Third Party Testing for Certain Children's Products; Carpets and Rugs: Requirements for Accreditation of Third Party Conformity Assessment Bodies, 42315-42318 [2010-17724]
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Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Parts 1630 and 1631
[CPSC Docket No. CPSC–2010–0078]
Third Party Testing for Certain
Children’s Products; Carpets and
Rugs: Requirements for Accreditation
of Third Party Conformity Assessment
Bodies
Consumer Product Safety
Commission.
ACTION: Notice of Requirements.
AGENCY:
The Consumer Product Safety
Commission (CPSC or Commission) is
issuing a notice of requirements that
provides the criteria and process for
Commission acceptance of accreditation
of third party conformity assessment
bodies for testing pursuant to the CPSC
regulations relating to carpets and rugs.
The Commission is issuing this notice of
requirements pursuant to the Consumer
Product Safety Act (CPSA).
DATES: Effective Date: The requirements
for accreditation of third party
conformity assessment bodies to assess
conformity with 16 CFR parts 1630 and/
or 1631 are effective upon publication of
this document in the Federal Register.1
Comments in response to this notice
of requirements should be submitted by
August 20, 2010. Comments on this
notice should be captioned ‘‘Third Party
Testing for Certain Children’s Products;
Carpets and Rugs: Requirements for
Accreditation of Third Party Conformity
Assessment Bodies.’’
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2010–
0078 by any of the following methods:
Electronic Submissions: Submit
electronic comments in the following
way:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
To ensure timely processing of
comments, the Commission is no longer
accepting comments submitted by
electronic mail (e-mail) except through
https://www.regulations.gov.
Written Submissions: Submit written
submissions in the following way:
Mail/Hand delivery/Courier (for
paper, disk, or CD–ROM submissions)
preferably in five copies, to: Office of
the Secretary, U.S. Consumer Product
Safety Commission, Room 820, 4330
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SUMMARY:
1 The Commission voted 3–2 to publish this
notice of requirements. Chairman Inez M.
Tenenbaum, Commissioner Nancy A. Nord, and
Commissioner Anne Meagher Northup each issued
a statement, and the statements can be found at
https://www.cpsc.gov/pr/statements.html.
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East-West Highway, Bethesda, Maryland
20814; telephone (301) 504–7923.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received may be posted
without change to https://
www.regulations.gov, including any
personal information provided. Do not
submit confidential business
information, trade secret information, or
other sensitive or protected information
(such as a Social Security Number)
electronically; if furnished at all, such
information should be submitted in
writing.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Robert ‘‘Jay’’ Howell, Assistant Executive
Director for Hazard Identification and
Reduction, U.S. Consumer Product
Safety Commission, 4330 East-West
Highway, Bethesda, Maryland 20814; email rhowell@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
Section 14(a)(3)(B)(vi) of the CPSA, as
added by section 102(a)(2) of the
Consumer Product Safety Improvement
Act of 2008 (CPSIA), Public Law 110–
314, directs the CPSC to publish a
notice of requirements for accreditation
of third party conformity assessment
bodies to assess children’s products for
conformity with ‘‘other children’s
product safety rules.’’ Section 14(f)(1) of
the CPSA defines ‘‘children’s product
safety rule’’ as ‘‘a consumer product
safety rule under [the CPSA] or similar
rule, regulation, standard, or ban under
any other Act enforced by the
Commission, including a rule declaring
a consumer product to be a banned
hazardous product or substance.’’ Under
section 14(a)(3)(A) of the CPSA, each
manufacturer (including the importer)
or private labeler of products subject to
those regulations must have products
that are manufactured more than 90
days after the Federal Register
publication date of a notice of the
requirements for accreditation, tested by
a third party conformity assessment
body accredited to do so, and must issue
a certificate of compliance with the
applicable regulations based on that
testing. Section 14(a)(2) of the CPSA, as
added by section 102(a)(2) of the CPSIA,
requires that certification be based on
testing of sufficient samples of the
product, or samples that are identical in
all material respects to the product. The
Commission also emphasizes that,
irrespective of certification, the product
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42315
in question must comply with
applicable CPSC requirements (see, e.g.,
section 14(h) of the CPSA, as added by
section 102(b) of the CPSIA).
The Commission also is recognizing
limited circumstances in which it will
accept certifications based on product
testing conducted before the third party
conformity assessment body is accepted
as accredited by the CPSC. The details
regarding those limited circumstances
can be found in part IV of this document
below.
This notice provides the criteria and
process for Commission acceptance of
accreditation of third party conformity
assessment bodies for testing pursuant
to the following regulations:
• 16 CFR part 1630, Standard for the
Surface Flammability of Carpets and
Rugs (FF 1–70).
• 16 CFR part 1631, Standard for the
Surface Flammability of Small Carpets
and Rugs (FF 2–70).
Section 3(a)(2) of the CPSA defines a
children’s product as ‘‘a consumer
product designed or intended primarily
for children 12 years of age or younger.’’
Although most carpets and rugs are
general use products because they are
produced for general consumption
rather than being produced specifically
for use by children, some carpets and
rugs are ‘‘designed or intended primarily
for children 12 years of age or younger.’’
