[Federal Register Volume 84, Number 141 (Tuesday, July 23, 2019)]
[Rules and Regulations]
[Pages 35293-35297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15601]


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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2010-0075]

16 CFR Part 1219


Revisions to Safety Standard for Full-Size Baby Cribs

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In December 2010, the U.S. Consumer Product Safety Commission 
(Commission or CPSC) published a consumer product safety standard for 
full-size baby cribs (FS cribs). The standard incorporated by reference 
the applicable ASTM voluntary standard. ASTM has since published 
several revisions to the voluntary standard for FS cribs. We are 
publishing this direct final rule, revising the CPSC's mandatory 
standard for FS cribs to incorporate by reference the most recent 
version of the applicable ASTM standard.

DATES: The rule is effective on October 28, 2019, unless we receive 
significant adverse comment by August 22, 2019. If we receive timely 
significant adverse comments, we will publish notification in the 
Federal Register, withdrawing this direct final rule before its 
effective

[[Page 35294]]

date. The incorporation by reference of the publication listed in this 
rule is approved by the Director of the Federal Register as of October 
28, 2019.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0075, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: https://www.regulations.gov. Follow the 
instructions for submitting comments. The CPSC does not accept comments 
submitted by electronic mail (email), except through 
www.regulations.gov. The CPSC encourages you to submit electronic 
comments by using the Federal eRulemaking Portal, as described above.
    Written Submissions: Submit written submissions in the following 
way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM 
submissions), preferably in five copies, to: Division of the 
Secretariat, 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 proposed rulemaking. All comments received 
may be posted without change, including any personal identifiers, 
contact information, or other personal information provided, to: 
https://www.regulations.gov. Do not submit confidential business 
information, trade secret information, or other sensitive or protected 
information that you do not want to be available to the public. If 
furnished at all, such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2010-0075, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Justin Jirgl, Compliance Officer, 
Office of Compliance and Field Operations, Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD 20814-4408; telephone: 
301-504-7814; email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

1. Statutory Authority

    Section 104(b)(1)(B) of the Consumer Product Safety Improvement Act 
(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.
    The CPSIA also sets forth a process for updating CPSC's durable 
infant or toddler standards when the voluntary standard upon which the 
CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA 
provides that if an organization revises a standard that has been 
adopted, in whole or in part, as a consumer product safety standard 
under this subsection, it shall notify the Commission. In addition, 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.

2. The FS Crib Standard

    Section 104(c) of the CPSIA treated cribs (both full-sized and non-
full-sized cribs) differently than other products covered by section 
104. Section 104(c) of the CPSIA stated that the standards for FS cribs 
would apply to persons (such as those owning or operating child care 
facilities and places of public accommodation) in addition to persons 
usually subject to consumer product safety rules.\1\ Pursuant to 
section 104(b)(1) and section 104(c) of the CPSIA, on December 28, 
2010, the Commission published a mandatory consumer product safety 
standard that incorporated by reference ASTM F1169-10, Standard 
Consumer Safety Specification for Full-Size Baby Cribs, codified under 
CPSC regulations at 16 CFR part 1219. (75 FR 81766).
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    \1\ Under section 104(c) of the CPSIA, the initial crib 
standards applied to: ``any person that--
    (A) Manufactures, distributes in commerce, or contracts to sell 
cribs;
    (B) based on the person's occupation, holds itself out as having 
knowledge of skill peculiar to cribs, including child care 
facilities and family child care homes;
    (C) is in the business of contracting to sell or resell, lease, 
sublet, or otherwise place cribs in the stream of commerce; or
    (D) owns or operates a place of accommodation affecting commerce 
(as defined in section 4 of the Federal Fire Prevention and Control 
Act of 1974 (15 U.S.C. 2203) applied without regard to the phrase 
`not owned by the Federal Government').''
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    On August 12, 2011, in Public Law No. 112-28, Congress amended 
section 104 and specifically addressed the revision of the crib 
standards, stating that any revision of the crib standards after their 
initial promulgation ``shall apply only to a person that manufactures 
or imports cribs,'' unless the Commission determines that application 
to any others covered by the initial crib standards is ``necessary to 
protect against an unreasonable risk to health or safety.'' If the 
Commission does apply the revised crib standard to additional persons, 
it must provide at least 12 months for those persons to come into 
compliance. The Commission is not expanding the applicability of the 
revised FS crib standard in this rule. Thus, the revised FS crib 
standard will apply to the same entities and in the same manner as 
other rules the Commission issues under section 104 of the CPSIA.

