[Federal Register Volume 77, Number 216 (Wednesday, November 7, 2012)]
[Rules and Regulations]
[Pages 66703-66713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27027]



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  Federal Register / Vol. 77, No. 216 / Wednesday, November 7, 2012 / 
Rules and Regulations  

[[Page 66703]]



CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1223

[CPSC Docket No. CPSC-2012-0011]
RIN 3041-AC90


Safety Standard for Infant Swings

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Section 104(b) of the Consumer Product Safety Improvement Act 
of 2008 (CPSIA), part of the Danny Keysar Child Product Safety 
Notification Act, requires the United States Consumer Product Safety 
Commission (Commission, CPSC, or we) to promulgate consumer product 
safety standards for durable infant or toddler products. These 
standards are to be ``substantially the same as'' applicable voluntary 
standards or more stringent than the voluntary standard if the 
Commission concludes that more stringent requirements would further 
reduce the risk of injury associated with the product. In this final 
rule, the Commission is issuing a safety standard for infant swings, as 
required under section 104(b) of the CPSIA.

DATES: The rule is effective May 7, 2013 and applies to products 
manufactured on or after that date. The incorporation by reference of 
the publication listed in this rule is approved by the Director of the 
Federal Register as of May 7, 2013.

FOR FURTHER INFORMATION CONTACT: Keysha L. Watson, Office of Compliance 
and Field Operations, U.S. Consumer Product Safety Commission, 4330 
East West Highway, Bethesda, MD 20814; telephone (301) 504-6820; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background: Section 104(b) of the CPSIA

    The CPSIA was enacted on August 14, 2008. Section 104(b) of the 
CPSIA, part of the Danny Keysar Child Product Safety Notification Act, 
requires the Commission to promulgate consumer product safety standards 
for durable infant and toddler products. These standards are to be 
``substantially the same as'' applicable voluntary standards or more 
stringent than the voluntary standard if the Commission concludes that 
more stringent requirements would further reduce the risk of injury 
associated with the product. The term ``durable infant or toddler 
product'' is defined in section 104(f)(1) of the CPSIA as a durable 
product intended for use, or that may be reasonably expected to be 
used, by children under the age of 5 years. Infant swings are one of 
the products specifically identified in section 104(f)(2)(K) of the 
CPSIA as a durable infant or toddler product.
    In the Federal Register of February 29, 2012, the Commission 
published a notice of proposed rulemaking (NPR) that proposed 
incorporating by reference ASTM F2088-11b, Standard Consumer Safety 
Specification for Infant Swings, with several modifications to 
strengthen the standard. 77 FR 7011. In this document, the Commission 
is issuing a safety standard for infant swings, which incorporates by 
reference, the new voluntary standard developed by ASTM International 
(formerly the American Society for Testing Materials), ASTM F2088-12a, 
Standard Consumer Safety Specification for Infant Swings, with the 
addition of a labeling modification to strengthen the standard and a 
revised test method to address an omission in the voluntary standard in 
the test method for toy mobiles that are attached to the swing.
    We summarize the final rule (including differences between the 
proposal and the final rule) in section F of this preamble. The 
information discussed in this preamble comes from CPSC staff's briefing 
package for the infant swing rule, which is available on the CPSC's Web 
site at http://www.cpsc.gov/library/foia/foia12/brief/infantswings.pdf.

B. The Product

1. Definition

    ASTM F2088-12a, and its predecessors, ASTM F2088-11b and ASTM 
F2088-12, define an ``infant swing'' as ``a stationary unit with a 
frame and powered mechanism that enables an infant to swing in a seated 
position. An infant swing is intended for use with infants from birth 
until a child is able to sit up unassisted.'' ASTM F2088-12a, and its 
predecessors, ASTM F2088-11b and ASTM F2088-12, also address ``cradle 
swings,'' which are defined as ``an infant swing which is intended for 
use by a child lying flat'' and ``travel swings,'' which are defined as 
``a low profile, compact swing having a distance of 6 in. or less 
between the underside of the seat bottom and the support surface 
(floor) at any point in the seat's range of motion.'' The standard was 
developed in response to incident data supplied by CPSC staff to 
address hazards such as: Swings tipping over or collapsing, structural 
failures, entanglement in the restraints, and entrapment in leg holes.

2. The Market

    Based on a 2005 survey conducted by American Baby Group, titled, 
``2006 Baby Products Tracking Study,'' and Centers for Disease Control 
and Prevention birth data, we estimate that approximately 2.7 million 
infant swings are sold in the United States each year. We estimate that 
there are at least 10 manufacturers or importers supplying infant 
swings to the U.S. market. Eight firms are domestic manufacturers, and 
two are domestic importers with a foreign parent company.
    The Juvenile Products Manufacturers Association (JPMA) is the major 
U.S. trade association that represents juvenile product manufacturers 
and importers. The JPMA provides a certification program that allows 
manufacturers and importers to use the JPMA seal if they voluntarily 
submit their products for testing to an independent laboratory to 
determine if their products meet the most current ASTM voluntary 
standard. Currently, there are five manufacturers that sell JPMA-
certified infant swings.

[[Page 66704]]

C. Incident Data

1. Introduction

    The preamble to the NPR (77 FR 7012 through 7013) summarized the 
data for incidents with infant swings from January 1, 2002, through May 
18, 2011. In this section, we discuss CPSC staff's analysis of 
incidents collected between May 19, 2011 and May 23, 2012. During that 
period, 351 new infant swing-related incidents were reported to the 
CPSC. Almost all were reported to have occurred between 2009 and 2012. 
The majority (333 out of 351 or 95 percent) of the reports were 
submitted to the CPSC by retailers and manufacturers through the CPSC's 
``Retailer Reporting System.'' The remaining 18 incident reports were 
submitted to the CPSC from various sources, such as the CPSC Hotline, 
Internet reports, newspaper clippings, medical examiners, and other 
state/local authorities. Two of the 351 incidents were fatal, and 349 
were nonfatal; 24 of the nonfatal incidents resulted in injuries.

2. Fatalities

    Of the two decedents in the fatal incidents, one was a 2-month-old 
who died when a blanket placed in the swing obstructed his airway, and 
the other was a 3-month-old who died when she rolled over to a prone 
position onto the soft surface of the infant swing. The report did not 
state whether a restraint was in use at the time of the latter 
incident.

3. Nonfatal Incidents

    There were 24 injuries reported among the 349 nonfatal incidents. 
Among the injured, 79 percent were 6 months old or younger; the 
remaining injured infants were 7 and 8 months of age. Some reports 
specifically mentioned the type of injury, while others only mentioned 
an injury with no specifics. Among the injuries specified, bumps, 
bruises, and lacerations were common. None required hospitalization. 
Most of the injuries were related to various product-related issues, 
such as swing seat, structural integrity, or restraint, similar to 
those reported and addressed in the NPR and the latest version of the 
voluntary standard.

4. National Injury Estimates \1\

    There were an estimated total of 1,900 injuries (sample size = 73, 
coefficient of variation = 0.18) related to infant swings that were 
treated in U.S. hospital emergency departments during 2011. Although 
this reflects a decrease from the 2010 estimate of 2,200 injuries, the 
change was not statistically significant. Comparing with national 
injury estimates from the prior years, no statistically significant 
trend was observed over the 2002-2011 period.
---------------------------------------------------------------------------

    \1\ The source of the injury estimates is the National 
Electronic Injury Surveillance System (NEISS), a statistically valid 
injury surveillance system. NEISS injury data is gathered from 
emergency departments of hospitals that are selected as a 
probability sample of all the U.S. hospitals with emergency 
departments. The surveillance data gathered from the sample 
hospitals enable CPSC staff to make timely national estimates of the 
number of injuries associated with specific consumer products.
---------------------------------------------------------------------------

    No deaths were reported through the NEISS. About 78 percent of the 
injured were 6 months of age or younger, and about 91 percent were 12 
months or younger. For the emergency department-treated injuries 
related to infant swings, the following characteristics occurred most 
frequently:
     Hazard--falls (78%); a majority of the reports did not 
specify the manner or cause of fall;
     Injured body part--head (62%);
     Injury type--internal organ injury (59%); and
     Disposition--treated and released (97%).

