[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Rules and Regulations]
[Pages 45242-45246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18483]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1215 and 1219


Revisions to Safety Standards for Durable Infant or Toddler 
Products: Infant Bath Seats and Full-Size Cribs

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In accordance with section 104(b) of the Consumer Product 
Safety Improvement Act of 2008 (CPSIA), also known as the Danny Keysar 
Child Product Safety Notification Act, the U.S. Consumer Product Safety 
Commission (Commission, CPSC, or we) has published consumer product 
safety standards for numerous durable infant or toddler products, 
including infant bath seats and full-size cribs. These standards 
incorporated by reference the ASTM voluntary standards associated with 
those products, with some modifications. In August 2011, Congress 
enacted Public Law 112-28, which sets forth a process for updating 
standards that the Commission has issued under the authority of section 
104(b) of the CPSIA. In accordance with that process, we are publishing 
this direct final rule, revising the CPSC's standards for infant bath 
seats and full-size cribs to incorporate by reference more recent 
versions of the applicable ASTM standards. Because the changes to the 
ASTM standards make them essentially identical to the standards that 
the CPSC has issued previously, no changes to the products are 
required. We also received notification from ASTM of an updated ASTM 
standard for toddler beds. However, the Commission is not accepting the 
revised ASTM standard for toddler beds, and therefore, the CPSC 
standard for toddler beds will remain as it currently is stated at 16 
CFR part 1217.

DATES: The rule is effective on November 12, 2012, unless we receive 
significant adverse comment by August 30, 2012. If we receive timely 
significant adverse comments, we will publish notification in the 
Federal Register, withdrawing this direct final rule before its 
effective date. The incorporation by reference of the publications 
listed in this rule is approved by the Director of the Federal Register 
as of November 12, 2012. The compliance dates for the full-size crib 
standard remain as stated in 16 CFR 1219.1(b).

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2012-
0039, by any of the following methods:

[[Page 45243]]

    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 (email), except through www.regulations.gov.
    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, 
Consumer Product Safety Commission, Room 820, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-7923.
    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 http://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
electronically. Such information should be submitted in writing.

FOR FURTHER INFORMATION CONTACT: For information related to the full-
size crib standard, contact Troy Whitfield, Office of Compliance and 
Field Operations, Consumer Product Safety Commission, Bethesda, MD 
20814-4408; telephone (301) 504-7548; [email protected]. For 
information related to the infant bath seat standard, contact Carolyn 
Manley, Office of Compliance and Field Operations, Consumer Product 
Safety Commission, Bethesda, MD 20814-4408; telephone (301) 504-7607; 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    The Danny Keysar Child Product Safety Notification Act. The 
Consumer Product Safety Improvement Act of 2008 (CPSIA, Pub. L. 110-
314) was enacted on August 14, 2008. Section 104(b) of the CPSIA, also 
known as the Danny Keysar Child Product Safety Notification Act, 
requires the Commission to promulgate consumer product safety standards 
for durable infant or toddler products. The law requires that these 
standards are to be ``substantially the same as'' applicable voluntary 
standards or more stringent than the voluntary standards if the 
Commission concludes that more stringent requirements would further 
reduce the risk of injury associated with the product. Under the 
statute, the term ``durable infant or toddler product'' explicitly 
includes infant bath seats, full-size cribs, and toddler beds. In 
accordance with section 104(b), the Commission has published safety 
standards for these products that incorporate by reference the relevant 
ASTM standards with certain modifications that make the voluntary 
standard more stringent.
    Public Law 112-28. On August 12, 2011, Congress enacted Public Law 
112-28, amending and revising several provisions of the CPSIA, 
including the Danny Keysar Child Product Safety Notification Act. The 
revised provision sets forth a process for updating CPSC's durable and 
infant or toddler standards when the voluntary standard upon which the 
CPSC standard was based is changed. This provision states that if an 
organization revises a standard that has been adopted, in whole or in 
part, as a consumer product safety standard under this subsection, it 
shall notify the Commission. The revised voluntary standard shall be 
considered to be a consumer product safety standard issued by the 
Commission under section 9 of the Consumer Product Safety Act (15 
U.S.C. 2058), effective 180 days after the date on which the 
organization notifies the Commission (or such later date specified by 
the Commission in the Federal Register) unless, within 90 days after 
receiving that notice, the Commission notifies the organization that it 
has determined that the proposed revision does not improve the safety 
of the consumer product covered by the standard and that the Commission 
is retaining the existing consumer product safety standard. See Public 
Law 112-28, section 3.
    Notification and Review of Revisions. On May 16, 2012, ASTM 
notified us of ASTM's approval and publication of revisions to ASTM 
F1169, Standard Consumer Safety Specification for Full-Size Baby Cribs; 
ASTM F1967, Standard Consumer Safety Specification for Infant Bath 
Seats; and ASTM F1821, Standard Consumer Safety Specification for 
Toddler Beds. In its notification, ASTM stated that revisions to these 
standards have occurred since the enactment of Public Law 112-28.
    The Commission has reviewed the revisions. ASTM's revision to its 
toddler bed standard, ASTM F1821-11b, does not include several of the 
modifications that the Commission made in its mandatory standard at 16 
CFR part 1217. Therefore, we have determined that ASTM F1821-11b does 
not improve the safety of toddler beds, and we are notifying ASTM that 
the Commission will retain the CPSC toddler bed standard at 16 CFR part 
1217 as it is.
    As explained below, ASTM's revisions to its standards for infant 
bath seats and full-size cribs make these revised ASTM standards 
essentially identical to the CPSC mandated standards for these 
products. In accordance with Public Law 112-28, unless the Commission 
determines that these revisions do not improve the safety of these 
consumer products, the revised ASTM standards for infant bath seats and 
full-size cribs will become the new CPSC mandatory standard for those 
products. We are publishing this direct final rule revising the 
incorporation by reference that is stated in each of these rules so 
that they will accurately reflect the revised version of the relevant 
ASTM standards.

