80 FR 61729 - Amendment To Clarify When Component Part Testing Can Be Used and Which Textile Products Have Been Determined Not To Exceed the Allowable Lead Content Limits

CONSUMER PRODUCT SAFETY COMMISSION

Federal Register Volume 80, Issue 198 (October 14, 2015)

The Consumer Product Safety Act (``CPSA'') requires third party testing and certification of children's products that are subject to children's product safety rules. The Consumer Product Safety Commission (``Commission,'' or ``CPSC'') has previously issued regulations related to this requirement: A regulation that allows parties to test and certify component parts of products under certain circumstances; and a regulation determining that certain materials or products do not require lead content testing. The Commission is issuing a direct final rule clarifying when component part testing can be used and clarifying which textile products have been determined not to exceed the allowable lead content limits.

[Federal Register Volume 80, Number 198 (Wednesday, October 14, 2015)]
[Rules and Regulations]
[Pages 61729-61733]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-25932]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1109 and 1500

[Docket No. CPSC-2011-0081]


Amendment To Clarify When Component Part Testing Can Be Used and 
Which Textile Products Have Been Determined Not To Exceed the Allowable 
Lead Content Limits

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: The Consumer Product Safety Act (``CPSA'') requires third 
party testing and certification of children's products that are subject 
to children's product safety rules. The Consumer Product Safety 
Commission (``Commission,'' or ``CPSC'') has previously issued 
regulations related to this requirement: A regulation that allows 
parties to test and certify component parts of products under certain 
circumstances; and a regulation determining that certain materials or 
products do not require lead content testing. The Commission is issuing 
a direct final rule clarifying when component part testing can be used 
and clarifying which textile products have been determined not to 
exceed the allowable lead content limits.

DATES: The rule is effective on December 14, 2015, unless we receive 
significant adverse comment by November 13, 2015. If we receive a 
timely significant adverse comment, we will publish notification in the 
Federal Register, withdrawing this direct final rule before its 
effective date.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0081, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: www.regulations.gov. Follow the instructions for 
submitting comments. The Commission does not accept comments submitted 
by electronic mail

[[Page 61730]]

(email), except through www.regulations.gov. The Commission encourages 
you to submit electronic comments by using the Federal eRulemaking 
Portal, as described above.
    Written Submissions: Submit written submissions by mail/hand 
delivery/courier 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 notice. All comments received may be posted 
without change, including any personal identifiers, contact 
information, or other personal information provided, to: 
www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
that you do not want to be available to the public. If furnished at 
all, such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number CPSC-2011-0081, into the ``Search'' box, and follow the prompts.

FOR FURTHER INFORMATION CONTACT: Kristina Hatlelid, Ph.D., M.P.H., 
Directorate for Health Sciences, U.S. Consumer Product Safety 
Commission, 5 Research Place, Rockville, MD 20850; (301) 987-2558; 
email; [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Section 14(a) of the CPSA, as amended by the Consumer Product 
Safety Improvement Act of 2008 (``CPSIA''), requires that manufacturers 
of products subject to a consumer product safety rule or similar rule, 
ban, standard or regulation enforced by the CPSC must certify that the 
product complies with all applicable CPSC-enforced requirements. 15 
U.S.C. 2063(a). For children's products, certification must be based on 
testing conducted by a CPSC-accepted third party conformity assessment 
body. Id. Public Law 112-28 (August 12, 2011) directed the CPSC to seek 
comment on ``opportunities to reduce the cost of third party testing 
requirements consistent with assuring compliance with any applicable 
consumer product safety rule, ban, standard, or regulation.'' In 
response to Public Law 112-28, the Commission published in the Federal 
Register a Request for Comment (``RFC''). See http://www.cpsc.gov//PageFiles/103251/3ptreduce.pdf. As directed by the Commission, staff 
submitted a briefing package to the Commission that described 
opportunities that the Commission could pursue to potentially reduce 
the third party testing costs consistent with assuring compliance. See 
http://www.cpsc.gov/PageFiles/129398/reduce3pt.pdf.
    In addition to soliciting and reviewing comments as required by 
Public Law 112-28, the Commission published in the Federal Register on 
April 16, 2013 a Request for Information (``RFI'') on four potential 
opportunities to reduce testing burdens. See http://www.thefederalregister.org/fdsys/pkg/FR-2013-04-16/pdf/2013-08858.pdf. In February 2014, the Commission 
also published a notice in the Federal Register of a CPSC workshop on 
potential ways to reduce third party testing costs through 
determinations consistent with assuring compliance. See http://www.thefederalregister.org/fdsys/pkg/FR-2014-02-27/pdf/2014-04265.pdf. The workshop 
was held on April 3, 2014.
    The Commission has issued several regulations concerning third 
party testing and certification. In this direct final rule, the 
Commission clarifies provisions in two such regulations. The Commission 
believes that these clarifications will enable manufacturers to better 
understand their testing obligations so that they can avoid unnecessary 
testing.

