49286 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

1The Commission voted 5–0 to publish this 

notice of requirements, with amendments, in the 

Federal Register. Chairman Inez M. Tenenbaum 

and Commissioners Thomas H. Moore and Robert 

S. Adler filed a joint statement regarding the vote. 

Commissioners Nancy A. Nord and Anne M. 

Northup filed individual statements. The 

statements may be viewed at http://www.cpsc.gov/ 

pr/statements/html. 

amending Class D airspace at Cabaniss 

Navy Outlying Field (NOLF), Corpus 

Christi, TX. 

DATES: Effective date: 0901 UTC August 

25, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd., Fort 

Worth, TX 76137; telephone (817) 321– 

7716. 

SUPPLEMENTARY INFORMATION: 

History 

On June 2, 2011, the FAA published 

in the Federal Register a final rule 

amending Class D airspace at Cabaniss 

NOLF, Corpus Christi, TX (76 FR 31821, 

Docket No. FAA–2010–1171). 

Subsequent to publication, an error was 

discovered in the latitude coordinates 

listed in the regulatory text. This action 

corrects that error. Class D airspace 

designations are published in paragraph 

5000 of FAA Order 7400.9U dated 

August 18, 2010, and effective 

September 15, 2010, which is 

incorporated by reference in 14 CFR 

Part 71.1. The Class D airspace 

designations listed in this document 

will be published subsequently in the 

Order. 

Correction to Final Rule 

Accordingly, pursuant to the 

authority delegated to me, the latitude 

coordinates listed in the regulatory text 

for the Class D airspace area at Cabaniss 

NOLF, Corpus Christi, TX, as published 

in the Federal Register June 2, 2010 (76 

FR 31821), (FR Doc. 2011–13559), are 

corrected as follows: 

ASW TX D Corpus Christi, TX 

[Corrected] 

Cabaniss NOLF, TX 

On page 31822, column 1, line 49 of 

the regulatory text, remove ‘lat. 

27°38′15′′ N.,’ and insert ‘lat. 27°38′16′′ 

N.’; and on line 50 remove ‘lat. 

27°41′30′′ N.,’ and insert ‘lat. 27°41′22′′ 

N.’ 

Issued in Fort Worth, Texas, on August 2, 

2011. 

Walter L. Tweedy, 

Acting Manager, Operations Support Group, 

ATO Central Service Center. 

[FR Doc. 2011–20303 Filed 8–9–11; 8:45 am] 

BILLING CODE 4910–13–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 Chapter II 

[CPSC Docket No. CPSC–2011–0052] 

Third Party Testing for Certain 

Children’s Products; Notice of 

Requirements for Accreditation of 

Third Party Conformity Assessment 

Bodies To Assess Conformity With the 

Limits on Phthalates in Children’s 

Toys and Child Care Articles 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice of Requirements. 

SUMMARY: The Consumer Product Safety 

Commission (CPSC, Commission, or we) 

is issuing a notice of requirements that 

provides the criteria and process for 

Commission acceptance of accreditation 

of third party conformity assessment 

bodies for testing pursuant to the 

phthalates limits in section 108 of the 

Consumer Product Safety Improvement 

Act of 2008 (CPSIA). The Commission is 

issuing this notice of requirements 

pursuant to section 14(a)(3)(B)(vi) of the 

Consumer Product Safety Act (CPSA). 

DATES: Effective Date: The requirements 

for accreditation of third party 

conformity assessment bodies to assess 

conformity with phthalates limits when 

tested in accordance with CPSC–CH– 

C1001–09.3, Standard Operating 

Procedure for Determination of 

Phthalates, and GB/T 22048–2008, Toys 

and Children’s Products— 

Determination of Phthalate Plasticizers 

in Polyvinyl Chloride Plastic are 

effective August 10, 2011. 

Submit comment by September 9, 

2011. Comments on this notice should 

be captioned ‘‘Third Party Testing for 

Certain Children’s Products; Notice of 

Requirements for Accreditation of Third 

Party Conformity Assessment Bodies to 

Assess Conformity with the Limits on 

Phthalates in Children’s Toys and Child 

Care Articles.’’ 

ADDRESSES: You may submit comments, 

identified by Docket No. CPSC–2011– 

0052, 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 (e-mail) except through 

http://www.regulations.gov. 

Written Submissions: Submit written 

submissions in the following ways: 

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 to http:// 

www.regulations.gov, including any 

personal information provided. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

(such as a Social Security Number) 

electronically; if furnished at all, 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: 

Carol Afflerbach, Compliance Officer, 

Office of Compliance and Field 

Investigations, U.S. Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, Maryland 20814; email cafflerbach@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

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 (also known as ‘‘testing 

laboratories’’ or ‘‘laboratories’’) to assess 

children’s products for conformity with 

‘‘other children’s product safety rules.’’ 1

Section 14(f)(1) of 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 those regulations 

must have products that are 

manufactured more than 90 days after 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49287 

the Federal Register publication date of 

a 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, as added 

by section 102(a)(2) of the CPSIA, 

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 the 

applicable CPSC requirements (see, e.g., 

section 14(h) of the CPSA, as added by 

section 102(b) of the CPSIA). 

