[Federal Register Volume 84, Number 207 (Friday, October 25, 2019)]
[Rules and Regulations]
[Pages 57315-57319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23305]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[Docket No. CPSC-2017-0012]
16 CFR Part 1217
Revisions to Safety Standard for Toddler Beds
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In February 2017, the U.S. Consumer Product Safety Commission
(CPSC) published an update to the consumer product safety standard for
toddler beds. The standard incorporated by reference the applicable
ASTM voluntary standard. ASTM has since published two revised versions
of the voluntary standard for toddler beds. We are publishing this
direct final rule revising the CPSC's mandatory standard for toddler
beds to incorporate by reference, the most recent version of the
applicable ASTM standard.
DATES: The rule is effective on January 27, 2020, unless we receive
significant adverse comment by November 25, 2019. If we receive timely
significant adverse comments, we will publish notification in the
Federal Register, withdrawing this direct final rule before its
effective date. The incorporation by reference of the publication
listed in this rule is approved by the Director of the Federal Register
as of January 27, 2020.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2017-
0012, 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
[[Page 57316]]
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: www.regulations.gov, and insert the docket
number, CPSC-2017-0012, 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 these standards 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 Toddler Beds Standard
On April 20, 2011, the Commission published \1\ a final rule
issuing a mandatory standard for toddler beds that incorporated by
reference the standard in effect at that time, ASTM F1821-09, Standard
Consumer Specification for Toddler Beds, with certain modifications to
make the standard more stringent. 76 FR 22019. The standard was
codified in the Commission's regulations at 16 CFR part 1217.
---------------------------------------------------------------------------
\1\ A correction notice was published (76 FR 27882, May 13,
2011) because the Office of the Federal Register inadvertently
omitted the last two sections and figures from the April 20, 2011
Federal Register notice.
---------------------------------------------------------------------------
ASTM has revised the toddler beds standards several times since
issuance of the rule:
On September 25, 2013, ASTM officially notified the CPSC
that ASTM published a revised 2013 version of ASTM F1821. The
Commission published a Federal Register notice revising the
Commission's toddler bed standard to reference ASTM F1821-13, effective
March 24, 2014 (78 FR 73692, December 9, 2013).
On April 6, 2015, ASTM officially notified the CPSC that
ASTM had revised ASTM's toddler bed standard again and had published a
revised 2015 version of ASTM F1821. Due to an inadvertent omission in
the revised ASTM standard, the Commission voted \2\ unanimously to
retain the existing consumer product safety standard.
---------------------------------------------------------------------------
\2\ https://www.cpsc.gov/th/content/rca-astm%E2%80%99s-revisions-to-toddler-bed-standard.
---------------------------------------------------------------------------
On December 8, 2016, ASTM officially notified the CPSC
that it had published a revised 2016 version of ASTM F1821. The
Commission published a Federal Register notice incorporating ASTM
F1821-16, Standard Consumer Safety Specifications for Toddler Beds,
effective June 6, 2017, in 16 CFR part 1217 as the safety standard for
toddler beds. (82 FR 11317, February 22, 2017).
Since publication of ASTM F1821-16, the current mandatory standard,
ASTM has published revised versions of ASTM F1821 in 2018 and 2019.
These revised versions of the standard not only update the standard to
reflect clarifications to testing for consistency, the revisions also
harmonize the standard with other juvenile product standards. ASTM
F1821-19 was approved and published in June 2019. ASTM officially
notified the Commission of this revision on July 30, 2019. Recently,
ASTM published an editorial version of the 2019 standard, ASTM F1821-
19[egr]1, which corrects two typographical errors, but does
not change the technical content of the 2019 version. The rule is
incorporating ASTM F1821-19[egr]1 as the mandatory standard.
B. Revisions to the ASTM Standard
The ASTM standard for toddler beds, ASTM F1821-19[egr]1
defines a ``toddler bed'' as any bed sized to accommodate a full-size
crib mattress having minimum dimensions of 51\5/8\ inches (1310 mm) in
length and 27\1/4\ inches (690 mm) in width and is intended to provide
free access and egress to a child not less than 15 months of age and
who weighs no more than 50 pounds (27.7 kg). The standard has
provisions that address the following hazards: Entrapment in bed end
structures, entrapment between the guardrail and side rail, and
entrapment in the mattress support system. In addition, the ASTM
standard has provisions addressing corner post extensions, which may
catch cords, ribbons, necklaces or clothing. Under section 104(b)(4)(B)
of the CPSIA, unless the Commission determines that ASTM's revision to
a voluntary standard that is a CPSC mandatory standard ``does not
improve the safety of the consumer product covered by the standard,''
the revised voluntary standard becomes the new mandatory standard. As
discussed below, the Commission determines that the changes made in
ASTM F1821-19[egr]1 will either improve the safety of
toddler beds or are neutral with respect to safety. Therefore, the
Commission will allow the revised voluntary standard to become
effective as a mandatory consumer product safety standard under the
statute, effective January 27, 2020.
We summarize the differences and the CPSC's assessment of the
revisions to ASTM F1821 below.
