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[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69596-69599]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27676]

[[Page 69595]]

Vol. 76

Tuesday,

No. 216

November 8, 2011

Part VI

Consumer Product Safety Commission

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16 CFR Chapter II

Application of Third Party Testing Requirements; Reducing Third Party 
Testing Burdens; Proposed Rule

Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / 
Proposed Rules

[[Page 69596]]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Chapter II

Application of Third Party Testing Requirements; Reducing Third 
Party Testing Burdens

AGENCY: Consumer Product Safety Commission.

ACTION: Request for comments.

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SUMMARY: The Consumer Product Safety Commission staff (``CPSC,'' 
``Commission,'' or ``we'') invites public comment on opportunities to 
reduce the cost of third party testing requirements consistent with 
assuring compliance with any applicable consumer product safety rule, 
ban, standard, or regulation. Third party testing requirements apply to 
most children's products that are subject to a children's product 
safety rule. We are taking this action pursuant to section 14(i)(3)(A) 
of the Consumer Product Safety Act (``CPSA''), as amended by H.R. 2715, 
Public Law 112-28.\1\
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    \1\ The Commission voted 5-0 to publish this notice, with 
changes, in the Federal Register. Chairman Inez M. Tenenbaum, 
Commissioner Robert S. Adler, and Commissioner Thomas H. Moore 
issued a joint statement. Commissioner Nancy A. Nord issued a 
statement. The statements can be found at http://www.cpsc.gov/pr/statements.html.

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DATES: Written comments must be submitted by January 23, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0081, by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    To ensure timely processing of comments, the Commission is no 
longer accepting comments submitted by electronic mail (email), except 
through www.regulations.gov.

Written Submissions

    Submit written submissions in the following way:
    Mail/Hand delivery/Courier (for paper, disk, or CD-ROM 
submissions), preferably in five copies, to: Office of the Secretary, 
Consumer Product Safety Commission, Room 502, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received may be posted 
without change, including any personal identifiers, contact 
information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
electronically. Such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Randy Butturini, Project Manager, 
Office of Hazard Identification and Reduction, U.S. Consumer Product 
Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; 
telephone (301) 504-7562; email RButturini@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. What is third party testing? Why is it required?

    Section 14(a)(2) of the Consumer Product Safety Act (CPSA) (15 
U.S.C. 2063(a)(2)) establishes testing requirements for children's 
products that are subject to a children's product safety rule. Section 
3(a)(2) of the CPSA (15 U.S.C. 2052(a)(2)) defines a ``children's 
product,'' in relevant part, as a consumer product designed or intended 
primarily for children 12 and younger. Section 14(a)(2)(A) of the CPSA 
also states that, before a children's product that is subject to a 
children's product safety rule is imported for consumption or 
warehousing or distributed in commerce, the manufacturer or private 
labeler of such children's product must submit sufficient samples of 
the children's product ``or samples that are identical in all material 
respects to the product'' to an accredited ``third party conformity 
assessment body'' to be tested for compliance with the children's 
product safety rule. Based on such testing, the manufacturer or private 
labeler, in accordance with section 14(a)(2)(B) of the CPSA, must issue 
a certificate that certifies that such children's product complies with 
the children's product safety rule based on the assessment of a third 
party conformity assessment body accredited to perform such tests.
    Section 14(i)(2)(A) of the CPSA requires that we initiate a program 
by which a manufacturer or private labeler may label a consumer product 
as complying with the certification requirements. This provision 
applies to all consumer products that are subject to a product safety 
rule administered by the Commission.
    Section 14(i)(2)(B) of the CPSA requires that we establish 
protocols and standards for: (1) Ensuring that a children's product 
tested for compliance with a children's product safety rule is subject 
to testing periodically and when there has been a material change in 
the product's design or manufacturing process, including the sourcing 
of component parts; (2) testing of representative samples; (3) 
verifying that a children's product tested by a conformity assessment 
body complies with applicable children's product safety rules; and (4) 
safeguarding against the exercise of undue influence on a third party 
conformity assessment body by a manufacturer or private labeler.
    In the Federal Register of May 20, 2010 (75 FR 28336), we published 
a proposed rule titled, ``Testing and Labeling Pertaining to Product 
Certification,'' which would establish, among other things, 
requirements for compliance and continuing testing for children's 
products and the labeling of consumer products to indicate that they 
meet the certification requirements in section 14(a) of the CPSA. In 
the same issue of the Federal Register, we also published a proposed 
rule on ``Conditions and Requirements for Testing Component Parts of 
Consumer Products'' (75 FR 28208); the proposed rule would establish 
requirements regarding the testing of component parts of consumer 
products to demonstrate, in whole or in part, their compliance with 
applicable rules, bans, standards, and regulations to support a 
certificate for a children's product.
    On August 12, 2011, the President signed H.R. 2715 into law (Pub. 
L. 112-28). Section 2 of H.R. 2715 amended what was then section 14(d) 
of the CPSA in several ways, including:
     Renumbering section 14(d) of the CPSA, as it pertained to 
``Additional Regulations for Third Party Testing,'' as section 14(i) of 
the CPSA. Congress took this action because the CPSA, as amended by the 
Consumer Product Safety Improvement Act of 2008 (Pub. L. 110-314), 
inadvertently created a second paragraph (d) in section 14 of the CPSA;
     Requiring us to seek public comment, not later than 60 
days after H.R. 2715's enactment, on opportunities to reduce the cost 
of third party testing requirements consistent with assuring compliance 
with any applicable consumer product safety rule, ban, standard, or 
regulation. H.R. 2715 also specifies seven issues for public comment.
    Thus, this notice complies with the requirement that we seek public