(For convenience, we will refer to
carpets and rugs designed or intended
primarily for children 12 years of age or
younger as ‘‘youth carpets and rugs.’’)
Youth carpets and rugs are subject to the
third party testing and certification
requirements in section 14(a)(2) of the
CPSA. Accordingly, this notice of
requirements addresses the
accreditation of conformity assessment
bodies to test youth carpets and rugs for
conformity with 16 CFR parts 1630 and/
or 1631.
Although section 14(a)(3)(B)(vi) of the
CPSA directs the CPSC to publish a
notice of requirements for accreditation
of third party conformity assessment
bodies to assess conformity with ‘‘all
other children’s product safety rules,’’
this notice of requirements is limited to
the regulations identified immediately
above.
The CPSC also recognizes that section
14(a)(3)(B)(vi) of the CPSA is captioned
as ‘‘All Other Children’s Product Safety
Rules,’’ but the body of the statutory
requirement refers only to ‘‘other
children’s product safety rules.’’
Nevertheless, section 14(a)(3)(B)(vi) of
the CPSA could be construed as
requiring a notice of requirements for
‘‘all’’ other children’s product safety
rules, rather than a notice of
requirements for ‘‘some’’ or ‘‘certain’’
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Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations
children’s product safety rules.
However, whether a particular rule
represents a ‘‘children’s product safety
rule’’ may be subject to interpretation,
and the Commission staff is continuing
to evaluate which rules, regulations,
standards, or bans are ‘‘children’s
product safety rules.’’ The CPSC intends
to issue additional notices of
requirements for other rules which the
Commission determines to be
‘‘children’s product safety rules.’’
This notice of requirements applies to
all third party conformity assessment
bodies as described in section 14(f)(2) of
the CPSA. Generally speaking, such
third party conformity assessment
bodies are: (1) Third party conformity
assessment bodies that are not owned,
managed, or controlled by a
manufacturer or private labeler of a
children’s product to be tested by the
third party conformity assessment body
for certification purposes; (2)
‘‘firewalled’’ conformity assessment
bodies (those that are owned, managed,
or controlled by a manufacturer or
private labeler of a children’s product to
be tested by the third party conformity
assessment body for certification
purposes and that seek accreditation
under the additional statutory criteria
for ‘‘firewalled’’ conformity assessment
bodies); and (3) third party conformity
assessment bodies owned or controlled,
in whole or in part, by a government.
The Commission requires baseline
accreditation of each category of third
party conformity assessment body to the
International Organization for
Standardization (ISO)/International
Electrotechnical Commission (IEC)
Standard 17025:2005, ‘‘General
Requirements for the Competence of
Testing and Calibration Laboratories.’’
The accreditation must be by an
accreditation body that is a signatory to
the International Laboratory
Accreditation Cooperation-Mutual
Recognition Arrangement (ILAC–MRA),
and the scope of the accreditation must
include testing in accordance with the
regulations identified earlier in part I of
this document for which the third party
conformity assessment body seeks to be
accredited.
(A description of the history and
content of the ILAC–MRA approach and
of the requirements of the ISO/IEC
17025:2005 laboratory accreditation
standard is provided in the CPSC staff
briefing memorandum ‘‘Third Party
Conformity Assessment Body
Accreditation Requirements for Testing
Compliance with 16 CFR Part 1501
(Small Parts Regulations),’’ dated
November 2008 and available on the
CPSC’s Web site at https://www.cpsc.gov/
library/foia/foia09/brief/smallparts.pdf.)
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The Commission has established an
electronic accreditation registration and
listing system that can be accessed via
its Web site at https://www.cpsc.gov/
ABOUT/Cpsia/labaccred.html.
The Commission stayed the
enforcement of certain provisions of
section 14(a) of the CPSA in a notice
published in the Federal Register on
February 9, 2009 (74 FR 6396); the stay
applied to testing and certification of
various products, including carpets and
rugs. On December 28, 2009, the
Commission published a notice in the
Federal Register (74 FR 68588) revising
the terms of the stay. One section of the
December 28, 2009, notice addressed
‘‘Consumer Products or Children’s
Products Where the Commission Is
Continuing the Stay of Enforcement
Until Further Notice,’’ due to factors
such as pending rulemaking
proceedings affecting the product or the
absence of a notice of requirements. The
carpets and rugs testing and certification
requirements were included in that
section of the December 28, 2009,
notice. As the factor preventing the stay
from being lifted in the December 28,
2009, notice with regard to testing and
certifications of carpets and rugs was
the absence of a notice of requirements,
publication of this notice has the effect
of lifting the stay with regard to 16 CFR
parts 1630 and/or 1631.
The Commission noted in the
December 28, 2009, notice that the stay
of enforcement did not extend to
guaranties under the Flammable Fabrics
Act (15 U.S.C. 1191 et seq.) (FFA). The
manufacturer or supplier of a carpet or
rug may issue a guaranty, based on
reasonable and representative tests, that
the carpet or rug complies with FFA
standards. The holder of a valid
guaranty is not subject to criminal
prosecution under section 7 of the FFA
(penalties) for a violation of section 3 of
the FFA (prohibited transactions).
