69546 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

1The Commission voted 3–2 to publish this final 

rule, with changes, in the Federal Register. 

Chairman Inez M. Tenenbaum, Commissioners 

Robert S. Adler and Thomas H. Moore voted to 

publish the final rule with changes. Commissioners 

Nancy A. Nord and Anne M. Northup voted against 

publication of the final rule. Chairman Tenenbaum, 

Commissioner Adler, and Commissioner Moore 

issued a joint statement. Commissioner Nord and 

Commissioner Northrup issued statements. The 

statements can be found at http://www.cpsc.gov/pr/ 

statements.html. 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1109 

[CPSC Docket No. CPSC–2010–0037] 

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 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Final rule. 

SUMMARY: The Consumer Product Safety 

Commission (‘‘CPSC,’’ ‘‘Commission,’’ 

or ‘‘we’’) is issuing a final rule regarding 

the conditions and requirements for 

relying on testing or certification of 

either component parts of consumer 

products, or another party’s finished 

product, or both, to demonstrate, in 

whole or in part, compliance of a 

consumer product with all applicable 

rules, bans, standards, and regulations 

to support a children’s product 

certificate (‘‘CPC’’); as part of the 

standards and protocols for continued 

testing of children’s products; or 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. 

DATES: The final rule is effective on 

December 8, 2011.1

FOR FURTHER INFORMATION CONTACT: 

Randy Butturini, Project Manager, 

Office of Hazard Identification and 

Reduction, Consumer Product Safety 

Commission, 4330 East West Highway, 

Bethesda, MD 20814; telephone (301) 

504–7562; email rbutturini@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. What is the purpose of the final rule? 

Elsewhere in this issue of the Federal 

Register, we are issuing a final rule 

titled, ‘‘Testing and Labeling Pertaining 

to Product Certification.’’ That rule 

addresses testing, continuing testing, 

and labeling requirements for children’s 

products, and creates a new 16 CFR part 

1107. It is the hope of the Commission 

that component part testing will help 

manufacturers meet their testing, 

continuing testing, and certification 

obligations under section 14 of the 

Consumer Product Safety Act (‘‘CPSA’’). 

This final rule on component part 

testing 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. For 

example, it may be more efficient to test 

component parts of consumer products 

before final assembly. Such testing may 

be done by component part suppliers so 

that test reports can be provided to 

multiple manufacturers using such 

component parts. Alternatively, 

manufacturers who assemble finished 

products can test component parts as 

they are received to reduce costs where, 

for example, the same component part 

is used in multiple product lines. The 

final rule allows for maximum 

flexibility because a domestic 

manufacturer or importer who is 

required to certify consumer products 

pursuant to 16 CFR part 1110 (‘‘finished 

product certifier’’) can base such 

certificate upon one or more of the 

following: (a) Component part testing; 

(b) component part certification; (c) 

another party’s finished product testing; 

or (d) another party’s finished product 

certification. 

Component part testing as described 

in this rule is voluntary. While some 

regulations may require testing a 

component part of a product to meet a 

standard, such as the lead content limit 

in children’s products, which must be 

measured in parts per million per 

component part, component part testing 

is never required to be conducted before 

assembly of a final product. A finished 

product certifier has the option to 

contract with its component part 

suppliers to conduct testing on 

component parts before assembly; it 

could procure testing of component 

parts after receiving them from 

suppliers but before assembly; or it 

could provide a sufficient number of 

finished products to a third party 

conformity assessment body to test for 

lead content on a per component part 

basis. 

Although relying on another party’s 

finished product testing or certification, 

or on component part testing before 

final assembly of a consumer product, is 

voluntary, once a party decides to 

conduct or rely upon either, the 

requirements in this rule apply. To the 

extent component part testing is not 

addressed by another CPSC-enforced 

rule, regulation, standard, or protocol, 

the final rule will apply. In general, 

certifiers should test and certify 

consumer products, including 

children’s products, based on the most 

specific regulation that applies to such 

consumer product. 

Except for component part testing for 

phthalate content, discussed in section 

II.D.3 of this preamble, this final rule is 

intended to supersede all policy 

statements and guidelines as they apply 

to testing of component parts. 

B. What does the law require? 

Except as provided in section 14(a)(2) 

of the CPSA, section 14(a)(1) of the 

CPSA, 15 U.S.C. 2063(a)(1), requires 

manufacturers and private labelers of a 

product that is subject to a consumer 

product safety rule (defined in section 

3(a)(6) of the CPSA), or to any similar 

rule, ban, standard, or regulation under 

any other act enforced by the 

Commission, to issue a certificate of 

conformity. The certificate: (1) Must 

certify, based on a test of each product 

or upon a reasonable testing program, 

that the product complies with all CPSC 

requirements; and (2) must specify each 

rule, ban, standard, or regulation 

applicable to the product. This 

certificate is called a General 

Conformity Certificate (‘‘GCC’’) for nonchildren’s products. Although discussed 

in the proposed rule, the final rule on 

‘‘Testing and Labeling Pertaining to 

Certification’’ does not implement 

requirements for a reasonable testing 

program for non-children’s products. 

Accordingly, we have not adopted any 

provisions in this final rule directly 

related to a reasonable testing program 

or a GCC. It should be noted, however, 

that although we are not implementing 

requirements for a reasonable testing 

program for non-children’s products, 

manufacturers of non-children’s 

products that are subject to a product 

safety rule, ban, standard, or regulation 

are still obligated by the CPSA, as 

amended by the CPSIA, to certify that 

their products comply with all 

applicable safety rules based on a test of 

each product or a reasonable testing 

program. Nothing in this rule is 

intended to preclude a certifier from 

using component part testing as part of 

a reasonable testing program to certify 

non-children’s products. 

Section 14(a)(2) of the CPSA, 15 

U.S.C. 2063(a)(2), requires 

manufacturers and private labelers of 

any children’s product that is subject to 

a children’s product safety rule to 

submit samples of the product, or 

samples that are identical in all material 

respects to the product, to a third party 

conformity assessment body whose 

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Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 69547 

accreditation has been accepted by the 

CPSC to be tested for compliance with 

such children’s product safety rule. 

Based on that testing, the manufacturer 

or private labeler 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 conduct 

such tests. 15 U.S.C. 2063(a)(2)(B). The 

manufacturer or private labeler of the 

children’s product must issue either a 

separate certificate for each applicable 

children’s product safety rule or a 

combined certificate that certifies 

compliance with all applicable 

children’s product safety rules and 

specifies each such rule. This certificate 

is called a Children’s Product Certificate 

(‘‘CPC’’). 

Section 14(i)(2)(B) of the CPSA, 15 

U.S.C. 2063(i), requires the Commission, 

by regulation, to establish protocols and 

standards for ensuring that a certified 

children’s product that has been tested 

for compliance with all applicable 

children’s product safety rules is 

subjected to additional testing 

periodically and when there has been a 

material change in the product’s design 

or manufacturing process, including the 

sourcing of component parts. The final 

rule on ‘‘Testing and Labeling 

Pertaining to Product Certification,’’ 16 

CFR part 1107, implements sections 

14(a) and (i) of the CPSA. (On August 

12, 2011, the President signed H.R. 2715 

into law. Among other things, H.R. 2715 

corrected an editorial error in section 14 

of the CPSA, by renumbering a second 

section 14(d) of the CPSA on 

‘‘Additional Regulations for Third Party 

Testing’’ to section 14(i) of the CPSA. 

Accordingly, throughout this preamble, 

including comment summaries and 

responses, we have replaced references 

to section 14(d) of the CPSA with 

section 14(i) of the CPSA to be 

consistent with this renumbering.) 

Section 14(g) of the CPSA contains 

additional requirements for certificates. 

15 U.S.C. 2063(g). Each certificate must 

identify the manufacturer or private 

labeler issuing the certificate and any 

third party conformity assessment body 

on whose testing the certificate 

depends. The certificate must include, 

at a minimum, the date and place of 

manufacture, the date and place where 

the product was tested, each party’s 

name, full mailing address, telephone 

number, and contact information for the 

individual responsible for maintaining 

records of test results. Every certificate 

must be legible, and all required content 

must be in the English language. A 

certificate also may contain the same 

content in any other language. 

Section 14(g) of the CPSA also states 

that every certificate must accompany 

the applicable product or shipment of 

products covered by the same 

certificate, and a copy of the certificate 

must be furnished to each distributor or 

retailer of the product. Upon request, 

the manufacturer or private labeler 

issuing the certificate must furnish a 

copy of the certificate to the 

Commission. CPSC regulations, at 16 

CFR part 1110, limit the parties 

responsible for issuing certificates to 

domestic manufacturers and importers. 

Part 1110 also specifies the form and 

content of certificates, and other 

requirements, including that certificates 

can be provided in electronic form. 

Finally, we note that H.R. 2715 

requires us to seek public comment on 

the extent to which manufacturers 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. This final 

rule allows finished product certifiers to 

use component part testing to meet 

certification requirements under certain 

circumstances. Elsewhere in this issue 

of the Federal Register, we have 

published a notice seeking comment on 

the issues specified in H.R. 2715, 

including the testing of a subset of 

components. 

C. What comments did we receive about 

the proposed rule? 

In the Federal Register of May 20, 

2010 (75 FR 28208), we published a 

proposed rule that would establish a 

new part 1109, titled, ‘‘Conditions and 

Requirements for Testing Component 

Parts of Consumer Products.’’ Proposed 

part 1109 would consist of two subparts: 

Subpart A––General Conditions and 

Requirements, and Subpart B–– 

Conditions and Requirements for 

Specific Consumer Products, 

Component Parts, and Chemicals. The 

proposed rule was intended to set out 

the conditions under which a party 

certifying a product under section 14 of 

the CPSA would be able to rely on tests 

of component parts of the product, 

including materials used to produce it, 

as all or part of the basis for a valid 

certificate verifying that the product 

complies with all applicable 

requirements enforced by the 

Commission. 

We received 26 comments on the 

proposed rule, discussing 58 different 

issues. Most commenters supported the 

proposed rule. For example, one 

commenter suggested that the testing 

and certification of component parts can 

be cost effective. Other commenters 

stated that the proposed rule, along with 

the proposed rule on testing and 

labeling, which appeared in the same 

issue of the Federal Register, were well 

thought out and wholly appropriate. 

Another commenter said that 

component part testing was more 

practical and protective of consumers 

than requiring all tests to be performed 

on the finished product. Another 

commenter stated that the rule 

appropriately placed the final 

responsibility for ensuring that only 

certified component parts are used in 

the finished product on the finished 

product certifier. Another commenter 

liked the strong chain of custody and 

expressed the belief it would encourage 

manufacturers to use suppliers who 

have good practices. 

Other commenters expressed general 

concerns about the proposed rule. For 

example, one commenter thought that 

the rule’s complexity would limit the 

willingness of some suppliers to certify 

their component parts voluntarily and 

therefore, limit the relief that the rule 

would provide to small businesses. 

We discuss these comments, and our 

responses, in part II of this preamble. 

II. Comments on the Proposed Rule, 

CPSC’s Responses, and Explanation of 

the Final Rule 

A. Introduction 

The final rule establishes a new 16 

CFR part 1109, setting forth the 

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. 

The new part 1109 consists of three 

subparts: Subpart A—General 

Conditions and Requirements; Subpart 

B—Conditions and Requirements for 

Specific Consumer Products, 

Component Parts, and Chemicals; and 

Subpart C—Conditions and 

Requirements for Composite Testing. 

In this section, we describe each 

section of the proposed rule, summarize 

the comments we received for each 

section, and respond to the comments. 

We also discuss what changes we made 

to the final rule. A summary of each of 

the commenters’ topics is presented, 

and each topic is followed by the 

Commission’s response. For ease of 

reading, each topic will be prefaced 

with a numbered ‘‘Comment’’; and each 

response will be prefaced by a 

corresponding numbered ‘‘Response.’’ 

Each ‘‘Comment’’ is numbered to help 

distinguish between different topics. 

The number assigned to each comment 

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69548 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

is for organizational purposes only and 

does not signify the comment’s value or 

importance or the order in which it was 

received. Comments on similar topics 

are grouped together. 

B. General Comments 

1. Should the final rule include finished 

products? 

In the preamble to the proposed rule, 

we invited comment on whether the 

final rule should allow finished product 

certifiers to rely on tests or certifications 

on finished products as well as on 

component parts: 

The Commission invites comment on 

whether finished product certifiers should be 

permitted to rely on other types of 

certifications from other persons (in addition 

to component part certifications). The 

proposed rule only would allow a finished 

product certifier to rely on certificates 

relating to the performance of individual 

component parts; it would not authorize a 

finished product certifier to rely on a 

certificate from another party certifying that 

the finished product itself complies with an 

applicable rule. For example, it would not 

allow certification by others in the case of 

standards, such as the small parts ban at 16 

CFR 1500.19, which require testing of the 

entire product as opposed to an individual 

component. Should this limitation be 

modified so that the importer of a product 

would be able to base its own certification on 

what might be termed a ‘‘subordinate’’ 

certificate from a foreign manufacturer or 

other interested party to the effect that the 

product complies with one or more of these 

standards? What are the risks and benefits of 

allowing such an arrangement? 

75 FR at 28209. 

(Comment 1)—Some commenters 

asked whether an importer can accept a 

finished product certificate from a 

foreign manufacturer to certify the 

product. Some commenters stated that, 

occasionally, two certified products are 

bundled together for retail sale as a 

single unit. The commenters stated that 

the retailer or importer should be able 

to rely upon the certificates for each of 

the two bundled products, rather than 

have to follow the process of certifying 

the bundled product. 

(Response 1)—The preamble to the 

proposed rule invited comment on 

whether we should allow finished 

product suppliers to issue finished 

product certificates upon which 

importers or other certifiers receiving 

such products from the suppliers could 

use as the basis for issuing their finished 

product certificates (75 FR 28209). The 

final rule allows this practice because 

no practical difference exists between 

relying on another party’s component 

part testing or certification and relying 

on another party’s finished product 

testing or certification, provided the 

same due care and documentation 

requirements are followed for both types 

of testing and certification. Just as with 

component part testing and 

certification, certifiers may be able to 

achieve efficiencies by using this 

approach and still ensure compliance to 

applicable safety standards. 

For example, under the final rule, an 

importer can rely on finished product 

testing or certification provided by a 

foreign supplier, as suggested by the 

commenter. Where multiple parties 

import the same product, a foreign 

supplier could provide finished product 

testing reports or certifications to all 

importers, removing the necessity for 

each importer to conduct certification 

testing. Likewise, a party who 

‘‘bundles’’ one or more finished 

products can rely on finished product 

testing or certifications from another 

party to issue a finished product 

certificate for the bundled product. In 

cases where a finished product certifier 

combines more than one certified 

finished product, it has several options 

in certifying such bundled product. 

Based on the certificates received for 

each product in the bundle, the finished 

product certifier can: (a) Issue a new 

certificate for each product in the 

bundle; (b) issue a new certificate for 

the bundled product; or (c) pass along 

the finished product certificates 

provided by another party. If the 

certifier chooses option (b), the 

certificate should indicate what 

information required by section 14(g)(1) 

of the CPSA and 16 CFR part 1110 is 

applicable to each product. 

Our intent is that children’s products 

introduced into commerce in the United 

States are certified as compliant with all 

applicable children’s product safety 

rules by a party required to issue such 

certificate pursuant to 16 CFR part 1110, 

a domestic manufacturer or an importer. 

There are multiple ways that this can be 

achieved by a party required to certify 

a children’s product. The party required 

to certify a children’s product may use 

one or more of the following: 

• Procure component part testing (for 

those tests for which component part 

testing is allowed) or finished product 

testing from a CPSC-accepted third 

party conformity assessment body and 

issue a finished product certificate 

based on those passing test results; 

• Rely upon component part testing 

or finished product testing, procured by 

another party using a CPSC-accepted 

third party conformity assessment body, 

as a basis for issuing a finished product 

certificate; or 

• Rely upon component part 

certification or finished product 

certification from another party as a 

basis for issuing a finished product 

certificate. If the supplier providing a 

certificate is also a required certifier (a 

domestic manufacturer or importer), 

then the party receiving a certificate 

does not need to reissue a certificate. If 

the supplier providing a certificate is 

doing so voluntarily, and is not required 

to provide a certificate, then the 

domestic manufacturer or importer must 

issue the finished product certificate. It 

may do so based on the certificates 

provided. 

We also have revised the title for part 

1109 from, ‘‘Conditions and 

Requirements for Testing Component 

Parts of Consumer Products,’’ to 

‘‘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.’’ The 

revised title reflects more accurately the 

fact that the rule sets forth conditions 

and requirements for relying on testing 

and certification of component parts, as 

well as for relying on another party’s 

testing and certification of finished 

products, to meet the testing and 

certification requirements in section 14 

of the CPSA. We also revised the 

following sections to reflect that a 

finished product certifier may rely on 

finished product testing or certification, 

in addition to component part testing or 

certification, from another party who is 

not required to conduct testing or issue 

certifications: § 1109.1; § 1109.2; 

§ 1109.3; §§ 1109.4(c), (i), and (m); 

§§ 1109.5(b), (d), (f), (g), (h), and (i). 

2. Can there be a ‘‘master certificate’’ 

relied upon by multiple manufacturers? 

(Comment 2)—One commenter 

encouraged us to allow importers to 

reference a ‘‘master certificate’’ issued 

by another interested party, such as the 

manufacturer. The commenter stated 

that in many cases, multiple importers 

will import identical finished products. 

Often, these are nationally branded 

products that simply are imported 

separately by multiple retailers for 

convenience. Without the ability to 

reference another ‘‘master’’ certificate, 

each importer/retailer would have to 

generate its own certificate 

independently, the commenter asserted. 

(Response 2)—As set forth in response 

to Comment 1 in section II.B of this 

preamble, if a foreign manufacturer 

certifies its product and sells that 

product to many importers, each 

importer may use the manufacturer’s 

certificate (and other required records) 

to issue its own certificate. Importers 

may rely on a ‘‘master certificate’’ 

issued by another interested party, such 

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Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 69549 

as a foreign manufacturer, to eliminate 

redundant testing, but only if the 

importer issues its own certificate. 

Requiring the importer to generate its 

own certificate means that the importer 

must exercise due care to make certain 

that the foreign manufacturer’s testing 

and certification procedures are 

sufficient to ensure compliance with 

CPSC regulations, as well as aid the 

CPSC’s enforcement of certification 

requirements. 

If the importer makes a material 

change in the product, the importer may 

be able to use the manufacturer’s 

certificate, plus tests pertaining only to 

the material change, as a basis for 

issuing its own certificate. Importers 

remain responsible for the 

recordkeeping requirements of products 

they certify. 

3. Must component part manufacturers 

test their components? 

(Comment 3)—One commenter stated 

that we should clarify that component 

part testing is entirely voluntary for 

parties supplying component parts or 

finished products to a finished product 

certifier (‘‘upstream suppliers’’). The 

commenter further stated that raw 

material or component part producers, 

who voluntarily certify their 

components parts, should be able to 

include relevant limitations on the 

certification form to avoid any 

confusion about the scope of the 

certification and should not have to 

furnish certificates in connection with 

the finished consumer product. 

(Response 3)—We agree that 

component part testing by component 

part suppliers is voluntary. To reduce 

any possible confusion about whether 

the CPSA requires component part 

manufacturers or suppliers to provide 

component part certificates, we have 

added clarifying language regarding the 

voluntary nature of providing 

component part test reports or 

component part certifications by parties 

other than those who are required to 

certify pursuant to 16 CFR part 1110. 

The clarifying language appears in the 

following sections: (1) Scope—§ 1109.1; 

(2) Applicability—§ 1109.3; (3) 

definition of ‘‘component part 

certifier’’—§ 1109.4(c); and (4) the 

definition of ‘‘finished product 

certifier’’—§ 1109.4(h). For example, 

§ 1109.1 now states: ‘‘Component part 

manufacturers and suppliers may certify 

or test their component parts, but are 

not required to do so.’’ As another 

example, the definition of ‘‘component 

part certifier’’ in § 1109.4(c) now states 

that a component part certifier is a party 

who voluntarily issues a certificate, 

even though they are not required to do 

so. Further, in the first sentence of 

§ 1109.5(a) of the final rule, we have 

clarified that ‘‘[a]ny party, including a 

component part manufacturer, a 

component part supplier, a component 

part certifier, or a finished product 

certifier, may procure component part 

testing as long as it complies with the 

requirements in this section and 

subparts B and C of this part.’’ 

With regard to limiting the scope of a 

certificate, the scope of a certificate is 

dictated by statute and regulation. 

Sections 14(a)(1)(B) (for non-children’s 

products) and 14(a)(2)(B) (for children’s 

products) of the CPSA state that a 

certificate must list each safety rule 

applicable to the product. This 

requirement is mirrored in 16 CFR 

1110.11(b). Pursuant to proposed 

§ 1109.5(g) (renumbered to § 1109.5(h) 

in the final rule), component part 

certificates also must meet the content 

requirements in 16 CFR 1110.11. Thus, 

a component part supplier who 

voluntarily certifies component parts 

must list all safety standards and 

regulations to which the certificate 

applies. Unlike a finished product 

certificate, however, a component part 

certifier may not know all of the rules 

and regulations that a component part 

ultimately may be subject to, or may not 

choose to certify a component part to 

every applicable rule and regulation, 

depending upon what type of finished 

product incorporates the component 

part. The requirement to list the safety 

standards and regulations being 

certified should allow component part 

certifiers to state unambiguously the 

scope of the certification. 

Finished product manufacturers 

should be mindful of the scope of 

component part certifications and of 

how such component parts are 

integrated into finished products to 

ensure that any additional testing 

required to certify the finished product 

is met. For example, a component part 

supplier of colored bolts may certify to 

the lead paint and lead in substrate 

standards. A finished product certifier 

using such bolts in a children’s product 

would not need to retest for these 

standards. However, a finished product 

certifier likely still would need to 

conduct additional small parts testing 

on the finished product because small 

parts testing is something that only can 

be conducted on finished products. 

Finally, under § 1109.5(g), component 

part certifiers must provide certificates 

to the finished product certifier who is 

relying on such certification. A 

component part certifier, however, does 

not have to furnish certificates to 

accompany a finished product; only the 

finished product certifier must do this, 

pursuant to 16 CFR part 1110. 

C. Subpart A—General Conditions and 

Requirements 

1. Proposed § 1109.1—Scope 

Proposed § 1109.1 would describe the 

scope of part 1109 as: ‘‘applying to all 

tests of component parts of consumer 

products where the test results are used 

to support a certificate of compliance 

issued pursuant to section 14(a) of the 

CPSA or where the tests are otherwise 

required or permitted by section 14 of 

the CPSA.’’ 

As stated earlier in our response to 

Comment 3 in section II.B of this 

preamble, we have revised § 1109.1 to 

clarify that component part 

manufacturers and suppliers may certify 

or test their component parts, but they 

are not required to do so. Parties who 

are not required to test finished 

products or to issue finished product 

certificates pursuant to 16 CFR part 

1110 may also voluntarily test such 

finished products or issue finished 

product certificates. 

Additionally, because the final rule 

extends to finished products, we have 

reorganized § 1109.1 to include finished 

products. As revised, § 1109.1(a) 

describes the overall scope of part 1109. 

Section 1109.1(b) clarifies that 

component part testing and certification 

and finished product testing and 

certification under part 1109 are 

voluntary. We also have added, on our 

own initiative, a new § 1109.1(c) to 

summarize the three subparts in part 

1109, and we have revised the reference 

to section 14(d) of the CPSA to section 

14(i) of the CPSA due to renumbering 

arising out of H.R. 2715. 

2. Proposed § 1109.2—Purpose 

Proposed § 1109.2 would discuss the 

rule’s purpose, which is to set forth the 

conditions and requirements under 

which the Commission will require or 

accept the results of testing of 

component parts of consumer products, 

instead of the entire consumer product, 

to meet, in whole or in part, the testing 

and certification requirements of 

sections 14(a), 14(b), and 14(d) of the 

CPSA. 

We received no comments related 

directly to the purpose of the proposed 

rule. As stated earlier in our response to 

Comment 1 in section II.B of this 

preamble, we revised the purpose in the 

final rule to incorporate the concept that 

a finished product certifier may rely 

upon finished product testing or 

certification from another party, in 

addition to component part testing or 

certification, to meet the testing and 

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69550 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

certification requirements in sections 

14(a) and 14(i) of the CPSA. Likewise, 

we removed the concept that a 

component part could be tested ‘‘instead 

of the entire consumer product,’’ as 

stated in the proposed rule because the 

final rule also allows a finished product 

certifier to rely on testing or certification 

of a finished product conducted by 

another party. On our own initiative, we 

removed the reference to section 14(b) 

of the CPSA in the last sentence, which 

now states that component part testing 

or finished product testing can be used 

to meet the testing and certification 

requirements of sections 14(a) and 14(i) 

of the CPSA. While nothing prohibits 

certifiers from using component part 

testing as part of a reasonable testing 

program, section 14(b) of the CPSA does 

not itself contain a certification or 

testing requirement. Section 14(b) of the 

CPSA allows the Commission to 

prescribe a reasonable testing program 

by rule. Elsewhere in this issue of the 

Federal Register, we have issued a final 

rule on ‘‘Testing and Labeling 

Pertaining to Product Certification.’’ The 

final rule on ‘‘Testing and Labeling 

Pertaining to Product Certification’’ 

reserves, rather than finalizes, 

provisions pertaining to a ‘‘reasonable 

testing program.’’ Thus, we removed the 

reference to section 14(b) of the CPSA. 

We also revised the reference to section 

14(d) of the CPSA to cite section 14(i) 

of the CPSA throughout the rule as a 

result of renumbering arising out of H.R. 

2715. 

3. Proposed § 1109.3—Applicability 

Proposed § 1109.3 would specify that 

the rule applies to all manufacturers, 

importers, or private labelers and to the 

manufacturers or suppliers of 

component parts that are responsible 

for: (1) Certifying products under 

section 14(a) of the CPSA or for 

continued compliance testing under 

section 14(d) of the CPSA; or (2) testing 

component parts of consumer products 

to support a certification of compliance 

under section 14(a) of the CPSA, or to 

comply with continuing testing 

requirements under section 14(d) of the 

CPSA. 

We received no comments related 

directly to the applicability of the 

proposed rule. As stated earlier in our 

response to Comment 1 and Comment 3 

in section II.B of this preamble, we 

revised, on our own initiative, the final 

rule to incorporate the concept that a 

finished product certifier may rely upon 

finished product testing or certification 

from another party and to clarify, as 

well, that component part testing is 

voluntary. We also simplified the final 

rule’s language to establish more clearly 

that the rule applies to manufacturers 

and importers who are required to issue 

finished product certificates pursuant to 

16 CFR part 1110, as well as to 

manufacturers and suppliers of 

component parts or finished products 

who are not required to certify products, 

but who choose voluntarily to undertake 

certification testing or issuing 

certificates. We revised the reference to 

section 14(d) of the CPSA to cite section 

14(i) of the CPSA, as a result of 

renumbering arising out of H.R. 2715. 

4. Proposed § 1109.4—Definitions 

Proposed § 1109.4 would define 

various terms used in the rule. 

a. Proposed § 1109.4(a)—Certifier 

Proposed § 1109.4(a) would define a 

‘‘certifier’’ as a firm that is either a 

finished product certifier or a 

component part certifier, as defined in 

the final rule. 

We received no comments on the 

proposed definition. However, on our 

own initiative, we have made a 

nonsubstantive editorial change to 

replace the word ‘‘firm’’ with the word 

‘‘party.’’ We made this change in several 

places in the rule to be consistent 

internally and to clarify that the term 

includes organizations and individuals. 

b. Proposed § 1109.4(b)—Component 

Part 

Proposed § 1109.4(b) would define a 

‘‘component part,’’ in part, as ‘‘any part 

of a consumer product, including a 

children’s product, that either must or 

may be tested separately from a finished 

consumer product, to assess the 

consumer product’s ability to comply 

with a specific rule, ban, standard, or 

regulation enforced by the CPSC.’’ 

(Comment 4)—Some commenters 

suggested that the definition of 

‘‘component part’’ should include raw 

materials. The commenters said that, in 

many cases, a supplier might use the 

same raw materials in different 

combinations to make various 

component parts. For example, a button 

manufacturer may use various 

combinations of five different colored 

dyes and one type of plastic to 

manufacture a hundred different 

colored buttons. If each raw material 

met the requirements of a chemical 

content rule, then any component 

manufactured from the materials also 

would comply. 

(Response 4)—Raw materials, such as 

the colored dyes mentioned by the 

commenter, could be component parts if 

they meet the conditions in § 1109.5(a). 

However, if the compliance 

characteristics of raw materials could be 

affected adversely by subsequent 

processing or contamination, tests of the 

raw materials would not be suitable to 

show compliance of component parts 

made out of such raw materials. The 

language in the definition is broad 

enough to encompass raw materials as 

‘‘any part of a consumer product.’’ Thus, 

we decline to amend the rule as 

suggested by the commenters. 

However, on our own initiative, we 

have revised the definition of 

‘‘component part’’ to clarify that the 

type of test performed on each part may 

vary, depending upon the applicable 

regulation. For example, each painted 

plasticized component part of a 

children’s toy must be tested to the lead 

paint limit and the phthalate content 

limit, while painted wooden component 

parts of a children’s toy would need to 

be tested to the lead paint limit only. 

