```

[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Rules and Regulations]
[Pages 69546-69583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27677]

[[Page 69545]]

Vol. 76

Tuesday,

No. 216

November 8, 2011

Part IV

Consumer Product Safety Commission

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16 CFR Parts 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; Final 
Rule

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

[[Page 69546]]

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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.

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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\
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    \1\ The 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.

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) 
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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 non-children'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

[[Page 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

[[Page 69548]]

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: Sec.  
1109.1; Sec.  1109.2; Sec.  1109.3; Sec. Sec.  1109.4(c), (i), and (m); 
Sec. Sec.  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

[[Page 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--Sec.  1109.1; 
(2) Applicability--Sec.  1109.3; (3) definition of ``component part 
certifier''--Sec.  1109.4(c); and (4) the definition of ``finished 
product certifier''--Sec.  1109.4(h). For example, Sec.  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 Sec.  
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 Sec.  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 Sec.  1109.5(g) (renumbered to Sec.  
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 Sec.  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 Sec.  1109.1--Scope
    Proposed Sec.  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 Sec.  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 Sec.  1109.1 to include finished products. As 
revised, Sec.  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 
Sec.  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 Sec.  1109.2--Purpose
    Proposed Sec.  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

[[Page 69550]]

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 Sec.  1109.3--Applicability
    Proposed Sec.  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 Sec.  1109.4--Definitions
    Proposed Sec.  1109.4 would define various terms used in the rule.
a. Proposed Sec.  1109.4(a)--Certifier
    Proposed Sec.  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 Sec.  1109.4(b)--Component Part
    Proposed Sec.  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 
Sec.  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 Sec.  1109.4(c)--Component Part Certifier
    Proposed Sec.  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 Sec.  1109.4(d)--CPSA
    Proposed Sec.  1109.4(d) would define ``CPSA'' to mean the Consumer 
Product Safety Act.

[[Page 69551]]

    We received no comments on the definition, and we have finalized it 
without change.
e. Proposed Sec.  1109.4(e)--CPSC
    Proposed Sec.  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 Sec.  1109.4(f)--CPSIA
    Proposed Sec.  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 Sec.  1109.4(g)--Due Care
    Proposed Sec.  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 Sec.  1109.4(h)--Finished Product Certifier
    Proposed Sec.  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 Sec.  1109.4(i)--Identical in All Material Respects
    Proposed Sec.  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 Sec.  1109.4(j)--Paint
    Proposed Sec.  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 Sec.  1109.4(k)--Testing Party
    Proposed Sec.  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 Sec.  1109.5(f)(4) (renumbered 
Sec.  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

[[Page 69552]]

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 Sec.  1109.5(g)(7).
l. Proposed Sec.  1109.4(l)--Third Party Conformity Assessment Body
    Proposed Sec.  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 Sec.  1109.4(m)--Traceable
    Proposed Sec.  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 Sec.  1109.4 to clarify which inks are subject to 16 CFR 
1303.2 (b)(2) and, therefore, could be subject to Sec.  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

[[Page 69553]]

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 surface-coating 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 Sec.  1109.11. Although not covered by Sec.  
1109.11, component part testing or certification can be used with 
printing inks and inks that actually become part of the substrate if 
Sec.  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 Sec.  1500.91(d)(6)).
5. Proposed Sec.  1109.5--Conditions and Requirements Generally
    Proposed Sec.  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 Sec.  1109.5(a)--Component Part Testing Allowed
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  1109.5(a)(1)
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  1109.5(a)(2)
    Proposed Sec.  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 
Sec.  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

[[Page 69554]]

the assembly of the finished product. Proposed Sec.  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 Sec.  1109.5(h)(1) (renumbered to Sec.  
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 Sec.  
1109.5(a)(2) into a new Sec.  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 Sec.  1109.5(a)(2), with some 
modifications. In the proposed rule, each of the last three sentences 
in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 69555]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
1109.5(a)(2) with minor editorial changes. For example, on our own 
initiative, we revised the phrase ``finished goods'' in Sec.  
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 Sec.  
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 Sec.  
1109.5(a)(2) to Sec.  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 Sec.  1109.5(b)--Limitation
    Under proposed Sec.  1109.5(b) (renumbered to Sec.  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 Sec.  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 Sec.  1109.5(c)--Test Method and Sampling Protocol
    Proposed Sec.  1109.5(c) (renumbered to Sec.  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 
Sec.  1109.5(c) (renumbered to Sec.  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 Sec.  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

[[Page 69556]]

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 Sec.  1109.5(c) (renumbered to Sec.  
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 Sec.  
