[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Notices]
[Pages 62044-62046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25876]


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CONSUMER PRODUCT SAFETY COMMISSION

[ Docket No. CPSC-2011-0070]


Alternative Testing Requirements for Small Batch Manufacturers

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Notice of public hearing.

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SUMMARY: Section 14(i)(4)(A)(i) of the Consumer Product Safety Act, 15 
U.S.C. 2063(i)(4)(A)(i), provides that the Commission, in implementing 
third party testing requirements, under certain circumstances, may 
allow small batch manufacturers to use alternative testing requirements 
in lieu of testing prescribed in an applicable consumer product safety 
rule, ban, standard, or regulation. If, however, the Commission 
determines that no alternative testing requirement is available or 
economically practicable, it shall exempt eligible small batch 
manufacturers from third party testing requirements. Through this 
notice, the Commission is announcing that it will conduct a public 
hearing to receive views from all interested parties about whether such 
alternative testing requirements are available or economically 
practicable or, in the absence of economically practicable 
alternatives, whether an exemption from third party testing is 
appropriate.

DATES: The public hearing will begin at 10 a.m. EST on October 26, 
2011.

ADDRESSES: The public hearing will be held in the Hearing Room, 4th 
Floor of the Bethesda Towers Building, 4330 East West Highway, 
Bethesda, MD 20814.
    Online Registration and Webcast: Members of the public who wish to 
attend the public hearing are requested to preregister online at: 
http://www/cpsc.gov. You may preregister until 5 p.m. EST on October 
25, 2011. This public hearing also will be available live via webcast 
on October 26, 2011, at: http://www/cpsc.gov/webcast. Registration is 
not necessary to view the webcast. A transcript will be made of the 
proceedings of the public hearing.
    Oral Presentations and Written Comments: To make oral 
presentations, participants must preregister online. Presenters must 
also submit a request to make an oral presentation, and the written 
text of such presentation, captioned ``Alternative Testing Requirements 
for Small Batch Manufacturers Public Hearing,'' by electronic mail (e-
mail) to: cpsc.gov">cpsc-os@cpsc.gov, or mailed or delivered to the Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814, no later than 5 p.m. EST on October 21, 2011. 
Commenters should limit their presentations to 15 minutes, exclusive of 
questioning by the Commissioners or CPSC staff. We may limit the time 
further for any presentation and impose other restrictions to avoid 
excessive duplication of presentations.
    Participants who are unable to make an oral presentation may submit 
written comments regarding the issues outlined under SUPPLEMENTARY 
INFORMATION captioned, ``Alternative Testing Requirements for Small 
Batch Manufacturers Public Hearing'' by electronic mail (e-mail) to: 
cpsc.gov">cpsc-os@cpsc.gov, or mailed or delivered to the Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814, no later than 5 p.m. EST on October 21, 2011. Any 
information submitted in writing or presented orally to the CPSC at the 
public hearing will become part of the public record.

FOR FURTHER INFORMATION CONTACT: Concerning requests and procedures for 
oral presentations of comments, contact: Rockelle Hammond, Consumer 
Product Safety Commission, Bethesda, MD 20814; telephone: (301) 504-
6833; e-mail: cpsc.gov">cpsc-os@cpsc.gov. For all other matters, contact: Robert 
Howell, Deputy Executive Director, Safety Operations, Consumer Product 
Safety Commission, Bethesda, MD 20814; telephone: (301) 504-7621; e-
mail: cpsc.gov">rhowell@cpsc.gov.

SUPPLEMENTARY INFORMATION: Section 14(a)(2)(A) of the Consumer Product 
Safety Act, 15 U.S.C. 2063(a)(2)(A), provides that every manufacturer 
of a children's product that is subject to a children's product safety 
rule shall submit sufficient samples of the children's product, or 
samples that are identical in all material respects to the product, to 
a CPSC-approved third party conformity assessment body to be tested for 
compliance with such children's product safety rule. Further, section 
14(i)(2) requires continued testing of children's products, directing 
the Commission to, by regulation, establish protocols and standards--
    (i) For ensuring that a children's product tested for compliance 
with an applicable children's product safety rule is subject to testing 
periodically and when there has been a material change in the product 
design or manufacturing process, including the sourcing of component 
parts;
    (ii) For the testing of representative samples to ensure continued 
compliance;
    (iii) For verifying that a children's product tested by a 
conformity assessment body complies with applicable children's product 
safety rules; and
    (iv) For safeguarding against the undue influence on a third party 
conformity assessment body by a manufacturer or private labeler.

