[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Proposed Rules]
[Pages 28208-28221]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11370]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / 
Proposed Rules

[[Page 28208]]



CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1109

[CPSC Docket No. CPSC-2010-0037]


Conditions and Requirements for Testing Component Parts of 
Consumer Products

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission (``CPSC,'' 
``Commission,'' or ``we'') is issuing a notice of proposed rulemaking 
regarding the conditions and requirements for testing of component 
parts of consumer products to demonstrate, in whole or in part, 
compliance of a consumer product with all applicable rules, bans, 
standards, and regulations: to support a general conformity certificate 
or a certificate for a children's product pursuant to section 14(a) of 
the Consumer Product Safety Act (CPSA); as part of a reasonable testing 
program pursuant to section 14(a) of the CPSA; as part of the standards 
and protocols for continued testing of children's products pursuant to 
section 14(d)(2) of the CPSA; and/or to meet the requirements of any 
other rule, ban, standard, guidance, policy, or protocol regarding 
consumer product testing that does not already directly address 
component part testing.\1\
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    \1\ The Commission voted 5-0 to approve publication of this 
proposed rule. Chairman Inez Tenenbaum and Commissioners Nancy Nord 
and Anne Northup each filed a statement concerning this action. 
These statements may be viewed on the Commission's Web site at 
http://www.cpsc.gov/pr/statements.html or obtained from the 
Commission's Office of the Secretary.

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DATES: Written comments must be received by August 3, 2010.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0037, 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 (email) 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, 
Consumer Product Safety Commission, Room 820, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed collection of information. All 
comments received may be posted without change, including any personal 
identifiers, contact information, or other personal information 
provided to http://www.regulations.gov. Do not submit confidential 
business information, trade secret information, or other sensitive or 
protected information electronically. Such information should be 
submitted in writing, with the sensitive portions clearly identified.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Randy Butturini, Project Manager, 
Office of Hazard Identification and Reduction, Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 
504-7562; e-mail rbutturini@cpsc.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Except as provided in section 14(a)(2) of the CPSA, section 
14(a)(1) of the CPSA, 15 U.S.C. 2063(a)(1), requires manufacturers and 
private labelers of a product that is subject to a consumer product 
safety rule (defined in section 3(a)(6) of the CPSA), or to any similar 
rule, ban, standard, or regulation under any other act enforced by the 
Commission, to issue a certificate. The certificate: (1) Must certify, 
based on a test of each product or upon a reasonable testing program, 
that the product complies with all CPSC requirements; and (2) must 
specify each rule, ban, standard, or regulation applicable to the 
product. This certificate is called a General Conformity Certificate 
(GCC).
    Section 14(a)(2) of the CPSA, 15 U.S.C. 2063(a)(2), requires 
manufacturers and private labelers of any children's product that is 
subject to a children's product safety rule to submit samples of the 
product, or samples that are identical in all material respects to the 
product, to a third party conformity assessment body accredited by CPSC 
to be tested for compliance with such children's product safety rule. 
Based on that testing, the manufacturer or private labeler must issue a 
certificate that certifies that such children's product complies with 
the children's product safety rule based on the assessment of a third 
party conformity assessment body accredited to conduct such tests. 15 
U.S.C. 2063(a)(2)(B). The manufacturer or private labeler of the 
children's product must issue either a separate certificate for each 
applicable children's product safety rule or a combined certificate 
that certifies compliance with all applicable children's product safety 
rules and specifies each such rule. This certificate is called a 
Children's Product Certificate.
    Section 14(g) of the CPSA contains additional requirements for 
these certificates. 15 U.S.C. 2063(g). Each certificate must identify 
the manufacturer or private labeler issuing the certificate and any 
third party conformity assessment body on whose testing the certificate 
depends. The certificate must include, at a minimum, the date and place 
of manufacture, the date and place where the product was tested, each 
party's name, full mailing address, telephone number, and contact 
information for the individual responsible for maintaining records of 
test results. Every certificate must be legible, and all required 
content must be in the English language. A certificate also may contain 
the same content in any other language.
    Section 14(g) of the CPSA also states that every certificate must 
accompany the applicable product or shipment of products covered by the 
same certificate, and a copy of the certificate must be furnished to 
each distributor or retailer of the product. Upon request, the 
manufacturer or private labeler issuing the certificate must furnish a 
copy of the certificate to the

[[Page 28209]]

Commission. The Commission has regulations, at 16 CFR part 1110, 
specifying the parties responsible for issuing certificates, the form 
and content of certificates, and other requirements for certificates, 
including that certificates can be provided in electronic form.
    This proposed rule would set forth the conditions and requirements 
for testing of component parts of consumer products, including 
children's products, where such testing is intended to demonstrate, in 
whole or in part, the product's compliance with any rule, standard, 
ban, or regulation enforced by the Commission that is subject to the 
requirements of section 14 of the CPSA and that does not itself 
directly address testing of component parts. Specifically, the proposed 
rule would establish the conditions under which a party certifying a 
product under section 14 of the CPSA may rely on tests of component 
parts of the product, including materials used to produce it, as all or 
part of the basis for a valid certificate that the product complies 
with all applicable requirements enforced by the Commission. The 
proposed rule also would set out the conditions under which such tests 
of component parts can be conducted by persons other than the 
manufacturer, such as the manufacturer or supplier of the component 
parts. The proposed rule is consistent with earlier positions taken by 
the Commission (see: (1) A Statement of Policy: Testing of Component 
Parts with Respect to Section 108 of the Consumer Product Safety 
Improvement Act, available on the Commission's Web site at http://www.cpsc.gov/about/componenttestingpolicy.pdf, which outlined the 
Commission's interim position on component testing of products 
containing plasticized component parts for phthalates; (2) a Statement 
of Policy: Testing and Certification of Lead Content in Children's 
Products, available on the Commission's Web site at http://www.cpsc.gov/about/cpsia/leadpolicy.pdf.; (3) Guidance Document: 
Testing and Certification Requirements Under the Consumer Product 
Safety Improvement Act of 2008, available at http://www.cpsc.gov/library/foia/foia10/brief/102testing.pdf; (4) a notice regarding a 
Commission workshop on testing and certification published in the 
Federal Register on November 13, 2009, at 74 FR 58611, 58616; and (5) 
an Interim Enforcement Policy on Component Testing and Certification of 
Children's Products and Other Consumer Products to the August 14, 2000 
Lead Limits (the Lead Limits Interim Enforcement Policy), available at 
http://www.cpsc.gov/businfo/frnotices/fr10/comppol.pdf and published in 
the Federal Register on December 29, 2009 (74 FR 68593)). The proposed 
rule also reflects the Commission's consideration of comments to those 
notices and to the workshop.
    The Commission invites comment on whether finished product 
certifiers should be permitted to rely on other types of certifications 
from other persons (in addition to component part certifications). The 
proposed rule only would allow a finished product certifier to rely on 
certificates relating to the performance of individual component parts; 
it would not authorize a finished product certifier to rely on a 
certificate from another party certifying that the finished product 
itself complies with an applicable rule. For example, it would not 
allow certification by others in the case of standards, such as the 
small parts ban at 16 CFR 1500.19, which require testing of the entire 
product as opposed to an individual component. Should this limitation 
be modified so that the importer of a product would be able to base its 
own certification on what might be termed a ``subordinate'' certificate 
from a foreign manufacturer or other interested party to the effect 
that the product complies with one or more of these standards? What are 
the risks and benefits of allowing such an arrangement?
    Elsewhere in this issue of the Federal Register, the Commission is 
issuing a proposed rule titled ``Testing and Labeling Pertaining to 
Product Certification''; that proposed rule would address testing, 
continuing testing, and labeling requirements for consumer products, 
including children's products, and would create a new 16 CFR part 1107. 
Component testing may help manufacturers meet their testing or 
continuing testing obligations under section 14 of the CPSA.

II. Description of the Proposed Rule

A. Introduction

    The proposed rule would establish a new 16 CFR part 1109, setting 
forth the conditions under which the Commission will allow 
certification of consumer products based in whole or in part on testing 
of component parts or composite parts. The new part 1109 would consist 
of two subparts: Subpart A--General Conditions and Requirements, and 
Subpart B--Conditions and Requirements for Specific Consumer Products, 
Component Parts, and Chemicals.

B. Proposed Subpart A--General Conditions and Requirements

    Proposed subpart A, consisting of Sec. Sec.  1109.1 through 1109.5, 
would set out generally applicable conditions and requirements.
1. Scope--Proposed Sec.  1109.1
    Proposed Sec.  1109.1 would define the scope of the rule as 
applying to all tests of component parts of consumer products where the 
test results are used to support a certificate of compliance issued 
pursuant to section 14(a) of the CPSA or where the tests are otherwise 
required or permitted by section 14 of the CPSA.
2. Purpose--Proposed Sec.  1109.2
    Proposed Sec.  1109.2 would discuss the rule's purpose, which is to 
set forth the conditions and requirements under which the Commission 
will require or accept the results of testing of component parts of 
consumer products, instead of the entire consumer product, to meet, in 
whole or in part, the testing and certification requirements of 
sections 14(a), 14(b), and 14(d) of the CPSA.
3. Applicability--Proposed Sec.  1109.3
    Proposed Sec.  1109.3 would specify that the rule applies to all 
manufacturers, importers, or private labelers and to the manufacturers 
or suppliers of component parts that: (1) Are responsible for 
certifying products under section 14(a) of the CPSA or for continued 
compliance testing under section 14(d) of the CPSA; or (2) test 
component parts of consumer products to support a certification of 
compliance under section 14(a) of the CPSA or to comply with continuing 
testing requirements under section 14(d) of the CPSA.
4. Definitions--Proposed Sec.  1109.4
    Proposed Sec.  1109.4 would define various terms used in the rule. 
For example, the proposal would define a component part, in part, as 
``any part of a consumer product, including a children's product, that 
either must or may be tested separately from a finished consumer 
product, to assess the consumer product's ability to comply with a 
specific rule, ban, standard, or regulation enforced by the CPSC.'' As 
another example, proposed Sec.  1109.4 would define a ``finished 
product certifier'' as ``a firm responsible for certifying compliance 
of a consumer product with all applicable rules, bans, standards, and 
regulations pursuant to part 1110 of this chapter.'' ``Component part 
certifier'' would be defined as ``a firm that certifies component parts 
to be