1109.5(g) of the final rule to a certifier relying on such 
documentation as the basis for issuing a certificate.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    In addition to the changes discussed in response to comment 9, on 
our own initiative we made several formatting and editorial changes to 
Sec.  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 Sec.  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 Sec.  
1109.5(d)(3) because it is duplicative of the requirement to use 
applicable test methods, if any, presented in Sec.  1109.5(d)(1).
d. Proposed Sec.  1109.5(d)--Timing
    Proposed Sec.  1109.5(d) (renumbered to Sec.  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 Sec.  1109.5(e).
e. Proposed Sec.  1109.5(e)--Traceability
    Proposed Sec.  1109.5(e) (renumbered to Sec.  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 Sec.  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

[[Page 69557]]

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, Sec.  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 Sec.  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 Sec.  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 Sec.  1109.4(k).
f. Proposed Sec.  1109.5(f)--Documentation by Testing Party
    Proposed Sec.  1109.5(f) (renumbered to Sec.  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

[[Page 69558]]

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 Sec.  1109.5(f)(1)
    On our own initiative, we finalized proposed Sec.  1109.5(f)(1) 
(renumbered to Sec.  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 Sec.  1109.5(f)(2)
    (Comment 15)--Some commenters took exception to proposed Sec.  
1109.5(f)(2) (renumbered to Sec.  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 Sec.  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 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 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 
non-excepted 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 Sec.  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 Sec.  1109.5(g)(2).
(3) Proposed Sec.  1109.5(f)(3)
    On our own initiative, we finalized proposed Sec.  1109.5(f)(3) 
(renumbered to Sec.  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 Sec.  1109.5(f)(4)
    We finalized proposed Sec.  1109.5(f)(4) (renumbered to Sec.  
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 Sec.  1109.5(f)(5)
    On our own initiative, we finalized proposed Sec.  1109.5(f)(5) 
(renumbered to Sec.  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 Sec.  1109.5(f)(6)
    We finalized proposed Sec.  1109.5(f)(6) (renumbered to Sec.  
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 Sec.  1109.5(f)(7)
    (Comment 16)--One commenter suggested that the terminology in 
proposed Sec.  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 
Sec.  1109.5(c), and 1109.5(f)(7) (renumbered to Sec. Sec.  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

[[Page 69559]]

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 Sec.  1109.4(k). See section 
II.C.4.k in this preamble. In addition, we have revised Sec.  
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 Sec.  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 Sec.  
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 Sec.  1109.5(f)(7) (renumbered to Sec.  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 Sec.  
1109.5(g)(7). Pursuant to Sec.  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 Sec.  1109.5(f) (renumbered to Sec.  
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 Sec. Sec.  1109.5(g)(8) Through (g)(10)
    On our own initiative, we added three documentation requirements in 
the final rule in Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1109.5(g)(9) requires that a testing party or certifier 
provide: ``[r]ecords to support traceability as defined in Sec.  
1109.4(m) * * *'' to a certifier relying upon such documentation as the 
basis for a certificate. This requirement was moved from proposed Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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

[[Page 69560]]

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 Sec.  1109.5(g)(1)
    Proposed Sec.  1109.5(g)(1) (renumbered to Sec.  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 Sec.  1109.5(h)(1) (renumbered to Sec.  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 
Sec.  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 Sec. Sec.  1109.5(g) and 
1109.5(j) of the final rule.
(2) Proposed Sec.  1109.5(g)(2)
    Proposed Sec.  1109.5(g)(2) (renumbered to Sec.  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 Sec.  1109.5(g) (renumbered to Sec.  1109.5(h) in the 
final rule), or a testing party under proposed Sec.  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 
Sec.  1109.5(g) (now renumbered as Sec.  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 
Sec.  1109.5(f)(7) (now renumbered to Sec.  1109.5(g)(7) in the final 
rule) to ``attestation.'' We made this change to clarify and 
distinguish that the ``attestations'' required in Sec. Sec.  
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 Sec.  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, Sec.  
1109.5(j) of the final rule requires certifiers and testing parties to 
make documentation required by Sec.  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.

[[Page 69561]]

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 Sec.  1109.5(h)--Certification by Finished Product 
Certifiers
(1) Proposed Sec.  1109.h(1)
    Proposed Sec.  1109.5(h)(1) (part of which has been renumbered to 
Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  1109.5(h)(1) to Sec.  
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 Sec.  1109.5(h)(1), now comprises Sec.  1109.5(i)(1), Sec.  
1109.5(i)(2) begins with the second sentence from what was proposed 
Sec.  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 Sec.  
1109.5(i)(2) so that it incorporates all four of the options for 
certifying a finished product under part 1109, now described in Sec.  