The proposed definition would state, in 

part, that ‘‘[w]ithin the same consumer 

product, which component parts will 

have to be tested may vary, depending 

on the test being conducted.’’ We 

revised the sentence to state: ‘‘[w]ithin 

the same consumer product, the 

component parts to be tested and the 

tests to be conducted may vary, 

depending on the applicable regulations 

and required test methods, if any.’’ 

c. Proposed § 1109.4(c)—Component 

Part Certifier 

Proposed § 1109.4(c) would define a 

‘‘component part certifier’’ as: ‘‘a firm 

that certifies component parts to be used 

in consumer products as complying 

with one or more rules, bans, standards, 

or regulations enforced by the CPSC 

pursuant to part 1109.’’ 

We did not receive any comments 

about the definition. However, because 

the final rule allows a finished product 

certifier to rely on finished product 

testing or certification from another 

party, and it reemphasizes that testing 

and certification of component parts is 

voluntary, we revised the definition of 

‘‘component part certifier’’ on our own 

initiative. The final rule clarifies that a 

‘‘component part certifier’’ is a ‘‘party 

who, although not required to do so 

pursuant to part 1110 of this chapter, 

voluntarily certifies the following as 

complying with one or more rules, bans, 

standards, or regulations enforced by 

the CPSC, consistent with the content 

requirements for certification in part 

1110 of this chapter: (1) Component 

parts to be used in consumer products; 

or (2) finished products.’’ 

d. Proposed § 1109.4(d)—CPSA 

Proposed § 1109.4(d) would define 

‘‘CPSA’’ to mean the Consumer Product 

Safety Act. 

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We received no comments on the 

definition, and we have finalized it 

without change. 

e. Proposed § 1109.4(e)—CPSC 

Proposed § 1109.4(e) would define 

‘‘CPSC’’ to mean the Consumer Product 

Safety Commission. 

We received no comments on the 

definition, and we have finalized it 

without change. 

f. Proposed § 1109.4(f)—CPSIA 

Proposed § 1109.4(f) would define 

‘‘CPSIA’’ to mean the Consumer Product 

Safety Improvement Act of 2008. 

We received no comments on the 

definition, and we have finalized it 

without change. 

g. Proposed § 1109.4(g)—Due Care 

Proposed § 1109.4(g) would define 

‘‘due care’’ to mean ‘‘the degree of care 

that a prudent and competent person 

engaged in the same line of business or 

endeavor would exercise under similar 

circumstances.’’ 

We did not receive any comments 

about the definition of ‘‘due care.’’ On 

our own initiative, we have clarified the 

definition by adding one sentence. The 

new sentence states: ‘‘[d]ue care does 

not permit willful ignorance.’’ This is 

not intended to be a substantive change 

because any party who is willfully 

ignorant of material facts, by definition, 

would not be exercising due care. 

However, we wanted the final rule to 

emphasize that a party cannot, and 

should not, purposely avoid knowing a 

business partner’s testing and 

certification practices to benefit from an 

exception contained in section 19(b) of 

the CPSA. 

Section 19(b) of the CPSA provides 

that a person who holds a certificate 

issued in accordance with section 14(a) 

of the CPSA is not subject to the 

prohibitions in section 19(a)(1) of the 

CPSA (regarding distributing 

noncomplying products) and section 

19(a)(2) of the CPSA (regarding 

distributing products subject to certain 

voluntary corrective actions, mandatory 

recall orders, or that are banned 

hazardous substances) unless such 

person knows that such consumer 

product does not conform. Even those 

who can take advantage of the exception 

in section 19(b) of the CPSA may still 

violate section 19(a)(6) of the CPSA if 

the products that are the subject of any 

certificate issued by that person, in fact, 

do not comply with the applicable 

standard(s) and such person, in the 

exercise of due care, would have reason 

to know that their certificate is false or 

misleading in any material respect. 

Certifiers and testing parties have an 

obligation to resolve known or 

knowable (in the exercise of due care) 

problems with testing or certification by 

another party before relying upon or 

passing on test reports or certifications. 

h. Proposed § 1109.4(h)—Finished 

Product Certifier 

Proposed § 1109.4(h) would define a 

‘‘finished product certifier’’ as ‘‘a firm 

responsible for certifying compliance of 

a consumer product with all applicable 

rules, bans, standards, and regulations 

pursuant to part 1110 of this chapter.’’ 

We received no comments on this 

definition. However, on our own 

initiative, we made several minor 

changes. We replaced the word ‘‘firm’’ 

with ‘‘party’’ to be consistent internally 

within the rule and to clarify that the 

term includes organizations and 

individuals. We also added the word 

‘‘finished’’ before ‘‘consumer product’’ 

to distinguish between voluntary 

component part certifiers and the 

requirement in 16 CFR part 1110 to 

certify finished products. This change 

arises out of the response to Comment 

1 in section II.B of this preamble. 

Finally, we moved the phrase ‘‘pursuant 

to part 1110 of this chapter’’ from the 

end of the sentence and placed it after 

‘‘consumer product’’ to clarify that the 

requirement to certify finished 

consumer products is contained in part 

1110. 

i. Proposed § 1109.4(i)—Identical in All 

Material Respects 

Proposed § 1109.4(i) would define 

‘‘identical in all material respects’’ to 

mean that ‘‘there is no difference with 

respect to compliance to the applicable 

rules between the samples and the 

finished product.’’ 

We received no comments on this 

definition. However, on our own 

initiative, we revised the definition to 

make several changes that correspond to 

the change in the final rule that allows 

a finished product certifier to rely on 

finished product testing or certification 

from another party, as discussed in 

response to Comment 1 in section II.B 

above. As revised, the definition states: 

‘‘identical in all material respects’’ 

requires that there be no difference with 

respect to compliance to the applicable 

rules between the ‘‘samples to be tested 

for compliance and the component part 

or finished product distributed in 

commerce.’’ 

We also revised the phrase ‘‘to the 

applicable rules’’ with the phrase ‘‘to 

the applicable rules, bans, standards, or 

regulations.’’ The inclusion of ‘‘bans, 

standards, or regulations’’ reflects more 

accurately the language in section 14(a) 

of the CPSA. This is intended to be a 

nonsubstantive editorial change. 

j. Proposed § 1109.4(j)—Paint 

Proposed § 1109.4(j) would define 

‘‘paint’’ to mean ‘‘any type of surface 

coating that is subject to part 1303 of 

this chapter or section 4.3.5.2 of ASTM 

F 963.’’ 

We received no comments on this 

definition. However, on our own 

initiative, we revised the reference to 

ASTM F 963 to read: ‘‘ASTM F 963–08 

(or any successor standard of section 

4.3.5.2 of ASTM F 963–08 accepted by 

the Commission).’’ This change clarifies 

that successor standards for ASTM F 

963 will apply if the Commission 

accepts them, so that we will not need 

to update the rule upon adoption of 

successor standards to ASTM F 963. 

k. Proposed § 1109.4(k)—Testing Party 

Proposed § 1109.4(k) would define 

‘‘testing party’’ to mean: ‘‘the firm 

(including, but not limited to, domestic 

manufacturers, foreign manufacturers, 

importers, private labelers, third party 

conformity assessment bodies, or 

component part suppliers) who tests a 

consumer product, or any component 

part thereof, for compliance, in whole or 

in part, with any applicable rule, ban, 

standard, or regulation enforced by the 

CPSC.’’ 

(Comment 5)—Some commenters 

noted that the definition of a ‘‘testing 

party’’ includes third party conformity 

assessment bodies. The commenters 

also noted that proposed § 1109.5(f)(4) 

(renumbered § 1109.5(g)(4) in the final 

rule) specifies that testing parties must 

provide documentation of the sampling 

protocols used to the finished product 

certifier. The commenters stated that 

third party conformity assessment 

bodies are responsible only for the 

samples submitted to them by suppliers 

or manufacturers and generally are not 

responsible for the sampling process. 

Therefore, the commenters stated that 

they cannot always provide sampling 

protocols to the certifier. The 

commenters suggested that we delete or 

modify the requirement that third party 

conformity assessment bodies provide 

documentation of the sampling 

protocols. 

(Response 5)—The commenters are 

correct that the proposed definition of 

‘‘testing party’’ would include a third 

party conformity assessment body who 

may not be involved in sample selection 

or the batch/lot identification of the 

product and may not be able to provide 

documentation of these steps. Therefore, 

we have revised the definition of 

‘‘testing party’’ to encompass parties 

who procure testing, and we exclude 

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69552 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

specifically from the definition testing 

laboratories and third party conformity 

assessment bodies. The definition also 

explains that ‘‘procure’’ means a party 

who either conducts testing themselves, 

when such testing is allowed, or 

arranges for another party to conduct 

testing. While they are not required to 

select samples, third party conformity 

assessment bodies and testing 

laboratories still must provide an 

attestation to a testing party or certifier 

who procures a test from them, which 

states that all testing was performed in 

compliance with applicable provisions 

of section 14 of the CPSA, and 16 CFR 

part 1107, or any more specific rules, 

bans, standards, or regulations. This 

requirement is in § 1109.5(g)(7). 

l. Proposed § 1109.4(l)—Third Party 

Conformity Assessment Body 

Proposed § 1109.4(l) would define 

‘‘third party conformity assessment 

body’’ as: ‘‘a third party conformity 

assessment body recognized by the 

CPSC to conduct certification testing on 

children’s products.’’ 

We received no comments on this 

definition. However, on our own 

initiative, we made several changes to 

the definition. First, we removed ‘‘third 

party conformity assessment body’’ in 

the definition’s text because the phrase 

was not helpful. The revised definition 

states that a ‘‘third party conformity 

assessment body’’ means ‘‘a testing 

laboratory whose accreditation has been 

accepted by the CPSC to conduct 

certification testing on children’s 

products.’’ This is a nonsubstantive 

change that is meant to clarify the 

definition. 

We also added a new sentence to 

clarify that when the term ‘‘third party 

conformity assessment body’’ is used 

throughout the rule, we mean only those 

laboratories whose scope of 

accreditation includes the applicable 

required tests. Only such laboratories 

can be used to support certification of 

children’s products pursuant to section 

14(a) of the CPSA and to ensure 

continued compliance pursuant to 

section 14(i) of the CPSA. This change 

also is nonsubstantive and is meant to 

clarify the definition. 

m. Proposed § 1109.4(m)—Traceable 

Proposed § 1109.4(m) would define 

‘‘traceable’’ to mean: ‘‘the ability of a 

certifier to identify the source of a 

component part of a consumer product, 

including the name and address of the 

supplier of a component part and, if 

different, the manufacturer or the 

component part.’’ 

(Comment 6)—Some commenters 

asked for clarification of component 

part traceability. Several commenters 

suggested that traceable means 

traceability to the part that was tested 

and not to the constituent components 

of that part. One commenter stated that 

it would be extremely difficult to track 

resin used in plastic parts and suggested 

deleting the traceability requirements. 

Another commenter stated that many 

component manufacturers are, in fact, 

assemblers of components received from 

other suppliers. The commenter 

recommended that the requirements for 

traceability extend through the supply 

chain to include the manufacturers of 

the subcomponents used in component 

parts. 

(Response 6)—After consideration of 

all of the comments received on 

traceability, including Comments 12 

through 14, discussed in section II.C.5.e 

of this preamble and in this comment, 

we amended the definition of 

‘‘traceability’’ in the final rule to mean: 

‘‘the ability of a certifier to identify all 

testing parties of a component part of a 

consumer product or a finished product, 

including the name and address of each 

testing party and any party that 

conducted testing on the component 

part or finished product. Parties who 

conduct testing may include a 

manufacturer, a supplier, a testing 

laboratory, or a third party conformity 

assessment body.’’ 

Traceability extends to the level at 

which a component part or finished 

product is tested for compliance to the 

applicable rule(s). For example, some 

component part suppliers make parts 

that may be used eventually in both 

children’s and non-children’s products, 

and a supplier does not necessarily 

know what the final use may be. This 

supplier may decide against conducting 

certification testing on its products. A 

distributor or subassembly fabricator 

who purchases such products, however, 

may procure third party testing to be 

able to sell the products to a children’s 

product manufacturer. A finished 

product certifier who relies on test 

reports provided by such distributor or 

subassembly fabricator must be able to 

trace the component parts back to the 

party who had the parts tested for 

compliance. 

If a subassembly was tested for 

compliance to a chemical standard (e.g., 

lead or phthalates), the testing would 

have to show that each subcomponent 

of the subassembly met the required 

concentration limits. The traceability 

requirement would extend to the 

subassembly and not to the supplier of 

each subcomponent. If the certificate for 

a subassembly is based on test reports 

or certificates of subcomponents (such 

as resin and other constituents), the 

traceability extends to the 

subcomponents. We decline to delete 

traceability requirements from the final 

rule because the concept of traceability 

arises out of section 14(g)(1) of the 

CPSA and because traceability provides 

the ability to determine where in the 

testing and certification process, errors 

occurred that allowed the certification 

of noncomplying products. 

On our own initiative, we also revised 

the definition to include the concept 

that a certifier can rely on both 

component part testing and finished 

product testing conducted by another 

party. This change arises out of the 

response to Comment 1 in section II.B.1 

of this preamble. 

n. Additional Definitions Suggested by 

Commenters 

(Comment 7)—One commenter 

suggested that we add several 

definitions to § 1109.4 to clarify which 

inks are subject to 16 CFR 1303.2 (b)(2) 

and, therefore, could be subject to 

§ 1109.11 (component part testing for 

paint). The commenter suggested the 

following definitions: 

Ink: a pigmented, liquid or paste used for 

printing on children’s products. 

Base Colors: A range of stock colors with 

which, by intermixing in prescribed 

combination and amounts, an ink mixer can 

obtain a wide range of tints, tones, shadings, 

and intermediate hues. 

Scrapeable: Ink products that do not bond 

with the substrate and can be removed from 

the substrate without causing undue harm or 

damage to the underlying substrate. These 

inks are subject to the provisions of part 1303 

of this chapter. 

Unscrapeable: Ink products that bond with 

the substrate and cannot be removed from the 

underlying substrate. Unscrapeable inks are 

not subject to the provisions of part 1303 of 

this chapter. 

(Response 7)—Pursuant to section 

14(i)(5)(A)(i) of the CPSA, as amended 

by H.R. 2715, third party certification 

testing no longer applies to ordinary 

books or to ordinary paper-based 

printed materials. The exception does 

not apply to books or other printed 

materials that contain components that 

are printed on material other than paper 

or cardboard, non-paper components 

like metal or plastic parts, or to 

accessories that are not part of the 

binding and finishing materials. The 

exception also does not apply to books 

with inherent play value, books 

designed or intended for a child 3 years 

of age or younger, and does not include 

any toy or other article that is not a book 

that is sold or packaged with an 

ordinary book. 

Given the exception created by H.R. 

2715, we do not have to consider the 

commenter’s suggestion regarding inks 

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used in ordinary books. With regard to 

the non-excepted products and inks 

applied to other substrates, we decline 

to revise the rule as suggested by the 

commenter. Our existing regulation 

defines paint and other similar surfacecoating materials to be: 

A fluid, semi-fluid, or other material, with or 

without a suspension of finely divided 

coloring matter, which changes to a solid 

film when a thin layer is applied to metal, 

wood, stone, paper, leather, cloth, plastic, or 

other surface. This term does not include 

printing inks or those materials which 

actually becomes part of the substrate, such 

as the pigment in a plastic article, or those 

materials which are actually bonded to the 

substrate, such as by electroplating or 

ceramic glazing. 

16 CFR 1303.2(b)(1). Therefore, inks that 

are not printing inks or that do not 

actually become part of the substrate 

would be considered to be paints or 

other similar surface coatings. These 

inks could be tested or certified 

according to § 1109.11. Although not 

covered by § 1109.11, component part 

testing or certification can be used with 

printing inks and inks that actually 

become part of the substrate if § 1109.5 

is met. For example, if an ink is 

manufactured wholly from a 

combination of different base colors, 

and each base color is tested and found 

to be compliant with the lead content 

requirements, then the finished ink can 

be certified based on the testing of the 

base colors. 

In conducting component part testing 

on printing inks or inks that do become 

part of the substrate, testing parties and 

certifiers should ensure that the tests are 

applicable to the form in which the ink 

will be in the finished product. For 

example, if there are volatile 

components in the ink that will 

evaporate during the manufacturing 

process, the volatile components should 

not be considered in calculating the lead 

concentration. 

We also note that we have made a 

determination that CMYK process 

printing inks (excluding spot colors, 

other inks that are not used in CMYK 

process, inks that do not become part of 

the substrate under 16 CFR part 1303, 

and inks used in after-treatment 

applications, including screen prints, 

transfers, decals, or other prints) 

inherently do not contain lead in excess 

of the allowed limits and are excluded 

from the testing requirements of the 

CPSIA (16 CFR § 1500.91(d)(6)). 

5. Proposed § 1109.5—Conditions and 

Requirements Generally 

Proposed § 1109.5 would set out 

conditions and requirements that apply 

generally to all types of component part 

testing and certification, as well as to 

finished product testing and 

certification by another party. 

a. Proposed § 1109.5(a)—Component 

Part Testing Allowed 

Proposed § 1109.5(a) would allow 

certification of a consumer product with 

all applicable rules, bans, standards, 

and regulations as required by section 

14(a) of the CPSA, and may be used to 

ensure continued compliance of 

children’s products pursuant to section 

14(d) of the CPSA, based, in whole or 

in part, on testing of a component part 

of the consumer product conducted by 

the certifier or a testing party if several 

requirements are met. 

We received no comments specifically 

on proposed § 1109.5(a). However, we 

have finalized this section with several 

changes arising out of the response to 

Comment 3 in section II.B above. 

Comment 3 requested that we clarify 

that component part testing by suppliers 

is voluntary. We agree. Consistent with 

this fact, on our own initiative, we 

added a new opening sentence to 

§ 1109.5(a), clarifying that component 

part testing is not only voluntary, any 

party can conduct such testing: ‘‘[A]ny 

party, including a component part 

manufacturer, a component part 

supplier, a component part certifier, or 

a finished product certifier, may procure 

component part testing, as long as it 

complies with the requirements in this 

section and subparts B and C of this 

part.’’ The list of parties in this sentence 

is intended to be illustrative and not 

exhaustive. On our own initiative, we 

also clarified that a finished product 

certifier can rely on either passing 

component part test reports or 

certification of one or more component 

parts of a consumer product, to serve as 

the basis for issuing a finished product 

certificate, if the requirements in section 

(a) are met. Finally, we revised the 

reference to section 14(d) of the CPSA 

to cite section 14(i) of the CPSA as a 

result of renumbering arising out of H.R. 

2715. 

(1) Proposed § 1109.5(a)(1) 

Proposed § 1105.5(a)(1) would state 

that finished product certifiers may rely 

on testing of a component part of a 

consumer product only where testing of 

the component part is required or 

sufficient to assess the consumer 

product’s compliance, in whole or in 

part, with an applicable rule, ban, 

standard, or regulation. For example, 

section 101 of the CPSIA requires 

testing an accessible component part of 

a children’s product for lead content 

because the lead content requirement is 

measured per part. On the other hand, 

testing a component part of a consumer 

product for compliance with the small 

parts requirements of 16 CFR part 1501 

will rarely, if ever, be appropriate, 

because the test procedure described at 

16 CFR 1501.4 generally requires that 

the finished product be tested to 

determine whether small parts can be 

detached during the use or abuse test of 

the finished product. Proposed 

§ 1109.5(a)(1) also would specify that 

any doubts about whether testing one or 

more component parts of a consumer 

product can help to assess whether the 

finished product complies with 

applicable rules, bans, standards, and 

regulations should be resolved in favor 

of testing the finished product. 

We received no comments on this 

provision. However, on our own 

initiative, we have revised § 1109.5(a)(1) 

by making several minor changes. We 

replaced the phrase ‘‘can help’’ in the 

second sentence with the phrase ‘‘is 

sufficient,’’ to be consistent with the 

first sentence that establishes when 

component part testing can be used; this 

change also reflects more accurately our 

expectation of when component part 

testing is appropriate. Throughout the 

final rule, we also changed any 

references to the ‘‘entire product’’ to 

refer instead to the ‘‘finished product’’ 

to be consistent with the wording used 

to describe a product ready for 

distribution to consumers. 

(2) Proposed § 1109.5(a)(2) 

Proposed § 1109.5(a)(2) would require 

that the component part that is tested be 

identical in all material respects to the 

component used in the finished 

consumer product. Under this section, 

to be identical in all material respects to 

a component part for purposes of 

supporting certification of a children’s 

product, means a sample need not 

necessarily be of the same size, shape, 

or finish condition (such as polished, 

deburred, etc.) as the component part of 

the finished product; rather, the sample 

may consist of any quantity that is 

sufficient for testing purposes and may 

be in any form that has the same content 

as the component part of the finished 

product. Proposed § 1109.5(a)(2) also 

would state that manufacturers must 

exercise due care in the proper 

management and control of all raw 

materials, component parts, 

subassemblies, and finished goods for 

any factor that could affect the finished 

product’s compliance with all 

applicable rules. The manufacturer must 

exercise due care that the manufacturing 

process does not add a prohibited 

chemical from an untested source, such 

as the material hopper, regrind 

equipment, or other equipment used in 

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the assembly of the finished product. 

Proposed § 1109.4(g) would define ‘‘due 

care’’ to mean the degree of care that a 

prudent and competent person engaged 

in the same line of business or endeavor 

would exercise under similar 

circumstances. 

(Comment 8)—Multiple commenters 

expressed concern that a finished 

product certifier would not be able to 

ensure that a tested component part was 

not changed or degraded after testing in 

a way that could affect compliance. One 

commenter wrote: ‘‘[i]t is beyond the 

importer’s ability to reach back into the 

supplier’s and sub-supplier’s 

manufacturing and transport processes 

to detect whether there was a 

substitution or a material change in a 

component.’’ Another commenter wrote: 

‘‘[t]o take advantage of this rule, a 

manufacturer must take responsibility at 

the sub-micro-level for manufacturing 

quality.’’ 

Several commenters requested that 

the final rule state that the finished 

product certifier must ‘‘attest that due 

care was taken’’ to ensure that no action 

subsequent to component part testing 

changed or degraded the product, rather 

than require the finished product 

certifier to ‘‘certify’’ that no action was 

taken subsequent to component part 

testing that changed or degraded the 

product. The commenter asserted that 

this change should be made because a 

finished product certifier does not have 

control over the actions of other parties 

after testing occurs. One commenter 

noted that the due care requirement 

applies only to a few specific provisions 

of the proposed rule, such as proposed 

§ 1109.5(h)(1) (renumbered to 

§ 1109.5(i)(1) in the final rule), which 

pertains to reliance by finished product 

certifiers on a component part certificate 

or a component part test result. The 

commenter suggested that the due care 

standard generally should be applicable 

to all elements of the proposed rule so 

that manufacturers will not be left to 

wonder whether more than their 

exercise of reasonable judgment and 

practice, based upon their 

manufacturing experience and sound 

knowledge of the product, is required 

for those aspects of the rule that do not 

reference explicitly the due care 

standard. 

One commenter quoted the following 

statement from the proposal: ‘‘[t]he 

manufacturer must exercise due care 

that the manufacturing process does not 

add a prohibited chemical from an 

untested source, such as the material 

hopper, regrind equipment, or other 

equipment used in the assembly of the 

finished product.’’ The commenter went 

on to state: ‘‘[o]ur company has several 

hundred vendors producing thousands 

of SKUs—do you honestly believe we 

could possibly manage how all these 

independent companies wash out their 

molding machines or manage their 

regrinding operations?’’ 

(Response 8)—We agree that finished 

product certifiers cannot always attest 

that no action was taken subsequent to 

component part testing that could affect 

compliance adversely. In a practical 

sense, all the finished product certifier 

can do to ensure the continued 

compliance of the component part is to 

exercise due care toward that end. 

Accordingly, we revised the rule to 

ensure that after a product is tested, 

certifiers and testing parties who are in 

custody of the product or component 

part, exercise due care to prevent 

contamination or degradation of the 

component parts or finished products to 

which the testing applies. 

First, we moved the last three 

sentences of proposed § 1109.5(a)(2) 

into a new § 1109.5(b), now called Test 

result integrity. Sections 1109.5(b)(1) 

through (b)(3) of the final rule track the 

last three sentences in proposed 

§ 1109.5(a)(2), with some modifications. 

In the proposed rule, each of the last 

three sentences in § 1109.5(a)(2) would 

refer to different entities, i.e., ‘‘[a] 

certifier,’’ ‘‘[m]anufacturers of finished 

consumer products,’’ and ‘‘[t]he 

manufacturer.’’ Use of these varying 

terms may be confusing to stakeholders, 

and they do not convey accurately that 

we intend all of these provisions to 

apply to both testing parties and 

certifiers. Thus, on our own initiative, 

we added an opening sentence to 

§ 1109.5(b) to clarify that the provisions 

in (b)(1) through (b)(3) apply to both 

certifiers and testing parties. Moreover, 

to address the commenters’ concern that 

certifiers will not always have 

knowledge or control over the actions of 

other parties, we added that the 

requirements apply only while a 

component part or finished product is 

in each party’s custody. Finally, the 

opening sentence in § 1109.5(b) 

provides that it applies to both 

component parts and finished products, 

to incorporate the concept that a 

finished product certifier also can rely 

on finished product testing or 

certification from another party, as set 

forth in section II.B.1, above. 

Second, to maintain test result 

integrity in the supply stream, we added 

a new attestation to § 1109.5(g)(10), as 

suggested by the commenters. This 

section requires certifiers and testing 

parties to attest to the exercise of due 

care to ensure compliance with the 

requirements set forth in the revised 

§ 1109.5(b) on Test result integrity. 

With respect to the commenter’s 

suggestion that the due care standard be 

applied to all elements of the proposed 

rule, we assume that prudence and 

competence will be exercised by all 

parties involved in component part 

testing and certification. Due care in the 

context of this rule, as explained in 

§ 1109.4(g) of the final rule, ‘‘means the 

degree of care that a prudent and 

competent person engaged in the same 

line of business or endeavor would 

exercise under similar circumstances. 

Due care does not permit willful 

ignorance.’’ Due care is stressed in 

sections where a certifier relies on 

component part or finished product test 

reports or certificates supplied by 

another party, and in sections that 

ensure that a product is not altered in 

a manner that could affect compliance, 

such as contamination or degradation, 

after certification testing. 

With respect to the commenter with 

several hundred vendors producing 

thousands of SKUs, it would not be 

necessary for the finished product 

certifier to know ‘‘how all these 

independent companies wash out their 

molding machines or manage their 

regrinding operations.’’ If these vendor 

companies are providing component 

part or finished product testing reports 

or certificates, they will have attested 

that due care has been taken to ensure 

that actions subsequent to component 

part testing have not adversely affected 

the part. A finished product certifier 

should receive and review such 

attestations. Moreover, a finished 

product certifier may rely upon test 

reports or component part certificates 

from another party, provided that such 

certifier exercises the degree of care that 

a prudent and competent person in the 

same line of business would exercise in 

accepting their validity and is not being 

willfully ignorant of information 

suggesting that a supplier is providing 

noncompliant products, invalid test 

reports, or falsified certifications. If the 

importer is unwilling to assume this 

burden of exercising due care, it can 

always decide to procure third party 

testing of children’s products from a 

third party conformity assessment body 

whose accreditation has been accepted 

by the CPSC, as set forth in 16 CFR part 

1107, because this is a voluntary rule. 

We did not receive any comments 

related to the first two sentences in 

proposed § 1109.5(a)(2) on samples for 

component part testing. Section 

1109.5(a)(2) has been finalized with 

these first two sentences only, in order 

to focus on the sample selection 

requirements for component part 

testing. We made several minor editorial 

changes. We moved the phrase ‘‘in all 

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material respects’’ from the end of the 

first sentence and placed it in the 

middle of the sentence, to clarify that 

the sample must be ‘‘identical in all 

material respects,’’ as defined in 

§ 1109.4(i). We also removed the phrase 

‘‘to the applicable content limit’’ from 

the second sentence because it was 

unnecessary and because testing 

component parts, depending on the 

product, may involve testing something 

other than a content limit. 

As set forth in response to Comment 

8 immediately above, the remaining 

requirements in proposed § 1109.5(a)(2), 

regarding ensuring that a component 

part is not contaminated or degraded 

after testing but prior to distribution, 

have been renumbered to § 1109.5(b) in 

the final rule. Aside from the changes 

outlined in response to Comment 8, 

sections 1109.5(b)(1) and (b)(2) of the 

final rule have been finalized from the 

last two sentences in proposed 

§ 1109.5(a)(2) with minor editorial 

changes. For example, on our own 

initiative, we revised the phrase 

‘‘finished goods’’ in § 1109.5(b)(1) to 

‘‘finished products’’ to avoid 

introducing a new term and to use 

consistent language throughout the final 

rule. 

Similarly, on our own initiative, we 

revised the language in § 1109.5(b)(2) of 

the final rule. We replaced proposed 

language requiring the exercise of due 

care to ensure that ‘‘the manufacturing 

process does not add a prohibited 

chemical from an untested source 

* * *’’ with language in the final rule 

stating that ‘‘the manufacturing process 

does not add or result in a prohibited 

level of a chemical from any source 

* * *.’’ This revision clarifies that the 

rule covers actively adding a chemical 

to a product to create a noncompliance, 

as well as passive addition of a 

prohibited chemical arising out of the 

manufacturing process, regardless of 

whether the source is tested or untested. 

