[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Rules and Regulations]
[Pages 4961-4967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28362]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1223

[Docket No. CPSC-2013-0025]


Revisions to Safety Standard for Infant Swings

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In November 2012, the U.S. Consumer Product Safety Commission 
(CPSC) published a consumer product safety standard for infant swings 
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 swings at the time. The CPSIA 
sets forth a process for updating mandatory standards for durable 
infant or toddler products that are based on a voluntary standard, when 
a voluntary standards organization revises the standard. Consistent 
with the CPSIA update process, the Commission issued a direct final 
rule in October 2013, to revise the incorporation by reference for the 
mandatory swings standard, to reflect ASTM'S revised voluntary 
standard. Since 2013, ASTM has revised the voluntary standard for 
infant swings three times. This direct final rule updates the mandatory 
standard for infant swings to incorporate by reference ASTM's 2020 
version of the voluntary standard.

DATES: The rule is effective on April 3, 2021, unless CPSC receives a 
significant adverse comment by February 18, 2021. 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 
approved by the Director of the Federal Register as of April 3, 2021.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2013-
0025, 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. CPSC does not accept comments 
submitted by electronic mail (email), except through https://www.regulations.gov. CPSC encourages you to submit electronic comments 
by using the Federal eRulemaking Portal, as described above.
    Mail/hand delivery/courier Written Submissions: Submit comments by 
mail/hand delivery/courier to: Division of the Secretariat, Consumer 
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, 
MD 20814; telephone: (301) 504-7479. Alternatively, as a temporary 
option during the COVID-19 pandemic, you may email such submissions to: 
[email protected].
    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: 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 
mail/hand delivery/courier written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2013-0025, 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

1. Statutory Authority

    Section 104(b)(1) 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.
    Section 104(b)(4)(B) of the CPSIA specifies the process for when a 
voluntary standards organization revises a standard that the Commission 
incorporated by reference under section 104(b)(1). First, the voluntary 
standards organization must notify the Commission of the revision. Once 
the Commission receives this notification, the Commission may reject or 
accept the revised standard. The Commission may reject the revised 
standard by notifying the voluntary standards organization that it has 
determined that the revised standard does not improve the safety of the 
consumer product and that it is retaining the existing standard. When 
rejecting a revision, the Commission must notify the voluntary 
standards organization of this determination within 90 days of 
receiving notice of the revision. If the Commission does not take this 
action to reject the revised standard, the revised voluntary standard 
will be considered a consumer product safety standard issued under 
section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), 
effective 180 days after the Commission received notification of the 
revision (or a later date specified by the Commission in the Federal 
Register). 15 U.S.C. 2056a(b)(4)(B).

2. Safety Standard for Infant Swings

    Under section 104(b)(1) of the CPSIA, the Commission adopted a 
mandatory rule for infant swings, codified in 16 CFR part 1223. The 
rule incorporated by reference ASTM F2088-12a, Standard Consumer Safety 
Specification for Infant Swings, with modifications to the labeling and 
test method requirements.\1\ 77 FR 66703 (Nov. 7, 2012). At the time 
the Commission published the final rule, ASTM F2088-12a was the current 
version of the voluntary standard.
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    \1\ The modifications included changes to the required warning 
label content and a revised test method to address an omission in 
the voluntary standard for toy mobiles attached to swings.
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    In April 2013, ASTM notified CPSC that it had issued a revised 
standard for infant swings, ASTM F2088-13. In accordance with the 
procedures set out in section 104(b)(4)(B) of the CPSIA, the revised 
standard became the new

