2010-30981. Extension of the Date by Which Youth All-Terrain Vehicles Must Be Tested and Certified

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of extension of date of testing and certification of youth all-terrain vehicles.

SUMMARY:

The U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) is announcing that the Commission has extended, by 60 days, the date by which manufacturers (including importers) of youth all-terrain vehicles (ATVs) must submit sufficient samples of such products to a third party conformity assessment body approved by the Commission for testing and, based on such testing, issue a certificate that the products manufactured after the deadline comply with certain CPSC regulations relating to ATVs. The extension is granted because there are an insufficient number of third party conformity assessment bodies accredited by the Commission to permit testing and certification under the original schedule.^[1]

DATES:

The date after which youth ATVs must be tested by third party conformity assessment bodies accredited by the Commission to assess conformity with the CPSC regulations for all-terrain vehicles is extended until January 25, 2011.

Comments in response to this notice should be submitted by December 30, 2010. Comments on this notice should be captioned “Third Party Testing and Certification of Youth All-Terrain Vehicles: Request for Stay of Enforcement and Other Relief.”

ADDRESSES:

You may submit comments, identified by Docket No. CPSC-2010-0115, by any of the following methods:

Electronic Submissions: Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (e-mail) except through: http://www.regulations.gov.

Written Submissions: Submit written submissions in the following way:

Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone [phone].

Instructions: All submissions received must include the agency name and docket number for this notice. All comments received may be posted without change to: http://www.regulations.gov, including any personal information provided. Do not submit confidential business information, trade secret information, or other sensitive or protected information (such as a Social Security Number) electronically; if furnished at all, such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Richard McCallion, Program Area Team Leader, Office of Hazard Identification and Reduction, U.S. Consumer Product Safety Commission,10901 Darnestown Road, Gaithersburg, MD 20878; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Introduction

Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2) of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Public Law 110-314, directs the CPSC to establish and publish a notice of requirements for accreditation of third party conformity assessment bodies to assess children's products for conformity with “other children's product safety rules.” Section 14(f)(1) of the CPSA defines “children's product safety rule” as “a consumer product safety rule under [the CPSA] or similar rule, regulation, standard, or ban under any other Act enforced by the Commission, including a rule declaring a consumer product to be a banned hazardous product or substance.” Under section 14(a)(3)(A) of the CPSA, 15 U.S.C. 2063(a)(3)(A), each manufacturer (including an importer) or private labeler of products subject to those regulations must have products that are manufactured more than 90 days after the establishment and Federal Register publication of a notice of the requirements for accreditation tested by a third party conformity assessment body accredited to do so, and must issue a certificate of compliance with the applicable regulations based on that testing. Pursuant to section 14(a)(3)(F) of the CPSA, the Commission may extend the 90-day period by not more than 60 days if the Commission determines that an insufficient number of third party conformity assessment bodies have been accredited to permit certification for a children's product safety rule. Irrespective of certification, the product in question must comply with applicable CPSC requirements (see, e.g., section 14(h) of the CPSA, as added by section 102(b) of the CPSIA).

In the Federal Register of August 27, 2010 (75 FR 52616) (accessible at http://www.cpsc.gov/​businfo/​frnotices/​fr10/​atv.pdf), the Commission published a notice of requirements that provided the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing of ATVs designed or intended primarily for children 12 years of age or younger pursuant to 16 CFR part 1420, the CPSC regulations under the CPSA relating to ATVs. The notice of requirements stated that, for youth ATVs manufactured after November 26, 2010, the manufacturer “must issue a certificate of compliance with 16 CFR part 1420 based on” testing performed by a third party conformity assessment body (75 FR at 52618). The notice also asked for comments on the notice to be received by September 27, 2010.

The notice of requirements also stated that the Commission will accept a certificate of compliance with 16 CFR part 1420, Requirements for All Terrain Vehicles, based on testing performed by an accredited third party conformity assessment body (including a government-owned or government-controlled conformity assessment body, or a firewalled conformity assessment body) prior to the Commission's acceptance of its accreditation, if all the following conditions are met:

• When the product was tested, the testing was done by a third party conformity assessment body, which at that time, was ISO/IEC 17025 accredited by an International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement (“ILAC/MRA”) signatory. For firewalled conformity assessment bodies, the Commission will not accept a certificate of compliance based upon testing performed by the third party conformity assessment body, unless the firewalled conformity assessment body was accredited, by order, as a firewalled conformity assessment body before the product was tested, even though the order would not have included the test methods in 16 CFR part 1420.
• The third party conformity assessment body's application for testing using the test methods in 16 CFR part 1420 is accepted by the CPSC on or before October 26, 2010.
• The product was tested on or after November 4, 2008 (the date that 16 CFR part 1420 was published).
• The accreditation scope in effect for the third party conformity assessment body at the time of testing expressly included testing to 16 CFR part 1420.
• The test results show compliance with the applicable current standards and/or regulations.
• The third party conformity assessment body's accreditation, including 16 CFR part 1420 in its scope, remains in effect through the effective date for mandatory third party testing and manufacturer certification for conformity with 16 CFR part 1420.

75 FR at 52619. Obviously, the date specified in that notice for acceptance of such “retrospective” testing, October 26, 2010, has passed.