For example, passive contamination 

could occur if a product is 

manufactured in close proximity to 

another product or component, where 

lead paint that exceeds the allowed lead 

content limit is being sprayed. This 

circumstance may allow a children’s 

product to become contaminated with 

the lead paint. Another scenario may 

arise where the ink or paint being 

applied to children’s clothing meets the 

lead paint standard, but the stamps or 

screens used to apply the paint result in 

an unallowable amount of lead being 

transferred to the children’s product. 

Finally, we renumbered the third 

sentence in proposed § 1109.5(a)(2) to 

§ 1109.5(b)(3) in the final rule and made 

one modification. On our own initiative, 

we revised the phrase: ‘‘no change 

* * * after testing’’ and replaced it with 

the phrase: ‘‘[n]o action or inaction 

subsequent to testing,’’ to clarify that the 

regulation covers circumstances that 

involve passive actions, such as storage 

of consumer products or components, as 

well as affirmative actions taken by a 

testing party or certifier. 

b. Proposed § 1109.5(b)—Limitation 

Under proposed § 1109.5(b) 

(renumbered to § 1109.5(c) in the final 

rule), a finished product certifier would 

not be able to rely on testing of a 

component part of a consumer product 

for any rule, ban, standard, or regulation 

that requires testing the entire consumer 

product to assess compliance. 

We received no comments on this 

provision, but have renumbered it as 

§ 1109.5(c) in the final rule. On our own 

initiative, we have rephrased this 

limitation to state that a certifier ‘‘must 

not use tests of a component part of a 

consumer product for any rule, ban, 

standard, or regulation that requires 

testing the finished product to assess 

compliance with that rule, ban, 

standard, or regulation.’’ This change is 

intended to clarify the limitation. 

c. Proposed § 1109.5(c)—Test Method 

and Sampling Protocol 

Proposed § 1109.5(c) (renumbered to 

§ 1109.5(d) in the final rule) would 

require that regardless of which entity 

performs component part testing or 

selects samples for component part 

testing, both certifiers and testing 

parties must ensure that the required 

test methods and sampling protocols, as 

set forth in part 1107, as well as any 

more specific applicable rules, bans, 

standards, regulations, or testing 

protocols, are used to assess the 

compliance of the component part. 

(Comment 9)—Several commenters 

requested clarification of proposed 

§ 1109.5(c) (renumbered to § 1109.5(d) 

in the final rule). One commenter stated 

that the provision that ‘‘certifiers and 

testing parties must ensure that the 

required test methods and sampling 

protocols, as set forth in part 1107, 

* * * are used to assess compliance of 

the component part,’’ could be read as 

charging testing parties with ensuring 

that certifiers comply with the 

provisions * * *.’’ This commenter 

stated that it assumes this is not the 

Commission’s intention. It requested 

clarification and suggested replacing 

‘‘both certifiers and testing parties’’ with 

‘‘certifiers.’’ 

One commenter suggested adding: 

‘‘(and, as to test methods for tests they 

conduct, testing parties).’’ One 

commenter observed that the proposed 

rule ‘‘appears to clearly provide that the 

certifying party, including a finished 

product certifier, must fulfill all the 

requirements of Section 1107 in 

sampling and testing of the certified 

component.’’ The commenter requested 

that the rule address more specifically 

issues particular to component parts, 

such as how requirements for periodic 

testing and random sampling are to be 

applied in the context of components or 

raw material inputs. 

(Response 9)—We did not intend that 

testing parties ensure that finished 

product certifiers comply with proposed 

§ 1109.5(c). Accordingly, we have 

clarified the final rule to reflect that 

when either party, a certifier or a testing 

party, procures a test, each is 

responsible for exercising due care to 

ensure that any required sampling 

protocols are followed, that the test is 

conducted using the required test 

method, if any, and that all other 

applicable requirements in section 1107, 

or any other more specific rule, ban, 

standard, or regulation, are met. We also 

incorporated the concept that a testing 

party or certifier may be testing or 

certifying either a finished product or a 

component part. Further, the concept of 

‘‘due care’’ is incorporated into this 

provision, in recognition of the fact that, 

for children’s products, certification 

testing must be performed by a third 

party conformity assessment body. 

Testing parties and certifiers should use 

due care to ensure that the third party 

conformity assessment body follows all 

applicable test methods. 

A component part supplier who 

manufactures and certifies a component 

part for a children’s product is subject 

to periodic testing and any sampling 

protocols that may be defined in 16 CFR 

part 1107, or any more specific rule, 

standard, ban, or regulation. Finished 

product certifiers who purchase the 

component part from a supplier who 

does not certify or test the component 

part, must sample and test the batch or 

lot of the supplied component, or 

submit samples of the finished products 

in which the components are used, for 

testing for compliance with all 

applicable safety rules, in accordance 

with 16 CFR part 1107. 

(Comment 10)—One commenter 

stated that the definitions and the 

requirements imposed on a component 

part certifier and a testing party 

regarding their testing and reporting 

duties appear to be the same. The 

commenter concluded that the only 

significant difference between a 

component part certifier and a testing 

party appears to be that a certifier 

assumes legal liability under the law, 

and a testing party does not. The 

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2 It should be noted that although we are not 

implementing requirements for a reasonable testing 

program for non-children’s products, manufacturers 

of non-children’s products that are subject to a 

product safety rule, ban, standard, or regulation are 

still obligated by the CPSA, as amended by the 

CPSIA, to certify that their products comply with 

all applicable safety rules based on a test of each 

product or a reasonable testing program. 

commenter asked: (1) What additional 

benefits would component part 

certifiers expect to receive for taking on 

the additional liabilities; and (2) what 

kinds of enforcement actions, if any, 

would a testing party be subject to if it 

failed to comply with the reporting and 

recordkeeping requirements described 

in the proposed rules? The commenter 

suggested that the rule define more 

specifically and differentiate clearly the 

roles and duties of these two parties. 

(Response 10)—The commenter is 

correct that the testing and reporting 

duties of component part certifiers and 

testing parties in the proposal were 

similar. This is because either a 

component part certificate or a test 

report from a testing party can serve as 

the basis for a finished product 

certificate. As the commenter noted, 

however, a person who elects to be a 

component part certifier, thereby 

assumes the responsibilities of a 

manufacturer under 16 CFR part 1107. 

These responsibilities include: Third 

party certification testing, third party 

periodic testing, and recordkeeping. A 

party may choose to assume these 

responsibilities in the hope of 

increasing sales to customers who desire 

to have their component parts certified. 

Also, some customers may insist on 

certification of such parts, as a 

condition of buying the party’s 

products. 

As to the commenter’s second 

question, component part testing and 

certification are voluntary. However, 

any party who undertakes such testing 

or certification, and who fails to comply 

with an obligation imposed by part 

1109, has committed a prohibited act 

under section 19(a)(6) of the CPSA and 

may be subject to civil or criminal 

penalties, pursuant to sections 20 and 

21 of the CPSA. 

(Comment 11)—One commenter 

stated that it would be useful for the 

CPSC to specify what aspects of the 

reasonable testing program under 16 

CFR part 1107 are required of a 

component part testing party. The 

commenter stated that proposed 

§ 1109.5(c) (renumbered to § 1109.5(d) 

in the final rule) seems to require a 

testing party to maintain all aspects of 

a reasonable testing program, including 

the recordkeeping and reporting 

requirements. Part 1109, however, has 

its own recordkeeping requirements for 

testing parties, as well as its own 

disclosure/reporting requirements. 

(Response 11)—The final rule on 

‘‘Testing and Labeling Pertaining to 

Product Certification,’’ published 

elsewhere in this Federal Register, 

reserves, rather than finalizes, the 

section on a reasonable testing 

program 2. Regardless, even under the 

proposed rule, component part 

suppliers would not be required to test 

their products, and therefore would not 

need a reasonable testing program. With 

regard to children’s products, 

component part suppliers who choose 

to become component part testing 

parties or component part certifiers, 

must follow testing standards and 

protocols under part 1107, as well as 

any more specific rules that apply to the 

products manufactured. For example, 

under part 1107, a component part 

testing party who procures periodic 

testing may rely on a production testing 

plan to increase the maximum amount 

of time between required third party 

tests to meet the continued compliance 

provision of section 14(i) of the CPSA. 

Moreover, testing parties must provide 

the documentation listed in § 1109.5(g) 

of the final rule to a certifier relying on 

such documentation as the basis for 

issuing a certificate. 

In addition to the changes discussed 

in response to comment 9, on our own 

initiative we made several formatting 

and editorial changes to § 1109.5(d) 

intended to clarify the rule. We altered 

the format to separate out the 

requirements related to test methods 

and sampling protocols into three 

numbered paragraphs. The proposed 

rule had contained the concepts in the 

three paragraphs, but had organized 

them differently. In § 1109.5(d)(3), we 

added language to include the concept 

that testing and certification of both 

component parts and finished products 

under this part 1109 rule must follow all 

applicable requirements in part 1107 of 

this chapter, as well as section 14 of the 

CPSA, and any more specific rule, ban, 

standard, or regulation. Finally, we 

removed the phrase ‘‘testing protocols’’ 

from § 1109.5(d)(3) because it is 

duplicative of the requirement to use 

applicable test methods, if any, 

presented in § 1109.5(d)(1). 

d. Proposed § 1109.5(d)—Timing 

Proposed § 1109.5(d) (renumbered to 

§ 1109.5(e) in the final rule) would state 

that, subject to any more specific rule, 

ban, standard, or regulation, component 

part testing may occur before final 

assembly of a consumer product 

provided that nothing in the final 

assembly of the consumer product can 

cause the component part or the 

consumer product to become 

noncompliant. 

We received no comments about this 

section of the proposed rule, and have 

finalized with it with one editorial 

change, the addition of a comma after 

the word ‘‘product.’’ Also, we 

renumbered this section in the final rule 

to § 1109.5(e). 

e. Proposed § 1109.5(e)—Traceability 

Proposed § 1109.5(e) (renumbered to 

§ 1109.5(f) in the final rule) would 

specify that finished product certifiers 

may not rely on component part testing 

conducted by another testing party 

unless such component parts are 

traceable. 

(Comment 12)—One commenter 

noted that finished product 

manufacturers may receive discrete 

component part shipments that may be 

commingled with similar components 

from other sources ordered at different 

times. Since component parts generally 

do not carry identifying manufacturing 

data, the commenter said the 

traceability requirement will be 

understood better if they specifically 

include instructions to maintain 

inventories to avoid commingling 

component parts from different sources 

or even commingled component parts 

ordered from the same source at 

different times. The commenter stated 

that commingling can threaten the 

integrity of component testing as a 

viable alternative testing procedure and 

that mixing a batch of noncompliant 

component parts with a batch of 

compliant component parts 

contaminates the entire lot without any 

way to sort them out again. The 

commenter stated that we could 

discourage this by requiring finished 

product manufacturers to manage their 

component part inventories in ways that 

will avoid the use of commingled lots in 

a single finished production lot. 

(Response 12)—Section 1109.5(f) of 

the final rule (renumbered from 

proposed § 1109.5(e)) states: ‘‘[a] 

certifier must not rely on component 

part and/or finished product testing 

procured by a testing party or another 

certifier unless such component parts or 

finished products are traceable.’’ This 

provision addresses the commenter’s 

concerns. The final rule defines 

traceability as: ‘‘the ability of a certifier 

to identify all testing parties of a 

component part of a consumer product 

or a finished product, including the 

name and address of each testing party 

and any party that conducted testing on 

the component part or finished product. 

Parties who conduct testing may 

include a manufacturer, a supplier, a 

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testing laboratory, or a third party 

conformity assessment body.’’ 

Accordingly, finished product certifiers 

who rely on certified component parts 

from another party must ensure that the 

component parts are traceable to the 

party who had the component parts 

tested for compliance. This requirement 

means that indistinguishable tested or 

certified component parts covered by 

different test reports or certificates 

should not be comingled. Further, 

§ 1109.5(b)(1) requires that all testing 

parties and certifiers exercise due care 

to ensure ‘‘[p]roper management and 

control of all raw materials, component 

parts, subassemblies, and finished 

products is established and maintained 

for any factor that could affect the 

finished product’s compliance with all 

applicable rules.’’ Although § 1109.5 

does not address expressly comingling, 

comingling component parts can 

adversely affect the traceability of the 

component parts of the finished 

product. Comingling is not allowed if 

traceability is lost. The final rule gives 

manufacturers the flexibility to manage 

inventories in a manner that suits them, 

as long as compliance is established and 

maintained. 

With respect to the commenter’s 

concern about comingling lots from the 

same manufacturer that might have been 

received at different times, if the 

component part supplier has not 

identified a shipment as belonging to a 

previously tested or certified lot or 

batch, then the finished product 

manufacturer should not comingle the 

lots. This is because the finished 

product manufacturer does not know if 

the component part supplier has made 

a material change in the component part 

after the previous lot was received, and 

so the finished product manufacturer 

should conduct certification tests on the 

new lot (or submit samples of all 

finished products in which the 

component part is used for testing for 

compliance with all applicable safety 

rules). Alternatively, if the component 

part supplier has certified or provided 

testing data on the component part, the 

component parts could be comingled, as 

long as the same certificate or testing 

data covered both batches. 

(Comment 13)—One commenter said 

that the rule should allow a finished 

product certifier to issue a single 

certificate covering a set of related 

products that may be composed of 

various combinations of a set of 

component parts. The commenter said 

that each of the various products 

covered by the certificate may not 

necessarily include every component 

part. The commenter suggested that the 

rule allow flexibility for a certificate to 

be over inclusive of the component 

parts (and component part 

certifications) that may be used on that 

actual product, as long as all component 

parts in a product are covered by at least 

one of the certifications, and all other 

conditions of the rule are met. 

(Response 13)—If traceability is not 

maintained between the final products 

and their constituent component parts, 

this practice would not be allowed 

under the rule. For example, if multiple 

suppliers provide identical component 

parts, only one of which is included in 

the final product, traceability is not 

maintained to a testing party of a 

component part found to be 

noncompliant. However, if multiple 

suppliers provide distinct component 

parts, and not every component part is 

included in the final product, 

traceability to a component part’s 

testing party can be maintained, and 

that circumstance is allowed. The 

traceability requirements in the final 

rule allow manufacturers and the CPSC 

to trace testing and certification 

problems back to the party that had the 

product tested for compliance. Also, 

such requirements may help 

manufacturers identify products that are 

noncompliant, should a recall become 

necessary. 

The final rule does not contain any 

requirements regarding the content of 

certificates. Certificate content 

requirements are set forth in 16 CFR 

part 1110, which currently does not 

require a finished product certificate to 

list component parts. 

(Comment 14)—One commenter 

suggested that the traceability 

provisions allow for flexibility, where 

there may be multiple sources for a 

single component, but each source is 

certified independently and listed 

separately on the certificate. Thus, for a 

particular product covered by the 

certificate, a single component may be 

from Source A, Source B, or Source C, 

but the components from all three 

sources have been certified and all are 

listed on the finished product 

certificate. 

(Response 14)—The final rule does 

not contain a requirement to list 

component parts on a certificate. The 

regulation on certificate contents, 16 

CFR part 1110, also does not require a 

certificate to list component parts. The 

final rule requires that each component 

part ultimately can be traced to the 

party who had the component part 

tested. Thus, documentation that merely 

contains the names of various suppliers, 

without sufficient information to 

determine which testing party or 

certifier procured certification testing on 

each component part, would not comply 

with the traceability requirement in the 

final rule. 

However, on our own initiative, we 

finalized § 1109.5(f) with several 

changes. The final requirement states: 

‘‘[a] certifier must not rely on 

component part and/or finished product 

testing procured by a testing party or 

another certifier unless such component 

parts or finished products are 

traceable.’’ We added the phrase 

‘‘finished product’’ in two places to 

incorporate fully the concept that a 

finished product certifier may rely on 

finished product testing or certification 

from another party, as long as the 

finished product is traceable. This 

change arises out of our response to 

Comment 1 in section II.B.1 of this 

preamble. Additionally, we clarified 

that certifiers can rely on testing or 

certification from both testing parties 

and certifiers. The proposed rule would 

have used only the term ‘‘testing party.’’ 

Because certifiers can also be testing 

parties, we included both terms in the 

final rule to prevent any confusion. 

Finally, we made one editorial change, 

replacing the word ‘‘conducted’’ with 

the word ‘‘procured’’ to be consistent 

with use of these terms in the definition 

of ‘‘testing party’’ in § 1109.4(k). 

f. Proposed § 1109.5(f)—Documentation 

by Testing Party 

Proposed § 1109.5(f) (renumbered to 

§ 1109.5(g) in the final rule) would 

require testing parties who are not 

certifying a component part themselves 

to provide the following documentation 

to the component part certifier, either in 

hard copy or electronically: 

(1) Identification or a description of 

the component part tested; 

(2) Identification of a lot or batch 

number for which the testing applies; 

(3) Identification of the applicable 

rules, bans, standards, and regulations 

for which each component part was 

tested; 

(4) Identification or a description of 

the testing methods and sampling 

protocols used; 

(5) The date or date range when the 

component part was tested; 

(6) The results of each test on a 

component part; and 

(7) If the product was tested by a third 

party conformity assessment body, 

regardless of whether such third party 

testing was required because the 

product is a children’s product or 

whether the testing party chose to use 

such third party conformity assessment 

body, identification of such conformity 

assessment body, a copy of the original 

test results, and a certification that all 

testing was performed in compliance 

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69558 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

with section 14 of the CPSA and 

proposed part 1107 of this title. 

The preamble to the proposed rule 

explained that the information listed is 

needed so that, if noncomplying 

products are found, we can use this 

information to determine whether a 

finished product certifier, component 

part certifier, or third party conformity 

assessment body is not complying with 

the appropriate requirements. (75 FR 

28210) 

(1) Proposed § 1109.5(f)(1) 

On our own initiative, we finalized 

proposed § 1109.5(f)(1) (renumbered to 

§ 1109.5(g)(1) in the final rule) with one 

change to include the concept that a 

testing party or certifier may test or 

certify both component parts and 

finished products, as explained in 

response to Comment 1 in section II.B.1 

of this preamble. 

(2) Proposed § 1109.5(f)(2) 

(Comment 15)—Some commenters 

took exception to proposed 

§ 1109.5(f)(2) (renumbered to 

§ 1109.5(g)(2) in the final rule), which 

would require identification by lot or 

batch numbers. One commenter noted 

that, for ink systems, lot and batch 

numbers are assigned each time a color 

is mixed, which could amount to a large 

number of tests per year, depending 

upon production schedules. The 

commenter recommended that for 

printing ink systems, ink manufacturers 

should be allowed to group-test, and 

certify ‘‘product families’’ for 

component testing because product 

families represent the same ‘‘core 

formula.’’ The commenter added that 

certification of any given component 

should be allowed, as long as the 

formula, composition, and 

manufacturing process does not change. 

The commenter remarked that the date 

or date range of when a component part 

is tested serves the same purpose as a 

batch or lot number, and thus, suggested 

that identification by lot or batch 

numbers be deleted from the final rule. 

Another commenter suggested that 

identification of a lot or batch number 

should be understood to allow a 

component part certificate to apply to 

all of the same materials (rather than a 

lot or batch) from a supplier, unless and 

until a material change in the tested 

materials requires further testing. The 

commenter noted that the certification 

would represent the product line as 

produced by the manufacturer, rather 

than just the units produced for a 

particular lot or batch. 

(Response 15)—The intent of the 

proposed requirement to identify the lot 

or batch number for which the testing 

applies was to allow for the 

identification of the particular set of 

component parts to which the testing 

applies. The commenters pointed out 

correctly that this may be done in ways 

other than by lot or batch numbers. 

Accordingly, we changed § 1109.5(g)(2) 

of the final rule to require 

documentation of ‘‘a lot or batch 

number, or other sufficient information 

to enable the identification of the 

component parts or finished products to 

which the testing applies.’’ This 

information could include, but would 

not be limited to, lot or batch numbers, 

a production date range, or a particular 

shipment or purchase. 

Pursuant to section 14(i)(5)(A)(i) of 

the CPSA, as amended by H.R. 2715, 

third party certification testing no 

longer applies to ordinary books or to 

ordinary paper–based printed materials. 

The exception does not apply to nonpaper components like metal or plastic 

parts, or to accessories that are not part 

of the binding and finishing materials. 

The exception also does not apply to 

books with inherent play value, books 

designed or intended for a child 3 years 

of age or younger, and does not include 

any toy or other article that is not a book 

that is sold or packaged with an 

ordinary book. Thus, it is unnecessary 

for us to address this comment as it 

relates to inks used in ordinary books 

because, as a result of H.R. 2715, 

ordinary books do not need to be 

component part tested for certification 

purposes. With regard to the nonexcepted products and inks applied to 

other substrates, inks may be certified 

based upon tests of their component 

parts that show that any combination of 

the component parts will meet all 

applicable requirements, provided that 

no material change has occurred in the 

component parts since they were tested. 

This aspect of component part testing 

should allow the commenter to certify 

‘‘product families’’ or ‘‘core formulas.’’ 

We disagree that the date of testing, or 

the date range over which testing is 

conducted, always will have a logical 

relationship to identification of the 

products to which the testing applies, as 

required by § 1109.5(g)(2). For example, 

a manufacturer could have many 

different types of component parts 

tested on the same date. A date or date 

range may be insufficient to identify 

each component part tested. However, 

for those products where the date of 

testing or the date range over which 

testing was conducted is the same as 

‘‘other sufficient information to enable 

the identification of the component 

parts or finished products to which the 

testing applies,’’ such date information 

can be used to meet the requirement of 

§ 1109.5(g)(2). 

(3) Proposed § 1109.5(f)(3) 

On our own initiative, we finalized 

proposed § 1109.5(f)(3) (renumbered to 

§ 1109.5(g)(3) in the final rule) with a 

revision incorporating the concept that 

a testing party or certifier may test both 

component parts and finished products, 

as explained in response to Comment 1 

in section II.B.1 of this preamble. 

(4) Proposed § 1109.5(f)(4) 

We finalized proposed § 1109.5(f)(4) 

(renumbered to § 1109.5(g)(4) in the 

final rule) with a minor editorial 

revision. On our own initiative, we 

changed the words ‘‘method’’ and 

‘‘protocol’’ to be plural because 

products and parts may be tested for 

more than one standard. 

(5) Proposed § 1109.5(f)(5) 

On our own initiative, we finalized 

proposed § 1109.5(f)(5) (renumbered to 

§ 1109.5(g)(5) in the final rule) with a 

revision incorporating the concept that 

both component parts and finished 

products may be tested, as explained in 

response to Comment 1 in section II.B.1 

of this preamble. 

(6) Proposed § 1109.5(f)(6) 

We finalized proposed § 1109.5(f)(6) 

(renumbered to § 1109.5(g)(6) in the 

final rule) with several changes. We 

broadened the rule to include finished 

products, as discussed in response to 

Comment 1 in section II.B.1 of this 

preamble. On our own initiative, we 

clarified that the Commission expects 

certifiers and testing parties to provide 

both the test results and the test values, 

if any, to a certifier who intends to rely 

upon such tests to certify a component 

part or finished product. 

(7) Proposed § 1109.5(f)(7) 

(Comment 16)—One commenter 

suggested that the terminology in 

proposed § 1109.5(f)(7) refer to ‘‘all 

testing of component parts by that 

body,’’ instead of ‘‘all testing,’’ to 

emphasize that the manufacturer, and 

not the testing laboratory, is responsible 

for obtaining samples that are identical 

in all material respects to the 

components used in the finished 

product. 

(Response 16)—The issue raised by 

this commenter affects proposed 

§ 1109.5(c), and 1109.5(f)(7) 

(renumbered to §§ 1109.5(d) and 

1109.5(g)(7), respectively, in the final 

rule). The commenter is correct that, 

unless parties contract otherwise, a 

third party conformity assessment body 

is not responsible for the selection of 

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samples. Accordingly, we have revised 

the final rule to relieve testing 

laboratories of any responsibility under 

either of these sections, by redefining a 

testing party to exclude testing 

laboratories and third party conformity 

assessment bodies in § 1109.4(k). See 

section II.C.4.k in this preamble. In 

addition, we have revised § 1109.5(g)(7) 

to incorporate the commenter’s 

suggestion to clarify who has the 

responsibility to attest to compliance 

with 16 CFR part 1107. The final rule 

states that the attestation is by ‘‘the 

party conducting the testing,’’ meaning 

the third party conformity assessment 

body, in the case of a children’s 

product. 

Furthermore, on our own initiative, 

we streamlined the requirement by 

deleting the following text: ‘‘regardless 

of whether it was required because the 

product is a children’s product or 

whether the testing party chose to use 

such third party conformity assessment 

body, identification of such third party 

conformity assessment body. * * * 

Removal of this text is editorial, and it 

is not intended to be a substantive 

amendment. It remains true that 

identification of the party conducting 

the testing is required, regardless of the 

reason for using a particular type of 

testing laboratory, including a third 

party conformity assessment body. We 

also removed the requirement for 

original test results in this section on 

our own initiative because test results 

are already discussed in § 1109.5(g)(6). 

Finally, we broadened the rule to 

include finished products, as discussed 

in response to Comment 1 in section 

II.B.1 of this preamble. 

(Comment 17)—Another commenter 

stated that proposed § 1109.5(f)(7) seems 

to require a testing party to ‘‘certify’’ 

that third party testing results meet the 

requirements of section 14 of the CPSA. 

The commenter said that the provision 

appears to conflict with other provisions 

in the proposed rule that establish 

testing parties as entities that conduct 

proper testing, but who do not have to 

‘‘certify’’ under the CPSA. 

(Response 17)—We agree that use of 

the word ‘‘certify’’ in proposed 

§ 1109.5(f)(7) (renumbered to 

§ 1109.5(g)(7) in the final rule) may be 

confused with a product certification 

requirement. Accordingly, we changed 

the word ‘‘certify’’ to ‘‘attest’’ in 

§ 1109.5(g)(7). Pursuant to 

§ 1109.5(g)(7), the party who conducts 

testing, including a manufacturer or 

supplier who conducts testing, a testing 

laboratory, or a third party conformity 

assessment body, must attest (state in 

writing) that such testing was performed 

in compliance with section 14 of the 

CPSA and 16 CFR part 1107, or any 

more specific applicable rule, ban, 

standard, or regulation. Moreover, the 

party signing the attestation is only 

responsible for attesting to following the 

requirements that are applicable to 

them. Thus, a third party conformity 

assessment body that merely conducts 

testing will attest to the testing protocol 

that was followed. Such a third party 

conformity assessment body would not 

need to attest to following applicable 

sampling protocols, if they were not the 

party responsible for sample selection. 

We finalized proposed § 1109.5(f) 

(renumbered to § 1109.5(g) in the final 

rule) with several changes. On our own 

initiative, we changed the title of this 

section from ‘‘Documentation by testing 

party’’ to ‘‘Documentation by certifiers 

and testing parties,’’ to reflect more 

accurately that both certifiers and 

testing parties are required to provide 

the documentation listed in this section. 

We also clarified that each certifier and 

testing party is responsible for providing 

the documentation to a certifier who is 

relying on such documentation to issue 

a certificate: ‘‘[e]ach certifier and testing 

party must provide the following 

documentation, either in hard copy or 

electronically, to a certifier relying on 

such documentation as a basis for 

issuing a certificate.’’ For example, a 

component part testing party or certifier 

must provide the documentation to a 

finished product certifier who is relying 

on such documentation to issue a 

finished product certificate. A testing 

party must provide this documentation 

to a component part supplier relying on 

such documentation to certify a 

component part. 

(8) New §§ 1109.5(g)(8) Through (g)(10) 

On our own initiative, we added three 

documentation requirements in the final 

rule in §§ 1109.5(g)(8), (g)(9), and 

(g)(10). We based two requirements on 

other sections in the proposed rule, and 

the third results from comments we 

received on the proposed rule. 

New § 1109.5(g)(8) requires that a 

testing party or certifier provide: 

‘‘[c]omponent part certificate(s) and/or 

finished product certificate(s), if any 

* * *’’ to a certifier relying upon such 

documentation as the basis for a 

certificate. The proposed rule 

contemplated that finished product 

certifiers could rely upon component 

part certificates, but the requirement 

that a component part certifier provide 

access to the actual certificate was not 

listed in the documentation section in 

proposed the proposed rule. For 

example, proposed § 1109.5(h)(1) would 

state: ‘‘[a] finished product certifier 

must exercise due care in order to rely, 

in whole or in part, on a component part 

certificate issued by a component part 

certifier * * *.’’ We corrected the 

omission of component part certificates 

in the final rule by adding 

§ 1109.5(g)(8). Moreover, we included 

both component part certificates and 

finished product certificates, if any, 

because a finished product certifier 

could rely upon either component part 

certificates or finished product 

certificates from another party. 

