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[Federal Register: August 27, 2010 (Volume 75, Number 166)]
[Rules and Regulations]               
[Page 52616-52619]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au10-3]                         

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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. CPSC-2010-0090]

16 CFR Part 1420

 
Third Party Testing for Certain Children's Products; Youth All-
Terrain Vehicles: Requirements for Accreditation of Third Party 
Conformity Assessment Bodies

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of requirements.

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SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) 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 of all-terrain vehicles (ATVs) designed 
or intended primarily for children 12 years of age or younger pursuant 
to 16 CFR part 1420, the CPSC regulations under the Consumer Product 
Safety Act (CPSA) relating to ATVs. The Commission is issuing this 
notice of requirements pursuant to section 14(a)(3)(B)(vi) of the CPSA 
(15 U.S.C. 2063(a)(3)(B)(vi)).

DATES: Effective Date: The requirements for accreditation of third 
party conformity assessment bodies to assess conformity with 16 CFR 
part 1420 are effective August 27, 2010.\1\
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    \1\ The Commission voted 4-0-1 to publish this notice of 
requirements. Chairman Inez M. Tenenbaum issued a statement, and the 
statement can be found at http://www.cpsc.gov/pr/statements.html.
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    Comments in response to this notice of requirements should be 
submitted by September 27, 2010. Comments on this notice should be 
captioned ``Third Party Testing for Certain Children's Products; All-
Terrain Vehicles: Requirements for Accreditation of Third Party 
Conformity Assessment Bodies.''

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
00--, 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 
way:
    Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions) 
preferably in five copies, to: Office of the Secretary, U.S. Consumer 
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, 
Maryland 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: Richard McCallion, Program Area Team 
Leader, Office of Hazard Identification and Reduction, U.S. Consumer 
Product Safety Commission, 10901 Darnestown Road, Gaithersburg, MD 
20878; e-mail rmccallion@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 establish and 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 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 an 
importer) or private labeler of products subject to those regulations 
must have products that are manufactured more than 90 days after the 
establishment and Federal Register publication of a notice of the 
requirements for accreditation tested by

[[Page 52617]]

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. The Commission may extend the 90-day period by not 
more than 60 days 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. Any 
requests for an extension should contain detailed facts showing why an 
extension is necessary.
    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 
applicable CPSC requirements (see, e.g., section 14(h) of the CPSA, as 
added by section 102(b) of the CPSIA).
    The Commission also is recognizing limited circumstances in which 
it will accept certifications based on product testing conducted before 
the third party conformity assessment body is accepted as accredited by 
the CPSC. The details regarding those limited circumstances can be 
found in part IV of this document below.
    This notice provides the criteria and process for Commission 
acceptance of accreditation of third party conformity assessment bodies 
for testing pursuant to 16 CFR part 1420, Requirements for All Terrain 
Vehicles, which incorporates by reference the applicable provisions of 
the American National Standard for Four Wheel All-Terrain Vehicles, 
ANSI/SVIA 1-2007. Section 3(a)(2) of the CPSA defines a children's 
product as ``a consumer product designed or intended primarily for 
children 12 years of age or younger.'' Although all-terrain vehicles 
(ATVs) are often for general use (that is, not produced specifically 
for use by children), some ``youth ATVs'' are ``designed or intended 
primarily for children 12 years of age or younger.'' The ANSI/SVIA 1-
2007 standard identifies a usage category of Y (Youth Model) ATVs that 
consists of three subcategories: (a) Category Y-6+, for youth model 
ATVs intended for use by children age 6 or older; (b) Category Y-10+, 
for youth model ATVs intended for use by children age 10 or older; and 
(c) Category Y-12+, for youth model ATVs intended for use by children 
age 12 or older. For the purposes of this notice of requirements, the 
term ``youth ATVs'' at a minimum refers to categories Y-6+ and Y-10+ in 
ANSI/SVIA 1-2007. In determining whether a youth ATV is a children's 
product the Commission will be guided by the statutory factors listed 
at section 3(a)(2)(A) through (D) of the CPSA. Such a determination 
will indicate whether a given Category Y-12+ ATV is intended primarily 
for children age 12 or younger, which would necessitate the third party 
testing and certification requirements in section 14(a)(2) of the CPSA. 
(For example, if a manufacturer sells a ``Category T'' ATV, which is 
generally intended for use by a 14 year old operator under adu1t 
supervision or by an operator age 16 or older, it might impact the age 
range of the intended primary users of the Category Y-12+ ATV.) 
Accordingly, in determining whether a particular ATV is a children's 
product subject to the third party testing and certification 
requirements of section 14(a)(2) of the CPSA, the Commission will 
follow the factors set forth in section 3(a)(2) of the CPSA and will 
not rely solely on a statement by the manufacturer about the ATV's 
intended use.
    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 as requiring 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, and the 
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 that 
desire to test all-terrain vehicles to the requirements of 16 CFR part 
1420 where the test results will be used as the basis for a 
certification that ATVs comply with CPSC's requirements at 16 CFR 1420. 
Such third party conformity assessment bodies can be grouped into three 
general categories: (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 accrediting 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 in 
accordance with the regulations identified earlier in part I of this 
document for which the third party conformity assessment body seeks to 
be accredited by the CPSC.
    (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 ATVs.\2\ On December 28, 
2009, the Commission published a notice in the Federal Register (74 FR 
68588) revising the terms of the stay. Section II.G of the December 28, 
2009, notice stated ``[t]he Commission has not yet issued a notice of 
accreditation requirements for * * * ATVs so no third-party 
certificates will

