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[Federal Register: November 29, 2010 (Volume 75, Number 228)]
[Rules and Regulations]               
[Page 72944-72947]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no10-6]                         

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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. CPSC-2010-0085]

16 CFR Parts 1632 and 1633

 
Third Party Testing for Certain Children's Products; Mattresses, 
Mattress Pads, and/or Mattress Sets: Revisions to Terms of Acceptance 
of Children's Product Certifications Based on Third Party Conformity 
Assessment Body Testing Prior to Commission's Acceptance of 
Accreditation

AGENCY: Consumer Product Safety Commission.

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

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SUMMARY: The Consumer Product Safety Commission (``CPSC,'' 
``Commission,'' or ``we'') is issuing a notice amending the terms under 
which it will accept certifications for children's products based on 
third party conformity assessment body (laboratory) testing to the 
flammability regulations at 16 CFR parts 1632 and/or 1633 that occurred 
before the Commission's acceptance of the accreditation of the third 
party conformity assessment body. We are taking this action in response 
to requests from certain mattress manufacturers to reduce unnecessary 
retesting of mattresses, mattress pads, and/or mattress sets that have 
already been tested and found to be in compliance with CPSC 
regulations.

DATES: Effective Date: The revision announced in this notice is 
effective November 29, 2010.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2) 
of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public 
Law 110-314, directs the CPSC to publish a notice of requirements for 
accreditation of third party conformity assessment bodies to assess 
children's products for conformity with ``other children's product 
safety rules.'' Section 14(f)(1) of 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 the Commission 
has established and published notice of the requirements for 
accreditation tested by a third party conformity assessment body 
accredited to do so, and must issue a certificate of compliance with 
the applicable regulations based on that testing. Section 14(a)(2) of 
the CPSA, 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).
    In the Federal Register of August 18, 2010 (75 FR 51020), we 
published a notice of requirements providing the criteria and process 
for Commission acceptance of accreditation of third party conformity 
assessment bodies for testing pursuant to 16 CFR parts 1632, ``Standard 
for the Flammability of Mattresses and Mattress Pads (FF 4-72, 
amended),'' and/or 1633, ``Standard for the Flammability (Open Flame) 
of Mattress Sets,'' which set minimum standards for flammability of 
mattresses, mattress pads, and/or mattress sets under the Flammable 
Fabrics Act (15 U.S.C. 1191 et seq.) (FFA). The notice of requirements 
stated that the publication had the effect of lifting the stay of 
enforcement with regard to testing and certification of children's 
products under 16 CFR parts 1632 and/or 1633, such that each 
manufacturer of such a product must have any such product manufactured 
after November 16, 2010, tested by a third party conformity assessment 
body accredited to do so, and must issue a certificate of compliance 
based on that testing (75 FR at 51021 through 51022).
    We addressed testing performed by a third party conformity 
assessment body prior to the Commission's acceptance of its 
accreditation, or ``retrospective'' testing, in section IV of the 
notice of requirements. We stated that we would accept a certificate of 
compliance with the standard included in 16 CFR parts 1632 and/or 1633, 
based on testing performed by an accredited third party conformity 
assessment body (including a government-owned or -controlled conformity 
assessment body, and a

[[Page 72945]]

firewalled conformity assessment body), prior to the Commission's 
acceptance of its accreditation 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 Commission accredited by order 
at or before the time the product was tested, even though the order 
will not have included the test methods in the regulations specified 
in this notice. If the third party conformity assessment body has 
not been accredited by a Commission order as a firewalled conformity 
assessment body, the Commission will not accept a certificate of 
compliance based on testing performed by the third party conformity 
assessment body before it is accredited, by Commission order, as a 
firewalled conformity assessment body;
     The third party conformity assessment body's 
application for testing using the test methods in 16 CFR part 1632 
and/or 1633 is accepted by the CPSC on or before October 18, 2010;
     The product was tested under 16 CFR part 1632 and/or 
1633 on or after August 18, 2010;
     The accreditation scope in effect for the third party 
conformity assessment body at the time of testing expressly included 
testing to 16 CFR part 1632 and/or 1633;
     The test results show compliance with the applicable 
current standards and/or regulations; and
     The third party conformity assessment body's 
accreditation, including inclusion in its scope of 16 CFR part 1632 
and/or 1633, remains in effect through the effective date for 
mandatory third party testing and manufacturer certification for 
conformity with 16 CFR parts 1632 and/or 1633.