This notice provides the criteria and 

process for Commission acceptance of 

accreditation of third party conformity 

assessment bodies for testing pursuant 

to the following test methods: 

• CPSC–CH–C1001–09.3, Standard 

Operating Procedure for Determination 

of Phthalates, issued on April 1, 2010 

(‘‘CPSC Test Method’’). This is the most 

recent version of the test method, and it 

can be downloaded from the CPSC Web 

site at http://www.cpsc.gov/about/cpsia/ 

CPSC-CH-C1001-09.3.pdf; and/or 

• GB/T 22048–2008, Toys and 

Children’s Products—Determination of 

Phthalate Plasticizers in Polyvinyl 

Chloride Plastic, issued on June 16, 

2008 (‘‘Chinese Test Method’’). 

The Commission is recognizing 

limited circumstances in which it will 

accept certifications based on product 

testing conducted before the publication 

of this notice of requirements. The 

details regarding those limited 

circumstances can be found in part VI 

of this document below. 

Although section 14(a)(3)(B)(vi) of the 

CPSA directs the CPSC to publish a 

notice of requirements for accreditation 

of third party conformity assessment 

bodies to assess conformity with ‘‘all 

other children’s product safety rules,’’ 

this notice of requirements is limited to 

test methods CPSC–CH–C1001–09.3, 

Standard Operating Procedure for 

Determination of Phthalates, and GB/T 

22048–2008, Toys and Children’s 

Products—Determination of Phthalate 

Plasticizers in Polyvinyl Chloride 

Plastic. The CPSC acknowledges that 

the test methods for determining 

phthalates content are not, by 

themselves, rules that are codified in the 

Code of Federal Regulations. However, 

section 108(d) of the CPSIA considers 

the phthalates content limits to be 

‘‘consumer product safety standards’’ 

under the Consumer Product Safety Act. 

Section 14(a)(3)(B)(vi) of the CPSA 

directs the Commission to publish 

notices of requirements for the 

accreditation of third party conformity 

assessment bodies to assess conformity 

with ‘‘other children’s product safety 

rules,’’ and section 14(f)(1) of the CPSA 

defines a ‘‘children’s product safety 

rule,’’ in part, as ‘‘a consumer product 

safety rule under [the CPSA].’’ Section 

3(a)(6) of the CPSA, in turn, defines a 

‘‘consumer product safety rule’’ as ‘‘a 

consumer products safety standard 

described in section 7(a) [of the CPSA] 

* * * or a rule under this Chapter 

declaring a consumer product a banned 

hazardous product.’’ Accordingly, 

because the phthalates content limits 

are ‘‘consumer product safety 

standards’’ under the CPSA, it follows 

that they are also ‘‘consumer product 

safety rules’’ under section 3(a)(6) of the 

CPSA and, in turn, ‘‘children’s product 

safety rules’’ under section 14(f)(1) of 

the CPSA. Thus, the phthalates content 

limits are ‘‘children’s product safety 

rules’’ for which a notice of 

requirements for accreditation of third 

party conformity assessment bodies 

must be published. In addition, because 

the test methods would be used to 

assess conformity with the phthalates 

limits, it is appropriate for the notice of 

requirements to apply to the CPSC Test 

Method and the Chinese Test Method. 

The CPSC also recognizes that section 

14(a)(3)(B)(vi) of the CPSA is captioned: 

‘‘All Other Children’s Product Safety 

Rules,’’ but the body of the statutory 

requirement refers only to ‘‘other 

children’s product safety rules.’’ 

Nevertheless, section 14(a)(3)(B)(vi) of 

the CPSA could be construed to require 

a notice of requirements for ‘‘all’’ other 

children’s product safety rules, rather 

than a notice of requirements for 

‘‘some’’ or ‘‘certain’’ children’s product 

safety rules. However, whether a 

particular rule represents a ‘‘children’s 

product safety rule’’ may be subject to 

interpretation. Commission staff is 

continuing to evaluate which rules, 

regulations, standards, or bans are 

‘‘children’s product safety rules.’’ The 

CPSC intends to issue additional notices 

of requirements for other rules which 

the Commission determines to be 

‘‘children’s product safety rules.’’ 

