[Federal Register Volume 84, Number 173 (Friday, September 6, 2019)]
[Rules and Regulations]
[Pages 46878-46882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19286]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1229

[Docket No. CPSC-2015-0028]


Revisions to Safety Standard for Infant Bouncer Seats

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In September 2017, the U.S. Consumer Product Safety Commission 
(CPSC) published a consumer product safety standard for infant bouncer 
seats under section 104 of the Consumer Product Safety Improvement Act 
of 2008 (CPSIA). The standard incorporated by reference the ASTM 
voluntary standard that was in effect for infant bouncer seats at the 
time, with modified requirements for warning labels. ASTM has since 
revised the voluntary standard for infant bouncer seats. The CPSIA 
provides a process for when a voluntary standards organization updates 
a standard that the Commission incorporated by reference in a section 
104 rule. Consistent with that process, this direct final rule revises 
the mandatory standard for infant bouncer seats to incorporate by 
reference the updated version of the ASTM standard.

DATES: The rule is effective on December 14, 2019, unless CPSC receives 
a significant adverse comment by October 7, 2019. If CPSC receives such 
a comment, it will publish a notice in the Federal Register, 
withdrawing this direct final rule before its effective date. The 
incorporation by reference of the publication listed in this rule is

[[Page 46879]]

approved by the Director of the Federal Register as of December 14, 
2019.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2015-
0028, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: www.regulations.gov. Follow the instructions for 
submitting comments provided on the website. To ensure timely 
processing of comments, please submit all electronic comments through 
www.regulations.gov, rather than by email to CPSC.
    Written Submissions: Submit written comments by mail, hand 
delivery, or courier to: Division of the Secretariat, U.S. Consumer 
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, 
MD 20814; telephone (301) 504-7923.
    Instructions: All submissions must include the agency name and 
docket number for this notice. CPSC may post all comments, 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 that you do not want to be 
available to the public. If furnished at all, submit such information 
by mail, hand delivery, or courier.
    Docket: For access to the docket to read background documents or 
comments, go to: http://www.regulations.gov, and insert the docket 
number, CPSC-2015-0028, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Keysha Walker, Compliance Officer, 
U.S. Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-6820; email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background and Statutory Authority

    Section 104 of the CPSIA requires the Commission to assess the 
effectiveness of voluntary standards for durable infant or toddler 
products and adopt mandatory standards for these products. 15 U.S.C. 
2056a(b)(1). The mandatory standard must be ``substantially the same 
as'' the voluntary standard, or may be ``more stringent than'' the 
voluntary standard, if the Commission determines that more stringent 
requirements would further reduce the risk of injury associated with 
the product. Id.
    Under this authority, the Commission adopted a mandatory rule for 
infant bouncer seats in 16 CFR part 1229. The rule incorporated by 
reference ASTM F2167-17, Standard Consumer Safety Specification for 
Infant Bouncer Seats, with more stringent requirements for the content 
and placement of warning labels. 82 FR 43470 (Sep. 18, 2017). At the 
time the Commission published the final rule, ASTM F2167-17 was the 
current version of the voluntary standard. ASTM has since revised the 
voluntary standard, adopting ASTM F2167-19.\1\
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    \1\ ASTM approved ASTM F2167-19 on May 1, 2019, and published it 
in June 2019.
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    The CPSIA specifies the process for when a voluntary standards 
organization revises a standard that the Commission incorporated by 
reference in a section 104 rule. First, the voluntary standards 
organization must notify the Commission of the revision. Once the 
Commission receives this notification, the statute further provides 
that ``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.'' 15 U.S.C. 2056a(b)(4)(B).
    ASTM notified the Commission on June 17, 2019 that it had updated 
the infant bouncer seat standard. As this preamble discusses, the 
revised standard includes additional warning label content and 
placement requirements that are consistent with those in 16 CFR part 
1229. Accordingly, the Commission is not determining that ``the 
proposed revision does not improve the safety of the consumer product'' 
and is not specifying a later effective date than that provided in the 
statute. Therefore, under the CPSIA, ASTM F2167-19 will become the 
mandatory standard for infant bouncer seats effective December 14, 
2019, 180 days after CPSC received ASTM's notice.

B. Revised ASTM Standard

    The ASTM standard for infant bouncer seats includes performance 
requirements and test methods, as well as requirements for warning 
labels and instructional literature, to address hazards to children 
associated with infant bouncer seats.
    ASTM F2167-19 includes revised requirements for the content and 
visibility of on-product warning labels. It also includes editorial 
revisions that do not alter the substantive requirements or affect 
safety. As described below, the revisions in ASTM F2167-19 make the 
standard consistent with the more stringent requirements that the 
Commission included in 16 CFR part 1229. For this reason, the 
Commission concludes that the revised standard maintains the level of 
safety that the existing regulation provides. Because the Commission 
declines to determine that the revision ``does not improve the safety'' 
of infant bouncer seats, the revised ASTM standard will become the new 
CPSC standard.
    The following are the revised portions of the ASTM standard, as 
well as a description of how they compare with the existing 
requirements in 16 CFR part 1229.