[[Page 69597]]

comment on the issues specified in H.R. 2715.

II. What are the issues for which we invite comment?

    As directed by H.R. 2715, we invite public comment on opportunities 
to reduce the cost of third party testing requirements consistent with 
assuring compliance with any applicable consumer product safety rule, 
ban, standard, or regulation. (Elsewhere in this issue of the Federal 
Register, we have published the final rule on ``Testing and Labeling 
Pertaining to Product Certification,'' the final rule on ``Conditions 
and Requirements for Relying on Component Part Testing or 
Certification, or Another Party's Finished Product Testing or 
Certification, to Meet Testing and Certification Requirements,'' and a 
proposed rule on ``Testing and Labeling Pertaining to Product 
Certification Regarding Representative Samples for Periodic Testing of 
Children's Products.'' Interested parties may wish to familiarize 
themselves with the two final rules and the one proposed rule before 
responding to this notice.) We identify each issue, using the language 
set forth in H.R. 2715, and, after each issue, provide additional 
questions to refine the issue further or to focus comments on 
particular concerns or questions.
    1. Issue 1--The extent to which the use of materials subject to 
regulations of another government agency that requires third party 
testing of those materials may provide sufficient assurance of 
conformity with an applicable consumer product safety rule, ban, 
standard, or regulation without further third party testing.
     What materials are subject to regulations of another 
government agency that require third party testing? Please specify the 
materials and the government agency's regulation. Please summarize the 
purpose, test methods, and testing frequency required by the government 
agency, and describe how compliance with the government agency's 
regulation is relevant to demonstrating compliance with the specific 
consumer product safety rule(s), ban(s), standard(s), or regulation(s). 
Please state whether the government agency requires third party testing 
to be conducted by a third party conformity assessment body meeting the 
requirements of section 14(f)(2) of the CPSA. If the government agency 
permits testing by third party conformity assessment bodies that do not 
meet the requirements of section 14(f)(2) of the CPSA, what is the 
basis for assuring the testing laboratories' technical competence and 
protection against undue influence? Also, please address whether the 
number of laboratories used by a single testing party, or the number of 
products tested, could be reduced, while still assuring compliance with 
all applicable consumer product safety rules, bans, standards, or 
regulations, by aligning the CPSC's rules governing the frequency of 
third-party testing and the sampling of products for testing with the 
rules governing product testing under the regulations of the other 
government agency that requires third party testing.
     Currently, third party testing of materials subject to a 
rule, ban, standard, or regulation that we administer requires a third 
party conformity assessment body (testing laboratory) to apply to the 
CPSC for acceptance of the third party conformity assessment body's 
accreditation using CPSC-specified testing methods. The application 
includes specific requirements for the testing laboratory's 
accreditation body and has extra requirements for firewalled or 
governmental testing laboratories. Should the other governmental 
agencies' third party conformity assessment bodies also comply with 
these requirements in order for their testing results to provide 
sufficient assurance of conformity with an applicable consumer product 
safety rule? Why or why not?