This notice of requirements applies to 

all third party conformity assessment 

bodies, as described in section 14(f)(2) 

of the CPSA. Generally speaking, such 

third party conformity assessment 

bodies are: (1) Third party conformity 

assessment bodies that are not owned, 

managed, or controlled by a 

manufacturer or private labeler of a 

children’s product to be tested by the 

third party conformity assessment body 

for certification purposes; (2) 

‘‘firewalled’’ conformity assessment 

bodies (those that are owned, managed, 

or controlled by a manufacturer or 

private labeler of a children’s product to 

be tested by the third party conformity 

assessment body for certification 

purposes and that seek accreditation 

under the additional statutory criteria 

for ‘‘firewalled’’ conformity assessment 

bodies); and (3) third party conformity 

assessment bodies owned or controlled, 

in whole or in part, by a government. 

The Commission requires baseline 

accreditation of each category of third 

party conformity assessment body to the 

International Organization for 

Standardization (ISO)/International 

Electrotechnical Commission (IEC) 

Standard 17025:2005, ‘‘General 

Requirements for the Competence of 

Testing and Calibration Laboratories.’’ 

The accreditation must be by an 

accreditation body that is a signatory to 

the International Laboratory 

Accreditation Cooperation-Mutual 

Recognition Arrangement (ILAC–MRA), 

and the scope of the accreditation must 

include testing for any of the test 

methods identified earlier in this 

document for which the third party 

conformity assessment body seeks to be 

accredited. 

(A description of the history and 

content of the ILAC–MRA approach and 

of the requirements of the ISO/IEC 

17025:2005 laboratory accreditation 

standard is provided in the CPSC staff 

briefing memorandum, ‘‘Third Party 

Conformity Assessment Body 

Accreditation Requirements for Testing 

Compliance with 16 CFR part 1501 

(Small Parts Regulations),’’ dated 

November 2008, and available on the 

CPSC’s Web site at: http://www.cpsc.

gov/library/foia/foia09/brief/

smallparts.pdf). 

The Commission has established an 

electronic accreditation registration and 

listing system that can be accessed via 

its Web site at: http://www.cpsc.gov/ 

about/cpsia/labaccred.html. 

The Commission stayed the 

enforcement of certain provisions of 

section 14(a) of the CPSA in a notice 

published in the Federal Register on 

February 9, 2009 (74 FR 6396); the stay 

applied to testing and certification of 

various products, including the 

phthalates limits of section 108 of the 

CPSIA. On December 28, 2009, the 

Commission published a notice in the 

Federal Register (74 FR 68588), revising 

the terms of the stay. One section of the 

December 28, 2009, notice addressed: 

‘‘Consumer Products or Children’s 

Products Where the Commission Is 

Continuing the Stay of Enforcement 

Until Further Notice,’’ due to factors 

such as pending rulemaking 

proceedings affecting the product or the 

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49288 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

2Untreated/unfinished wood, metal, natural 

fibers, natural latex and mineral products are not 

expected to inherently contain phthalates and need 

not be tested or certified provided that these 

materials have neither been treated or adulterated 

with the addition of materials that could result in 

the addition of phthalates into the product or 

material. 

absence of a notice of requirements. The 

phthalates content testing and 

certification requirements for children’s 

toys and child care articles were 

included in that section of the December 

28, 2009 notice. The absence of a notice 

of requirements prevented the lifting of 

the stay in the December 28, 2009 notice 

with regard to testing and certifications 

of children’s toys and child care articles 

for phthalates content. On February 8, 

2011, the Commission published a 

notice in the Federal Register (76 FR 

6765), continuing the stay of 

enforcement for testing and certification 

of children’s products for which a 

notice of requirements for accreditation 

of laboratories had not yet been 

published. 

The phthalates content testing and 

certification requirements for children’s 

toys and child care articles were 

mentioned specifically as an example of 

a provision for which the stay would 

continue, pending publication of the 

notice of requirements. Thus, 

publication of this notice of 

requirements would have had the effect 

of lifting the stay on testing and 

certification requirements for phthalates 

content in children’s toys and child care 

articles; however, on July 27, 2011, the 

Commission voted to stay enforcement 

of the testing and certification 

requirements of section 14 of the CPSA 

with respect to toys and child care 

articles subject to the phthalates content 

limits until December 31, 2011. 

Accordingly, the Commission will 

enforce third party testing and 

certification requirements for products 

subject to the phthalates content limits 

if such products are manufactured on or 

after January 1, 2012. (Under the CPSA, 

the term ‘‘manufacturer’’ includes 

anyone who manufactures or imports a 

product.) 

This notice of requirements is exempt 

from the notice and comment 

rulemaking requirements of the 

Administrative Procedure Act, 5 U.S.C. 

553 (see section 14(a)(3)(G) of the CPSA, 

as added by section 102(a)(2) of the 

CPSIA (15 U.S.C. 2063(a)(3)(G))). 

