[Federal Register Volume 78, Number 121 (Monday, June 24, 2013)]
[Rules and Regulations]
[Pages 37706-37710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14991]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1216 and 1223


Safety Standards for Infant Walkers and Infant Swings

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 or CPSC) has published consumer product safety 
standards for numerous durable infant or toddler products, including 
infant walkers and infant swings. These standards incorporated by 
reference the ASTM voluntary standards associated with those products, 
with some modifications. In August 2011, Congress enacted legislation 
which sets forth a process for updating standards that the Commission 
has issued under the authority of the CPSIA. In accordance with that 
process, the CPSC is publishing this direct final rule, revising the 
CPSC's standards for infant walkers and infant swings, to incorporate 
by reference more recent versions of the applicable ASTM standards.

DATES: The rule is effective on October 7, 2013, unless we receive 
significant adverse comment by July 24, 2013. 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 October 7, 2013.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2013-
0025, by any of the following methods:
    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 infant 
walkers standard, contact Carolyn Manley, Office of Compliance and 
Field Operations, Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, MD 20814-4408; telephone (301) 504-7607; 
[email protected]. For information related to the infant swings 
standard, contact Keysha L. Watson, Office of Compliance and Field 
Operations, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814-4408; telephone (301) 504-6820; [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 walkers and infant swings. 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 P.L. 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

[[Page 37707]]

durable and infant or toddler standards when the voluntary standard 
upon which the CPSC standard was based is changed. This provision 
states:

    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.

Public Law 112-28, section 3.
    Notification and Review of Revisions. On April 10, 2013, ASTM 
notified CPSC of ASTM's approval and publication of revisions to ASTM 
F977, Standard Consumer Safety Specification for Infant Walkers and 
ASTM F2088, Standard Consumer Safety Specification for Infant Swings. 
In its notification, ASTM stated that revisions to these standards have 
occurred since the Commission adopted the earlier versions of the 
standards as CPSC mandatory standards.
    The Commission has reviewed the revisions. As explained below, 
ASTM's revisions to its standards for infant walkers and infant swings 
make these revised ASTM standards nearly the same as the CPSC-mandated 
standards for these products. In accordance with Public Law 112-28, the 
revised standard shall be considered a consumer product safety rule 
unless the Commission notifies ASTM that these revisions do not improve 
the safety of these consumer products and that the Commission is 
retaining the existing standard. Because the Commission declines to 
make such a notification to ASTM, we are publishing this direct final 
rule, revising the incorporation by reference included 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 Walkers

    On June 21, 2010, the Commission published a final rule issuing a 
safety standard for infant walkers that incorporated by reference ASTM 
F977-07, Standard Consumer Specification for Infant Walkers, with 22 
modifications to make the standard more stringent. 75 FR 35266.
    ASTM notified CPSC that the current version of the ASTM standard 
for infant walkers is ASTM F977-12, which was approved on May 1, 2012, 
and published in May 2012. There have been four revisions to ASTM F977 
since publication of ASTM F977-07:
     ASTM F977-09, approved on November 1, 2009, and published 
in December 2009;
     ASTM F977-11a, approved on September 26, 2011, and also 
published in September 2011;
     ASTM F977-11b, approved on December 1, 2011, and published 
in January 2012; and
     ASTM F977-12 approved on May 1, 2012 and also published in 
May 2012.

The first two revisions referenced above contain changes that matched 
closely or identically the various modifications included in 16 CFR 
part 1216. The latter two revisions of ASTM F977 contain changes to the 
standard that were not included in 16 CFR part 1216.
    As revised, ASTM F977-12 differs from 16 CFR part 1216 in the 
following ways:
     ASTM F977-12 includes a revised forward stability test 
procedure that is needed for testing certain style walkers;
     Two references to federal regulations that are no longer 
valid were removed from ASTM F977-12, as well as a requirement that was 
written in the standard twice;
     A few sections in ASTM F977-12 have modified language that 
corrects errors or adds clarity to the section; and
     Other minor editorial changes were made throughout the 
standard, as needed.