B. Amendment to Part 1109

1. Background

    In November 2011, the Commission promulgated 16 CFR part 1109, 
Conditions and Requirements for Relying on Component Part Testing or 
Certification, or Another Party's Finished Product Testing or 
Certification, to Meet Testing and Certification Requirements 
(``component part testing rule''). Through the component part testing 
rule the Commission sought to help manufacturers meet their testing, 
continuing testing, and certification obligations under section 14 of 
the CPSA. The component part testing rule is intended to give all 
parties involved in testing and certifying consumer products pursuant 
to section 14 of the CPSA the flexibility to procure or rely on 
required certification testing where such testing is easiest to conduct 
or least expensive.

2. Description of the Amendment

    Subpart A of 16 CFR part 1109 provides the general requirements for 
component part testing, and subparts B and C provide for additional 
conditions for specific products and requirements. Although the 
component part testing rule does not specifically limit the 
applicability of component part testing to just those products and 
requirements included in subparts B and C, the inclusion in the rule of 
conditions and requirements for specific products and requirements may 
have been misinterpreted by stakeholders as excluding the option of 
component part testing for other products and requirements that are not 
explicitly specified in the requirements currently referenced in 
subpart B (paint, lead content of children's products, and phthalates 
in children's toys and child care articles). An example of a 
requirement not explicitly specified in subpart B of 16 CFR part 1109 
where component part testing may be used is the requirement for the 
solubility of specified chemicals for toy substrate materials other 
than paints in the ASTM F963 mandatory toy standard.
    This amendment makes the following revisions to the component part 
testing rule. Section 1109.1(c) is revised to clarify that subpart B 
applies only to products or requirements expressly identified in 
subpart B rather than placing limitations on the use of component part 
testing of chemical content. Section 1109.5(a) is revised to clarify 
that the requirements of subpart B and C are only required if 
applicable in the circumstances identified in subparts B and C. Thus, 
manufacturers are free to use component part testing in addition to the 
specific circumstances in subpart B (paint, lead content of children's 
products, and phthalates in children's toys and child care articles) 
and subpart C (composite testing).
    In addition, the amendment brings two other provisions in the 
component part rule up to date. Section 1109.11(a) currently refers to 
an older version of the mandatory toy standard, ASTM F963-08. However, 
the toy standard has been revised, and the appropriate reference should 
be ASTM F963-11. The amendment revises section 1109.11(a) to update the 
obsolete references to the mandatory toy standard. The amendment also 
updates section 1109.13 to refer to guidance that the Commission issued 
after publication of the component part rule. Section 1109.13 addresses 
when a certifier may rely on component part testing for phthalates in 
children's toys and child care articles. The amendment adds a reference 
to the Commission's guidance concerning inaccessible component parts 
(16 CFR part 1199). This change will make the provision concerning 
phthalates (section 1109.13) consistent

[[Page 61731]]

with the provision concerning lead (section 1109.12) and will help 
certifiers understand which components are inaccessible and do not need 
to be tested for phthalate content.
    These revisions to part 1109 do not, and are not intended to, make 
any substantive revisions to the existing rule, but rather clarify what 
the Commission intended when the rule was originally promulgated and 
bring the rule up to date by referencing current regulations.