[[Page 28210]]

used in consumer products as complying with one or more rules, bans, 
standards, or regulations enforced by the CPSC pursuant to part 1109.'' 
The generic term ``certifier'' would be defined as a firm that is 
either a finished product certifier or a component part certifier.
    The proposed rule would provide that when samples of component 
parts are tested, they must be identical in all material respects to 
the component parts used in the finished product. Proposed Sec.  1109.4 
would specify that ``identical in all material respects'' means there 
is no difference with respect to compliance to the applicable rules 
between the samples and the finished product.
5. Conditions and Requirements Generally--Proposed Sec.  1109.5
    Proposed Sec.  1109.5 would set out conditions and requirements 
that generally apply to all types of component part testing. Proposed 
Sec.  1105.5(a)(1) would state that finished product certifiers may 
rely on testing of a component part of a consumer product only where 
testing of the component part is required or sufficient to assess the 
consumer product's compliance, in whole or in part, with an applicable 
rule, ban, standard, or regulation. For example, testing a component 
part of a children's product for lead may be sufficient in situations 
where only the component part is known to contain or may contain lead. 
On the other hand, testing a component part of a consumer product for 
compliance with the small parts requirements of 16 CFR part 1501 will 
rarely, if ever, be appropriate, because the test procedure described 
at 16 CFR 1501.4 generally requires that the entire product be tested 
to determine whether small parts can be detached during the use or 
abuse of the entire product. Proposed Sec.  1109.5(a)(1) also would 
specify that any doubts about whether testing one or more component 
parts of a consumer product can help to assess whether the entire 
product complies with applicable rules, bans, standards, and 
regulations should be resolved in favor of testing the entire product.
    Proposed Sec.  1109.5(a)(2) would require that the component part 
tested be identical in all material respects to the component used in 
the finished consumer product. Under this section, to be identical in 
all material respects to a component for purposes of supporting a 
certification of a children's product, a sample need not necessarily be 
of the same size, shape, or finish condition (such as polished, 
deburred, etc.) as the component part of the finished product; rather, 
the sample may consist of any quantity that is sufficient for testing 
purposes and may be in any form that has the same content as the 
component part of the finished product. For example, assume that a 
children's toy manufacturer receives plastic resins in an unfinished 
state (such as pellets) from a supplier and later molds the plastic 
resins into a component or a finished children's toy in the 
manufacturing process, and assume that the plastic resins need to be 
tested for phthalates. The children's toy manufacturer may send samples 
of the plastic, either as pellets or in their finished state, to a 
third party conformity assessment body for testing. A finished product 
certifier must exercise due care to ensure that no change in the 
component parts after testing and before distribution in commerce has 
occurred that would affect compliance, including contamination or 
degradation. Proposed Sec.  1109.5(a)(2) also would state that 
manufacturers must exercise due care in the proper management and 
control of all raw materials, component parts, subassemblies, and 
finished goods for any factor that could affect the finished product's 
compliance with all applicable rules. The manufacturer must exercise 
due care that the manufacturing process does not add a prohibited 
chemical from an untested source, such as the material hopper, regrind 
equipment, or other equipment used in the assembly of the finished 
product. Proposed Sec.  1109.4(g) would define ``due care'' to mean the 
degree of care that a prudent and competent person engaged in the same 
line of business or endeavor would exercise under similar 
circumstances.
    Under proposed Sec.  1109.5(b), a finished product certifier would 
not be able to rely on testing of a component part of a consumer 
product for any rule, ban, standard, or regulation that requires 
testing the entire consumer product to assess compliance.
    Under proposed Sec.  1109.5(c), certifiers and testing parties 
would be required to ensure that the required test methods and sampling 
protocols, as set forth in proposed 16 CFR part 1107, as well as any 
more specific applicable rules, bans, standards, regulations, or 
testing protocols, are used to assess compliance of the component part.
    Proposed Sec.  1109.5(d) would state that, subject to any more 
specific rule, ban, standard, or regulation, component part testing may 
occur before final assembly of a consumer product, provided that 
nothing in the final assembly of the consumer product can cause the 
component part or the consumer product to become noncompliant.
    Proposed Sec.  1109.5(e) would specify that finished product 
certifiers may not rely on component part testing conducted by another 
unless such component parts are traceable. Traceable is defined in 
proposed Sec.  1109.4(m) as the ability of a certifier to identify the 
source of a component part, including the name and address of the 
entity providing the component part to the certifier.
    Proposed Sec.  1109.5(f) would require testing parties who are not 
themselves certifying a component part to provide the following 
documentation to the component part certifier, either in hard copy or 
electronically:
    (1) Identification or a description of the component part tested;
    (2) Identification of a lot or batch number for which the testing 
applies;
    (3) Identification of the applicable rules, bans, standards, and 
regulations for which each component part was tested;
    (4) Identification or a description of the testing methods and 
sampling protocols used;
    (5) The date or date range when the component part was tested;
    (6) The results of each test on a component part; and
    (7) If the product was tested by a third party conformity 
assessment body, regardless of whether such third party testing was 
required because the product is a children's product or whether the 
testing party chose to use such third party conformity assessment body, 
identification of such conformity assessment body, a copy of the 
original test results, and a certification that all testing was 
performed in compliance with section 14 of the CPSA and proposed part 
1107 of this title.
    The above information is needed so that, if noncomplying products 
are found, the Commission can use this information to determine whether 
a finished product certifier, component part certifier, or third party 
conformity assessment body is not complying with the appropriate 
requirements.
    Under proposed Sec.  1109.5(g)(1), the Commission would consider 
any certificate issued by a component part certifier in accordance with 
this part to be a certificate issued in accordance with section 14(a) 
of the CPSA. A component part certificate must contain all of the 
information required by part 1110 of this chapter. This provision would 
allow finished product certifiers to rely on section 19(b) of the CPSA, 
which provides that a person who holds a certificate issued in 
accordance with section 14(a) of the CPSA (to the effect that a 
consumer product conforms to all applicable consumer product safety

[[Page 28211]]

rules) is not subject to the prohibitions in section 19(a)(1) of the 
CPSA (regarding distributing noncomplying products) and section 
19(a)(2) of the CPSA (regarding distributing products subject to 
certain voluntary corrective actions) unless such person knows that 
such consumer product does not conform. However, such person may 
violate section 19(a)(6) of the CPSA if the products that are the 
subject of any certificate issued by that person in fact do not comply 
with the applicable standard(s) and such person, in the exercise of due 
care, would have reason to know that their certificate is false or 
misleading in any material respect. Proposed Sec.  1109.5(h)(1) would 
address how this duty of due care applies to finished product 
certifiers.
    Proposed Sec.  1109.5(g)(2) would provide that any person who 
elects to certify compliance of a component part with an applicable 
rule must assume all responsibilities of a manufacturer under part 1107 
of this chapter with respect to that component part's compliance with 
the applicable rule.
    Under proposed Sec.  1109.5(h)(1), a finished product certifier 
must exercise due care in order to rely, in whole or in part, on a 
component part certificate issued by a component part certifier or on 
component part testing by a testing party as the basis for a finished 
product certificate. If a finished product certifier fails to exercise 
due care in its reliance on a certificate for a component part, then 
the Commission will not consider the finished product certifier to hold 
a component part certificate issued in accordance with section 14(a) of 
the CPSA. Exercising due care in this context means taking the steps a 
prudent and competent person would take to conduct a reasonable review 
of a component part certificate and to address any concern over its 
validity. Such steps may vary according to the circumstances.
    Under proposed Sec.  1109.5(h)(2), a finished product certifier 
must not rely on component part testing by a testing party or component 
part certifier unless it receives the documentation under proposed 
Sec.  1109.5(f) from the component part certifier or testing party. The 
Commission may consider a finished product certifier who does not 
obtain such documentation before certifying a consumer product to have 
failed to exercise due care.
    Under proposed Sec.  1109.5(h)(3), any certification of a consumer 
product based, in whole or in part, on component part testing performed 
by a component part certifier or a testing party must:
    (1) Identify both the corresponding documentation required in 
proposed Sec.  1109.5(f) and any report provided by a third party 
conformity assessment body on which the consumer product's 
certification is based; and
    (2) Certify that nothing subsequent to component part testing, for 
example, in the process of final assembly of the consumer product, 
changed or degraded the consumer product such that it affected the 
product's ability to meet all applicable rules, bans, standards, and 
regulations.
    Proposed Sec.  1109.5(i) would require testing parties to maintain 
the documentation that would be required in proposed Sec.  1109.5(f) 
for 5 years. Additionally, all certifiers would have to maintain 
records to support the traceability of component part suppliers for as 
long as the product is produced or imported by the certifier plus 5 
years. Test records would be retained for 5 years. All records would be 
required to be available in the English language. The documentation and 
records are needed to enable the Commission to investigate component 
part suppliers and component part certifiers if noncomplying, yet 
certified, products are found. Records would be required to be 
maintained for 5 years because the statute of limitations under 28 
U.S.C. 2462 allows the Commission to bring an action within that time. 
It would be unnecessarily burdensome to require a manufacturer to 
maintain records beyond the time the Commission could pursue an action. 
The proposal would require certifiers to maintain the records at the 
location within the United States specified in 16 CFR 1110.11(d), or, 
if the records are not maintained at the custodian's address, at a 
location specified by the custodian. The manufacturer must make these 
records available, either in hard copy or electronically, for 
inspection by the CPSC upon request.
    Some requirements enforced by the Commission limit the content of 
certain chemicals in consumer products. These include the limits for 
lead content in children's products in section 101(a) of the CPSIA, the 
limit for lead content of paint and similar surface-coating materials 
in 16 CFR part 1303, the prohibition of more than 0.1 percent of 
certain phthalates in children's toys and child care articles in 
section 108 of the CPSIA, and the limitation of the amounts of 
compounds of antimony, arsenic, barium, cadmium, chromium, lead, 
mercury, or selenium in paints or other surface coatings in toys in 
section 4.3.5.2 of ASTM F 963 (``Standard Consumer Safety Specification 
for Toy Safety''). (Section 106(a) of the CPSIA states that the 
requirements of ASTM F 963 must be considered to be consumer product 
safety standards issued by the Commission under section 9 of the CPSA.)
    The testing of component parts consists of three general 
categories: (1) Testing for the levels of chemicals in paints or 
surface coatings; (2) testing of actual component parts of a product to 
determine the content of chemicals in the component parts; and (3) 
testing of a combination of paints or surface coatings or a combination 
of component parts (i.e., composite testing), which can reduce the 
number of tests required or the number of products needed to obtain a 
sample large enough to test.

