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[Federal Register Volume 76, Number 78 (Friday, April 22, 2011)]
[Rules and Regulations]
[Pages 22608-22610]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9790]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1610

[CPSC Docket No. CPSC-2010-0086]

Third Party Testing for Certain Children's Products; Clothing 
Textiles: Revisions to Terms of Acceptance of Children's Product 
Certifications Based on Third Party Conformity Assessment Body Testing 
Prior to Commission's Acceptance of Accreditation

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of requirements; revision of retrospective testing 
terms.

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SUMMARY: The U.S. Consumer Product Safety Commission (``CPSC,'' 
``Commission,'' or ``we'') issues this notice amending the terms under 
which it will accept certifications for children's products based on 
third party conformity assessment body (laboratory) testing to the 
flammability regulations at 16 CFR part 1610 that occurred before the 
Commission's acceptance of the accreditation of the third party 
conformity assessment body.\1\ We are taking this action in response to 
a request from certain members of the clothing textile industry to 
reduce unnecessary retesting of clothing textiles that have been tested 
already and found to be in compliance with CPSC regulations.
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    \1\ The Commission voted 4-0-1 to publish this revision to the 
notice of requirements for clothing textiles. Commissioners Nancy A. 
Nord and Anne M. Northup each issued a statement, and the statements 
can be found at http://www.cpsc.gov/pr/statements.html.

DATES: Effective Date: The revision announced in this document is 
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effective April 22, 2011.

FOR FURTHER INFORMATION CONTACT: Robert ``Jay'' Howell, Assistant 
Executive Director for the Office of Hazard Identification and 
Reduction, U.S. Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, MD 20814; e-mail: rhowell@cpsc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2) 
of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public 
Law 110-314, directs the CPSC to publish a notice of requirements for 
accreditation of third party conformity assessment bodies to assess 
children's products for conformity with ``other children's product 
safety rules.'' Section 14(f)(1) of

[[Page 22609]]

the CPSA defines ``children's product safety rule'' as ``a consumer 
product safety rule under [the CPSA] or similar rule, regulation, 
standard, or ban under any other Act enforced by the Commission, 
including a rule declaring a consumer product to be a banned hazardous 
product or substance.'' Under section 14(a)(3)(A) of the CPSA, each 
manufacturer (including the importer) or private labeler of products 
subject to a children's product safety rule must have products that are 
manufactured more than 90 days after the Commission has established and 
published notice of the requirements for accreditation tested by a 
third party conformity assessment body accredited to do so, and must 
issue a certificate of compliance with the applicable regulations based 
on that testing. Section 14(a)(2) of the CPSA requires that 
certification be based on testing of sufficient samples of the product, 
or samples that are identical in all material respects to the product. 
The Commission also emphasizes that, irrespective of certification, the 
product in question must comply with applicable CPSC requirements (see, 
e.g., section 14(h) of the CPSA).
    In the Federal Register of August 18, 2010 (75 FR 51016), we 
published a notice of requirements providing the criteria and process 
for Commission acceptance of accreditation of third party conformity 
assessment bodies for testing pursuant to 16 CFR part 1610, ``Standard 
for the Flammability of Clothing Textiles,'' which sets minimum 
standards for flammability of clothing textiles under the Flammable 
Fabrics Act (15 U.S.C. 1191 et seq.) (FFA). The notice of requirements 
stated that its publication had the effect of lifting the stay of 
enforcement with regard to testing and certification of children's 
products under 16 CFR part 1610. This meant that each manufacturer of 
clothing textiles that are children's products must have any such 
product manufactured after November 16, 2010, tested by a third party 
conformity assessment body accredited to do so, and must issue a 
certificate of compliance based on that testing (75 FR at 51018).
    We addressed testing performed by a third party conformity 
assessment body prior to the Commission's acceptance of its 
accreditation, or ``retrospective'' testing, in section IV of the 
notice of requirements. We stated that we would accept a certificate of 
compliance with the standard included in 16 CFR part 1610 based on 
testing performed by an accredited third party conformity assessment 
body (including a government-owned or -controlled conformity assessment 
body, and a firewalled conformity assessment body), prior to the 
Commission's acceptance of its accreditation if:
     The product was tested by a third party conformity 
assessment body that was ISO/IEC 17025 accredited by an ILAC-MRA member 
at the time of the test. For firewalled conformity assessment bodies, 
the firewalled conformity assessment body must be one that the 
Commission accredited by order at or before the time the product was 
tested, even though the order will not have included the test methods 
in the regulations specified in this notice. If the third party 
conformity assessment body has not been accredited by a Commission 
order as a firewalled conformity assessment body, the Commission will 
not accept a certificate of compliance based on testing performed by 
the third party conformity assessment body before it is accredited, by 
Commission order, as a firewalled conformity assessment body;
     The third party conformity assessment body's application 
for testing using the test methods in 16 CFR part 1610 is accepted by 
the CPSC on or before October 18, 2010;
     The product was tested under 16 CFR part 1610 on or after 
August 18, 2010;
     The accreditation scope in effect for the third party 
conformity assessment body at the time of testing expressly included 
testing to 16 CFR part 1610;
     The test results show compliance with the applicable 
current standards and/or regulations; and
     The third party conformity assessment body's 
accreditation, including inclusion in its scope of 16 CFR part 1610, 
remains in effect through the effective date for mandatory third party 
testing and manufacturer certification for conformity with 16 CFR part 
1610.

