[Federal Register: August 27, 2010 (Volume 75, Number 166)]
[Rules and Regulations]
[Page 52616-52619]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au10-3]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. CPSC-2010-0090]
16 CFR Part 1420
Third Party Testing for Certain Children's Products; Youth All-
Terrain Vehicles: 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 of all-terrain vehicles (ATVs) designed
or intended primarily for children 12 years of age or younger pursuant
to 16 CFR part 1420, the CPSC regulations under the Consumer Product
Safety Act (CPSA) relating to ATVs. The Commission is issuing this
notice of requirements pursuant to section 14(a)(3)(B)(vi) of the CPSA
(15 U.S.C. 2063(a)(3)(B)(vi)).
DATES: Effective Date: The requirements for accreditation of third
party conformity assessment bodies to assess conformity with 16 CFR
part 1420 are effective August 27, 2010.\1\
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\1\ The Commission voted 4-0-1 to publish this notice of
requirements. Chairman Inez M. Tenenbaum issued a statement, and the
statement can be found at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cpsc.gov/pr/statements.html.
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Comments in response to this notice of requirements should be
submitted by September 27, 2010. Comments on this notice should be
captioned ``Third Party Testing for Certain Children's Products; All-
Terrain Vehicles: Requirements for Accreditation of Third Party
Conformity Assessment Bodies.''
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
00--, by any of the following methods:
Electronic Submissions: Submit electronic comments in the following
way:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Richard McCallion, Program Area Team
Leader, Office of Hazard Identification and Reduction, U.S. Consumer
Product Safety Commission, 10901 Darnestown Road, Gaithersburg, MD
20878; e-mail rmccallion@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 establish and 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 an
importer) or private labeler of products subject to those regulations
must have products that are manufactured more than 90 days after the
establishment and Federal Register publication of a notice of the
requirements for accreditation tested by
[[Page 52617]]
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. The Commission may extend the 90-day period by not
more than 60 days if the Commission determines that an insufficient
number of third party conformity assessment bodies have been accredited
to permit certification for a children's product safety rule. Any
requests for an extension should contain detailed facts showing why an
extension is necessary.
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 part 1420, Requirements for All Terrain
Vehicles, which incorporates by reference the applicable provisions of
the American National Standard for Four Wheel All-Terrain Vehicles,
ANSI/SVIA 1-2007. 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 all-terrain vehicles
(ATVs) are often for general use (that is, not produced specifically
for use by children), some ``youth ATVs'' are ``designed or intended
primarily for children 12 years of age or younger.'' The ANSI/SVIA 1-
2007 standard identifies a usage category of Y (Youth Model) ATVs that
consists of three subcategories: (a) Category Y-6+, for youth model
ATVs intended for use by children age 6 or older; (b) Category Y-10+,
for youth model ATVs intended for use by children age 10 or older; and
(c) Category Y-12+, for youth model ATVs intended for use by children
age 12 or older. For the purposes of this notice of requirements, the
term ``youth ATVs'' at a minimum refers to categories Y-6+ and Y-10+ in
ANSI/SVIA 1-2007. In determining whether a youth ATV is a children's
product the Commission will be guided by the statutory factors listed
at section 3(a)(2)(A) through (D) of the CPSA. Such a determination
will indicate whether a given Category Y-12+ ATV is intended primarily
for children age 12 or younger, which would necessitate the third party
testing and certification requirements in section 14(a)(2) of the CPSA.
(For example, if a manufacturer sells a ``Category T'' ATV, which is
generally intended for use by a 14 year old operator under adu1t
supervision or by an operator age 16 or older, it might impact the age
range of the intended primary users of the Category Y-12+ ATV.)
Accordingly, in determining whether a particular ATV is a children's
product subject to the third party testing and certification
requirements of section 14(a)(2) of the CPSA, the Commission will
follow the factors set forth in section 3(a)(2) of the CPSA and will
not rely solely on a statement by the manufacturer about the ATV's
intended use.
The CPSC also recognizes that section 14(a)(3)(B)(vi) of the CPSA
is captioned ``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 that
desire to test all-terrain vehicles to the requirements of 16 CFR part
1420 where the test results will be used as the basis for a
certification that ATVs comply with CPSC's requirements at 16 CFR 1420.
Such third party conformity assessment bodies can be grouped into three
general categories: (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 accrediting 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 by the CPSC.
(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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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 ATVs.\2\ On December 28,
2009, the Commission published a notice in the Federal Register (74 FR
68588) revising the terms of the stay. Section II.G of the December 28,
2009, notice stated ``[t]he Commission has not yet issued a notice of
accreditation requirements for * * * ATVs so no third-party
certificates will
[[Page 52618]]
be required until 90 days after the Commission issues such [a] notice[
] of requirements.'' As the factor preventing the stay from being
lifted in the December 28, 2009 notice with regard to testing and
certifications of ATVs was the absence of a notice of requirements,
publication of this notice has the effect of lifting the stay with
regard to 16 CFR part 1420.
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\2\ Two mandatory certification requirements relating to ATVs
were not stayed. See 74 FR at 68592.
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This notice of requirements is effective on August 27, 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 part 1420, each manufacturer of a youth ATV subject
to 16 CFR part 1420 must have samples of any such product, or samples
that are identical in all material respects to such product, tested by
a third party conformity assessment body accredited to do so. Further,
for youth ATVs manufactured after November 26, 2010, the manufacturer
must issue a certificate of compliance with 16 CFR part 1420 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, 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://ilac.org/membersby category.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 1420, Requirements for All Terrain Vehicles. 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 the 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 10 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 which 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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, and
electronic copies of its ILAC-MRA accreditation certificate and scope
statement, and firewalled third party conformity assessment body
training document(s), if applicable.
Commission staff will review the submission for accuracy and
completeness. In the case of baseline third party conformity assessment
bodies and government-owned or
[[Page 52619]]
government-controlled 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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 Commission will
issue an order making the required statutory findings and 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 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 16 CFR
part 1420, Requirements for All Terrain Vehicles, based on testing
performed by an accredited third party conformity assessment body
(including a government-owned or government-controlled conformity
assessment body, or a firewalled conformity assessment body) prior to
the Commission's acceptance of its accreditation if all the following
conditions are met:
When the product was tested, the testing was done by a
third party conformity assessment body that at that time was ISO/IEC
17025 accredited by an ILAC-MRA signatory. For firewalled conformity
assessment bodies, the Commission will not accept a certificate of
compliance based on testing performed by the third party conformity
assessment body unless the firewalled conformity assessment body was
accredited by order as a firewalled conformity assessment body before
the product was tested, even though the order will not have included
the test methods in the regulations specified in this notice.
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 26, 2010.
The product was tested on or after November 4, 2008 (the
date that 16 CFR part 1420 was published), 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 part 1611.
Dated: August 20, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-21199 Filed 8-26-10; 8:45 am]
BILLING CODE 6355-01-P