5. Hazard Pattern Characterization Based on Incident Data

    The hazard patterns identified among the 351 new incident reports 
were similar to the hazard patterns that were identified among the 
incidents considered for the NPR. Most of the issues were determined to 
be product related. They are grouped as follows (in descending order of 
frequency of incidents):
     Swing seat issues, either seat design or seat failure, 
were the most commonly reported hazard, accounting for 25 percent of 
the 351 incident reports and four (17 percent) injuries. Seat design 
issues caused the seats to lean to one side, or tilt forward or 
backward. Seat failures resulted in seats folding up on the infant, 
seat pads not staying in place, or seats falling off with no other 
apparent component failure. With seats that leaned to one side, the 
infant bumped into the swing frame; with the seat failures, the infant 
almost always fell out of the swing.
     Broken, detached, or loose components of the swing 
housing, such as the arm, leg, motor housing, or hardware, were the 
next most commonly reported problems. They accounted for 24 percent of 
the 351 incident reports and five (21 percent) injuries.
     Restraint issues, either the inadequate design of the 
restraint or the failure of the restraint, were reported in 23 percent 
of the 351 reported incidents. These issues resulted in the highest 
proportion of injuries (10 injuries or 42 percent). Common restraint-
design scenarios included: (1) Infant falling (or nearly falling) out 
of the seat when leaning forward or sideways; and (2) infant putting 
more weight toward the back of the seat, causing the seat to tilt back 
and the restraint failing to prevent the infant from sliding out on 
his/her head. Common restraint-failure scenarios included buckles or 
straps breaking or detaching from the product altogether.
     Electrical or battery-related issues were reported in 15 
percent of the 351 reports. Overheating of the motor housing was the 
most common scenario. However, there were no injuries reported related 
to this issue.
     Instability of the swing was reported in 5 percent of the 
incident reports. In most of these cases, the swing was described as 
lifting up one leg when swinging, or tipping over completely. The 
latter scenario resulted in one injury.
     Other product-related issues, such as inadequate clearance 
between seat and swing frame, broken or detached toys and mobiles, and 
problems with swing speed, seat fabric, and assembly instructions were 
reported in 6 percent of the 351 incidents. One injury was reported.
     Miscellaneous other issues accounted for the remaining 2 
percent of the 351 incident reports. This category includes the two 
fatalities, which were determined to be non-product-related. Also in 
this category were five reports with insufficient information to 
characterize any specific hazard, and one report of product misuse, 
such as the intentional removal of the restraint; these nonfatal 
incidents resulted in three injuries.

D. Response to Comments on the Proposed Rule

    Below, we describe and respond to the comments on the proposed 
rule. A summary of each of the commenter's topics is presented, and 
each topic is followed by our response. Each ``Comment'' is numbered to 
help distinguish between different topics. The number assigned to each 
comment is for organizational purposes only, and it does not signify 
the comment's value, or importance, or the order in which it was 
received. We received 24 comments. All of the comments can be viewed on 
www.regulations.gov, by searching under the docket number of the 
rulemaking, CPSC-2012-0011.

[[Page 66705]]

1. Slump-Over Warning Label

    (Comment 1) Sixteen comments recommend that the text of the warning 
specify or clarify the hazard or the consequences of not avoiding the 
hazard. Comments about the need to specify the consequences of not 
avoiding the hazard generally recommend that the warning state 
explicitly that there is a risk of serious injury, death, or both. 
Comments about the need to clarify the hazard suggest explicit 
references to ``asphyxiation'' or ``choking,'' or suggest references to 
the slump-over position or to a hunched position with the ``chin 
touching chest.'' Several of the comments recommend that the warning 
specify the ages of the children at risk.
    (Response 1) We believe that the current warning language 
requirements pertaining to the slump-over hazard are insufficient and 
agree that the warning should be revised to clarify the hazard and the 
consequences of exposure to the hazard if the consumer cannot avoid it. 
The current warning statement does not describe the slump-over hazard, 
and the formatting of the warning implies that using the swing in the 
most reclined seat position is an additional measure intended to 
address the potential for the infant user to fall or strangle in the 
straps. In addition, one could argue that the warning statement does 
not describe the probable consequences of not avoiding the slump-over 
hazard because the warning's reference to ``serious injury or death'' 
is specific to falls and strangulations.
    The final rule separates the warning statement pertaining to the 
slump-over hazard from the warnings about falls and strangulations and 
strengthens this warning statement as follows:

    Keep swing seat fully reclined until child is at least 4 months 
old AND can hold up head without help. Young infants have limited 
head and neck control. If seat is too upright, infant's head can 
drop forward, compress the airway, and result in DEATH.

2. Warning Concerning Use of Cradle Swing

    (Comment 2) Five comments recommend that the warning should state 
that infants who cannot hold up their heads unassisted should use only 
cradle swings. One comment states that such a change would not 
substantially reduce the risk.
    (Response 2) The proposed revisions to the slump-over warning 
statement already improve the relevant warning statement in ASTM F2088-
12a, by describing the hazard more explicitly, the consequences of 
exposure to the hazard, and the infants who are most at risk. The 
language, ``Keep swing seat fully reclined until child is at least 4 
months old AND can hold up head without help'' (emphasis added) is the 
part of the revised slump-over warning intended to communicate the 
appropriate hazard-avoidance behavior. Several comments recommend that 
the highlighted portion of this statement be replaced with one that 
instructs consumers to use only cradle swings.\2\ The effectiveness of 
this change, therefore, depends upon whether the use of a cradle swing 
with these children would address more incidents than fully reclining 
the seat back on non-cradle swings.
---------------------------------------------------------------------------

    \2\ Section 3.1.2 of ASTM F2088-12a defines a ``cradle swing'' 
as ``an infant swing which is intended for use by a child lying 
flat.''
---------------------------------------------------------------------------

    As noted in the staff's briefing package for the NPR, all known 
swing fatalities occurred when the child was in the infant seat mode 
rather than the cradle mode. However, CPSC staff concluded that, for 
infant swings having an adjustable seat recline with a seat back angle 
greater than 50 degrees, fully reclining the seat back until the infant 
can hold up his or her head unassisted also would address the slump-
over hazard. Thus, we doubt that a warning that tells consumers to use 
only cradle swings will be more effective than one that tells consumers 
to recline the seat fully.

3. Warning on All Swings

    (Comment 3) Five comments request that all infant swings, not just 
reclining models with a seat back angle greater than 50 degrees, bear a 
warning related to the slump-over hazard. One of these comments 
recommends that all reclining swings, regardless of the seat back 
angle, warn about placing the seat in the most reclined position for 
infants who are younger than 3 months or who cannot hold up their heads 
without assistance. The remaining comments recommend that certain 
swings bear a warning prohibiting their use with infants who are 
younger than 3 months or who cannot hold up their heads without 
assistance. Of these, one recommends that such a warning be present on 
all infant swings that do not lie ``flat''; one recommends displaying 
the warning for all reclining swings, regardless of the seat back 
angle; two recommend that such a warning be present on all non-
reclining models; and one of these two comments also recommends 
displaying the warning for all reclining models with seat back angles 
less than 50 degrees.
    (Response 3) As far as the Commission knows, all infant swings 
currently on the market are either cradle swings or reclining swings 
with a maximum seat back angle greater than 50 degrees from horizontal 
when measured in accordance with the ASTM standard. We are unaware of 
any reclining swings with a maximum seat back angle less than 50 
degrees from horizontal. Therefore, all reclining infant swings would 
bear the warning label recommending that the seat be placed in the most 
reclined position for infants who are younger than 4 months or who 
cannot hold up their heads without assistance. As noted earlier, CPSC 
staff has concluded that fully reclining the seat back on reclining 
swings with a seat back angle greater than 50 degrees addresses the 
slump-over hazard. Thus, although the final rule would not prevent 
manufacturers from including the warning on reclining swings with a 
maximum seat back angle less than 50 degrees from horizontal, we do not 
believe that mandating such a warning on these products is necessary. 
Cradle swings would not require the warning label because the seat back 
angle on these swings is not inclined enough to create the slump-over 
hazard.