75 FR at 51019 through 51020.

II. Requests for Revision

    On December 2, 2010, the American Apparel and Footwear Association 
(AAFA) submitted a letter to the Commission requesting that we ``extend 
the testing and certification date by an additional 60 days,'' and that 
we amend section IV of the notice of requirements ``to accept third 
party tests done on or after August 18, 2009 by testing facilities 
accredited on or before November 16, 2010.'' (The AAFA letter may be 
viewed at http://www.regulations.gov in the docket folder for docket 
number CPSC-2010-0086.)
    The AAFA based its request for an extension of the testing and 
certification date on our authority in section 102(a)(3)(F) of the 
CPSIA, which states:

    If the Commission determines that an insufficient number of 
third party conformity assessment bodies have been accredited to 
permit certification for a children's product safety rule under the 
accelerated schedule required by this paragraph, the Commission may 
extend the deadline for certification to such rule by not more than 
60 days.

15 U.S.C. 2063(a)(3)(F). The AAFA contended that there is an 
insufficient number of CPSC-accepted third party laboratories 
accredited to 16 CFR part 1610. It presented three arguments in support 
of this contention. First, it argued that although there were 67 CPSC-
accepted laboratories accredited to test to 16 CFR part 1610 as of 
November 16, 2010, those laboratories were not geographically 
distributed in such a way as to meet industry needs. Second, it stated 
a concern that many apparel manufacturers are not aware of their 
obligation to use CPSC-accepted laboratories. Third, the AAFA also 
asserted that many companies were unaware that the stay of enforcement 
on the testing and certification requirements for children's apparel 
had been lifted.
    The AAFA stated that limiting acceptable retrospective tests to 
those conducted since August 18, 2010, would ``further back up testing 
facilities and be an unnecessary burden on business * * * [and would] 
put at a disadvantage those companies who had taken the proactive step 
to engage in third party testing'' prior to August 18, 2010. It noted 
that many textiles are tested before they are manufactured into 
garments and explained that in some cases, the time that elapses 
between when a textile has been tested and when the garment is produced 
can be ``several months or even years.'' In addition, the AAFA stated 
that limiting retrospective tests to those conducted since August 18, 
2010, ``unnecessarily adversely affects the continuing guarantees * * * 
issued * * * pursuant to Section 8 of the FFA.'' Section 8 of the FFA 
provides that a manufacturer or supplier of clothing textiles may issue 
a guaranty, based on reasonable and representative testing, that the 
clothing textile complies with FFA standards. The holder of a valid 
guaranty is not subject to criminal prosecution under section 7 of the 
FFA (penalties) for a violation of section 3 of the FFA (prohibited 
transactions). A continuing guaranty is a notarized declaration filed 
with the Commission in which the manufacturer avers that it has 
conducted the requisite reasonable and representative product testing 
and that the testing shows that the product conforms to 16 CFR part

[[Page 22610]]

1610. A continuing guaranty remains valid for three years (and at such 
other times as any change occurs in the legal business status of the 
person filing the guaranty).