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 Sec.  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 Sec.  1109.5(h)(2)
    Proposed Sec.  1109.5(h)(2) (renumbered to Sec.  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 Sec.  
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 Sec.  
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.

[[Page 69562]]

    In addition, we have, on our own initiative, made two changes to 
the first sentence in Sec.  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 Sec.  1109.5(f) to Sec.  1109.5(g) in the final rule, 
where the documentation requirements are now stated.
(3) Proposed Sec.  1109.5(h)(3)
    Under proposed Sec.  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 Sec.  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 Sec.  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 finished-product certification to ``identify'' the testing 
party's compliance with Sec.  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 Sec.  1109.5(h)(3), 
which would require certificates to identify documentation in proposed 
Sec.  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 Sec. Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  1109.5(h)(3) has been deleted in the final rule for 
the reason set forth in response to Comment 21 and because proposed 
Sec.  1109.5(h)(3)(ii) is redundant to Sec.  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 Sec.  1109.5(i)--Recordkeeping Requirements
    Proposed Sec.  1109.5(i) (renumbered to Sec.  1109.5(j) in the 
final rule) would require testing parties to maintain the documentation 
that would be required in proposed Sec.  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

[[Page 69563]]

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 Sec.  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, 
Sec.  1109.5(j) (renumbered from proposed Sec.  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 Sec.  1109.5(i) (renumbered to Sec.  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 Sec.  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, Sec.  1109.5(j) (renumbered from 
proposed Sec.  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, Sec.  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 Sec.  1109.5(g) and (j) (formerly proposed Sec.  
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

[[Page 69564]]

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 Sec.  1109.5(f) 
(renumbered in the final rule to Sec.  1109.5(g)) and the traceability 
requirements of proposed Sec.  1109.5(e) (renumbered to Sec.  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, Sec.  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 surface-coating 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 Sec.  1109.11--Component Part Testing for Paint and Other 
Surface Coatings
    Proposed Sec.  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 Sec.  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 Sec.  1109.4(b) of the final rule. 
On our own initiative, we shortened the name of Sec.  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 Sec.  1109.4(j), which includes other surface coatings.
a. Proposed Sec.  1109.11(a)--Generally
    Proposed Sec.  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 Sec. Sec.  1109.11(a)(1) through 
(a)(3).
    We received no comments on proposed Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1109.5 be 
met, in addition to any more specific requirements set forth in Subpart 
B.
(1) Proposed Sec.  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 Sec.  1109.11(a)(1) (renumbered to Sec.  
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 Sec.  1109.11(a)(1) and (2) 
(renumbered to Sec.  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 Sec.  1109.11(a)(1) to 
Sec.  1109.11(b)(1) in the final rule, and added explanatory

[[Page 69566]]

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 Sec.  
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 Sec.  1109.11(a)(2)
    Proposed Sec.  1109.11(a)(2) (renumbered to Sec.  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 Sec.  1109.11(a)(2), 
which we have summarized above in Comment 33. Additionally, on our own 
initiative, we renumbered proposed Sec.  1109.11(a)(2) to Sec.  
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 Sec.  1109.11(a)(3)
    Proposed Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 
Sec.  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 Sec.  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 Sec.  1109.11(b)--Test Reports
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  1109.5(a)(2) of the final 
rule, as well as Sec.  1109.11(b)(2). Finally, identification of the 
paint tested is required by Sec.  1109.5(g)(1) of the final rule.

[[Page 69567]]

c. Proposed Sec.  1109.11(c)--Paint Certificates
(1) Proposed Sec.  1109.11(c)(1)--Children's Products
    Proposed Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  
1109.5(a)(2) of the final rule, as well as Sec.  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 Sec.  1109.11(c)(2)--Non-Children's products
    Proposed Sec.  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 Sec.  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 non-children's products and 
the general requirements for component part testing or certification in 
Sec.  1109.5 of the final rule. Moreover, pursuant to Sec.  1109.5(a) 
of the final rule, a finished product certifier may rely on component 
part testing to certify its product.
(3) Proposed Sec.  1109.11(c)(3)--Traceability
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  1109.11(c)(3), because it was 
duplicative of the traceability requirements in Sec. Sec.  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 Sec.  
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 Sec.  1109.11(c)(3) from the final rule 
because it is duplicative of the general traceability requirements that 
apply to all component parts in Sec. Sec.  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 Sec.  1109.11(c)(4)--Prevention of Contamination 
Subsequent to Testing
    Proposed Sec.  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 Sec.  1109.11(c)(4) from the final rule because 
it is duplicative of Sec.  1109.5(b) on test result integrity that 
applies to all certifiers and testing parties.