    75 FR at 51022.

II. Requests for Revision

    In response to the notice of requirements, the International Sleep 
Products Association (ISPA) submitted a letter to the Commission 
arguing that the CPSIA's third party testing requirements do not apply 
to part 1632 or 1633. In the alternative, the ISPA urged that we adopt 
a longer implementation period for third party testing under 16 CFR 
part 1632, and to ``grandfather in all previously conducted 1632 and 
1633 testing performed by third party labs accredited by the CPSC, 
regardless of whether those tests occurred before or after August 18, 
2010.'' (The ISPA letter may be viewed at http://www.regulations.gov in 
the docket folder for docket number CPSC-2010-0085.) The ISPA met with 
individual Commissioners and CPSC staff to discuss the requests on 
September 15, October 22, October 26, and November 9, 2010. Summaries 
of those meetings may be found at:  http://www.cpsc.gov/library/foia/meetings/meetings.html.
    With regard to the request for a longer implementation period for 
third party testing for 16 CFR part 1632, the ISPA requested an 
additional year ``[f]or those prototype and ticking substitutes that 
were not tested by a third party lab and that are being used in 
children's mattresses sold today * * * to allow manufacturers of 
children's mattresses 12 months to retest all of the applicable 
prototypes and ticking substitutes.'' The ISPA presented two main 
arguments in support of this request. First, it noted that ``using a 
third party to perform the required 1632 tests will involve substantial 
time and costs.'' Second, it asserted that ``changes in how 1632 tests 
are to be performed make it difficult to conduct those tests at this 
moment.'' The standard for the flammability of mattresses and mattress 
pads at 16 CFR part 1632 sets forth a test to determine the ignition 
resistance of a mattress or mattress pad when exposed to a smoldering 
cigarette. Lighted cigarettes are placed at specified locations on the 
surface of a mattress (or mattress pad). The ignition source is 
specified in 16 CFR part 1632 by physical properties that were 
originally selected to represent an unfiltered Pall Mall cigarette, but 
those cigarettes are no longer available. ISPA stated a concern that 
there may be substantial confusion about what ignition source will be 
required for part 1632 tests ``[f]or at least the short term.''
    With regard to the request that we accept, for children's product 
certification purposes, all tests pursuant to 16 CFR parts 1632 and 
1633 previously conducted by accredited third party laboratories, 
regardless of when the test occurred, the ISPA presented three main 
arguments, all of which focused on the testing conducted under 16 CFR 
part 1633. First, the ISPA noted that because the mattress flammability 
test required by 16 CFR part 1633 since 2007 is a complex, open-flame 
test that involves the destruction of a mattress, most manufacturers 
have been using third party laboratories for this testing. According to 
the ISPA, many of the laboratories that have done the testing since the 
standard was revised substantially in 2007 meet the baseline 
requirements for acceptance by the CPSC. Second, there have been no 
changes to the test method required under 16 CFR part 1633 since 2007. 
Third, the ISPA notes that testing under 16 CFR part 1633 is expensive 
and time-consuming. It argued that accepting only those third party 
tests of children's mattresses under 16 CFR part 1633 that have 
occurred since August 18, 2010, would be ``arbitrary and wasteful'' 
because requiring the mattress industry to retest all mattress 
prototypes used in making children's mattress sets ``would take months 
to perform and cost the industry hundreds of thousands--if not 
millions--of dollars and would provide no discernable safety benefit.''
    Similarly, on November 2, 2010, the Commission received a letter 
from the Springs Creative Products Group, LLC, claiming that the notice 
of requirements would ``put an extreme burden on mattress manufacturers 
to complete additional and redundant testing by accredited labs * * * 
by November 16, 2010,'' and asking that we:
     ``Grandfather in all Part 1633 qualification and 
confirmation testing performed since 2006 by all test labs that are 
accredited by the CPSC;''
     ``Grandfather in all Part 1632 tests performed by 
accredited labs since 2006;'' and
     Grant a one year compliance period ``for all Part 1632 
prototypes and ticking substitutes that were not tested by accredited 
labs.''
    Letter from Derick S. Close, CEO, Springs Creative Products Group, 
LLC, to Inez Tenenbaum, Chairman, Consumer Product Safety Commission 
(October 26, 2010). (The Springs Creative Products Group letter may be 
viewed at http://www.regulations.gov in the docket folder for docket 
number CPSC-2010-0085). The letter asserted that ``[r]equiring 
manufacturers to have the same labs retest the same Part 1633 
prototypes following the same exact test method as was done since 2006 
would impose wasted costs on an industry recovering from the worst 
recession in 70 years'' and that ``the industry needs more time to 
retest materials [in] an orderly manner because the CPSC is in the 
midst of changing the cigarettes used for testing.'' Id. at pages 1 
through 2.

III. The Response to the Requests

A. A Brief Description of Testing Under 16 CFR Parts 1632 and 1633

    We have considered the requests and, through this notice, are 
revising our position regarding ``Limited Acceptance of Children's 
Product Certifications Based on Third Party Conformity Assessment Body 
Testing Prior to the Commission's Acceptance of Accreditation.'' To 
help interested parties understand our reasons for revising our 
position, we begin by explaining what prototype testing pursuant to 16 
CFR parts 1632 and 1633 involves and the relevance of the letters' 
reference to cigarettes.