C. Proposed Subpart B--Conditions and Requirements for Specific 
Consumer Products, Component Parts, and Chemicals

1. Introduction
    Proposed subpart B would consist of four provisions, Sec. Sec.  
1109.11 through 1109.14. The first three provisions would discuss 
specific requirements for consumer products (namely chemicals in paint 
and similar surface coatings, lead content, and phthalates in 
products). The fourth provision would concern composite testing.
2. Proposed Sec.  1109.11--Lead in Paint and Surface Coatings
    Proposed Sec.  1109.11 would address component part testing for the 
levels of specified chemicals in paints or surface coatings. This 
aspect of the proposed rule is based on the Commission's previously 
published enforcement policy for testing products for compliance with 
lead limits. 74 FR 68593 (December 28, 2009).
    Section 101(f)(1) of the CPSIA required the Commission to revise 
its preexisting regulation (at 16 CFR 1303.1) so that paints and 
similar surface coating materials having a lead content in excess of 
0.009 percent of the weight of the total nonvolatile content of the 
paint or the weight of the dried paint film are banned hazardous 
products. (To simplify this discussion, we use the term ``paint'' 
broadly to include any type of surface coating that is subject to 16 
CFR part 1303 or section 4.3.5.2 of ASTM F 963.) The new lower limit in 
16 CFR part 1303 applies not only to paint sold to consumers as such 
(for example, a gallon of paint sold at a hardware store), but also to 
any paint on toys or other articles for children and to any paint on 
certain household furniture items (not limited to children's 
furniture). See 16 CFR part 1303. The principles for testing paint 
subject to 16

[[Page 28212]]

CFR part 1303 also apply to the testing of paint and surface coatings 
for toys in section 4.3.5.2 of ASTM F 963.
    In the case of paint and coatings, a manufacturer of a children's 
product can send samples of the finished product to a third party 
conformity assessment body so that each type of paint may be scraped 
off and tested individually. However, where small amounts of a 
particular paint are used (such as painted eyes on a doll), under 
existing regulations, a large number of samples of the children's 
product may be needed to obtain enough of that paint to test.
    Because compliance of a paint to its content limits is a function 
of the paint and not of the component part or substrate to which it is 
applied, proposed Sec.  1109.11(a)(1) would require testing of paint 
after it has been applied to any suitable substrate, in an appropriate 
quantity, and dried. The substrate used need not be of the same 
material as in the finished product or have the same shape or other 
characteristics as the part of the finished product to which the paint 
will be applied.
    Proposed Sec.  1109.11(a)(2) would provide that, for the tested 
paint to be identical in all material respects to that used in 
production of the consumer product, the paint samples tested must have 
the same composition as the paint used on the finished product. For 
example, if a children's product manufacturer uses a drying agent that 
mixes with the paint, then the test sample must reflect this mixture. 
However, a larger quantity of the paint may be tested than is used on 
the consumer product, in order to generate a sufficient sample size. 
For example, a children's product manufacturer may spray paint a large 
surface area of a substrate with the paint product for the purposes of 
generating a sufficient amount of paint for the sample. The paint may 
be supplied to the third party conformity assessment body either in 
liquid form or in the form of a dried film of the paint on any suitable 
substrate. (A third party conformity assessment body is a third party 
conformity assessment body recognized by the CPSC to conduct 
certification testing on children's products. Such facilities are 
listed on the Commission's Web site at http://www.cpsc.gov/cgi-bin/labapplist.aspx.)
    Proposed Sec.  1109.11(a)(3) would require that the documentation 
required by a testing party pursuant to proposed Sec.  1109.5(f) and 
the certificate required of finished product certifiers under section 
14(a) of the CPSA and proposed Sec.  1109.5(g) identify each paint 
tested by color, location, specification number or other 
characteristic, the manufacturer of the paint, and the supplier of the 
paint (if different).
    Proposed Sec.  1109.11(b) would state that, as part of its basis 
for certification of a children's product to the lead paint limit or 
other paint limit, a certifier may rely on a test report showing 
passing test results for one or more paints used on the product, based 
on testing performed by a third party conformity assessment body. The 
manufacturer of the children's product must ensure that each paint 
sample sent to a third party conformity assessment body is identical in 
all material respects to the paint used on the finished product. Test 
reports must identify each paint tested, by color, formulation, or 
other characteristic, and identify the manufacturer of the paint and 
the supplier of the paint (if different).
    Proposed Sec.  1109.11(c) would state that, as part of its basis 
for certification of a children's product to the lead paint limit or 
other paint limit, a component part certifier or finished product 
certifier may rely on a certificate from another person certifying that 
paint complies with the applicable limit. The paint certificate for a 
children's product must be based on testing by a third party conformity 
assessment body of samples of paints that are identical in all material 
respects to the paints used on the finished product. The paint 
certificate must identify all test reports underlying the 
certification.
    Proposed Sec.  1109.11(c) also would provide that any finished 
product certifier who certifies a children's product as complying with 
the lead paint limit or other paint limit should be able to trace each 
batch of paint that is used on the product to the supplier and, if 
different, the paint manufacturer. The finished product manufacturer 
should ensure that paints meeting the applicable limits are not later 
contaminated with lead from other sources before or during application 
to the product.
    For consumer products that are not children's products but are 
subject to lead paint limits (such as certain furniture items), 
proposed Sec.  1109.11(c) would provide that a finished product 
certifier may base its certification to the lead paint limit on its own 
testing of each paint used on the product, on testing by any third 
party conformity assessment body, on paint certification(s) from any 
person, or on a combination of these methods. However, product 
manufacturers must ensure that paint meeting the applicable limits when 
tested and certified is not later contaminated with lead from other 
sources before or during application to the product.
3. Proposed Sec.  1109.12--Component Part Testing for Lead Content of 
Children's Products
a. Testing for Lead Content
    On August 14, 2009, the general limit for lead in any accessible 
part of a children's product was reduced from 600 parts per million 
(``ppm'') to 300 ppm (see section 101(a)(2)(B) of the CPSIA). On that 
date, it became unlawful to sell, offer for sale, manufacture for sale, 
distribute in commerce, or import into the United States any product 
that is subject to the new lead limits, but fails to comply, regardless 
of when the product was made. Under section 101(a)(1) of CPSIA, any 
children's product containing an accessible part with lead above the 
limit is to be treated as a banned hazardous substance under the 
Federal Hazardous Substances Act. Section 101 of the CPSIA provides 
that the lead content limit for children's products will be lowered to 
100 ppm beginning August 14, 2011, unless the Commission finds that a 
limit of 100 ppm is not technologically feasible for a product or 
product category.
    Currently, testing and certification is required for metal 
component parts of children's metal jewelry. 73 FR 78331 (December 22, 
2008); 74 FR 6396 (February 9, 2009). The certification must be based 
on testing by a third party conformity assessment body listed on CPSC's 
Web site as qualified to test for lead in children's metal jewelry (see 
http://www.cpsc.gov/cgi-bin/labapplist.aspx). If the children's metal 
jewelry bears paint, it must also be certified as in compliance with 
the 90 ppm limit. The requirement for testing and certification of 
other children's products for lead content (except paint) has been 
stayed until February 10, 2011. 74 FR 68588 (December 28, 2009).
    The Commission has determined that some materials, by their nature, 
will never exceed the lead content limits. These materials include many 
natural materials such as gemstones, wood, cotton, and wool, as well as 
certain refined metals and alloys. For a more complete list of such 
materials, see 74 FR 43031 (August 26, 2009). If all accessible parts 
of a children's product consist of such materials, then that product 
need not be tested or certified as in compliance with the lead content 
limits. The Commission recently issued a ``Statement of Policy on 
Testing and Certification of Lead Content in Children's Products'' (see 
74 FR 55820 (Oct. 29, 2009)).