2. Proposed Sec.  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/

[[Page 69568]]

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 Sec.  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 CPSC-accepted 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

[[Page 69569]]

products. The commenter also said the 90 ppm lead concentration limit 
is not realistic. The standard aluminum die-cast 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 Sec.  1109.12(a)--Generally
    Proposed Sec.  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 Sec.  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 Sec.  
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 Sec.  1109.12(a)(2) from 
the final rule because it is duplicative of the general requirements 
for component part testing set forth in Sec. Sec.  1109.5(g) 
(documentation requirements) and (i) (requirements for finished product 
certifiers) of the final rule. We also added a citation to Sec.  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 Sec.  1109.12(a) was renumbered to Sec.  1109.12, and 
we moved the language that was in proposed Sec.  1109.12(a)(1) into 
Sec.  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 Sec.  1109.12(b)--Component Part Test Reports
    Proposed Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  1109.5(g) of the final 
rule.
c. Proposed Sec.  1109.12(c)--Component Part Certificates
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 69570]]

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 Sec.  
1109.5(a)(2) of the final rule. Finally, documentation requirements for 
reliance on certifications are set forth in Sec.  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 Sec.  1109.12(d)--Certificates for the Finished Product
    Proposed Sec.  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 Sec.  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 Sec.  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).
---------------------------------------------------------------------------

    \3\ Untreated/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.
---------------------------------------------------------------------------

    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 Sec.  1109.13(a)--Generally
    Proposed Sec.  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 Sec.  
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 Sec.  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 Sec.  1109.5 are met.
b. Proposed Sec.  1109.13(b)--Component Part Test Reports
    Proposed Sec.  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 Sec.  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 Sec.  1109.5 of the final rule.

[[Page 69571]]

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 Sec.  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 Sec.  1109.5(g) 
of the final rule.
c. Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec. Sec.  1109.4(m) and 1109.5(f) 
of the final rule.
d. Proposed Sec.  1109.13(d)--Certificates for the Finished Product
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  1109.14(a)--Paint and Other Surface Coatings
    Proposed Sec.  1109.14(a) (renumbered to Sec.  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 Sec.  1109.14(c). Testing and certification of 
composite paints must comply with proposed Sec.  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 Sec.  
1109.21 (a):

    A certificate may be based on testing each component part of the 
paint according to the requirements of Sec.  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.

[[Page 69572]]

    (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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
1109.5 and the requirements for component part testing of paints set 
forth in Sec.  1109.11.
b. Proposed Sec.  1109.14(b)--Component Parts
    Proposed Sec.  1109.14(b) (renumbered to Sec.  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 Sec.  1109.14(c). Testing and certification of composite 
component parts for lead content must comply with Sec.  1109.12. 
Testing and certification of composite component parts for phthalate 
content must comply with Sec.  1109.13.
    We did not receive any comments on proposed Sec.  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 Sec.  1109.5 as well as the 
requirements for component part testing of lead content in Sec.  
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 Sec.  1109.5 as well as the 
requirements for component part testing of phthalate content in Sec.  
1109.13.
c. Proposed Sec.  1109.14(c)--How To Evaluate Composite Part Testing
    Proposed Sec.  1109.14(c) (renumbered to Sec.  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 Sec.  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

[[Page 69573]]

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 paper-based 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

[[Page 69574]]

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

[[Page 69575]]

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.

[[Page 69576]]

    (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.
---------------------------------------------------------------------------

    \4\ Based 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \5\ While 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.
---------------------------------------------------------------------------

    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

[[Page 69577]]

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

[[Page 69578]]

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 full-time 
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;

[[Page 69579]]

     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 Sec.  
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 Sec.  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;
    [dec222] 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;
    [dec222] An average of 3 hours will be required for the 
recordkeeping associated with these products;
     Total hour burden = 5.4 million hours (300,000 x 5 hours 
plus 1,300,000 x 3 hours);
     Total cost of recordkeeping burden = $197 million (5.4 
million hours x $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

[[Page 69580]]

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

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

[[Page 69581]]

    (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.

Sec.  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;

[[Page 69582]]

    (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 Sec.  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

Sec.  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 Sec.  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.

Sec.  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 Sec.  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.

Sec.  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 Sec.  1109.5 are met.

Subpart C--Conditions and Requirements for Composite Testing

Sec.  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

[[Page 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 Sec.  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 Sec. Sec.  
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 Sec. Sec.  1109.5 and 1109.12. Testing and certification of 
composite component parts for phthalate content must also comply with 
Sec. Sec.  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
```