[[Page 4962]]

mandatory standard for infant swings. The Commission published a direct 
final rule to update 16 CFR part 1223, incorporating by reference ASTM 
F2088-13, without modification. 78 FR 37706 (June 24, 2013). After the 
Commission issued the revised mandatory standard in 2013, ASTM approved 
two more revisions: ASTM F2088-15 and ASTM F2088-19. However, ASTM did 
not officially notify CPSC of these revisions under CPSIA section 
104(b)(4)(B). Consequently, these revised standards did not become the 
mandatory standards by operation of law, and the Commission did not 
update the mandatory standard to incorporate by reference these revised 
ASTM standards. Therefore, ASTM F2088-13 remained the mandatory 
standard.
    On October 5, 2020, ASTM notified CPSC that it had revised the 
voluntary standard for infant swings, approving ASTM F2088-20 on June 
15, 2020.\2\ As this preamble discusses, based on CPSC staff's review 
of ASTM F2088-20,\3\ the Commission will allow the revised voluntary 
standard to become the mandatory standard because the revised 
requirements in the voluntary standard either improve the safety of 
infant swings, or are safety neutral. Accordingly, by operation of law 
under section 104(b)(4)(B) of the CPSIA, ASTM F2088-20 will become the 
mandatory consumer product safety standard for infant swings on April 
3, 2021. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates 16 
CFR part 1223 to incorporate by reference the revised voluntary 
standard, ASTM F2088-20.
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    \2\ ASTM published ASTM F2088-20 in July 2020.
    \3\ CPSC staff's briefing memorandum regarding ASTM F2088-20 is 
available at: https://cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-Infant-and-Cradle-Swings.pdf?dTN6hRTePdlXPZ8oDFUd8DGAFHvUmP5i.
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B. Revisions to ASTM F2088

    The ASTM standard for infant swings includes performance 
requirements, test methods, and requirements for warning labels and 
instructional literature, to address hazards to infants associated with 
infant swings. ASTM has revised the voluntary standard for infant 
swings three times since ASTM F2088-13, which is the current mandatory 
standard. This section describes the changes in these three editions of 
the standard--ASTM F2088-15, ASTM F2088-19, and ASTM F2088-20. The 
revisions that ASTM included in the 2015 and 2019 versions of the 
standard are also in the newly revised version, ASTM F2088-20, although 
some section and figure numbers have changed to accommodate other 
revisions.

1. ASTM F2088-15

    On October 1, 2015, ASTM approved a revised version of the 
standard, ASTM F2088-15. ASTM did not notify the Commission of this 
revision. ASTM F2088-15 included one substantive change, several 
revisions to clarify existing requirements, and editorial revisions 
that did not alter substantive requirements in the standard or affect 
safety. The revisions that ASTM included in the 2015 version of the 
standard are also in the newly revised version, ASTM F2088-20.
a. Substantive Revisions
    Section 6.5.2 of ASTM F2088-15 states: ``Swings with a maximum seat 
back angle greater than 50 degrees from horizontal measured in 
accordance with 7.13 shall include shoulder straps as part of the 
restraint system.'' This requirement was already in the standard in 
ASTM F2088-13. However, ASTM F2088-15 added revised procedures for 
measuring the seat back and bottom angles for seat designs without a 
defined intersection of the seat bottom and back (i.e., curved seats), 
by adding a new figure to indicate how to determine the intersection 
for curved seats (Figure 11, sections 7.13-7.15). ASTM F2088-15 also 
added the word ``gently'' to the direction to ``gently place the Hinged 
Weight Gage--Infant'' in this procedure (sections 7.13-7.15).
    ASTM F2088-13 did not address how to measure seat angles for curved 
seat designs. Without a defined method, test laboratories were left to 
interpret how to place the Hinged Weight Gauge--Infant in the seat, 
resulting in inconsistent measurements among test laboratories. 
Inconsistent measurements among test laboratories are problematic 
because these seat back angle measurements determine whether the 
product requires shoulder straps. Shoulder straps provide additional 
safety for infant swings, by preventing infant occupants from slumping 
forward when the seat back angle is greater than 50 degrees. Therefore, 
greater consistency in seat back measurements for curved seat designs 
improves the safety of infant swings, by ensuring that shoulder straps 
are included for infant swings with larger seat back angles.
b. Non-Substantive Revisions
    ASTM F2088-15 also added information to provide greater clarity to 
consumers. ASTM F2088-13 already required a warning statement to 
``discontinue use of swing when infant attempts to climb out.'' ASTM 
F2088-15 added ``(approximately 9 months)'' to this warning, to provide 
additional guidance to consumers on when to stop using the product 
(section 8.3.1.1(3)). ASTM F2088-15 also added minor formatting changes 
to align with ASTM form and style guidelines (e.g., changed ``in'' to 
``in.''). These revisions are neutral regarding the safety of infant 
swings because they do not change any substantive requirements.