1. Visibility of Warning Labels

    Section 7.11.3.1 in ASTM F2167-19 provides requirements for the 
visibility of warnings when an occupant is in the infant bouncer seat. 
It requires testers to place a CAMI dummy in the product, with 
restraints engaged, and verify whether the required warnings are 
unobscured by the dummy, and are visible above an imaginary horizontal 
line that crosses the torso of the dummy. The standard also provides a 
figure demonstrating this requirement. In addition, it includes a note 
stating that the warning placement requirement only applies to portions 
of the warning that are in English.
    These requirements, and the accompanying figure, are consistent 
with the more stringent requirements that the Commission included in 16 
CFR part 1229. The only difference is that 16 CFR part 1229 does not 
include the note that the visibility requirements only apply to the 
English portion of warning labels. CPSC staff is satisfied with this 
change because the warnings are only required to be in English (section 
8.4.1).
    Section 8.4.3 in the previous version of the standard, ASTM F2167-
17, required that warnings be ``conspicuous and permanent''; ASTM 
F2167-19 adds to that requirement that warnings also ``comply with 
placement location where specified.'' Although 16 CFR part 1229 does 
not include this additional language, it is consistent with CPSC's 
regulation, which includes warning label visibility requirements.

[[Page 46880]]

2. Warning Label Content

    Sections 8.5.1.1 and 8.5.2.1 in ASTM F2167-19 differ from the 2017 
version of the ASTM standard by requiring an additional phrase in the 
warning statements that labels must address regarding fall hazards 
(8.5.1.1) and suffocation hazards (8.5.2.1). The previous standard, 
ASTM F2167-17, required as one part of these statements a warning to 
``ALWAYS use restraints. Adjust to fit snugly.'' Under the revised 
standard, this portion of the warnings must indicate: ``ALWAYS use 
restraints and adjust to fit snugly, even if baby falls asleep.'' This 
revised wording is the same as the wording that 16 CFR part 1229 
requires.

3. Editorial Revisions

    ASTM F2167-19 also includes editorial revisions that do not affect 
the substantive requirements in the standard, or safety. These changes 
are discussed below.
    Section 1.7 states a precautionary caveat about the safety concerns 
the standard addresses. In the previous version of the statement, the 
caveat instructed users to ``establish appropriate safety and health 
practices''; ASTM F2167-19 revises this to instruct users to 
``establish appropriate safety, health, and environmental practices.''
    Section 8.4.6.2 of ASTM F2167-19 corrects a previously omitted word 
by adding ``preceded'' to the requirement that warning statements be 
preceded by bullet points.
    Sections 8.5.3, 9.2.1, and 9.2.2 revise the figure numbers 
referenced because the addition of the warning placement figure 
described above resulted in renumbering other figures in the standard.

C. Direct Final Rule Process

    In this notice, the Commission is updating the version of the ASTM 
standard incorporated by reference in 16 CFR part 1229 to reflect the 
revised standard that takes effect by operation of law under the CPSIA. 
The Commission is issuing this rule as a direct final rule. Although 
the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally 
requires agencies to provide notice of a rule and an opportunity for 
interested parties to comment on it, the APA provides an exception to 
this when an agency ``for good cause finds'' that notice and comment is 
``impracticable, unnecessary, or contrary to the public interest.'' Id. 
553(b), (c).
    When the Commission updates a reference to an ASTM standard that 
the Commission has incorporated by reference into a rule under section 
104 of the CPSIA, notice and the opportunity to comment is unnecessary. 
This is because, under the terms of the CPSIA, such an update 
automatically becomes CPSC's mandatory standard, unless the Commission 
takes action to prevent it. 15 U.S.C. 2056a(b)(4)(B). With respect to 
ASTM F2167-19, the Commission is not taking action to prevent it from 
becoming the new mandatory standard. Therefore, the revised ASTM 
standard will become CPSC's standard by operation of law. Moreover, the 
revised infant bouncer seats standard aligns with the Commission's 
existing mandatory standard, effectively maintaining the same 
requirements. Public comments would not influence the substantive 
changes to the standard or the effect of the revised standard under 
section 104 of the CPSIA. Therefore, notice and comment are 
unnecessary.
    The purpose of this direct final rule is to update the edition of 
the standard the regulation references, so that it accurately reflects 
the standard in effect under the statute. The Administrative Conference 
of the United States (ACUS) recommends that agencies use direct final 
rulemaking when the ``unnecessary'' prong of the good cause exemption 
in the APA applies. 60 FR 43108, 43111 (Aug. 18, 1995). With a direct 
final rule, the rule takes effect on the stated effective date, unless 
the agency receives an adverse comment within a specified time. This 
allows the agency to expedite noncontroversial rules, while still 
allowing for public comment. Id. at 43111. A direct final rule is 
appropriate here because the Commission believes this rule is 
noncontroversial and will not elicit significant adverse comments.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notice, the rule will become effective on December 14, 2019. 
Consistent 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 challenges to the rule's 
underlying premise or approach, or would be ineffective or unacceptable 
without change.'' Id. at 43111.
    If the Commission receives a significant adverse comment, it will 
publish a notice withdrawing this direct final rule before the 
effective date. Depending on the comment and other relevant 
considerations, the Commission may address the adverse comment in a 
subsequent direct final rule, or publish a notice of proposed 
rulemaking, providing an opportunity for public comments.

