[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