2. ASTM F2088-19

    On November 15, 2019, ASTM approved a revised version of the 
standard, ASTM F2088-19. ASTM did not notify the Commission of this 
revision. ASTM F2088-19 included one substantive change, as well as 
several editorial revisions that did not alter substantive requirements 
in the standard or affect safety. The revisions that ASTM included in 
the 2019 version of the standard are also in the newly revised version, 
ASTM F2088-20.
a. Substantive Revisions
    ASTM F2088-19 added a definition for ``tethered strap'' (section 
3.1.11), a performance requirement (section 6.9), and a test method 
(section 7.16) to address possible entanglement of non-occupant 
children in exposed tethered straps that connect the underside of the 
seat to the product frame or to other straps. The new requirements only 
apply to tethered straps, and not straps that are loose or hanging from 
the product (i.e., not connected to other components). The new 
requirement limits the length of tethered straps to a maximum of 16 
inches, when measured from the back of the seat to the first attachment 
point (e.g., another strap or part of the product frame) in accordance 
with the test method in section 7.16.
    ASTM based the 16-inch limit on the approximate perimeter of the 
small head probe described in ASTM F406-19, Standard Consumer Safety 
Specification for Non-Full-Size Baby Cribs/Play Yards, which is 16.3 
inches (section X1.4). The small head probe represents a 5th percentile 
6-month-old child, which is the youngest child with the developmental 
ability to become entrapped in a tethered strap.\4\ The ASTM ballot 
that lead to these requirements stated that they were intended to 
prevent a 6-month-old or older child from becoming entangled if exposed 
tethered straps under the seat of an infant swing formed a loop.
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    \4\ ASTM F406-19, Section 5.15.3 states: ``The small head probe 
represents the 5th percentile 6-month-old child because that is the 
youngest child having the developmental abilities to become 
entrapped.''

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[[Page 4963]]

    The new test method regarding tethered straps first assesses 
whether, over the course of five attempts, the tethered straps separate 
from the seat using a pull force of 5 pounds. If the tethered straps 
separate in all five attempts, the tethered straps are exempt from the 
length limit. If the tethered straps remain attached in any one of the 
five attempts, the tethered straps under the seat are subject to the 
16-inch maximum length limit. The test method also explains how to 
measure the length of the strap to determine whether it complies with 
the 16-inch limit, and refers to the new Figures 14 and 15 as examples. 
These figures illustrate how to measure the exposed length on two types 
of tethered strap configurations. For straps that attach to a rigid 
portion of the product, the length is measured from the point where the 
strap connects with the rigid surface (Figure 14). For straps that 
attach to another strap, the length is measured from the point where 
the strap first attaches to the other strap (Figure 15).
    ASTM F2088-15 did not address the entanglement hazard for non-
occupant children associated with tethered straps. As such, these added 
requirements improve the safety of infant swings by addressing this 
hazard for certain tethered strap designs.\5\
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    \5\ See staff's briefing memorandum, available at https://cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-Infant-and-Cradle-Swings.pdf?dTN6hRTePdlXPZ8oDFUd8DGAFHvUmP5i, for discussion 
of staff's assessment that these added requirements only address the 
hazard for certain tethered strap designs.
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b. Non-Substantive Revisions
    ASTM F2088-19 also included minor additions and revisions that did 
not affect the substantive requirements in the standard. The following 
revisions are neutral regarding the safety of infant swings because 
they do not change any substantive requirements:
     Section 1.5 says ``safety, health and environmental,'' 
instead of ``safety and health'';
     a new section 1.6 indicates that ASTM developed the 
standard in accordance with principles recognized by the World Trade 
Organization;
     in section 2.1, the list of referenced ASTM standards 
reflects a change to the title of ASTM D3359 and adds ASTM F406, 
Standard Consumer Safety Specification for Non-Full-Size Baby Cribs/
Play Yards;
     revised unit expressions align with ASTM form and style 
guidelines (e.g., changed ``hour'' to ``h''; changed ``73  
9 [deg]F'' to ``73 [deg]F  9 [deg]F'');
     minor spelling changes (e.g., changed ``a/c'' to ``AC''); 
and
     updated section numbers to reflect added sections.