The reasonable and representative
tests sufficient for the issuance of an
FFA guaranty are generally performed
by the manufacturer; those tests are
sufficient for the issuance of a general
conformity certification for
nonchildren’s products under section
14(a)(1) of the CPSA. However, because
section 14(a)(2) of the CPSA requires
children’s products subject to a
children’s product safety rule to be
tested by an accredited third party
conformity assessment body, reasonable
and representative tests sufficient for
the issuance of an FFA guaranty which
are performed by a manufacturer are not
sufficient for the issuance of a
certification of compliance with 16 CFR
part 1630 and/or part 1631 for youth
carpets and rugs (unless the
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manufacturer’s facility is a CPSCaccredited firewalled conformity
assessment body).
This notice of requirements is
effective on July 21, 2010. Further, as
the publication of this notice of
requirements effectively lifts the stay of
enforcement with regard to testing and
certifications related to 16 CFR parts
1630 and/or 1631, each manufacturer
(including the importer) or private
labeler of a children’s product subject to
16 CFR parts 1630 and/or 1631 must
have any such product manufactured
after October 19, 2010 tested by a third
party conformity assessment body
accredited to do so and must issue a
certificate of compliance with 16 CFR
parts 1630 and/or 1631 based on that
testing.
This notice of requirements is exempt
from the notice and comment
rulemaking requirements of the
Administrative Procedure Act, 5 U.S.C.
553 (see section 14(a)(3)(G) of the CPSA,
as added by section 102(a)(2) of the
CPSIA (15 U.S.C. 2063(a)(3)(G)).
II. Accreditation Requirements
A. Baseline Third Party Conformity
Assessment Body Accreditation
Requirements
For a third party conformity
assessment body to be accredited to test
children’s products for conformity with
the test methods in the regulations
identified earlier in part I of this
document, it must be accredited by an
ILAC–MRA signatory accrediting body,
and the accreditation must be registered
with, and accepted by, the Commission.
A listing of ILAC–MRA signatory
accrediting bodies is available on the
Internet at https://ilac.org/
membersbycategory.html. The
accreditation must be to ISO Standard
ISO/IEC 17025:2005, ‘‘General
Requirements for the Competence of
Testing and Calibration Laboratories,’’
and the scope of the accreditation must
expressly include testing to the
regulations in 16 CFR part 1630,
Standard for the Surface Flammability
of Carpets and Rugs (FF 1–70), and/or
16 CFR part 1631, Standard for the
Surface Flammability of Small Carpets
and Rugs (FF 2–70). A true copy, in
English, of the accreditation and scope
documents demonstrating compliance
with the requirements of this notice
must be registered with the Commission
electronically. The additional
requirements for accreditation of
firewalled and governmental conformity
assessment bodies are described in parts
II.B and II.C of this document below.
The Commission will maintain on its
Web site an up-to-date listing of third
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party conformity assessment bodies
whose accreditations it has accepted
and the scope of each accreditation.
Subject to the limited provisions for
acceptance of ‘‘retrospective’’ testing
noted in part IV below, once the
Commission adds a third party
conformity assessment body to that list,
the third party conformity assessment
body may commence testing of
children’s products to support
certification by the manufacturer or
private labeler of compliance with the
regulations identified earlier in part I of
this document.
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B. Additional Accreditation
Requirements for Firewalled Conformity
Assessment Bodies
In addition to the baseline
accreditation requirements in part II.A
of this document above, firewalled
conformity assessment bodies seeking
accredited status must submit to the
Commission copies, in English, of their
training documents showing how
employees are trained to notify the
Commission immediately and
confidentially of any attempt by the
manufacturer, private labeler, or other
interested party to hide or exert undue
influence over the third party
conformity assessment body’s test
results. This additional requirement
applies to any third party conformity
assessment body in which a
manufacturer or private labeler of a
children’s product to be tested by the
third party conformity assessment body
owns an interest of ten percent or more.
While the Commission is not addressing
common parentage of a third party
conformity assessment body and a
children’s product manufacturer at this
time, it will be vigilant to see if this
issue needs to be addressed in the
future.
As required by section 14(f)(2)(D) of
the CPSA, the Commission must
formally accept, by order, the
accreditation application of a third party
conformity assessment body before the
third party conformity assessment body
can become an accredited firewalled
conformity assessment body.
C. Additional Accreditation
Requirements for Governmental
Conformity Assessment Bodies
In addition to the baseline
accreditation requirements of part II.A
of this document above, the CPSIA
permits accreditation of a third party
conformity assessment body owned or
controlled, in whole or in part, by a
government if:
• To the extent practicable,
manufacturers or private labelers
located in any nation are permitted to
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choose conformity assessment bodies
that are not owned or controlled by the
government of that nation;
• The third party conformity
assessment body’s testing results are not
subject to undue influence by any other
person, including another governmental
entity;
• The third party conformity
assessment body is not accorded more
favorable treatment than other third
party conformity assessment bodies in
the same nation who have been
accredited;
• The third party conformity
assessment body’s testing results are
accorded no greater weight by other
governmental authorities than those of
other accredited third party conformity
assessment bodies; and
• The third party conformity
assessment body does not exercise
undue influence over other
governmental authorities on matters
affecting its operations or on decisions
by other governmental authorities
controlling distribution of products
based on outcomes of the third party
conformity assessment body’s
conformity assessments.