The Commission has been working to adopt a testing and certification 
rule that sets forth the continued testing requirements mandated by 
section 14(i). In this context, we have explored possible alternatives 
for small batch manufacturers to reduce the burden and cost of third 
party testing on such

[[Page 62045]]

entities. However, as originally adopted, section 14 imposed third 
party testing on all manufacturers of children's products that are 
subject to a children's product safety rule, irrespective of the size 
of the business or the number of units produced, thereby limiting the 
Commission's ability to provide such relief. As recently amended by 
H.R. 2715, however, section 14(i)(4) provides special rules for small 
batch manufacturers through which the Commission is required, in 
implementing third party testing requirements, to take into 
consideration any economic, administrative, or other limits on the 
ability of small batch manufacturers to comply with such requirements. 
In addition, small batch manufacturers of covered products, under 
certain circumstances, may use alternative testing requirements, if 
such alternatives are available. Under section 14(i)(4)(E)(i), a 
``covered product'' means a consumer product manufactured by a small 
batch manufacturer where no more than 7,500 units of the same product 
were manufactured in the previous calendar year. Section 
14(i)(4)(E)(ii) defines the term ``small batch manufacturer'' to mean a 
manufacturer that had no more than $1,000,000 in total gross revenue 
from sales of all consumer products in the previous calendar year.
    In light of this new authority, the Commission seeks to hear from 
interested stakeholders about whether such alternatives are available 
and what such alternatives would entail. For example, alternatives for 
a particular rule may include different screening techniques, sampling 
procedures, or a first party testing regime. Staff has also been 
exploring the idea of co-op approaches to testing expense. However, if 
the Commission determines that no such alternative testing requirement 
is available or economically practicable for a particular rule, ban, 
regulation, or standard, section 14(i)(4)(ii) permits the Commission to 
exempt small batch manufacturers from third party testing requirements. 
Thus, in addition to seeking information about alternative testing 
requirements, the Commission also wants to hear from interested parties 
about whether they seek exemption from third party testing requirements 
because alternatives are not available or are not economically 
practicable. The Commission will explore at the hearing whether 
exemptions are appropriate with regard to any and all children's 
product safety rules for which small batch manufacturers may need 
relief. We note, however, that in some cases, even if alternatives are 
available and economically practicable, we may not allow the use of 
such an alternative (or, if it is determined that no alternative is 
available, the Commission may not permit an exemption) where the 
Commission determines that full compliance with the third party testing 
requirements is reasonably necessary to protect public health or 
safety. Moreover, sections 14(i)(4)(C)(i) and (ii) prohibit the 
Commission from providing alternative testing requirements or 
exemptions for any of the third party testing requirements contained in 
clauses (i) through (v) of section 14(a)(3)(B) (lead paint, full-size 
or non-full-size cribs, pacifiers, small parts, children's metal 
jewelry, baby bouncers, walkers, and jumpers) or durable infant or 
toddler products, as defined in section 104(f) of the Consumer Product 
Safety Improvement Act of 2008, 15 U.S.C. 2056(a)(f).
    In seeking information about possible alternative testing 
requirements, we stress that any such alternative must satisfy the 
underlying objectives prescribed in the children's product safety rule 
for which the alternative is sought, and must provide reasonable 
methods to ensure compliance. Every rule, ban, standard, or regulation 
issued by the Commission is the result of careful analysis, review, and 
research through which alternatives are evaluated and certain standard 
criteria are met. In that process, Commission staff has considered 
possible alternative testing requirements to minimize the burden of 
testing since passage of the CPSIA. With regard to chemical testing, 
for example, staff has approved the use--in appropriate circumstances--
of XRF screening techniques for lead. In addition, staff has been 
following closely the development of screening techniques for 
phthalates. Where appropriate, and when the screening methods are 
reliable and reproducible, staff would be open to allowing the use of 
screening techniques to mitigate testing costs for chemical content 
testing of children's products and toys or the heavy metals content of 
the paints and surface coatings used on toys.
    Screening techniques, however, are not appropriate alternative 
testing requirements for all children's product safety rules. For 
example, staff is not aware of any screening technique that would 
detect the flammability of a child's carpet and rug. In addition, many 
of the performance standards and tests in our rules have particularized 
test methods for which an alternative simply does not appear to be 
practicable. The bicycle standard, for example, contains rigorous 
performance standards to reduce unreasonable risks of injury, including 
exacting and well-documented test procedures that are analyzed to 
ensure the reproducibility of the results and minimize interlaboratory 
variability.
    Therefore, as a threshold matter, any alternative testing 
requirement submitted to the Commission for consideration, in addition 
to satisfying the fundamental purpose of the rule for which an 
alternative is presented, must demonstrate acceptable performance in 
the areas of:
     Accuracy;
     Precision;
     Repeatability;
     Reproducibility;
     Range;
     Sensitivity (to test setup and/or test environment);
     Relevance (usefulness in predicting consumer product 
performance); and
     Correlation between the proposed alternative and existing 
regulatory testing requirements.
    Using these criteria, stakeholders should submit specific and well-
documented information on the availability and economic practicability 
of alternative testing requirements for the following children's 
product safety rules:

