2015-25932. 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.

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 (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 [phone].

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; [phone]; email; [e-mail].

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.gpo.gov/​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.gpo.gov/​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 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).

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.

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

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.

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

§ 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.

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

§ 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. * * *

* * * * *

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

§ 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 § 1109.5 and paragraph (b) of this section are met.

* * * * *

5. Revise § 1109.13 to read as follows:

§ 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 § 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.

6. Revise part 1500 to read as follows:

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

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

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

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

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

* * * * *

Todd A. Stevenson,

Secretary, Consumer Product Safety Commission.

Footnotes

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.