[[Page 72946]]

    The Standard for the Flammability of Mattresses and Mattress Pads, 
16 CFR part 1632, sets forth a test to determine the ignition 
resistance of a mattress or mattress pad when exposed to a lighted 
cigarette. In brief, the regulations require pre-market prototype 
testing for each new mattress design and also require prototype testing 
when there has been a change in materials of an existing prototype 
design that could influence cigarette ignition resistance. Six mattress 
surfaces must be tested for each prototype. Lighted cigarettes are 
placed at specified locations on the surface of a mattress (or mattress 
pad). The Standard establishes pass/fail criteria for the tests. 
Currently, the Standard specifies the ignition source for these tests 
by its physical properties. These properties originally were selected 
to represent an unfiltered Pall Mall cigarette, which was identified as 
the most severe smoldering ignition source. Recently, however, the 
Commission published a proposed rule (75 FR 67047 (Nov. 1, 2010)), to 
amend the mattress standard to require a standard reference material 
cigarette, which was developed by the National Institute of Standards 
and Technology, as the ignition source for testing to the mattress 
Standard.
    The Standard for the Flammability (Open Flame) of Mattress Sets, 16 
CFR part 1633, is intended to minimize or delay ``flashover'' when a 
mattress is ignited in a typical bedroom fire. (``Flashover'' is the 
point at which the entire contents of a room are ignited simultaneously 
by radiant heat, making conditions in the room untenable and a safe 
exit from the room impossible. At flashover, room temperatures 
typically exceed 600-800 degrees Celsius (approximately 1100-1470 
degrees Fahrenheit).) In general, the Standard requires manufacturers 
to test specimens of each of their mattress prototypes (designs) before 
mattresses of that prototype may be introduced into commerce. The 
specimen is to be no smaller than twin size, unless the largest size 
mattress or set produced of that type is smaller than twin size, in 
which case the largest size must be tested.
    The Standard prescribes a full-scale test using a pair of T-shaped 
gas burners designed to represent burning bedclothes. The mattress set 
must not exceed a peak heat release rate of 200 kilowatts (kW) at any 
time during a 30 minute test, and the total heat release for the first 
10 minutes of the test must not exceed 15 megajoules (``MJ''). 
Mattresses that meet the Standard's criteria will make only a limited 
contribution to a fire, especially in the fire's early stages. This 
will allow occupants more time to discover the fire and escape.
    Thus, both 16 CFR parts 1632 and 1633 contemplate testing of 
prototypes rather than testing mattresses, mattress sets, or mattress 
pads that are already in production. The prototype itself does not have 
to be a children's mattress, mattress set, or mattress pad for purposes 
of section 14(a)(2) of the CPSA; however, to support the issuance of a 
certificate for a children's product, the prototype testing must be 
conducted by a CPSC-accepted third party conformity assessment body.

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

    Given the nature of prototype testing under 16 CFR parts 1632 and 
1633, we agree that revising our position on our ``Limited Acceptance 
of Children's Product Certifications Based on Third Party Conformity 
Assessment Body Testing Prior to the Commission's Acceptance of 
Accreditation'' is appropriate. The revised position will reduce 
further the need for redundant testing. We will accept children's 
product certifications based on third party conformity assessment body 
testing, prior to our acceptance of accreditation, under two different 
scenarios.
1. Testing Performed by Certain Accredited Third Party Conformity 
Assessment Bodies on or After July 1, 2007
    The notice of requirements that appeared in the Federal Register on 
August 18, 2010 described the circumstances under which the Commission 
would accept a certificate of compliance with the standard included in 
16 CFR parts 1632 and/or 1633 based on testing performed by an 
accredited third party conformity assessment body (75 FR at 51023). Due 
to the nature of prototype testing under 16 CFR parts 1632 and 1633 and 
the date on which the requirements in 16 CFR part 1633 became 
effective, we are modifying section IV of the notice of requirements as 
follows:
     At the time of product testing, the product was tested by 
a third party conformity assessment body that was ISO/IEC 17025 
accredited by an accreditation body that is a signatory to the ILAC-
MRA;
     The third party conformity assessment body's application 
for testing using the test methods in 16 CFR part 1632 and/or 1633 is 
accepted by the CPSC on or before November 16, 2010;
     The product was tested under 16 CFR part 1632 and/or 1633 
on or after July 1, 2007. The date on which the requirements in 16 CFR 
part 1633 became effective is July 1, 2007, and, in an ``Interim 
Enforcement Policy for Mattresses Subject to 16 CFR Parts 1632 and 
1633,'' dated May 15, 2006, the CPSC anticipated that 16 CFR part 1633 
could prompt manufacturers to redesign mattress prototypes and use new 
materials to meet the then-new flammability requirements in 16 CFR part 
1633, and that the new prototypes also would have to be tested to 
demonstrate compliance with 16 CFR part 1632. Therefore, provided that 
the other conditions set forth in part III.B.1 of this document are 
met, we will accept testing that was done on or after July 1, 2007. We 
decline to accept results for tests conducted in 2006, because such 
tests were not equivalent to the tests required in 16 CFR part 1633;
     The accreditation scope in effect for the third party 
conformity assessment body at the time of testing expressly included 
testing to 16 CFR part 1632 and/or 1633;
     The test results show compliance with the applicable 
current standards and/or regulations; and
     The third party conformity assessment body's 
accreditation, including inclusion in its scope of 16 CFR part 1632 
and/or 1633, remains in effect through the effective date for mandatory 
third party testing and manufacturer certification for conformity with 
16 CFR parts 1632 and/or 1633.
2. Testing Performed by Seven Testing Laboratories
    In July 2007, CPSC staff conducted onsite reviews of the facilities 
that were performing testing to 16 CFR part 1633. During these reviews, 
we met with laboratory technical staff, toured the laboratory 
facilities, and observed the laboratory staff performing the test 
procedures. The purpose of the onsite reviews was to observe and gather 
information because the CPSC had concerns about test performance. The 
CPSC staff reviews examined:
     Laboratory staff qualifications;
     Test area and equipment;
     Calibration of equipment;
     Testing, data collection, and storage of samples; and
     Sample handling.
    At the time that CPSC staff did the onsite reviews, there were 11 
laboratories (nine within the United States and two in foreign 
countries) with the capability to perform the required test. (Resources 
limited the CPSC staff's ability to review the