The Commission will accept the
accreditation of a governmental third
party conformity assessment body if it
meets the baseline accreditation
requirements of part II.A of this
document above and meets the
additional conditions stated here. To
obtain this assurance, CPSC staff will
engage the governmental entities
relevant to the accreditation request.
III. How does a third party conformity
assessment body apply for acceptance
of its accreditation?
The Commission has established an
electronic accreditation acceptance and
registration system accessed via the
Commission’s Internet site at https://
www.cpsc.gov/about/cpsia/
labaccred.html. The applicant provides,
in English, basic identifying information
concerning its location, the type of
accreditation it is seeking, and
electronic copies of its ILAC–MRA
accreditation certificate and scope
statement, and firewalled third party
conformity assessment body training
document(s), if relevant.
Commission staff will review the
submission for accuracy and
completeness. In the case of baseline
third party conformity assessment
bodies and government-owned or
government-operated conformity
assessment bodies, when that review
and any necessary discussions with the
applicant are satisfactorily completed,
the third party conformity assessment
body in question is added to the CPSC’s
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list of accredited third party conformity
assessment bodies at https://
www.cpsc.gov/about/cpsia/
labaccred.html. In the case of a
firewalled conformity assessment body
seeking accredited status, when the
staff’s review is complete, the staff
transmits its recommendation on
accreditation to the Commission for
consideration. (A third party conformity
assessment body that may ultimately
seek acceptance as a firewalled third
party conformity assessment body also
can initially request acceptance as a
third party conformity assessment body
accredited for testing of children’s
products other than those of its owners.)
If the Commission accepts a staff
recommendation to accredit a firewalled
conformity assessment body, the
firewalled conformity assessment body
will then be added to the CPSC’s list of
accredited third party conformity
assessment bodies. In each case, the
Commission will notify the third party
conformity assessment body
electronically of acceptance of its
accreditation. All information to
support an accreditation acceptance
request must be provided in the English
language.
Subject to the limited provisions for
acceptance of ‘‘retrospective’’ testing
noted in part IV of this document below,
once the Commission adds a third party
conformity assessment body to the list,
the third party conformity assessment
body may then begin testing of
children’s products to support
certification of compliance with the
regulations identified earlier in part I of
this document for which it has been
accredited.
IV. Limited Acceptance of Children’s
Product Certifications Based on Third
Party Conformity Assessment Body
Testing Prior to the Commission’s
Acceptance of Accreditation
The Commission will accept a
certificate of compliance with the
standards for carpets and rugs included
in 16 CFR part 1630, Standard for the
Surface Flammability of Carpets and
Rugs (FF 1–70), and/or 16 CFR part
1631, Standard for the Surface
Flammability of Small Carpets and Rugs
(FF 2–70), based on testing performed by
an accredited third party conformity
assessment body (including a
government-owned or -controlled
conformity assessment body, and a
firewalled conformity assessment body)
prior to the Commission’s acceptance of
its accreditation if:
• At the time of product testing, the
product was tested by a third party
conformity assessment body that was
ISO/IEC 17025 accredited by an ILAC–
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MRA member at the time of the test. For
firewalled conformity assessment
bodies, the firewalled conformity
assessment body must be one that the
Commission accredited by order at or
before the time the product was tested,
even though the order will not have
included the test methods in the
regulations specified in this notice. If
the third party conformity assessment
body has not been accredited by a
Commission order as a firewalled
conformity assessment body, the
Commission will not accept a certificate
of compliance based on testing
performed by the third party conformity
assessment body before it is accredited,
by Commission order, as a firewalled
conformity assessment body;
• The third party conformity
assessment body’s application for
testing using the test methods in the
regulations identified in this notice is
accepted by the CPSC on or before
September 20, 2010;
• The product was tested on or after
July 21, 2010 with respect to the
regulations identified in this notice;
• The accreditation scope in effect for
the third party conformity assessment
body at the time of testing expressly
included testing to the regulations
identified earlier in part I of this
document;
• The test results show compliance
with the applicable current standards
and/or regulations; and
• The third party conformity
assessment body’s accreditation,
including inclusion in its scope the
standards described in part I of this
notice, remains in effect through the
effective date for mandatory third party
testing and manufacturer/private labeler
certification for conformity with 16 CFR
parts 1630 and/or 1631.