B. Revision to the ASTM Standard

    The ASTM standard for full-size cribs establishes performance 
requirements and test procedures to determine the structural integrity 
of full-size cribs. It also contains design requirements addressing 
entanglement on crib corner post extensions, and requirements for 
warning labels and instructional materials. In addition, the standard 
addresses bassinet, changing table, or similar accessories to a crib 
that attaches to or rests on a crib in the occupant retention area.
    The ASTM FS crib standard was revised in 2011, and the Commission 
incorporated by reference the revised standard as the mandatory FS crib 
standard on July 31, 2012 (77 FR 45242). The ASTM standard was revised 
again in 2013, and the Commission incorporated by reference the revised 
standard as the mandatory FS crib standard on December 9, 2013 (78 FR 
73692). On May 2, 2019, ASTM notified the Commission that it has 
revised ASTM's FS crib standard; the current ASTM standard is ASTM 
F1169-19, Standard Consumer Safety Specification for Full-Size Baby 
Cribs. Based on a review of the changes between the current CPSC 
standard, 16 CFR part 1219 and ASTM F1169-19, the Commission concludes 
that each change made in ASTM F1169-19 either improves the safety of FS 
cribs or is neutral in its safety impact.

[[Page 35295]]

    Section 8.4 of ASTM 1169 was revised to require all warning labels 
to be affixed to the product. Previous versions of ASTM F1169 required 
the highest priority warning messages (e.g., the suffocation warning) 
to be ``visible in [their] entirety when one short side and one long 
side of the crib are positioned in a corner formed by two vertical 
walls'' (Section 8.3.1); however, the provision allowed some additional 
lower-priority warning messages (e.g., strangulation and fall) to be 
placed in another location, as long as the ``visible'' warning 
identified the location of the additional warnings. ASTM 1169-19 
revised section 8.4 to make clear that all warnings, including lower-
priority warnings, must be affixed somewhere on the crib, and not 
merely referenced in a manual or instructions.
    The Commission concludes that this change adds clarity and improves 
the safety of the standard. The Commission determines that all warnings 
that are intended to be on a FS crib should be affixed to the product 
because on-product warnings stay with the product through multiple 
users, whereas an instruction manual could be discarded, lost, or 
otherwise not be available to another user of the product.
    ASTM F1169-19 also includes several non-substantive changes that do 
not affect the safety of FS cribs, such as spacing, grammar, and 
punctuation (e.g., ``in'' to ``in.''; ``manufacturers'' to 
``manufacturer's''; and ``as per'' to ``in accordance with''). Under 
section 1.5, Scope, ASTM added language stating that ASTM developed the 
standard in accordance with principles recognized by the World Trade 
Organization. In addition, under section 1.4, the word 
``environmental'' was added to the following sentence: ``It is the 
responsibility of the user of this standard to establish appropriate 
safety, health, and environmental practices and determine the 
applicability of regulatory limitations prior to use.'' The Commission 
concludes that these editorial changes and additions do not impact the 
safety of FS cribs.

C. Incorporation by Reference

    The Office of the Federal Register (OFR) has regulations concerning 
incorporation by reference. 1 CFR part 51. Under these regulations, 
agencies must discuss, in the preamble to the final rule, ways that the 
materials the agency incorporates by reference are reasonably available 
to interested persons and how interested parties can obtain the 
materials. In addition, the preamble to the final rule must summarize 
the material. 1 CFR 51.5(b).
    In accordance with the OFR's requirements, section B of this 
preamble summarizes the major provisions of the ASTM F1169-19 standard 
that the Commission incorporates by reference into 16 CFR part 1219. 
The standard is reasonably available to interested parties, and 
interested parties may purchase a copy of the standard from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959 USA; phone: 610-832-9585; www.astm.org. A copy of the 
standard can also be inspected at CPSC's Division of the Secretariat, 
U.S. Consumer Product Safety Commission, Room 820, 4330 East West 
Highway, Bethesda, MD 20814, telephone 301-504-7923.

D. The Congressional Review Act

    The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, 
before a rule may take effect, the agency issuing the rule must submit 
the rule, and certain related information, to each House of Congress 
and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must 
indicate whether the rule is a ``major rule.'' The CRA states that the 
Office of Information and Regulatory Affairs (OIRA) determines whether 
a rule qualifies as a ``major rule.'' Pursuant to the CRA, OIRA 
designated this rule as not a ``major rule,'' as defined in 5 U.S.C. 
804(2). In addition, to comply with the CRA, the Office of the General 
Counsel will submit the required information to each House of Congress 
and the Comptroller General.

