69596 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Proposed Rules 

1The 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. 

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. 

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

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 

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

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69598 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Proposed Rules 

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: 

Æ ‘‘Substantial number’’? 

Æ ‘‘Substantially similar products’’? 

Æ ‘‘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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Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Proposed Rules 69599 

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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