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   16 CFR Part No. (or Test Method or
               Standard)                           Description
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1420...................................  All-Terrain Vehicles.
1203...................................  Bicycle Helmets.
1512...................................  Bicycles.
1513...................................  Bunk Beds.
1500.86(a)(5)..........................  Clacker Balls.
1500.86(a)(7) and (8)..................  Dive Sticks and Other Similar
                                          Articles.
1505...................................  Electrically Operated Toys or
                                          Articles.
1615...................................  Flammability of Children's
                                          Sleepwear, Sizes 0 through 6X.
1616...................................  Flammability of Children's
                                          Sleepwear, Sizes 7 through 14.

[[Page 62046]]

 
1610...................................  Flammability of Clothing
                                          Textiles.
1632...................................  Flammability of Mattresses and
                                          Mattress Pads.
1633...................................  Flammability (Open-Flame) of
                                          Mattress Sets.
1611...................................  Flammability of Vinyl Plastic
                                          Film.
1215...................................  Infant Bath Seats.
Sec. 101 of CPSIA (Test Method CPSC-CH-  Lead Content in Children's
 E1001-08 or CPSC-CH-E1001-08.1).         Metal Products.
Sec. 101 of CPSIA (Test Method CPSC-CH-  Lead Content in Children's Non-
 E1002-08 and/or CPSC-CH-E1002-08.1).     Metal Products.
Sec. 108 of CPSIA (Test Method CPSC-CH-  Phthalate Content of Children's
 C1001-09.3 ).                            Toys and Child Care Articles.
1510...................................  Rattles.
1630...................................  Surface Flammability of Carpets
                                          and Rugs.
1631...................................  Surface Flammability of Small
                                          Carpets and Rugs.
1217...................................  Toddler Beds.
(ASTM F963)............................  Toys.
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    Stakeholders seeking an exemption from one of the above-listed 
rules should submit information to the Commission demonstrating that an 
alternative testing requirement is not available or economically 
practicable. In addition, because the Commission cannot grant an 
exemption where it determines that full compliance with the third party 
testing provisions of the CPSIA ``is reasonably necessary to protect 
the public health and safety,'' the Commission is accepting comments on 
this issue. The Commission intends this hearing to fulfill all of the 
notice and hearing requirements of HR 2715 with regard to the amendment 
of Section 14(i)(2)(B)(ii)(4) of the CPSA, ``Special Rules for Small 
Batch Manufacturers.''
    Any information submitted in writing or presented orally to the 
CPSC at the public hearing will become part of the public record. 
Access to the docket to read background documents, including a 
transcript of the public meeting, or comments received, will be made 
available at: http://www.regulations.gov under Docket No. CPSC-2011-
0070.

    Dated: October 3, 2011.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2011-25876 Filed 10-5-11; 8:45 am]
BILLING CODE 6355-01-P