[[Page 28213]]

    Since the lead content requirements for children's products apply 
to any accessible part of the product, testing of the children's 
product's component parts may be required. The Commission has 
promulgated a final rule for determining when parts of a children's 
product may be deemed inaccessible and do not need to be tested for 
lead content. 16 CFR 1500.87; 74 FR 39535 (August 7, 2009). Neither 
paint nor electroplating may be considered as making underlying 
materials inaccessible (see section 101(b)(3) of the CPSIA).
b. Certification of Children's Products Subject to Lead Content 
Requirements
    Children's products, other than children's metal jewelry or those 
made of materials that, by their nature, will never exceed the lead 
content limits, must be certified as being in compliance with the 300 
ppm lead content limit only if they are manufactured after February 10, 
2011, and only as to accessible parts that are not subject to a 
Commission determination as described in 16 CFR part 1500.91. Pursuant 
to section 14(a)(2) of the CPSA, the certification must be based on 
testing by a third party conformity assessment body listed on CPSC's 
Web site as qualified to test for lead in children's products.
    Thus, proposed Sec.  1109.12 would describe requirements pertaining 
to component part testing of children's products to determine their 
lead content. Proposed Sec.  1109.12(a) would explain that a certifier 
may rely on component part testing of each accessible part of a 
children's product provided that:
     The determination of which, if any, parts are inaccessible 
pursuant to section 101(b)(2) of the CPSIA is based on an evaluation of 
the finished product; and
     For each accessible component part of the product, the 
certifier either has a component part test report or a component part 
certificate.
    Proposed Sec.  1109.12(b) states that, as part of its basis for 
certification of a children's product to the lead content limit, a 
finished product certifier could rely on a test report showing passing 
test results for one or more component parts used on the product, based 
on testing by a third party conformity assessment body. The proposal 
would require the component part test reports to identify each 
component part tested, by part number or other specification, as well 
as the manufacturer of the component part and the supplier (if 
different).
    Proposed Sec.  1109.12(c) would address component part 
certificates. The proposal states that, as part of its basis for 
certification of a children's product to the lead content limit, a 
finished product certifier could rely on a certificate from another 
person certifying that a component part complies with the lead limit. 
The component part certificate would have to be based on testing by a 
third party conformity assessment body of a sample identical in all 
material respects to the component part(s) used in the finished 
product. The proposal would require the component part certificate to 
identify all test reports underlying the certification consistent with 
section 14 of the CPSA.
    Under proposed Sec.  1109.12(d), the certificate accompanying the 
children's product would have to list each component part tested, by 
part number or other specification, and for each such part identify the 
corresponding test report or component part certificate on which 
product certification is based.
 4. Proposed Sec.  1109.13--Component Part Testing for Phthalates in 
Children's Toys and Child Care Articles
    Section 108 of the CPSIA permanently prohibits the sale of any 
children's toy or child care article containing concentrations of more 
than 0.1 percent of three specified phthalates (di-(2-ethylhexyl) 
phthalate, dibutyl phthalate, or benzyl butyl phthalate). Section 108 
of the CPSIA also prohibits, on an interim basis, the sale of any 
children's toy that can be placed in a child's mouth or child care 
article containing concentrations of more than 0.1 percent of three 
additional phthalates (diisononyl phthalate, diisodecyl phthalate, or 
di-n-octyl phthalate), pending the recommendation of a Chronic Hazard 
Advisory Panel. These prohibitions became effective on February 10, 
2009.
    The Commission has stayed the requirement for testing and 
certification for the phthalate content requirements until 90 days 
after the Commission publishes a notice of requirements for accrediting 
conformity assessment bodies to test to the phthalate content 
requirements. 74 FR 68588 (December 28, 2009).
    In general, phthalates are chemicals added to plastic to make the 
plastic more flexible or resilient, and concerns have been raised about 
possible adverse health effects resulting from exposure to phthalates. 
In March 2009, the Commission's staff sought comment on a method for 
testing phthalate content as a percentage of the entire toy or child 
care article. Testing the phthalate content of an entire children's toy 
or child care article may present certain difficulties. For example, 
the risk presented by phthalates in a component part may not be 
adequately described if the percentage concentration of phthalates is 
determined in comparison to the whole product, which may have other 
component parts that do not contain phthalates. In an extreme example, 
a product that has a plasticized component part that had a phthalate 
concentration above 0.1 percent arguably could be brought into 
compliance with the phthalate limit by adding more non-plasticized 
material and thus ``dilute'' the concentration of phthalates in the 
whole product. However, this approach would not reduce the risk posed 
by the concentration of phthalates in the component part. Testing only 
the plasticized component parts would avoid such ``dilution'' 
scenarios, is more protective of human health, and is consistent with 
the CPSIA's goal of limiting children's exposure to phthalates. The 
benefits of the component part approach are twofold; in addition to 
providing more protection for children, it also may significantly 
reduce the testing costs for manufacturers in certain circumstances.
    Proposed Sec.  1109.13(a) would reflect our position regarding 
component part testing for phthalates by stating that a certifier may 
rely on component part testing of appropriate component parts of a 
children's toy or child care article for phthalate content if the 
certifier is provided with a copy of the original test results obtained 
from the third party conformity assessment body.
    Proposed Sec.  1109.13(b) would state that, as part of its basis 
for certification of a children's product to the phthalate content 
limit, a finished product certifier may rely on a test report showing 
passing test results for one or more component parts used on the 
product, based on testing by a recognized third party conformity 
assessment body. Component part test reports would have to identify 
each component part tested, by part number or other specification, and 
the manufacturer and the supplier of the component part (if different).
    Proposed 1109.13(c) would state that, as part of its basis for 
certification of a children's product to the phthalate content limit, a 
finished product certifier may rely on a certificate from another 
person certifying that a component part complies with the limit. The 
component part report must be based on testing by a third party 
conformity assessment body of a sample that is identical in all 
material respects

[[Page 28214]]

to the component parts used in the finished product. The component part 
certificate must identify all test reports underlying the certification 
required by section 14 of the CPSA. Any person who certifies a 
children's product as complying with the phthalate content limits must 
be able to trace each component part of the product to the component 
part's manufacturer.
    Proposed Sec.  1109.13(d) would require that the certificate 
accompanying the children's product list each component part tested by 
part number or other specification and, for each such part, identify 
the corresponding test report or component part certificate on which 
product certification is based.
5. Proposed Sec.  1109.14--Composite Part Testing
    Composite testing is where more than one paint or surface coating, 
or more than one component part, are combined and the combination is 
tested for the level of the target chemical. This can reduce the number 
of tests required or the number of products needed to obtain a sample 
large enough to test (composite testing). For example, if different 
parts of a doll are painted with small amounts of different paints, the 
paints could be mixed together and tested for lead. Proposed Sec.  
1109.14 would address composite testing and would consist of three 
subsections, one dealing with tests of composite paints and surface 
coatings, one dealing with tests of composite component parts, and one 
dealing with how to ensure that no failure to comply with the chemical 
content limits will go undetected.
    Proposed Sec.  1109.14(a) would state that, in testing paints for 
compliance with chemical content limits, testing parties may test a 
combination of different paint samples so long as they follow 
procedures ensuring that no failure to comply with the lead limits will 
go undetected. For an example of an acceptable method, see Test Method 
CPSC-CH-E1003-09, Standard Operating Procedure for Determining Lead 
(Pb) in Paint and Other Similar Surface Coatings (April 26, 2009) 
(available on the Internet at http://www.cpsc.gov/about/cpsia/CPSC-CH-E1003-09.pdf). Proposed Sec.  1109.14(a) also would require testing and 
certification of composite paints to comply with proposed Sec.  
1109.11.
    Proposed Sec.  1109.14(b) would allow a third party conformity 
assessment body to test a combination of plastic component parts or a 
combination of metal component parts so long as the third party 
conformity assessment body follows procedures ensuring that no failure 
to comply with the lead limits will go undetected. The proposal would 
require such testing and certification of component parts to comply 
with proposed Sec.  1109.12 for the lead content of children's products 
or with proposed Sec.  1109.13 for the phthalate content of children's 
toys and child care articles.
    When using composite testing, only the total amount of the target 
chemical is determined, not how much was in each individual paint or 
component part. Therefore, to determine that each paint or component 
part is within the applicable limit, proposed Sec.  1109.14(c) would 
provide that the entire amount of the target chemical in the composite 
is attributed to each paint or component part. If this method yields an 
amount of the target chemical that exceeds the limit applicable to any 
paint or component part in the composite sample, additional testing 
would be required to determine which of the paints or component parts, 
if any, fails to meet the applicable limit.