[[Page 72947]]

remaining foreign and domestic laboratories prior to the implementation 
of the Consumer Product Safety Improvement Act.) CSPC staff visited the 
following laboratories:
    (1) Underwriters Laboratories (UL), in Northbrook, IL;
    (2) Stork Twin City Testing Corporation, in St. Paul, MN;
    (3) Govmark Organization, in Farmingdale, NY;
    (4) SGS US Testing, in Tulsa, OK;
    (5) Southwest Research Institute, in San Antonio, TX;
    (6) Intertek, in Elmendorf, TX; and
    (7) Chilworth, in Kelso, WA.
    CPSC staff has confidence that these laboratories can conduct the 
tests required by the mattress Standard properly because of these field 
visits and also on the basis of our review of test results submitted to 
the CPSC since 2007, and, in some instances, verification of the test 
results by our own independent testing of mattresses built from 
prototypes tested by these laboratories. Therefore, we will accept 
children's product certifications based on third party conformity 
assessment body testing by any of the seven laboratories listed above 
provided that:
     The laboratory will be ISO/IEC 17025 accredited by an 
accreditation body that is a signatory to the ILAC-MRA, and the 
accreditation scope will expressly include testing to 16 CFR part 1632 
and/or 1633 by November 16, 2010;
     Testing was conducted on or after July 1, 2007, but not 
later than November 16, 2010; and
     The test results show compliance with the applicable 
current standards and/or regulations.

C. The Request for an Extended Compliance Period

    Both the ISPA and the Springs Creative Products Group sought an 
additional one year for manufacturers to comply with the third party 
testing requirement. Both referred to costs and to the cigarettes to be 
used in the tests.
    We decline to extend the time by which manufacturers must engage in 
third party testing. We believe that our revised position regarding our 
``Limited Acceptance of Children's Product Certifications Based on 
Third Party Conformity Assessment Body Testing Prior to the 
Commission's Acceptance of Accreditation'' substantially reduces or 
eliminates the need to retest products. More importantly, however, we 
note that section 14(a)(3)(F) of the CPSA expressly declares that:

    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 * * * the 
Commission may extend the deadline for certification to such rule by 
not more than 60 days.

Thus, the conditions set forth in section 14(a)(3)(F) of the CPSA have 
not been met. We do not have information suggesting that there are an 
insufficient number of third party conformity assessment bodies to 
conduct tests pursuant to 16 CFR parts 1632 and/or 1633. While we 
recognize that third party testing may present economic issues for 
certain manufacturers as described in the ISPA submissions and 
subsequent meetings, section 14(a)(3)(F) of the CPSA does not authorize 
us to consider cost or the past or present state of the national 
economy as reasons for extending the deadline for certification. 
Additionally, the statute specifically allows for extension ``not more 
than 60 days''; therefore, the one-year extension sought by the ISPA 
and Springs Creative Product Group would not be possible under section 
14(a)(3)(F) of the CPSA.

    Dated: November 19, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-29861 Filed 11-26-10; 8:45 am]
BILLING CODE 6355-01-P
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