4. Use of Pictures or Visual Aids

    (Comment 4) Two comments recommend the use of pictures or visual 
aids to clarify the warning message. One of these comments suggests 
that this recommendation was intended for parents whose primary 
language is not English, or who are not familiar with measurements 
described in degrees.
    (Response 4) We acknowledge that well-designed graphics might be 
useful to illustrate the appropriate orientation of the seat back when 
the infant swing is used with children 3 months old and younger. 
However, we are not convinced that a graphic is necessary to convey 
this message to most consumers, and CPSC staff's prior analyses of the 
incident data associated with infant swings has not revealed a pattern 
of incidents involving people who were not literate in English. 
Moreover, the design of effective graphics can be difficult. Some 
seemingly obvious graphics are poorly understood and can give rise to 
interpretations that are opposite the intended meaning (so-called 
``critical confusions''). Thus, although the Commission may take action 
in the future if it believes graphic symbols are needed to reduce 
further the risk of injury associated with these products, the rule 
permits, but does not mandate, such supporting graphics.
    Lastly, although the slump-over warning statement would be required 
on infant swings that have an adjustable seat recline with a seat back 
angle greater than 50 degrees, the warning

[[Page 66706]]

statement itself is not required to reference this 50-degree 
measurement. The final rule does not include any revisions to the 
slump-over warning statement that would introduce reference to 
``degrees.''

5. Age Recommendations To Recline Settings

    (Comment 5) One comment recommends that the infant swing recline 
settings include age recommendations. However, this commenter also 
acknowledges that developmentally delayed infants may be endangered 
when the parent or caregiver follows the age-recommended settings.
    (Response 5) The new warning label wording in the final rule 
explicitly directs consumers to use the swing in the most reclined 
position until the infant is 4 months of age and can hold their head up 
without help. Once the infant is able to do this, the swing can be used 
in any of the other settings. Therefore, adding age recommendations to 
the swing settings is not necessary.

6. Additional Languages on Warning Labels

    (Comment 6) One comment recommends that the slump-over warning be 
required to be printed in languages in addition to English. The comment 
suggests that the warning should be in English and Spanish at least.
    (Response 6) The Commission does not dismiss the potential 
usefulness of providing the slump-over warning and other warning 
information in Spanish and other non-English languages, and it 
recognizes that adding Spanish versions of the warnings most likely 
would improve warning readability among the U.S. population more than 
adding any other language. Nevertheless, as noted in the response to 
comment 4 above, CPSC staff's prior analyses of the incident data 
associated with infant swings has not revealed a pattern of incidents 
involving people who were not literate in English. Thus, although the 
final rule does not prohibit manufacturers from providing the required 
warnings in languages other than English, the available information 
provides no basis for mandating that manufacturers do so.

7. Additional Warning on the Label

    (Comment 7) Two comments state that the product should include 
warnings about the importance of using the restraint system. One of 
these comments recommends the use of the phrase: ``DO NOT PLACE INFANT 
IN SWING WITHOUT SECURING RESTRAINTS.'' The other comment states that 
the warnings should ``address the risks associated with a caregiver's 
failure to properly employ the use of restraints while the swing is in 
use.'' One additional comment uses ``failing to use the restraint 
system'' as an example of product misuse, which should be warned 
against.
    (Response 7) Section 8.3.1 of ASTM F2088-12a already warns about 
the potential for ``serious injury or death from infants falling or 
being strangled in straps'' and instructs consumers: ``[a]lways secure 
infant in the restraint system provided.'' In addition, the latter 
statement is nearly identical to the specific phrase recommended in the 
first comment cited in the comment summary. Thus, we believe that the 
current warning statements about this hazard are sufficient.
    We do not believe that the product should include warnings about 
general product misuse. Consumers are less likely to read numerous 
warnings, especially about hazards that are highly unlikely. Therefore, 
warning about general product misuse or about numerous instances of 
product misuse that, individually, are very rare, would increase the 
likelihood that consumers will not receive the most important hazard 
information for the product.

8. Warnings Against Sleeping in Swings

    (Comment 8) Three comments state that the product should warn 
against allowing infants to sleep in the swing. One of the comments 
suggests that the following language be added to the warning: ``Do not 
use the swing for routine sleep.''
    (Response 8) We do not believe that warning statements about not 
allowing infants to sleep in the swing should be added. CPSC staff's 
prior review of the available incident data suggests that the angle of 
the seat back is more relevant to the potential for slump-over deaths 
and that adjusting the seat back to the most reclined position would 
have addressed these incidents. The warnings already include a 
statement about adjusting the seat back to the most reclined position 
for those children most at risk of slumping over, and the final rule 
revises the warning statement to clarify this message. Thus, we believe 
that warnings about not sleeping in infant swings are unlikely to 
reduce further the incidence of slump-over deaths; additionally, the 
data do not support mandating such a warning.

9. Warnings Limiting Swing Use

    (Comment 9) One comment recommends that there be warnings about 
limiting the amount of time that infants spend in the swing for 
``health and developmental concerns,'' namely, positional/deformational 
plagiocephaly and developmental delays from a lack of ``tummy time.''
    (Response 9) Warnings are safety communications intended to inform 
consumers about hazards, with the ultimate goal of reducing injuries 
and deaths. Thus, while there may be exceptions, one generally should 
not provide a warning, unless a significant hazard exists. We are not 
aware of any reported incidents of positional/deformational 
plagiocephaly involving infant swings. Even if one presumes that such 
an association exists, CPSC staff has confirmed that this condition 
does not pose a hazard to infants. Similarly, developmental delays from 
a lack of ``tummy time'' are not hazards per se, and they do not 
directly lead to injuries or deaths. Consequently, we do not believe 
that this issue rises to the level that such a mandatory warning on the 
product is necessary.

10. Seat Deflection Warning

    (Comment 10) One comment recommends that swings supported by a 
single arm include a warning about the increased likelihood of seat 
deflection.
    (Response 10) We do not believe that a warning about an increased 
likelihood of seat deflection is necessary for single-arm infant 
swings. Since publication of the NPR, CPSC staff has worked with the 
ASTM Subcommittee on Infant Swings to develop new, improved performance 
requirements intended to address seat deflection. We believe that these 
requirements, which are part of the final rule, will effectively 
address the risk associated with seat deflection, and therefore, 
eliminate the need for a warning.

11. Electrical Cord Strangulation Warning

    (Comment 11) One comment recommends that all swings with AC or 
electrical power cords include a warning label on the cords similar to 
that in the baby monitor standard, which warns about the strangulation 
hazard that such cords pose.
    (Response 11) We do not believe that mandating a strangulation 
warning on the AC or electrical power cords that might accompany 
certain infant swings is appropriate at this time. The recently 
published voluntary standard for baby monitors, ASTM F2951-12, Standard 
Consumer Safety Specification for Baby Monitors, does require 
strangulation warnings on the cords of baby monitors, but specifies 
different warnings, depending on whether the product is intended to be 
attached to a crib or not.