E. Certification

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

F. Notice of Requirements

    In accordance with section 14(a)(3)(B)(iv) of the CPSA, the 
Commission has previously published a notice of requirements (NOR) for 
accreditation of third party conformity assessment bodies for testing 
FS cribs (73 FR 62965 (Oct. 22, 2008)). The NOR provided the criteria 
and process for our acceptance of accreditation of third party 
conformity assessment bodies for testing FS cribs to 16 CFR part 1219. 
The NOR is listed in the Commission's rule, ``Requirements Pertaining 
to Third Party Conformity Assessment Bodies.'' 16 CFR part 1112.
    The revision to section 8.4 concerning the on-product warning label 
clarifies the existing standard and does not require a new test. The 
requirement that the warning label be attached to the product can be 
assessed by visual inspection. Accordingly, there is no significant 
change in the way that third party conformity assessment bodies test 
these products for compliance with the FS crib standard. Laboratories 
would begin testing to the new standard when ASTM F1169-19 goes into 
effect, and the existing accreditations that the Commission has 
accepted for testing to this standard previously would also cover 
testing to the revised standard. Therefore, the existing NOR for this 
standard will remain in place, and CPSC-accepted third party conformity 
assessment bodies are expected to update the scope of the testing 
laboratories' accreditation to reflect the revised standard in the 
normal course of renewing their accreditation.

G. 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.'' 5 U.S.C. 553(b)(B). The Commission concludes that when the 
Commission updates a reference to an ASTM standard that the Commission 
has incorporated by reference under

[[Page 35296]]

section 104(b) of the CPSIA, notice and comment is not necessary.
    Under the process set out in section 104(b)(4)(B) of the CPSIA, 
when ASTM revises a standard that the Commission has previously 
incorporated by reference as a Commission standard for a durable infant 
or toddler product under section 104(b)(1)(b) of the CPSIA, that 
revision will become the new CPSC standard, unless the Commission 
determines that ASTM's revision does not improve the safety of the 
product. Thus, unless the Commission makes such a determination, the 
ASTM revision becomes CPSC's standard by operation of law. The 
Commission is allowing ASTM F1169-19 to become CPSC's new standard. The 
purpose of this direct final rule is merely to update the reference in 
the Code of Federal Regulations so that it accurately reflects the 
version of the standard that takes effect by statute. Public comment 
will not impact the substantive changes to the standard or the effect 
of the revised standard as a consumer product safety standard under 
section 104(b) of the CPSIA. Under these circumstances, notice and 
comment is not necessary. 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). ACUS recommended 
that agencies use the direct final rule process when they act under the 
``unnecessary'' prong of the good cause exemption in 5 U.S.C. 
553(b)(B). Consistent with the ACUS recommendation, the Commission is 
publishing this rule as a direct final rule because we do not expect 
any significant adverse comments.
    Unless we receive a significant adverse comment within 30 days, the 
rule will become effective on October 28, 2019. 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.

H. 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 RFA applies 
to any rule that is subject to notice and comment procedures under 
section 553 of the APA. Id. As explained above, the Commission has 
determined that notice and comment is not necessary for this direct 
final rule. Thus, the RFA does not apply. We also note the limited 
nature of this document, which updates the incorporation by reference 
to reflect the mandatory CPSC standard that takes effect under section 
104 of the CPSIA.

I. Paperwork Reduction Act

    The FS crib standard contains information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
revision made no changes to that section of the standard. Thus, the 
revision will not have any effect on the information collection 
requirements related to the standard.

J. 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.

K. Preemption

    Section 26(a) of the 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 CPSC 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 it becomes effective.

L. Effective Date

    Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, 
when a voluntary standard organization revises a standard upon which a 
consumer product safety standard 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. The Commission has not set a different effective date. Thus, 
in accordance with this provision, this rule takes effect 180 days 
after we received notification from ASTM of revision to this standard. 
As discussed in the preceding section, this is a direct final rule. 
Unless we receive a significant adverse comment within 30 days, the 
rule will become effective on October 28, 2019.

List of Subjects in 16 CFR Part 1219

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

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

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

0
1. The authority citation for part 1219 continues to read as follows:

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


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


Sec.  1219.2  Requirements for full-size baby cribs.

    Each full-size baby crib must comply with all applicable provisions 
of ASTM F1169-19, Standard Consumer Safety Specification for Full-Size 
Baby Cribs approved March 15, 2019. 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 this ASTM standard from ASTM International, 100 Barr Harbor 
Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-
832-9585; www.astm.org. You may inspect a copy at the Division of the 
Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 
East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at

[[Page 35297]]

the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

Alberta E. Mills,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2019-15601 Filed 7-22-19; 8:45 am]
 BILLING CODE 6355-01-P