3. ASTM F2088-20

    On June 15, 2020, ASTM approved a revised version of the standard, 
ASTM F2088-20. In accordance with CPSIA section 104(b)(4)(B), ASTM 
notified CPSC of this revision on October 5, 2020. ASTM F2088-20 
includes several substantive changes, several revisions to clarify 
existing requirements, and editorial revisions that do not alter 
substantive requirements in the standard or affect safety. The 
revisions that ASTM included in the 2015 and 2019 versions of the 
standard are also in the newly revised version, ASTM F2088-20.\6\
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    \6\ Some section and figure numbers may differ in ASTM F2088-20 
due to other revisions.
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    Several changes in ASTM F2088-20 are intended to align with wording 
changes ASTM initiated for all of its juvenile products standards. 
After publishing ASTM F2088-13, ASTM convened a task group, the ASTM Ad 
Hoc Wording Task Group (Ad Hoc TG) to harmonize the wording of common 
provisions (e.g., introduction, scope, protective components), as well 
as warning label requirements, across durable infant and toddler 
product voluntary standards. The Ad Hoc TG consists of members of 
various durable nursery products voluntary standards committees, 
including CPSC staff. The final Ad Hoc TG recommendations are in a 
reference document, titled, ``Recommended Language Approved by Ad Hoc 
Task Group, Revision E, May 28, 2019,'' and are part of the F15 
Committee Documents. ASTM F15 committees have used these 
recommendations to update juvenile products standards so that common 
provisions and requirements for warnings are consistent across the 
standards.\7\ There are substantive and non-substantive revisions in 
ASTM F2088-20 that are intended to align with the Ad Hoc TG 
recommendations; these revisions are explained in more detail in 
subsections a. Substantive Revisions and b. Non-Substantive Revisions, 
below.
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    \7\ This process is ongoing, and ASTM has not yet updated all of 
its juvenile products standards to reflect these changes.
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a. Substantive Revisions
    ASTM F2088-20 includes revisions and additions to substantive 
requirements, as well as changes that make existing requirements 
clearer or more explicit.
    Scope. A new section 1.3 specifies that the standard covers 
products with a powered mechanism that provides a swinging or gliding 
seat/cradle in any direction relative to the frame. Section 1.3 also 
notes that swinging or gliding mechanisms can be powered by batteries, 
AC adapters, wind-up mechanisms, or other means. These revisions do not 
expand or modify the scope of the standard. Other sections of the 
standard already addressed the listed features (e.g., requirements 
regarding battery compartments and AC adapters), indicating that 
products with those features are within the scope of the standard. This 
revision merely highlights and clarifies that the standard covers this 
range of products. Accordingly, these changes to section 1.3 are 
neutral to the safety of infant swings because they do not alter any 
substantive requirements.
    Section 1.3 also specifies that the standard does not cover 
products that are intended to provide sleeping accommodations for the 
occupant. This revision does not alter the scope of the standard. 
However, explicitly stating that the infant swing standard does not 
cover products intended for infant sleep will assist manufacturers to 
recognize that the swing standard is not applicable to products 
intended for sleep, which are subject to other standards. As such, this 
revision improves the safety of infant swings because it clarifies the 
types of products that are subject to the standard.
    Referenced Documents. Section 2.1 includes a new reference to ASTM 
F2194, Standard Consumer Safety Specification for Bassinets and 
Cradles, because this standard is referenced as part of a new 
requirement (see General Requirements, below).
    Terminology. ASTM F2088-20 updates two definitions and adds a third 
to align with the Ad Hoc TG recommendations. The terms ``conspicuous'' 
(Section 3.1.2) and ``static load'' (Section 3.1.11) were already 
defined in the standard; the revisions simply modify wording and do not 
alter the substantive meaning of the terms. ``Protective component'' 
(Section 3.1.10) was not previously defined in the standard, but there 
were already requirements for ``protective components'' in the 
standard, and those provisions described the meaning of the term. The 
revision moves that description to a formal definition.
    ASTM F2088-20 also includes updated definitions for ``cradle 
swing'' (Section 3.1.3) and ``infant swing'' (Section 3.1.5) to specify 
the maximum developmental and age limit for each product. This 
information was already in the warning requirements; the revisions only 
add these details to the formal definitions.

