[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Rules and Regulations]
[Pages 10565-10568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03106]


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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2011-0019]

16 CFR Part 1224


Revisions to Safety Standard for Portable Bed Rails

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In February 2012, the U.S. Consumer Product Safety Commission 
(CPSC) issued a consumer product safety standard for portable bed 
rails. The standard incorporated by reference the applicable ASTM 
voluntary standard. We are publishing this direct final rule revising 
the CPSC's mandatory standard for portable bed rails to incorporate by 
reference the most recent version of the applicable ASTM standard.

DATES: The rule is effective on May 20, 2020, unless we receive 
significant adverse comment by March 26, 2020. 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 May 20, 2020.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0019, 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 electronically confidential 
business information, trade secret information, or other sensitive or 
protected information that you do not want to be available to the 
public. If you wish to submit such information please submit it 
according to the instructions for written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number, CPSC-2011-0019, 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].

[[Page 10566]]


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 Portable Bed Rails Standard

    On February 29, 2012, the Commission published a final rule issuing 
a mandatory standard for portable bed rails that incorporated by 
reference the standard in effect at that time, ASTM F2085-12, Standard 
Consumer Specification for Portable Bed Rails. 77 FR 12182. The ASTM 
standard for portable bed rails, ASTM F2085, Standard Consumer Safety 
Specification for Portable Bed Rails, applies to portable bed rails 
intended to be installed on an adult bed to prevent children from 
falling out of bed. These bed rails are intended for children who can 
get in and out of an adult bed unassisted (typically from 2 to 5 years 
of age). The standard was codified in the Commission's regulations at 
16 CFR part 1224. Since publication of ASTM F2085-12, the current 
mandatory standard, ASTM has published one revision to ASTM F2085. ASTM 
F2085-19 was approved and published in November 2019. ASTM officially 
notified the Commission of this revision on November 22, 2019. The rule 
is incorporating ASTM F2085-19 as the mandatory standard.

B. Revisions to the ASTM Standard

    Under section 104(b)(4)(B) of the CPSIA, unless the Commission 
determines that ASTM's revision of 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 F2085-19 are neutral with 
respect to the safety of portable bed rails. Therefore, the Commission 
will allow the revised voluntary standard to become effective as a 
mandatory consumer product safety standard under the statute, effective 
May 20, 2020.

Differences Between 16 CFR Part 1224 and ASTM F2085-19

1. Reapproval Ballot
    ASTM has published only one revision since the 2012 version. 
However, in May 2019, ASTM passed a reapproval ballot that made minor 
editorial revisions. This reapproved standard, ASTM F2085-12R19, 
included the following changes:
     In section, 1.7 ``safety and health'' was changed to 
``safety, health, and environmental.''
     Section 1.8 was added, stating that ASTM developed the 
standard in accordance with principles recognized by the World Trade 
Organization.
     Title of D3359 was updated from ``Test Methods for Measure 
Adhesion by Tape Test'' to ``Test Methods for Rating Adhesion by Tape 
Test.''
     In subsection 9.3, ``san'' was changed to ``sans'' (for 
``sans serif'').
    These changes all constitute minor editorial changes that do not 
have any impact on the safety of portable bedrails.
2. ASTM F2085-19
    In November 2019, ASTM revised ASTM F2085-12R19. The resulting 
standard, ASTM F2085-19, includes the revisions listed above, as well 
as the changes below:

Non-substantive changes

     Two of the footnotes that were in Section 7, which provide 
explanatory information, such as how to measure thickness and the 
definition of the ``indentation load,'' have been moved to Notes within 
the text. Notes and footnotes are both considered to be nonmandatory 
text, for information only. ASTM's form and style guidelines say that 
the distinction is that footnotes are meant only for availability 
information (references, sources of supply) while notes are meant to 
provide additional (nonmandatory) information. Therefore, the ASTM 
editor moved the footnotes.
     Changes to unit expressions to bring the standard into 
accordance with ASTM form and style guidelines. For example, the 
revision added a repeater unit when expressing a range--1 in. to 2 in., 
instead of 1 to 2 in.
    All of the non-substantive changes made in ASTM F2085-19 are 
neutral regarding safety for portable bed rails because they are 
editorial in nature.