Dated: July 15, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2010–17724 Filed 7–20–10; 8:45 am]
BILLING CODE 6355–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
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[EPA–HQ–OPP–2009–0692; FRL–8830–6]
Poly(oxy-1,2-ethanediyl), α-isotridecylw-methoxy; Exemption from the
Requirement of a Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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This regulation establishes an
exemption from the requirement of a
tolerance for residues of poly(oxy-1,2ethanediyl), a-isotridecyl-w-methoxy
(CAS Reg. No. 345642–79–7) when used
as an inert ingredient (surfactant) at a
maximum concentration of 10% in
pesticide formulations under 40 CFR
180.920 on growing crops only. Bayer
CropScience submitted a petition to
EPA under the Federal Food, Drug, and
Cosmetic Act (FFDCA), requesting
establishment of an exemption from the
requirement of a tolerance. This
regulation eliminates the need to
establish a maximum permissible level
for residues of poly(oxy-1,2-ethanediyl),
a-isotridecyl-w-methoxy.
DATES: This regulation is effective July
21, 2010. Objections and requests for
hearings must be received on or before
September 20, 2010, and must be filed
in accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
This listing is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0692. All documents in the
docket are listed in the docket index
available at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Deirdre Sunderland, Registration
Division (7505P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460–0001; telephone
number: (703) 603–0851; e-mail address:
sunderland.deirdre@epa.gov.
SUPPLEMENTARY INFORMATION:
B. How Can I Get Electronic Access to
Other Related Information?
You may access a frequently updated
electronic version of 40 CFR part 180
through the Government Printing
Office’s e-CFR cite at https://
www.gpoaccess.gov/ecfr. To access the
OPPTS Harmonized Test Guidelines
referenced in this document
electronically, please go to https://
www.epa.gov/oppts and select ‘‘Test
Methods and Guidelines.’’
SUMMARY:
ADDRESSES:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
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C. Can I File an Objection or Hearing
Request?
Under section 408(g) of FFDCA, 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. The EPA procedural
regulations which govern the
submission of objections and requests
for hearings appear in 40 CFR part 178.
You must file your objection or request
a hearing on this regulation in
accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2009–0692 in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing, and must be
received by the Hearing Clerk on or
before September 20, 2010. Addresses
for mail and hand delivery of objections
and hearing requests are provided in 40
CFR 178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
E:\FR\FM\21JYR1.SGM
21JYR1
]]>Agencies
[Federal Register Volume 75, Number 139 (Wednesday, July 21, 2010)]
[Rules and Regulations]
[Pages 42315-42318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17724]
[[Page 42315]]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1630 and 1631
[CPSC Docket No. CPSC-2010-0078]
Third Party Testing for Certain Children's Products; Carpets and
Rugs: Requirements for Accreditation of Third Party Conformity
Assessment Bodies
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of Requirements.
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SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) is
issuing a notice of requirements that provides the criteria and process
for Commission acceptance of accreditation of third party conformity
assessment bodies for testing pursuant to the CPSC regulations relating
to carpets and rugs. The Commission is issuing this notice of
requirements pursuant to the Consumer Product Safety Act (CPSA).
DATES: Effective Date: The requirements for accreditation of third
party conformity assessment bodies to assess conformity with 16 CFR
parts 1630 and/or 1631 are effective upon publication of this document
in the Federal Register.\1\
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\1\ The Commission voted 3-2 to publish this notice of
requirements. Chairman Inez M. Tenenbaum, Commissioner Nancy A.
Nord, and Commissioner Anne Meagher Northup each issued a statement,
and the statements can be found at https://www.cpsc.gov/pr/statements.html.
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Comments in response to this notice of requirements should be
submitted by August 20, 2010. Comments on this notice should be
captioned ``Third Party Testing for Certain Children's Products;
Carpets and Rugs: Requirements for Accreditation of Third Party
Conformity Assessment Bodies.''
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0078 by any of the following methods:
Electronic Submissions: Submit electronic comments in the following
way:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments. To ensure timely processing of
comments, the Commission is no longer accepting comments submitted by
electronic mail (e-mail) except through https://www.regulations.gov.
Written Submissions: Submit written submissions in the following
way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions)
preferably in five copies, to: Office of the Secretary, U.S. Consumer
Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda,
Maryland 20814; telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received may be posted
without change to https://www.regulations.gov, including any personal
information provided. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
(such as a Social Security Number) electronically; if furnished at all,
such information should be submitted in writing.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Robert ``Jay'' Howell, Assistant
Executive Director for Hazard Identification and Reduction, U.S.
Consumer Product Safety Commission, 4330 East-West Highway, Bethesda,
Maryland 20814; e-mail rhowell@cpsc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2)
of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public
Law 110-314, directs the CPSC to publish a notice of requirements for
accreditation of third party conformity assessment bodies to assess
children's products for conformity with ``other children's product
safety rules.'' Section 14(f)(1) of the CPSA defines ``children's
product safety rule'' as ``a consumer product safety rule under [the
CPSA] or similar rule, regulation, standard, or ban under any other Act
enforced by the Commission, including a rule declaring a consumer
product to be a banned hazardous product or substance.'' Under section
14(a)(3)(A) of the CPSA, each manufacturer (including the importer) or
private labeler of products subject to those regulations must have
products that are manufactured more than 90 days after the Federal
Register publication date of a notice of the requirements for
accreditation, tested by a third party conformity assessment body
accredited to do so, and must issue a certificate of compliance with
the applicable regulations based on that testing. Section 14(a)(2) of
the CPSA, as added by section 102(a)(2) of the CPSIA, requires that
certification be based on testing of sufficient samples of the product,
or samples that are identical in all material respects to the product.
