[Federal Register Volume 86, Number 206 (Thursday, October 28, 2021)]
[Rules and Regulations]
[Pages 59609-59612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23453]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 /
Rules and Regulations
[[Page 59609]]
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1223
[Docket No. CPSC-2013-0025]
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 for infant swings that was in effect at that 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, in January 2021, the Commission issued a
direct final rule to revise the incorporation by reference for the
mandatory infant swings standard, to reflect ASTM's 2020 revised
voluntary standard for infant swings. This direct final rule updates
the mandatory standard for infant swings to incorporate by reference
ASTM's 2021 version of the voluntary standard.
DATES: The rule is effective on January 29, 2022, unless CPSC receives
a significant adverse comment by November 29, 2021. If CPSC receives
such a comment, it will publish a document 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 29,
2022.
ADDRESSES: You may 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. The CPSC does not accept comments
submitted by electronic mail (email), except through https://www.regulations.gov and as described below. The 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, U.S.
Consumer Product Safety Commission, 4330 East-West Highway, Bethesda,
MD 20814; telephone (301) 504-7479. Alternatively, as a temporary
option during the COVID-19 pandemic, you can email such submissions to:
[email protected].
Instructions: All submissions received must include the agency name
and docket number for this direct final rule. 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: 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)(B) of the 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 (CPSA) (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. Safety Standard for Infant Swings
In November 2012, 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.
Since promulgation of the mandatory infant swings standard in 2012,
ASTM has
[[Page 59610]]
revised the voluntary standard five times. ASTM F2088-20 is the current
mandatory standard incorporated by reference in 16 CFR part 1223.
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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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On August 2, 2021, ASTM notified CPSC that it had revised the
voluntary standard for infant swings, approving ASTM F2088-21 on May
15, 2021.\2\ As discussed in this preamble, based on CPSC staff's
review of ASTM F2088-21, 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 F2088-21 will become the
mandatory consumer product safety standard for infant swings on January
29, 2022. 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 F2088-21.
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\2\ ASTM published ASTM F2088-21 in June 2021.
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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 since ASTM F2088-20, which is the current mandatory standard. On
May 15, 2021, ASTM approved a revised version of ASTM F2088 and
published ASTM F2088-21 in June 2021. This section describes the
changes in ASTM F2088-21. The 2021 revision contains a few editorial,
non-substantive changes, along with several substantive changes to
improve clarity, provide consistent terminology, and harmonize wording
and warning label requirements consistent with other juvenile product
standards. ASTM also made several revisions to ASTM F2088 to align the
standard with wording changes initiated by ASTM for all of its juvenile
products standards. Specific changes to the standard from ASTM F2088-20
to ASTM F2088-21 are described below.
1. Substantive Changes
(a) ASTM revised the age and developmental information for infant
and cradle swings to maintain consistency between the scope,
definitions, and warnings sections of the standard. Additionally, the
revisions harmonize the age and developmental information with the ASTM
F2194 Bassinets and Cradles standard.\3\
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\3\ A cradle swing falls within the scope of ASTM F2194
Bassinets and Cradles standard when it is not in motion (i.e., a
cradle swing is a swing when in motion and a cradle when at rest.)
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Specifically, ASTM:
Replaced the statement ``a child who cannot climb out of
the product'' with ``an infant'' in section 1.3 (part of section 1.
Scope) when describing the products and the intended user covered under
this consumer safety specification. The use of the generic term
``infant'' better defines the developmental characteristics of the two
age groups already defined in the standard: (1) ``[infant] begins to
push up on hands and knees (approximately 5 months)'' and (2)
``[infant] attempts to climb out of the swing (approximately 9
months).''
Added ``to swing or glide'' to the definition of ``cradle
swing'' in section 3.1.3 to describe the motions of this product type,
and to maintain consistency with section 1 Scope and with the motion
types already defined for ``infant swings'' in section 3.1.5.
Replaced ``can roll over or'' with ``begins to'' in the
definition of ``cradle swings'' in section 3.1.3, and in the warning
statements in section 8.6.2 Cradle Swing, to maintain consistency
throughout the standard and to harmonize the wording with ASTM F2194
Bassinets and Cradles standard.
Added the parenthetical statement ``(approximately 5
months)'' to the warning statements in section 8.6.2 Cradle Swing, to
maintain consistency with the definition of ``cradle swing'' in section
3.1.3.
The Commission concludes that the substantive changes discussed
above are neutral to the safety of infant swings, because they clarify
the language of the standard, to harmonize the provisions throughout
this standard and with other ASTM juvenile product standards.