II. Testing & Certification to Phthalates 

Limits—Prior Guidance Remains in 

Effect 

The Commission approved a 

‘‘Statement of Policy: Testing of 

Component Parts with Respect to 

Section 108 of the Consumer Product 

Safety Improvement Act’’ on August 7, 

2009. On August 17, 2009, a Notice of 

Availability regarding the Statement of 

Policy was published in the Federal 

Register (74 FR 41400). The Statement 

of Policy can be viewed and 

downloaded from the CPSC Web site at: 

http://www.cpsc.gov/about/cpsia/ 

componenttestingpolicy.pdf. In brief, we 

believe that only those plastic parts or 

other product parts which could 

conceivably contain phthalates 

(‘‘plasticized component parts’’) should 

be tested for phthalates. We consider it 

to be unnecessary to test and certify 

materials that are known not to contain 

phthalates or to certify that phthalates 

are absent from materials that are 

known not to contain phthalates.2 In 

addition, we believe that when testing 

covered products, the assessment of the 

concentration of phthalates is to be 

based on testing of the plasticized 

component parts, rather than testing of 

the entire product, to avoid dilution of 

the concentrations of phthalates that can 

occur when the entire product is 

considered. The Statement of Policy 

remains in effect until further notice 

(except that the CPSC Test Method 

referenced in the Statement of Policy, 

CPSC–CH–C1001–09.2, has been 

superseded by CPSC–CH–C1001–09.3 as 

outlined in part VI of this document 

below). 

The Commission voted to publish a 

‘‘Draft Guidance Regarding Which 

Children’s Products are Subject to the 

Requirements of CPSIA Section 108’’ on 

February 13, 2009. On February 23, 

2009, the staff guidance was published 

in the Federal Register (74 FR 8058). 

This staff guidance can be viewed and 

downloaded from the CPSC Web site at: 

http://www.cpsc.gov/businfo/frnotices/ 

fr09/draftphthalatesguidance.pdf. The 

Commission may choose to update this 

staff guidance or initiate a formal 

rulemaking concerning the topics 

addressed by the guidance after receipt 

of the Chronic Hazard Advisory Panel 

report required by section 108(b)(2)(C) 

of the CPSIA. Until such time, this staff 

guidance remains in effect (except that 

the CPSC Test Method referenced in the 

guidance, CPSC–CH–C1001–09.1, has 

been superseded by CPSC–CH–C1001– 

09.3 as outlined in part VI of this 

document below). 

Answers to frequently asked 

questions that provide guidance 

concerning the requirements of section 

108 of the CPSIA can be viewed on the 

CPSC Web site at: http://www.cpsc.gov/ 

about/cpsia/sect108.html#faqs. The 

Commission intends for this guidance to 

be useful and therefore the materials on 

this Web page may be modified 

periodically in the future. In order to 

receive automatic notification of any 

such updates, interested parties may 

sign up for the CPSIA email 

subscription list at: https:// 

www.cpsc.gov/about/cpsia/ 

cpsialist.aspx. The Commission notes 

that the phthalate content limits in 

section 108 of the CPSIA are statutory 

requirements and we may always take 

action with regard to products defined 

in this section of the statute that exceed 

those limits. 

III. Responses to Comments Received 

on the CPSC Testing Method 

The Commission requested comments 

regarding the Statement in the Notice of 

Availability published in the Federal 

Register (74 FR 41400). We received 

several comments on the CPSC Test 

Method. We describe and respond to the 

comments in this section of the 

document. To make it easier to identify 

the comments and our responses, the 

word ‘‘Comment,’’ in parentheses, will 

appear before the comment’s 

description, and the word ‘‘Response,’’ 

in parentheses, will appear before our 

response. We also have numbered each 

comment to help distinguish between 

different topics. The number assigned to 

each comment is for organizational 

purposes only and does not signify the 

comment’s value, or importance, or the 

order in which it was received. 

(Comment 1)—Some commenters 

questioned the necessity to run the test 

in triplicate. Other test multiples from 

two to five were suggested. Some 

commenters asked whether the sample 

to be tested always needed to be ground 

to a powder. A commenter asked about 

the proper cleaning protocol of the 

cryogenic mill. 

(Response 1)—We have examined all 

suggestions and comments pertaining to 

the CPSC Test Method and have 

updated our test method to address 

these issues (CPSC–CH–C1001–09.3). 

We adjusted the method to allow the 

third party conformity assessment body 

to choose an appropriate quality 

assurance program; thus, the third party 

conformity assessment body will 

determine the number of replicates to be 

tested. The CPSC Test Method allows, 

but does not require, third party 

conformity assessment bodies to 

pulverize the sample. Cryogenic mill 

equipment should be cleaned as 

thoroughly as any other laboratory 

equipment that comes into contact with 

a sample. 