D. Incorporation by Reference

    Section 1229.2 of the direct final rule incorporates by reference 
ASTM F2167-19. The Office of the Federal Register (OFR) has regulations 
regarding incorporation by reference. 1 CFR part 51. These regulations 
require the preamble to a final rule to summarize the material and 
discuss the ways in which the material the agency incorporates by 
reference is reasonably available to interested parties, and how 
interested parties can obtain the material. 1 CFR 51.5(b).
    In accordance with the OFR regulations, B. Revised ASTM Standard of 
this preamble summarizes the major provisions of the ASTM F2167-19 
standard that the Commission incorporates by reference into 16 CFR part 
1229. Interested parties may obtain a copy of ASTM F2167-19 from ASTM, 
through its website (http://www.astm.org), or by mail from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959. Alternatively, interested parties may inspect a copy of 
the standard at CPSC's Division of the Secretariat.

E. Certification

    The Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) 
requires manufacturers of products that are 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, 
to certify that the product complies with all applicable CPSC 
requirements. 15 U.S.C. 2063(a). For children's products, the 
manufacturer must base this certification on tests of a sufficient 
number of samples by a third party conformity assessment body 
accredited by CPSC to test according to the applicable requirements. 
Id. 2063(a)(2). These testing and certification requirements apply to 
products for which the Commission issues rules under CPSIA section 104, 
because they are consumer product safety standards. See id. 2056a(b).
    Because infant bouncer seats are children's products, a CPSC-
accepted third party conformity assessment body must test samples of 
these products. These products also must comply with all other 
applicable CPSC requirements, such as the lead content requirements in 
section 101 of the CPSIA,\2\ the phthalates prohibitions in section 108 
of the CPSIA,\3\ the tracking label requirements in section 14(a)(5) of 
the

[[Page 46881]]

CPSA,\4\ and the consumer registration form requirements in section 
104(d) of the CPSIA.\5\
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    \2\ 15 U.S.C. 1278a.
    \3\ 15 U.S.C. 2057c.
    \4\ 15 U.S.C. 2063(a)(5).
    \5\ 15 U.S.C. 2056a(d).
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F. Notice of Requirements

    As discussed above, an accredited third party conformity assessment 
body must test children's products that are subject to a children's 
product safety rule for compliance with the applicable rule. 15 U.S.C. 
2063(a)(2). The Commission must publish a notice of requirements (NOR) 
for third party conformity assessment bodies to obtain accreditation to 
assess conformity with a children's product safety rule. Id. 
2063(a)(3)(A).
    As the CPSA requires, the Commission published an NOR for 
accreditation of third party conformity assessment bodies for testing 
infant bouncer seats. 15 U.S.C. 2063(a)(3)(B)(vi); 82 FR 43470 (Sep. 
18, 2017). The NOR provided the criteria and process for CPSC to accept 
accreditation of third party conformity assessment bodies for testing 
infant bouncer seats to 16 CFR part 1229. The NOR is listed in the 
Commission's rule, ``Requirements Pertaining to Third Party Conformity 
Assessment Bodies'' in 16 CFR part 1112.
    The revised provisions regarding on-product warning labels in ASTM 
F2167-19 are consistent with the existing requirements in 16 CFR part 
1229. Accordingly, the revisions do not create a significant change in 
the way that third party conformity assessment bodies test these 
products for compliance with the infant bouncer seats standard. 
Laboratories will begin testing to the new standard when ASTM F2167-19 
goes into effect, and the existing accreditations that the Commission 
has accepted for testing to this standard will 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 will need to update the scope of their accreditations to reflect 
the revised standard in the normal course of renewing their 
accreditations.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) requires 
agencies to consider the potential economic impact of a proposed and 
final rule on small entities, including small businesses, and prepare 
regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies 
when an agency is required to publish notice of a rulemaking. Id. As 
discussed in C. Direct Final Rules Process of this preamble, the 
Commission has determined that notice and the opportunity to comment 
are unnecessary for this rule, and therefore, the Commission is not 
required to publish notice of this rulemaking because it falls under 
the good cause exception in the APA. Id. 553(b). Accordingly, the RFA 
does not apply to this rulemaking. Nevertheless, we note that this rule 
will have minimal economic impacts because it incorporates by reference 
a standard that is consistent with the existing mandatory requirements.