[[Page 66707]]

For transmitters that are not intended to be attached to a crib, the 
warning instructs consumers to keep the cord more than 3 feet away from 
the child. For transmitters that are intended to be attached to a 
crib--a situation more analogous to an infant swing that holds the 
infant and has an electrical power cord attached--the warning instructs 
consumers to use the manufacturer-supplied protective cord covering at 
all times. However, infant swings are not required to provide 
protective coverings for electrical power cords, so it is unclear how 
consumers would comply with such a warning.
    A general warning about the risk of strangulation from these cords 
when the child is in the product might be more reasonable. However, we 
are not aware of any incidents associated with this hazard scenario 
involving infant swings, which suggests that this hazard does not rise 
to the level that a mandatory warning is necessary. Manufacturers of 
infant swings with cords are free to include strangulation warnings on 
their cords, and we can revisit the possibility of mandating such 
warnings if future incident data show that doing so would be 
appropriate.

12. Dynamic and Static Tests

    (Comment 12) One comment states that the CPSC-proposed rule would 
require the tester to use a 75-lb weight and to drop it 500 times on 
the swing seat. The comment questions the new test method's predictive 
ability to replicate real-world conditions and injuries, because, the 
commenter states, the ASTM standard required a 25-lb weight dropped 50 
times onto the seat. Next, the comment suggests that the total number 
of drops could be increased beyond the current 500 drops. The total 
number of drops could be based on a consumer survey, asking parents how 
many times a day they put their baby in the swing and whether they used 
it for one or more babies. Lastly, the comment states that it is 
unclear why the test involves dropping. The force of an impact, 
especially with a drop mass of 75 lbs repeated 500 times, could weaken 
the infant swing at an unreasonable and unrepresentative rate. The 
comment recommends instead that the test should measure the effect of a 
static mass placed in the seat over a period of time. Another comment 
questions the 75-lb requirement in the static load test and requests 
the justification for this requirement.
    (Response 12) The current ASTM standard, F2088-12a, has adopted the 
CPSC staff recommendation to increase the number of drops from 50 to 
500 in the dynamic load test. The additional cycles were based on CPSC 
staff testing, which included life cycle testing. We believe a cyclic 
test of 500 drops is an appropriate test to evaluate the potential for 
structural failure in an infant swing. Continued testing beyond 500 
cycles did not reveal any new issues, and it may place an unnecessary 
burden on the manufacturers and test labs. Additionally, the dynamic 
test specifies a 25-lb load not a 75-lb load, as suggested by the 
comment. The 25-lb load is the approximate weight of a 95th percentile 
10- to 12-month-old child, and we agree with the rationale listed in 
the appendix of ASTM F2088-12a. The static load test included in the 
standard is the only test that calls for the application of a 75-lb 
load in the seat. The 75-lb static load has been part of the voluntary 
standard since its inception in 2001; this is not something newly added 
by the CPSC.
    Finally, the dynamic test drop height is 1 inch. We consider the 
forces applied from this drop to be consistent with actual forces 
associated with swing use. Performing the dynamic test as specified in 
the standard ensures consistent, repeatable testing results. Together, 
these tests are intended to evaluate the structural integrity of the 
infant swing, and we believe they are sufficient to address structural 
issues that would occur over the life of the product.

13. Product Misassembly

    (Comment 13) One comment states: ``Because of the constant use/
storage/lending use pattern of swings, we recommend that CPSC consider 
including additional requirements in the standard for infant swings, 
such as the provisions in the crib standard that seek to reduce 
hardware loss or misassembly. This could include requiring hardware 
that doesn't back out or become loose, captive hardware, performance 
requirements to avoid misassembly, and a method to make sure 
instructions stay with the product.''
    (Response 13) The CPSC has considered or addressed misassembly 
issues in the standards for bassinets, play yards, and cribs, based on 
reported incidents and known usage patterns. We are aware of these 
hazard patterns in other juvenile product incidents, but we have 
concluded that ASTM has sufficiently addressed these issues by 
requiring that all threaded fasteners connecting structural components 
have a locking mechanism, such as lock washers, self-locking nuts, or 
other features designed to prevent detachment due to vibration. A 
product evaluation by CPSC staff revealed that many current swing 
designs use other means, such as Valco-type (push) button fasteners, 
which are permanently attached to the respective component. In most 
swing designs, misassembly of a swing would make the frame overtly 
unstable or result in an unnatural appearance that would be obvious to 
the consumer. The addition of a misassembly requirement would add a 
testing requirement for an incident pattern that is not evident among 
the incidents reported and that is addressed by the existing standard.

14. Seat Deflection

    (Comment 14) Multiple comments question the seat deflection test 
and how it relates to injury reduction. Individual comments suggest 
including a second test to account for the potential of increased 
deflection over the life of the product. Another comment states that 
the CPSC did not explain why the agency chose 4 inches as its 
performance requirement.
    (Response 14) Seat deflection is a design issue that should be 
addressed during the product's development and verified with standard 
testing. The seat deflection test proposed by the Commission was a 
preliminary test procedure under development at the time of the NPR. 
CPSC staff has continued to work with ASTM to refine the seat 
deflection test for infant swings. ASTM's latest standard includes a 
new test methodology and performance requirements that measure various 
seat angles, as was suggested by one commenter, and it addresses 
satisfactorily the seat deflection issues raised by CPSC staff.

15. Electrical Requirements

    (Comment 15) One comment states that infant swings are not designed 
to be operated by children. Instead, the comment states that infant 
swings are designed to be used by children, but they are designed to be 
operated by adults. Therefore, the comment asserts that infant swings 
are not subject to 16 CFR part 1505, Requirements for electronically 
operated toys or other electrically operated articles intended for use 
by children. According to the comment, third party laboratories have 
been interpreting 16 CFR part 1505 in this manner for many years. 
Adding a new interpretation to 16 CFR part 1505, the comment suggests, 
would create confusion and would be inconsistent with test protocols 
currently employed.
    (Response 15) While the NPR proposed that swings operating from an 
a/c power source be required to conform to 16 CFR 1505, ASTM reworded 
the provision in ASTM F2088-12a to address the issue of assuring that 
AC

[[Page 66708]]

adapters meet all national safety standards. We agree with the new 
language contained in ASTM F2088-12a, which is being incorporated into 
the final rule. Therefore, it is unnecessary to include any reference 
to part 1505 in the final rule.

16. Compliant Product Marking

    (Comment 16) One comment recommends that the CPSC consider adding a 
marking on products that are manufactured after the effective date so 
that consumers can clearly identify new products that meet the new 
mandatory standard.
    (Response 16) A date code is already required to be on the product 
under section 8.1.3 of ASTM F2088-12a and under the requirements for 
consumer registration of durable infant or toddler products in 16 CFR 
1130.3. In addition, future changes to the standard may come into 
effect. Because it is not practicable to delineate every change to the 
standard through a new mark on the product, we decline to take such 
action.

17. Regulation Coverage

    (Comment 17) One comment states: ``* * * the pre-existing voluntary 
standards unaddressed by the new regulation is [sic] the sweeping 
definition that places all infant swings in the same category for 
children up to the age of five.''
    (Response 17) The proposed rule and the voluntary standard both 
indicate that the infant swings are ``intended for use with infants 
from birth until a child is able to sit up unassisted.'' The comment 
may have misunderstood the reference in the Federal Register notice, 
where the ``definition of a `durable infant or toddler product' is 
defined in section 104(f)(1) of the CPSIA as a durable product intended 
for use, or that may be reasonably expected to be used, by children 
under the age of 5 years.''

18. The Regulatory Flexibility Act

    (Comment 18) One comment states that CPSC staff should try ``to 
obtain a more accurate number of manufacturers who do not meet the ASTM 
standard'' and suggests that we ``count those manufacturers that sell 
at major retailers that require ASTM compliance'' as well. The comment 
states that because ``just ten firms are making or importing swings, 
CPSC could easily get direct information that would more clearly 
identify costs.''
    (Response 18) We have attempted to obtain accurate estimates of 
small firms that do not conform to the ASTM voluntary standard for 
infant swings and information on the likely costs of conformance. 
Further effort would not change the results of the analysis. Nor is it 
necessarily easy for firms to estimate prospectively the economic 
impact that a regulation will have on their costs.
    (Comment 19) One commenter states that the regulatory flexibility 
analysis should consider the effect that a product recall would have on 
firms `` * * * that are not known to be in compliance with the 
voluntary standard.''
    (Response 19) The Regulatory Flexibility Act requires an evaluation 
of the likely economic impacts of conforming to the standard that is 
being proposed, not the economic impact of violating the standard. If 
firms comply with the standard, recalls related to nonconformance would 
be avoided.