The Commission also emphasizes that, irrespective of certification, the
product in question must comply with applicable CPSC requirements (see,
e.g., section 14(h) of the CPSA, as added by section 102(b) of the
CPSIA).
The Commission also is recognizing limited circumstances in which
it will accept certifications based on product testing conducted before
the third party conformity assessment body is accepted as accredited by
the CPSC. The details regarding those limited circumstances can be
found in part IV of this document below.
This notice provides the criteria and process for Commission
acceptance of accreditation of third party conformity assessment bodies
for testing pursuant to the following regulations:
16 CFR part 1630, Standard for the Surface Flammability of
Carpets and Rugs (FF 1-70).
16 CFR part 1631, Standard for the Surface Flammability of
Small Carpets and Rugs (FF 2-70).
Section 3(a)(2) of the CPSA defines a children's product as ``a
consumer product designed or intended primarily for children 12 years
of age or younger.'' Although most carpets and rugs are general use
products because they are produced for general consumption rather than
being produced specifically for use by children, some carpets and rugs
are ``designed or intended primarily for children 12 years of age or
younger.'' (For convenience, we will refer to carpets and rugs designed
or intended primarily for children 12 years of age or younger as
``youth carpets and rugs.'') Youth carpets and rugs are subject to the
third party testing and certification requirements in section 14(a)(2)
of the CPSA. Accordingly, this notice of requirements addresses the
accreditation of conformity assessment bodies to test youth carpets and
rugs for conformity with 16 CFR parts 1630 and/or 1631.
Although section 14(a)(3)(B)(vi) of the CPSA directs the CPSC to
publish a notice of requirements for accreditation of third party
conformity assessment bodies to assess conformity with ``all other
children's product safety rules,'' this notice of requirements is
limited to the regulations identified immediately above.
The CPSC also recognizes that section 14(a)(3)(B)(vi) of the CPSA
is captioned as ``All Other Children's Product Safety Rules,'' but the
body of the statutory requirement refers only to ``other children's
product safety rules.'' Nevertheless, section 14(a)(3)(B)(vi) of the
CPSA could be construed as requiring a notice of requirements for
``all'' other children's product safety rules, rather than a notice of
requirements for ``some'' or ``certain''
[[Page 42316]]
children's product safety rules. However, whether a particular rule
represents a ``children's product safety rule'' may be subject to
interpretation, and the Commission staff is continuing to evaluate
which rules, regulations, standards, or bans are ``children's product
safety rules.'' The CPSC intends to issue additional notices of
requirements for other rules which the Commission determines to be
``children's product safety rules.''
This notice of requirements applies to all third party conformity
assessment bodies as described in section 14(f)(2) of the CPSA.
Generally speaking, such third party conformity assessment bodies are:
(1) Third party conformity assessment bodies that are not owned,
managed, or controlled by a manufacturer or private labeler of a
children's product to be tested by the third party conformity
assessment body for certification purposes; (2) ``firewalled''
conformity assessment bodies (those that are owned, managed, or
controlled by a manufacturer or private labeler of a children's product
to be tested by the third party conformity assessment body for
certification purposes and that seek accreditation under the additional
statutory criteria for ``firewalled'' conformity assessment bodies);
and (3) third party conformity assessment bodies owned or controlled,
in whole or in part, by a government.
The Commission requires baseline accreditation of each category of
third party conformity assessment body to the International
Organization for Standardization (ISO)/International Electrotechnical
Commission (IEC) Standard 17025:2005, ``General Requirements for the
Competence of Testing and Calibration Laboratories.'' The accreditation
must be by an accreditation body that is a signatory to the
International Laboratory Accreditation Cooperation-Mutual Recognition
Arrangement (ILAC-MRA), and the scope of the accreditation must include
testing in accordance with the regulations identified earlier in part I
of this document for which the third party conformity assessment body
seeks to be accredited.
(A description of the history and content of the ILAC-MRA approach
and of the requirements of the ISO/IEC 17025:2005 laboratory
accreditation standard is provided in the CPSC staff briefing
memorandum ``Third Party Conformity Assessment Body Accreditation
Requirements for Testing Compliance with 16 CFR Part 1501 (Small Parts
Regulations),'' dated November 2008 and available on the CPSC's Web
site at https://www.cpsc.gov/library/foia/foia09/brief/smallparts.pdf.)
The Commission has established an electronic accreditation
registration and listing system that can be accessed via its Web site
at https://www.cpsc.gov/ABOUT/Cpsia/labaccred.html.
The Commission stayed the enforcement of certain provisions of
section 14(a) of the CPSA in a notice published in the Federal Register
on February 9, 2009 (74 FR 6396); the stay applied to testing and
certification of various products, including carpets and rugs. On
December 28, 2009, the Commission published a notice in the Federal
Register (74 FR 68588) revising the terms of the stay. One section of
the December 28, 2009, notice addressed ``Consumer Products or
Children's Products Where the Commission Is Continuing the Stay of
Enforcement Until Further Notice,'' due to factors such as pending
rulemaking proceedings affecting the product or the absence of a notice
of requirements. The carpets and rugs testing and certification
requirements were included in that section of the December 28, 2009,
notice. As the factor preventing the stay from being lifted in the
December 28, 2009, notice with regard to testing and certifications of
carpets and rugs was the absence of a notice of requirements,
publication of this notice has the effect of lifting the stay with
regard to 16 CFR parts 1630 and/or 1631.