[[Page 4964]]

    ASTM also added a new definition for ``combination swing'' (Section 
3.1.1.) to address products with both a cradle swing and infant swing 
use, mode, or position. The standard already addressed ``combination 
swings''--Section 8.5 describes them as products with both a cradle 
mode and a seated mode, and applies labeling requirements to them. 
However, the standard did not previously contain a formal definition of 
the term.
    ASTM also revised the definition of ``travel swing'' (Section 
3.1.14). Previously, ASTM defined ``travel swing'' as a ``low-profile, 
compact swing,'' grouping all compact swing products into a single 
term. The revised definition does the same, but because of the revised 
definitions of ``infant swing,'' ``cradle swing,'' and ``combination 
swing,'' the revised definition of ``travel swing'' lists the compact 
versions of each product type (i.e., ``low-profile, compact infant, 
cradle, or combination swing'').
    These revisions to the terminology in ASTM F2088-20 are neutral to 
the safety of infant swings because they do not alter the meaning of 
the terms or the substantive requirements that apply to these products.
    General Requirements. ASTM F2088-20 includes revised requirements 
for protective components (Section 5.8). The standard already required 
testing to assess the potential removal of protective components. The 
revision specifies that all protective components that are accessible 
to a child in or around the product must be evaluated according to the 
requirements for protective components. As such, the revision clarifies 
which protective components to assess. This revision improves the 
safety of infant swings because it ensures that all accessible 
protective components are tested for potential removal.
    The standard also includes a new requirement that cradle swings or 
combination swings in a cradle swing use, mode, or position, while in 
the rest (i.e., non-rocking) position, comply with the requirements of 
ASTM F2194, Standard Consumer Safety Specification for Bassinets and 
Cradles (section 5.11). As a general matter, ASTM F2088-20 does not 
cover products that are intended as sleeping accommodations (section 
1.3) and the standard requires swings to display warnings that the 
products are not safe for unattended sleep (section 8.5.1). However, 
cradle swings, when at rest, have characteristics that are consistent 
with a stationary bassinet or cradle, where the occupant is lying flat, 
and is not being rocked. As such, cradle swings, while at rest, may 
serve as a sleep surface, despite the on-product warnings. If used as a 
sleep surface, these swings may present hazards consistent with a 
bassinet or cradle. ASTM F2194 addresses these hazards, including 
requirements to provide a safe sleep environment. This addition 
improves the safety of infant swings because it requires swings that 
function like bassinets or cradles to meet the safety requirements for 
such products.
    Performance Requirements. Section 6.5 already included requirements 
for restraint systems and specified that a restraint system is required 
to secure an occupant in the seated position in any manufacturer-
recommended use positions. However, ASTM F2088-20 adds to this 
requirement that cradle swings and combination swings, when in all 
manufacturer's use positions as a cradle swing, shall not have a 
restraint system. This prevents occupants of cradle swings (which are 
intended for infants from birth to approximately 5 months old) from 
getting entangled in restraints while lying flat, and is consistent 
with the bassinet standard (ASTM F2194). This revision improves the 
safety of infant swings by addressing a potential entanglement hazard.
    Marking and Labeling. ASTM F2088-20 does not include the previous 
requirement that manufacturers mark each product and its retail 
packaging with a model number and change the model number when they 
make changes to the product that affect conformance with the safety 
standard (previous Section 8.1.2). The ASTM ballot that led to removing 
this requirement suggested that the rationale was to provide 
consistency with other juvenile products standards, which do not 
contain this requirement. This requirement likely was intended to 
facilitate recalls, by providing a way to identify products made during 
a certain time. However, other remaining requirements accomplish this 
purpose. Section 8.1.2 still requires manufacturers to mark products 
with the month and year of manufacture, and 16 CFR 1130.4 requires 
manufacturers that use model names or numbers to permanently mark that 
identifying information on their infant or toddler products. Therefore, 
the revision is neutral with respect to the safety of infant swings 
because other requirements accomplish the same purpose.
    ASTM F2088-20 also includes revised marking and labeling 
requirements, including warning formatting and wording, to align with 
the Ad Hoc TG recommendations.
    Revised wording of warnings statements (Section 8.5) includes 
changing ``Always secure infant in the restraint system provided'' to 
``ALWAYS use restraints. Adjust to fit snugly,'' and changing ``Never 
leave infant unattended in swing'' to ``Stay near and watch infant 
during use.'' This revised language more directly indicates to 
caregivers what actions to take.
    The revised standard also includes two new warning subsections, for 
combination swings (Section 8.5.3) and travel swings (Section 8.5.4). 
The standard already included the warning requirements for these swing 
designs, but they were embedded in the general warning requirements. 
Moving them to individual sections based on product type highlights the 
importance of these warnings and clearly matches warnings with the 
corresponding product design.
    The revised marking and labeling requirements in ASTM F2088-20 
improve the safety of infant swings by providing clear, direct, and 
product-specific requirements, and providing consistency across 
juvenile product standards.
    Instructional Literature. ASTM F2088-20 includes revised 
requirements for instructional literature (Section 9) for consistency 
with the Ad Hoc TG recommendations and the revised warning label 
requirements in Section 8. These revisions improve the safety of infant 
swings by providing clear warning information and instructional 
literature that is consistent with the corresponding on-product 
warnings and across juvenile product standards.
b. Non-Substantive Revisions
    ASTM F2088-20 also includes minor additions and revisions that are 
editorial and do not alter any substantive requirements in the 
standard. Because they do not change any substantive requirements, 
these revisions are neutral regarding the safety of infant swings.
    Title. ASTM F2088-20 revises the title for the standard, changing 
it from ``Standard Consumer Safety Specification for Infant Swings'' to 
``Standard Consumer Safety Specification for Infant and Cradle 
Swings.'' This title change does not alter the scope of the standard; 
performance requirements and test methods for cradle swings have been 
in the standard since ASTM first adopted it. This revision makes it 
clear in the title that the standard applies to cradle swings.
    Introduction. The revised standard includes updated introduction 
language to align with the Ad Hoc TG recommendations. This includes 
replacing the statements regarding reasonably foreseeable misuse or 
abuse