III. Previous Guidance on Component Part Testing and Requests for 
Comment

    Between 2008 and December 28, 2009, the Commission discussed 
component part testing issues, either generally or regarding specific 
substances (such as lead and phthalates), and invited comment. We also 
held a public workshop on issues relating to product testing, including 
component part testing (see 74 FR 58611 (November 13, 2009). In brief, 
the previous activities on component part testing have consisted of the 
following:
    First, the Commission's staff posted a document on the Commission's 
Web site explaining the new requirements for third party testing of 
children's products and requesting comments on a number of issues 
related to component part testing. That document is available on the 
Commission's Web site at http://www.cpsc.gov/about/cpsia/ComponentPartsComments.pdf. The comment period closed on January 30, 
2009.
    Second, on August 7, 2009, the Commission issued a Statement of 
Policy: Testing of Component Parts with Respect to Section 108 of the 
CPSIA, available on the Commission's Web site at http://www.cpsc.gov/about/componenttestingpolicy.pdf. The August 7, 2009, Statement of 
Policy outlined the Commission's interim position on component part 
testing of products containing plasticized component parts for 
phthalates. In the Federal Register of August 17, 2009 (74 FR 41400), 
the Commission invited comments on the Statement of Policy. The comment 
period closed on September 16, 2009.
    Third, in October 2009, the Commission issued a Statement of 
Policy: Testing and Certification of Lead Content in Children's 
Products, available at http://www.cpsc.gov/about/cpsia/leadpolicy.pdf. 
The October 2009 Statement of Policy on lead content addressed 
component part testing for lead in children's products and provided 
that component part testing could be used to test for compliance with 
the 300 ppm lead content limit, especially in circumstances where a 
product is made up of several substances, some of which will not, by 
their nature, contain lead, or where lead containing parts are 
inaccessible.
    Fourth, on November 3, 2009, CPSC staff issued a proposed Guidance 
Document Testing and Certification Requirements Under The Consumer 
Product Safety Improvement Act of 2008 (available at http://www.cpsc.gov/library/foia/foia10/brief/102testing.pdf). The proposed 
Guidance Document set forth the CPSC staff's proposed interpretation of 
the testing and certification requirements established in section 102 
of the CPSIA. Although the Commission did not vote on this document, 
the document provided the framework for the December 10 through 11, 
2009, workshop on testing and certification requirements under section 
14 of the CPSA. The Guidance Document addressed component part testing 
in sections III.C and III.D of the document, as well as in section IV 
on Questions and Answers, in questions 14 through 20. Moreover, 
component part testing was discussed in several sessions at the 
December 2009 workshop on testing and certification requirements. 
Stakeholders were able to submit comments on our proposed 
interpretation of section 14 of the CPSA with regard to testing of 
component parts and on the discussion on component part testing at the 
December 2009 workshop by submitting comments on the workshop. We 
invited written comments on the December 2009 workshop and testing and 
certification issues through January 11, 2010, in a notice announcing 
the workshop that appeared in the Federal Register of November 13, 
2009, at 74 FR 58611, 58616. We summarize and respond to these comments 
in section IV of this document below.
    Fifth, on December 16, 2009, the Commission approved an Interim 
Enforcement Policy on Component Testing and Certification of Children's 
Products and Other Consumer Products to the August 14, 2000 Lead Limits 
(available at http://www.cpsc.gov/businfo/frnotices/fr10/comppol.pdf. 
The Lead Limits Interim Enforcement Policy

[[Page 28215]]

was published in the Federal Register on December 29, 2009 (74 FR 
68593).
    Finally, a petition was filed with the Commission seeking 
recognition of various methods of component part testing for lead in 
paint. The petition seeks approval for three methods of testing for 
lead in paint on component parts of a consumer product. In a notice 
that appeared in the Federal Register of December 29, 2009 (74 FR 
68596), we invited comments on the petition. The comment period ended 
on February 26, 2010.
    Any final rule arising out of this notice of proposed rulemaking is 
intended to supersede all policy statements and guidelines referred to 
above in section III of this document as they apply to testing of 
component parts. To the extent component part testing is not addressed 
by another CPSC-enforced rule, regulation, standard, or testing 
protocol, the Commission intends that this proposed rule, if finalized, 
shall apply. In general, certifiers should test and certify consumer 
products, including children's products, based on the most specific 
regulation that applies to such consumer product.

IV. Comments on Component Part Testing and the CPSC's Responses

    As described in section III of this document above, we have invited 
and received comments on a number of documents relating to component 
part testing and at a public workshop. All of these documents were 
publicly available before the end of the comment period associated with 
the workshop held by the Commission on December 10 through 11, 2009. 
See 74 FR 58611 (November 13, 2009). The comment period for the 
workshop ended on January 11, 2010. During that comment period, we 
received 27 comments relating to testing of component parts of 
regulated products. Because the comment period for the workshop was the 
latest opportunity for interested parties to submit comments, and 
because the comments received cover the issues raised by previous 
comments, we now address only the comments received between November 
13, 2009 (the date on which we issued a Federal Register notice 
announcing the workshop) and January 11, 2010 (the closing date of the 
comment period for the workshop). To make it easier to identify 
comments and responses, the word ``Comment'' will precede each topic 
addressed by the comments, and the word ``Response'' will precede each 
response to a topic. We also have numbered each topic to make it easier 
to identify and distinguish comments. The number assigned to each topic 
is for organizational purposes and does not signify the comment's 
value, importance, or order in which it was received.
    Comment 1--Almost all persons who commented on component part 
testing favored it. Many commenters acknowledged the benefit of 
component part testing to small businesses. The commenters cited 
component part testing as a way to reduce redundant testing when a 
particular component part is used in multiple products. They also 
wanted the option of component part testing when the amount of the 
component part in the finished product is small and testing of the 
finished product requires destruction of a large number of units to 
collect a sufficient quantity of the component part to be tested. 
Several commenters indicated that testing at the component part level 
may reduce costs associated with reworking products that do not meet 
safety standards due to a noncompliant component part.
    Response--We view component part testing, when appropriate, as a 
cost-effective option to facilitate assurance of compliant consumer 
products. A certifier may choose testing of a component part, which by 
its construct or materials is subject to a consumer product safety rule 
under the CPSA, or a similar rule, ban, standard, or regulation under 
any other act enforced by the Commission, when the component part is 
not altered during the manufacturing process. Tested component parts 
must be identical in all material respects to those used in a finished 
product, and certified component parts in a finished product must be 
able to be traced back to their certificates.
    Comment 2--Commenters had different opinions concerning who should 
conduct component part testing and whether a certification provided by 
a supplier can be used. One commenter suggested that component part 
testing be limited to the finished product manufacturer, and not be 
available to component part suppliers, many of whom, according to the 
commenter, are located in foreign countries. The commenter's concern is 
that supply chain integrity might not always be maintained and untested 
or counterfeit component parts could be introduced into a 
manufacturer's production. Other commenters suggested that product 
manufacturers should be able to use testing results obtained from 
component part suppliers or manufacturers, rather than requiring the 
product manufacturer to test each component part separately. Three 
commenters indicated that the supplier who certifies a component part, 
and not the manufacturer that uses the supplier-certified component 
part, should be held liable for noncompliance.
    Response--Excluding the option of using supplier-provided component 
part certificates may unduly burden some manufacturers or importers. 
Where appropriate, certifiers may rely on component part certificates 
received from suppliers of component parts as the basis for issuance of 
their own certificates for the component part or the finished product. 
However, under section 19(a)(6) of the CPSA, certifiers may be charged 
with issuing a false certificate if, in the exercise of due care, they 
would have had reason to know that a certificate upon which they relied 
was false or misleading in any material respect. Therefore, certifiers 
who rely on a certification from a component part supplier should use 
due care when electing to use the component part suppliers' 
certification. Ultimately, the domestic manufacturer or importer is 
responsible for compliance of its finished product.
    Comment 3--Other commenters suggested that, to protect against 
counterfeit supplier component part certifications, CPSC should set up 
an annual review process of the laboratories that it recognizes to 
prevent such falsifications.
    Response--We disagree with the commenters. Neither the CPSA nor 
this rule requires a certifier to accept a component part certification 
provided by a supplier. A certifier is always free to have the 
component part or the product tested and then issue a certificate for 
the product based on tests conducted by the certifier (in the case of 
nonchildren's products) or by a third party conformity assessment body 
(in the case of children's products).
    If the concern is whether manufacturers will be unable to 
distinguish between genuine and counterfeit component part certificates 
purporting to come from a specific component part supplier, we note 
that suppliers themselves can take steps to deter or reduce 
counterfeiting. For example, a supplier concerned about counterfeit 
certificates could add various security features, such as color-
shifting ink, microprinting, and holograms, to its certificates to make 
counterfeiting more difficult.
    Comment 4--One commenter suggested that we establish different 
requirements for different component parts based on their inherent 
safety risks. Component parts presenting the least risk would be exempt 
from mandatory third party testing.

[[Page 28216]]