C. Amendment to Part 1500

1. Background

    The Commission determined by rule that certain products and 
materials inherently do not contain lead at levels that exceed the lead 
content limits under section 101(a) of the CPSIA, so long as those 
materials have not been treated or adulterated with materials that 
could add lead. 16 CFR 1500.91. The effect of these determinations is 
to relieve the material or product from the third party testing 
requirement.
    Section 1500.91(d)(7) states that such a determination applies to 
``textiles (excluding after-treatment applications, including screen 
prints, transfers, decals, or other prints) consisting of [various 
fibers].'' 16 CFR 1500.91(d)(7) (emphasis added). Thus, the rule 
determined that dyes and dyed textiles do not contain lead. As 
explained in the preamble to the determination rule, dyes are organic 
chemicals that can be dissolved and made soluble in water or another 
carrier so that they penetrate into the fiber. 74 FR 43031, 43036 (Aug. 
26, 2009). Dyes can be applied to textiles at the fiber, yarn, fabric 
or finished product stage. Although some dye baths may contain lead, 
the colorant that is retained by the finished textile after rinsing 
would not contain lead above a non-detectable lead level. In contrast 
to dyes, pigments may be either organic or inorganic and they are 
insoluble in water. Some textiles may have lead based paints and 
pigments that are directly incorporated onto the textile product or 
added to the surface of textiles. Examples are decals, transfers, and 
screen printing. Id. The reference in the rule to ``other prints'' 
referred only to those after-treatment applications that use non-dye 
substances. Such prints, in which the non-dye substances do not become 
part of the fiber matrix but remain a surface coating, could contain 
lead, and are subject to the testing required under the CPSIA for 
children's products.
    The American Apparel & Footwear Association (``AAFA'') has 
expressed confusion about the phrase ``or other prints'' in 16 CFR 
1500.91(d)(7). AAFA argues that this phrase can be read to exclude from 
the determination rule items that are dyed (and are lead free) merely 
because of the technique used to apply colorant.\1\ AAFA asserts that 
this interpretation has resulted in a ``significant amount of 
unnecessary testing.'' The Commission is amending the rule to reduce 
any confusion about the meaning of the phrase ``or other prints'' in 16 
CFR 1500.91(d)(7).
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    \1\ Letter from the American Apparel and Footwear Association to 
Robert Adler, Acting Chairman of the Consumer Product Safety 
Commission (June 2, 2014). Available as document CPSC-2011-0081-0059 
in docket CPSC-2011-0081 at www.regulations.gov.
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    As discussed above, the preamble to the determination rule 
explained the parameters of the determination regarding textiles. 
Whether textiles require testing for lead content depends on whether 
the products are dyed or include other non-dye finishes, decorations, 
colorants, or prints, and not on the techniques that are used in 
manufacturing, printing, or applying such products. Some printing, 
treatments, and applications involve dyes that do not contain lead, 
others may use paints, pigments, or inks that may contain lead. The 
phrase ``or other prints'' in the exclusion in 1500.91(d)(7) may 
mistakenly give the impression that the application process (e.g., 
printing) is a determining factor. The Commission is amending the 
provision to clarify that dyed textiles, regardless of the techniques 
used to produce such materials and apply such colorants, are not 
subject to required testing for lead in paint or for total lead 
content.

2. Description of the Amendment

    Section 1500.91(d)(7) is revised to clarify that the Commission has 
determined that textiles that have treatments and applications 
consisting entirely of dyes do not exceed the lead content limits, and 
are not subject to the third party testing requirements for children's 
products, so long as those materials have not been treated or 
adulterated with materials that could add lead. The amendment does not 
make any substantive change in the requirements of the current rule.