[[Page 4965]]

with a single statement that conveys the same information. 
Specifically, the revision retains the existing statement that the 
voluntary standard covers normal and reasonably foreseeable misuse or 
abuse of infant swings, and removes an additional sentence about 
careless or blatant misuse. This revision clarifies, and does not 
alter, the type of use covered by the standard. In addition, the 
introduction includes minor wording changes (e.g., ``infant swing 
incidents'' changed to ``incidents associated with swings intended for 
infants'').
    Scope. ASTM F2088-20 includes minor wording changes in the scope 
section (e.g., deleting ``consumer safety'' from ``this consumer safety 
specification'') to harmonize with the Ad Hoc TG recommendations 
(Section 1.6).
    Referenced Documents. ASTM F2088-20 includes a revised list of 
referenced documents. ASTM updated the title of Section 2.2 from 
``Federal Standards'' to ``Federal Regulations,'' and added a new 
section 2.3 to include ANSI standards. These revisions are consistent 
with other ASTM standards and aligns with the Ad Hoc TG 
recommendations.
    General Requirements. ASTM F2088-20 includes several revisions to 
section 5 to harmonize the wording with the Ad Hoc TG recommendations. 
These revisions include minor wording changes in the sections on 
``Scissoring, Shearing, and Pinching'' (Section 5.5), ``Protective 
Components'' (Section 5.8), and ``Toys'' (Section 5.10) (e.g., changing 
``component'' to ``component(s),'' changing ``must meet'' to ``shall 
comply with'').
    Test Methods. Minor editorial revisions in the test methods section 
(Section 7) maintain consistency with wording and unit expressions in 
the rest of the standard and other ASTM standards (e.g., adding a space 
after the number to change ``68 [deg]F  9 [deg]F'' to ``68 
[deg]F  9 [deg]F,'' changing ``0.040'' to ``0.04,'' and 
correcting the spelling of ``Gauge''). In addition, ASTM harmonized the 
``Removal of Protective Components Test'' wording (Section 7.2) with 
the Ad Hoc TG recommendations. These revisions do not alter the 
substance of the requirements.