    Response--In the CPSIA, Congress set the chemical content levels 
applicable to children's products. The CPSIA does not provide that 
component parts presenting a real, albeit low, risk can be exempted 
from the requirements for third party testing.
    Comment 5--Many commenters stated that reliance on component part 
testing requires that the tested component parts be representative of 
those used in the finished product and that adequate traceability of 
component parts is maintained. One commenter stressed the need to 
prepare component part samples (such as a large paint sample 
substituted for a sample obtained by scraping paint from a large number 
of products, each with only a tiny amount of paint) using the same 
technique and equipment that is used for the products. Some commenters 
were concerned that, subsequent to testing, raw materials (e.g., 
premolded plastic pellets or wet paint in the can) could be 
contaminated in the production process, resulting in the manufacture of 
noncompliant products. If, for example, wet paint is found to be 
compliant, the commenter stated, the drying process could evaporate 
enough solvent to raise the concentration above the allowable limit. 
Another commenter stated that compositing of similar materials should 
be valid, so long as the acceptance limit for the test is adjusted 
downward to account for multiple materials being tested.
    Response--Under the proposed rule, testing of component parts is an 
option when the component part is not altered during the process of 
assembling the finished product. If, during processing or assembly of 
the component part into the finished product, there is a chance that 
the component part could be contaminated or changed in such way that it 
is no longer compliant with the applicable safety rule(s), the 
manufacturer or importer should test the finished product, or its 
component parts, for compliance. Component part samples must be 
identical in all material respect to the component parts that will be 
used in the finished product. Component part testing of composited 
samples is acceptable provided the subsequent procedures will ensure 
that no failure to comply with a limit will go undetected. An example 
of an acceptable procedure is provided in CPSC-CH-E1003-09, Standard 
Operating Procedure for Determining Lead (Pb) in Paint and Other 
Similar Surface Coatings (available on the Commission's Web site at 
http://www.cpsc.gov/about/cpsia/CPSC-CH-E1003-09.pdf). We note that the 
criteria for lead content refer to the percentage of lead (calculated 
as lead metal) by weight of the total nonvolatile content of the paint 
or the weight of the dried paint film. Thus, the commenter's concern 
about evaporation of solvents from the paint increasing the lead 
concentration is unwarranted.
    Additionally, under the proposed rule, finished product certifiers 
would have to maintain documents that demonstrate the traceability of 
certified materials in their products.
    Comment 6--Several commenters noted that many component parts are 
not children's products until they are actually incorporated into a 
completed product. To these commenters, mandatory third party testing 
of all component parts that might be used in a children's product would 
be inefficient and wasteful. The commenters added that component part 
suppliers often do not know whether their component part will be used 
in the manufacture of other products.
    Response--Under the proposal, a component part supplier may, but is 
not required to, subject its component part to third party testing and/
or certification (assuming that the component part becomes part of a 
children's product). Similarly, manufacturers may, but are not required 
to, decide whether to purchase third party certified component parts 
from a supplier or whether to conduct third party testing and 
certification at the component part or finished product level. The 
proposed rule would not require third party testing or certification of 
component parts that are not used in children's products.
    Comment 7--One commenter suggested that reasonable attestations 
from raw material manufacturers should be used in determinations on 
whether or not to test for phthalates. The commenter contended that 
third party tests by an accredited third party conformity assessment 
body should not be required. The commenter argued that, as part of a 
reasonable testing program, assurances provided by suppliers that 
plastic resins meet Food and Drug Administration (FDA) requirements 
should be considered as a basis to reduce the amount of periodic 
testing of toys or children's products, or component parts thereof, 
made from food-grade plastics. Further, the commenter suggested 
excluding the limits or requirement for testing for inaccessible 
component parts that may contain phthalates, similar to the exclusion 
for lead.
    Response--We will consider these comments as part of any rulemaking 
activity for phthalates. However, neither section 14 of the CPSA nor 
section 108 of the CPSIA contains an exclusion for products that happen 
to meet FDA requirements.
    Comment 8--Many commenters mentioned that manufacturers with very 
small production quantities would not be able to afford the destructive 
testing of a significant percentage of their production. Another 
commenter mentioned that destructive testing of gold jewelry is very 
expensive and that component part testing would alleviate that 
situation.
    Response--The concerns of these commenters are addressed by the 
proposed rule, since component part testing can eliminate or reduce the 
need to test the finished product.
    Comment 9--One commenter stressed that some component parts require 
testing of the completed product to evaluate compliance to the 
applicable rules.
    Response--We agree with the comment. Many CPSC rules may require 
testing of a finished product. The proposed rule would not disturb any 
preexisting regulation that requires testing of a finished product.
    Comment 10--One commenter said that precertified component parts 
also should be allowed as part of a reasonable testing program. The 
supplier would undertake third party testing and supply a copy of its 
certificate to the manufacturer. No additional testing on the component 
parts should be required.
    Response--A manufacturer may rely upon a supplier's certification 
of a component part, provided that the component part is not altered 
during the assembly of the finished product. The manufacturer must 
exercise due care to determine that the supplier's component part 
certificate is not false or misleading in any material respect and must 
maintain traceability of component parts. The person required to issue 
a product certificate under section 14(a) of the CPSA for the finished 
product is ultimately responsible for the finished product's compliance 
to CPSC's safety rules.
    Comment 11--One commenter stated that component part testing with 
production process control measures should be acceptable as 
verification to issue a general certificate of conformity.
    Response--Proposed part 1109 would allow component part testing in 
appropriate circumstances. Requirements for a reasonable testing 
program sufficient to support a general certificate of conformity are 
addressed in the proposed rule titled ``Testing and Labeling Pertaining 
to Product Certification,'' which is published

[[Page 28217]]

elsewhere in this issue of the Federal Register as proposed 16 CFR part 
1107.

V. Environmental Considerations

    Generally, the Commission's regulations are considered to have 
little or no potential for affecting the human environment, and 
environmental assessments and impact statements are not usually 
required. See 16 CFR 1021.5(a). The proposed rule contains the 
Commission's conditions and requirements for testing of component parts 
of consumer products to support, in whole or in part, a finished 
product certificate that a consumer product complies with all 
applicable rules, bans, standards, and regulations, pursuant to section 
14(a) of the CPSA and to ensure continued compliance pursuant to 
section 14(d) of the CPSA. As such, the proposed rule is not expected 
to have an adverse impact on the environment. The rule falls within the 
categorical exclusion in 16 CFR 1021.5(b)(2) for product certification 
rules. Accordingly, no environmental assessment or environmental impact 
statement is required.

VI. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, generally 
requires that agencies review proposed rules for their potential 
economic impact on small entities, including small businesses. The RFA 
calls for agencies to prepare and make available for public comment an 
initial regulatory flexibility analysis describing the impact of the 
proposed rule on small entities and identifying impact-reducing 
alternatives. 5 U.S.C. 603. The proposed rule defines conditions upon 
which the finished product certifier (currently the manufacturer or 
importer) can rely upon tests conducted on component parts of the 
product, rather than on the whole product, as the basis for the 
certification. This section discusses the impact that the draft 
proposed rule would have on small businesses.
    In the absence of component part testing, certifiers of children's 
products would have to obtain test results for each component part of a 
consumer product even if the same component part were used in more than 
one consumer product. Component part testing will allow certifiers to 
rely upon tests conducted on the component part to certify that the 
finished product meets the applicable safety rules. Because testing 
costs are relatively fixed, component part testing allows the cost of 
the testing to be spread over more units of finished goods. This can 
significantly reduce the cost of testing and certifying products.
    For example, a manufacturer that uses the same paint on five 
different products could obtain test results for the paint and use 
those results to certify that the same paint, when used on each of the 
five products, complies with the applicable safety rules (provided that 
nothing is added to the paint after the testing or during the 
application process). Without component part testing, the manufacturer 
would have to test the paint on each product on which it is used, which 
would increase the costs of testing by a factor of about 5.
    Because component part testing can significantly reduce the cost of 
testing, the proposed rule would reduce, but not eliminate, the 
economic impact that the testing and certification requirements of the 
CPSIA may have on manufacturers and importers of consumer products 
subject to consumer product safety rules.

VII. Paperwork Reduction Act

    This proposed rule contains information collection requirements 
that are subject to public comment and review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3520). We describe the provisions in this section of 
the document with an estimate of the annual reporting burden. Our 
estimate includes the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing each collection of information.
    We invite comments on: (1) Whether the collection of information is 
necessary for the proper performance of the CPSC's functions, including 
whether the information will have practical utility; (2) the accuracy 
of the CPSC's estimate of the burden of the proposed collection of 
information, including the validity of the method and assumptions used; 
(3) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (4) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques, when appropriate, and other forms of 
information technology.
    The proposed rule would require certifiers to maintain records of 
the source of component parts tested for compliance to ensure 
traceability of component parts. If a component part is tested for 
certification by a party other than the manufacturer or importer of the 
finished product (the finished product certifier), the proposed rule 
would require that the testing party provide certain documentation or 
records to the certifier. These records include identification of a lot 
or batch number for which the testing applies; what applicable rules, 
bans, standards, and regulations it tested for on each component part 
tested; what testing methods and sampling protocols were used; the date 
or date range the component part was tested; the results of each test 
on a component part; if the product was tested by a third party 
conformity assessment body, identification of such third party 
conformity assessment body, and a copy of the original test results; 
and a certification that all testing was performed in compliance with 
section 14 of the CPSA and part 1107 of this title, as applicable.
    These records are similar to the records that a manufacturer would 
be required to develop and maintain under the proposed rule on 
``Testing and Labeling Pertaining to Product Certification'' (which 
appears elsewhere in this issue of the Federal Register). Most of the 
records concern the documentation of the test plan and test results for 
the component part, which would be required whether the component part 
was tested as part of the finished product or apart from the finished 
product. Even without component part testing, certifiers would be 
expected to maintain records regarding the lot, batch, or other 
information identifying the component parts used, since changes in the 
component part or the sourcing of the component part would constitute a 
material change and trigger requirements for additional testing.
    The proposed component part testing rule may shift the 
responsibility for preparing the records, especially those documenting 
the test results, in some cases, from the manufacturer or importer of 
the consumer product to the manufacturer or supplier of the component 
part.
    We do not know how many manufacturers or wholesalers will 
voluntarily test component parts for manufacturers of children's 
products. Component part manufacturers that are not themselves 
manufacturers of children's products could voluntarily obtain the 
required third party testing for children's product manufacturers who 
use their component parts. Such manufacturers might include textile 
manufacturers, paint and coating manufacturers, manufacturers of 
buttons and other fasteners, and manufacturers of plastics material and 
resin. The 2007 Economic Census showed that there were 5,220 
establishments that were engaged in manufacturing these materials or 
component parts. However, the number who would actually obtain

[[Page 28218]]

third-party testing will probably be a small subset of these 
establishments.
    At this time, there is no clear basis for estimating the 
recordkeeping burden on component part suppliers that voluntarily 
obtain the third party testing. We note that, in the proposed rule 
titled, ``Testing and Labeling Pertaining to Product Certification'' 
(which appears elsewhere in this issue of the Federal Register), we 
tentatively estimated that the total recordkeeping burden for that 
proposal with respect to the continued testing requirements of the 
CPSIA would be 200,000 to 300,000 hours annually. Some of this burden 
cannot be shifted to the component part suppliers because some tests 
must be performed on the whole product. In other cases, the burden will 
not be shifted because the component part is unique to the product or 
the manufacturer or because the component part supplier declines to 
obtain the third party testing. However, if we assume that eventually 
10 percent of the total testing were ultimately shifted to the 
component part suppliers, then the recordkeeping burden shifted would 
be approximately 20,000 to 30,000 hours. The total cost of the burden 
shifted would be $0.9 million to 1.5 million. This estimate was 
obtained by multiplying the total hour burden estimates by $48.91, 
which is the total hourly compensation for private sector workers in 
management, professional, and related occupations. The actual cost 
burden would depend upon the extent to which component suppliers are 
willing to voluntarily obtain the third party testing.
    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the CPSC has submitted the information collection 
requirements of this rule to OMB for review. Interested persons are 
requested to fax comments regarding information collection by June 21, 
2010, to the Office of Information and Regulatory Affairs, OMB (see 
ADDRESSES).