E. ASTM Voluntary Standard

    ASTM F2088, ``Standard Consumer Safety Specification for Infant 
Swings,'' is the voluntary standard that was developed to address the 
identified hazard patterns associated with the use of infant swings. 
Section 104(b) of the CPSIA requires the Commission to assess the 
effectiveness of the voluntary standard in consultation with 
representatives of consumer groups, juvenile product manufacturers, and 
other experts. We have consulted with these groups regarding the ASTM 
voluntary standard, ASTM F2088, throughout its development. The 
standard was first approved in 2001, and revised in 2003, 2008, 2009, 
twice in 2011, and twice in 2012. ASTM F2088-11b was the version of the 
standard referenced in the NPR. In response to the proposed rule, the 
ASTM Subcommittee on Infant Swings, in collaboration with CPSC staff, 
approved and published two versions of the standard since publication 
of the NPR, including, ASTM F2088-12a (approved on September 1, 2012, 
and published in September 2012), which mainly incorporates the 
proposed modifications in the proposed rule, with a few clarifications 
and modifications that strengthen the standard. ASTM F2088-12a contains 
more stringent requirements than its predecessor, ASTM F2088-11b, and 
would reduce further the risk of injury associated with infant swings.

F. Assessment of the Voluntary Standard and Description of the Final 
Rule

1. Changes to Requirements of the ASTM F2088 Voluntary Standard

    In the NPR, the Commission proposed safety standards for infant 
swings based on the voluntary standard for infant swings, ASTM F2088-
11b. We proposed additional requirements that were intended to 
strengthen the voluntary standard. See 77 FR 12182. Since the 
publication of this notice, ASTM has published two newer versions of 
the standard, ASTM F2088-12 and ASTM F2088 12a. The newest version, 
ASTM F 2088-12a, includes additional changes that were not addressed 
previously, modifies the CPSC proposed language, or adopts the 
proposal, with some differences.
    The final rule incorporates by reference ASTM F2088-12a as a 
mandatory standard, with two modifications. Some of the more 
significant requirements of ASTM F2088-12a are listed below. The 
requirements that have been added to the ASTM voluntary standard since 
the NPR are in italics:
     Stability test--intended to prevent tip over. Swing models 
that rotate about the horizontal axis are positioned on an inclined 
surface with the swing facing forward and then facing backward. Swings 
that do not rotate about the horizontal axis are tested in the position 
most likely to fail. This was modified in ASTM F2088-12 to clarify the 
test procedure, as proposed by the Commission in the NPR.
     Test to prevent unintentional folding--intended to ensure 
that any locking/latching mechanisms remain functional after testing.
     Tests on restraint system--intended to prevent slippage 
and breakage during regular use.
     Requirements for cradle swing orientation--intended to 
ensure that the surface remains relatively flat both while in motion 
and while at rest.
     Requirements for electrically powered swings--intended to 
prevent leakage and otherwise protect consumers. These requirements 
originally applied only to battery-operated swings but were expanded in 
ASTM F2088-12 to encompass all electrically powered swings, as proposed 
by the Commission in the NPR. ASTM F2088-12a extends the compliance 
requirements of all AC adaptors and includes a list of accepted 
national safety standards. There are also some editorial differences 
between the NPR and ASTM F2088-12a.
     Requirement for toy mobiles--intended to ensure that toys 
within a child's reach do not detach when pulled. This requirement was 
new to the 2011a standard and was modified for the 2012 standard to 
prevent detachment when pulled horizontally as well (as proposed in the 
February 2012 NPR).

[[Page 66709]]

     Shoulder strap requirement--In the NPR, we proposed that 
shoulder straps be required for swing seats with angles greater than 50 
degrees. The seat back angle measurement procedure has been updated 
since the NPR. Now it addresses the issues that the CPSC proposed to 
address with the seat deflection test included in the NPR. Now it now 
addresses seats that fold up or tilt, by limiting the severity of 
angles created by the seat and seat back, or by requiring shoulder 
straps as part of the restraint system.
     Dynamic and static load requirements--intended to ensure 
that the infant swing can support these loads without breaking. The 
dynamic load test procedure was modified in F2088-12 to mirror proposed 
changes in the February 2012 NPR, including increasing the number of 
times the weight is dropped.
    The voluntary standard also includes: (1) Torque and tension tests 
to ensure that components cannot be removed; (2) requirements for 
several infant swing features to prevent entrapment and cuts (minimum 
and maximum opening size, small parts, exposed coil springs, protective 
components, hazardous sharp edges or points, and edges that can 
scissor, shear, or pinch); (3) requirements for the permanency and 
adhesion of labels; (4) a leg opening test to ensure that occupants 
cannot slide out; (5) requirements for instructional literature; and 
(6) restraint system requirements. Additionally, all testing must be 
performed without adjusting or repositioning the swing, and swings with 
multiple seat configurations must be placed in the most disadvantageous 
position for testing. The following is a discussion of how the new 
standard addresses the issues raised in the NPR.
a. Seat Deflection
    The Commission proposed a preliminary test procedure to address the 
seat deflection issue and specifically asked for comments on the 
proposed test method in the NPR. In addition, the CPSC continued to 
work with ASTM to refine the seat deflection test for infant swings. 
ASTM F2088-12a includes new language that contains a more comprehensive 
requirement based on maximum seat angle specifications, which includes 
additional seat back angle measurements or shoulder strap requirements. 
We believe this requirement addresses more adequately the incidents 
where a child falls out of the seat due to seat deflection.
b. Stability Testing
    We raised two issues in the NPR regarding stability testing and 
both are addressed in ASTM F2088-12a. ASTM F2088-12a has added the 
requirement for testing of alternative swing designs in the worst-case 
orientation, as recommended by the Commission. So now not only are 
traditional horizontal access swings tested for stability, but also 
nontraditional, alternative designs with other than a horizontal axis 
of swing motion must also be tested to the new requirements.
    The second stability issue the CPSC raised was intended to refine 
the testing on swings with ``L-'' shaped cantilevered legs. The CPSC 
raised the issue out of concern that a test lab could interpret this 
test to require that the force be applied at the end of the ``L-'' 
shaped leg that is not in the vertical plane of the latch. In this 
case, the maximum force normally associated with folding is at the end 
of the leg vertically under the latch. However, after further 
discussions with ASTM, we have concluded that the current wording 
allows testing to be performed as stated in the NPR, and the proper 
testing location for this design is readily apparent to all involved. 
Therefore, the infant swing unintentional folding test statement 
proposed in the NPR, as a clarification to the existing test procedure, 
is not included in the final rule.
c. Electrical Overload Requirements
    The NPR proposed electrical testing requirements to reduce the 
likelihood of overloading electrical components, battery leakage, or 
electrical failures that could lead to fire. As part of these 
requirements, ASTM F2088-12a does not include the following statement: 
``The test shall be conducted using a new swing.'' However, the testing 
on swing samples is done largely independent of the electrical 
components. Therefore, the electrical components on a swing sample 
normally can be considered ``new,'' even after other components have 
been tested. By accepting deletion of that statement, the number of 
samples required to complete a test is reduced. We accept the 
electrical overload requirement--as stated in ASTM F2088-12a--as 
sufficient.
d. Dynamic Drop Test Cycles
    The NPR proposed increasing the dynamic drop test cycles from 50 to 
500 cycles to improve structural integrity and reveal potential 
structural issues of the swing components. Increasing the number of 
dynamic impact cycles to which the swing will be tested will reduce the 
possibility of structural failures, and it is expected to lead to a 
decrease in the number and severity of injuries. ASTM included this 
change in ASTM F2088-12a.
e. Modify Mobile and Toy Retention Requirements
    The NPR proposed modifying mobile and toy retention requirements to 
allow the force to be applied in any direction at or below the 
horizontal plane, in the orientation most likely to fail. This change 
is contained in ASTM F2088-12a.
f. Other Changes to ASTM F2088-12 and 12a
    In addition to the changes discussed above, in response to the NPR, 
ASTM made two other changes to ASTM F2088-12 and 12a, which we find 
acceptable. One change deals with the seat back recline fixture. ASTM 
accepted CPSC staff's recommendation to use steel plates--as opposed to 
wood boards--for the seat back recline fixture and then added more 
design changes to adjust the center of gravity of the fixture to 
approximate more accurately the weight distribution of an actual child. 
The device is now identified as the ``Hinged Weight Gage-Infant,'' and 
a drawing of the figure is included in the ASTM standard. This change 
will improve the accuracy of testing, and therefore, improve the safety 
of the standard. This change was not proposed in the NPR, but it was 
developed with the participation of CPSC staff.
    The other issue ASTM addressed was a clarification to the AC 
adapters supplied with the product. ASTM F2088-12 states: ``6.1.5 AC 
adapters supplied with the product must be compliant with the 
appropriate current national standard for AC adapters.'' ASTM received 
a number of comments after ASTM F2088-12 was published, asking for 
clarification of what ``appropriate current national standard'' meant 
in the requirement. ASTM added new wording and a note to make this 
clearer, and ASTM F2088-12a includes those changes. We find these 
changes to be acceptable.