B. Revisions to the Particular ASTM Standards

1. Infant Bath Seats

    On June 4, 2010, the Commission published a final rule issuing a 
safety standard for infant bath seats that incorporated by reference 
ASTM F1967-08a, Standard Consumer Specification for Infant Bath Seats, 
with certain modifications to make the standard more stringent. 75 FR 
31691.
    ASTM notified us that the current version of the ASTM standard for 
infant bath seats is ASTM F1967-11a, which was approved and published 
in September 2011. Two previous revisions, ASTM F1967-10 and ASTM 
F1967-11, made minor changes to the ASTM standard. ASTM F1967-11a 
includes all the modifications that CPSC made when it issued its 
mandatory standard. Thus, the revised ASTM standard, ASTM F1967-11a, is 
essentially identical to CPSC's mandatory standard for infant bath 
seats at 16 CFR part 1215. Because the revised ASTM standard is 
essentially identical to the current mandatory standard, the Commission 
will not make the determination that ``the proposed revision does not 
improve the safety'' of infant bath seats, under Public Law 112-28. 
Therefore, in accordance with Public Law 112-28, the revised ASTM 
standard for infant bath seats becomes the new CPSC standard 180 days 
from the date we received notification of the revision from ASTM. This 
rule revises the incorporation by reference at 16 CFR part 1215, to 
reference the revised ASTM standard.

2. Full-Size Cribs

    On December 28, 2010, the Commission published a final rule issuing 
a standard for full-size cribs that incorporated by reference ASTM 
F1969-10, with two modifications to

[[Page 45244]]