New § 1109.5(g)(9) requires that a 

testing party or certifier provide: 

‘‘[r]ecords to support traceability as 

defined in § 1109.4(m) * * *’’ to a 

certifier relying upon such 

documentation as the basis for a 

certificate. This requirement was moved 

from proposed § 1109.5(i) on 

recordkeeping, which would require 

that ‘‘all certifiers must maintain 

records to support the traceability of 

component part suppliers * * *.’’ On 

our own initiative, we decided to move 

this requirement to maintain traceability 

records to the documentation section in 

the final rule, so that all documentation 

requirements are in one section. Also, 

the slightly rephrased requirement to 

maintain traceability records is more 

accurate, in that it recognizes that such 

records can originate from both testing 

parties and certifiers, and it informs that 

the details of what is meant by 

‘‘traceability records’’ can be found in 

§ 1109.4(m). Section 1109.4(m) clarifies 

that traceability records include: ‘‘the 

name and address of each testing party 

and any party that conducted testing on 

the component part or finished product. 

* * * Traceability extends to the 

component part of the product that was 

tested for compliance, such that if a 

subassembly is tested, that subassembly 

must be traceable, not each component 

part of the subassembly, if those parts 

were not individually tested for other 

rules, bans, standards, or regulations.’’ 

New § 1109.5(g)(10) requires that a 

testing party or certifier provide: ‘‘[a]n 

attestation by each certifier and testing 

party that while the component part or 

finished product was in its custody, it 

exercised due care to ensure compliance 

with the requirements set forth in 

subparagraph (b) of this section.’’ 

Subparagraph (b) refers to § 1109.5(b) on 

Test result integrity. The rationale for 

this addition is set forth in response to 

Comment 9, discussed above in section 

II.B.5.a.2 of this preamble. 

g. Proposed § 1109.5(g)—Effect of 

Voluntary Certification by Component 

Part Certifiers 

On our own initiative, we shortened 

the section titled, ‘‘Effect of voluntary 

certification’’ in the final rule. We 

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removed the phrase ‘‘by component part 

certifiers’’ from the title to reflect the 

fact that a testing party or certifier may 

test voluntarily or certify finished 

products as well, as set forth in response 

to Comment 1 in section II.B.1 of this 

preamble. 

(1) Proposed § 1109.5(g)(1) 

Proposed § 1109.5(g)(1) (renumbered 

to § 1109.5(h)(1) in the final rule) would 

consider any certificate issued by a 

component part certifier in accordance 

with this part to be a certificate issued 

in accordance with section 14(a) of the 

CPSA, and would further require 

component part certificates to contain 

all of the information required by part 

1110 of this chapter. The preamble to 

the proposed rule (75 FR at 28210) 

stated that this provision would allow 

finished product certifiers to rely on 

section 19(b) of the CPSA, which 

provides that a person who holds a 

certificate issued in accordance with 

section 14(a) of the CPSA (to the effect 

that a consumer product conforms to all 

applicable consumer product safety 

rules) is not subject to the prohibitions 

in section 19(a)(1) of the CPSA 

(regarding distributing noncomplying 

products) and section 19(a)(2) of the 

CPSA (regarding distributing products 

subject to certain voluntary corrective 

actions, mandatory recall orders, or that 

are banned hazardous substances), 

unless such person knows that such 

consumer product does not conform. 

The preamble to the proposed rule (75 

FR at 28210 through 28211) further 

stated that certifiers may violate section 

19(a)(6) of the CPSA if the products that 

are the subject of any certificate issued 

by that person, in fact, do not comply 

with the applicable standard(s) and 

such person, in the exercise of due care, 

would have reason to know that their 

certificate is false or misleading in any 

material respect. Proposed 

§ 1109.5(h)(1) (renumbered to 

§ 1109.5(i)(2) in the final rule) would 

address how this duty of due care 

applies to finished product certifiers. 

Section 1109.5(h)(1) of the final rule 

has been finalized with one revision. On 

our own initiative, we modified the 

second sentence in § 1109.5(h)(1) to 

remove: ‘‘[a] component part 

certificate,’’ and replace it with: ‘‘[a]ll 

certificates,’’ to reflect the fact that this 

section can relate to both a component 

part certificate and a finished product 

certificate, as explained in response to 

Comment 1 in section II.B.1 of this 

preamble. All certificates should meet 

the content requirements set forth in 

sections 14(g) of the CPSA, as well as 

the content requirements in our 

regulation set forth in part 1110. We 

note, however, that the only certificate 

required to accompany a finished 

product is the finished product 

certificate issued by an importer or 

domestic manufacturer, as set forth in 

part 1110. Otherwise, certificates must 

be provided to a certifier relying on 

such documentation to certify a 

product, and certificates must be 

provided to the Commission, upon 

request, pursuant to §§ 1109.5(g) and 

1109.5(j) of the final rule. 

(2) Proposed § 1109.5(g)(2) 

Proposed § 1109.5(g)(2) (renumbered 

to § 1109.5(h)(2) in the final rule) would 

provide that any person who elects to 

certify compliance of a component part 

with an applicable rule must assume all 

responsibilities of a manufacturer under 

part 1107 of this chapter with respect to 

that component part’s compliance with 

the applicable rule. 

(Comment 18)—A commenter stated 

that because the word ‘‘certify’’ or 

‘‘certification’’ is so prevalent in 

business communications in a variety of 

different contexts, it would be quite 

simple for a component part supplier to 

be deemed a component part certifier 

when it did not intend to become one. 

To avoid this, the commenter would 

modify the rule to require any party 

seeking to be a component part certifier 

under proposed § 1109.5(g) (renumbered 

to § 1109.5(h) in the final rule), or a 

testing party under proposed 

§ 1109.4(k), to state specifically, in 

writing, that it is providing a 

certification or supplying testing data as 

a certifier or testing party (as the case 

may be) under those regulations. 

(Response 18)—We do not believe 

that the prevalence of the terms 

‘‘certify’’ and ‘‘certification’’ in business 

forms and communications will cause 

the confusion feared by the commenter. 

As noted in proposed § 1109.5(g) (now 

renumbered as § 1109.5(h) in the final 

rule), component part certificates must 

contain all of the information required 

by part 1110 of this chapter. That 

unique combination of information, 

together with the required express 

certification that the part or product 

complies with the identified 

requirements, should make it clear 

when a party is issuing a certificate 

pursuant to section 14(a) of the CPSA. 

However, we have changed the word 

‘‘certify,’’ used in proposed 

§ 1109.5(f)(7) (now renumbered to 

§ 1109.5(g)(7) in the final rule) to 

‘‘attestation.’’ We made this change to 

clarify and distinguish that the 

‘‘attestations’’ required in 

§§ 1109.5(g)(7) and (10) of the final rule 

are not the same as product 

certifications. The words ‘‘certify’’ and 

‘‘certification,’’ as used in this rule, refer 

to the product certifications required by 

section 14(a) of the CPSA. 

(Comment 19)—One commenter 

stated that any obligation to provide a 

component part or raw material 

certificate of conformity to the CPSC 

should rest with the consumer product 

manufacturer and not with the 

component part or raw material 

supplier. 

(Response 19)—The CPSIA does not 

require component part suppliers or raw 

material suppliers to certify their 

products. Testing or certification of 

component parts are entirely voluntary 

activities for component part 

manufacturers or component part 

suppliers. Parties that have no 

requirement to test or certify their 

products, and who have not undertaken 

such tasks, are not expected to provide 

the CPSC with a certificate. However, 

we have clarified in § 1109.5(h)(2) that 

any party who elects to certify 

compliance of a component part or a 

finished product with an applicable 

rule, standard, ban, or regulation, must 

assume all responsibilities of a 

manufacturer under sections 14(a) 

(requiring issuance of a General 

Conformity Certificate and/or a 

Children’s Product Certificate) and 14(i) 

(requiring continuing third party testing 

of children’s products) of the CPSA and 

16 CFR part 1107 with respect to that 

component part or finished product’s 

compliance to the applicable rules, 

standards, bans, or regulations. 

Moreover, § 1109.5(j) of the final rule 

requires certifiers and testing parties to 

make documentation required by 

§ 1109.5(g) available to the CPSC for 

inspection, upon request. Such 

documentation includes certifications, if 

any. Once a party undertakes testing or 

certification of a component part or 

finished product, they are expected to 

adhere to the requirements of this rule. 

Finally, with respect to providing 

certificates to the CPSC, we also note 

that section 14(g)(3) of the CPSA states 

that, upon request, a manufacturer or 

private labeler must provide a copy of 

a certificate to the CPSC. 

Section 1109.5(h)(2) has been 

finalized with several changes. On our 

own initiative, we changed the word 

‘‘person’’ to ‘‘party’’ to make it clear that 

a certifier can be either a person or an 

entity, and to be consistent with similar 

language throughout the final rule. We 

also replaced the phrase ‘‘applicable 

rule’’ in both places it is used with 

‘‘applicable rules, standards, bans, or 

regulations,’’ to track the statutory 

language of section 14(a) of the CPSA 

and to be consistent with similar 

language throughout the final rule. 

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Finally, we added a reference to 

sections 14(a) and 14(i) of the CPSA for 

the reasons set forth in response to 

Comment 19 immediately above. 

h. Proposed § 1109.5(h)—Certification 

by Finished Product Certifiers 

(1) Proposed § 1109.h(1) 

Proposed § 1109.5(h)(1) (part of which 

has been renumbered to § 1109.5(i)(2) in 

the final rule) would require a finished 

product certifier to exercise due care in 

order to rely, in whole or in part, on a 

component part certificate issued by a 

component part certifier or on 

component part testing by a testing 

party as the basis for a finished product 

certificate. The proposal also would 

require that, if a finished product 

certifier fails to exercise due care in its 

reliance on a certificate for a component 

part, we would not consider the 

finished product certifier to hold a 

component part certificate issued in 

accordance with section 14(a) of the 

CPSA. Proposed § 1109.5(h)(1) would 

add that exercising due care means 

taking the steps a prudent and 

competent person would take to 

conduct a reasonable review of a 

component part certificate and to 

address any concern over its validity. 

We did not receive any comments on 

this section of the proposed rule. On our 

own initiative, we revised § 1109.5(i)(1) 

to clarify the four different types of 

documentation that a finished product 

certifier can rely upon to certify a 

finished product. We revised the first 

sentence in proposed § 1109.5(h)(1) to 

state: ‘‘[a] finished product certifier 

must exercise due care in order to rely, 

in whole or in part, on one or more of 

the following as a basis for issuing a 

finished product certificate: (i) Finished 

product certificate(s) issued by another 

party; (ii) finished product test report(s) 

provided by another party; (iii) 

component part certificate(s); or (iv) 

component part test report(s).’’ The 

phrase ‘‘by another party’’ is associated 

only with finished product testing and 

certification in this section because 

component part testing can be done by 

the finished product certifier or another 

party. While finished product 

certification also can be done by the 

finished product certifier, part 1109 

would not come into play in that 

circumstance. Part 1109 is relevant only 

when: (a) Any certifier relies on 

component part testing or certification, 

regardless of who conducts the testing 

or provides certification; and (b) a 

finished product certifier is relying on 

finished product testing or certification 

provided by another party. We moved 

the remaining text in proposed 

§ 1109.5(h)(1) to § 1109.5(i)(2). This 

revision to clarify the four types of 

documentation that a finished product 

certifier can rely on to certify a finished 

product arises out of the changes made 

throughout the final rule to incorporate 

the concept that a finished product 

certifier can rely upon a finished 

product certificate provided by another 

party, as discussed in response to 

Comment 1 in section II.B.1 of this 

preamble. 

Because the concept that was 

included in the first sentence of 

proposed § 1109.5(h)(1), now comprises 

§ 1109.5(i)(1), § 1109.5(i)(2) begins with 

the second sentence from what was 

proposed § 1109.5(h)(1). On our own 

initiative, we removed the phrase 

regarding the requirement to exercise 

due care in reliance on ‘‘a certificate for 

a component part’’ and replaced it with 

‘‘another party’s certifications or test 

reports.’’ This phrase broadens 

§ 1109.5(i)(2) so that it incorporates all 

four of the options for certifying a 

finished product under part 1109, now 

described in § 1109.5(i)(1), including 

finished product testing and 

certification. We also revised the phrase 

‘‘a component part certificate’’ in the 

first sentence to ‘‘a certificate’’ because 

the finished product certifier may be 

relying on component part or finished 

product certificates. We made a similar 

change in the second sentence to 

broaden ‘‘a component part certificate’’ 

to ‘‘another party’s certification and/or 

test reports’’ to reflect the range of 

documentation that a finished product 

certifier may rely on to certify a product. 

These changes arise out of the concept 

that a testing party or certifier may test 

or certify both component parts and 

finished products in the final rule, as 

explained in response to Comment 1 in 

section II.B.1 of this preamble. Further, 

on our own initiative, we inserted the 

phrase: ‘‘Before relying on such 

documents to issue a finished product 

certificate,’’ to set forth our expectation 

that a finished product certifier should 

exercise due care in relying upon 

another party’s documentation before 

issuing its own certificate. Finally, we 

updated the definition of ‘‘due care’’ to 

track the revised definition in 

§ 1109.4(g). 

Section 1109.5(i)(2) in the final rule is 

intended to limit a finished product 

certifier from relying on section 19(b) of 

the CPSA when they know or should 

know that a certificate is invalid, or 

based on faulty data or test procedures. 

Section 19(b) of the CPSA provides that 

a person who holds a certificate issued 

in accordance with section 14(a) of the 

CPSA (to the effect that a consumer 

product conforms to all applicable 

consumer product safety rules) is not 

liable for a violation under section 

19(a)(1) of the CPSA (regarding 

distributing noncomplying products) 

and section 19(a)(2) of the CPSA 

(regarding distributing products subject 

to certain voluntary corrective actions, 

mandatory recall orders, or that are 

banned hazardous substances), unless 

such person knows that such consumer 

product does not conform. Willful 

ignorance of testing or certification 

violations committed by suppliers will 

not shield finished product certifiers. 

Parties may also violate section 19(a)(6) 

of the CPSA if the products that are the 

subject of any certificate issued by that 

person, in fact, do not comply with the 

applicable standard(s) and such person, 

in the exercise of due care, would have 

reason to know that their certificate is 

false or misleading in any material 

respect. 

(2) Proposed § 1109.5(h)(2) 

Proposed § 1109.5(h)(2) (renumbered 

to § 1109.5(i)(3) in the final rule) would 

state that a finished product certifier 

must not rely on component part testing 

by a testing party or component part 

certifier, unless it receives the 

documentation under proposed 

§ 1109.5(f) from the component part 

certifier or testing party. The provision 

also would state that we may consider 

a finished product certifier who does 

not obtain such documentation before 

certifying a consumer product to have 

failed to exercise due care. 

(Comment 20)—A commenter stated 

we should clarify that it is sufficient if 

the finished product certifier 

‘‘identifies’’ (instead of ‘‘receives’’) the 

testing party’s compliance with 

proposed § 1109.5(f) by reference to the 

testing party’s having provided the 

required documentation to the finished 

product manufacturer issuing a 

certificate for the finished product. 

(Response 20)—We interpret the 

commenter’s suggestion as allowing a 

certifier to provide access (such as 

through an Internet Web site) to the 

records, rather than by requiring 

physical possession of those records. 

We agree with the commenter and have 

revised the rule to state: ‘‘The finished 

product certifier may receive such 

documentation either in hard copy or 

electronically, or access the 

documentation through an Internet Web 

site.’’ Electronic access to records can 

take other forms as well, such as via 

flash drive, as an email attachment, or 

by display on a monitor. The final rule 

does not require any particular format 

for the transmission or receipt of 

electronic records. 

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In addition, we have, on our own 

initiative, made two changes to the first 

sentence in § 1109.5(i)(3). We revised 

the first sentence to state: ‘‘[a] Finished 

product certifier must not rely on 

another party’s certificates or test 

reports unless the finished product 

certifier receives the documentation 

under paragraph (g) of this section from 

the certifier or testing party.’’ We also 

replaced the proposed rule’s phrase: 

‘‘Must not rely on component part 

testing by a testing party or component 

part certifier,’’ to state: ‘‘Must not rely 

on another party’s certificates or test 

reports’’ in the final rule. The revised 

language broadens the section to 

incorporate the concept that a finished 

product certifier can rely on another 

party’s finished product test reports or 

certification, as well as rely on their 

component part test reports or 

certificates, as discussed in response to 

Comment 1, in section II.B.1 of this 

preamble. We also revised the reference 

to § 1109.5(f) to § 1109.5(g) in the final 

rule, where the documentation 

requirements are now stated. 

(3) Proposed § 1109.5(h)(3) 

Under proposed § 1109.5(h)(3), any 

certification of a consumer product 

based, in whole or in part, on 

component part testing performed by a 

component part certifier or a testing 

party must: 

• Identify both the corresponding 

documentation required in proposed 

§ 1109.5(f) and any report provided by 

a third party conformity assessment 

body on which the consumer product’s 

certification is based; and 

• Certify that nothing subsequent to 

component part testing, for example, in 

the process of final assembly of the 

consumer product, changed or degraded 

the consumer product such that it 

affected the product’s ability to meet all 

applicable rules, bans, standards, and 

regulations. 

(Comment 21)—Multiple commenters 

stated that adding detailed component 

part information on the certificate 

would inject enormous complexity to 

the certification process; they further 

asserted that we should not require 

component part test results to be listed 

on the certificate. One commenter 

added that, as long as the testing and 

traceability requirements are met, the 

method of such documentation should 

be determined by the certifier. One 

commenter would revise proposed 

§ 1109.5(h)(3)(i) to state expressly that 

only component parts (not 

subcomponents of components or raw 

materials of components) need to be 

listed on the final product certification. 

For example, a zipper is composed of 

several subcomponents; each of these 

subcomponents would be required to be 

listed on the conformity certificate of 

the zipper. However, the commenter 

said that it would be burdensome to 

require that each zipper subcomponent 

be listed again on the finished product 

certificate. The commenters said that 

traceability of the subcomponents 

would be preserved because the 

finished product certificate could refer 

to the certificate for the zipper, which 

would list the subcomponents. Another 

commenter argued that if all of the 

component part certification 

information is required on a finished 

product certificate, the certificate would 

be long and complex. The commenter 

asked for clarification on the 

requirements for certificates and 

suggested a change in the rule as 

follows: 

* * * Thus, the Commission should 

clarify that it is sufficient for the finishedproduct certification to ‘‘identify’’ the testing 

party’s compliance with § 1109.5(f) by 

generally referring to the testing party’s 

having provided the required documentation 

to the finished-product certifier * * * 

(Response 21)—The information 

required on certificates is specified in 

section 14(g)(1) of the CPSA and 16 CFR 

part 1110. Section 14(g)(1) of the CPSA 

requires the certificates to include the 

date and place where the product was 

tested. We interpret this to require 

references to every test performed to 

support the certificate of the product 

being certified, including tests of 

component parts. However, references 

can be indirect, such as by referring 

readers of the certificate to a source for 

the underlying certificates or test 

reports. In addition, to avoid 

duplication or inconsistency in 

requirements for certificates between 

this rule and 16 CFR part 1110, we have 

deleted sections containing 

requirements for certificates from the 

final rule. Thus, we have deleted 

proposed § 1109.5(h)(3), which would 

require certificates to identify 

documentation in proposed § 1109.5(f) 

and certify that no change occurred after 

testing that could affect adversely a 

product’s ability to comply with all 

applicable rules, and proposed 

§§ 1109.12(d) and 1109.13(d), which 

would concern certificates for products 

tested for the lead in paint limit and the 

phthalate content limit. 

(Comment 22)—A commenter stated 

that, in proposed § 1109.5(h)(3)(i), the 

word ‘‘identify’’ is ambiguous when it is 

applied to requiring supporting 

documentation for a certificate. The 

commenter suggested that it should be 

sufficient ‘‘for the finished product 

certification to ‘identify’ the testing 

party’s compliance with § 1109.5(f) of 

the proposed rule by generally referring 

to the testing party’s having provided 

the required documentation to the 

finished product certifier.’’ 

(Response 22)—As noted immediately 

above in our response to Comment 21, 

we deleted § 1109.5(h)(3)(i) in the final 

rule, as well as all other requirements 

for finished product certificates. 

Accordingly, it is unnecessary for us to 

act on the commenter’s suggestion. 

Proposed § 1109.5(h)(3) has been 

deleted in the final rule for the reason 

set forth in response to Comment 21 and 

because proposed § 1109.5(h)(3)(ii) is 

redundant to § 1109.5(b) in the final 

rule. Section 1109.5(b) requires 

certifiers, including finished product 

certifiers, among other things, to 

exercise due care to ensure that while a 

component part or finished product is 

in its custody, no action or inaction 

subsequent to testing and before 

distribution in commerce occurs that 

would affect compliance, including 

contamination or degradation. 

i. Proposed § 1109.5(i)—Recordkeeping 

Requirements 

Proposed § 1109.5(i) (renumbered to 

§ 1109.5(j) in the final rule) would 

require testing parties to maintain the 

documentation that would be required 

in proposed § 1109.5(f) for five years. 

Additionally, the proposal would 

require all certifiers to maintain records 

to support the traceability of component 

part suppliers for as long as the product 

is produced or imported by the certifier, 

plus five years. The proposal also would 

require test records to be kept for five 

years and that all records are available 

in the English language. The preamble 

to the proposed rule explained that the 

record retention period would be set at 

five years because the statute of 

limitations under 28 U.S.C. 2462 allows 

the Commission to bring an action 

within that time. The proposal also 

would require certifiers to maintain the 

records at the location within the 

United States specified in 16 CFR 

1110.11(d), or, if the records are not 

maintained at the custodian’s address, 

at a location specified by the custodian. 

The proposal also would require 

manufacturers to make these records 

available, either in hard copy or 

electronically, for inspection by the 

CPSC, upon request. 

(Comment 23)—Several commenters 

declared that maintaining records for 

the ‘‘life of the product, plus five years’’ 

is excessive. One commenter stated that 

they have been selling a product for 

more than 30 years and that keeping 

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records for that period of time would be 

very expensive. 

(Response 23)—We have revised the 

final rule to state that a maximum 

records retention period of five years 

will be sufficient for all records required 

in § 1109.5(g) of the final rule. If a 

product has a significant 

noncompliance, it seems likely that the 

noncompliant aspect of the product 

would become apparent within that 

period. Thus, § 1109.5(j) (renumbered 

from proposed § 1109.5(i)), now requires 

that records be kept for a period of five 

years. Certifiers and testing parties may 

wish to consider maintaining records for 

durable products, such as furniture or 

some infant products, for more than five 

years. In the event of a recall, such 

records may be useful in determining 

the number of affected products and 

limiting the recall’s scope. 

(Comment 24)—Some commenters 

stated that the recordkeeping 

requirements of proposed § 1109.5(i) 

(renumbered to § 1109.5(j) in the final 

rule) seem burdensome in requiring that 

records be in English and kept in a 

location in the United States. With 

much manufacturing occurring outside 

of the United States and in non-English 

speaking countries, the commenters said 

that allowing offshore storage in the 

local language would make the records 

most usable to local compliance (e.g., 

quality assurance) staff. One commenter 

suggested allowing production of those 

records in English to CPSC staff, upon 

request. A commenter suggested that 

instead of requiring that finished 

product certifiers maintain the records 

at a location within the United States, 

as proposed § 1109.5(i) would require, 

we should allow the records to be 

maintained outside the United States, as 

long as the records can be accessed from 

the location in the United States that is 

specified on the certificate. 

(Response 24)—We agree that it could 

be burdensome to maintain all records 

in the United States. To reduce this 

burden and still maintain prompt access 

to records, when needed, § 1109.5(j) 

(renumbered from proposed § 1109.5(i)) 

allows required records to be 

maintained outside the United States, as 

long as the records can be provided to 

us upon request, either in hard copy or 

electronically, such as through an 

Internet Web site. 

We also agree that, in many cases, it 

could be burdensome for the records to 

be maintained in English. Therefore, 

§ 1109.5(j) allows records to be 

maintained in languages other than 

English, if the records can be provided 

immediately by the certifier or testing 

party to the CPSC, and if an accurate 

English translation can be provided by 

the certifier or testing party within 48 

hours of our request, or within such 

longer period as may be negotiated with 

CPSC staff. Note, however, that section 

14(g) of the CPSA and our regulation at 

16 CFR part 1110 require that 

certificates be in the English language. 

Accordingly, all certificates, including 

component part certificates, must be in 

English. 

(Comment 25)—One commenter said 

that in the preamble to the proposed 

rule (75 FR 28361), the CPSC states that 

it will: ‘‘* * * likely request access to 

these records only when it is 

investigating potentially defective or 

noncomplying products.’’ (Emphasis 

added). The commenter expressed the 

belief that this indicates that collection 

of this information on every item is not 

necessary for the proper performance of 

the CPSC’s functions. 

Some commenters asked for more 

flexibility in developing the 

recordkeeping requirements so that 

different industries and companies can 

tailor recordkeeping to their products, 

processes, and materials used. The 

commenters added that we should avoid 

provisions in the final rule that would 

require companies to integrate multiple 

systems in order to compile data points 

across hundreds of thousands to 

millions of product component parts in 

order to meet the recordkeeping 

requirements of the rule, as long as 

companies, upon request, can provide 

reasonable data customary in a 

particular industry to verify that 

certified components were used in the 

finished product. 

(Response 25)—The commenter’s 

citation to 75 FR at 28361 is contained 

in the proposed rule, ‘‘Testing and 

Labeling Pertaining to Product 

Certification,’’ and we have addressed it 

in the response to comments 

memorandum and preamble for the final 

rule on part 1107. Thus, this portion of 

the comment is out of scope for the 

proposed rule on ‘‘Conditions and 

Requirements for Testing Component 

Parts of Consumer Products.’’ 

The remainder of the comment 

discusses the proposed rule on 

component part testing. The 

commenters did not elaborate on what 

type of flexibility is desired in the 

recordkeeping provisions. However, the 

requirements listed in § 1109.5(g) and (j) 

(formerly proposed § 1109.5(f) and (i)) 

indicate only what information is 

expected to be collected, not the format 

for collection. Therefore, it should be 

necessary for the manufacturer or 

importer to identify and store only the 

required elements that are not already 

part of their current recordkeeping 

system and be certain that the remaining 

documentation can be produced, upon 

request, in a manner that clearly 

identifies the requisite parts. Section 

1109.5(j) requires the records to be made 

available to us, upon request, either in 

hard copy or electronically, such as 

through an Internet Web site. This 

requirement does not oblige the certifier 

to implement any specific records 

management system, and so a certifier is 

free to structure its recordkeeping 

systems to meet its needs and to capture 

the information required by the rule. No 

change to the final rule was made based 

on this comment. 

(Comment 26)—One commenter 

stated that the traceability 

recordkeeping requirements are 

unnecessary, given the minimal risk to 

the public’s health from the health 

hazards being addressed, as 

demonstrated by the CPSC’s injury data 

regarding lead exposure. 

(Response 26)—Congress has 

determined the allowable lead levels 

and requires that products subject to 

such requirements be tested and 

certified. The traceability recordkeeping 

requirements are intended to make it 

possible to identify the parties who 

procured and conducted testing on 

products that are not in compliance 

with the applicable rules, bans, 

standards, and regulations, and to 

determine why the testing and 

certification system did not prevent 

such noncompliance. 

(Comment 27)—One commenter 

asserted that the proposed rule ‘‘makes 

it abundantly clear that the CPSC is 

perfecting a myriad of claims to be made 

against any and all manufacturers when 

it suits the purpose of the agency.’’ The 

commenter expressed its fear that the 

agency could make charges based on 

missing records or paperwork. 

(Response 27)—Component part 

testing before final assembly of a 

finished product is voluntary. A 

finished product certifier is not required 

to rely on component part certificates or 

test reports. Even when a test method 

requires testing of component parts, a 

finished product certifier can test 

finished products by disassembling for 

testing. In some cases, it may be more 

economical for the finished product to 

be certified based on tests of the 

finished product itself, instead of 

relying on component part certificates 

or test reports. The main purposes of the 

documentation requirements in part 

1109 are to maintain the integrity of the 

testing and certification process and to 

provide traceability to the testing of 

component parts and finished products 

on which certification is based. 

(Comment 28)—One commenter 

stated that the Commission needs to 

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provide more guidance to finished 

product or component part certifiers on 

how to trace the component parts or 

how to manage the lot/batch details in 

their recordkeeping systems. The 

commenter stated that while some 

certifiers have sophisticated tracking 

systems, many certifiers do not and will 

require a template to guide them. 

(Response 28)—Given the range of 

consumer products, certifiers, and 

testing parties affected by this rule, we 

decided to give parties the flexibility to 

devise recordkeeping systems that are 

appropriate to their operations. In 

particular, the breadth of component 

part types, their manufacturing 

methods, and their uses make it 

impractical to attempt to design a 

universal recordkeeping template. The 

final rule specifies the documentation to 

be provided and its retention period. 

Certifiers and testing parties should use 

their knowledge of manufacturing 

specific products and component parts 

and tailor their recordkeeping systems 

to the products, processes, and materials 

they use. 

(Comment 29)—Some commenters 

expressed concern that the 

recordkeeping, documentation, and 

traceability requirements are too 

complex and are likely to undercut any 

benefits from component part testing. 

One commenter stated that using 

component part testing for some rules, 

while finished product testing is 

required for other rules, would be overly 

complex. One commenter stated that the 

complex procedures might be 

appropriate for materials or products 

that pose a risk of acute toxicity or a 

serious risk of injury but asserted that 

they are ‘‘overkill’’ with regard to lead 

content, lead in paint concentration, 

and phthalate concentration rules, 

which the commenter apparently 

perceives as addressing lesser risks. 