2. Description of the Final Rule

a. Section 1223.1--Scope
    Section 1223.1 of the final rule states that part 1223 establishes 
a consumer product safety standard for infant swings. We received no 
comments on this provision and are finalizing it without change.
b. Section 1223.2--Requirements for infant swings
    Section 1223.2(a) of the final rule provides language to 
incorporate by reference ASTM F2088-12a, Standard Consumer Safety 
Specification for

[[Page 66710]]

Infant Swings. Section 1223.2(a) also provides information on how to 
obtain a copy of the ASTM standard or to inspect a copy of the standard 
at the CPSC or National Archives and Records Administration. We 
received no comments on this provision, but we are changing the 
language in the incorporation in the final rule to refer to ASTM F2088-
12a, the current version of the standard.
    In the NPR, Sec.  1223.2(b) proposed to add two new requirements to 
ASTM F2088-11b to make the standard more stringent than the current 
voluntary standard and to reduce the risk of injury associated with 
infant swings: (1) A performance requirement and test method to address 
electrical overload in infant swing motors and batteries, as well as an 
accessible component temperature requirement and a requirement to 
ensure that swings that run on a/c power are safe; and (2) a 
performance requirement and test method to address seat deflection. We 
also proposed two major modifications to ASTM F2088-11b that would make 
the standard more stringent than the voluntary standard at that time 
and would reduce the risk of injury associated with infant swings: (1) 
An increase in the number of test cycles used in the dynamic load test, 
from 50 cycles to 500 cycles, and (2) a modification to the mobile test 
to account for mobiles that can be pulled in downward directions other 
than straight down vertically. Finally, in proposed Sec.  1223.2(b) of 
the NPR, we proposed to clarify the test methods for the dynamic load 
test, the stability test, the unintentional folding test, and the seat 
back angle measurement method.
    As discussed in the previous section of this preamble, the 
additional requirements in proposed Sec.  1223.2(b) either have been 
incorporated into ASTM F2088-12a, or we are satisfied with ASTM's 
changes from the proposal or explanations regarding why some proposals 
were not necessary. Therefore, the language in proposed Sec.  1223.2(b) 
of the NPR is no longer necessary.
    Finally, as discussed previously in the response to comment 1 in 
section D of this preamble, we received many comments regarding the 
inadequacy of the slump-over warnings in section 8.3 of ASTM F2088-11b. 
Section 8.3 of ASTM F2088-12a contains the identical slump-over warning 
contained in section 8.3 of ASTM F2088-11b that we proposed in the NPR. 
We agree that the current warning language requirements pertaining to 
the slump-over hazard in ASTM F2088-12a are insufficient and that the 
warning should be revised to clarify the hazard and the consequences of 
exposure to the hazard if the consumer cannot avoid it. The warning 
statement required in ASTM F2088-12a does not describe the slump-over 
hazard, and the formatting of the warning implies that using the swing 
in the most reclined seat position is an additional measure intended to 
address the potential for the infant user to fall or strangle in the 
straps. In addition, one could argue that the warning statement does 
not describe the probable consequences of not avoiding the slump-over 
hazard because the warning's reference to ``serious injury or death'' 
is specific to falls and strangulations.
    Therefore, in place of the language proposed in Sec.  1223.2(b) of 
the NPR, Sec.  1223(b)(1) of the final rule requires that infant swings 
must comply with the ASTM F2088-12a standard with two exceptions. In 
the case of the first exception to the ASTM standard, instead of 
complying with section 8.3.1 of ASTM F 2088-12a, infants swings are 
required to have warning statements for products that have an 
adjustable seat recline with a maximum seat back angle greater than 50 
degrees from horizontal, measured in accordance with 7.13 of ASTM F 
2088-12a, that address the following:

    Keep swing seat fully reclined until child is at least 4 months 
old AND can hold up head without help. Young infants have limited 
head and neck control. If seat is too upright, infant's head can 
drop forward, compress the airway, and result in DEATH.

Additionally, swings must have a warning statement to prevent serious 
injury or death from infants falling or being strangled in straps:
     Always secure infant in the restraint system provided.
     Never leave infant unattended in swing.
     Discontinue use of swing when infant attempts to climb 
out.
     Travel swings are required to have a warning indicating: 
``Always place swing on floor. Never use on any elevated surface.''
    A second exception to the requirements in ASTM F2088-12a specifies 
the test method for testing toy mobiles that are attached to the swing. 
The final rule provides new language for the test method described in 
section 7.12.2 of ASTM F2088-12a. We are adding this language in 
response to information from ASTM that ASTM had inadvertently omitted 
updating the test method described in section 7.12.2 of ASTM F2088-12a 
to reflect the latest revision that ASTM had made to the test fixture 
used in section 7.12.2. We have added ASTM's revised version of the 
test method language in the final rule text in Sec.  1223(b)(2). This 
is the language that ASTM is balloting to revise section 7.12.2 in its 
standard.

G. Effective Date

    The Administrative Procedure Act (APA) generally requires that the 
effective date of the rule to be at least 30 days after publication of 
the final rule. 5 U.S.C. 553(d). The preamble to the proposed rule 
indicated that the standard would become effective 6 months after 
publication of the rule in the Federal Register. We sought comment on 
how long it would take infant swing manufacturers to come into 
compliance. We received one comment stating that the Commission should 
``* * * consider extending the effective date to one year to help 
minimize a possibility of a substantial loss of revenue from the 
potential product recalls on the small manufacturers and importers.'' 
Almost all of the requirements proposed in the NPR were incorporated 
into ASTM F2088-12a, and the final rule differs from the proposed rule 
only in the requirement that an additional warning label regarding use 
has been added. Therefore, we believe that an effective date of 6 
months after publication of the final rule is sufficient to allow for 
review of the new requirements thoroughly and to ensure that new infant 
swings manufactured or imported after that date are in compliance with 
the new requirements. The 6-month effective date is consistent with the 
effective date established in most other rules issued under section 104 
of the CPSIA. Accordingly, the final rule will be effective 6 months 
after publication in the Federal Register, unchanged from the proposed 
rule.