C. Incorporation by Reference

    Section 1223.2 of the direct final rule incorporates by reference 
ASTM F2088-20. The Office of the Federal Register (OFR) has regulations 
regarding incorporation by reference. 1 CFR part 51. Under these 
regulations, agencies must discuss, in the preamble to a final rule, 
ways in which the material the agency incorporates by reference is 
reasonably available to interested parties, and how interested parties 
can obtain the material. In addition, the preamble to the final rule 
must summarize the material. 1 CFR 51.5(b).
    In accordance with the OFR regulations, section B. Revisions to 
ASTM F2088, of this preamble summarizes the major provisions of ASTM 
F2088-20 that the Commission incorporates by reference into 16 CFR part 
1223. The standard is reasonably available to interested parties and 
interested parties can purchase a copy of ASTM F2088-20 from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959 USA; phone; 610-832-9585; www.astm.org. Additionally, 
until the direct final rule takes effect, a read-only copy of ASTM 
F2088-20 is available for viewing on ASTM's website at: https://www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of 
the standard will be available for viewing on the ASTM website at: 
https://www.astm.org/READINGLIBRARY/. Interested parties can also 
schedule an appointment to inspect a copy of the standard at CPSC's 
Division of the Secretariat, U.S. Consumer Product Safety Commission, 
Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: 301-
504-7479; email: [email protected].

D. Certification

    Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 
2051-2089) requires manufacturers of 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, 
to certify that the products comply 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 of a sufficient number of samples by a 
third party conformity assessment body accredited by CPSC 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 infant swings are children's products, a CPSC-accepted 
third party conformity assessment body must test samples of the 
products. Products subject to part 1223 also must comply with all other 
applicable CPSC requirements, such as the lead content requirements in 
section 101 of the CPSIA,\8\ the phthalates prohibitions in section 108 
of the CPSIA \9\ and 16 CFR part 1307, the tracking label requirements 
in section 14(a)(5) of the CPSA,\10\ and the consumer registration form 
requirements in section 104(d) of the CPSIA.\11\
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 1278a.
    \9\ 15 U.S.C. 2057c.
    \10\ 15 U.S.C. 2063(a)(5).
    \11\ 15 U.S.C. 2056a(d).
---------------------------------------------------------------------------

E. Notice of Requirements

    In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the 
Commission previously published a notice of requirements (NOR) for 
accreditation of third party conformity assessment bodies for testing 
infant swings. 78 FR 15836 (Mar. 12, 2013). The NOR provided the 
criteria and process for CPSC to accept accreditation of third party 
conformity assessment bodies for testing infant swings to 16 CFR part 
1223. 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 in 
16 CFR part 1112. Id.
    ASTM F2088-20 includes revised requirements for testing infant 
swings. However, these revisions to test requirements do not require 
additional equipment or test protocols beyond those that already exist 
in the standard. Accordingly, the revisions do not significantly change 
the way that third party conformity assessment bodies test these 
products for compliance with the infant swings standard. Laboratories 
will begin testing to the new standard when ASTM F2088-20 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 Commission considers the existing CPSC-
accepted laboratories for testing to ASTM F2088-13 to be capable of 
testing to ASTM F2088-20 as well. 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' accreditations to reflect the revised standard in 
the normal course of renewing their accreditations.

