[Federal Register Volume 75, Number 159 (Wednesday, August 18, 2010)]
[Notices]
[Pages 51020-51023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20507]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. CPSC-2010-0085]


Third Party Testing for Certain Children's Products; Mattresses, 
Mattress Pads, and/or Mattress Sets: 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 under 
the Flammable Fabrics Act relating to mattresses, mattress pads, and/or 
mattress sets. 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 1632 and/or 1633 are effective upon publication of this notice in 
the Federal Register.\1\
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    \1\ The Commission voted 4-1 to publish this notice of 
requirements. Chairman Inez M. Tenenbaum and Commissioner Anne 
Meagher Northup each issued a statement, and the statements can be 
found at http://www.cpsc.gov/pr/statements.html.
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    Comments in response to this notice of requirements should be 
submitted by September 17, 2010. Comments on this notice should be 
captioned ``Third Party Testing for Certain Children's Products; 
Mattresses, Mattress Pads, and/or Mattress Sets: Requirements for 
Accreditation of Third Party Conformity Assessment Bodies.''

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0085 by any of the following methods:
    Electronic Submissions: Submit electronic comments in the following 
way:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. To ensure timely processing of 
comments, the Commission is no longer accepting comments submitted by 
electronic mail (e-mail) except through http://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 http://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 http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert ``Jay'' Howell, Assistant 
Executive Director for The Office of Hazard Identification and 
Reduction, U.S. Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, Maryland 20814; e-mail [email protected].

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 16 CFR parts 1632, Standard for the 
Flammability of Mattresses and Mattress Pads (FF 4-72, amended), and/or 
1633, Standard for the Flammability (Open Flame) of Mattress Sets, 
which set minimum standards for flammability of mattresses, mattress 
pads, and/or mattress sets under the Flammable Fabrics Act (15 U.S.C. 
1191 et seq.) (FFA).
    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 mattresses, mattress pads, and/or 
mattress sets are often for general use (that is, it is produced for 
general consumption rather than being produced specifically for use by 
children), some mattresses, mattress pads, and/or mattress sets are 
``designed or intended primarily for children 12 years of age or 
younger.'' Examples of such products include youth and crib-size 
mattresses. Mattresses, mattress pads, and/or mattress sets designed or 
intended primarily for children 12 years of age or younger are subject 
to the third

[[Page 51021]]

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 mattresses, 
mattress pads, and/or mattress sets designed or intended primarily for 
children 12 years of age or younger for conformity with 16 CFR parts 
1632 and/or 1633.
    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'' 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 http://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 http://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 mattresses, mattress pads, 
and mattress sets. 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 Subject to Pre-Existing Requirements, but That May Be Subject 
to Additional Requirements for Children's Products When the Commission 
Issues a Notice of Requirements for the Children's Product or That May 
Be Subject to Additional Certification Requirements.'' The December 28, 
2009, notice announced the lifting of the stay with regard to 
mattresses, mattress pads, and mattress sets that are not children's 
products. As the factor preventing the stay from being lifted in the 
December 28, 2009, notice with regard to the testing and certification 
of children's products subject to 16 CFR parts 1632 and/or 1633 was the 
absence of a notice of requirements, publication of this notice has the 
effect of lifting the stay with regard to those products.
    The Commission noted in the December 28, 2009, notice that the stay 
of enforcement did not extend to guaranties under the FFA. The 
manufacturer or supplier of mattresses, mattress pads and/or mattress 
sets may issue a guaranty, based on reasonable and representative 
testing, that the product 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 performed by a manufacturer sufficient for the 
issuance of an FFA guaranty are not sufficient for the issuance of a 
certification of compliance with 16 CFR part 1632 and/or 1633 for 
mattresses, mattress pads, and/or mattress sets designed or intended 
primarily for children 12 years of age or younger (unless the 
manufacturer's facility is a CPSC-accepted firewalled conformity 
assessment body).
    The smoldering ignition testing and the open flame testing required 
in 16 CFR parts 1632 and 1633 are based on prototype testing. Prototype 
testing must be conducted by a CPSC-accepted third party conformity 
assessment body to form the basis for certification of final production 
mattresses, mattress pads, and/or mattress sets designed or intended 
primarily for children 12 years of age or younger, but only if the 
prototype is the same as the production unit with respect to materials, 
components, design, and method of assembly. The smoldering ignition 
rule (16 CFR part 1632) contemplates substitution of materials such as 
ticking. The ticking substitution test must also be conducted by a 
CPSC-accepted third party laboratory if used on a mattress and/or 
mattress pad designed or intended primarily for children 12 years of 
age or younger.
    This notice of requirements is effective on August 18, 2010. 
Further, as the publication of this notice of requirements effectively 
lifts the stay of enforcement with regard to testing and

[[Page 51022]]

certifications of children's products subject to 16 CFR parts 1632 and/
or 1633, each manufacturer of such a product must have any such product 
manufactured after November 16, 2010 tested by a third party conformity 
assessment body accredited to do so and must issue a certificate of 
compliance with 16 CFR parts 1632 and/or 1633 based on that testing. 
(Under the CPSA, the term ``manufacturer'' includes anyone who 
manufactures or imports a product.)
    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 http://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 parts 1632, Standard for the Flammability of Mattresses and 
Mattress Pads (FF 4-72, amended) and/or 1633, Standard for the 
Flammability (Open Flame) of Mattress Sets. 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 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 the manufacturer's 
certification that the product complies 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 that have been accredited in the same nation;
     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 http://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, 
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 http://www.cpsc.gov/about/
cpsia/labaccred.html. In the case of a firewalled conformity assessment 
body seeking accredited status, when the

[[Page 51023]]

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 
standard included in 16 CFR parts 1632, Standard for the Flammability 
of Mattresses and Mattress Pads (FF 4-72, amended) and/or 1633, 
Standard for the Flammability (Open Flame) of Mattress Sets, 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-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 October 18, 2010;
     The product was tested on or after August 18, 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 certification for 
conformity with 16 CFR parts 1632 and/or 1633.

    Dated: August 13, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-20507 Filed 8-17-10; 8:45 am]
BILLING CODE 6355-01-P