III. The Response to the Requests

A. Request To Extend the Testing and Certification Date by an 
Additional 60 Days

    We decline to extend the date by which a manufacturer of a 
children's product subject to 16 CFR part 1610 must have such product 
tested by a third party conformity assessment body accredited to do so 
and must issue a certificate of compliance based on that testing. We 
have the authority to grant such a request only if there is 
insufficient laboratory capacity. The existence of 67 CPSC-accepted 
labs accredited to test to 16 CFR part 1610 as of November 16, 2010, 
belies the claim of insufficient laboratory capacity, even if the 
laboratories are not distributed geographically as the AAFA would 
prefer.
    We also disagree with the AAFA's assertion, as another basis for an 
extension, that some manufacturers are not fully aware that children's 
product certifications must be based on testing conducted by CPSC-
accepted third party laboratories, and that many companies are unaware 
that the stay of enforcement on the testing and certification 
requirements had been lifted for children's apparel. The CPSIA became 
law in August 2008, and we published the notice of requirements 
pertaining to 16 CFR part 1610 in the Federal Register on August 18, 
2010. The statute's existence, as well as the publication of the notice 
of requirements for 16 CFR part 1610, provided notice of these 
manufacturers' legal obligations. Additionally, the Commission 
encourages the apparel and textile trade associations to educate the 
industry on their obligations under the CPSIA and FFA.
    Finally, we note that section 14(a)(3)(E) of the CPSA authorizes 
the Commission to extend the deadline for certification ``by not more 
than 60 days.'' Such a time period is measured from the date on which 
such certification would have been required. In this case, the 
certification requirement became effective for products manufactured 
after November 16, 2010; therefore, a 60-day extension, had it been 
granted, would have expired in mid-January 2011. Thus, the AAFA's 
request for an extension is moot.

B. Request To Accept, for Children's Product Certification Purposes, 
Tests Pursuant to 16 CFR Part 1610 Conducted by Accredited Third Party 
Laboratories Since August 18, 2009

    We have considered AAFA's request and, through this notice, are 
revising our position regarding ``Limited Acceptance of Children's 
Product Certifications Based on Third Party Conformity Assessment Body 
Testing Prior to the Commission's Acceptance of Accreditation.'' Due to 
the nature of the wearing apparel industry, there is a possible 
significant time lapse between fabric testing and the finished garment. 
This could mean that some products that were tested previously by 
laboratories that have since become CPSC-accepted, would need to be 
retested. Therefore, we agree that revising our position on 
``retrospective'' testing is appropriate because it will reduce further 
the potential need for redundant testing. We will accept children's 
product certifications based on third party conformity assessment body 
testing, prior to our acceptance of accreditation, under the following 
conditions:
     At the time of product testing, the product was tested by 
a third party conformity assessment body that was ISO/IEC 17025 
accredited by an accreditation body that is a signatory to the ILAC-
MRA;
     The third party conformity assessment body's application 
for testing using the test methods in 16 CFR part 1610 is accepted by 
the CPSC on or before November 16, 2010;
     The product was tested under 16 CFR part 1610 on or after 
August 18, 2009;
     The accreditation scope in effect for the third party 
conformity assessment body at the time of testing expressly included 
testing to 16 CFR part 1610;
     The test results show compliance with the applicable 
current standards and/or regulations; and
     The third party conformity assessment body's 
accreditation, including inclusion in its scope of 16 CFR part 1610, 
remains in effect through the effective date for mandatory third party 
testing and manufacturer certification for conformity with 16 CFR part 
1610.

    Dated: April 19, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-9790 Filed 4-21-11; 8:45 am]
BILLING CODE 6355-01-P
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