F. Direct Final Rule Process

    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

[[Page 4966]]

an opportunity for interested parties to comment on it, section 553 of 
the APA provides an exception when the agency, ``for good cause 
finds,'' that notice and comment are ``impracticable, unnecessary, or 
contrary to the public interest.'' Id. 553(b)(B). The Commission 
concludes that when it updates a reference to an ASTM standard that the 
Commission 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 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 F2088-20 to become CPSC's new standard. The 
purpose of this direct final rule is to update the reference in the 
Code of Federal Regulations (CFR) so that it reflects the version of 
the standard that takes effect by statute. This rule updates the 
reference in the CFR, but under the terms of the CPSIA, ASTM F2088-20 
takes effect as the new CPSC standard for infant swings, even if the 
Commission does not issue this rule. Thus, public comments would not 
alter 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 
unnecessary.
    In Recommendation 95-4, the Administrative Conference of the United 
States (ACUS) endorses direct final rulemaking as an appropriate 
procedure to expedite rules that are noncontroversial and that are not 
expected to generate significant adverse comments. See 60 FR 43108 
(Aug. 18, 1995). ACUS recommends 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 CPSC does not expect any significant adverse 
comments.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notification, the rule will become effective on April 3, 2021. 
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.'' 
60 FR 43108, 43111. As noted, this rule merely updates a reference in 
the CFR to reflect a change that occurs by statute.
    If the Commission receives a significant adverse comment, the 
Commission will withdraw this direct final rule. Depending on the 
comment 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; 5 U.S.C. 601-612) generally 
requires agencies to 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, 
604. The RFA applies to any rule that is subject to notice and comment 
procedures under section 553 of the APA. Id. As discussed in section F. 
Direct Final Rule Process of this preamble, the Commission has 
determined that notice and the opportunity to comment are unnecessary 
for this rule. Therefore, the RFA does not apply. CPSC also notes 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 current mandatory standard for infant swings includes 
requirements for marking, 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 alter these requirements. The Commission took the 
steps required by the PRA for information collections when it adopted 
16 CFR part 1223, 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. 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 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. 15 U.S.C. 
2075(a). Section 26(c) of the CPSA also provides that states or 
political subdivisions of states may apply to CPSC for an exemption 
from this preemption under certain circumstances. Section 104(b) of the 
CPSIA deems rules issued under that provision ``consumer product safety 
standards.'' 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 standards organization revises a standard that the 
Commission adopted as a mandatory standard, 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. 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of 
those actions with respect to the standard for infant swings. 
Therefore, ASTM F2088-20 automatically will take effect as the new 
mandatory standard for infant swings on April 3, 2021, 180 days after 
the Commission received notice of the revision on October 5, 2020. As a 
direct final rule, unless the Commission receives a significant adverse 
comment within 30 days of this notice, the rule will become effective 
on April 3, 2021.

L. 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 CRA submission 
must indicate whether the rule is a ``major rule.'' The CRA states

[[Page 4967]]

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, CPSC 
will submit the required information to each House of Congress and the 
Comptroller General.

List of Subjects in 16 CFR Part 1223

    Consumer protection, Imports, Incorporation by reference, Imports, 
Infants and children, Law enforcement, Safety, Toys.
    For the reasons discussed in the preamble, the Commission amends 16 
CFR chapter II as follows:

PART 1223--SAFETY STANDARD FOR INFANT SWINGS

0
1. Revise the authority citation for part 1223 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.  1223.2 to read as follows:


Sec.  1223.2  Requirements for infant swings.

    Each infant swing shall comply with all applicable provisions of 
ASTM F2088-20, Standard Consumer Safety Specification for Infant and 
Cradle Swings, approved on June 15, 2020. 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 from ASTM 
International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, 
PA 19428-2959; phone: (610) 832-9585; www.astm.org. A read-only copy of 
the standard is available for viewing on the ASTM website at https://www.astm.org/READINGLIBRARY/. 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) 504-7479, 
email: [email protected], 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. 2020-28362 Filed 1-15-21; 8:45 am]
BILLING CODE 6355-01-P