CPSC Final Rule Allows Other Certs/Tests as Basis for Importer CPSIA Certifications

Reliance on one of more of the above tests or certifications may be used to demonstrate, in whole or in part, compliance of a consumer product with all applicable rules, bans, standards, and regulations to support a children’s product certificate; as part of the standards and protocols for continued testing of children’s products; 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.

(This notice is one of four related notices issued concurrently on Consumer Product Safety Improvement Act (CPSIA) testing, certification and labeling of consumer products. The others are (i) a final rule on certification and continued, periodic testing of children’s products that includes an all-product labeling option; (ii) a notice seeking comments on ways to reduce the CPSIA third-party testing costs; and (iii) a proposed rule that would provide for the testing of representative (instead of random) samples for children’s product continued compliance testing. See ITT’s Online Archives 11110722 for announcement that the four notices were issued.)

Importer’s Certification Can Be Based on Tests/Certs of Components

The final rule allows a “finished product certifier” (i.e, an importer or domestic manufacturer) to certify compliance of finished consumer products with all applicable rules, bans, standards, and regulations as required by the CPSIA or to ensure continued compliance of children’s products, based, in whole or in part, on passing component part test reports or certifications.

Conditions. However, numerous conditions and requirements have to be met to use this option. For example (partial list):

• Sufficient to determine compliance - testing the component part must be a sufficient means to assess compliance with the applicable rule, standard, or ban. In addition, component part testing cannot be used for product safety rules that explicitly require testing of the finished product to determine compliance with a given rule, standard, or ban.
• Materially identical - the component part tested must be identical in all material respects to the component part used in the finished consumer product.
• Test result integrity. - a certifier or testing party must exercise due care to ensure that while a component part is in their custody, proper management and controls are maintained for factors that could affect the finished product’s compliance with applicable rules, standards, or bans (e.g, the manufacturing process does not add or result in a prohibited level of a chemical in the assembly of the finished product; etc.).
• Proper test methods & protocols - each certifier and testing party must exercise due care to ensure that when it procures a test, all testing is done using required test methods (if any), required sampling protocols (if any), and testing and certification follows applicable CPSC requirements.
• Traceability. A certifier must not rely on component part testing procured by a testing party or another certifier unless such component parts and/or subassemblies are traceable (i.e, the certifier can identify all testing parties of a component part and/or subassembly, including their name and address).
• Documentation. The finished product certifier must have received documentation (can be electronic) from the component testing party or certifier before issuing a finished product certificate. This documentation must identify the component part tested, the lot or batch number (or other information sufficient to identify the component); the rules, bans, standards, and regulations for which each component part was tested; test method and sampling methods used; date of testing; test report; component part certificate (if applicable); etc.
• Recordkeeping. The documentation above must be maintained by each certifier or testing party for five years and made available to CPSC upon request, either in hard copy or electronically. The records do not need to be in English as long as they can be accurately translated within 48 hours of a request.

Importer’s Certification Can Be Based on Others’ Tests/Certs of Finished Product

In a significant change from the May 2010 proposed rule, the final rule also allows a domestic manufacturer or importer to rely on finished product testing or certification from another party (not just component part testing or certification) in order to issue their finished product certificate certifying compliance with applicable rules, bans, standards, and regulations as required by the CPSIA or to ensure continued compliance of a children's consumer product.

Conditions. However, numerous conditions and requirements must be met to use this option. For example (partial list):

• Test result integrity. A certifier or testing party must exercise due care to ensure that while a finished product is in its custody, proper management and controls are maintained for factors that could affect the finished product’s compliance after the testing occurred and before the product is distributed in commerce.
• Proper test methods and protocols - each certifier and testing party must exercise due care to ensure that when it procures a test, all testing is done using required test methods (if any), required sampling protocols (if any), and testing and certification follows applicable CPSC requirements.
• Traceability. A certifier must not rely on finished product testing procured by a testing party or another certifier unless such finished products are traceable (i.e, the certifier can identify all testing parties including their name and address, etc.).
• Documentation. The finished product certifier must have received documentation (can be electronic) from the finished product tester or certifier before issuing a finished product certificate. This documentation must identify the finished product tested, the lot or batch number (or other information sufficient to identify the product); the rules, bans, standards, and regulations for which the finished product was tested; test method and sampling methods used; test report; date of testing; finished product certificate (if applicable); etc.
• Recordkeeping. The documentation above must be maintained by each certifier or testing party for five years and made available to CPSC upon request, either in hard copy or electronically. The records do not need to be in English as long as they can be accurately translated within 48 hours of a request.

Others Who Elect to Certify Parts/Products Must Assume Mnfr. Responsibilities (like Periodic Testing)

In addition, any party who voluntarily elects to certify compliance of a component part or a finished product with applicable CPSC rules, standards, bans, or regulations (but is not one of the parties required by statute to do so), is required to assume the responsibilities of a manufacturer (or importer) with respect to that component or finished product for the following Consumer Product Safety Act (CPSA) requirements:

• Section 14(a) on general conformity certification for non-children’s products and third-party testing and certification for children’s products;
• Section 14(i) on additional regulations for third-party testing children’s products;
• New 16 CFR Part 1107 on testing and labeling pertaining to product certification (on periodic testing of children’s products, etc. See future issue of ITT for summary of the final rule establishing new Part 1107.)

Importer Must Exercise Due Care by Reviewing Tests/Certs, Addressing Concerns

Before issuing a finished product certification, the importer or domestic manufacturer also has to exercise due care in order to rely, in whole or in part on component part testing; component part certification; another party’s finished product testing; and/or another party’s finished product certification.

Exercising due care in this context means taking the steps that a prudent and competent person in the same line of business would take to conduct a reasonable review of another party’s certification or test reports, and to address any concern over their validity, before relying on such documents to issue a finished product certificate. The final rule stresses that “Due care does not permit willful ignorance.”

Takes Effect Before Jan 1 to Coincide with Testing/Certific for Toys, Lead, Phthalates

The final rule takes effect on December 8, 2011 as the stay of the CPSIA third-party testing and certification requirements for lead content, phthalates, and the mandatory toy standard expires on December 31, 2011. Accordingly, CPSC would like stakeholders to be able to take advantage of the efficiencies of component part testing or certification, as well as finished product testing or certification, when those third-party testing and certification requirements kick in for affected children’s products manufactured on or after January 1, 2012. (See ITT’s Online Archives 11110214 for summary of testing/certification requirements for toys, lead content, and phthalates for children’s products manufactured on/after Jan 1.)

(See final rule for complete details, including on the conditions and requirements for component part testing for paint, lead content, and phthalates; information on composite testing; etc.)

(See ITT’s Online Archives 11092718 for summary of the draft version of the final rule.

See ITT’s Online Archives 10052134 for summary of the proposed rule.

See ITT’s Online Archives 11102829 and 11102119 for summaries of Commissioner statements on the final rule.)

Joint statement by the three majority Commissioners available here.

Statements by dissenting Commissioners Nord and Northup available here and here.

CPSC contact - Randy Butturini (301) 504-7562

(FR Pub 11/08/11, D/N CPSC--2010--0037)