(Comment 2)—One commenter 

suggested that the official Chinese test 

method, GB/T 22048–2008, Toys and 

Children’s Products—Determination of 

Phthalate Plasticizers in Polyvinyl 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49289 

Chloride Plastic, should be added to the 

lists of acceptable extraction and 

analysis methods. The commenter also 

suggested that each plasticized 

component part should be cut into 

pieces no larger than 2 mm prior to the 

extraction step. 

(Response 2)—We have reviewed the 

test method GB/T 22048–2008 and 

determined that it is an acceptable test 

method for inclusion in this notice of 

requirements. With regard to the 2 mm 

maximum size of pieces, we agree with 

this comment and have incorporated the 

dimension into the current edition of 

the CPSC Test Method (CPSC–CH– 

C1001–09.3). 

(Comment 3)—Another commenter 

suggested that the CPSC Test Method 

include a description of the limit of 

detection (LOD) and limit of 

quantitation (LOQ). The commenter 

added that, on the last page of CPSC– 

CH–C1001–09.2, there appears to be an 

error in the DEHP calculation. Under 

column C, measured DEHP 

concentration by GC–MSW is 200 μg/ 

ml. In the final calculation column, 200 

μg/ml is mistakenly cited as 20 μg/ml. 

(Response 3)—Detection and 

quantitation limits have not been 

outlined specifically at this point. Third 

party conformity assessment bodies 

should follow their own internal quality 

assurance program. These limits may be 

introduced in the future, following 

further validation and round robin 

studies. The DEHP calculation included 

a typographical error that was corrected 

for the current edition of the test 

method (CPSC–CH–C1001–09.3). 

(Comment 4)—One commenter stated 

that grinding the sample into a powder 

is time-consuming, adds additional 

expense to the testing methods, and 

could introduce the possibility of 

significant interlaboratory variability. 

(Response 4)—Grinding the sample 

into a powder is no longer required in 

the CPSC Test Method; however, third 

party conformity assessment bodies may 

continue to do so, if they wish. 

(Comment 5)—One commenter asked 

how the CPSC Test Method prevents 

interferences that can lead to a false 

positive for the phthalates of interest. 

The commenter also asked if the 

detection method could be revised. 

(Response 5)—We have updated the 

CPSC Test Method (to CPSC–CH– 

C1001–09.3) to include a vigorous 

qualitative assessment by trained staff to 

avoid false positives. Such steps 

include: Retention time matching with 

known standards and full-scan mass 

spectrum analysis. We will continue to 

consider new methods that could 

simplify or improve the analysis. 

(Comment 6)—One commenter 

pointed out typographical 

inconsistencies found within the text of 

the method. Additionally, the 

commenter asked: What is the minimum 

signal-to-noise ratio required, and what 

are the reproducibility and detection 

limits of the method? 

(Response 6)—We have corrected the 

typographical errors that might have 

caused confusion. Signal-to-noise, 

detection limits, and reproducibility 

requirements have not been outlined 

specifically at this point. Third party 

conformity assessment bodies should 

follow their own internal quality 

assurance program. Testing 

requirements may be adjusted following 

further validation and round robin 

studies. 

(Comment 7)—One commenter asked 

if the chromatography was optimized. 

(Response 7)—The gas 

chromatography parameters outlined 

have been successful at providing 

adequate separation while minimizing 

sampling time. However, due to the 

nature of DINP and DIDP, they will not 

completely separate 

chromatographically. DINP and DIDP 

are actually a mixture of compounds; 

DINP and DIDP contain some of the 

same phthalate species, leading to an 

overlap. We recommend following the 

selection monitoring analysis scheme 

outlined in the CPSC Test Method to 

quantify these compounds for instances 

when they are both present. 

(Comment 8)—One commenter 

suggested that we create a flexible 

correlative policy that permits use of 

several methods suitable for the routine 

identification and measurement of total 

phthalate concentration, such as ASTM 

D7083–04, the Canada Product Safety 

Bureau method, the European Toy 

Safety Directive method, and GB/T 

22048–2008, Toys and Children’s 

Products—Determination of Phthalate 

Plasticizers in Polyvinyl Chloride 

Plastic. 

(Response 8)—The current edition of 

the CPSC Test Method (CPSC–CH– 

C1001–09.3) allows alternative test 

methods. Additionally, any combination 

of the approved extraction and analysis 

methods listed may be used. We have 

included GB/T 22048–2008, Toys and 

Children’s Products—Determination of 

Phthalate Plasticizers in Polyvinyl 

Chloride Plastic, as an additional test 

method in this notice of requirements. 

