Details of CPSC’s Draft Proposed Rule on Component Testing

CPSC states that component testing may help manufacturers (and importers) meet their testing and continuing testing obligations such as those laid out in CPSC’s draft proposed “15 Month Rule.” (See ITT’s Online Archives or 04/09/10 news, (Ref: 10040905), for BP summary of draft proposed “15 Month Rule.”)

CPSC will hold an open Commission meeting to discuss this draft as well as the related draft proposed “15 Month Rule” on April 15, 2010. A Commission vote on both drafts is currently scheduled for April 21, 2010.

Would Establish Conditions for Importers/Mfrs to Rely on Component Testing for Their Certifications

The draft proposed rule would establish the conditions under which domestic manufacturers and importers issuing either a general conformity certificate for non-children’s products or a certification for children’s products could rely on tests of components² of the product, including materials³ used to produce it, as all or part of the basis for a valid certificate that the product complies with each applicable standard, rule, ban, etc. enforced by CPSC.

The draft would also set out the conditions under which such tests of component parts could be conducted by persons other than the manufacturer (or importer), such as the manufacturer or supplier of the component parts.

The draft states that the proposed rulemaking would become effective 180 days after publication of a final rule in the Federal Register.

General

Conditions for Component Testing

In general, a certifier⁴ would be able to certify compliance of a consumer product with all applicable CPSC rules, bans, standards, and regulations as required by section 14(a) of the CPSA (which covers both general conformity certification and certification of children’s products), and could 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 party⁵ if certain conditions were met.

These conditions include:

• Component testing will assess compliance - If testing of the component is required or sufficient to assess compliance, in whole or in part, of the consumer product with the applicable rule, ban, standard, or regulation (with any doubts resolved in favor of testing the entire product).
• “Entire product” test not required - if testing the entire consumer product is not required by the relevant rule, ban, standard, or regulation in order to assess compliance. (For example, crib tests require testing the entire crib, so component testing could not be used.)
• Component is materially identical - if the component tested is identical in all material respects to the part used in the finished consumer product. (The draft states that a sample would not necessarily need to be of the same size, shape, or finish condition as the component part of the final product; rather, it could consist of any quantity that was sufficient for testing purposes and in any form that has the same content as the part of the final product.)
• Due care taken against changes -- if due care⁶ were taken by the certifier to ensure that no change in the component parts after testing and before distribution in commerce had occurred that would affect compliance, including contamination or degradation. Among other things, nothing in the manufacturing process or final assembly could cause the component part or the final consumer product to become noncompliant.

Test Methods & Sampling Protocols

Regardless of which entity performs component part testing or selects samples for component part testing, both certifiers and testing parties would have to ensure that the required test methods and sampling protocols, as set forth in 16 CFR Part 1107, as well as any more specific applicable rules, bans, standards, regulations, or testing protocols, were used to assess compliance of the component part.

Traceability

Certifiers would not be able to rely on component part testing conducted by another testing party unless such component parts were traceable.⁷

“Testing Documentation” to be Provided to Certifier

Unless the testing party was the certifier, a testing party would have to provide the following “testing documentation” to the certifier before that certifier could certify the product:

• identification of the component part tested;
• identification of a lot or batch number for which the testing applies;
• identification of the applicable rules, bans, standards, and regulations it tested for on each component part tested;
• identification of the testing methods and sampling protocols were used;
• the date or date range when the component part was tested;
• the results of each test on a component part; and
• if the product was tested by a third party conformity assessment body, regardless of whether it was required or voluntary, identification of the lab, a copy of the original test results, and a certification that all testing was performed in compliance with section 14 of the CPSA and 16 CFR Part 1107 would be required.

Information Required in Certification

Any certification of a consumer product based, in whole or in part, on component part testing performed by a testing party would be required to:

• ID testing documentation - identify both the “testing documentation” described above and any report provided by a CPSC recognized third-party lab on which the consumer products certification was based; and
• Certify no subsequent change - 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, etc.

Certifiers and Testers Would Maintain Records

All certifiers would be required to maintain records to support the traceability of component part suppliers for as long as the product is distributed in commerce plus 3 years. Test records would have to be maintained for 3 years. All testing parties would have to maintain the documentation described above for three years. Records would have to be available in the English language.

Specific Requirements for Lead in Paint/Coatings

In general, CPSC would permit certification of a product as being in compliance with the lead paint limit of 16 CFR Part 1303 or the lead limit for paint on toys of section 4.3.5.2 of the ASTM F963 toy standard if, for each paint used on the product, the party that certifies the product: (1) has obtained a test report (from testing the party commissioned itself) or holds a paint certificate (issued by another person such as a paint supplier) and (2)certain other conditions are met as follows:

Children’s products. Obtained a test report.As part of its basis for certifying a children’s product to the lead in paint limit, or other paint limit, a domestic manufacturer or importer would be able to rely on a test report showing passing test results for one or more paints used on the product, based on testing either of them has commissioned from a CPSC-recognized third-party lab. Each paint sample sent to a third party lab would have to be identical in all material respects to that used on the final product. Test reports would have to 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).

Holds a paint certificate. As part of its basis for certification of a children's product to the lead in paint limit or other paint limit, a domestic manufacturer or importer would also be able to rely on a certificate from another person certifying that paint complies with the lead limit. The paint certificate would have to be based on testing of a representative sample of one or more paints conducted by a CPSC-recognized third-party lab. The paint certificate should identify all test reports underlying the certification.

Non-children’s products. For consumer products that are not children's products but are subject to paint limits (such as certain furniture items), a certifier would be able to base its certification on its own testing of each paint used on the product, on testing by any CPSC-recognized third-party lab, on paint certification(s) from any person, or on a combination of these methods.