VIII. Executive Order 12988 (Preemption)

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations. Section 26 of the CPSA only addresses the preemptive 
effect of consumer product safety standards under the CPSA. The current 
rule is not a consumer product safety standard under the CPSA. 
Accordingly, this rule does not fall within the scope of any provision 
of any act enforced by the Commission that grants preemptive effect to 
rules.

IX. Effective Date

    The Administrative Procedure Act (APA) generally requires that the 
effective date of a rule be at least 30 days after publication of a 
final rule. 5 U.S.C. 553(d). The Commission intends that any final rule 
based on this proposal would become effective 180 days after the date 
of publication of a final rule in the Federal Register. This should 
allow time for any product changes needed for testing of component 
parts and for implementation of the component part testing 
requirements.

X. Request for Comments

    Although the CPSC has, on several occasions, invited and received 
comments on component part testing, the issuance of this proposed rule 
begins a rulemaking proceeding under sections 3 and 102 of the CPSIA 
which will establish the conditions and requirements for testing of 
component parts of consumer products to demonstrate, in whole or in 
part, compliance of a consumer product with all applicable rules, bans, 
standards, and regulations. We invite interested persons to submit 
comments on any aspect of the proposed rule. Comments should be 
submitted in accordance with the instructions in the ADDRESSES section 
at the beginning of this notice of proposed rulemaking.

List of Subjects in 16 CFR Part 1109

    Business and industry, Children, Consumer protection, Imports, 
Product testing and certification, Records, Record retention, Toys.
    Accordingly, the Commission proposes to add 16 CFR part 1109 to 
read as follows:

PART 1109--CONDITIONS AND REQUIREMENTS FOR TESTING COMPONENT PARTS 
FOR COMPLIANCE WITH ALL APPLICABLE RULES, BANS, STANDARDS OR 
REGULATIONS

Subpart A--General Conditions and Requirements
Sec.
1109.1 Scope.
1109.2 Purpose.
1109.3 Applicability.
1109.4 Definitions.
1109.5 Conditions, requirements, and effects generally.
Subpart B--Conditions and Requirements for Specific Consumer Products, 
Component Parts, and Chemicals
1109.11 Component part testing for paint and other surface coatings.
1109.12 Component part testing for lead content of children's 
products.
1109.13 Component part testing for phthalates in children's toys and 
child care articles.
1109.14 Composite testing.

    Authority: Secs. 3 and 102, Pub. L. 110-314, 122 Stat. 3016; 15 
U.S.C. 2063.

Subpart A--General Conditions and Requirements


Sec.  1109.1  Scope.

    This part applies to all tests of component parts of consumer 
products where the test results are used to support a certificate of 
compliance issued pursuant to section 14(a) of the Consumer Product 
Safety Act (CPSA) or where the tests are otherwise required or 
permitted by section 14 of the CPSA. The requirements of this subpart A 
apply to the consumer products, component parts, and chemicals subject 
to subpart B of this part.


Sec.  1109.2  Purpose.

    The purpose of this part is to set forth the conditions and 
requirements under which the Commission will require or accept the 
results of testing of component parts of consumer products, instead of 
the entire consumer product, to meet, in whole or in part, the testing 
and certification requirements of sections 14(a), 14(b), and 14(d) of 
the CPSA.


Sec.  1109.3  Applicability.

    The provisions of this part apply to all manufacturers, importers, 
and private labelers, and to the manufacturers and suppliers of 
component parts who are responsible for certifying consumer products 
under section 14(a) of the CPSA and continued compliance under section 
14(d) of the CPSA or who are responsible for testing component parts of 
consumer products to support a certificate of compliance under section 
14(a) of the CPSA or to comply with continuing testing requirements 
under section 14(d) of the CPSA.


Sec.  1109.4  Definitions.

    The following definitions apply to this part:
    (a) Certifier means a firm that is either a finished product 
certifier or a component part certifier as defined in this section.
    (b) Component part means any part of a consumer product, including 
a children's product, that either must or may be tested separately from 
a finished consumer product to assess the consumer product's ability to 
comply with a specific rule, ban, standard, or regulation enforced by 
the CPSC. Within the same consumer product, which component parts will 
have to be tested

[[Page 28219]]

may vary, depending on the test being conducted.
    (c) Component part certifier means a firm that certifies component 
parts to be used in consumer products as complying with one or more 
rules, bans, standards, or regulations enforced by the CPSC pursuant to 
part 1109.
    (d) CPSA means the Consumer Product Safety Act.
    (e) CPSC means the Consumer Product Safety Commission.
    (f) CPSIA means the Consumer Product Safety Improvement Act of 
2008.
    (g) Due care means the degree of care that a prudent and competent 
person engaged in the same line of business or endeavor would exercise 
under similar circumstances.
    (h) Finished product certifier means a firm responsible for 
certifying compliance of a consumer product with all applicable rules, 
bans, standards, and regulations enforced by the CPSC, pursuant to part 
1110 of this chapter.
    (i) Identical in all material respects means there is no difference 
with respect to compliance to the applicable rules between the samples 
and the finished product.
    (j) Paint means any type of surface coating that is subject to part 
1303 of this chapter or section 4.3.5.2 of ASTM F 963.
    (k) Testing party means the firm (including, but not limited to, 
domestic manufacturers, foreign manufacturers, importers, private 
labelers, third party conformity assessment bodies, or component part 
suppliers) who tests a consumer product, or any component part thereof, 
for compliance, in whole or in part, with any applicable rule, ban, 
standard, or regulation enforced by the CPSC.
    (l) Third party conformity assessment body means a third party 
conformity assessment body recognized by the CPSC to conduct 
certification testing on children's products.
    (m) Traceable means the ability of a certifier to identify the 
source of a component part of a consumer product, including the name 
and address of the supplier of the component part and, if different, 
the manufacturer of the component part.


Sec.  1109.5  Conditions, requirements, and effect generally.

    (a) Component part testing allowed. A certifier may certify 
compliance of a consumer product with all applicable rules, bans, 
standards, and regulations as required by section 14(a) of the CPSA, 
and may ensure continued compliance of children's products pursuant to 
section 14(d) of the CPSA, based, in whole or in part, on testing of a 
component part of the consumer product conducted by the certifier and/
or a testing party if the following requirements are met:
    (1) Testing of the component part is required or sufficient to 
assess compliance, in whole or in part, of the consumer product with 
the applicable rule, ban, standard, or regulation. Any doubts about 
whether testing one or more component parts of a consumer product can 
help to assess whether the entire product complies with applicable 
rules, bans, standards, and regulations should be resolved in favor of 
testing the entire product; and
    (2) The component part tested is identical to the component parts 
used in the finished consumer product in all material respects. To be 
identical in all material respects to a component part for purposes of 
supporting a certification of a children's product to the applicable 
content limit, a sample need not necessarily be of the same size, 
shape, or finish condition as the component part of the finished 
product; rather, it may consist of any quantity that is sufficient for 
testing purposes and in any form that has the same content as the 
component part of the finished product. A certifier must exercise due 
care to ensure that no change in the component parts after testing and 
before distribution in commerce has occurred that would affect 
compliance, including contamination or degradation. Manufacturers of 
finished consumer products must exercise due care in the proper 
management and control of all raw materials, component parts, 
subassemblies, and finished goods for any factor that could affect the 
finished product's compliance with all applicable rules. The 
manufacturer must exercise due care that the manufacturing process does 
not add a prohibited chemical from an untested source, such as the 
material hopper, regrind equipment, or other equipment used in the 
assembly of the finished product.
    (b) Limitation. A certifier must not rely on testing of a component 
part of a consumer product for any rule, ban, standard, or regulation 
that requires testing the entire consumer product to assess compliance.
    (c) Test method and sampling protocol. Regardless of which entity 
performs component part testing or selects samples for component part 
testing, both certifiers and testing parties must ensure that the 
required test methods and sampling protocols, as set forth in part 1107 
of this chapter, as well as any more specific applicable rules, bans, 
standards, regulations, or testing protocols, are used to assess 
compliance of the component part.
    (d) Timing. Subject to any more specific rule, ban, standard, or 
regulation, component part testing may occur before final assembly of a 
consumer product provided that nothing in the final assembly of the 
consumer product can cause the component part or the final consumer 
product to become noncompliant.
    (e) Traceability. Certifiers must not rely on component part 
testing conducted by another testing party unless such component parts 
are traceable.
    (f) Documentation by testing party. Unless the testing party is the 
finished product certifier, a testing party must provide the following 
documentation to a certifier either in hard copy or electronically:
    (1) Identification of the component part tested;
    (2) Identification of a lot or batch number for which the testing 
applies;
    (3) Identification of the applicable rules, bans, standards, and 
regulations it tested for on each component part tested;
    (4) Identification of the testing methods and sampling protocols 
used;
    (5) The date or date range when the component part was tested;
    (6) The results of each test on a component part; and
    (7) If the product was tested by a third party conformity 
assessment body, regardless of whether it was required because the 
product is a children's product or whether the testing party chose to 
use such third party conformity assessment body, identification of such 
third party conformity assessment body, a copy of the original test 
results, and a certification that all testing was performed in 
compliance with section 14 of the CPSA and part 1107 of this chapter.
    (g) Effect of Voluntary Certification by Component Part Certifiers. 
(1) The Commission will consider any certificate issued by a component 
part certifier in accordance with this part to be a certificate issued 
in accordance with section 14(a) of the CPSA. A component part 
certificate must contain all of the information required by part 1110 
of this chapter.
    (2) Any person who elects to certify compliance of a component part 
with an applicable rule must assume all responsibilities of a 
manufacturer under part 1107 of this chapter with respect to that 
component part's compliance to the applicable rule.
    (h) Certification by Finished Product Certifiers. (1) A finished 
product certifier must exercise due care in order