make the standard more stringent. 75 FR 81766.
    ASTM notified us that the current version of the ASTM standard for 
full-size cribs is ASTM F1169-11, which was approved and published in 
September 2011. A previous revision, ASTM F1169-10a, made one change 
that clarified testing of cribs with folding or moveable sides. This 
change was identical to one of the modifications that the Commission 
made in its mandatory standard. ASTM F1169-11 has two additional 
revisions. One is editorial and corrects a typographical error. The 
other change tracks a modification that the Commission made in its 
mandatory standard: it removes a provision that required retightening 
of hardware between tests. With these changes, ASTM F 1169-11 is now 
essentially identical to the full-size crib standard that the 
Commission mandated at 16 CFR part 1219. Because the revised ASTM 
standard is essentially identical to the current mandatory standard, 
the Commission will not make the determination that ``the proposed 
revision does not improve the safety'' of full-size cribs. Therefore, 
in accordance with Public Law 112-28, the revised ASTM standard for 
full-size cribs becomes the new CPSC standard 180 days from the date we 
received notification of the revision from ASTM. This rule revises the 
incorporation by reference at 16 CFR part 1219 to reference the revised 
ASTM standard.
    The 2010 crib rule fulfilled the direction in the Danny Keysar 
Child Product Safety Notification Act to issue standards for durable 
infant or toddler products, and it also implemented direction specific 
to cribs in section 104(c) of the CPSIA. In accordance with section 
104(c) of the CPSIA, the CPSC's crib standards (covering both full-size 
and non-full-size cribs) apply to persons and entities not required to 
comply with other CPSC standards, such as child care facilities, family 
child care homes, and places of public accommodation. 75 FR 81786-87. 
The crib rule became effective on June 28, 2011. It provided for two 
compliance dates. The first date, June 28, 2011, applies to all 
entities subject to the crib rule, except for child care facilities, 
family child care homes, and places of public accommodation. The second 
date, December 28, 2012, applies to child care facilities, family child 
care homes, and places of public accommodation. 75 FR at 81781. In June 
2011, the Commission gave additional time to companies that provide 
short-term crib rentals; accordingly, they have until December 28, 
2012, to meet the crib standards.
    Public Law 112-28 contains a provision limiting the application of 
revisions when ASTM revises its crib standards. That language states 
that such revisions shall apply only to a person that manufactures or 
imports cribs, unless the Commission determines that application to any 
person described in paragraph (2) [of section 104(c) of the CPSIA] is 
necessary to protect against an unreasonable risk to health or safety. 
If the Commission determines that application to a person described in 
paragraph (2) [of section 104(c) of the CPSIA] is necessary, it shall 
provide not less than 12 months for such person to come into 
compliance. See Public Law 112-28, section 3(b). According to this 
provision, changes to CPSC's crib standards would apply only to crib 
manufacturers and importers, not to the other entities mentioned in 
section 104(c)(2) who are not usually subject to CPSC's standards, such 
as child care facilities, family child care homes, and places of public 
accommodation.
    ASTM's revision to its full-size crib standard included the 
modifications that the Commission made when it issued the CPSC's 
mandatory standard for full-size cribs. Thus, there is no substantive 
difference between ASTM's revised standard, ASTM F1169-11, and the 
currently mandated standard that the Commission published in December 
2010. Therefore, the CPSC's action in this direct final rule, which 
revises the incorporation by reference in 16 CFR part 1219, does not 
require any change by the persons and entities subject to the CPSC's 
full-size crib standard. Those who manufacture, import, or sell full-
size cribs continue to be required to meet the same full-size crib 
requirements as they have been required to meet since June 28, 2011. 
Child care facilities, family child care homes, places of public 
accommodation, and businesses that rent cribs for short terms will be 
required to meet the same requirements for full-size cribs beginning on 
December 28, 2012. Because the revision contemplated by this direct 
final rule does not require any change by the persons subject to the 
mandatory standard published in 2010, the provision set forth in Public 
Law 112-28 limiting the application of revisions is without effect in 
this instance.