1. Differences Between 16 CFR Part 1217 and ASTM F1821-18
ASTM F1821-18, was approved and published in December 2018, and was
the first revision of the standard following ASTM F1821-16, the current
mandatory standard. ASTM did not notify CPSC of this update because
ASTM was waiting to make an additional change to the standard. ASTM
F1821-18 made the following changes:
Section 1.7 states ``This standard does not purport to
address all of the safety concerns, if any, associated with its use. It
is the responsibility of the user of this standard to establish
appropriate
[[Page 57317]]
safety, health, and environmental practices and determine the
applicability of regulatory limitations prior to use.'' (Italicized
language was added to the standard). We conclude that adding the word
``environmental'' does not change the safety of toddler beds because
this does not relate specifically to the toddler bed requirements.
The 2018 version of the ASTM standard added language
(Section 1.8), which ASTM intends to add to all of its standards,
stating that ASTM developed the standard in accordance with principles
recognized by the World Trade Organization. We conclude that adding
this text does not change the safety of toddler beds because the
language pertains to voluntary standards development generally.
The terminology section has a new definition for corner
posts, ``3.1.3 corner post, n--vertical post located at the corner of a
product.'' This definition does not change any other aspects of the
standard. Therefore, we conclude this addition is neutral to the safety
of the toddler beds.
An editorial change was made in section 7.8.3 deleting the
period in ``15-lbf.'' to ``15-lbf'' We conclude this editorial change
is neutral to toddler bed safety.
2. Differences Between 16 CFR Part 1217 and ASTM F1821-
19[egr]1
ASTM F1821-19 contains changes to the performance requirements for
section 6.2 Mattress Support System Attachment and Side Rails
Integrity, as well as the testing requirements in section 7.3 Mattress
Support System Attachment and Side Rails Integrity Tests. Some toddler
beds have separate mattress support systems and side rail attachments
to the end structure, so this change clarified that both the mattress
support system and the side rail attachments must be tested. The
testing requirement provide specific instructions for the mattress
support system (section 7.3.2) and the side rails (section 7.3.3). We
consider the clarification of performance and test requirements for
mattress support system attachment and side rails to be an improvement
to the safety of toddler beds because the change removes ambiguity and
it assures more consistent testing.
Section 7.3.3 Side Rails of ASTM F1821-19 incorporates the previous
section 7.3.4 requirements into section 7.3.3.2. However, publication
of ASTM F1821-19 included the previous section 7.3.4 requirements, thus
repeating the section 7.3.3.2 requirements. ASTM published ASTM F1821-
19[egr]1 to make two editorial corrections: Deleting section
7.3.4 and correcting the word ``load'' in section 7.3.3.2 to ``force.''
These editorial corrections do not change the voluntary standard
requirements, but merely correct drafting errors, and therefore, the
standard is simply noted with the epsilon.
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 F1821-
19[egr]1 standard that the Commission incorporates by
reference into 16 CFR part 1217. 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. 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, 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 toddler beds 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 and 16 CFR part
1307, 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.
E. Notice of Requirements
In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the
Commission has previously published a notice of requirements (NOR) for
accreditation of third party conformity assessment bodies for testing
toddler beds (76 FR 22030, April 20, 2011). The NOR provided the
criteria and process for our acceptance of accreditation of third party
conformity assessment bodies for testing toddler beds to 16 CFR part
1217. The NORs for all mandatory standards for durable infant or
toddler products are listed in the Commission's rule, ``Requirements
Pertaining to Third Party Conformity Assessment Bodies,'' codified at
16 CFR part 1112.
Testing laboratories that have demonstrated competence for testing
in accordance with ASTM F1821-16 have the competence to test in
accordance with the revised standard ASTM F1821-19[egr]1.
Therefore, the Commission considers the existing CPSC-accepted
laboratories for testing to ASTM F1821-16 to be capable of testing to
ASTM F1821-19[egr]1 as well. Therefore, the Commission
considers the existing accreditations that the Commission has accepted
for testing to this standard also to cover testing to the revised
standard. Accordingly, 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.
F. 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 57318]]
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 F1821-19[egr]1 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 reflects
accurately 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 are not necessary. In Recommendation 95-4, the
Administrative Conference of the United States (ACUS) endorsed direct
final rulemaking as an appropriate procedure to expedite promulgating
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 January 27, 2020. 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.
G. 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, the Commission has determined
that notice and comment are 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.
H. Paperwork Reduction Act
The standard for toddler beds contains information collection
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). The revisions made no changes to that section of the standard.
Thus, the revisions will not have any effect on the information
collection requirements related to the standard.
I. 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.
J. 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.
K. 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 January 27, 2020.
L. 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.
List of Subjects in 16 CFR Part 1217
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 1217--SAFETY STANDARD FOR TODDLER BEDS
0
1. Revise the authority citation for part 1217 to read as follows:
Authority: Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (15 U.S.C.
2056a); Sec 3, Pub. L. 112-28, 125 Stat. 273.
0
2. Revise Sec. 1217.2 to read as follows:
[[Page 57319]]
Sec. 1217.2 Requirements for toddler beds.
Each toddler bed shall comply with all applicable provisions of
ASTM F1821-19[egr]1, Standard Consumer Safety Specification
for Toddler Beds, approved June 1, 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
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, U.S. Consumer Product Safety Commission.
[FR Doc. 2019-23305 Filed 10-24-19; 8:45 am]
BILLING CODE 6355-01-P