[[Page 28220]]

to rely, in whole or in part, on a component part certificate issued by 
a component part certifier or on component part testing by a testing 
party as the basis for a finished product certificate. If a finished 
product certifier fails to exercise due care in its reliance on a 
certificate for a component part, then the Commission will not consider 
the finished product certifier to hold a component part certificate 
issued in accordance with section 14(a) of the CPSA. Exercising due 
care in this context means taking the steps a prudent and competent 
person would take to conduct a reasonable review of a component part 
certificate and to address any concern over its validity. Such steps 
may vary according to the circumstances.
    (2) A finished product certifier must not rely on component part 
testing by a testing party or component part certifier unless it 
receives the documentation under paragraph (f) of this section from the 
component part certifier or testing party. The Commission may consider 
a finished product certifier who does not obtain such documentation 
before certifying a consumer product to have failed to exercise due 
care.
    (3) Any certification of a finished product based, in whole or in 
part, on component part testing performed by a component part certifier 
or a testing party must:
    (i) Identify both the corresponding documentation required in 
paragraph (f) of this section and any report provided by a third party 
conformity assessment body on which the consumer products certification 
is based; and
    (ii) Certify that no action subsequent to component part testing, 
for example, in the process of final assembly of the consumer product, 
changed or degraded the consumer product such that it adversely 
affected the product's ability to comply with all applicable rules, 
bans, standards, and regulations.
    (i) Recordkeeping requirements. All testing parties must maintain 
the documentation required in paragraph (f) of this section for 5 
years. Additionally, all certifiers must maintain records to support 
the traceability of component part suppliers for as long as the 
corresponding product is produced or imported by the certifier and for 
5 years thereafter. Test records must be maintained for 5 years. All 
records must be available in the English language. Finished product 
certifiers must maintain the records at the location within the United 
States specified in Sec.  1110.11(d) of this chapter or, if the records 
are not maintained at the custodian's address, at a location within the 
United States specified by the custodian. The finished product 
certifier must make these records available, either in hard copy or 
electronically, for inspection by the CPSC upon request.

Subpart B--Conditions and Requirements for Specific Consumer 
Products, Component Parts, and Chemicals


Sec.  1109.11  Component part testing for paint and other surface 
coatings.

    (a) Generally. The Commission will permit certification of a 
product as being in compliance with the lead paint limit of part 1303 
of this chapter or the content limits for paint on toys of section 
4.3.5.2 of ASTM F 963 if, for each paint used on the product, the party 
that certifies the product either has obtained a test report or holds a 
paint certificate as described below and the following requirements are 
met:
    (1) All testing must be performed on dry paint that is scraped off 
of a substrate for testing (the substrate used need not be of the same 
material as the material used in the finished product or have the same 
shape or other characteristics as the part of the finished product to 
which the paint will be applied);
    (2) The tested paint is identical in all material respects to that 
used in production of the consumer product. The paint samples to be 
tested must have the same composition as the paint used on the finished 
product. However, a larger quantity of the paint may be tested than is 
used on the consumer product, in order to generate a sufficient sample 
size. The paint may be supplied to the testing laboratory either in 
liquid form or in the form of a dried film of the paint on any suitable 
substrate; and
    (3) Documentation required by a testing party pursuant to Sec.  
1109.5(f) and the certificate required of certifiers under section 
14(a) of the CPSA and Sec.  1109.5(g) identifies each paint tested by 
color, location, formulation, or other characteristic, the supplier of 
the paint and, if different, the manufacturer of the paint.
    (b) Test reports. As part of its basis for certifying a children's 
product to the lead in paint limit, or other paint limit, a finished 
product certifier may rely on a test report showing passing test 
results for one or more paints used on the product, based on testing it 
commissioned from a third party conformity assessment body. The 
finished product certifier of the children's product must ensure that 
each paint sample sent to a third party conformity assessment body is 
identical in all material respects to that used on the finished 
product. Test reports must identify each paint tested by color, 
specification number, or other characteristic, as well as the 
manufacturer of the paint and the supplier of the paint (if different).
    (c) Paint certificates--(1) Children's products. As part of its 
basis for certification of a children's product to the lead in paint 
limit or other paint limit, a finished product certifier may rely on a 
certificate from another person certifying that the paint complies with 
the lead limit. The paint certificate must be based on testing by a 
third party conformity assessment body of sample of one or more paints 
that are identical in all material respects to the paint used on the 
finished product. The paint certificate must identify all test reports 
underlying the certification.
    (2) Nonchildren's products. For consumer products that are not 
children's products but are subject to paint limits (such as certain 
furniture items), a finished product certifier may base its 
certification on its own testing of each paint used on the product, on 
testing by any third party conformity assessment body, on paint 
certification(s) from any person, or on a combination of these methods.
    (3) Traceability. Any person who certifies a product as complying 
with the lead paint limit or other paint limit must be able to trace 
each batch of paint that is used on the product to the paint supplier 
and, if different, the paint manufacturer.
    (4) Prevention of contamination subsequent to testing. The finished 
product manufacturer must ensure that paint meeting the applicable 
limits when tested and certified is not later contaminated with lead 
from other sources before or during application to the product.


Sec.  1109.12  Component part testing for lead content of children's 
products.

    (a) Generally. A certifier may rely on component part testing of 
each accessible component part of a children's product for lead 
content, where such component part testing is performed by a third 
party conformity assessment body, provided that:
    (1) The determination of which, if any, parts are inaccessible 
pursuant to section 101(b)(2) of the CPSIA is based on an evaluation of 
the finished product; and
    (2) For each accessible component part of the product, the 
certifier either has a component part test report or a component part 
certificate.
    (b) Component part test reports. As part of its basis for 
certification of a children's product to the lead content limit, a 
finished product certifier may

[[Page 28221]]

rely on a test report showing passing test results for one or more 
component parts used on the product, based on testing by a third party 
conformity assessment body. Component part test reports must identify 
each component part tested, by part number or other specification, and 
the manufacturer and the supplier of the component part (if different).
    (c) Component part certificates. As part of its basis for 
certifying that a children's product complies with the applicable lead 
content limit, a finished product certifier may rely on a certificate 
from another person certifying that a component part complies with the 
lead limit. The component part certificate must be based on testing by 
a third party conformity assessment body of a sample that is identical 
in all material respects to the component parts used in the finished 
product. The certificate pertaining to the component part must identify 
all test reports underlying the certification consistent with section 
14 of the CPSA.
    (d) Certificates for the finished product. The certificate 
accompanying the children's product must list each component part that 
was tested, by part number or other specification, and, for each such 
component part, identify the corresponding test report, paint 
certificate, or component part certificate on which a certification for 
the finished children's product is based.


Sec.  1109.13  Component part testing for phthalates in children's toys 
and child care articles.

    (a) Generally. A finished product certifier may rely on component 
part testing of appropriate component parts of a children's toy or 
child care article for phthalate content if the finished product 
certifier is provided with a copy of the original test results obtained 
from the third party conformity assessment body or a component part 
certificate.
    (b) Component part test reports. As part of its basis for 
certification of a children's product to the phthalate content limit, a 
finished product certifier may rely on a test report showing passing 
test results for one or more component parts used on the product, based 
on testing by a third party conformity assessment body. Component part 
test reports must identify each component part tested, by part number 
or other specification, and the component part's supplier and, if 
different, the component part's manufacturer.
    (c) Component part certificates. As part of its basis for 
certification of a children's product to the phthalate content limit, a 
finished product certifier may rely on a certificate from another 
person certifying that a component part complies with the limit. The 
component part certificate must be based on testing by a third party 
conformity assessment body of a sample that is identical in all 
material respects to the component part used in the finished product. 
The component part certificate must identify all test reports 
underlying the certification consistent with section 14 of the CPSA. 
Any person who certifies a children's product as complying with the 
phthalate content limits must be able to trace each component part of 
the product to the component part's supplier and, if different, the 
component part's manufacturer.
    (d) Certificates for the finished product. The certificate 
accompanying the children's product must list each component part 
required to be tested by part number or other specification and, for 
each such part, must identify the corresponding test report from a 
third party conformity assessment body on which the product's 
certification is based.


Sec.  1109.14  Composite part testing.

    (a) Paint and other surface coatings. In testing paint for 
compliance with chemical content limits, testing parties may test a 
combination of different paint samples so long as they follow 
procedures ensuring that no failure to comply with the lead limits will 
go undetected (see paragraph (c) of this section). Testing and 
certification of composite paints must comply with Sec.  1109.11.
    (b) Component parts. Third party conformity assessment bodies may 
test a combination of component parts so long as they follow procedures 
ensuring that no failure to comply with the content limits will go 
undetected (see paragraph (c) of this section). Testing and 
certification of composite component parts for lead content must comply 
with Sec.  1109.12. Testing and certification of composite component 
parts for phthalate content must comply with Sec.  1109.13.
    (c) How to evaluate composite part testing. When using composite 
part testing, only the total amount or percentage of the target 
chemical is determined, not how much was in each individual paint or 
component part. Therefore, to determine that each paint or component 
part is within the applicable limit, the entire amount of the target 
chemical in the composite is attributed to each paint or component 
part. If this method yields an amount of the target chemical that 
exceeds the limit applicable to any paint or component part in the 
composite sample, additional testing would be required to determine 
which of the paints or component parts, if any, fail to meet the 
applicable limit.

    Dated: May 7, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-11370 Filed 5-19-10; 8:45 am]
BILLING CODE 6355-01-P