Most of these changes are editorial in nature. The change to the 
forward stability test procedure adds a new step to the test procedure 
that enables test laboratories to test certain styles of walkers more 
effectively. This additional step requires the test laboratory to 
exchange the specified aluminum stop with one that is ``suitable'' to 
complete the test. Because these changes make the revised ASTM standard 
nearly the same as the CPSC mandatory standard for walkers, the 
Commission declines to notify ASTM that it is retaining the existing 
standard and therefore, in accordance with P.L. 112-28, the revised 
ASTM standard for infant walkers becomes the new CPSC standard 180 days 
from the date the CPSC received notification of the revision from ASTM. 
This rule revises the incorporation by reference at 16 CFR part 1216, 
to reference the revised ASTM standard.

2. Infant Swings

    On November 7, 2012, the Commission published a final rule issuing 
a standard for infant swings that incorporated by reference ASTM F2088-
12a, with two modifications to make the standard more stringent. 77 FR 
66703.
    ASTM notified CPSC that the current version of the ASTM standard 
for infant swings is ASTM F2088-13, which was approved on January 15, 
2013, and published in February 2013. ASTM F2088-13 is the first 
revision since 16 CFR part 1223 was published. The changes to the ASTM 
standard were made specifically to bring the standard into accord with 
CPSC's regulation. These changes were made to address three sections of 
the standard:
     Mobile Attachment Strength (7.12);
     Warning labels (8.3.1); and
     Instructional Literature (9.2).

The changes made to the mobile attachment strength section of the 
standard update the testing requirements to bring testing into 
accordance with the CPSC regulation. The other changes to this section 
are editorial and include removing references to the previous test 
fixture and renumbering the figures to place the figure of the new 
Hinged Weight Gage--Infant before the other test figures. ASTM F2088-13 
revises the warning label requirements that were in ASTM F2088-12a to 
bring the standard into accord with CPSC's regulation. There are two 
differences between these changes and CPSC's regulation. First, ASTM 
switched the order of the first two warnings. The CPSC regulation 
places the adjustable seat recline warning before the fall and 
strangulation warning. Second, in the warning about the adjustable seat 
recline, the CPSC regulation includes the statement: ``Young infants 
have limited head and neck control.'' To reduce the amount of 
information on the warning label, ASTM removed that statement from the 
warning but left it in the instructional literature. The statement was 
intended to provide more clarification; however, the same information 
is implied by other references to head control in the warning, so 
limiting that statement to the instructional literature as ASTM has 
done in F2088-13 is acceptable.
    Because the Commission declines to notify ASTM that it is retaining 
the existing standard, in accordance with Public Law 112-28, the 
revised ASTM standard for infant swings becomes the new CPSC standard 
180 days from the date we received notification of the revision from 
ASTM. This rule revises

[[Page 37708]]

the incorporation by reference at 16 CFR part 1223 to reference the 
revised ASTM standard.

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.'' The Commission concludes that in the context 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 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.''
    Without Commission action to update the incorporation by reference 
in the CPSC's mandated standards, the standard published in the Code of 
Federal Regulations will not reflect the revised ASTM standard that 
will be in effect by operation of law under Public Law 112-28. Thus, 
the Commission believes that issuance of a rule revising the 
incorporation by reference in these circumstances is appropriate. 
However, little would be gained by allowing 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).
    In 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).
    Thus, the Commission is publishing this rule as a direct final rule 
because we do not expect any significant adverse comments. Revising the 
references to the ASTM standards reflects what occurs by operation of 
law under Public Law 112-28. Therefore, there is little for the public 
to comment upon. Unless we receive a significant adverse comment within 
30 days, the rule will become effective on October 7, 2013. In 
accordance with ACUS's recommendation, the Commission considers 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, the Commission would withdraw 
this direct final rule. Depending on the comments and other 
circumstances, 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 the Commission receives a 
significant adverse comment within 30 days, the rule will become 
effective on October 7, 2013.

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 walkers and infant swings 
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 walkers standard and the infant swings 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 (test laboratory) 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

[[Page 37709]]

testing and certification requirements of section 14 of the CPSA.
    Because infant walkers and infants swings 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 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 walkers (75 FR 35282 (June 21, 2010)) and infant swings (78 FR 
15836 (March 12, 2013)). The notices of requirements provided the 
criteria and process for our acceptance of accreditation of third party 
conformity assessment bodies for testing infant walkers to 16 CFR part 
1216 (which incorporated ASTM F977-07 with modifications) and for 
testing infant swings to 16 CFR part 1223 (which incorporated ASTM 
F2088-12a with modifications). This rule revises the references to the 
standards that are incorporated by reference in the CPSC's infant 
walkers and infant swings standards.

