[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]
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