We have not included ASTM D7083–04 

as an alternative detection method due 

to the lack of selectivity from using a 

flame ionization detector; this method 

may lead to false positives. We will 

review other suggested methods and 

may include them as alternatives in 

future revisions of the test method. 

IV. Accreditation Requirements 

A. Baseline Third Party Conformity 

Assessment Body Accreditation 

Requirements 

For a third party conformity 

assessment body to be accredited to test 

children’s products for conformity with 

the test methods identified earlier in 

part I of this document, it must be 

accredited by an ILAC–MRA signatory 

accrediting body, and the accreditation 

must be registered with, and accepted 

by, the Commission. A listing of ILAC– 

MRA signatory accrediting bodies is 

available on the Internet at: http:// 

ilac.org/membersbycategory.html. The 

accreditation must be to ISO Standard 

ISO/IEC 17025:2005, ‘‘General 

Requirements for the Competence of 

Testing and Calibration Laboratories,’’ 

and the scope of the accreditation must 

expressly include testing to the test 

method CPSC–CH–C1001–09.3, 

Standard Operating Procedure for 

Determination of Phthalates, and/or to 

the test method GB/T 22048–2008, Toys 

and Children’s Products— 

Determination of Phthalate Plasticizers 

in Polyvinyl Chloride Plastic. A true 

copy, in English, of the accreditation 

and scope documents demonstrating 

compliance with these requirements 

must be registered with the Commission 

electronically. The additional 

requirements for accreditation of 

firewalled and governmental conformity 

assessment bodies are described in parts 

IV.B and IV.C of this document below. 

The Commission will maintain on its 

Web site an up-to-date listing of third 

party conformity assessment bodies 

whose accreditations it has accepted 

and the scope of each accreditation. 

Once the Commission adds a third party 

conformity assessment body to that list, 

the third party conformity assessment 

body may commence testing children’s 

toys and child care articles for 

phthalates content to support 

certification by the manufacturer or 

private labeler of compliance with the 

test method(s) identified earlier in part 

I of this document. 

B. Additional Accreditation 

Requirements for Firewalled Conformity 

Assessment Bodies 

In addition to the baseline 

accreditation requirements in part IV.A 

of this document above, firewalled 

conformity assessment bodies seeking 

accredited status must submit to the 

Commission copies, in English, of their 

training documents, showing how 

employees are trained to notify the 

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49290 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

Commission immediately and 

confidentially of any attempt by the 

manufacturer, private labeler, or other 

interested party to hide or exert undue 

influence over the third party 

conformity assessment body’s test 

results. This additional requirement 

applies to any third party conformity 

assessment body in which a 

manufacturer or private labeler of a 

children’s product to be tested by the 

third party conformity assessment body 

owns an interest of 10 percent or more. 

While the Commission is not addressing 

common parentage of a third party 

conformity assessment body and a 

children’s product manufacturer at this 

time, it will be vigilant to see if this 

issue needs to be addressed in the 

future. 

As required by section 14(f)(2)(D) of 

the CPSA, the Commission must 

formally accept, by order, the 

accreditation application of a third party 

conformity assessment body before the 

third party conformity assessment body 

can become an accredited firewalled 

conformity assessment body. The 

Commission’s order must also find that 

accrediting the firewalled conformity 

assessment body would provide equal 

or greater consumer safety protection 

than the manufacturer’s or private 

labeler’s use of an independent 

conformity assessment body. 

C. Additional Accreditation 

Requirements for Governmental 

Conformity Assessment Bodies 

In addition to the baseline 

accreditation requirements of part IV.A 

of this document above, the CPSIA 

permits accreditation of a third party 

conformity assessment body owned or 

controlled, in whole or in part, by a 

government if: 

• To the extent practicable, 

manufacturers or private labelers 

located in any nation are permitted to 

choose conformity assessment bodies 

that are not owned or controlled by the 

government of that nation; 

• The third party conformity 

assessment body’s testing results are not 

subject to undue influence by any other 

person, including another governmental 

entity; 

• The third party conformity 

assessment body is not accorded more 

favorable treatment than other third 

party conformity assessment bodies in 

the same nation who have been 

accredited; 

• The third party conformity 

assessment body’s testing results are 

accorded no greater weight by other 

governmental authorities than those of 

other accredited third party conformity 

assessment bodies; and 

• The third party conformity 

assessment body does not exercise 

undue influence over other 

governmental authorities on matters 

affecting its operations or on decisions 

by other governmental authorities 

controlling distribution of products 

based on outcomes of the third party 

conformity assessment body’s 

conformity assessments. 

The Commission will accept the 

accreditation of a governmental third 

party conformity assessment body if it 

meets the baseline accreditation 

requirements of part IV.A of this 

document above and meets the 

additional conditions stated here. To 

obtain this assurance, CPSC staff will 

engage the governmental entities 

relevant to the accreditation request. 