H. Paperwork Reduction Act

    The current mandatory standard for infant bouncer seats includes 
requirements for labeling and instructional literature that constitute 
a ``collection of information,'' as defined in the Paperwork Reduction 
Act (PRA; 44 U.S.C. 3501-3521). The revised mandatory standard does not 
substantively alter these requirements. The Commission took the steps 
required by the PRA for information collections when it adopted 16 CFR 
part 1229, including obtaining approval and a control number. Because 
the information collection is unchanged, the revision does not affect 
the information collection requirements or approval related to the 
standard.

I. 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.

J. Environmental Considerations

    CPSC's regulations list categories of agency actions that 
``normally have little or no potential for affecting the human 
environment.'' 16 CFR 1021.5(c). Such actions qualify as ``categorical 
exclusions'' under the National Environmental Policy Act (42 U.S.C. 
4321-4370m-12), which do not require an environmental assessment or 
environmental impact statement. One categorical exclusion listed in 
CPSC's regulations is for rules or safety standards that ``provide 
design or performance requirements for products.'' 16 CFR 1021.5(c)(1). 
This rule falls within the categorical exclusion, so no environmental 
assessment or environmental impact statement is required.

K. Preemption

    Under the CPSA, no state or political subdivision of a state may 
establish or continue in effect a requirement dealing with the same 
risk of injury as a Federal consumer product safety standard under the 
CPSA unless the state requirement is identical to the Federal standard. 
15 U.S.C. 2075(a). However, states or political subdivisions of states 
may apply to CPSC for an exemption, allowing them to establish or 
continue such a requirement if the state requirement ``provides a 
significantly higher degree of protection from [the] risk of injury'' 
and ``does not unduly burden interstate commerce.'' Id. 2075(c).
    Section 104 of the CPSIA refers to the rules issued under that 
section as ``consumer product safety standards,'' and states that a 
revised standard ``is considered a consumer product safety standard 
issued by the Commission under section 9'' of the CPSA. 15 U.S.C. 
2056a(b)(1), (b)(4)(B). Accordingly, consumer product safety standards 
that the Commission creates or revises under CPSIA section 104 preempt 
state and local requirements in accordance with the preemption 
provisions in the CPSA.

L. Effective Date

    When a voluntary standards organization revises a standard that the 
Commission adopted as a mandatory standard under section 104 of the 
CPSIA, the revised standard automatically becomes the new mandatory 
standard effective 180 days after the Commission receives notification. 
15 U.S.C. 2056a(b)(4)(B). The Commission may prevent this automatic 
effective date by either publishing notice of a later effective date, 
or rejecting the revision. Id. The Commission is taking neither of 
those actions with respect to the standard on infant bouncer seats. The 
Commission believes that the statutory effective date is reasonable 
because the revised standard is consistent with the existing mandatory 
standard. Therefore, ASTM F2167-19 automatically will take effect as 
the new mandatory standard on December 14, 2019, 180 days after the

[[Page 46882]]

Commission received notice of the revision on June 17, 2019.
    As a direct final rule, unless the Commission receives a 
significant adverse comment within 30 days of this notice and publishes 
a notice withdrawing this rule by the effective date, the rule will 
become effective on December 14, 2019.

List of Subjects in 16 CFR Part 1229

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

    For the reasons discussed in the preamble, the Commission amends 16 
CFR part 1229 as follows:

PART 1229--SAFETY STANDARD FOR INFANT BOUNCER SEATS

0
1. The authority citation for part 1229 continues to read as follows:

    Authority: Sec. 104, Public Law 110-314, 122 Stat. 3016 (15 
U.S.C. 2056a).


0
2. Revise Sec.  1229.2 to read as follows:


Sec.  1229.2  Requirements for infant bouncer seats.

    Each infant bouncer seat must comply with all applicable provisions 
of ASTM F2167-19, Standard Consumer Safety Specification for Infant 
Bouncer Seats, approved May 1, 2019. 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 of this ASTM 
standard from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, 
West Conshohocken, PA 19428-2959; 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 the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected], or go to: 
www.archives.gov/federal-register/cfr/ibr-locations.html.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2019-19286 Filed 9-5-19; 8:45 am]
BILLING CODE 6355-01-P