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Statement of Need: Section 102(d) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Consumer Product Safety Commission (CPSC) to engage in rulemaking to establish requirements pertaining to the testing, certification, and labeling of certain consumer products. CPSC also has elected to issue regulations regarding a "reasonable testing program" under section 102(a) of the CPSIA to establish the elements of such a program.

Summary of the Legal Basis: Section 102(b) of the CPSIA requires the Commission to initiate by regulation: (1) A program by which a manufacturer or private labeler may label a consumer product as complying with the certification requirements of section 102(a) of the CPSIA; (2) protocols and standards (i) for ensuring that a children’s product tested for compliance with an applicable children’s product safety rule is subject to testing periodically and when there has been a material change in the product’s design or manufacturing process, including the sourcing of component parts; (ii) for the testing of random samples to ensure continued compliance; (iii) for verifying that a children’s product tested by a conformity assessment body complies with applicable children’s product safety rules; and (iv) for safeguarding against the exercise of undue influence on a third-party conformity assessment body by a manufacturer or private labeler. Section 102(a) of the CPSIA requires manufacturers of certain products to certify, based on a test of each product or upon a reasonable testing program, that such product comports with all rules, bans, standards, or regulations applicable to the product under laws enforced by CPSC. Section 3 of the CPSIA authorizes the Commission to issue regulations, as necessary, to implement the CPSIA and the amendments made by the CPSIA.

Alternatives: The preamble to the proposed rule invited comment on alternatives such as: (1) Establishing different compliance or reporting requirements that take into account the resources available to small businesses; (2) clarifying, consolidating, or simplifying compliance and reporting requirements for small entities; (3) using performance rather than design standards; and (4) exempting small entities to the extent statutorily permissible under section 14 of the CPSA. However, the proposal would give firms considerable discretion to determine the precise nature of their testing programs (including the number of samples to be tested and testing frequency). As for exemptions, the statute does not appear to give the Commission the authority to exempt firms from the testing or certification requirements, so it may not be possible to exempt firms within section 14 of the CPSA.

Anticipated Costs and Benefits: The congressional mandate to issue this regulation does not require the Consumer Product Safety Commission to do a cost/benefit analysis for this regulation. Therefore, a cost/benefit analysis is not available for this regulatory action.

Risks: Congress determined a need for testing, and in the case of children’s products, third-party testing to ensure compliance with the Agency’s standards. The Agency’s standards address unreasonable risks of injury associated with consumer products; testing and certification to these standards provide an extra assurance that the consumer products are free from those unreasonable risks of injury; and through such testing programs, encourage manufacturers to address possible risks in the early stages of product manufacture. Given the breadth of the risks of injury the Agency’s standards address and the number of products that are subject to testing or third-party testing, it is not possible to provide an analysis of the magnitude of the risk this regulatory action addresses.