V. How does a third party conformity 

assessment body apply for acceptance 

of its accreditation? 

The Commission has established an 

electronic accreditation acceptance and 

registration system accessed via the 

Commission’s Internet site at: http:// 

www.cpsc.gov/about/cpsia/ 

labaccred.html. The applicant provides, 

in English, basic identifying information 

concerning its location, the type of 

accreditation it is seeking, and 

electronic copies of its ILAC–MRA 

accreditation certificate and scope 

statement, and firewalled third party 

conformity assessment body training 

document(s), if relevant. 

CPSC staff will review the submission 

for accuracy and completeness. In the 

case of baseline third party conformity 

assessment bodies and governmentowned or government-operated 

conformity assessment bodies, when 

that review and any necessary 

discussions with the applicant are 

completed satisfactorily, the third party 

conformity assessment body in question 

is added to the CPSC’s list of accredited 

third party conformity assessment 

bodies at http://www.cpsc.gov/about/ 

cpsia/labaccred.html. In the case of a 

firewalled conformity assessment body 

seeking accredited status, when staff’s 

review is complete, staff transmits its 

recommendation on accreditation to the 

Commission for consideration. (A third 

party conformity assessment body that 

may ultimately seek acceptance as a 

firewalled third party conformity 

assessment body also can initially 

request acceptance as a third party 

conformity assessment body accredited 

for testing of children’s products other 

than those of its owners.) If the 

Commission accepts a staff 

recommendation to accredit a firewalled 

conformity assessment body, the 

firewalled conformity assessment body 

will be added to the CPSC’s list of 

accredited third party conformity 

assessment bodies. In each case, the 

Commission will notify the third party 

conformity assessment body 

electronically of acceptance of its 

accreditation. All information to 

support an accreditation acceptance 

request must be provided in the English 

language. 

Once the Commission adds a third 

party conformity assessment body to the 

list, the third party conformity 

assessment body may begin testing 

children’s products to support 

certification of compliance with the 

phthalates content limits for which it 

has been accredited. 

VI. Acceptance of Children’s Product 

Certifications Based on Third Party 

Conformity Assessment Body Testing to 

CPSC–CH–C1001–09, Standard 

Operating Procedure for Determination 

of Phthalates, and/or GB/T 22048–2008, 

Toys and Children’s Products— 

Determination of Phthalate Plasticizers 

in Polyvinyl Chloride Plastic, Prior to 

the Effective Date 

For certifications of children’s toy or 

child care articles subject to the 

phthalates content limits in section 108 

of the CPSIA, the Commission will 

allow certifications to be based on prior 

testing under certain conditions. Firms 

that elect to voluntarily have the 

phthalates content of children’s toys 

and child care articles tested by a third 

party conformity assessment body, 

using either the CPSC Test Method or 

the Chinese Test Method, before January 

1, 2012, will not need to have those 

products retested. The Commission’s 

acceptance of certifications based on 

prior testing under certain conditions 

should prevent testing backlogs at 

accredited third party conformity 

assessment bodies, making it less likely 

that the Commission will have to 

postpone the effective date for 

certification. 

The Commission will accept a 

certificate of compliance to the 

phthalates limits in section 108 of the 

CPSIA 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) 

if: 

• 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 ILAC– 

MRA member at the time of the test. For 

firewalled conformity assessment 

bodies, the firewalled conformity 

assessment body must be one that the 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49291 

1See Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 111–203, 124 

Stat. 1376 (2010). The text of the Dodd-Frank Act 

may be accessed at http://www.cftc.gov./ 

LawRegulation/OTCDERIVATIVES/index.htm. 

2Pursuant to section 701 of the Dodd-Frank Act, 

Title VII may be cited as the ‘‘Wall Street 

Transparency and Accountability Act of 2010.’’ 

3 7 U.S.C. 1 et seq. 

4As discussed below, in accordance with the 

mandate of the Dodd-Frank Act, the Commission 

recently promulgated a final rule defining the term 

‘‘agricultural commodity.’’ See 76 FR 41048, July 

13, 2011. 