C. Direct Final Rule Process

    The Commission is issuing this rule as a direct final rule. 
Although the Administrative Procedure Act (APA) generally requires 
notice and comment rulemaking, section 553 of the APA provides an 
exception when the agency, for good cause, finds that notice and public 
procedure are ``impracticable, unnecessary, or contrary to the public 
interest.'' We believe that in the circumstances of these revisions to 
ASTM standards upon which CPSC's durable infant or toddler product 
standards are based, notice and comment is not necessary. Public Law 
112-128 provides for nearly automatic updating of durable infant or 
toddler product standards that the Commission issues under the Danny 
Keysar Child Product Safety Notification Act, if ASTM revises the 
underlying voluntary standard and the Commission does not determine 
that the revision ``does not improve the safety of the consumer product 
covered by the standard.'' Nevertheless, without Commission action to 
update the incorporation by reference in its mandated standards, the 
standard published in the Code of Federal Regulations will not reflect 
the revised ASTM standard. Thus, the Commission believes that it is 
appropriate to issue a rule revising the incorporation by reference in 
these circumstances. However, little would be gained by allowing for 
public comment because Public Law 112-28 requires that the CPSC's 
mandatory standard must change to the revised voluntary standard 
(unless the Commission has made the requisite finding concerning 
safety). The revisions to the infant bath seat standard and full-size 
crib standard merely reflect the modifications that the Commission made 
previously when it mandated these standards. It is possible, that in 
the future, revisions to other voluntary standards that were the basis 
for Commission standards under section 104(b) of the CPSIA could 
include substantive changes that do more than reflect the Commission's 
changes. Therefore, we believe that it is appropriate to set in place a 
procedure that allows the Commission to receive significant adverse 
comments but at the same time accommodates the nearly automatic update 
procedure set forth in the statute.
    In its 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). ACUS recommends using direct final 
rulemaking when an agency employs the ``unnecessary'' prong of the good 
cause exemption to notice and comment rulemaking.
    Thus, the Commission is publishing this rule as a direct final rule 
because we do not expect any significant adverse

[[Page 45245]]

comments. Unless we receive a significant adverse comment within 30 
days, the rule will become effective November 12, 2012. In accordance 
with ACUS's recommendation, we consider 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, it would withdraw this rule. The 
Commission may then incorporate the adverse comment into a subsequent 
direct final rule or publish a notice of proposed rulemaking providing 
an opportunity for public comment.

D. Effective Date

    Under the procedure set forth in Public Law 112-28, when a 
voluntary standard organization revises a standard upon which a 
consumer product safety standard issued under the Danny Keysar Child 
Product Safety Notification Act was based, the revision becomes the 
CPSC standard within 180 days of notification to the Commission, unless 
the Commission determines that the revision does not improve the safety 
of the product, or the Commission sets a later date in the Federal 
Register. In accordance with this provision, this rule establishes an 
effective date that is 180 days after we received notification from 
ASTM of revisions to these standards. As discussed in the preceding 
section, this is a direct final rule. Unless we receive a significant 
adverse comment within 30 days, the rule will become effective November 
12, 2012.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that 
agencies review proposed and final rules for their potential economic 
impact on small entities, including small businesses, and prepare 
regulatory flexibility analyses. 5 U.S.C. 603 and 604. The changes to 
the incorporation by reference in the infant bath seat and full-size 
crib standards will not result in any substantive changes to the 
standards. Therefore, this rule will not have any economic impact on 
small entities.

F. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
the Commission's 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.

G. Paperwork Reduction Act

    Both the infant bath seat standard and the full-size crib standard 
contain information collection requirements under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). No changes have been made 
to those sections of the standards. Thus, these revisions will not have 
any effect on the information collection requirements related to those 
standards.

 H. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a 
``consumer product safety standard under [the Consumer Product Safety 
Act (CPSA)]'' is in effect and applies to a product, no state or 
political subdivision of a state may either establish or continue in 
effect a requirement dealing with the same risk of injury unless the 
State requirement is identical to the federal standard. (Section 26(c) 
of the CPSA also provides that states or political subdivisions of 
states may apply to the Commission for an exemption from this 
preemption under certain circumstances.) The Danny Keysar Child Product 
Safety Notification Act (at section 104(b)(1)(B) of the CPSIA) refers 
to the rules to be issued under that section as ``consumer product 
safety standards,'' thus, implying that the preemptive effect of 
section 26(a) of the CPSA would apply. Therefore, a rule issued under 
section 104 of the CPSIA will invoke the preemptive effect of section 
26(a) of the CPSA when it becomes effective.