(b) After the publication of Revision F of ``Recommended Language
Approved by Ad Hoc Task Group,'' \4\ the ASTM F15.21 subcommittee
adopted the battery informational statements and/or warning language
from the Ad Hoc document and incorporated it to the 2021 revision of
F2088. Additionally, the revision consolidated the battery language
spread throughout the standard into a single section titled 8.4
Battery-operated Product Marking under section 8 Marking and Labeling.
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\4\ Revision F of ``Recommended Language Approved by Ad Hoc Task
Group'' was published on November 30, 2020.
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To effect these changes, ASTM made the following modifications:
Created section 8.4 Battery-operated Product Marking to
group all battery cautionary information into a single section;
moved section 6.1.1 regarding the battery compartment
marking and labeling to section 8.4.1 using the language from the Ad
Hoc Wording recommendations;
moved sections 8.6, 8.6.1, 8.6.2 and 8.6.3 regarding the
battery cautions to sections 8.4.2, 8.4.2.1, 8.4.2.2 and 8.4.2.3 using
the language from the Ad Hoc Wording recommendations.
The Commission concludes that adoption of the Ad Hoc Wording
recommendations and consolidation into an area-specific section are
improvements to safety because they provide clear, concise guidance to
manufacturers to provide noticeable and consistent warning labels on
infant swings.
(c) ASTM revised the requirement for Instructional Literature in
section 9.4 and moved it to section 9.2, harmonizing it with the Ad Hoc
Wording recommendations and to match the warning requirements with the
Marking and Labeling section of the standard.
The Commission concludes that these changes improve the safety of
infant swings, because they provide noticeable warning information and
instructional literature that is consistent with the corresponding on-
product warnings.
2. Non-Substantive Changes
ASTM made minor formatting changes to the standard, in accordance
with ASTM form and style guidelines, such as changes to font size of
the metric system expressions. Additionally, ASTM updated the sections'
numbering hierarchy throughout the standard, to reflect added and
updated sections. The Commission finds that all the non-substantive
changes made in ASTM F2088-21 are neutral regarding safety for infant
swings, because they are editorial in nature.
C. Incorporation by Reference
Section 1223.2 of the direct final rule incorporates by reference
ASTM F2088-21. 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).
[[Page 59611]]
In accordance with the OFR regulations, section B. Revisions to
ASTM F2088, of this preamble summarizes the major provisions of ASTM
F2088-21 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 F2088-21 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
F2088-21 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,\5\ the
phthalates prohibitions in section 108 of the CPSIA \6\ and 16 CFR part
1307, the tracking label requirements in section 14(a)(5) of the
CPSA,\7\ and the consumer registration form requirements in section
104(d) of the CPSIA.\8\
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\5\ 15 U.S.C. 1278a.
\6\ 15 U.S.C. 2057c.
\7\ 15 U.S.C. 2063(a)(5).
\8\ 15 U.S.C. 2056a(d).
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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.
The revisions to ASTM F2088-21 do not require any change in the way
that third party conformity assessment bodies test infant swings.
Therefore, testing laboratories that have demonstrated competence for
testing in accordance with ASTM F2088-20 will have the competence to
test in accordance with the revised standard ASTM F2088-21.
Therefore, the Commission considers the existing CPSC-accepted
laboratories for testing to ASTM F2088-20 to be capable of testing to
ASTM F2088-21 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 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 mandatory standard by operation of law.
The Commission is allowing ASTM F2088-21 to become CPSC's new mandatory
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 update provision of
section 104 of the CPSIA, ASTM F2088-21 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) endorsed 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 direct final rule, the rule will become effective on January
29, 2022. 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
[[Page 59612]]
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). While the revised mandatory
standard updates the provisions for marking, labeling, and
instructional literature regarding consistency and clarity to be
consistent with other ASTM voluntary standards, the revised mandatory
standard does not alter these requirements substantively. 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 state or political subdivision of a
state requirements 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 F2088-21 will take effect as the new mandatory standard
for infant swings on January 29, 2022, 180 days after the Commission
received notice of the revision on August 2, 2021. Because it is a
direct final rule, unless the Commission receives a significant adverse
comment within 30 days of this notification, the rule will become
effective on January 29, 2022.
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 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. The authority citation for part 1223 continues to read as follows:
Authority: Sec. 104, Public Law 110-314, 122 Stat. 3016 (15
U.S.C. 2056a); Sec 3, Public Law 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 F2088-21, Standard Consumer Safety Specification for Infant and
Cradle Swings, approved on May 15, 2021. 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, U.S. Consumer Product Safety Commission.
[FR Doc. 2021-23453 Filed 10-27-21; 8:45 am]
BILLING CODE 6355-01-P