Commission has accredited by order at 

or before the time the product was 

tested, even if the order did not include 

the test methods 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; 

• For tests conducted using the CPSC 

Test Method, the test was conducted on 

or after July 27, 2009. The Commission 

has chosen July 27, 2009, because it is 

the date the Commission posted a test 

method for testing component parts for 

phthalates on the Commission Web site: 

(http://www.cpsc.gov/about/cpsia/ 

CPSC-CH-C1001-09.2.pdf). The test 

method was updated on April 1, 2010, 

to the current method (http:// 

www.cpsc.gov/about/cpsia/CPSC-CHC1001-09.3.pdf.). The Commission will 

accept phthalates content certifications 

for products tested before January 1, 

2012, if the product was tested using 

either CPSC–CH–C1001–09.2 or CPSC– 

CH–C1001–09.3. The Commission 

acknowledges that, on March 3, 2009, it 

released a test method that involved 

testing the entire product (http:// 

www.cpsc.gov/about/cpsia/CPSC-CHC1001-09.1.pdf) (‘‘March 2009 test 

method’’). The Commission will not 

accept phthalates content certifications 

for products tested using the March 

2009 test method (CPSC–CH–C1001– 

09.1). The Commission considers testing 

the entire product to be less protective 

of children because mouthable 

component parts with high 

concentrations of phthalates in products 

with large quantities of nonplasticized 

parts would be able to pass the test 

because the total mass of the product 

would dilute the overall phthalate 

measure. 

• For tests conducted using the 

Chinese Test Method, the test was 

conducted on or after June 18, 2008. The 

Commission has chosen June 18, 2008, 

because that is the date that the Chinese 

Test Method was issued. 

• The third party conformity 

assessment body’s application for 

accreditation is accepted by CPSC by 

the mandatory effective date, as 

established by the Commission; 

• The accreditation scope in the 

application for accreditation expressly 

includes one or both of the acceptable 

test methods identified earlier in part I 

of this document; 

• The test results show compliance 

with the applicable current standards; 

and 

• The third party conformity 

assessment body’s accreditation and 

inclusion of one or both of the test 

methods (identified earlier in part I of 

this document) in its scope remain in 

effect through the effective date for 

mandatory third party testing and 

manufacturer certification for the 

subject products’ respective standards. 

Dated: July 29, 2011. 

Alberta E. Mills, 

Acting Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2011–19678 Filed 8–9–11; 8:45 am] 

BILLING CODE 6355–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 35 

RIN 3038–AD21 

Agricultural Swaps 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commodity Futures 

Trading Commission (‘‘Commission’’ or 

‘‘CFTC’’) is charged with proposing 

rules to implement new statutory 

provisions enacted by Title VII of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act (‘‘Dodd-Frank 

Act’’). The Dodd-Frank Act provides 

that swaps in an agricultural commodity 

(as defined by the Commission) are 

prohibited unless entered into pursuant 

to a rule, regulation or order of the 

Commission adopted pursuant to 

certain provisions of the Commodity 

Exchange Act (‘‘CEA’’ or ‘‘Act’’). On 

February 3, 2011, the Commission 

requested comment on a set of proposed 

rules that would, among other things, 

implement regulations whereby swaps 

in agricultural commodities may 

transact subject to the same rules as all 

other swaps. The proposed rules for 

swaps in an agricultural commodity 

would repeal and replace the 

Commission’s current regulations 

concerning the exemption of swap 

agreements. After reviewing the 

comments submitted in response to the 

proposed rules, the Commission has 

determined to issue these final rules for 

swaps in an agricultural commodity in 

the form as originally proposed. The 

February 3, 2011, proposed rules also 

included provisions that would 

substantially amend the Commission’s 

regulations regarding commodity option 

transactions. However, in this final rule 

the Commission is only issuing the rules 

for swaps in an agricultural commodity. 

The proposed rules for commodity 

option transactions will be addressed at 

a later date. 

DATES: Effective Date—December 31, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Donald Heitman, Senior Special 

Counsel, (202) 418–5041, 

dheitman@cftc.gov, or Ryne Miller, 

Attorney Advisor, (202) 418–5921, 

rmiller@cftc.gov, Division of Market 

Oversight, Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1155 21st Street, NW., Washington, DC 

20581. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Dodd-Frank Act 

On July 21, 2010, President Obama 

signed the Dodd-Frank Wall Street 

Reform and Consumer Protection Act.1

Title VII of the Dodd-Frank Act 2

amended the CEA 3 to establish a 

comprehensive new regulatory 

framework for swaps and security-based 

swaps. The legislation was enacted to 

reduce risk, increase transparency, and 

promote market integrity within the 

financial system by, among other things: 

(1) Providing for the registration and 

comprehensive regulation of swap 

dealers and major swap participants; (2) 

imposing clearing and trade execution 

requirements on standardized derivative 

products; (3) creating robust 

recordkeeping and real-time reporting 

regimes; and (4) enhancing the 

Commission’s rulemaking and 

enforcement authorities with respect to, 

among others, all registered entities and 

intermediaries subject to the 

Commission’s oversight. 

B. Proposed Agricultural Swaps Rules 

Section 723(c)(3) of the Dodd-Frank 

Act provides that swaps in an 

agricultural commodity (as defined by 

the Commission) 4 are prohibited unless 

entered into pursuant to a rule, 

regulation or order of the Commission 

adopted pursuant to CEA section 4(c). 

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