(Response 29)—The requirement in 

the final rule that the component parts 

tested be traceable, arises out of the 

requirement in section 14(g)(1) of the 

CPSA, which requires the finished 

product certificate to contain some 

specific information, including the date 

and place of manufacture, the name and 

address of any third party laboratory on 

whose testing the certification depends, 

the date of the testing, and contact 

information for the individual 

responsible for maintaining records of 

test results. Thus, if we allow parties 

other than the finished product certifier, 

such as component part suppliers, to 

test and certify products, the regime 

must have elements of traceability, as 

well as ensure the integrity of the testing 

and certification process. For example, 

specific information about testing and 

certification of component parts will not 

necessarily appear on the face of a 

certificate if such testing and 

certification is done by component part 

suppliers. However, we still need to be 

able to trace the product or component 

parts back to the parties responsible for 

testing and certification if a 

noncompliance is found. 

The complexity of the testing and 

certification process to which the 

commenter alluded, stems, in part, from 

the variety of methods available to test 

or certify component parts and finished 

products. This flexibility is built into 

the requirements to allow those who 

voluntarily test or certify component 

parts or finished products, to choose the 

methods that are best suited to their 

circumstances. How a product is tested 

or certified, meaning whether the 

finished product certifier relies on 

component part testing or certification, 

or finished product testing or 

certification, depends upon the product 

and the applicable safety standards 

being tested. For example, the same 

product may involve testing of 

component parts, such as lead in 

substrate; and it also might require that 

some tests, such as small parts testing, 

be performed on the finished product. 

The documentation requirements in 

proposed § 1109.5(f) (renumbered in the 

final rule to § 1109.5(g)) and the 

traceability requirements of proposed 

§ 1109.5(e) (renumbered to § 1109.5(f) of 

the final rule) are needed to ensure that 

the finished product certifier has the 

required information to issue a finished 

product certificate. These data must be 

available to the finished product 

certifier for each component part used 

in the finished product that was tested 

separately from the finished product. 

The statute applies certification 

requirements to all consumer product 

safety rules under the CPSA and to any 

similar rule, ban, standard, or regulation 

under any other act enforced by the 

Commission; we do not have the 

discretion to relax these requirements 

for products subject to any particular 

one of these rules. Therefore, we will 

not relax the recordkeeping 

requirements in the final rule, as 

suggested by these commenters. 

D. Subpart B—Conditions and 

Requirements for Specific Consumer 

Products, Component Parts, and 

Chemicals 

Subpart B, § 1109.11 through 1109.13 

of the proposed rule, would set forth 

conditions and requirements for specific 

chemical content regulated by the CPSC. 

These would include the limits for lead 

content of paint and similar surfacecoating materials in 16 CFR part 1303; 

the limitation of the amounts of 

compounds of antimony, arsenic, 

barium, cadmium, chromium, lead, 

mercury, or selenium in paints or other 

surface coatings in toys in section 

4.3.5.2 of ASTM F 963 (‘‘Standard 

Consumer Safety Specification for Toy 

Safety’’); the limits for lead content in 

children’s products in section 101(a) of 

the CPSIA; and the prohibition against 

more than 0.1 percent of certain 

phthalates in children’s toys and child 

care articles in section 108 of the CPSIA. 

(Section 106(a) of the CPSIA states that 

the requirements of ASTM F 963 must 

be considered consumer product safety 

standards issued by the Commission 

under section 9 of the CPSA.) 

1. Proposed § 1109.11—Component Part 

Testing for Paint and Other Surface 

Coatings 

Proposed § 1109.11 would address 

component part testing for the levels of 

specified chemicals in paints or surface 

coatings. This aspect of the proposed 

rule was based on the Commission’s 

previously published enforcement 

policy for testing products for 

compliance with lead limits. 74 FR 

68593 (December 28, 2009). 

Section 101(f)(1) of the CPSIA 

required us to revise our preexisting 

regulation (at 16 CFR 1303.1) so that 

paints and similar surface coating 

materials having a lead content in 

excess of 0.009 percent of the weight of 

the total nonvolatile content of the paint 

or the weight of the dried paint film are 

banned hazardous products. (To 

simplify this discussion, we use the 

term ‘‘paint’’ broadly to include any 

type of surface coating that is subject to 

16 CFR part 1303 or section 4.3.5.2 of 

ASTM F 963.) The new lower limit in 

16 CFR part 1303 applies not only to 

paint sold to consumers, as such (for 

example, a gallon of paint sold at a 

hardware store), but also to any paint on 

toys or other articles for children and to 

any paint on certain household 

furniture items (not limited to children’s 

furniture). See 16 CFR part 1303. The 

principles for testing paint subject to 16 

CFR part 1303 also apply to the testing 

of paint and surface coatings for toys in 

section 4.3.5.2 of ASTM F 963. 

We received several comments about 

component part testing of paint, which 

were unrelated to any particular 

provision of the proposed rule. 

(Comment 30)—A commenter stated 

that the presumption that only the CPSC 

(or Congress) can make sound 

judgments when considering safety 

issues is simply not supported by the 

data. The commenter added that the 

concept of using component parts 

supported by General Conformity 

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Certificates (GCCs) is simple enough. 

The commenter asked that, given that 

the restrictions on lead in paint and lead 

content of children’s products are clear 

under the CPSIA, why not let businesses 

exercise their judgment on how to meet 

those requirements and then measure 

businesses on their success in doing so? 

(Response 30)—The proposed rule did 

not make any presumptions regarding 

who can make sound judgments about 

safety issues. The restrictions on lead 

mentioned by the commenter pertain to 

the lead in paint requirements under 16 

CFR part 1303 and lead content 

restrictions on children’s products in 

section 101 of the CPSIA. Section 

14(a)(2) of the CPSA requires that 

children’s products be tested by a third 

party conformity assessment body 

before a children’s product can be 

certified. Therefore, component part 

tests used as a basis for issuing a 

children’s product certificate must also 

be conducted by a third party 

conformity assessment body. 

GCCs, issued pursuant to section 

14(a)(1) of the CPSA, do not require 

third party conformity assessment body 

testing, and therefore, reliance on such 

certificates is not permissible as the 

basis for issuing a Children’s Product 

Certificate. However, GCCs of 

component parts can be used as a basis 

for issuing a finished product certificate 

for a non-children’s product. 

Part 1109 is intended to give 

businesses the flexibility to use 

component part tests in whole, or in 

part, as the basis for issuing a finished 

product certificate. Businesses must 

determine whether component part 

testing is allowed or required, based on 

any applicable standard or test method, 

and they also must decide whether to 

use component part testing when 

certifying finished products. 

(Comment 31)—One commenter 

noted that the proposed rule seemed to 

address paints as if they were 

components of finished products. The 

commenter noted that components of 

finished products, such as fasteners, are 

often painted, and it would be useful to 

clarify whether the rule would apply to 

certifiers of components, as well as to 

certifiers of finished products. 

(Response 31)—By noting in 

§ 1109.4(b) of the final rule that ‘‘* * * 

a component part means any part of a 

consumer product * * *,’’ it is possible 

that a component part may be both a 

component part of a finished product 

and a component part of another 

component part. Paints are component 

parts, in addition to being subject to 16 

CFR part 1303. The rule applies to 

component part certifiers and finished 

product certifiers. 

(Comment 32)—A commenter 

requested that we specifically approve 

testing and certification to the lead paint 

standard of finished product 

components prior to their incorporation 

into the finished product because 

specific allowance of this finished 

component testing method for 

children’s products would enhance the 

likelihood that such testing would be 

embraced by importers, retailers, and 

private labelers. 

(Response 32)—The commenter 

correctly interpreted that the proposed 

rule would allow paints used in 

products subject to a rule to be tested as 

component parts without the need to be 

tested on the finished product. 

Specifically, ‘‘paint’’ clearly fits into the 

definition of ‘‘component part’’ in 

§ 1109.4(b) of the final rule. On our own 

initiative, we shortened the name of 

§ 1109.11 to ‘‘Component part testing for 

paint.’’ The phrase ‘‘and other surface 

coatings’’ was removed because the 

word ‘‘paint’’ is a defined term in the 

rule, at § 1109.4(j), which includes other 

surface coatings. 

a. Proposed § 1109.11(a)—Generally 

Proposed § 1109.11(a) would state 

that the Commission will permit 

certification of a product as being in 

compliance with the lead paint limit of 

part 1303 of this chapter or the content 

limits for paint on toys of section 4.3.4.2 

of ASTM F 963 if, for each paint used 

on the product, the party that certifies 

the product either has obtained a test 

report or holds a paint certificate, as 

described below, and meets the 

requirements in §§ 1109.11(a)(1) 

through (a)(3). 

We received no comments on 

proposed § 1109.11(a). On our own 

initiative, we finalized this section with 

several changes. First, we revised the 

language to include both finished 

products and component parts, 

consistent with changes throughout the 

rule to incorporate finished product 

testing or certification, as discussed in 

response to Comment 1 in section II.B.1 

of this preamble. Second, we amended 

the reference to section 4.3.5.2 of ASTM 

F 963 to include ‘‘ASTM F 963–08 or 

any successor standard of this section 

accepted by the Commission * * * .’’ 

This revision is consistent with a 

change made to the definition of ‘‘paint’’ 

in § 1109.4(j) of the final rule, and 

allows us to rely on revised versions of 

ASTM F 963 without revising part 1109 

whenever we accept a successor 

standard to any particular version of 

ASTM F 963. Finally, we deleted the 

phrase which required that for each 

paint used on the product, the ‘‘party 

that certifies the product either has 

obtained a test report or holds a paint 

certificate as described below’’ and 

replaced it with a statement that the 

requirements ‘‘in § 1109.5 and 

paragraph (b) of this section are met.’’ 

Although the deleted language is an 

accurate statement of the Commission’s 

expectation, it is duplicative of the 

general requirements already set forth in 

§ 1109.5. Throughout Subpart B we 

simplified the rule by removing 

language that is duplicative of general 

requirements for component part 

testing, and we replaced such language 

with a requirement that the general 

requirements in § 1109.5 be met, in 

addition to any more specific 

requirements set forth in Subpart B. 

(1) Proposed § 1109.11(a)(1) 

Because compliance of a paint to its 

content limits is a function of the paint 

and not the component part or substrate 

to which it is applied, proposed 

§ 1109.11(a)(1) (renumbered to 

§ 1109.11(b)(1) in the final rule) would 

require that all testing be performed on 

dry paint that is scraped off of a 

substrate for testing (the substrate used 

need not be of the same material as the 

material used in the finished product or 

have the same shape or other 

characteristics as the part of the finished 

product to which the paint will be 

applied). 

(Comment 33)—One commenter 

urged us to make an explicit statement 

allowing the use of spray sampling/ 

multiple stamping (where one sample of 

a product is painted or stamped with a 

surface coating over a larger area than 

on the actual product in order to ensure 

enough paint or other surface coating is 

available for testing) as an alternative to 

requiring the destruction of many 

samples to obtain a sufficient quantity 

of a paint or surface coating for testing 

when the paint appears only on a small 

part of the product. 

(Response 33)—As explained in 

proposed § 1109.11(a)(1) and (2) 

(renumbered to § 1109.11(b)(1) and (2) 

in the final rule), paint to be tested can 

be applied to any suitable substrate. The 

substrate need not be of the same 

material as the material used in the 

finished product. Further, a larger 

quantity of paint may be tested than the 

quantity used on the finished product. 

The commenter seemed to believe that 

the paint must be scraped off an 

example of the finished product; 

however, this is not the case. The 

techniques described by the commenter 

are acceptable under the rule, but other 

techniques also could be used. 

However, on our own initiative, we 

moved § 1109.11(a)(1) to § 1109.11(b)(1) 

in the final rule, and added explanatory 

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language regarding the two 

requirements for component part testing 

of paint in this new section (b) as 

follows: ‘‘(b) Requirement. For each 

paint used on the product: * * *’’ We 

also removed the text in brackets 

regarding the fact that ‘‘the substrate 

used need not be of the same material 

as the material used in the finished 

product * * *’’ and made this 

information a separate sentence. We 

made these changes simply for 

formatting purposes, and we do not 

consider them to be substantive 

changes. Finally, on our own initiative, 

we clarified in § 1109.11(b)(1) that it is 

unnecessary to scrape dried paint off of 

a substrate for testing when using 

Energy Dispersive X–Ray Fluorescence 

Spectrometry as described in the ASTM 

F 2583–10 test method to test for lead 

in paint. Although the paint must be 

dry, it does not need to be scraped off 

of a substrate when using this 

technology. We made this change to 

acknowledge that on April 5, 2011, we 

published in the Federal Register, a 

Notice of Requirements for accreditation 

of third party conformity assessment 

bodies for lead in paint (76 FR 18645). 

In that Notice of Requirements, the use 

of ASTM F2583–10, ‘‘Standard Test 

Method for Determination of Lead in 

Paint Layers and Similar Coatings or in 

Substrates and Homogeneous Materials 

by Energy Dispersive X–Ray 

Fluorescence Spectrometry Using 

Multiple Monochromatic Excitation 

Beams,’’ is allowed for testing the lead 

content in paint. 

(2) Proposed § 1109.11(a)(2) 

Proposed § 1109.11(a)(2) (renumbered 

to § 1109.11(b)(2) in the final rule) 

would provide that the tested paint 

must be identical in all material respects 

to that used in production of the 

consumer product. The paint samples 

tested must have the same composition 

as the paint used on the finished 

product. However, a larger quantity of 

the paint may be tested than is used on 

the consumer product, in order to 

generate a sufficient sample size. The 

paint may be supplied to the testing 

laboratory either in liquid form or in the 

form of a dried film of the paint on any 

suitable substrate. 

We received one comment related to 

proposed § 1109.11(a)(2), which we 

have summarized above in Comment 33. 

Additionally, on our own initiative, we 

renumbered proposed § 1109.11(a)(2) to 

§ 1109.11(b)(2) in the final rule. We also 

revised the last sentence to state that 

paint may be supplied to the testing 

laboratory ‘‘for testing’’ either in liquid 

form or in the form of a dried film of 

the paint on any suitable substrate. This 

revision is intended to clarify the reason 

why such paint is supplied to a testing 

laboratory. 

(3) Proposed § 1109.11(a)(3) 

Proposed § 1109.11(a)(3) would 

require that the documentation required 

by a testing party and the certificate 

required of finished product certifiers 

under section 14(a) of the CPSA identify 

each paint tested by color, location, 

specification number or other 

characteristic, the manufacturer of the 

paint, and the supplier of the paint (if 

different). 

(Comment 34)—One commenter 

stated that proposed § 1109.11(a)(3) 

would specify that the documentation 

required by a testing party and the 

certificate required by certifiers shall 

identify each paint tested by location 

and formulation. The commenter stated 

that paint formulations involve 

commercial and technical secrets and 

that the requirement to identify paint 

formulations is beyond the scope of the 

CPSIA. The commenter suggested 

deleting the requirement to identify 

paint formulations. 

(Response 34)—The commenter has 

misinterpreted proposed § 1109.11(a)(3), 

which would require that 

documentation identify each paint 

tested ‘‘by color, location, formulation, 

or other characteristic’’ (emphasis 

added). Nevertheless, we deleted this 

section in the final rule because it is 

duplicative of the general requirement 

for all products in § 1109.5(g)(1). 

Section 1109.5(g)(1) of the final rule 

requires identification of the component 

part to which the test report or 

certificate applies. Any characteristic 

sufficient to identify the paint that was 

tested will satisfy this requirement (e.g., 

‘‘red paint on coat of doll,’’ or ‘‘red paint 

#1234’’). The final rule does not require 

a certifier to provide formulation data. 

No change has been made to the final 

rule in response to this comment. 

(Comment 35)—One commenter 

stated that the requirement in proposed 

§ 1109.11(a)(3) for the documentation to 

identify the location on the finished 

product where each paint is used would 

be too difficult to identify each 

accurately before its use. The 

commenter suggested deleting this 

requirement or making it voluntary. 

(Response 35)—As noted above in the 

response to Comment 34, we deleted 

proposed § 1109.11(a)(3) from the final 

rule. Section 1109.5(g)(1) of the final 

rule requires that a certifier or testing 

party identify the component part 

tested. This includes paint. This 

identification may be, for example, by 

color, location, formulation, or other 

characteristic. At least one characteristic 

is necessary to identify which paint 

component part on the product is tested 

or certified. The final rule does not 

require specifying more than one of 

these characteristics, but certifiers and 

testing parties should do so if it is 

necessary to identify the applicable 

paint. Therefore, the documentation 

does not necessarily have to specify the 

location of the paint on the part. 

Further, when the test report or 

certification is solely for the paint, as 

opposed to a component part with paint 

applied to it, the location where the 

paint ultimately might be used is 

irrelevant to the paint’s certification. 

b. Proposed § 1109.11(b)—Test Reports 

Proposed § 1109.11(b) would state 

that, as part of its basis for certification 

of a children’s product to the lead paint 

limit or other paint limit, a certifier may 

rely on a test report showing passing 

test results for one or more paints used 

on the product, based on testing 

performed by a third party conformity 

assessment body. The manufacturer of 

the children’s product must ensure that 

each paint sample sent to a third party 

conformity assessment body is identical 

in all material respects to the paint used 

on the finished product. Test reports 

must identify each paint tested, by 

color, formulation, or other 

characteristic, and identify the 

manufacturer of the paint and the 

supplier of the paint (if different). 

We received no comments on 

proposed § 1109.11(b). However, on our 

own initiative we deleted this section 

from the final rule because it is 

duplicative of other regulations 

regarding paint, as well as the general 

requirements for component part testing 

or certification that have already been 

set forth in § 1109.5. For example, the 

fact that paint on a children’s product 

must meet the lead paint limit is already 

set forth in 16 CFR part 1303. 

Additional limits on heavy metals in 

paint for children’s products are set 

forth in section 4.3.5.2 of ASTM F 963. 

The fact that a children’s product must 

be tested by a third party conformity 

assessment body is required by section 

14(a)(2) of the CPSA and our regulation 

at 16 CFR part 1107, published 

elsewhere in this Federal Register. The 

fact that component part samples tested 

must be identical in all material respects 

to the component parts used in the 

finished product is required by 

§ 1109.5(a)(2) of the final rule, as well as 

§ 1109.11(b)(2). Finally, identification of 

the paint tested is required by 

§ 1109.5(g)(1) of the final rule. 

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c. Proposed § 1109.11(c)—Paint 

Certificates 

(1) Proposed § 1109.11(c)(1)—Children’s 

Products 

Proposed § 1109.11(c)(1) would state 

that, as part of its basis for certification 

of a children’s product to the lead paint 

limit or other paint limit, a component 

part certifier or finished product 

certifier may rely on a certificate from 

another person certifying that paint 

complies with the applicable limit. The 

paint certificate for a children’s product 

must be based on testing by a third party 

conformity assessment body of samples 

of paints that are identical in all 

material respects to the paints used on 

the finished product. The paint 

certificate must identify all test reports 

underlying the certification. 

We received no comments on 

proposed § 1109.11(c)(1). However, on 

our own initiative, we deleted this 

section from the final rule because the 

requirements are duplicative of other 

regulations and the general 

requirements for component part testing 

or certification in § 1109.5 of the final 

rule. For example, the fact that a 

finished product certifier can rely on 

component part testing or certification 

is duplicative of § 1109.5(a) and 

1109.5(i)(1) of the final rule. The fact 

that a Children’s Product Certificate 

must be based on testing by a third party 

conformity assessment body is 

duplicative of section 14(a)(2) of the 

CPSA and our regulation at 16 CFR part 

1107, published elsewhere in this 

Federal Register. The fact that 

component part samples tested must be 

identical in all material respects to the 

component parts used in the finished 

product is required by § 1109.5(a)(2) of 

the final rule, as well as § 1109.11(b)(2). 

Finally, as described in response to 

Comment 21 in section II.C.5.h.(3) of 

this preamble, content requirements for 

certificates have been removed from the 

final rule. Certificate content 

requirements are set forth in section 

14(g) of the CPSA and our regulation at 

16 CFR part 1110. 

(2) Proposed § 1109.11(c)(2)—NonChildren’s products 

Proposed § 1109.11(c)(2) would 

provide that for non-children’s products 

that are subject to lead paint limits 

(such as certain furniture items), a 

finished product certifier may base its 

certification to the lead paint limit on its 

own testing of each paint used on the 

product, on testing by any third party 

conformity assessment body, on paint 

certification(s) from any person, or on a 

combination of these methods. 

We received no comments on 

proposed § 1109.11(c)(2). On our own 

initiative, however, we deleted this 

section from the final rule because it is 

a restatement of the law on nonchildren’s products and the general 

requirements for component part testing 

or certification in § 1109.5 of the final 

rule. Moreover, pursuant to § 1109.5(a) 

of the final rule, a finished product 

certifier may rely on component part 

testing to certify its product. 

(3) Proposed § 1109.11(c)(3)— 

Traceability 

Proposed § 1109.11(c)(3) would 

provide that any finished product 

certifier who certifies a children’s 

product as complying with the lead 

paint limit or other paint limit should 

be able to trace each batch of paint that 

is used on the product to the supplier 

and, if different, the paint manufacturer. 

(Comment 36)—A commenter stated 

that our position on the testing of paint 

(Traceability, proposed § 1109.11(c)(3)), 

should not be interpreted literally, so 

long as the manufacturer can show the 

source of that batch, consistent with the 

more general definition and requirement 

of traceability. 

(Response 36)—We agree with the 

commenter. Similar to other component 

parts, the traceability of paint to the lead 

content requirements or other rules 

should extend to the level at which the 

paint was tested for compliance. We 

amended § 1109.4(m) to define 

traceability to extend to the component 

part of the product tested. In the 

commenter’s example, if the paint was 

tested at the batch level (as opposed to 

the constituent components of the 

paint), the traceability extends to the 

batch. We also deleted the traceability 

requirement specifically for paint in 

proposed § 1109.11(c)(3), because it was 

duplicative of the traceability 

requirements in §§ 1109.4(m) and 

1109.5(f) in the final rule, which applies 

to all products and component parts, 

including paint. 

(Comment 37)—One commenter 

sought clarification of the traceability 

requirement for testing paint (proposed 

§ 1109.11(c)(3)). The commenter stated 

that requiring a finished product 

manufacturer to trace a batch of paint to 

its source would be reasonable. 

However, the commenter added, if the 

intent of the provision is to require the 

manufacturer to be able to trace back 

from a particular item of a finished 

product to the batch of paint used on 

that product, then the requirement 

would be onerous and serve no clear 

purpose. 

(Response 37)—We deleted 

§ 1109.11(c)(3) from the final rule 

because it is duplicative of the general 

traceability requirements that apply to 

all component parts in §§ 1109.4(m) and 

1109.5(f) of the final rule. One reason 

for the traceability requirement is to be 

able to identify the testing party and the 

third party conformity assessment body 

if a noncomplying paint is found on a 

children’s product distributed in 

commerce. Traceability from the 

finished product to the party who tested 

the paint is required to help determine 

why the testing and certification scheme 

embodied in parts 1107 and 1109 failed 

to prevent the use of a noncomplying 

paint on a children’s product. Moreover, 

if a noncompliant paint is found, 

traceability information can help us and 

a manufacturer to determine the scope 

of any resulting recall. 

(4) Proposed § 1109.11(c)(4)— 

Prevention of Contamination 

Subsequent to Testing 

Proposed § 1109.11(c)(4) would 

require that the finished product 

manufacturer must ensure that paint 

meeting the applicable limits when 

tested and certified is not contaminated 

later with lead from other sources before 

or during application to the product. 

We received no comments regarding 

this section. However, on our own 

initiative, we deleted § 1109.11(c)(4) 

from the final rule because it is 

duplicative of § 1109.5(b) on test result 

integrity that applies to all certifiers and 

testing parties. 

2. Proposed § 1109.12—Component Part 

Testing for Lead Content of Children’s 

Products 

On August 14, 2011, the general limit 

for lead in any accessible part of a 

children’s product was reduced from 

300 parts per million (‘‘ppm’’) to 100 

ppm (see section 101(a)(2)(B) of the 

CPSIA). On August 12, 2011, the 

President signed H.R. 2715 into law. 

The new law revised section 101 of the 

CPSIA to state that the lead content 

limits apply only to children’s products 

that are manufactured after the effective 

date of each limit; thus, the 100 ppm 

lead content limit applies only to 

children’s products manufactured after 

August 14, 2011. 

Currently, testing and certification is 

required for metal component parts of 

children’s metal jewelry. 73 FR 78331 

(December 22, 2008); 74 FR 6396 

(February 9, 2009). The certification 

must be based on testing by a third party 

conformity assessment body whose 

accreditation to test for lead in 

children’s metal jewelry has been 

accepted by the CPSC. Such entities are 

listed on the CPSC’s Web site (see 

http://www.cpsc.gov/cgi–bin/ 

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labapplist.aspx). If the children’s metal 

jewelry bears paint, it must also be 

certified as in compliance with the 90 

ppm lead paint limit in 16 CFR part 

1303. The requirement for testing and 

certification of other children’s products 

for lead content (except paint) currently 

is stayed until December 31, 2011. 

Children’s products, other than 

children’s metal jewelry, or products 

made of materials which, by their 

nature, will never exceed the lead 

content limits, must be certified as being 

in compliance with the 100 ppm lead 

content limit, only if they are 

manufactured after December 30, 2011, 

and only as to accessible parts that are 

not subject to a Commission 

determination, as described in 16 CFR 

1500.91. Pursuant to section 14(a)(2) of 

the CPSA, the certification must be 

based on testing by a third party 

conformity assessment body whose 

accreditation to test for lead in 

children’s products has been accepted 

by the CPSC. 

This section of the final rule is based 

on our previously published 

enforcement policy for testing products 

for compliance with lead limits. 74 FR 

68593, 68595 (December 28, 2009). 

Section 1109.12 on component part 

testing for lead content of children’s 

products is intended to supersede the 

enforcement policy with regard to 

component part testing of lead content 

in children’s products contained in 

section V of the enforcement policy. 

We received several general 

comments, summarized below, about 

component part testing for lead content 

in children’s products that do not relate 

directly to a proposed section of the 

rule. 

(Comment 38)—One commenter 

requested that we make an explicit 

statement about component part testing, 

given that certain types of component 

part materials are exempt from testing 

and certification requirements. The 

commenter is concerned that, without 

specific language, the final customer 

will not accept component testing if 

exempt parts are not tested. The 

commenter placed the comment on the 

docket for the proposed 16 CFR part 

1107 rule, and recommended revising 

proposed § 1107.20(c) as follows: 

(c) Except where otherwise specified by a 

children’s product safety rule, a 

manufacturer may substitute component part 

testing for complete product testing pursuant 

to 16 CFR [part] 1109 if the component part, 

without the remainder of the finished 

product, is sufficient to determine 

compliance for the entire product. 

Component part testing can be used to 

substantiate compliance for those children’s 

products where part of the product has been 

exempted from testing pursuant to Section 

1500.91. (Italics indicate proposed language.) 

(Response 38)—This comment 

concerns the component part testing 

rule; accordingly, we are responding to 

this comment here. If the suggested 

change were to be made, the appropriate 

place to make the change would be to 

the component part testing for lead 

content section, proposed 16 CFR 

1109.12. We agree that component part 

testing is appropriate to substantiate 

compliance for children’s products in 

which part of the product has been 

exempted for testing. However, we do 

not believe that it is necessary to revise 

the final rule to add the language 

suggested by the commenter. The 

commenter’s suggested language would 

be duplicative of what already is stated 

in other rules on exceptions from 

testing. Lead content, in particular, must 

be tested part-by-part under section 101 

of the CPSIA. Because the statute and 

the regulations already specify that 

exempted materials do not require 

testing, we decline to repeat those 

exemptions in part 1109. 

(Comment 39)—One commenter 

stated that the proposed rule on 

component part testing was stricter than 

necessary and that Congress did not 

require such a complicated regulatory 

scheme. The commenter stated that the 

CPSC’s recall data from 1999–2010, 

show only one death and three 

purported injuries from lead. The 

commenter further states that incidents 

of fraud in testing are infrequent and are 

already addressed by other statutes. The 

commenter also mentioned its own 

record of a single recall of a total of 130 

pieces since 1985. 

(Response 39)—Section 14(a)(2) of the 

CPSA requires manufactures of 

children’s product subject to an 

applicable children’s product safety rule 

to submit sufficient samples to a CPSCaccepted third party conformity 

assessment body for testing. Based on 

such third party testing, a children’s 

product manufacturer must issue a 

certificate that such product complies 

with the applicable children’s product 

safety rules. Section 14(d)(2)(B) of the 

CPSA requires the Commission, by 

regulation, to establish protocols and 

standards for ensuring that a children’s 

product tested for compliance with an 

applicable children’s product safety rule 

is subject to test periodically and when 

there has been a material change in the 

product’s design or manufacturing 

process, including the sourcing of 

component parts. Additionally, section 

101 of the CPSIA establishes new lead 

content limits for children’s products, 

and it lowers the lead paint requirement 

to 90 ppm. 

Our implementation of the statute for 

component part testing is intended to 

reduce the statutorily required testing 

burden, by allowing considerable 

flexibility for component part suppliers 

and finished product certifiers. 

