduct periodic reviews under 

section 101(b)(5), the Commission will 

direct staff to reevaluate the 

technological feasibility of compliance 

with the lead limits for electronic 

devices, including the status of EU 

RoHS limits and exemptions, no less 

than every five years. 

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 

excluding certain electronic devices 

from the requirements of Section 101(a) 

of the CPSIA. That assessment found 

that the potential cost of the rule 

consists of the continued risk associated 

with the absorption of lead from the 

children’s electronic products that, in 

the absence of the exemption, would not 

have been available for use. The 

potential benefit, on the other hand, 

consists of the value that consumers 

attach to having the otherwise barred 

children’s electronic devices available 

for use. Because the rule would allow 

the continued use of some leadcontaining electronic devices intended 

for the use of children, when it is not 

technologically feasible to produce the 

devices without lead, there would be 

some amount of exposure of lead from 

these products. However, the 

exemptions are not expected to increase 

the lead exposure to children from 

electronic devices, relative to pre-CPSIA 

levels. In some cases, limitations on the 

exemptions should help reduce lead 

exposure. For example, under the 

exemptions proposed in the rule, the 

use of lead crystal with children’s 

electronic products for decorative 

purposes would not be allowed. 

Additionally, the exemptions could, in 

some cases, ultimately result in reduced 

lead exposure if, in the absence of the 

exemptions, parents would have 

substituted for their children’s use 

electronic products intended for the 

general public—products not subject to 

the lead limitations of the CPSIA. 

The number of small businesses that 

will be directly affected by the rule is 

unknown but could be considerable. 

However, because the proposed rule is 

designed to exempt certain specified 

materials from the requirements of 

section 101(a) of the CPSIA, 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 exempted materials. 

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 use of 

lead over what is occurring at the 

present time. Therefore, the 

Commission does not expect the 

proposal 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 Federal Hazardous Substances Act. 

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 it grants an 

exemption. 5 U.S.C. 553(d)(1). Because 

the proposed rule would grant 

exemptions from the existing 

requirements, the effective date will be 

the date of publication of a final rule in 

the Federal Register. 

H. Request for Comments 

Interested persons are invited to 

submit comment on the proposed rule. 

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. 

I. 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) Exclusions and 

Exemptions from Compliance with 

Limits for Lead: Inaccessibility and 

Certain Electronic Devices.’’ December 

2008. 

(2) Memorandum from Robert 

Franklin, Economist, Directorate for 

Economic Analysis, ‘‘Preliminary 

Regulatory Analysis of a Rule 

Exempting Certain Electronic Devices 

from Section 101(a) of the Consumer 

Product Safety Improvement Act.’’ 

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. 

J. Conclusion 

For the reasons stated above, the 

Commission amends 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 § 1500.88 to read as 

follows: 

§ 1500.88 Exemptions from Lead Limits 

under section 101 of the Consumer Product 

Safety Improvement Act for Certain 

Electronic Devices. 

(a) The Consumer Product Safety 

Improvement Act (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. On August 

14, 2011, the limit may be further 

reduced to 100 ppm, unless the 

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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 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. 

(c) Lead-containing component parts 

in electronic devices unable to meet the 

lead limits set forth in section (a) due to 

technological feasibility are granted 

exemptions published in the Annex to 

the European Union Directive 2002/95/ 

EC, as amended through European 

Union Commission Decision of January 

24, 2008, provided that the exemption is 

based on a functional requirement both 

for the use of a lead-containing 

component and for the use of lead in 

such component, and does not include 

the crystal glass exemption and any 

other exemption for decorative or nonfunctional uses of lead. 

(d) Components of electronic devices 

that are removable or replaceable such 

as battery packs and light bulbs that are 

inaccessible when the product is 

assembled in functional form or are 

otherwise granted an exemption 

published in the Annex of European 

Union Directive 2002/95/EC are not 

subject to the lead limits in section (a). 

(e) Commission staff is directed to 

reevaluate and report to the Commission 

on the technological feasibility of 

compliance with the lead limits in 

section (a) no less than five years after 

publication of a final rule in the Federal 

Register on electronic devices. 

Dated: January 9, 2009. 

Todd A. Stevenson, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. E9–716 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; 

Interpretative Rule on Inaccessible 

Component Parts 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Proposed interpretative rule. 

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(a) 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. 

Section 101(b)(2)(B) of the CPSIA 

further directs the Commission to 

promulgate by August 14, 2009, a rule 

providing guidance with respect to what 

product components or classes of 

components will be considered to be 

inaccessible. In this document, the 

Commission is proposing an 

interpretative rule providing guidance 

on inaccessible component parts. 

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 

Sec101InaccessibleRule@cpsc.gov. 

Comments should be captioned 

‘‘Section 101 Inaccessible Component 

Parts.’’ 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 

parts per million (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. 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. 

To the extent a component part is 

inaccessible to a child, that component 

part would be relieved from the testing 

requirement of section 102 of the CPSIA 

for purposes of supporting the required 

certification. Of course even where a 

component part has been so relieved of 

the testing requirement, other 

component parts that are accessible 

must still meet the statutory lead level 

requirements, and would be subject to 

the testing requirement of section 102. 

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 the limits are exceeded 

in accessible parts. 

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