H. Testing and Certification

    Once there is a safety standard in effect for infant swings, it 
will be unlawful for anyone to manufacture, distribute, or import an 
infant swing into the United States that is not in conformity with this 
standard. 15 U.S.C. 2068(1).
    In addition, section 14(a)(2) of the CPSA, 15 U.S.C. 2063(a)(2), 
imposes the requirement that products subject to a children's product 
safety rule must be tested by a third party conformity assessment body 
accredited by the Commission to test the product. As discussed in 
section A of this preamble, section 104(b)(1)(B) of the CPSIA refers to 
standards issued under this section as ``consumer product safety 
standards.'' Under section 14(f)(1) of the CPSA, 15 U.S.C. 2063(f)(1), 
the term ``children's

[[Page 66711]]

product safety rule'' includes all standards enforced by the 
Commission. Thus, the infant swing standard will be a children's 
product safety rule, subject to third party testing and certification.
    The Commission is required to issue a notice of requirements (NOR) 
to explain how laboratories can become CPSC-accepted third party 
conformity assessment bodies to test infant swings to the new safety 
standard. On May 24, 2012, the Commission published in the Federal 
Register the proposed rule, Requirements Pertaining to Third Party 
Conformity Assessment Bodies, 77 FR 31086, which, when finalized, would 
establish the general requirements and criteria concerning testing 
laboratories, including a list of the children's product safety rules 
for which the CPSC has published NORs for laboratories. The Commission 
proposed a new NOR for the safety standard for infant swings in that 
proposed rule. See 77 FR at 31113. The final NOR for the safety 
standard for infant swings will be issued once the final rule for 
Requirements Pertaining to Third Party Conformity Assessment Bodies is 
published in the Federal Register. That final rule will address the 
issuance of the NOR for infant swings.

I. Regulatory Flexibility Act

1. Introduction

    The Regulatory Flexibility Act (RFA) requires that final rules be 
reviewed for their potential economic impact on small entities, 
including small businesses. Section 604 of the RFA requires that the 
Commission prepare a final regulatory flexibility analysis when it 
promulgates a final rule. The final regulatory flexibility analysis 
must describe the impact of the rule on small entities and identify any 
alternatives that may reduce the impact. Specifically, the final 
regulatory flexibility analysis must contain:
     A succinct statement of the objectives of, and legal basis 
for, the rule;
     A summary of the significant issues raised by public 
comments in response to the initial regulatory flexibility analysis, a 
summary of the assessment of the agency of such issues, and a statement 
of any changes made in the proposed rule as a result of such comments;
     A description of, and, where feasible, an estimate of, the 
number of small entities to which the rule will apply;
     A description of the projected reporting, recordkeeping, 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities subject to the requirements and the type 
of professional skills necessary for the preparation of reports or 
records; and
     A description of the steps the agency has taken to reduce 
the significant economic impact on small entities, consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the rule, and why each one of the other significant 
alternatives to the rule considered by the agency, which affect the 
impact on small entities, was rejected.
    The NPR for infant swings was based on the voluntary ASTM standard 
for infant swings ASTM F2088-11b. The Commission proposed several 
modifications, additions, and clarifications at that time. Most of the 
proposed changes have been incorporated into ASTM F2088-12a, which the 
final rule incorporates by reference, along with one additional change, 
modifying the slump-over warning.

2. The Market for Swings

    Infant swings are typically produced and/or marketed by juvenile 
product manufacturers and distributors. We estimate that currently, 
there are at least 9 domestic manufacturers and one domestic importer 
supplying infant swings to the U.S. market. Infant swings from five of 
the 10 firms have been certified as compliant with the ASTM voluntary 
standard ASTM F2088-11b by JPMA, the major U.S. trade association that 
represents juvenile product manufacturers and importers. Two additional 
firms claim compliance with F2088-11b.
    Information on annual sales of infant swings can be approximated 
using information from the 2005 survey conducted by the American Baby 
Group (2006 Baby Products Tracking Study). About 79 percent of new 
mothers own at least one infant swing--61 percent own full-sized infant 
swings, and 33 percent own smaller travel infant swings. Approximately 
31 percent of full-sized infant swings and 26 percent of travel infant 
swings were handed down or purchased secondhand. Thus, about 69 percent 
of full-sized infant swings, and 74 percent of travel infant swings 
were acquired new. This suggests annual sales of about 2.7 million 
infant swings to households (.69 x .61 x 4.1 million births per year + 
.74 x .33 x 4.1 million births per year).
    Typically, infant swings are used for only a few months early in a 
child's life. Therefore, we have estimated the risk of injury based on 
the number of infant swings in the households of new mothers. Based on 
data from the 2006 Baby Products Tracking Study, approximately 3.9 
million infant swings are owned by new mothers (0.61 percent own full-
size x 4.1 million births + 0.33 percent own travel size x 4.1 million 
births). This suggests that at least 3.9 million infant swings may be 
available to children during the first year of their lives. During 
2011, there were an estimated 1,900 emergency department-treated 
injuries to children under age 5 related to infant swings. 
Consequently, there would have been about 4.9 emergency department-
treated injuries annually for every 10,000 infant swings available for 
use in the households of new mothers.

3. Impact of the Standard on Small Businesses

    As noted earlier, there are approximately 10 domestic firms 
currently known to be producing or selling infant swings in the United 
States. Under U.S. Small Business Administration (SBA) guidelines, a 
manufacturer of infant swings is small if it has 500 or fewer 
employees, and an importer is considered small if it has 100 or fewer 
employees. Based on these guidelines, five domestic manufacturers are 
small firms. The remaining firms are four large domestic manufacturers 
and one large domestic importer. There may be additional unknown small 
manufacturers and importers operating in the U.S. market.
Small Manufacturers
    The expected impact of the final rule on small manufacturers will 
differ based on whether their infant swings are compliant with ASTM 
F2088-11b. Firms whose infant swings meet the requirements of ASTM 
F2088-11b are generally expected to continue to do so as new versions 
of the standard are published, typically within 6 months, which is the 
amount of time JPMA allows for products in their certification program 
to shift to a new standard. Many of these firms are active in the ASTM 
standards development process, and compliance with the voluntary 
standard is part of an established business practice. Therefore, it is 
likely that firms supplying infant swings that comply with ASTM F2088-
11b (which went into effect for JPMA certification purposes in May 
2012) would also comply with ASTM F2088-12a by March 2013, even in the 
absence of a mandatory standard.
    The direct impact on the three known small domestic manufacturers 
whose infant swings are compliant with ASTM F2088-11b is not expected 
to be significant. Each firm will need to

[[Page 66712]]

modify the slump-over warning label for their infant swings. This is 
not generally expected to be costly; although some firms may experience 
larger costs than others, depending upon their label development 
process, and where the warning labels are affixed on their products. 
One firm estimates that the one-time cost of changing their labels, 
including development time and materials, would be approximately $1,000 
per model.
    Complying with ASTM F2088-12a's requirements could necessitate 
product redesign for some infant swings believed not to be compliant 
with ASTM F2088-11b. The redesign would be minor if most of the changes 
involve adding straps and fasteners or using different mesh or fabric; 
but the redesign could be more significant if changes to the frame are 
required. Consequently, the final rule potentially could have a 
significant direct impact on the two small manufacturers of infant 
swings that are believed not to have conformed to ASTM F2088-11b, 
regardless of how they choose to meet the staff-recommended warning 
label requirement. One manufacturer estimated that a complete infant 
swing redesign would cost approximately $400,000, not including 
significant overhead costs, such as engineering time, which at $100 per 
hour, easily could increase overall redesign costs by $100,000 or more. 
However, a complete product redesign is unlikely to be necessary in 
most cases, and any direct impact may be mitigated if costs are treated 
as new product expenses that can be amortized.
    It is possible that the two firms whose infant swings are neither 
certified as compliant, nor claim to be compliant with ASTM F2088-11b, 
in fact, are compliant with the standard. We have identified many such 
cases with other products. To the extent that these firms may supply 
compliant infant swings and have developed a pattern of compliance with 
the voluntary standard, the direct impact of the final rule will be 
less significant than described above.
    Although the direct impact of the final rule should not be 
significant for most small manufacturers, there are indirect impacts as 
well. These impacts are considered indirect because they do not arise 
directly as a consequence of the requirements of the final rule. 
Nonetheless, these indirect costs could be significant. Once the final 
rule becomes effective, and the notice of requirements is in effect, 
all manufacturers will be subject to the additional costs associated 
with the third party testing and certification requirements. This will 
include the physical and mechanical test requirements specified in the 
final rule; lead and phthalates testing is already required, and hence, 
it is not included here.\3\
---------------------------------------------------------------------------