II. Requests for Extension

In response to the notice of requirements, the Specialty Vehicle Institute of America (“SVIA”) filed a comment that included a request that the Commission extend by 60 days the date by which manufacturers must begin testing and certification of youth ATVs. Among the reasons given for the extension were the complexity of 16 CFR part 1420 and that no third party conformity assessment bodies have been accredited by an accrediting body that is a signatory to the ILAC/MRA, a prerequisite for such conformity assessment bodies to be accepted by the CPSC.

On November 17, 2010, the SVIA filed a “Petition for Extension and Stay of Enforcement for Third Party Testing for Certain All-Terrain Vehicles.” The petition requested a 60-day extension of the date by which manufacturers must begin testing and certification of youth ATVs, stating that no third party conformity assessment bodies have been accredited by the CPSC to test for conformity with 16 CFR part 1420. The SVIA concluded that it is unlikely that a sufficient number of accredited third party conformity assessment bodies will exist by the end of the requested 60-day extension. As a result, the SVIA also requested that the Commission consider additional forms of relief, such as a further stay of enforcement of these requirements for one year (to November 27, 2011). Hereafter, the comment and the petition will be referred to collectively as “the petition.”

III. Commission Action on the Petition

As to the request for a 60-day extension of the date by which manufacturers must begin testing and certification of youth ATVs, the Commission is not aware of any third party conformity assessment bodies that have the requisite accreditation by an ILAC-MRA signatory to test for conformity to 16 CFR part 1420. Given this situation, the Commission is granting the request for a 60-day extension.

The Commission is not granting or denying the request for a one-year stay of enforcement, or other relief, at this time. The Commission invites comment on this request. Comments should be filed by December 30, 2010. The Commission particularly is interested in comments on:

1. What efforts have been made by ATV manufacturers or others to obtain tests of youth ATVs by third party conformity assessment bodies and to encourage third party conformity assessment bodies to become accredited to do so?

2. What is the status of the efforts of third party conformity assessment bodies to become accredited to test youth ATVs, and how long will it take to obtain such accreditation?

3. What barriers currently exist to gaining accreditation that are specifically related to youth ATVs?

4. How are ATV manufacturers currently demonstrating compliance with the ANSI/SVIA-2007-1 standard? What ATV manufacturers are currently doing in-house testing of their ATVs for conformance to the standard? What steps, if any, have these manufacturers taken to have their existing in-house testing facilities become accredited third party conformity assessment bodies?

5. What third party testing facilities are capable of testing youth ATVs to the ANSI/SVIA-2007-1 standard?

IV. Dates Affected by This Extension

This extension is effective beginning on November 27, 2010. Accordingly, each manufacturer of a youth ATV subject to 16 CFR part 1420 must have samples of any such product, or samples that are identical in all material respects to such product, that is manufactured after January 25, 2011, tested by a third party conformity assessment body accredited to do so by the Commission. Further, for youth ATVs manufactured after January 25, 2011, the manufacturer must issue a certificate of compliance with 16 CFR part 1420 based on that testing. (Under the CPSA, the term “manufacturer” includes anyone who manufactures or imports a product. See 16 CFR part 1110.)

Furthermore, the Commission is changing the dates it had established for when it would accept the results of tests of youth ATVs conducted by a third party conformity assessment body before that body became accredited by the CPSC. Accordingly, the Commission will accept a certificate of compliance with 16 CFR part 1420, Requirements for All Terrain Vehicles, based on testing performed by an accredited third party conformity assessment body (including a government-owned or government-controlled conformity assessment body, or a firewalled conformity assessment body) prior to the Commission's acceptance of its accreditation, if all the following conditions are met:

• When the product was tested, the testing was done by a third party conformity assessment body that at that time was ISO/IEC 17025 accredited by an ILAC-MRA signatory. For firewalled conformity assessment bodies, the Commission will not accept a certificate of compliance based on testing performed by the third party conformity assessment body unless the firewalled conformity assessment body was accredited by a Commission order as a firewalled conformity assessment body before the product was tested, even though the order will not have included the test methods in 16 CFR part 1420.
• The third party conformity assessment body's application for testing using the test methods in the regulations identified in this notice is accepted by the CPSC on or before December 27, 2010.
• The product was tested on or after November 4, 2008 (the date that 16 CFR part 1420 was published).
• The accreditation scope in effect for the third party conformity assessment body at the time of testing expressly included testing to 16 CFR part 1420.
• The test results show compliance with the applicable current standards and/or regulations.
• The third party conformity assessment body's accreditation, including 16 CFR part 1420 in its scope, remains in effect through February 7, 2011.

Except for the dates that are adjusted by 60 days in this notice, all provisions of the notice of requirements published on August 27, 2010, 75 FR 52616, remain in effect.

Dated: December 3, 2010.

Todd A. Stevenson,

Secretary, Consumer Product Safety Commission.

Footnotes

1.  The Commission voted 3-1-1 to approve this notice. Chairman Inez Tennenbaum, Commissioner Thomas Moore, and Commissioner Robert Adler approved the notice. Commissioner Nancy Nord voted to approve a different version of the notice. Commissioner Anne Northup abstained.