Other conditions. In addition, the following conditions would have to be met:

• Tests performed on dry, scraped paint. All testing would have to be performed on dry paint that is scraped off of a substrate for testing. However, the substrate used would not need to 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.
• Tested paint materially identical to paint on product. The tested paint would have to be identical in all material respects to that used in production of the consumer product and have the same composition as the paint used on the final product. However, a larger quantity of the paint could be tested than is used on the consumer product, in order to generate a sufficient sample size. The paint could 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.
• Testing documentation, certificates would have to ID each paint. The “testing documentation” required by a testing party (as described above) and either the general conformity certificate or certification for children’s products would have to identify each paint tested by color, location, specification number or other characteristic, the paint manufacturer, and the paint supplier (if different).
• Traceability. Any person who certifies a 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 paint manufacturer.
• No contamination subsequent to testing. The product manufacturer (or importer) would have to 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.

Specific Requirements for Lead Content of Children’s Products

In general, a certifier could rely on component part testing of each accessible component of a children's product for lead content, where such component part testing is performed by a CPSC-recognized third-party lab, provided that:

Inaccessible parts exemption. The determination of which, if any, parts are inaccessible pursuant to section 101(b)(2) of the CPSIA (and are therefore exempt from the lead content requirements) is based on an evaluation of the final product; and

Test report or certificate for each accessible component. For each accessible component part of the product, the certifier either has:

• Component part test report - a test report showing passing test results for one or more components used on the product, based on testing by a CPSC-recognized third-party lab, and identifying each part tested, by part number or other specification, and the manufacturer and the supplier of the part (if different); or
• Component part certificate - a certificate from another person certifying that a component part complies with the lead limit. Such a certificate should be based on testing of a representative sample of the parts by a CPSC-recognized third-party lab and identify all test reports underlying the certification.

Certificates for finished product. The certificate accompanying the finished children's product would have to list each component part that was tested, by part number or other specification, and, for each such component part, identify the corresponding test report or paint or component part certificate on which a certification for the finished children's product is based.

Specific Requirements for Phthalates in Children’s Toys/Articles

Generally, a certifier would be able to rely on component part testing of appropriate component parts of a children's toy or child care article for phthalate content as long as certain conditions were met.

Specifically, as part of its basis for certification of a children's product to the phthalate content limit, a certifier could rely on:

• Component test reports - a test report showing passing test results for one or more component parts used on the product, based on testing by a CPSC-recognized third-party lab, that identifies each part tested, by part number or other specification, and the manufacturer and the supplier of the component part (if different).
• Component certificates - a certificate from another person certifying that a component part complies with the limit. The component certificate should be based on testing of a representative sample of the parts by a CPSC-recognized third-party lab and identify all test reports underlying the certification. Any person who certifies a children's product as complying with the phthalate content limits should be able to trace each component of the product to the component’s manufacturer.

Certificates for finished product. The certificate accompanying the children's product would have to list each component part required to be tested by part number or other specification and, for each such part, identify the corresponding test report from a CPSC-recognized third-party lab on which the product's certification was based.

Composite Testing Requirements

The draft proposed rule also lays out certain requirements for composite testing (when 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) as follows:

Testing multiple paints/surface coatings. In testing paint and other surface coatings for compliance with lead limits, testing parties would be able to test a combination of different paint samples as long as they followed procedures ensuring that no failure to comply with the lead limits would go undetected (see below). Testing and certification of composite paints would have to comply with proposed 16 CFR 1109.11 (on component testing for paint and other surface coatings).

Testing multiple components for lead content, phthalates. CPSC-recognized third-party labs would be able to test a combination of components as long as they followed procedures ensuring that no failure to comply with the content limits would go undetected (see below). Testing and certification of composite components for lead content would have to comply with proposed 16 CFR 1109.12 (on component testing for lead content) and testing and certification of composite components for phthalate content would have to comply with proposed 16 CFR 1109.13 (on component testing for phthalates).

Procedures to ensure no failure goes undetected. When using composite part testing, only the total amount or percentage of the target chemical is determined, not how much is in each individual paint or component part. Therefore, to determine that each paint or component part was within the applicable limit, the entire amount of the target chemical in the composite would be attributed to each paint or component part. If this methodology were to yield 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 failed to meet the applicable limit.

¹Specifically, sections 14(a), 14(b), and 14(d) of the Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA).

²The draft proposed rule would define “component 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, etc. Within the same consumer product. which component parts will have to be tested may vary, depending on the test being conducted.

³Note that there is no mention of “materials” or “tests of materials” in the regulatory text of the draft, though it is discussed in the preamble and in the staff memo to the Commission. The staff memo states that some chemical tests may be performed on the raw materials used in the component part, rather than on the finished component part. For example, lead content testing could be performed on the plastic resins before they are used to create molded component parts.

⁴Certifier would mean the firm or firms responsible for certifying compliance of a consumer product, or a component part thereof, with all applicable rules, bans, standards, and regulations pursuant to 16 CFR Part 1110, and any firm that voluntarily undertakes such responsibility.

⁵Testing party would mean the firm or firms, including but not limited to domestic manufacturers, foreign manufacturers, importers, private labelers, third party conformity assessment bodies, or component part suppliers who test 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.

⁶Due care would 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.

⁷Traceable means the ability of a certifier to identify the source of a component part of a consumer product, including the name and address.

(See ITT’s Online Archives or 08/10/09, 10/22/09, 12/29/09 news, (Ref: 09081005), (Ref: 09102205), and (Ref: 09122925), for BP summaries of previous CPSC policy statements and guidance which mention component testing.)

CPSC ballot vote sheet, draft proposed rule, and staff memo (posted 04/02/10) available at http://www.cpsc.gov/library/foia/foia10/brief/comparts.pdf