I. Certification

    Section 14(a) of the CPSA imposes the requirement that products 
subject to a consumer product safety rule under the CPSA, or to a 
similar rule, ban, standard, or regulation under any other act enforced 
by the Commission, be certified as complying with all applicable CPSC 
requirements. 15 U.S.C. 2063(a). Such certification must be based on a 
test of each product, or on a reasonable testing program or, for 
children's products, on tests on a sufficient number of samples by a 
third party conformity assessment body accredited by the Commission to 
test according to the applicable requirements. As noted in the 
preceding discussion, standards issued under section 104(b)(1)(B) of 
the CPSIA are ``consumer product safety standards.'' Thus, they are 
subject to the testing and certification requirements of section 14 of 
the CPSA.
    Because infant bath seats and full-size cribs are children's 
products, they must be tested by a third party conformity assessment 
body whose accreditation has been accepted by the Commission. (They 
also must comply with all other applicable CPSC requirements, such as 
the lead content requirements of section 101 of the CPSIA, the 
phthalate content requirements in section 108 of the CPSIA, the 
tracking label requirement in section 14(a)(5) of the CPSA, and the 
consumer registration form requirements in the Danny Keysar Child 
Product Safety Notification Act.)

J. Notice of Requirements

    In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the 
Commission has previously published notices of requirements for 
accreditation of third party conformity assessment bodies for testing 
infant bath seats (75 FR 31688 (June 4, 2010)) and full-size cribs (75 
FR 81789 (December 28, 2010)). The notices of requirements provided the 
criteria and process for our acceptance of accreditation of third party 
conformity assessment bodies for testing infant bath seats to 16 CFR 
part 1215 (which incorporated ASTM F1967-08a with modifications) and 
for testing full-size cribs to 16 CFR part 1219 (which incorporated 
ASTM F1969-10 with modifications). This rule revises the references to 
the standards that are incorporated by reference in the CPSC's infant 
bath seat and full-size crib standards. As discussed previously, the 
revised ASTM standards for these products make them substantively 
identical to the infant bath seat and full-size crib standards that the 
Commission mandated. Thus, revising the references will not necessitate 
any change in the way that third party conformity assessment bodies are 
testing these products for compliance to CPSC standards. Therefore, the 
Commission considers the existing accreditations that the Commission 
has accepted for testing to these standards also to cover testing to 
the revised standards.

List of Subjects in 16 CFR Parts 1215 and 1219

    Consumer protection, Incorporation by reference, Imports, Infants 
and children, Law enforcement, Safety, Toys.

    For the reasons stated above, the Commission amends 16 CFR chapter 
II as follows:

[[Page 45246]]

PART 1215--SAFETY STANDARD FOR INFANT BATH SEATS

0
1. The authority citation for part 1215 is revised to read as follows:

    Authority: Sections 3 and 104 of Pub. L. 110-314, 122 Stat. 3016 
(August 14, 2008); section 3 of Pub. L. 112-28, 125 Stat. 273 
(August 12, 2011).

0
2. Revise Sec.  1215.2 to read as follows:


Sec.  1215.2  Requirements for infant bath seats.

    Each infant bath seat shall comply with all applicable provisions 
of ASTM F1967-11a, Standard Consumer Safety Specification for Infant 
Bath Seats, approved September 1, 2011. The Director of the Federal 
Register approves the incorporation by reference listed in this section 
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a 
copy of these ASTM standards from ASTM International, 100 Barr Harbor 
Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA, phone: 610-
832-9585; http://www.astm.org/. You may inspect copies at the Office of 
the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 
East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal regulations/ibr_locations.html.

PART 1219--SAFETY STANDARD FOR FULL-SIZE BABY CRIBS

0
3. The authority citation for part 1219 is revised to read as follows:

    Authority: The Consumer Product Safety Improvement Act of 2008, 
Pub. L. 110-314, Sec. 104, 122 Stat. 3016 (August 14, 2008); section 
3 of Pub. L. 112-28, 125 Stat. 273 (August 12, 2011).

0
4. Revise Sec.  1219.2 to read as follows:


Sec.  1219.2  Requirements for full-size baby cribs.

    Each full-size baby crib shall comply with all applicable 
provisions of ASTM F1169-11, Standard Consumer Safety Specification for 
Full-Size Baby Cribs, approved August 15, 2011. The Director of the 
Federal Register approves this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from ASTM 
International, 100 Barr Harbor Drive, P.O. Box 0700, West Conshohocken, 
PA 19428; telephone 610-832-9585; www.astm.org. You may inspect a copy 
at the Office of the Secretary, U.S. Consumer Product Safety 
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, 
telephone 301-504-7923, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Dated: July 25, 2012.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2012-18483 Filed 7-30-12; 8:45 am]
BILLING CODE 6355-01-P