Substantive change

    The revisions that resulted in ASTM F2085-19 made one substantive 
change. This change affects test platform 2, which is a standard, twin 
size, innerspring, thick mattress covered by a sheet. The mattress was 
chosen to assess the influence of mattress thickness on bedrail 
performance. The sheet simulates common use patterns. ASTM F2085-12 
specified the fiber content of the sheet as a white, 50/50 cotton/
polyester blend. Reports from test labs have indicated difficulty 
sourcing a sheet that is marketed as a 50/50 blend and can be verified 
to be a 50/50 blend. Test labs requested that the sheet content change 
to 60/40 cotton/polyester, a blend more consistent with twin sheets on 
the consumer market, and therefore, easier to source. Before ASTM 
balloted this change, Engineering Sciences consulted with staff of the 
Laboratory Sciences Division of Mechanical Engineering (LSM), regarding 
the availability of 50/50 blend sheets. LSM staff concurred with the 
difficulty of sourcing a 50/50 blend sheet and reported no objections 
to the change.
    CPSC does not anticipate that the change will affect safety. LSM 
staff notes that the standard continues to specify the thread count of 
the sheet as 100 to 300 threads per inch, and staff assesses the thread 
count range contributes more to friction than the specified change in 
fiber content. LSM staff has not observed any differences in testing 
qualitatively. Thus, staff believes that changing the sheet source from 
a 50/50 blend to a 60/40 blend would not

[[Page 10567]]

affect how a technician performs the test or alter the results of the 
testing. Therefore, we conclude that this change is neutral regarding 
safety while increasing the ease of sourcing the test materials.

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 A of this 
preamble summarizes the major provisions of the ASTM F2085-19 standard 
that the Commission incorporates by reference into 16 CFR part 1224. 
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 portable bed rails 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 
portable bed rails (77 FR 31102, May 24, 2012). The NOR provided the 
criteria and process for our acceptance of accreditation of third party 
conformity assessment bodies for testing portable bed rails to 16 CFR 
part 1224. 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.
    The revision to the test platform 2 provision (Section 7.1.2.1) 
changes the fiber content and color of the sheet covering the mattress, 
but does not require a new test or any changes to the test methodology. 
Testing laboratories that are currently CPSC-accepted, have 
demonstrated competence for testing in accordance with ASTM F2085-12, 
and will have the competence to source a new sheet and conduct the 
testing to the new standard under the revised standard ASTM F2085-19. 
Therefore, the Commission considers the existing CPSC-accepted 
laboratories for testing to ASTM F2085-12 to be capable of testing to 
ASTM F2085-19 as well. Accordingly, the existing NOR for this standard 
will remain in place, and CPSC-accepted third party conformity 
assessment bodies are expected in the normal course of renewing their 
accreditation to update the scope of the testing laboratories' 
accreditation to reflect the revised standard.

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 section 104(b) of the CPSIA, notice 
and comment are 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 F2085-19 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 (CFR) so that it reflects accurately 
the version of the standard that takes effect by statute. The rule 
updates the reference in the CFR, but under the terms of the CPSIA, 
ASTM F2085-19 takes effect as the new CPSC standard for portable 
bedrails, even if the Commission did not issue this rule. Thus, 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 May 20, 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. As noted, this rule merely

[[Page 10568]]

updates a reference in the CFR to reflect a change that occurs by 
statute.
    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 merely 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 portable bed rails 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 have no 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 where 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 
deems rules issued there under ``consumer product safety rules.'' 
Therefore, once a rule issued under section 104 of the CPSIA takes 
effect, it will preempt in accordance with section 26(a) of the CPSA.

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 May 20, 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, this rule 
does not qualify as a ``major rule,'' as defined in 5 U.S.C. 804(2). 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 1224

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

    For the reasons stated above, the Commission amends 16 CFR part 
1224 as follows:

PART 1224--SAFETY STANDARD FOR PORTABLE BED RAILS

0
1. Revise the authority citation for part 1224 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.  1224.2 to read as follows:


Sec.  1224.2  Requirements for portable bed rails.

    Each portable bed rail as defined in ASTM F2805-19, Standard 
Consumer Safety Specification for Portable Bed Rails, approved on 
November 1, 2019, must comply with all applicable provisions of ASTM 
F2805-19. 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, PO 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. 2020-03106 Filed 2-24-20; 8:45 am]
BILLING CODE 6355-01-P