Component part suppliers may choose 

voluntarily to have their component 

parts tested or certified. Finished 

product suppliers may use voluntarily a 

combination of component part 

certificates, component part test reports, 

or test reports or certificates of the 

finished product to show compliance 

with the applicable product safety rules. 

Component part testing may be used 

voluntarily to reduce the economic 

burden associated with testing and 

certification, by taking advantage of 

component part tests that can be used 

for multiple products. Because the 

CPSA requires third party testing of 

children’s products, and because the 

commenter did not suggest ways in 

which the rule on component part 

testing could be made less strict and 

still comply with the law, nor did the 

commenter provide any explanation on 

how a regulation based on risk 

assessment would comply with the 

CPSIA, we have no basis to revise the 

final rule in response to this comment. 

(Comment 40)—One commenter 

suggested that, because there have not 

been recalls or reports of illness or 

injury due to the presence of lead in 

ordinary books, they should be 

excluded from the requirements of the 

CPSIA. The commenter added that there 

should be a much more reduced testing 

regimen for books and other products 

that have a very low potential for risk, 

followed by their removal from the 

testing requirement altogether. 

(Response 40)—Pursuant to section 

14(i)(5)(A)(i) of the CPSA, as amended 

by H.R. 2715, third party certification 

testing no longer applies to ordinary 

books or to ordinary paper-based 

printed materials. The exception does 

not apply to non-paper components like 

metal or plastic parts, or to accessories 

that are not part of the binding and 

finishing materials. The exception also 

does not apply to books with inherent 

play value, books designed or intended 

for a child 3 years of age or younger, and 

does not include any toy or other article 

that is not a book that is sold or 

packaged with an ordinary book. Thus, 

given how H.R. 2715 has amended 

section 14(i) of the CPSA, it is 

unnecessary for us to address the 

commenter’s issues and concerns. 

(Comment 41)—One commenter 

stated that it cost $3,700 for the third 

party testing required for one of his 

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products. The commenter also said the 

90 ppm lead concentration limit is not 

realistic. The standard aluminum diecast alloy, A380, allows a lead content 

of up to 500 parts per million, the 

commenter observed. A380 is used for 

cooking and baking ware, and according 

to the commenter, it does not make 

sense that a child cannot play with a 

die-cast toy but can eat food baked in a 

die-cast cake pan. The commenter 

asserted that because his facility is ISO 

9001:2008 compliant, it documents all 

receipts of raw materials, and conducts 

a metal analysis for each production run 

with a spectrometer, there is no need for 

a third party test. 

(Response 41)—The CPSIA altered the 

lead concentration limit in paint and 

other surface coatings to 90 ppm (16 

CFR part 1303). Such limit does not 

apply to lead content in children’s 

products. As of August 14, 2011, section 

101 of the CPSIA specifies a maximum 

limit of 100 ppm lead content in 

children’s products; it does not impose 

a comparable limit on non-children’s 

products (such as the cooking and 

baking ware named by the commenter). 

The 100 ppm limit is set by statute and 

is not based on a hazard analysis of the 

particular product under consideration. 

Section 14(a) of the CPSA states that 

manufacturers of children’s products 

must have third party conformity 

assessment body testing to provide a 

basis for issuing a Children’s Product 

Certificate. The CPSA contains no 

provision for excluding products made 

by companies that are ISO 9001:2008 

compliant, that document their receipts, 

or that use first party testing techniques 

during production. H.R. 2715 

establishes a process by which a 

functional purpose exception to the lead 

content limit may be granted to a 

product, class of product, material, or 

component part if the Commission 

makes certain determinations, after a 

notice and hearing. To date, we have not 

granted any functional purpose 

exceptions. Because the statute is clear 

on the lead limits and the requirement 

for third party testing, and in the 

absence of functional exceptions, we 

decline to revise the rule based on this 

comment. 

a. Proposed § 1109.12(a)—Generally 

Proposed § 1109.12(a) would explain 

that a certifier may rely on component 

part testing of each accessible part of a 

children’s product for lead content, 

where such component part testing is 

performed by a third party conformity 

assessment body, provided that: 

(1) The determination of which, if 

any, parts are inaccessible pursuant to 

section 101(b)(2) of the CPSIA is based 

on an evaluation of the finished 

product; and 

(2) For each accessible component 

part of the product, the certifier either 

has a component part test report or a 

component part certificate. 

We received no comments on 

proposed § 1109.12(a). On our own 

initiative, however, we finalized this 

section with several revisions. Section 

1109.12 now states: 

A certifier may rely on component part 

testing of each accessible component part of 

a children’s product for lead content, where 

such component part testing is performed by 

a third party conformity assessment body, 

provided that the requirements in § 1109.5 

are met, and the determination of which, if 

any, parts are inaccessible pursuant to 

section 101(b)(2) of the Consumer Product 

Safety Improvement Act of 2008 (CPSIA) and 

part 1500.87 of this chapter is based on an 

evaluation of the finished product. 

We do not consider the revisions to be 

substantive; they are instead intended to 

remove statements that are unnecessary 

in this rule on component part testing, 

and to add helpful citations to other 

relevant statutes and regulations. We 

deleted proposed § 1109.12(a)(2) from 

the final rule because it is duplicative of 

the general requirements for component 

part testing set forth in §§ 1109.5(g) 

(documentation requirements) and (i) 

(requirements for finished product 

certifiers) of the final rule. We also 

added a citation to § 1109.5 to clarify 

that all of the general requirements in 

that section for component part testing 

must be met for lead content component 

part testing. Proposed § 1109.12(a) was 

renumbered to § 1109.12, and we moved 

the language that was in proposed 

§ 1109.12(a)(1) into § 1109.12. This 

formatting change was done to 

streamline the rule; by deleting 

subparagraph (a)(2), it was no longer 

necessary to number the remaining 

paragraphs as paragraph (a) or 

subparagraph (a)(1). Finally, we 

incorporated citation references to both 

the CPSIA and our regulation at 16 CFR 

1500.87, which discuss the 

determination of inaccessible parts of a 

children’s product, to clarify how 

testing parties and certifiers should 

determine what is an inaccessible part 

of a finished product for lead content 

testing purposes. 

b. Proposed § 1109.12(b)—Component 

Part Test Reports 

Proposed § 1109.12(b) would state 

that, as part of its basis for certification 

of a children’s product to the lead 

content limit, a finished product 

certifier could rely on a test report 

showing passing test results for one or 

more component parts used on the 

product, based on testing by a third 

party conformity assessment body. The 

proposal would require the component 

part test reports to identify each 

component part tested, by part number 

or other specification, as well as the 

manufacturer of the component part and 

the supplier (if different). 

We received no comments on 

proposed § 1109.12(b). However, on our 

own initiative we deleted this section 

from the final rule because it is 

duplicative of other regulations and the 

general requirements for component 

part testing in § 1109.5. For example, 

the fact that a certification to the lead 

content limit for children’s products 

must be based on testing conducted by 

a third party conformity assessment 

body is already a requirement pursuant 

to section 14(a)(2) of the CPSA and part 

1107 of this chapter, published 

elsewhere in this Federal Register. The 

fact that a finished product certifier can 

rely on passing test reports or a 

certification of one or more component 

parts of a consumer product to certify a 

finished product is provided for in 

§ 1109.5(a) and 1109.5(i) of the final 

rule. Finally, documentation 

requirements for reliance on test reports 

or certifications, including product 

identification, are set forth in § 1109.5(g) 

of the final rule. 

c. Proposed § 1109.12(c)—Component 

Part Certificates 

Proposed § 1109.12(c) would state 

that, as part of its basis for certification 

of a children’s product to the lead 

content limit, a finished product 

certifier could rely on a certificate from 

another person certifying that a 

component part complies with the lead 

limit. The component part certificate 

would have to be based on testing by a 

third party conformity assessment body 

of a sample identical in all material 

respects to the component part(s) used 

in the finished product. The certificate 

pertaining to the component part must 

identify all test reports underlying the 

certification consistent with section 14 

of the CPSA. 

We received no comments on 

proposed § 1109.12(c). However, on our 

own initiative, we deleted this section 

from the final rule because it is 

duplicative of other regulations and the 

general requirements for component 

part testing in § 1109.5. For example, 

the fact that a finished product certifier 

can rely on a certification of one or more 

component parts of a consumer product 

to certify a finished product is provided 

for in § 1109.5(a) and 1109.5(i) of the 

final rule. The fact that a certification to 

the lead content limit for children’s 

products must be based on testing 

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3Untreated/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 nor adulterated 

with the addition of materials that could result in 

the addition of phthalates into the product or 

material. 

conducted by a third party conformity 

assessment body is already a 

requirement pursuant to section 14(a)(2) 

of the CPSA and part 1107, published 

elsewhere in this Federal Register. The 

requirement that sample component 

parts tested on which certification is 

based must be identical in all material 

respects to the component part(s) used 

in the finished product is required by 

section 14(a)(2) of the CPSA and 

§ 1109.5(a)(2) of the final rule. Finally, 

documentation requirements for 

reliance on certifications are set forth in 

§ 1109.5(g) of the final rule. As 

described in response to Comment 21 in 

section II.C.5.h.(3) of this preamble, all 

requirements for the contents of 

certificates have been deleted from the 

final rule. All certificate content 

requirements are set forth in section 

14(g) of the CPSA and our regulation at 

16 CFR part 1110. 

d. Proposed § 1109.12(d)—Certificates 

for the Finished Product 

Proposed § 1109.12(d) would require 

the certificate accompanying the 

children’s product to list each 

component part tested, by part number 

or other specification, and for each such 

component part, identify the 

corresponding test report, paint 

certificate, or component part certificate 

on which certification for the finished 

product is based. 

We received several comments 

regarding certificate requirements for 

component parts, which are 

summarized in Comment 21 in section 

II.C.5.h.(3) of this preamble. As set forth 

in the response to Comment 21, we 

decided to delete all content 

requirements for certificates to avoid 

duplication in or inconsistency with the 

requirements in 16 CFR part 1110. 

Accordingly, we deleted proposed 

§ 1109.12(d) from the final rule. All 

certificate content requirements are set 

forth in section 14(g) of the CPSA and 

our regulation at 16 CFR part 1110. 

3. Proposed § 1109.13—Component Part 

Testing for Phthalates in Children’s 

Toys and Child Care Articles 

Section 108 of the CPSIA permanently 

prohibits the sale of any children’s toy 

or child care article containing 

concentrations of more than 0.1 percent 

of three specified phthalates (di-(2- 

ethylhexyl) phthalate, dibutyl phthalate, 

or benzyl butyl phthalate). Section 108 

of the CPSIA also prohibits, on an 

interim basis, the sale of any children’s 

toy that can be placed in a child’s 

mouth or child care article containing 

concentrations of more than 0.1 percent 

of three additional phthalates 

(diisononyl phthalate, diisodecyl 

phthalate, or di-n-octyl phthalate), 

pending the recommendation of a 

Chronic Hazard Advisory Panel. 

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.3 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). 

On August 12, 2011, the President 

signed H.R. 2715 into law. Among other 

things, H.R. 2715 amended section 108 

of the CPSIA by adding a new section 

108(d)(1) of the CPSIA which states, in 

part, that the phthalate content limits 

‘‘shall not apply to any component part 

of a children’s toy or child care article 

that is not accessible to a child through 

normal and reasonably foreseeable use 

and abuse of such product, as 

determined by the Commission.’’ 

Pursuant to section 108(d)(3) of the 

CPSIA, we must promulgate a rule 

within one year of enactment of this 

revision to provide guidance on 

inaccessibility. 

Phthalate content limits outlined in 

section 108 of the CPSIA became 

effective on February 10, 2009. 

However, the requirement for testing 

and certification for the phthalate 

content requirements is stayed until 

December 31, 2011 (76 FR 49288). 

Accordingly, third party testing and 

certification requirements for products 

subject to the phthalates content limits 

apply to products manufactured on or 

after January 1, 2012. 

a. Proposed § 1109.13(a)—Generally 

Proposed § 1109.13(a) would state 

that a finished product certifier may rely 

on component part testing of 

appropriate component parts of a 

children’s toy or child care article for 

phthalate content if the certifier is 

provided with a copy of the original test 

results obtained from the third party 

conformity assessment body or a 

component part certificate. 

We received no comments directly 

related to proposed § 1109.13(a). On our 

own initiative, we have finalized this 

section with two changes. We 

broadened the first sentence to clarify 

that any certifier, not just a finished 

product certifier, can rely on component 

part testing of children’s toys or child 

care articles for phthalate content. We 

also amended the end of the sentence 

that required a finished product certifier 

to be provided a copy of the original test 

results obtained from a third party 

conformity assessment body. This 

statement is duplicative of the 

documentation requirements already set 

forth in § 1109.5(g) of the final rule. 

Accordingly, this section now states that 

a certifier can rely on component part 

testing of appropriate component parts 

of a children’s toy or child care article 

for phthalates provided that the 

requirements for component part testing 

in § 1109.5 are met. 

b. Proposed § 1109.13(b)—Component 

Part Test Reports 

Proposed § 1109.13(b) would state 

that, as part of its basis for certification 

of a children’s product to the phthalate 

content limit, a finished product 

certifier may rely on a test report 

showing passing test results for one or 

more component parts used on the 

product, based on testing by a 

recognized third party conformity 

assessment body. Component part test 

reports must identify each component 

part tested, by part number or other 

specification, and the component part’s 

supplier, and if different, the 

component part’s manufacturer. 

We received no comments on 

proposed § 1109.13(b). However, on our 

own initiative, we deleted this section 

from the final rule because it is 

duplicative of other regulations and the 

general requirements for component 

part testing in § 1109.5 of the final rule. 

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For example, the fact that a certification 

to the phthalate limit for children’s toys 

and child care articles must be based on 

testing conducted by a third party 

conformity assessment body is already a 

requirement pursuant to section 14(a)(2) 

of the CPSA and part 1107, published 

elsewhere in this Federal Register. The 

fact that a finished product certifier can 

rely on passing test reports or a 

certification of one or more component 

parts of a consumer product to certify a 

finished product is provided for in 

§ 1109.5(a) and 1109.5(i) of the final 

rule. Finally, documentation 

requirements for reliance on test reports 

or certifications are already set forth in 

§ 1109.5(g) of the final rule. 

c. Proposed § 1109.13(c)—Component 

Part Certificates 

Proposed 1109.13(c) would state that, 

as part of its basis for certification of a 

children’s product to the phthalate 

content limit, a finished product 

certifier may rely on a certificate from 

another person certifying that a 

component part complies with the limit. 

The component part report must be 

based on testing by a third party 

conformity assessment body of a 

samples that are identical in all material 

respects to the component parts used in 

the finished product. The component 

part certificate must identify all test 

reports underlying the certification 

required by section 14 of the CPSA. Any 

person who certifies a children’s 

product as complying with the 

phthalate content limits must be able to 

trace each component part of the 

product to the component part’s 

supplier and, if different, the 

component part’s manufacturer. 

We received no comments on 

proposed § 1109.13(c). On our own 

initiative, however, we deleted this 

section from the final rule because it is 

duplicative of other regulations and the 

general requirements for component 

part testing in § 1109.5 of the final rule. 

For example, the fact that a finished 

product certifier can rely on a 

component part certificate for one or 

more component parts of a consumer 

product to certify a finished product is 

provided for in § 1109.5(a) and 1109.5(i) 

of the final rule. The fact that a 

certification to the phthalate limit for 

children’s toys and child care articles 

must be based on testing conducted by 

a third party conformity assessment 

body is already a requirement pursuant 

to section 14(a)(2) of the CPSA and part 

1107, published elsewhere in this 

Federal Register. The requirement that 

the tested component part samples on 

which certification is based must be 

identical in all material respects to the 

component part(s) used in the finished 

product is required by section 14(a)(2) 

of the CPSA and § 1109.5(a)(2) of the 

final rule. Documentation requirements 

for reliance on another party’s test 

reports or certificates are already set 

forth in § 1109.5(g) of the final rule. 

Further, as described in response to 

Comment 21 in section II.C.5.h.(3) of 

this preamble, we deleted all 

requirements for the contents of 

certificates from the final rule. All 

certificate content requirements are set 

forth in section 14(g) of the CPSA and 

our regulation at 16 CFR part 1110. 

Finally, traceability requirements for all 

component parts are set forth in 

§§ 1109.4(m) and 1109.5(f) of the final 

rule. 

d. Proposed § 1109.13(d)—Certificates 

for the Finished Product 

Proposed § 1109.13(d) would require 

that the certificate accompanying the 

children’s product list each component 

part required to be tested by part 

number or other specification and, for 

each such part, identify the 

corresponding test report from a third 

party conformity assessment body on 

which the product’s certification is 

based. 

We received several comments 

regarding certificate requirements for 

component parts, which are 

summarized in Comment 21 in section 

II.C.5.h.(3) of this preamble. As set forth 

in response to Comment 21, we decided 

to delete all content requirements for 

certificates, to avoid duplication or 

inconsistency in content requirements 

that have already been codified in 16 

CFR part 1110. Accordingly, we deleted 

proposed § 1109.13(d) from the final 

rule. All certificate content 

requirements are set forth in section 

14(g) of the CPSA and our regulation at 

16 CFR part 1110. 

4. Proposed § 1109.14—Composite Part 

Testing 

Composite part testing is where more 

than one paint or surface coating, or 

more than one component part, are 

combined and the combination is tested 

for the level of the target chemical. This 

can reduce the number of tests required 

or the number of products needed to 

obtain a sample large enough to test. 

a. Proposed § 1109.14(a)—Paint and 

Other Surface Coatings 

Proposed § 1109.14(a) (renumbered to 

§ 1109.21(a) in the final rule) would 

state that, in testing paints for 

compliance with chemical content 

limits, testing parties may test a 

combination of different paint samples 

so long as they follow procedures 

ensuring that no failure to comply with 

the lead limits will go undetected, as 

described in proposed § 1109.14(c). 

Testing and certification of composite 

paints must comply with proposed 

§ 1109.11. 

(Comment 42)—One commenter 

stated that many manufacturers have 

multiple paint colors that are mixed 

from base colors and that testing all 

marketed colors for lead, including 

custom colors, imposes a hardship. The 

commenter said that if each of the base 

colors complied with the 90 parts per 

million lead in paint standard, then all 

of the resulting colors would also meet 

the standard. The commenter stated that 

it would be useful if the final rule 

specifically allowed manufacturers to 

certify all of their paint colors on the 

basis of tests on the base colors only, 

provided that there is no contamination 

in the manufacturing process that could 

cause the paint colors to violate the 

standard. 

(Response 42)—The commenter is 

correct that if each base paint complies 

with the standard, then the final mixed 

paints will comply with the standard, 

provided there is no contamination in 

the manufacturing process. The 

constituent components of paint may be 

considered component parts. If each 

constituent component complies with 

the lead in paint standard, then any 

combination of those components will 

also be compliant. In the commenter’s 

example, if the constituent components 

are tested or certified, those test results 

and certificates can be used as the basis 

for issuing test reports or certificates for 

any paint that is a combination of those 

constituent components. 

To make this explicit, we added the 

following language to § 1109.21 (a): 

A certificate may be based on testing each 

component part of the paint according to the 

requirements of § 1109.11 and certifying that 

each component part in the mixture 

individually complies with the lead in paint 

limit or other paint limit. 

(Comment 43)—Some commenters 

noted that the effect of composite testing 

is to lower the acceptable lead-in-paint 

level in a component to a very small 

parts per million value. In other words, 

because composite testing considers all 

the lead in the composite to be in each 

component part of the composite, 

composite testing may not be useful 

where the component parts contain 

significant, but permissible, levels of 

lead. One commenter considered this a 

‘‘gamble.’’ The commenters 

recommended that the 90 ppm limit be 

applied to composite samples. One 

commenter based this recommendation 

on an argument that lead poses a 

minimal risk. 

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69572 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

(Response 43)—In composite testing, 

different paint samples are tested 

together. The test result received 

represents the total chemical content 

(lead in paint in this case) in the 

mixture. The total chemical content is 

completely allocated to each paint in 

proportion to the composite. If the 

computation of total lead divided by the 

weight of each paint does not exceed the 

lead-in-paint limits, then no paint in the 

mixture exceeds the lead content limits. 

If this computation exceeds the lead 

limits, it still may be possible that no 

paint in the composite individually 

exceeds the lead limit. This is especially 

likely if the paint with the largest 

proportion in the composite has some 

lead and there are only small amounts 

of other paints in the composite. 

For example, if different parts of a 

doll are painted with small amounts of 

different paints, the paints could be 

mixed together and tested for lead 

content. Assume the doll has three 

different paints, A, B, and C. Composite 

testing of a mixture of 50% A, 30% B, 

and 20% C are tested for lead content. 

The lead content of the composite is 40 

ppm. When the total lead content is 

applied to each paint, the potential 

concentration of lead in each paint is 

the measured amount divided by the 

percentage of the composite, or: 

• Potential lead content of paint A = 

40 ppm/50% or 80 ppm. 

• Potential lead content of paint B = 

40 ppm/30% or 133 ppm. 

• Potential lead content of paint C = 

40 ppm/20% or 200 ppm. 

In this example, because both paints B 

and C could potentially contain more 

than 90 ppm lead, more testing is 

needed to determine if this is actually 

the case. 

We disagree with the commenter’s 

characterization of composite testing as 

a ‘‘gamble.’’ Composite testing is a way 

to screen several paints quickly and less 

expensively than separate tests for each 

paint. If the composite does not meet 

the lead limits, then according to the 

rule, ‘‘* * * additional testing would be 

required to determine which of the 

paints, * * * if any, fail to meet the 

applicable limit.’’ The commenter’s 

suggestion that 90 ppm be retained for 

the composite sample would not 

comply with the law because the 

composite might have less than 90 ppm 

lead, but some of the individual paints 

(that could be used on products or 

component parts) in the composite 

might exceed 90 ppm. 

We have finalized proposed 

§ 1109.14(a) with several changes. On 

our own initiative, we created a new 

Subpart C for composite testing so that 

Subpart B is for regulations about 

specific consumer products or 

chemicals, and we renumbered this 

section to § 1109.21(a). We also 

shortened the title of this section to 

‘‘Paint’’ and removed ‘‘and other surface 

coatings,’’ because ‘‘paint’’ is a defined 

term in § 1109.4(j) that includes other 

surface coatings. In the first sentence, 

we broadened the reference to ‘‘testing 

parties’’ to include both ‘‘certifiers and 

testing parties,’’ to acknowledge and 

clarify that certifiers can also be testing 

parties. Also in the first sentence, we 

revised the phrase ‘‘parties may test a 

combination of different paint samples’’ 

to ‘‘parties may procure tests conducted 

on a combination of different paint 

samples’’ to clarify and emphasize that 

certifiers and testing parties for 

children’s products must procure tests 

from a third party conformity 

assessment body. As set forth in the 

response to Comment 42, we added a 

sentence to this section to clarify the use 

of composite testing of paints to certify 

a product. Finally, we clarified that the 

testing and certification of composite 

paints must meet the general 

requirements for component part testing 

set forth in § 1109.5 and the 

requirements for component part testing 

of paints set forth in § 1109.11. 

b. Proposed § 1109.14(b)—Component 

Parts 

Proposed § 1109.14(b) (renumbered to 

§ 1109.21(b) in the final rule) would 

allow a third party conformity 

assessment body to test a combination 

of component parts so long as the third 

party conformity assessment body 

follows procedures ensuring that no 

failure to comply with the content limits 

will go undetected, as described in 

proposed § 1109.14(c). Testing and 

certification of composite component 

parts for lead content must comply with 

§ 1109.12. Testing and certification of 

composite component parts for 

phthalate content must comply with 

§ 1109.13. 

We did not receive any comments on 

proposed § 1109.14(b). On our own 

initiative, however, we made several 

changes in finalizing this section, in 

addition to renumbering. We revised the 

opening sentence to clarify who is 

responsible for procuring third party 

testing to state that ‘‘[a] certifier or 

testing party may procure tests 

conducted on a combination of 

component parts for compliance with 

chemical content limits so long as test 

procedures are followed to ensure that 

no failure to comply with the content 

limits will go undetected * * *.’’ We 

removed ‘‘third party conformity 

assessment bodies’’ from the opening 

sentence and replaced it with ‘‘[a] 

certifier or testing party,’’ because this 

rule puts the responsibility for ensuring 

that a certification is based on 

appropriate test methods and protocols 

on the party procuring testing. 

Consistent with this fact, we 

emphasized that certifiers and testing 

parties may ‘‘procure tests,’’ because 

they must rely on a third party 

conformity assessment body to conduct 

certification testing for children’s 

products. We clarified that composite 

part testing for lead content must 

comply with the general rules for 

component part testing in § 1109.5 as 

well as the requirements for component 

part testing of lead content in § 1109.12. 

We made this same clarification for 

phthalate testing, such that composite 

part testing for phthalate content must 

comply with the general rules for 

component part testing in § 1109.5 as 

well as the requirements for component 

part testing of phthalate content in 

§ 1109.13. 

c. Proposed § 1109.14(c)—How To 

Evaluate Composite Part Testing 

Proposed § 1109.14(c) (renumbered to 

§ 1109.21(c) in the final rule) would 

state that when using composite testing, 

only the total amount or percentage of 

the target chemical is determined 

instead of the amount in each 

individual paint or component part. 

Therefore, to determine that each paint 

or component part is within the 

applicable limit, the entire amount of 

the target chemical in the composite is 

attributed to each paint or component 

part. If this method yields an amount of 

the target chemical that exceeds the 

limit applicable to any paint or 

component part in the composite 

sample, additional testing would be 

required to determine which of the 

paints or component parts, if any, fail to 

meet the applicable limit. 

We received no comments on this 

proposed definition. However, because 

we have renumbered the provisions that 

were proposed as subpart B into a new 

subpart C, we have renumbered it as 

§ 1109.21(c). 

E. Miscellaneous Comments 

(Comment 44)—One commenter 

urged us to conduct a full cost–benefit 

analysis of both the component testing 

rule and the testing and labeling rule. 

(Response 44)—While we could have 

conducted a cost–benefit analysis, in the 

case of the component part testing rule, 

such an analysis would have little 

value. The component part testing rule 

gives manufacturers with a lower cost 

alternative for meeting the testing and 

certification requirements of section 14 

of the CPSA. If manufacturers do not 

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find that component part testing reduces 

their costs, they are free to rely solely 

upon tests conducted on the finished 

product. 

(Comment 45)—One commenter 

stated that implementation of the 

proposed rule would end the use of 

recycled materials in children’s 

products. The commenter stated that it 

was unnecessary for safety reasons and 

not environmentally ‘‘friendly.’’ 

(Response 45)—We acknowledge that 

the 100 ppm lead content limit in 

section 101 of the CPSIA could result in 

reduced use of recycled materials in 

children’s products. This is because the 

lead content of general use products can 

be higher than the amount allowed for 

children’s products. Therefore, 

manufacturers of children’s products 

may need to refrain from using recycled 

materials to avoid the possibility that 

the lead content exceeds the limits 

established by section 101 of the CPSIA. 

However, the lead limits were 

established by the CPSIA and so any 

changes to those limits must occur by 

statute rather than by regulation. 

(Comment 46)—One commenter 

stated that the imposition of regulating 

each part of a particular product at the 

level before the final piece is completed 

made little sense and that safety issues 

should be dealt with at the finished 

product level. The commenter felt that 

because it is up to the manufacturer of 

a finished product to ensure its safety, 

it would be unnecessary and 

cumbersome for a government entity to 

micromanage each component part of 

that product. The commenter felt that 

while component part regulation of 

simpler products, such as children’s 

toys, may be possible, component part 

regulation of more complex products 

would be senseless and a very difficult 

task. The commenter asserted that we 

should be concerned only with the 

finished product’s compliance with the 

applicable standard. How the product 

was produced should be of lesser 

importance. The commenter predicted 

that such a focus on finished product 

compliance would force those who run 

businesses and commerce to compete 

and innovate to achieve the mandatory 

result. The commenter concluded by 

suggesting that the CPSC should not 

over regulate and thereby miss the mark 

of ensuring a safe toy for children. 

(Response 46)—Finished product 

certifiers are responsible for the finished 

product’s compliance with applicable 

product safety rules. Finished product 

certifiers include domestic 

manufacturers and importers. 

In some cases, component part 

testing, while optional, may be more 

economical than finished product 

testing. For example, assume that a 

manufacturer makes 10 different toy 

cars, and the toy cars use the same metal 

axles. Component part testing of the 

metal axles for their compliance with 

the lead limit for children’s product 

could result in testing only the metal 

axles rather than testing the metal axles 

10 times (once with each type of toy 

car). Therefore, the final rule gives 

finished product certifiers the option to 

take advantage of component part 

testing, provided that the testing follows 

16 CFR parts 1107 and 1109. However, 

we do not require component part 

manufacturers to test component parts 

as participation is voluntary. Finished 

product certificates always may be 

based on testing the finished product. 

Even when a regulation requires that 

tests be performed on a per part basis, 

such as lead content in children’s 

products, finished products can be 

disassembled for testing purposes, if 

that is more efficient for a particular 

product. 

(Comment 47)—One commenter 

noted that a publisher’s ordinary books 

may have varying titles and authorial 

content, but they are all made with the 

same materials in the same manner. The 

commenter asserted that the differences 

between ordinary books are not material 

to compliance with the applicable rules. 