D. Direct Final Rule Process

    The Commission is issuing these amendments as a direct final rule 
(``DFR''). The Administrative Procedure Act (``APA'') generally 
requires notice and comment rulemaking 5 U.S.C. 553(b). In 
Recommendation 95-4, the Administrative Conference of the United States 
(``ACUS'') endorsed direct final rulemaking as an appropriate procedure 
to expedite promulgation of rules that are noncontroversial and that 
are not expected to generate significant adverse comment. See 60 FR 
43108 (August 18, 1995). Consistent with the ACUS recommendation, the 
Commission is publishing this rule as a direct final rule because we 
believe the clarifications will not be controversial. The rule will not 
impose any new obligations, but rather will clarify existing rules to 
make clear what is permissible and what is required to be third party 
tested. We expect that the clarifications will be supported by 
stakeholders. The clarifications respond to the desire expressed by 
numerous stakeholders and Congress that the Commission provide relief 
from the burdens of third party testing while also ensuring that 
products will comply with all applicable children's product safety 
rules. We expect that these clarifications will not engender any 
significant adverse comments.
    Unless we receive a significant adverse comment within 30 days, the 
rule will become effective on December 14, 2015. In accordance with 
ACUS's recommendation, the Commission considers a significant adverse 
comment to be one where the commenter explains why the rule would be 
inappropriate, including an assertion challenging the rule's underlying 
premise or approach, or a claim that the rule would be ineffective or 
unacceptable without change.
    Should the Commission receive a significant adverse comment, the 
Commission will withdraw this direct final rule. If a significant 
adverse comment is received for an amendment to only one of the two 
rules being revised in the direct final rule, the Commission will only 
withdraw the amendment to the rule receiving a significant adverse 
comment. A notice of proposed rulemaking (``NPR''), providing an 
opportunity for public comment, is also being published in this same 
issue of the Federal Register.

E. Effective Date

    The APA generally requires that a substantive rule must be 
published not less than 30 days before its effective date. 5 U.S.C. 
553(d)(1). Because the final rule provides relief from existing testing 
requirements under the CPSIA, the effective date is December 14, 2015. 
However, as discussed in section D of the preamble, if the Commission 
receives a significant adverse comment the Commission will withdraw the 
DFR and proceed with the NPR published in this same issue of the 
Federal Register.

[[Page 61732]]

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') generally requires that 
agencies review proposed and final rules for the rules' potential 
economic impact on small entities, including small businesses, and 
prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604.
    The revisions to the component part testing rule clarify that 
component part testing can be used whenever tests on a component part 
will provide the same information about the compliance of the finished 
product as would be provided by tests of the component after it is 
incorporated into or applied to a finished product. The revisions do 
not make any substantive changes in the requirements of the current 
component part rule. Therefore, the number of manufacturers affected 
should be small. The changes will not increase costs for any entities. 
Therefore, the changes to the rule are not expected to have a 
significant impact on a substantial number of small entities.
    The revision to the lead determination rule clarifies that textiles 
that have treatments and applications that consist entirely of dyes are 
determined by the Commission not to exceed the lead content limits, and 
are not subject to the third party testing requirements for children's 
products. The amendment does not make any substantive change in the 
requirement of the current rule. The change will not increase costs for 
any entities. Therefore, the change to the rule is not expected to have 
a significant impact on a substantial number of small entities.
    Due to the small number of entities affected and the limited scope 
of the impact, the Commission certifies that this rule will not have a 
significant impact on a substantial number of small entities pursuant 
to section 605(b) of the RFA, 5 U.S.C. 605(b).

G. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
Commission rules from any requirement to prepare an environmental 
assessment or an environmental impact statement because they ``have 
little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(2). This rule falls within the categorical exclusion, so no 
environmental assessment or environmental impact statement is required. 
The Commission's regulations state that safety standards for products 
normally have little or no potential for affecting the human 
environment. 16 CFR 1021.5(c)(1). Nothing in this rule alters that 
expectation.