    \3\ Infant swing suppliers already must third party test their 
products to the lead and phthalate requirements. Therefore, these 
costs already exist and will not be affected by the final infant 
swings standard.
---------------------------------------------------------------------------

    Based on information provided by manufacturers, additional industry 
input, and information obtained when staff was developing the third 
party testing rule, third party testing costs for ASTM F2088-12a 
(including toy testing, which is part of the infant swings voluntary 
standard) are estimated to be around $900 per model sample. Testing 
overseas potentially could reduce third party testing costs, but that 
may not always be practical.
    On average, each small domestic infant swing manufacturer supplies 
six models of infant swings to the U.S. market annually. Therefore, if 
third party testing was conducted every year, third party testing costs 
for each manufacturer might add about $5,400 annually to the 
manufacturer's costs, assuming only one sample of each model had to be 
tested. Based on a review of firm revenues, the impact of third party 
testing to ASTM F2088-12a is unlikely to be significant for small 
manufacturers unless a large number of samples had to be tested for 
each model.
Small Importers
    CPSC staff was unable to identify any small importers currently 
operating in the U.S. market. However, if any exist, they would need to 
find an alternate source of infant swings if their existing supplier 
does not come into compliance with the requirements of the staff-
recommended final rule. They could also discontinue importing any 
noncomplying infant swings, possibly replacing them with another 
juvenile product. As is the case with manufacturers, importers will be 
subject to third party testing and certification requirements; 
consequently, they would experience costs similar to those for 
manufacturers, if their supplying foreign firm(s) does not perform 
third party testing.

4. Alternatives

    Under section 104 of the CPSIA, one alternative that would reduce 
the impact on small entities would be to make the voluntary standard 
mandatory with no modifications. However, while this alternative would 
eliminate any additional costs associated with the slump-over label 
change in the final rule, firms supplying noncompliant infant swings 
could still require substantial product redesign in order to meet the 
voluntary standard. Because of the frequency and severity of the 
incidents associated with slump-over incidents, we do not recommend 
this alternative.
    A second alternative would be to set an effective date later than 6 
months. This would allow suppliers additional time to modify and/or 
develop compliant infant swings and spread the associated costs over a 
longer period of time. We generally consider 6 months sufficient time 
for suppliers to come into compliance with a mandatory standard; it is 
common in the industry, representing the amount of time that the JPMA 
allows for products in their ASTM certification program to shift to a 
new standard.

J. Paperwork Reduction Act

    This rule contains information collection requirements that are 
subject to public comment and review by the U.S. Office of Management 
and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3520). The preamble to the proposed rule (77 FR 7021 through 7022) 
discussed the information collection burden of the proposed rule and 
specifically requested comments on the accuracy of our estimates. We 
did not receive any comments from the public concerning the information 
collection burden of the proposal. However, in response to a comment 
made by OMB, the final rule makes a modification regarding the 
information collection burden. OMB noted that all 10 firms identified 
should be considered when accounting for the labeling burden.
    As indicated in the NPR (77 FR 7021 through 7022), there are 10 
known firms supplying infant swings to the U.S. market. In the NPR, we 
estimated that five of the 10 firms already made product labels that 
comply with ASTM F2088. We revise our burden estimate to assume that 
all 10 firms already use labels on both their products and packaging, 
but they might need to make some modifications to their existing 
labels. Based on this revision, our revised burden estimate is as 
follows: The estimated time required to make these modifications is 
about 1 hour per model. Each of these firms supplies an average of five 
different models of infant swings; therefore, the estimated burden 
hours associated with labels is 1 hour x 10 firms x 5 models per firm = 
50 annual hours.
    We estimate that hourly compensation for the time required to 
create and update labels is $28.36 (U.S.

[[Page 66713]]

Bureau of Labor Statistics, ``Employer Costs for Employee 
Compensation,'' September 2011, Table 9, total compensation for all 
sales and office workers in goods-producing private industries: http://www.bls.gov/ncs/). Therefore, the estimated annual cost associated with 
the proposed requirements is $1,418 ($28.36 per hour x 50 hours = 
$1,418).
    We have applied to OMB for a control number for this information 
collection, and we will publish a notice in the Federal Register 
providing the number when we receive approval from OMB.

K. Preemption

    Section 26(a) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 
2075(a), provides that where a consumer product safety standard 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. 
Section 104(b) of the CPSIA refers to the rules to be issued under that 
section as ``consumer product safety rules,'' 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 the rule becomes effective.

L. 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 final rule falls within the categorical exclusion, 
so no environmental assessment or environmental impact statement is 
required.

List of Subjects in 16 CFR Part 1223

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

0
Therefore, the Commission amends Title 16 of the Code of Federal 
Regulations by adding part 1223 to Chapter II to read as follows:

PART 1223--SAFETY STANDARD FOR INFANT SWINGS

Sec.
1223.1 Scope.
1223.2 Requirements for Infant Swings.

    Authority:  The Consumer Product Safety Improvement Act of 2008, 
Pub. L. 110-314, Sec. 104, 122 Stat. 3016 (August 14, 2008).


Sec.  1223.1  Scope.

    This part establishes a consumer product safety standard for infant 
swings.


Sec.  1223.2  Requirements for infant swings.

    (a) Except as provided in paragraph (b) of this section, each 
infant swing must comply with all applicable provisions of ASTM F2088--
12a, Standard Consumer Safety Specification for Infant Swings, approved 
on September 1, 2012. 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 Bar 
Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428; http://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.
    (b)(1) Instead of complying with section 8.3.1 of ASTM F2088-12a, 
comply with the following:
    (i) 8.3.1 The warning statements shall address the following at a 
minimum:
    (ii) 8.3.1.1 Products having an adjustable seat recline with a 
maximum seatback angle greater than 50 degrees from horizontal measured 
in accordance with 7.13 shall address the following:

    Keep swing seat fully reclined until child is at least 4 months 
old AND can hold up head without help. Young infants have limited 
head and neck control. If seat is too upright, infant's head can 
drop forward, compress the airway, and result in DEATH.

    (iii) 8.3.1.2 To prevent serious injury or death from infants 
falling or being strangled in straps:
    (A) Always secure infant in the restraint system provided.
    (B) Never leave infant unattended in swing.
    (C) Discontinue use of swing when infant attempts to climb out.
    (D) Travel swings (see 3.1.11) shall address the following:
    Always place swing on floor. Never use on any elevated surface.
    (2) Instead of complying with section 7.12.2 of ASTM F2088-12a, 
comply with the following:
    (i) 7.12.2 Place the back of the swing in the most upright 
position. Remove positioning accessories, including pillows. Position 
the segments of the restraint system to limit interaction with the 
Hinged Weight Gage--Infant (see Fig. 10) when placed in the seat. Place 
the Hinged Weight Gage--Infant with the hinge located at the junction 
of the swing back and seat bottom (see Fig. 8). Determine if the lowest 
point of the toy positioned over the occupant is within 25.25 in. 
(641.5 mm) of the top surface of the Lower Plate (see Fig. 10)--
throughout the swing seat's range of motion. Proceed to 7.12.3 if the 
distance is 25.25 in. (641.5 mm) or less. The toy is considered out of 
reach and not tested to 7.12.3 if the distance is greater than 25.25 
in. (641.5 mm).
    (ii) [Reserved]

    Dated: November 1, 2012.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2012-27027 Filed 11-6-12; 8:45 am]
BILLING CODE 6355-01-P