     Should the same testing methods as required by the CPSC-
accepted testing laboratories be required for any third party 
conformity assessment bodies to provide sufficient assurance of 
conformity to an applicable product safety rule? Why or why not?
    2. Issue 2--The extent to which modification of the certification 
requirements may have the effect of reducing redundant third party 
testing by or on behalf of 2 or more importers of a product that is 
substantially similar or identical in all material respects.
     What situations might result in redundant third party 
testing by or on behalf of two or more importers of a product that is 
substantially similar or identical in all material respects? Please 
provide a definition and examples of products that are considered 
``substantially similar'' or ``identical in all material respects.''
     How might the certification requirements of section 14 of 
the CPSA be modified to reduce redundant third party testing by or on 
behalf of two or more importers of a product that is substantially 
similar or identical in all material respects?
     How should we determine that a product is substantially 
similar to another product or ``identical in all material respects,'' 
in order to allow reduced third party testing?
     If an exporter third party tests and/or certifies a 
product and provides importers copies of test results, certificates, 
and other information needed by the importer to issue its own finished 
product certificate, what additional steps might the importer take to 
ensure the compliance of the product to the applicable product safety 
rules?
    3. The extent to which products with a substantial number of 
different components subject to third party testing may be evaluated to 
show compliance with an applicable rule, ban, standard, or regulation 
by third party testing of a subset of such components selected by a 
third party conformity assessment body.
     How might we interpret ``substantial number of different 
components?''
     In general, the final rule on ``Conditions and 
Requirements for Relying on Component Part Testing or Certification, or 
another Party's Finished Product Testing or Certification, to Meet 
Testing and Certification Requirements'' establishes conditions and 
requirements for relying on testing or certification of component parts 
of consumer products, or another party's finished product testing or 
certification, to demonstrate, in whole or in part, compliance of a 
consumer product with all applicable rules, bans, standards, and 
regulations: (1) To support a children's product certificate (``CPC''); 
(2) as part of the standards and protocols for continued testing of 
children's products; and/or (3) to meet the requirements of any other 
rule, ban, standard, guidance, policy, or protocol regarding consumer 
product testing that does not already directly address component part 
testing. The final rule is intended to give all parties involved in 
testing and certifying consumer products pursuant to sections 14(a) and 
14(i) of the CPSA the flexibility to conduct or rely on required 
certification testing where such testing is the easiest and least 
expensive. However, the final rule does not require third party 
conformity assessment bodies to select component part samples for 
testing, nor does it specify how many samples are to be tested; sample 
selection is left to the manufacturer or importer. Thus, how should a 
third party conformity assessment body select or determine the subset 
of components to test? Should the subset of components be a 
statistically valid sampling of the population of component parts? How 
might one assure that the subset of component parts is representative 
of the

[[Page 69598]]