The Commission noted in the December 28, 2009, notice that the stay
of enforcement did not extend to guaranties under the Flammable Fabrics
Act (15 U.S.C. 1191 et seq.) (FFA). The manufacturer or supplier of a
carpet or rug may issue a guaranty, based on reasonable and
representative tests, that the carpet or rug complies with FFA
standards. The holder of a valid guaranty is not subject to criminal
prosecution under section 7 of the FFA (penalties) for a violation of
section 3 of the FFA (prohibited transactions).
The reasonable and representative tests sufficient for the issuance
of an FFA guaranty are generally performed by the manufacturer; those
tests are sufficient for the issuance of a general conformity
certification for nonchildren's products under section 14(a)(1) of the
CPSA. However, because section 14(a)(2) of the CPSA requires children's
products subject to a children's product safety rule to be tested by an
accredited third party conformity assessment body, reasonable and
representative tests sufficient for the issuance of an FFA guaranty
which are performed by a manufacturer are not sufficient for the
issuance of a certification of compliance with 16 CFR part 1630 and/or
part 1631 for youth carpets and rugs (unless the manufacturer's
facility is a CPSC-accredited firewalled conformity assessment body).
This notice of requirements is effective on July 21, 2010. Further,
as the publication of this notice of requirements effectively lifts the
stay of enforcement with regard to testing and certifications related
to 16 CFR parts 1630 and/or 1631, each manufacturer (including the
importer) or private labeler of a children's product subject to 16 CFR
parts 1630 and/or 1631 must have any such product manufactured after
October 19, 2010 tested by a third party conformity assessment body
accredited to do so and must issue a certificate of compliance with 16
CFR parts 1630 and/or 1631 based on that testing.
This notice of requirements is exempt from the notice and comment
rulemaking requirements of the Administrative Procedure Act, 5 U.S.C.
553 (see section 14(a)(3)(G) of the CPSA, as added by section 102(a)(2)
of the CPSIA (15 U.S.C. 2063(a)(3)(G)).
II. Accreditation Requirements
A. Baseline Third Party Conformity Assessment Body Accreditation
Requirements
For a third party conformity assessment body to be accredited to
test children's products for conformity with the test methods in the
regulations identified earlier in part I of this document, it must be
accredited by an ILAC-MRA signatory accrediting body, and the
accreditation must be registered with, and accepted by, the Commission.
A listing of ILAC-MRA signatory accrediting bodies is available on the
Internet at https://ilac.org/membersbycategory.html. The accreditation
must be to ISO Standard ISO/IEC 17025:2005, ``General Requirements for
the Competence of Testing and Calibration Laboratories,'' and the scope
of the accreditation must expressly include testing to the regulations
in 16 CFR part 1630, Standard for the Surface Flammability of Carpets
and Rugs (FF 1-70), and/or 16 CFR part 1631, Standard for the Surface
Flammability of Small Carpets and Rugs (FF 2-70). A true copy, in
English, of the accreditation and scope documents demonstrating
compliance with the requirements of this notice must be registered with
the Commission electronically. The additional requirements for
accreditation of firewalled and governmental conformity assessment
bodies are described in parts II.B and II.C of this document below.
The Commission will maintain on its Web site an up-to-date listing
of third
[[Page 42317]]
party conformity assessment bodies whose accreditations it has accepted
and the scope of each accreditation. Subject to the limited provisions
for acceptance of ``retrospective'' testing noted in part IV below,
once the Commission adds a third party conformity assessment body to
that list, the third party conformity assessment body may commence
testing of children's products to support certification by the
manufacturer or private labeler of compliance with the regulations
identified earlier in part I of this document.
B. Additional Accreditation Requirements for Firewalled Conformity
Assessment Bodies
In addition to the baseline accreditation requirements in part II.A
of this document above, firewalled conformity assessment bodies seeking
accredited status must submit to the Commission copies, in English, of
their training documents showing how employees are trained to notify
the Commission immediately and confidentially of any attempt by the
manufacturer, private labeler, or other interested party to hide or
exert undue influence over the third party conformity assessment body's
test results. This additional requirement applies to any third party
conformity assessment body in which a manufacturer or private labeler
of a children's product to be tested by the third party conformity
assessment body owns an interest of ten percent or more. While the
Commission is not addressing common parentage of a third party
conformity assessment body and a children's product manufacturer at
this time, it will be vigilant to see if this issue needs to be
addressed in the future.
As required by section 14(f)(2)(D) of the CPSA, the Commission must
formally accept, by order, the accreditation application of a third
party conformity assessment body before the third party conformity
assessment body can become an accredited firewalled conformity
assessment body.