The commenter suggested relying on 

component part certification for all 

children’s paper-based printed products 

manufactured using tested component 

materials. The commenter said a 

publisher with a reasonable testing 

program that publishes products 

without material changes could rely on 

the component certifications for all 

materials published within a 2-year 

period. 

(Response 47)—Pursuant to section 

14(i)(5)(A)(i) of the CPSA, as amended 

by H.R. 2715, third party certification 

testing no longer applies to ordinary 

books or to ordinary paper-based 

printed materials. The exception does 

not apply to non-paper components like 

metal or plastic parts, or to accessories 

that are not part of the binding and 

finishing materials. The exception also 

does not apply to books with inherent 

play value, books designed or intended 

for a child 3 years of age or younger, and 

does not include any toy or other article 

that is not a book that is sold or 

packaged with an ordinary book. Thus, 

it is unnecessary for us to address the 

commenter’s concerns as they relate to 

ordinary books and ordinary paperbased printed materials. With regard to 

the non-excepted products, we agree 

that component part testing of books for 

chemical content can be used in the 

manner described by this commenter. 

As long as all of the inks and other 

component parts of a book meet all 

applicable requirements, the printed 

and assembled book will meet the 

requirements as well. As for the 2-year 

testing interval for nonexcepted 

children’s books, as suggested by the 

commenter, the testing interval is 

subject to the children’s product 

periodic testing provisions of 16 CFR 

part 1107. 

(Comment 48)—One commenter 

suggested that final testing and 

certification should defer to the 

Occupational Safety and Health 

Administration (OSHA)-designated 

Nationally Recognized Testing 

Laboratory (NRTL) certification 

program. The commenter added that 

this program determines products 

certified by the NRTL, because they are 

manufactured and distributed for 

consumer use, and they are per se 

compliant with the proposed testing and 

certification rules. The CPSC would still 

maintain its authority to exercise recall, 

civil penalty, and other authorities, if 

violations are found, the commenter 

asserted. 

(Response 48)—Pursuant to section 

14(a)(3)(C) of the CPSA, we have chosen 

to designate accrediting bodies that are 

full-member signatories to the 

International Laboratory Accreditation 

Cooperation—Mutual Recognition 

Arrangement (ILAC–MRA) to conduct 

third party testing. Given that children’s 

products intended for the U.S. market 

are manufactured in nations throughout 

the world, we decided to avoid 

designating accreditation programs or 

entities that are recognized only in a 

specific region, nation, or locality. The 

reasons for this are: (1) To keep the 

program as simple as possible for use by 

manufacturers, private labelers, 

importers, testing laboratories, and other 

interested parties; (2) to establish 

uniform requirements, regardless of 

location; (3) to establish a program that 

is manageable within agency resources; 

and (4) to maintain a degree of 

consistency in the procedures used by 

the designated accrediting bodies. 

Moreover, the commenter appears to 

misstate testing requirements. Consumer 

products are not tested for whether they 

are compliant with the testing and 

certification rule (i.e., parts 1107 and 

1109); rather, consumer products are 

tested for compliance with applicable 

rules, bans, standards, and regulations 

that the CPSC enforces. Moreover, 

section 14(i)(2)(B)(i) of the CPSA 

requires such testing periodically and 

when there has been a material change. 

Therefore, continued testing is required 

by the statute and ‘‘per se conformance’’ 

with the applicable product safety rules 

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is not allowed. Additionally, section 

14(a) of the CPSA requires 

manufacturers (including importers) to 

certify that their products comply with 

the applicable product safety rules. This 

responsibility cannot be delegated to 

another party, such as a certification 

body. 

The qualifications of testing 

laboratories performing certification 

tests are outside the scope of this final 

rule. Such qualifications are addressed 

in the various notices of requirements 

that we have published pursuant to 

section 14(a)(3) of the CPSA. 

Finally, we acknowledge that recently 

enacted H.R. 2715 requires us to seek 

public comment on ‘‘opportunities to 

reduce the cost of third part testing 

requirements consistent with assuring 

compliance with any applicable 

consumer product safety rule, ban, 

standard, or regulation.’’ One topic that 

H.R. 2715 requires us to address 

pertains to ‘‘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 Consumer Product 

Safety Act].’’ Elsewhere in this issue of 

the Federal Register, we have published 

a notice inviting public comment on the 

issues identified in H.R. 2715, so the 

commenter’s argument would be raised 

and addressed, more appropriately, in 

that proceeding. We note, however, that 

very few products covered under the 

OSHA-designated Nationally 

Recognized Testing Laboratory 

certification program would be 

children’s products for which third 

party testing would be required. 

Moreover, products that are subject to 

the OSHA certification program would 

likely be covered by CPSC regulations, 

if at all, for which the only requirement 

is a General Conformity Certificate 

based on a reasonable testing program. 

OSHA certification testing may be a 

sufficient basis for such certifications 

depending upon the product and the 

type of testing involved. Given that the 

CPSC does not have jurisdiction over 

products when the risks of injury 

associated with the consumer product 

could be eliminated or reduced to a 

sufficient extent by the actions of 

OSHA, there may be very little overlap 

between a particular product’s results 

under OSHA’s testing program and any 

CPSC-required testing. 

(Comment 49)—One commenter said 

that it should be unnecessary for the 

manufacturer or private labeler of a 

finished children’s product to ensure 

that every certificate (notably 

component part or materials testing 

certificates) required under section 102 

of CPSIA accompanies the product or 

shipment of products and is furnished 

to each distributor or retailer of the 

product. 

(Response 49)—Section 14(g)(3) of the 

CPSA requires that a GCC or a CPC 

accompany the applicable product or 

shipment of products covered by the 

same certificate, and it also requires that 

a copy of the certificate be furnished to 

each distributor or retailer of the 

product. We do not require component 

part certificates to accompany the 

finished product, although testing 

parties and certifiers must provide such 

documentation to a certifier relying on 

the documentation to issue a certificate, 

and must provide such documentation 

to the CPSC, upon request. 

(Comment 50)—One commenter 

stated that the final rule should require 

adequate product design hazard review, 

both before introduction of products 

into commerce in the United States and, 

where appropriate, as an element of 

remedial action plans. 

(Response 50)—This comment is 

outside the scope of 16 CFR part 1109 

because product design hazard review 

may not be appropriate for all 

components, and neither the proposed, 

nor final rules on component part 

testing addresses remedial action plans. 

Remedial action plans are discussed in 

the rulemaking for 16 CFR part 1107, 

and so we address this comment in that 

rulemaking. 

(Comment 51)—One commenter said 

that testing requirements for lead and 

the imposition of penalties on 

companies that violate the lead 

standards would reduce the incidence 

of lead poisoning. The commenter, 

however, did not provide any additional 

comment on the proposed rule. 

(Response 51)—The requirements 

limiting lead content in children’s 

products (section 101 of the CPSIA) and 

the imposition of penalties for 

violations of those requirements are 

beyond the scope of this rule. 

(Comment 52)—A commenter 

disagreed with recent notices of 

requirements that we issued regarding 

the flammability standards for carpets 

and rugs (16 CFR parts 1630 and 1631) 

and vinyl plastic film (16 CFR part 

1611), which considered a standard of 

general application to all consumer 

products in a category to be a 

‘‘children’s product safety rule’’ for 

purposes of the CPSIA. See 75 FR 42315 

(July 21, 2010) and 75 FR 42311 (July 

21, 2010), respectively. The commenter 

contended that a standard of general 

application to all consumer products in 

a category should not be considered a 

‘‘children’s product safety rule’’ for 

purposes of the CPSIA. The commenter 

expressed the belief that such an 

interpretation will expand testing 

burdens in an unwarranted way, posing 

difficulties for all participants in the 

supply chain and potentially resulting 

in the elimination of some products 

from the children’s product category 

due to added test costs. 

(Response 52)—The question of 

which rules constitute children’s 

product safety rules is beyond the scope 

of this rulemaking. This rule addresses 

the requirements and conditions for 

component part testing, and it does not 

address whether a particular safety 

standard constitutes a children’s 

product safety rule. 

(Comment 53)—One commenter 

suggested that the testing costs could be 

reduced by reducing the number of 

components that must be tested. The 

commenter suggested that this could be 

done by expanding the number of 

materials for which testing for phthalate 

content is not required. Another 

commenter pointed out that inaccessible 

components are exempted from the lead 

content requirements. The commenter 

stated that, using the same logic, 

inaccessible components also should be 

exempted from the phthalate 

requirements. 

(Response 53)—The question of 

which materials require testing for 

phthalate content is beyond the scope of 

this rulemaking. This rule addresses the 

requirements and conditions for 

component part testing, and it does not 

address section 108 of the CPSIA, which 

contains the requirements for phthalate 

content. 

We acknowledge, however, that 

recently enacted H.R. 2715 contains a 

provision excluding inaccessible 

component parts from the phthalate 

prohibitions. The legislation requires us 

to promulgate regulations with respect 

to the inaccessible phthalates section or 

to adopt a guidance document 

comparable to that for lead. We will 

address such matters in a separate 

proceeding. 

(Comment 54)—One commenter 

suggested that wet chemistry should not 

be considered the only retest method if 

a composite sample fails a test. X-Ray 

fluoroscopy could be a valid method for 

lead and heavy metals, and Fourier 

transform infrared spectroscopy could 

be a valid method for phthalates in 

determining which component or 

components caused the failure, the 

commenter observed. The commenter 

urged us to allow the use of XRF 

technology, following the method in 

ASTM F2853 for testing small quantities 

of paints and coatings where there is an 

insufficient amount of the paint or other 

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surface coatings to using the method 

that would normally be recommended. 

(Response 54)—Section 1109.21(c) of 

the final rule does not specify what type 

of testing is required to determine 

which component parts have not met 

the concentration limits of the 

applicable rules. Specifying alternate 

test methods for determining the lead 

content in paint and surface coatings 

and for phthalate concentrations is 

beyond the scope of this rulemaking. 

We do note, however, that on April 5, 

2011, we published in the Federal 

Register a notice of requirements for 

accreditation of third party conformity 

assessment bodies for lead in paint (76 

FR 18645). In that notice of 

requirements, the use of ASTM F2583– 

10, ‘‘Standard Test Method for 

Determination of Lead in Paint Layers 

and Similar Coatings or in Substrates 

and Homogeneous Materials by Energy 

Dispersive X-Ray Fluorescence 

Spectrometry Using Multiple 

Monochromatic Excitation Beams,’’ is 

allowed for testing the lead content in 

paint. 

III. Environmental Considerations 

Generally, the Commission’s 

regulations are considered to have little 

or no potential for affecting the human 

environment, and environmental 

assessments and impact statements are 

not usually required. See 16 CFR 

1021.5(a). The final rule contains the 

Commission’s 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 in section 14 

of the CPSA. As such, the final rule is 

not expected to have an adverse impact 

on the environment. The rule falls 

within the categorical exclusion in 16 

CFR 1021.5(b)(2) for product 

certification rules. Accordingly, no 

environmental assessment or 

environmental impact statement is 

required. 

IV. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act 

(‘‘RFA’’), 5 U.S.C. 601–612, generally 

requires that agencies review proposed 

rules for their potential economic 

impact on small entities, including 

small businesses. The RFA calls for 

agencies to prepare and make available 

for public comment an initial regulatory 

flexibility analysis describing the 

impact of the proposed rule on small 

entities and identifying impact-reducing 

alternatives. 5 U.S.C. 603. The RFA 

further requires agencies to consider 

comments they receive on the initial 

regulatory flexibility analysis and 

prepare a final regulatory flexibility 

analysis describing the impact of the 

final rule on small entities and 

identifying alternatives that could 

reduce that impact. Id. 604. This section 

summarizes CPSC staff’s final regulatory 

flexibility analysis for the final rule on 

component part testing. (CPSC staff’s 

final regulatory flexibility analysis can 

be found at Tab B of staff’s briefing 

package.) 

A. Reason for Agency Action and 

Objective of the Final Rule 

Some testing can be done more 

efficiently on component parts of a 

product rather than on the finished 

product itself. This is especially true for 

tests for the chemical content (e.g., lead 

or phthalate content) of a component 

part. The final rule establishes the 

conditions and requirements that must 

be met for a finished product certifier 

(the domestic manufacturer or importer) 

of a consumer product to rely upon tests 

conducted on component parts of the 

finished product as a basis for issuing a 

finished product certificate. It also 

describes the conditions and 

requirements that must be met for a 

finished product certifier to rely upon 

finished product testing conducted by 

or certificates issued by other parties. 

In the absence of a rule allowing for 

component part testing, each 

component part of a children’s product 

would have to be tested each time the 

manufacturer had to certify or 

periodically test the product, even if the 

same component part were used and 

tested in other products. The final rule 

allows the finished product certifier to 

rely upon tests conducted on 

component parts to certify that finished 

products in which the component parts 

are used comply with the applicable 

safety rules. Therefore, component part 

testing allows some testing costs to be 

spread over more units of finished 

products. The final rule also describes 

the conditions and requirements that 

must be met for a finished product 

certifier to rely upon finished product 

testing procured by or certificates issued 

by other parties that can reduce the cost 

of testing a product that is imported by 

more than one importer. This can 

reduce significantly the cost of testing 

consumer products for compliance with 

applicable consumer product safety 

rules, bans, standards, and regulations. 

B. Comments on the Initial Regulatory 

Flexibility Act 

We received three comments 

regarding the initial regulatory 

flexibility analysis. 

(Comment 55)—One commenter 

noted that, in estimating the number of 

firms that could be impacted by the 

proposed rule, the book publishing 

industry (NAICS code 511130) and 

printing industry (NAICS code 323117) 

were not included; thus, the commenter 

recommended their inclusion for the 

final Regulatory Flexibility Analysis. 

(Response 55)—We acknowledge that 

the initial regulatory flexibility analysis 

inadvertently omitted these industries. 

However, the recently enacted H.R. 

2715 exempts ordinary books and 

ordinary printed materials from the 

third party testing requirements, so the 

commenter’s concern no longer applies. 

(Comment 56)—One commenter 

stated that the initial regulatory 

flexibility analysis was ‘‘flawed and 

self–justifying.’’ The commenter 

asserted that a ‘‘best case’’ scenario was 

used to justify the rule. The commenter 

claimed that the requirements that the 

rule imposes to use component testing, 

including the recordkeeping burdens 

and legal risks, could make the rule 

hard to use. Therefore, the commenter 

asserted, the rule could end up 

providing little, if any, relief to small 

businesses. Another commenter echoed 

these comments, stating that some 

aspects of the proposed rule would 

reduce the costs of testing for some 

products, but the proposed rule’s 

restrictions and conditions would 

prevent the rule from providing material 

relief to small and medium–sized 

businesses that manufacture or import 

thousands of different products using 

tens of thousands of components that 

are consumed at very small volumes. 

(Response 56)—The purpose of a 

regulatory flexibility analysis is to 

describe the impact of a rule on small 

entities. The intent of the component 

part testing rule is to provide 

manufacturers and private labelers the 

option of certifying conformity with 

some safety rules based upon 

certification or testing of component 

parts. In many cases, this option has the 

potential for reducing testing costs, 

especially if the same component part is 

used in more than one finished product. 

However, to ensure that the testing and 

certification requirements of the CPSIA 

are not undermined by allowing 

component part testing, there are some 

conditions on the use of component 

testing, including the traceability and 

recordkeeping requirements. We 

acknowledge that, in some cases, these 

requirements may reduce or even 

eliminate the advantages that the 

component part testing option offers. In 

these cases, the manufacturer or private 

labeler always has the option to certify 

their products based upon tests of the 

finished product. 

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4Based on the 2007 Economic Census 

establishment data for the following NAICS codes: 

313, 325211, 325510, and 339993. Obtained from 

http://factfinder.census.gov/ on 30 March 2010. 

5While testing and certification of component 

parts is voluntary, some statutes and/or regulations 

require that an applicable chemical limit be 

measured by component part. For example, the lead 

content requirement is now 100 ppm per 

component part. Although the specific lead 

measurement is by component part, component part 

testing under this rule is still voluntary. A finished 

product certifier could supply samples of finished 

product to a third party conformity assessment 

body, who would measure the lead content in each 

applicable sample by component part. 

(Comment 57)—One commenter 

stated that while some suppliers might 

provide certificates or third party 

testing, several types of components are 

not likely to be tested voluntarily by the 

suppliers. These include: 

• Low-volume components; 

• Components made in small lots; 

• Components made by a small 

supplier (e.g., many fabrics); and 

• Components that derive only a tiny 

percentage of revenue from regulated 

products; or that cater principally to 

other industries. 

The commenter asserted that the CPSC’s 

logic appeared to be that if the CPSC can 

be certain that some certificates will be 

widely available, then all certificates 

will be widely available. Another 

commenter stated that they had 

surveyed their suppliers and found little 

interest in providing the testing required 

for children’s products. 

(Response 57)—The initial regulatory 

flexibility analysis did not assume that 

suppliers would certify all component 

parts. Where suppliers voluntarily 

certify their products or provide testing 

reports, component part testing has the 

potential to reduce significantly the 

testing costs for manufacturers of 

finished products. However, the rule 

does not require suppliers to certify or 

provide third party test results on their 

products. We agree that some suppliers, 

such as the ones that supply the 

products in the above list, might choose 

not to certify their products or provide 

the third party testing results. 

C. Description of the Number of Small 

Entities to Which the Final Rule Will 

Apply 

The final rule applies to any domestic 

manufacturer or importer of consumer 

products who must issue a finished 

product certificate, pursuant to 16 CFR 

part 1110, who uses component part 

testing or finished product testing or 

certification by another party as the 

basis for certification. The regulatory 

flexibility analysis for the final rule on 

testing and labeling pertaining to 

certification indicates that there were 

about 250,000 firms classified in 

industries, according to the North 

American Industrial Classification 

System (NAICS), that could 

manufacture or import children’s 

products that could be subject to a 

consumer product safety rule, ban, 

standard, or regulation. Of these, more 

than 91 percent would be classified as 

a small business, according to the 

classification standards established by 

the U.S. Small Business Administration. 

Additionally, there are more than 4,700 

small firms classified in industries that 

are unlikely to include children’s 

products but could manufacture or 

import other consumer products subject 

to a product safety rule, ban, standard, 

or regulation. These include 

manufacturers of household appliances, 

lawn and garden equipment makers, 

manufacturers of fireworks, and firms 

that could manufacture or use 

architectural glazing materials. 

However, these are over estimates of the 

number firms to which the rule would 

apply. 

Many of the NAICS categories 

included in the analysis are broad and 

include products that are not covered by 

any consumer product safety rules. Most 

firms included in the estimates were 

retailers or wholesalers and not 

manufacturers. Retailers or wholesalers 

that import consumer products would 

be responsible for ensuring that the 

product was tested properly and 

certified; but many retailers and 

wholesalers likely obtain all of their 

products from domestic manufacturers 

or wholesalers, and therefore, would not 

be impacted directly by the final rule. 

Finally, not all of the manufacturers and 

importers of consumer products that are 

subject to consumer product safety rules 

will use component part testing in 

certifying the products. 

In addition to the firms discussed 

above, the U.S. Census Bureau estimates 

that there are more than 600,000 

nonemployer businesses classified in 

the same NAICS categories. 

Nonemployer businesses are generally 

very small sole proprietorships with 

average receipts of about $55,000. Very 

little is known about the nonemployer 

businesses, but an unknown number 

could be manufacturers or importers of 

consumer products subject to a 

consumer product safety rule, ban, 

standard, or regulation. 

The final rule also applies to 

manufacturers or wholesalers of 

component parts that may be used in 

consumer products, who voluntarily 

provide test reports or certify their 

products as complying with one or more 

consumer product safety rules. 

Manufacturers of clothing textiles, 

paints and coatings, buttons and other 

fasteners, and plastic materials and 

resins could certify their products 

voluntarily or provide third party test 

results to their customers. The 2007 

Economic Census showed that there 

were 5,220 establishments that were 

engaged in manufacturing these 

materials or components.4 However, not 

all of these establishments are expected 

to test or certify their products. 

D. Projected Recordkeeping and 

Compliance Requirements 

Component part testing is voluntary 5

for manufacturers (including importers) 

of consumer products and for 

manufacturers and suppliers of 

components that might be used in 

consumer products. The only firms that 

are expected to use component part 

testing are firms that determine that it 

would be advantageous for them to do 

so. This could include manufacturers of 

consumer products who might be able 

to reduce their testing costs by using 

component part testing and 

manufacturers or suppliers of 

component parts who believe that it 

would be to their advantage to do so, 

perhaps because it provides a marketing 

advantage over competitors (or because 

competitors are doing so). However, if a 

firm chooses to engage in component 

part testing, the final rule describes the 

conditions and requirements that must 

be met. 

A manufacturer or supplier who tests 

a component part must ensure that the 

samples are collected and that the tests 

are performed according to the 

requirements in sections 14(a) and 14(i) 

of the CPSA. If the product is a 

children’s product or a component to be 

used in a children’s product, the testing 

must meet the requirements of 16 CFR 

part 1107, which includes requirements 

for the testing and certification of 

children’s products, including 

requirements for third party testing. For 

both children’s and non-children’s 

products, any testing or certification 

must also meet any more specific rules, 

bans, standards, or regulations that are 

applicable to the product or component. 

A finished product certifier cannot rely 

upon component part product testing or 

finished product testing procured by 

another party unless the component 

parts or finished products are traceable 

to the parties who procured the tests. 

Firms using component part testing 

must exercise due care to ensure that no 

action or inaction subsequent to testing 

and before distribution in commerce has 

occurred that would affect the 

compliance of the component part, such 

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as by contamination or degradation 

during the manufacturing process of the 

finished product. 

A subassembly or even a finished 

product can be considered to be a 

component part for purposes of the final 

rule. Thus, the final rule allows a 

foreign manufacturer of a children’s 

product to procure the required third 

party tests on the children’s product and 

provide those test results to the 

importers of the product. The importers 

could rely upon the tests procured by 

the foreign manufacturer in issuing their 

own certificate for the product, 

provided that all of the requirements of 

the final rule have been met. 

The final rule requires that the 

component part testing be documented, 

and if the testing is done by a 

manufacturer or supplier of a 

component part, this documentation 

must be provided to the finished 

product certifier. The required 

documentation or records are: 

(1) Identification of the component part or 

the finished product tested; 

(2) Identification of a lot or batch number, 

or other information sufficient to identify the 

component parts or finished products to 

which the testing applies; 

(3) Identification of the applicable rules, 

bans, standards, and regulations for which 

each component part or finished product was 

tested; 

(4) Identification of the testing method(s) 

and sampling protocol(s) used; 

(5) The date or date range when the 

component part or the finished product was 

tested; 

(6) Test reports that provide the results of 

each test on a component part or finished 

products, and the test values, if any; 

(7) Identification of the party that 

conducted each test (including testing 

conducted by a manufacturer, testing 

laboratory, or third party conformity 

assessment body and an attestation by the 

party conducting the testing that all testing 

of a component part or finished product by 

that party was performed in compliance with 

applicable provisions of section 14 of the 

CPSA, 16 CFR part 1107, or any more 

specific rules, bans, standards, or regulations; 

(8) Component part certificate(s) or a 

finished product certificate, if any; 

(9) Records to support traceability as 

defined in the draft final rule; and 

(10) An attestation by each certifier and 

testing party that while the component part 

or finished product was in its custody, it 

exercised due care to ensure among other 

things, that the products, components, and 

raw materials were not handled, stored, or 

processed in a way that could affect the 

ability of the product to comply with all 

applicable rules. 

All records must be maintained for 

five years. The records must be made 

available to the CPSC for inspection, 

upon request. The records do not have 

to be maintained in English, as long as 

the records in the original language can 

be provided to us immediately and can 

be translated into English within 48 

hours of a request by us, unless a longer 

period is negotiated with CPSC staff. 

The professional skills that would be 

required are the same that would be 

required to meet the requirements of the 

testing and labeling rule. Depending 

upon the specific product and the safety 

rules with which the component part 

manufacturer or supplier intends to test 

for compliance, people with special 

knowledge, such as engineers or 

chemists, may be needed to design and 

develop a testing program and to 

conduct the testing. Statistical skills or 

statistical consultants may be required 

to determine the testing frequency, 

sample size, and collection method for 

internal production testing and third 

party testing if the product is a 

children’s product or the component 

part is for a children’s product. 

The final rule is not likely to have a 

significant adverse impact on a 

substantial number of small entities. As 

noted, component part testing is not 

mandatory. The only companies that are 

expected to engage in component part 

testing are companies that believe it will 

be advantageous to do so. Finished 

product manufacturers are expected to 

use component part testing if it lowers 

their testing costs. Although there will 

be some cost to manufacturers or 

suppliers of component parts who elect 

to engage in the voluntary testing of 

component parts, if the cost increase 

would have a significant adverse 

impact, it is unlikely that such firms 

would engage in or continue to engage 

in component part testing. Component 

part suppliers who engage in 

component part testing would be able to 

spread the cost of the testing over a 

higher production volume than finished 

product manufacturers. This would 

lower the cost of the testing per unit. At 

least some costs incurred by component 

part suppliers are likely to be passed on 

to the finished product manufacturers 

because finished product manufacturers 

are likely to be willing to pay more for 

a component part if it means that they 

do not have to test the component part 

themselves. 

E. Steps Taken To Minimize Impact on 

Small Entities 

The intent of the final rule is to 

reduce the impact of the testing and 

certification rule; thus, it is actually a 

step that the Commission has taken to 

reduce the impact of the testing and 

certification rule on manufacturers of 

finished products. It is not expected to 

have a significant adverse impact on a 

substantial number of small entities. 

Nevertheless, we made some changes to 

the rule that will reduce the economic 

impact further. 

One change from the proposed rule is 

that the final rule does not require 

records to be kept in the English 

language. Instead, the final rule requires 

that an English translation of the records 

be provided to the CPSC upon request. 

Additionally, the records do not need to 

be maintained in the United States, as 

long as the records can be provided to 

us, either in hardcopy or electronically, 

upon request. 

We also simplified the traceability 

requirements to require that traceability 

only has to be maintained back to the 

party who procured the testing results. 

For example, if a component part 

supplier, who is not the manufacturer of 

a component part, obtains testing 

results, a manufacturer of a finished 

product that uses that component part 

would have to maintain traceability 

only to the party who procured the 

testing, not to the manufacturer of the 

component part, as would have been 

required by the rule as proposed. 

F. Alternatives Considered to the Final 

Rule 

We considered alternatives to the 

final rule. These included: Not issuing 

a final rule allowing for component part 

testing (i.e., taking no action); not 

imposing any recordkeeping 

requirements; and eliminating the 

traceability requirements from the rule. 

One alternative would be to end 

rulemaking concerning component part 

testing and not finalize the proposed 

rule. If this alternative were adopted, 

manufacturers potentially could use 

component part testing for lead content 

testing following the interim 

enforcement policy issued on December 

28, 2009 (74 FR 68593–68596). 

However, manufacturers could not rely 

upon testing procured by suppliers to 

establish compliance with other 

consumer product safety rules, bans, 

standards, or regulations (such as for 

compliance with limits on phthalate 

content or the limits on the heavy metal 

content in paints and surface coatings 

on toys). If the final rule were not 

finalized, importers of consumer 

products would not be able to rely upon 

testing procured by or certifications 

issued by the foreign manufacturers of 

the products. 

We decided not to end the rulemaking 

because the final rule offers domestic 

manufacturers and importers options 

that have the potential to reduce the 

cost of testing and certifying consumer 

products, by spreading the cost of 

testing over more units of production 

and allowing certifiers of finished 

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69578 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

products to rely upon testing procured 

by or certificates issued by their 

suppliers. Moreover, manufacturers 

retain the option of submitting samples 

of finished products to testing 

laboratories to be evaluated for 

compliance with all applicable rules, 

bans, standards, and regulations. 

Therefore, the final rule allows 

manufacturers and importers of 

consumer products to select the option 

that is most advantageous to them. 

We considered eliminating 

altogether—or reducing significantly— 

the recordkeeping and traceability 

requirements in the final rule. However, 

while eliminating these requirements 

could have reduced, somewhat, the 

costs associated with component part 

testing, we concluded that the 

recordkeeping and traceability 

requirements are needed to provide the 

finished product certifier with the 

information required by section 14(g) of 

the CPSA to certify the finished 

product, which includes the test results, 

the date and place where the product 

was tested, and the parties who 

conducted the testing. Moreover, many 

of the records required normally would 

be generated in the course of testing a 

product or component and reporting the 

results (e.g., the test reports), which 

suggests that eliminating the 

requirements would not necessarily 

eliminate all of the recordkeeping costs. 

Further, such documentation is required 

for the CPSC to investigate testing and 

certification failures when component 

part testing is used. Finally, the final 

rule allows the firms that are impacted 

significant flexibility in designing and 

maintaining the records. Generally, the 

rule requires specific information, but it 

does not specify the format in which the 

information must be maintained, as long 

as the information is provided to parties 

who require it, such as finished product 

certifiers and the CPSC, if it is 

requested. 

V. Paperwork Reduction Act 

The final rule contains information 

collection requirements that are subject 

to public comment and review by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501–3520). In a 

May 20, 2010, Federal Register notice 

regarding the proposed rule (75 FR 

28208, 28217–18), we described the 

information collection and the annual 

reporting burden. Our estimate included 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

each collection of information. 

