[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
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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