List of Subjects

16 CFR Part 1109

    Business and industry, Children, Consumer protection, Imports, 
Product testing and certification, Records, Record retention, Toys.

16 CFR Part 1500

    Consumer protection, Hazardous materials, Hazardous substances, 
Imports, Infants and children, Labeling, Law enforcement, and Toys.

    For the reasons discussed in the preamble, the Commission amends 
Title 16 of the Code of Federal Regulations, as follows:

PART 1109--CONDITIONS AND REQUIREMENTS FOR RELYING ON COMPONENT 
PART TESTING OR CERTIFICATION, OR ANOTHER PARTY'S FINISHED PRODUCT 
TESTING OR CERTIFICATION, TO MEET TESTING AND CERTIFICATION 
REQUIREMENTS

0
1. The authority citation for part 1109 continues to read as follows:

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


0
2. Amend Sec.  1109.1 by revising paragraph (c) to read as follows:


Sec.  1109.1  Scope.

* * * * *
    (c) Subpart A establishes general requirements for component part 
testing and certification, and relying on component part testing or 
certification, or another party's finished product certification or 
testing, to support a certificate of compliance issued pursuant to 
section 14(a) of the Consumer Product Safety Act (CPSA) or to meet 
continued testing requirements pursuant to section 14(i) of the CPSA. 
Subpart B sets forth additional requirements for component part testing 
for specific consumer products, component parts, and chemicals. Subpart 
B is applicable only to those products or requirements expressly 
included in subpart B. Subpart C describes the conditions and 
requirements for composite testing.

0
3. Amend Sec.  1109.5 by revising the first sentence in paragraph (a) 
to read as follows:


Sec.  1109.5  Conditions, requirements, and effects generally.

    (a) Component part testing allowed. Any party, including a 
component part manufacturer, a component part supplier, a component 
part certifier, or a finished product certifier, may procure component 
part testing as long as it complies with the requirements in this 
section, and with the requirements of subparts B and C of this part, if 
applicable in the circumstanced identified in subparts B and C. * * *
* * * * *

0
4. Amend Sec.  1109.11 by revising paragraph (a) to read as follows:


Sec.  1109.11  Component part testing for paint.

    (a) Generally. The Commission will permit certification of a 
consumer product, or a component part of a consumer 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 of ASTM F 963-11 or 
any successor standard of section 4.3 of ASTM F 963-11 accepted by the 
Commission if, for each paint used on the product, the requirements in 
Sec.  1109.5 and paragraph (b) of this section are met.
* * * * *

0
5. Revise Sec.  1109.13 to read as follows:


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

    A certifier may rely on component part testing of appropriate 
component parts of a children's toy or child care article for phthalate 
content provided that the requirements in Sec.  1109.5 are met, and the 
determination of which, if any, parts are inaccessible pursuant to 
section 108(d) of the CPSIA and part 1199 of this chapter is based on 
an evaluation of the finished product.

0
6. Revise part 1500 to read as follows:

PART 1500--HAZARDOUS SUBSTANCES AND ARTICLES: ADMINISTRATION AND 
ENFORCEMENT REGULATIONS

0
7. The authority citation for part 1109 continues to read as follows:

    Authority: 15 U.S.C. 1261-1278, 122 Stat. 3016.


0
8. Amend Sec.  1500.91 by revising paragraph (d)(7) introductory text 
to read as follows:


Sec.  1500.91  Determinations regarding lead content for certain 
materials or products under section 101 of the Consumer Product Safety 
Improvement Act.

    (d) * * *
    (7) Textiles (excluding any textiles that contain treatments or 
applications

[[Page 61733]]

that do not consist entirely of dyes) consisting of:
* * * * *

Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2015-25932 Filed 10-13-15; 8:45 am]
BILLING CODE 6355-01-P