[[Page 52618]]

be required until 90 days after the Commission issues such [a] notice[ 
] of requirements.'' As the factor preventing the stay from being 
lifted in the December 28, 2009 notice with regard to testing and 
certifications of ATVs was the absence of a notice of requirements, 
publication of this notice has the effect of lifting the stay with 
regard to 16 CFR part 1420.
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    \2\ Two mandatory certification requirements relating to ATVs 
were not stayed. See 74 FR at 68592.
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    This notice of requirements is effective on August 27, 2010. 
Further, as the publication of this notice of requirements effectively 
lifts the stay of enforcement with regard to testing and certifications 
related to 16 CFR part 1420, each manufacturer of a youth ATV subject 
to 16 CFR part 1420 must have samples of any such product, or samples 
that are identical in all material respects to such product, tested by 
a third party conformity assessment body accredited to do so. Further, 
for youth ATVs manufactured after November 26, 2010, the manufacturer 
must issue a certificate of compliance with 16 CFR part 1420 based on 
that testing. (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, added by section 102(a)(2) of 
the CPSIA (15 U.S.C. 2063(a)(3)(G)).

II. 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 in the 
regulations 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/membersby category.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 regulations 
in 16 CFR part 1420, Requirements for All Terrain Vehicles. A true 
copy, in English, of the accreditation and scope documents 
demonstrating compliance with the requirements of this notice must be 
registered with the Commission electronically. The additional 
requirements for accreditation of firewalled and governmental 
conformity assessment bodies are described in parts II.B and II.C of 
this document below.
    The Commission will maintain on its Web site an up-to-date listing 
of the third party conformity assessment bodies whose accreditations it 
has accepted and the scope of each accreditation. Subject to the 
limited provisions for acceptance of ``retrospective'' testing noted in 
part IV below, once the Commission adds a third party conformity 
assessment body to that list, the third party conformity assessment 
body may commence testing of children's products to support the 
manufacturer's certification that the product complies with the 
regulations 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 II.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 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.

C. Additional Accreditation Requirements for Governmental Conformity 
Assessment Bodies

    In addition to the baseline accreditation requirements of part II.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 which have been accredited in the same nation;
     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 II.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.

III. 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 applicable.
    Commission staff will review the submission for accuracy and 
completeness. In the case of baseline third party conformity assessment 
bodies and government-owned or

[[Page 52619]]

government-controlled conformity assessment bodies, when that review 
and any necessary discussions with the applicant are satisfactorily 
completed, 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 the staff's review is complete, the 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 Commission will 
issue an order making the required statutory findings and the 
firewalled conformity assessment body will then 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.
    Subject to the limited provisions for acceptance of 
``retrospective'' testing noted in part IV of this document below, once 
the Commission adds a third party conformity assessment body to the 
list, the third party conformity assessment body may begin testing of 
children's products to support certification of compliance with the 
regulations identified earlier in part I of this document for which it 
has been accredited.

IV. Limited Acceptance of Children's Product Certifications Based on 
Third Party Conformity Assessment Body Testing Prior to the 
Commission's Acceptance of Accreditation

    The Commission will accept a certificate of compliance with 16 CFR 
part 1420, Requirements for All Terrain Vehicles, based on testing 
performed by an accredited third party conformity assessment body 
(including a government-owned or government-controlled conformity 
assessment body, or a firewalled conformity assessment body) prior to 
the Commission's acceptance of its accreditation if all the following 
conditions are met:
     When the product was tested, the testing was done by a 
third party conformity assessment body that at that time was ISO/IEC 
17025 accredited by an ILAC-MRA signatory. For firewalled conformity 
assessment bodies, the Commission will not accept a certificate of 
compliance based on testing performed by the third party conformity 
assessment body unless the firewalled conformity assessment body was 
accredited by order as a firewalled conformity assessment body before 
the product was tested, even though the order will not have included 
the test methods in the regulations specified in this notice.
     The third party conformity assessment body's application 
for testing using the test methods in the regulations identified in 
this notice is accepted by the CPSC on or before October 26, 2010.
     The product was tested on or after November 4, 2008 (the 
date that 16 CFR part 1420 was published), with respect to the 
regulations identified in this notice;
     The accreditation scope in effect for the third party 
conformity assessment body at the time of testing expressly included 
testing to the regulations identified earlier in part I of this 
document.
     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 the standards described 
in part I of this notice, remains in effect through the effective date 
for mandatory third party testing and manufacturer certification for 
conformity with 16 CFR part 1611.

    Dated: August 20, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-21199 Filed 8-26-10; 8:45 am]
BILLING CODE 6355-01-P
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