1. Infant Walkers

    As discussed previously, the revised ASTM F977-12 standard for 
infant walkers is nearly the same as the infant walkers standard that 
the Commission mandated, with one exception regarding an alternative 
test method. Section 7.3.2.4 of ASTM F977-12 has added a new 
alternative test method concerning the forward stability test procedure 
that would affect how a third party assessment body would test certain 
styles of walkers. The revised test procedure was added to the ASTM 
standard because testing laboratories were having difficultly 
completing the forward stability test on certain styles of walkers. The 
test method requires that the walkers be manually tipped over. This is 
accomplished by blocking the walker up against a specified aluminum 
stop and then applying a horizontal force to the walker until it tips 
over. The amount of force required to tip the walker over determines 
whether the walker passes or fails the requirement. With certain styles 
of walkers, the aluminum stop that is specified in the standard is 
ineffective, and the walker will not tip over, but rather, the wheels 
lift and ``jump'' the stop. Therefore, ASTM added an additional step in 
the test procedure for walkers that will not tip over during the 
procedure specified in section 7.3.2.4 of the revised standard. This 
additional step requires the third party conformity assessment body to 
exchange the specified aluminum stop with one that is ``suitable'' to 
complete the test.
    Thus, revising the infant walkers reference will necessitate, in 
limited circumstances, one change in the way that third party 
conformity assessment bodies are testing walkers for compliance to the 
CPSC standard. However, the Commission considers the existing 
accreditations that the Commission has accepted for testing to the 
infant walkers standard to continue to be acceptable because the 
original test method for ASTM F977-07 remains unchanged in ASTM F977-12 
for most walkers that undergo the test. The existing NOR remains in 
place for ASTM F977, and CPSC-accepted third party conformity 
assessment bodies are expected to update the scope of their 
accreditation to reflect ASTM F977-12 in the normal course of renewing 
their accreditation. Third party conformity assessment bodies that are 
currently accepted by the CPSC to test for ASTM F977-07 may conduct 
testing for the alternative test method in ASTM F977-12 before having 
updated their scope of accreditation under the normal renewal process.

2. Infant Swings

    As discussed previously, the revised standard for infant swings, 
ASTM F2088-13, is nearly the same as the infant swings standard that 
the Commission mandated. The principal difference is in requirements 
for the warning label. This would not necessitate any change in the way 
that a test laboratory would test the product. Thus, revising the 
reference to specify ASTM F2088-13 will not necessitate any change in 
the way that third party conformity assessment bodies are testing 
infant swings for compliance to CPSC the standard. Therefore, the NOR 
does not require modification, and the Commission considers the 
existing accreditations that the Commission has accepted for testing to 
the ASTM F2088-12a infant swings standard also to cover testing to the 
revised standard, ASTM F2088-13.

List of Subjects in 16 CFR Parts 1216 and 1223

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

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

PART 1216--SAFETY STANDARD FOR INFANT WALKERS

0
1. The authority citation for part 1216 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
2. Revise Sec.  1216.2 to read as follows:


Sec.  1216.2  Requirements for infant walkers.

    Each infant walker shall comply with all applicable provisions of 
ASTM F977-12, Standard Consumer Safety Specification for Infant 
Walkers, approved on May 1, 2012. 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, PO Box C700, West Conshohocken, PA 19428-2959 USA, telephone: 
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 1223--SAFETY STANDARD FOR INFANT SWINGS

0
3. The authority citation for part 1223 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.  1223.2 to read as follows:


Sec.  1223.2  Requirements for infant swings.

    Each infant swing shall comply with all applicable provisions of 
ASTM F2088-13, Standard Consumer Safety Specification for Infant 
Swings, approved on January 15, 2013. 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

[[Page 37710]]

from ASTM International, 100 Barr Harbor Drive, PO 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: June 19, 2013.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2013-14991 Filed 6-21-13; 8:45 am]
BILLING CODE 6355-01-P