population of component parts? Please explain.
     How would the test results on a subset of components infer 
compliance of the untested components?
     Should some form of batch/lot control be used on these 
components to identify and ensure that only approved component 
materials are used in producing the finished product? If so, what forms 
might provide the desired level of control with the least burden? 
Please explain.
     What similarities should be required among the different 
components in order to be evaluated in this manner?
    4. Issue 4--The extent to which manufacturers with a substantial 
number of substantially similar products subject to third party testing 
may reasonably make use of sampling procedures that reduce the overall 
test burden without compromising the benefits of third party testing.
     How might we interpret:
    [cir] ``Substantial number''?
    [cir] ``Substantially similar products''?
    [cir] ``Reasonably make use?''
    For example, if a manufacturer makes toy cars and toy boats, are 
they ``substantially similar'' products in the sense that they are all 
toy ``vehicles''? Does ``substantially similar'' refer to the type of 
products and/or their composition? Can first party testing (meaning 
testing by the manufacturer rather than testing by a third party) be 
designed to show the similarity between the products?
     Also, sampling procedures that may seem ``reasonable'' to 
one manufacturer, such as a large firm that makes many products, may 
not seem ``reasonable'' to another, such as an individual who makes a 
similar product by hand. How might a manufacturer combine knowledge 
from first party testing to develop a sampling plan for third party 
testing that reduces the overall test burden while still allowing the 
compliance of untested products to be inferred from the products tested 
by the third party conformity assessment body? What knowledge from 
first party testing would be used to develop the sampling plan and how 
would the plan be structured?
     What sampling procedures could be used with a set of 
substantially similar products to reduce the overall test burden 
without compromising the benefits of third party testing?
    5. Issue 5--The extent to which evidence of conformity with other 
national or international governmental standards may provide assurance 
of conformity to consumer product safety rules, bans, standards, or 
regulations applicable under [the CPSA].
     Please identify national or international governmental 
standards that provide assurance of conformity to consumer product 
safety rules, bans, standards, or regulations under the CPSA. How 
should the CPSC evaluate the equivalency of such national or 
international standards?
     What constitutes ``evidence of conformity''? If a product 
bears a mark indicating conformance to the standard of another 
government or an international body, what factors should be considered 
in determining whether conformance to the standard of another 
government or an international body provides assurance of conformity to 
U.S. standards? In the event the Commission were to have a sufficient 
level of assurance of conformity to U.S. standards, how much should the 
concern regarding the likely existence of counterfeit marks inform the 
Commission's consideration of accepting those marks as evidence of 
conformity?
     If the test methods used by other national or 
international governmental standards are not those required by CPSC-
accepted third party conformity assessment bodies for determining 
compliance with a consumer product safety rule, ban, standard, or 
regulation, what additional information should be required to provide 
assurance of conformity?
     If a CPSC-accepted third party conformity assessment body 
is not used, what assurance should be provided of the testing 
laboratory's technical competence and protections against undue 
influence?
    6. Issue 6--The extent to which technology, other than the 
technology already approved by the Commission, exists for third party 
conformity assessment bodies to test or to screen for testing consumer 
products subject to a third party testing requirement.
     Please identify specific technologies, except for those 
that have already been approved by the CPSC, that may be used to test 
or screen a consumer product subject to a third party testing 
requirement.
     What are the objective requirements that we should use to 
evaluate testing or screening technologies for consumer products (e.g., 
accuracy, precision, repeatability, sensitivity, linearity)? What 
objective requirements, if any, should exist for those who would use 
the testing or screening technology? For example, assume that a machine 
exists that can detect the presence of a particular substance. If the 
machine must be calibrated before each use, then an individual using 
the machine should be aware of the need to calibrate the machine and 
also should be trained to do such calibrations; otherwise, using an 
improperly calibrated machine could lead to incorrect or misleading 
test results.
     In what ways (and by how much) should screening 
technologies be allowed to be less technically capable than testing 
technologies?
     Should screening technologies be allowed only for third 
party conformity assessment bodies to use, or should certifiers be 
allowed to use screening technologies as a means of reducing third 
party testing? What controls or limits should be placed on first party 
use of screening technologies?
    7. Issue 7--Other techniques for lowering the cost of third party 
testing consistent with assuring compliance with the applicable 
consumer product safety rules, bans, standards, and regulations.
     Are there techniques, consistent with assuring compliance 
with applicable consumer product safety rules, bans, standards, and 
regulations, that can use a risk-based analysis to reduce the cost of 
third party testing? If yes, please describe what they are. What other 
techniques might exist for lowering the cost of third party testing but 
still assure compliance with applicable consumer product safety rules, 
bans, standards, and regulations? Please describe how the other 
technique(s) lower(s) testing costs and still assure compliance.
     Under what circumstances could component part testing (as 
described in the final rule on component part testing, which appears 
elsewhere in this issue of the Federal Register) be expanded beyond 
what is already permitted in the rule to reduce the overall test burden 
without compromising the benefits of third party testing?

III. How should comments be submitted?

    We invite public comment on the issues identified in part II of 
this document, as well as any comments on other opportunities to reduce 
the cost of third party testing requirements consistent with assuring 
compliance with any applicable consumer product safety rule, ban, 
standard, or regulation. Written comments should be submitted by 
January 23, 2012, as described in the ADDRESSES portion of this 
document.

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    Dated: October 21, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-27676 Filed 11-7-11; 8:45 am]
BILLING CODE 6355-01-P
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