C. Additional Accreditation Requirements for Governmental Conformity
Assessment Bodies
In addition to the baseline accreditation requirements of part II.A
of this document above, the CPSIA permits accreditation of a third
party conformity assessment body owned or controlled, in whole or in
part, by a government if:
To the extent practicable, manufacturers or private
labelers located in any nation are permitted to choose conformity
assessment bodies that are not owned or controlled by the government of
that nation;
The third party conformity assessment body's testing
results are not subject to undue influence by any other person,
including another governmental entity;
The third party conformity assessment body is not accorded
more favorable treatment than other third party conformity assessment
bodies in the same nation who have been accredited;
The third party conformity assessment body's testing
results are accorded no greater weight by other governmental
authorities than those of other accredited third party conformity
assessment bodies; and
The third party conformity assessment body does not
exercise undue influence over other governmental authorities on matters
affecting its operations or on decisions by other governmental
authorities controlling distribution of products based on outcomes of
the third party conformity assessment body's conformity assessments.
The Commission will accept the accreditation of a governmental
third party conformity assessment body if it meets the baseline
accreditation requirements of part II.A of this document above and
meets the additional conditions stated here. To obtain this assurance,
CPSC staff will engage the governmental entities relevant to the
accreditation request.
III. How does a third party conformity assessment body apply for
acceptance of its accreditation?
The Commission has established an electronic accreditation
acceptance and registration system accessed via the Commission's
Internet site at https://www.cpsc.gov/about/cpsia/labaccred.html. The
applicant provides, in English, basic identifying information
concerning its location, the type of accreditation it is seeking, and
electronic copies of its ILAC-MRA accreditation certificate and scope
statement, and firewalled third party conformity assessment body
training document(s), if relevant.
Commission staff will review the submission for accuracy and
completeness. In the case of baseline third party conformity assessment
bodies and government-owned or government-operated conformity
assessment bodies, when that review and any necessary discussions with
the applicant are satisfactorily completed, the third party conformity
assessment body in question is added to the CPSC's list of accredited
third party conformity assessment bodies at https://www.cpsc.gov/about/
cpsia/labaccred.html. In the case of a firewalled conformity assessment
body seeking accredited status, when the staff's review is complete,
the staff transmits its recommendation on accreditation to the
Commission for consideration. (A third party conformity assessment body
that may ultimately seek acceptance as a firewalled third party
conformity assessment body also can initially request acceptance as a
third party conformity assessment body accredited for testing of
children's products other than those of its owners.) If the Commission
accepts a staff recommendation to accredit a firewalled conformity
assessment body, the firewalled conformity assessment body will then be
added to the CPSC's list of accredited third party conformity
assessment bodies. In each case, the Commission will notify the third
party conformity assessment body electronically of acceptance of its
accreditation. All information to support an accreditation acceptance
request must be provided in the English language.
Subject to the limited provisions for acceptance of
``retrospective'' testing noted in part IV of this document below, once
the Commission adds a third party conformity assessment body to the
list, the third party conformity assessment body may then begin testing
of children's products to support certification of compliance with the
regulations identified earlier in part I of this document for which it
has been accredited.
IV. Limited Acceptance of Children's Product Certifications Based on
Third Party Conformity Assessment Body Testing Prior to the
Commission's Acceptance of Accreditation
The Commission will accept a certificate of compliance with the
standards for carpets and rugs included in 16 CFR part 1630, Standard
for the Surface Flammability of Carpets and Rugs (FF 1-70), and/or 16
CFR part 1631, Standard for the Surface Flammability of Small Carpets
and Rugs (FF 2-70), based on testing performed by an accredited third
party conformity assessment body (including a government-owned or -
controlled conformity assessment body, and a firewalled conformity
assessment body) prior to the Commission's acceptance of its
accreditation if:
At the time of product testing, the product was tested by
a third party conformity assessment body that was ISO/IEC 17025
accredited by an ILAC-
[[Page 42318]]
MRA member at the time of the test. For firewalled conformity
assessment bodies, the firewalled conformity assessment body must be
one that the Commission accredited by order at or before the time the
product was tested, even though the order will not have included the
test methods in the regulations specified in this notice. If the third
party conformity assessment body has not been accredited by a
Commission order as a firewalled conformity assessment body, the
Commission will not accept a certificate of compliance based on testing
performed by the third party conformity assessment body before it is
accredited, by Commission order, as a firewalled conformity assessment
body;
The third party conformity assessment body's application
for testing using the test methods in the regulations identified in
this notice is accepted by the CPSC on or before September 20, 2010;
The product was tested on or after July 21, 2010 with
respect to the regulations identified in this notice;
The accreditation scope in effect for the third party
conformity assessment body at the time of testing expressly included
testing to the regulations identified earlier in part I of this
document;
The test results show compliance with the applicable
current standards and/or regulations; and
The third party conformity assessment body's
accreditation, including inclusion in its scope the standards described
in part I of this notice, remains in effect through the effective date
for mandatory third party testing and manufacturer/private labeler
certification for conformity with 16 CFR parts 1630 and/or 1631.
Dated: July 15, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-17724 Filed 7-20-10; 8:45 am]
BILLING CODE 6355-01-P