We invited comment on: (1) Whether 

the collection of information is 

necessary for the proper performance of 

the CPSC’s functions, including whether 

the information will have practical 

utility; (2) the accuracy of the CPSC’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the method and assumptions 

used; (3) ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and (4) ways to minimize 

the burden of the collection of 

information on respondents, including 

through the use of automated collection 

techniques, when appropriate, and other 

forms of information technology. 

We received several comments about 

the burden estimates contained in the 

proposed rule. 

(Comment 58)—Several commenters 

stated that the estimates for 

recordkeeping time and expense were 

greatly underestimated. One commenter 

asserted that the proposed rule would 

impose more extensive requirements 

than the requirements that are contained 

in the interim enforcement policy, 

emphasizing that those requirements are 

extremely burdensome. The commenter 

stated that the proposed rule would 

impose specific and voluminous 

recordkeeping requirements. The 

commenter said that we should not 

require this information on every item, 

nor should we require companies to 

integrate multiple systems to compile 

the data, as long as companies, upon 

request, can provide reasonable data 

that is customary in a particular 

industry. Another commenter noted the 

burden associated with extracting all of 

the data that would be required by the 

proposed rule. The commenter pointed 

out that the data would come from 

several different record systems, some of 

which would have to be obtained 

manually. Moreover, the commenter 

remarked that the CPSC is unlikely to 

review the data, making the task 

unnecessarily burdensome, without any 

practical utility. The commenter, a large 

toy manufacturer, stated that it has 

several full-time staff who operate 

globally to manage their component 

testing process. Therefore, the 

commenter said that the 20,000 to 

30,000 hours, or approximately 20 fulltime employees, which we estimated 

would be needed to handle the 

paperwork and recordkeeping 

requirements of the component testing 

rule, is probably grossly 

underestimated. One commenter stated 

that it would be costly to extract the 

data required from multiple 

recordkeeping systems that have 

evolved over time. The commenter 

added that we envisioned extraction of 

the data to be easier than it is. One 

commenter stated that its company 

would probably have to open an office 

in Asia and expand its staff in the 

United States to manage the paperwork 

and recordkeeping required by the rule. 

The commenter expressed the belief that 

complying with the component part 

testing rule at its company alone could 

require 20,000 hours, per annum. 

(Response 58)—We acknowledge that 

we significantly underestimated the 

total cost burden of the recordkeeping 

requirements. We have increased our 

estimate of the recordkeeping burden of 

meeting the requirements in the final 

rule. To decrease the burden presented 

by the recordkeeping requirements, the 

final rule provides that records do not 

have to be kept in the United States— 

if they can be accessed by the CPSC— 

upon request. Also, records do not have 

to be maintained in English if they can 

be translated by the manufacturer in a 

timely manner. 

Nevertheless, we believe that some 

commenters might have misunderstood 

aspects of the proposed recordkeeping 

requirements. Neither the proposed 

rule, nor the final rule, require a firm to 

develop a new system of records if: It 

has retained the information in a 

different set of records; can provide the 

required information to distributers and 

finished product certifiers; and is able to 

furnish it to the CPSC, upon request, as 

required by the rule. 

Title: 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 

Description: The scope of the final 

rule includes component part testing 

and certification, as well as testing and 

certification of a finished product by a 

party who is not required to do so by 

16 CFR part 1110, such as a foreign 

manufacturer (‘‘finished product 

supplier’’). The final rule requires 

testing parties (parties that procure 

tests) and certifiers (both component 

part and finished product certifiers) to 

provide the following documentation to 

a certifier intending to rely upon such 

information to issue a certificate: 

• Identification of the component part 

or the finished product tested; 

• Identification of a lot or batch 

number, or other information sufficient 

to identify the component parts or 

finished products to which the testing 

applies; 

• Identification of the applicable 

rules, bans, standards, and regulations 

for which each component part or 

finished product was tested; 

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• Identification of the testing 

method(s) and sampling protocol(s) 

used; 

• Date or date range when the 

component part or finished product was 

tested; 

• Test reports that provide the results 

of each test on a component part or 

finished product, and the test values, if 

any; 

• Identification of the party that 

conducted each test (including testing 

conducted by a manufacturer, testing 

laboratory, or third party conformity 

assessment body), and an attestation by 

the party conducting the testing that all 

testing of a component part or finished 

product by that party was performed in 

compliance with applicable provisions 

of section 14 of the CPSA, part 1107 of 

this chapter, or any more specific rules, 

bans, standards, or regulations; 

• Component part certificate(s) or 

finished product certificate(s), if any; 

• Records to support traceability as 

defined in § 1109.4(m); and 

• An attestation by each certifier and 

testing party that while the component 

part or finished product was in its 

custody, it exercised due care to ensure 

compliance with the requirements set 

forth in § 1109.5(b). 

Certifiers and testing parties must 

maintain this information for five years 

from the date of creation. 

Records required to be maintained are 

similar to the records that a 

manufacturer would be required to 

develop and maintain under the final 

rule on ‘‘Testing and Labeling 

Pertaining to Product Certification’’ 

(which appears elsewhere in this issue 

of the Federal Register). Most of the 

records for children’s products concern 

documentation of the test plan and test 

results for the component part or 

finished product, which would be 

required regardless of whether the 

component part was tested as part of the 

finished product or apart from the 

finished product. Even without 

component part testing, certifiers would 

be expected to maintain records 

regarding the lot, batch, or other 

information identifying the component 

parts used because changes in the 

component part or the sourcing of the 

component part would constitute a 

material change and trigger 

requirements for additional testing. 

Based on the comments received, we 

revised the burden estimate that was set 

forth in the proposed rule on ‘‘Testing 

and Labeling Pertaining to Product 

Certification’’ and likewise, we revised 

the burden estimate for the component 

testing rule. A full discussion of the 

revised analysis appears in the final rule 

on ‘‘Testing and Labeling Pertaining to 

Certification,’’ which is published 

elsewhere in this issue of the Federal 

Register. The estimate of the total 

recordkeeping burden consists of three 

components: (1) The number of 

products for which recordkeeping will 

be required; (2) the average number of 

hours, per product, that will be required 

to manage the recordkeeping; and (3) 

the hourly compensation rate to be used 

to estimate the cost of the 

recordkeeping. The final rule on 

‘‘Testing and Labeling Pertaining to 

Certification’’ contains the following 

revised estimates, concluding that the 

total cost of recordkeeping associated 

with that rule is $197 million: 

• 300,000 non-apparel children’s 

products are covered by the final rule; 

fi An average of 5 hours will be 

required for the recordkeeping 

associated with these products; 

• Approximately 1.3 million 

children’s apparel and footwear 

products are covered by the final rule; 

fi An average of 3 hours will be 

required for the recordkeeping 

associated with these products; 

• Total hour burden = 5.4 million 

hours (300,000 × 5 hours plus 1,300,000 

× 3 hours); 

• Total cost of recordkeeping burden 

= $197 million (5.4 million hours × 

$36.43 per hour). 

The component part rule will shift 

some testing costs and some 

recordkeeping costs to component part 

and finished product suppliers because 

some testing will be performed by these 

parties rather than by the finished 

product certifiers. However, a finished 

product certifier will still be responsible 

for receiving records from component 

part and finished product suppliers and 

recording information on the finished 

product certificate. Thus, even if a 

finished product certifier could rely 

entirely on component part and finished 

product suppliers for all required 

testing, the finished product supplier 

would still have some recordkeeping 

burden. Therefore, although the 

component part testing rule is expected 

to reduce the total cost of the testing 

required by the testing and certification 

rule, it will lead to an increase in the 

recordkeeping burden for those who 

choose to use component part testing. 

No clear basis exists for estimating the 

amount of testing that will be performed 

by component part and finished product 

suppliers; nor is it known how many 

component part and finished product 

suppliers will be willing to provide the 

required testing or conformity 

certificates. Likewise, there is no clear 

method for estimating the number of 

finished product certifiers who might 

conduct their own component part 

testing. In the preamble to the proposed 

rule (75 FR at 28218), we suggested that 

the recordkeeping burden for the 

component part testing rule could 

amount to 10 percent of the burden 

estimated for the testing and labeling 

rule. Although some comments 

suggested that the resulting estimates 

were too low, no commenter provided a 

better estimate or suggested a better 

method for estimating the burden. 

Moreover, because the estimate of the 

recordkeeping burden for the testing 

and labeling rule has been increased, 

using the same methodology used in the 

proposed rule, the estimates for the 

component rule also would increase. 

This may address the concern of the 

commenters who believed the estimate 

used in the proposed rule was too low. 

Therefore, if we continue use to use 

the estimate that component part testing 

will amount to about 10 percent of the 

burden estimated for the testing and 

labeling rule, then the hour burden of 

the component part rule would be about 

540,000 hours. At $36.43 per hour, the 

total cost of the recordkeeping for the 

component part rule would be about 

$19.7 million. 

Estimate Limitations: There are some 

limitations to the above estimates that 

warrant mentioning. 

While the estimates of the number of 

products are more accurate than the 

original estimates, they are not based on 

a well-designed survey or 

comprehensive database. Additionally, 

the extent to which some products 

might be certified by multiple importers 

or are manufactured at different sites 

has not been established. 

Recordkeeping for the flammability of 

children’s sleepwear might be captured 

in the OMB submission on another rule, 

but the recordkeeping associated with 

the lead content rules should be 

captured here. However, no adjustment 

for this has been made because we have 

not tried to separate children’s 

sleepwear from other apparel items. 

The recordkeeping considered here is 

best thought of as the recordkeeping 

required by the testing and certification 

requirements of section 102 of the 

CPSIA. It would be impossible to 

separate the time associated with the 

initial certification from the time 

associated with periodic testing and 

documenting material changes, 

especially given that it often involves 

issuing a new certificate. 

For finished goods manufacturers 

who also perform their own component 

testing, it is difficult to separate the 

recordkeeping burden associated with 

component part testing from the 

recordkeeping burden associated with 

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69580 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

the testing and labeling rule. This could 

lead to overestimates of the costs 

associated with the testing and labeling 

rule and possibly underestimates 

associated with the component part 

testing rule. Better estimates may be 

possible if the recordkeeping burden is 

reevaluated after the rules are finalized. 

VI. Executive Order 12988 (Preemption) 

According to Executive Order 12988 

(February 5, 1996), agencies must state 

in clear language the preemptive effect, 

if any, of new regulations. Section 26 of 

the CPSA only addresses the preemptive 

effect of consumer product safety 

standards under the CPSA. The current 

rule is not a consumer product safety 

standard under the CPSA. 

Accordingly, this rule does not fall 

within the scope of any provision of any 

act enforced by the Commission that 

grants preemptive effect to rules. 

VII. Effective Date 

The Administrative Procedure Act 

(‘‘APA’’) generally requires that the 

effective date of a rule be at least 30 

days after publication of a final rule. 5 

U.S.C. 553(d). The preamble to the 

proposed rule indicated that we would 

make any final rule based on this 

proposal effective 180 days after the 

date of publication of a final rule in the 

Federal Register. The preamble to the 

proposed rule explained that 180 days 

should allow time for any product 

changes needed for testing of 

component parts and for 

implementation of the component part 

testing requirements. 

We did not receive any comments 

regarding the effective date. However, 

we recognize that the stay of testing and 

certification requirements for lead 

content and phthalates in certain 

children’s products expires on 

December 31, 2011. Accordingly, we 

want stakeholders to be able to take 

advantage of the efficiencies of 

component part testing or certification, 

as well as finished product testing or 

certification, without undue delay. 

While this rule does impose 

recordkeeping obligations, component 

part testing is voluntary. Therefore, the 

final rule will become effective on 

December 8, 2011. 

List of Subjects in 16 CFR Part 1109 

Business and industry, Children, 

Consumer protection, Imports, Product 

testing and certification, Records, 

Record retention, Toys. 

Accordingly, 16 CFR part 1109 is 

added to read as follows: 

PART 1109—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 

Subpart A—General Conditions and 

Requirements 

Sec. 

1109.1 Scope. 

1109.2 Purpose. 

1109.3 Applicability. 

1109.4 Definitions. 

1109.5 Conditions, requirements, and 

effects generally. 

Subpart B—Conditions and Requirements 

for Specific Consumer Products, 

Component Parts, and Chemicals 

1109.11 Component part testing for paint. 

1109.12 Component part testing for lead 

content of children’s products. 

1109.13 Component part testing for 

phthalates in children’s toys and child 

care articles. 

Subpart C—Conditions and Requirements 

for Composite Testing 

1109.21 Composite Testing. 

Authority: Secs. 3 and 102, Pub. L. 110– 

314, 122 Stat. 3016; 15 U.S.C. 2063. 

Subpart A—General Conditions and 

Requirements 

§ 1109.1 Scope. 

(a) This part applies to tests or 

certifications of the following when 

such testing or certification is used to 

support a certificate of compliance 

pursuant to section 14(a) of the 

Consumer Product Safety Act (CPSA) or 

to meet continued testing requirements 

pursuant to section 14(i) of the CPSA: 

(1) Component parts of consumer 

products; and 

(2) Finished products when 

conducted by a party that is not 

required to test or certify products 

pursuant to part 1110 of this chapter. 

(b) Component part manufacturers 

and suppliers may certify or test their 

component parts, but are not required to 

do so. Also, parties that are not required 

to test finished products, or to issue 

finished product certificates pursuant to 

part 1110 of this chapter, may do so 

voluntarily. 

(c) Subpart A establishes general 

requirements for component part testing 

and certification, and relying on 

component part testing or certification, 

or another party’s finished product 

certification or testing, to support a 

certificate of compliance issued 

pursuant to section 14(a) of the 

Consumer Product Safety Act (CPSA) or 

to meet continued testing requirements 

pursuant to section 14(i) of the CPSA. 

Subpart B sets forth additional 

requirements for component part testing 

of chemical content. Subpart C 

describes the conditions and 

requirements for composite testing. 

§ 1109.2 Purpose. 

The purpose of this part is to set forth 

the conditions and requirements under 

which passing component part test 

reports, certification of component parts 

of consumer products, or finished 

product testing or certification procured 

or issued by another party, can be used 

to meet, in whole or in part, the testing 

and certification requirements of 

sections 14(a) and 14(i) of the CPSA. 

§ 1109.3 Applicability. 

The provisions of this part apply to all 

manufacturers and importers who are 

required to issue finished product 

certifications pursuant to section 14(a) 

of the CPSA and part 1110 of this 

chapter and to procure tests to ensure 

continued compliance pursuant to 

section 14(i) of the CPSA. This part also 

applies to manufacturers and suppliers 

of component parts or finished products 

who are not required to test or certify 

consumer products pursuant to part 

1110 of this chapter, but who 

voluntarily choose to undertake testing 

or certification. 

§ 1109.4 Definitions. 

The following definitions apply to 

this part: 

(a) Certifier means a party that is 

either a finished product certifier or a 

component part certifier as defined in 

this section. 

(b) Component part means any part of 

a consumer product, including a 

children’s product that either must or 

may be tested separately from a finished 

consumer product to assess the 

consumer product’s ability to comply 

with a specific rule, ban, standard, or 

regulation enforced by the CPSC. Within 

the same consumer product, the 

component parts to be tested and the 

tests to be conducted may vary, 

depending on the applicable regulations 

and required test methods, if any. 

(c) Component part certifier means a 

party who, although not required to do 

so pursuant to part 1110 of this chapter, 

voluntarily certifies the following as 

complying with one or more rules, bans, 

standards, or regulations enforced by 

the CPSC, consistent with the content 

requirements for certifications in part 

1110 of this chapter: 

(1) Component parts to be used in 

consumer products; or 

(2) Finished products. 

(d) CPSA means the Consumer 

Product Safety Act. 

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(e) CPSC means the Consumer 

Product Safety Commission. 

(f) CPSIA means the Consumer 

Product Safety Improvement Act of 

2008. 

(g) Due care means the degree of care 

that a prudent and competent person 

engaged in the same line of business or 

endeavor would exercise under similar 

circumstances. Due care does not permit 

willful ignorance. 

(h) Finished product certifier means a 

party responsible for certifying 

compliance of a finished consumer 

product pursuant to part 1110 of this 

chapter with all applicable rules, bans, 

standards, and regulations enforced by 

the CPSC. 

(i) Identical in all material respects 

means there is no difference with 

respect to compliance to the applicable 

rules, bans, standards, or regulations, 

between the samples to be tested for 

compliance and the component part or 

finished product distributed in 

commerce. 

(j) Paint means any type of surface 

coating that is subject to part 1303 of 

this chapter or section 4.3.5.2 of ASTM 

F 963–08 (or any successor standard of 

section 4.3.5.2 of ASTM F 963–08 

accepted by the Commission). 

(k) Testing party means a party 

(including, but not limited to, domestic 

manufacturers, foreign manufacturers, 

importers, private labelers, or 

component part suppliers) who 

procures tests (either by conducting the 

tests themselves, when this is allowed, 

or by arranging for another party to 

conduct the tests), of a consumer 

product, or any component part thereof, 

for compliance, in whole or in part, 

with any applicable rule, ban, standard, 

or regulation enforced by the CPSC. 

Testing laboratories and third party 

conformity assessment bodies are not 

testing parties under this definition. 

(l) Third party conformity assessment 

body means a testing laboratory whose 

accreditation has been accepted by the 

CPSC to conduct certification testing on 

children’s products. Only third party 

conformity assessment bodies whose 

scope of accreditation includes the 

applicable required tests can be used to 

test children’s products for purposes of 

supporting certification pursuant to 

section 14(a) of the CPSA and testing to 

ensure continued compliance pursuant 

to section 14(i) of the CPSA. 

(m) Traceable means the ability of a 

certifier to identify all testing parties of 

a component part of a consumer product 

or a finished product, including the 

name and address of each testing party 

and any party that conducted testing on 

the component part or finished product. 

Parties that conduct testing may include 

a manufacturer, a supplier, a testing 

laboratory, or a third party conformity 

assessment body. Traceability extends 

to the component part of the product 

that was tested for compliance, such 

that if a subassembly is tested, that 

subassembly must be traceable, not each 

component part of the subassembly, if 

those parts were not individually tested 

for other rules, bans, standards, or 

regulations. 

§ 1109.5 Conditions, requirements, and 

effects generally. 

(a) Component part testing allowed. 

Any party, including a component part 

manufacturer, a component part 

supplier, a component part certifier, or 

a finished product certifier, may procure 

component part testing as long as it 

complies with the requirements in this 

section and subparts B and C of this 

part. A finished product certifier may 

certify compliance of a consumer 

product with all applicable rules, bans, 

standards, and regulations as required 

by section 14(a) of the CPSA, and may 

ensure continued compliance of 

children’s products pursuant to section 

14(i) of the CPSA, based, in whole or in 

part, on passing component part test 

reports or certification of one or more 

component parts of a consumer product 

if the following requirements are met: 

(1) Testing of the component part is 

required or sufficient to assess 

compliance, in whole or in part, of the 

consumer product with the applicable 

rule, ban, standard, or regulation. Any 

doubts about whether testing one or 

more component parts of a consumer 

product is sufficient to assess whether 

the finished product complies with 

applicable rules, bans, standards, and 

regulations should be resolved in favor 

of testing the finished product; and 

(2) The component part tested is 

identical in all material respects to the 

component parts used in the finished 

consumer product. To be identical in all 

material respects to a component part 

for purposes of supporting a 

certification of a children’s product, a 

sample need not necessarily be of the 

same size, shape, or finish condition as 

the component part of the finished 

product; rather, it may consist of any 

quantity that is sufficient for testing 

purposes and be in any form that has 

the same content as the component part 

of the finished product. 

(b) Test Result Integrity. A certifier or 

testing party must exercise due care to 

ensure that while a component part or 

finished product is in its custody: 

(1) Proper management and control of 

all raw materials, component parts, 

subassemblies, and finished products is 

established and maintained for any 

factor that could affect the finished 

product’s compliance with all 

applicable rules; 

(2) The manufacturing process does 

not add or result in a prohibited level 

of a chemical from any source, such as 

the material hopper, regrind equipment, 

or other equipment used in the 

assembly of the finished product; and 

(3) No action or inaction subsequent 

to testing and before distribution in 

commerce has occurred that would 

affect compliance, including 

contamination or degradation. 

(c) Limitation. A certifier must not use 

tests of a component part of a consumer 

product for any rule, ban, standard, or 

regulation that requires testing the 

finished product to assess compliance 

with that rule, ban, standard, or 

regulation. 

(d) Test method and sampling 

protocol. Each certifier and testing party 

must exercise due care to ensure that 

when it procures a test for use in 

meeting the requirements of sections 

14(a) or 14(i) of the CPSA: 

(1) All testing is done using required 

test methods, if any; 

(2) Required sampling protocols are 

followed, if any; and 

(3) Testing and certification follows 

the applicable requirements in sections 

14(a) and 14(i) of the CPSA, and part 

1107 of this chapter or any more 

specific rules, bans, standards, or 

regulations, used to assess compliance 

of the component part or finished 

product. 

(e) Timing. Subject to any more 

specific rule, ban, standard, or 

regulation, component part testing may 

occur before final assembly of a 

consumer product, provided that 

nothing in the final assembly of the 

consumer product can cause the 

component part or the final consumer 

product to become noncompliant. 

(f) Traceability. A certifier must not 

rely on component part or finished 

product testing procured by a testing 

party or another certifier unless such 

component parts or finished products 

are traceable. 

(g) Documentation by certifiers and 

testing parties. Each certifier and testing 

party must provide the following 

documentation, either in hard copy or 

electronically, to a certifier relying on 

such documentation as a basis for 

issuing a certificate: 

(1) Identification of the component 

part or the finished product tested; 

(2) Identification of a lot or batch 

number, or other information sufficient 

to identify the component parts or 

finished products to which the testing 

applies; 

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69582 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

(3) Identification of the applicable 

rules, bans, standards, and regulations 

for which each component part or 

finished product was tested; 

(4) Identification of the testing 

method(s) and sampling protocol(s) 

used; 

(5) The date or date range when the 

component part or finished product was 

tested; 

(6) Test reports that provide the 

results of each test on a component part 

or finished product, and the test values, 

if any; 

(7) Identification of the party that 

conducted each test (including testing 

conducted by a manufacturer, testing 

laboratory, or third party conformity 

assessment body), and an attestation by 

the party conducting the testing that all 

testing of a component part or finished 

product by that party was performed in 

compliance with applicable provisions 

of section 14 of the CPSA, part 1107 of 

this chapter, or any more specific rules, 

bans, standards, or regulations; 

(8) Component part certificate(s) or 

finished product certificate(s), if any; 

(9) Records to support traceability as 

defined in § 1109.4(m); and 

(10) An attestation by each certifier 

and testing party that while the 

component part or finished product was 

in its custody, it exercised due care to 

ensure compliance with the 

requirements set forth in subparagraph 

(b) of this section. 

(h) Effect of voluntary certification. (1) 

The Commission will consider any 

certificate issued by a component part 

certifier in accordance with this part to 

be a certificate issued in accordance 

with section 14(a) of the CPSA. All 

certificates must contain all of the 

information required by part 1110 of 

this chapter. 

(2) Any party who elects to certify 

compliance of a component part or a 

finished product with applicable rules, 

standards, bans, or regulations, must 

assume all responsibilities of a 

manufacturer under sections 14(a) and 

14(i) of the CPSA and part 1107 of this 

chapter with respect to that component 

part or finished product’s compliance to 

the applicable rules, standards, bans, or 

regulations. 

(i) Certification by finished product 

certifiers. (1) A finished product certifier 

must exercise due care in order to rely, 

in whole or in part, on one or more of 

the following as a basis for issuing a 

finished product certificate: 

(i) Finished product certificate(s) 

issued by another party; 

(ii) Finished product test report(s) 

provided by another party; 

(iii) Component part certificate(s); or 

(iv) Component part test report(s). 

(2) If a finished product certifier fails 

to exercise due care in its reliance on 

another party’s certifications or test 

reports, then the Commission will not 

consider the finished product certifier to 

hold a certificate issued in accordance 

with section 14(a) of the CPSA. 

Exercising due care in this context 

means taking the steps that a prudent 

and competent person in the same line 

of business would take to conduct a 

reasonable review of another party’s 

certification or test reports, and to 

address any concern over their validity, 

before relying on such documents to 

issue a finished product certificate. Due 

care does not permit willful ignorance. 

Such steps may vary according to the 

circumstances. 

(3) A finished product certifier must 

not rely on another party’s certifications 

or test reports unless the finished 

product certifier receives the 

documentation under paragraph (g) of 

this section from the certifier or testing 

party. The finished product certifier 

may receive such documentation either 

in hard copy or electronically, or access 

the documentation through an Internet 

Web site. The Commission may 

consider a finished product certifier 

who does not obtain such 

documentation before certifying a 

consumer product to have failed to 

exercise due care. 

(j) Recordkeeping requirements. Each 

certifier or testing party must maintain 

the documentation required in 

paragraph (g) of this section for five 

years, and must make such 

documentation available for inspection 

by the CPSC upon request, either in 

hard copy or electronically, such as 

through an Internet Web site. Records 

may be maintained in languages other 

than English if they can be: 

(1) Provided immediately by the 

certifier or testing party to the CPSC; 

and 

(2) Translated accurately into English 

by the certifier or testing party within 48 

hours of a request by the CPSC or any 

longer period negotiated with CPSC 

staff. 

Subpart B—Conditions and 

Requirements for Specific Consumer 

Products, Component Parts, and 

Chemicals 

§ 1109.11 Component part testing for 

paint. 

(a) Generally. The Commission will 

permit certification of a consumer 

product, or a component part of a 

consumer product, as being in 

compliance with the lead paint limit of 

part 1303 of this chapter or the content 

limits for paint on toys of section 4.3.5.2 

of ASTM F 963–08 or any successor 

standard of section 4.3.5.2 of ASTM F 

963–08 accepted by the Commission if, 

for each paint used on the product, the 

requirements in § 1109.5 and paragraph 

(b) of this section are met. 

(b) Requirement. For each paint used 

on the product: 

(1) Unless using the test method 

ASTM F 2853–10 to test for lead in 

paint, all testing must be performed on 

dry paint that is scraped off of a 

substrate for testing. The substrate used 

need not be of the same material as the 

material used in the finished product or 

have the same shape or other 

characteristics as the part of the finished 

product to which the paint will be 

applied; and 

(2) The tested paint is identical in all 

material respects to that used in 

production of the consumer product. 

The paint samples to be tested must 

have the same composition as the paint 

used on the finished product. However, 

a larger quantity of the paint may be 

tested than is used on the consumer 

product in order to generate a sufficient 

sample size. The paint may be supplied 

to the testing laboratory for testing 

either in liquid form or in the form of 

a dried film of the paint on any suitable 

substrate. 

§ 1109.12 Component part testing for lead 

content of children’s products. 

A certifier may rely on component 

part testing of each accessible 

component part of a children’s product 

for lead content, where such component 

part testing is performed by a third party 

conformity assessment body, provided 

that the requirements in § 1109.5 are 

met, and the determination of which, if 

any, parts are inaccessible pursuant to 

section 101(b)(2) of the Consumer 

Product Safety Improvement Act of 

2008 (CPSIA) and part 1500.87 of this 

chapter is based on an evaluation of the 

finished product. 

§ 1109.13 Component part testing for 

phthalates in children’s toys and child care 

articles. 

A certifier may rely on component 

part testing of appropriate component 

parts of a children’s toy or child care 

article for phthalate content provided 

that the requirements in § 1109.5 are 

met. 

Subpart C—Conditions and 

Requirements for Composite Testing 

§ 1109.21 Composite testing. 

(a) Paint. In testing paint for 

compliance with chemical content 

limits, certifiers and testing parties may 

procure tests conducted on a 

combination of different paint samples 

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Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 69583 

so long as test procedures are followed 

to ensure that no failure to comply with 

the lead limits will go undetected (see 

paragraph (c) of this section). A 

certificate may be based on testing each 

component part of the paint according 

to the requirements of § 1109.11 and 

certifying that each component part in 

the mixture individually complies with 

the lead in paint limit or other paint 

limit. Testing and certification of 

composite paints must also comply with 

§§ 1109.5 and 1109.11. 

(b) Component parts. A certifier or 

testing party may procure tests 

conducted on a combination of 

component parts for compliance with 

chemical content limits so long as test 

procedures are followed to ensure that 

no failure to comply with the content 

limits will go undetected (see paragraph 

(c) of this section). Testing and 

certification of composite component 

parts for lead content must also comply 

with §§ 1109.5 and 1109.12. Testing and 

certification of composite component 

parts for phthalate content must also 

comply with §§ 1109.5 and 1109.13. 

(c) How to evaluate composite testing. 

When using composite testing, only the 

total amount or percentage of the target 

chemical is determined, not how much 

was in each individual paint or 

component part. Therefore, to determine 

that each paint or component part is 

within the applicable limit, the entire 

amount of the target chemical in the 

composite is attributed to each paint or 

component part. If this method yields 

an amount of the target chemical that 

exceeds the limit applicable to any paint 

or component part in the composite 

sample, additional testing would be 

required to determine which of the 

paints or component parts, if any, fail to 

meet the applicable limit. 

Dated: October 21, 2011. 

Todd A. Stevenson, 

Secretary, Consumer Product Safety 

Commission. 

[FR Doc. 2011–27677 Filed 11–7–11; 8:45 am] 

BILLING CODE 6355–01–P 

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