[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Rules and Regulations]
[Pages 37729-37733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13255]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1234
[Docket No. CPSC-2015-0019]
Safety Standard for Infant Bath Tubs
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
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SUMMARY: In March 2017, the U.S. Consumer Product Safety Commission
(CPSC) published a consumer product safety standard for infant bath
tubs under section 104 of the Consumer Product Safety Improvement Act
of 2008 (CPSIA). The standard incorporated by reference the 2017 ASTM
voluntary standard for infant bath tubs that was in effect 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 the voluntary standards organization revises the
standard. Consistent with the CPSIA's update process, the Commission
issued a direct final rule in October 2018, that revised the
incorporation by reference for the mandatory standard for infant bath
tubs to reflect ASTM's revised 2018 voluntary standard. Also consistent
with the CPSIA's update process, this direct final rule again updates
the mandatory standard for infant bath tubs to incorporate by reference
ASTM's 2022 version of the voluntary standard.
DATES: The rule is effective on September 24, 2022, unless CPSC
receives a significant adverse comment by July 25, 2022. 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 September 24,
2022.
ADDRESSES: You can submit comments, identified by Docket No. CPSC-2015-
0019, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: https://www.regulations.gov. Follow the
instructions for submitting comments. CPSC does not accept comments
submitted by electronic mail (email), except as described below. CPSC
encourages you to submit electronic comments by using the Federal
eRulemaking Portal.
Mail/Hand Delivery/Courier Written Submissions: Submit comments by
mail/hand delivery/courier to: Division of the Secretariat, Consumer
Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814;
telephone: (301) 504-7479. If you wish to submit confidential business
information, trade secret information, or other sensitive or protected
information that you do not want to be available to the public, you may
submit such comments by mail, hand delivery, or courier, or you may
email them to: [email protected].
Instructions: All submissions must include the agency name and
docket number for this direct final rule. 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-2015-0019, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Salman Sarwar, Compliance Officer,
U.S. Consumer Product Safety Commission, 4330 East-West Highway,
Bethesda, MD 20814; telephone: (301) 504-7682; 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 to adopt mandatory standards for these products. 15 U.S.C.
2056a(b)(1). A mandatory standard must be ``substantially the same as''
the corresponding voluntary standard, or it 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
updating the Commission's rules when a voluntary standards organization
revises a standard that the Commission previously 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, within 90
days of receiving notice of the revision, 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. 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 on a later date specified by the
Commission in the Federal Register. 15 U.S.C. 2056a(b)(4)(B).
2. Safety Standard for Infant Bath Tubs
Under section 104(b)(1) of the CPSIA, the Commission adopted a
mandatory rule for infant bath tubs, codified in 16 CFR part 1234. The
rule incorporated by reference ASTM F2670-17, Standard Consumer Safety
Specification for Infant Bath Tubs, with no modifications. 82 FR 15615
(March 30, 2017). At the time the Commission published the final rule,
ASTM F2670-17 was the current version of the voluntary standard.
In July 2018, ASTM notified CPSC that it had issued a revised
standard for infant bath tubs, ASTM F2670-18. The Commission concluded
that the revisions improved the safety of infant bath tubs. As such, in
accordance with the procedures set out in section 104(b)(4)(B) of the
CPSIA, the revised standard became the new mandatory standard for
infant bath tubs. The Commission published a direct final
[[Page 37730]]
rule to update 16 CFR part 1234, incorporating by reference ASTM F2670-
18, with no modifications. 83 FR 53371 (Oct. 23, 2018).
On March 28, 2022, ASTM notified CPSC that it has again revised the
voluntary standard for infant bath tubs, by approving ASTM F2670-22 on
March 1, 2022.\1\ As discussed in section B. Revisions to ASTM F2670,
based on CPSC staff's review of ASTM F2670-22,\2\ the Commission will
allow the revised voluntary standard to become the mandatory standard
because it improves the safety of infant bath tubs.\3\ Accordingly, by
operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F2670-22
will become the mandatory consumer product safety standard for infant
bath tubs on September 24, 2022. 15 U.S.C. 2056a(b)(4)(B). This direct
final rule updates 16 CFR part 1234 to incorporate by reference the
revised voluntary standard, ASTM F2670-22.
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\1\ ASTM also published ASTM F2670-22 in March 2022.
\2\ CPSC staff's briefing package regarding ASTM F2670-22 is
available at: https://www.cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-Infant-Bath-Tubs.pdf?VersionId=xRDuGZaaWMa44CPG5rG2jwa0VdYy5c4M.
\3\ The Commission voted 3-0-1 to approve this notice. Chair
Hoehn-Saric, Commissioners Feldman and Trumka voted to approve the
notice as drafted. Commissioner Baiocco did not vote.
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B. Revisions to ASTM F2670
The ASTM standard for infant bath tubs includes performance
requirements, test methods, and requirements for warning labels and
instructional literature, to address hazards to children associated
with infant bath tubs. ASTM F2670-22 contains substantive revisions as
well as editorial, non-substantive revisions. Revisions to the standard
includes changes to language in the standard describing latching and
locking mechanisms (i.e., mechanisms that prevent the product from
folding or collapsing in a manner that puts the occupant at risk) and
new marking, labeling, warning, and instructional requirements
addressing battery-powered infant bath tubs. This section describes the
changes in ASTM F2670-22, as compared to ASTM F2670-18, which is the
current mandatory standard, and includes an assessment of those
changes.
1. Substantive Revisions
a. General Requirements
The general requirement subsection Resistance to Collapse has been
renamed Latching and Locking Mechanism(s). Section 5.4.1 has been
edited to state that products that fold must have a latching and
locking mechanism(s) or other means to prevent the product from folding
or collapsing in a manner that puts the occupant at risk of injury by
falling out of the product or being subjected to contact or pressure by
product components. The standard states that ``other means'' can
include, but are not limited to, designs that utilize the occupant, an
added component, or the water that is placed into the product to act in
opposition to the folding action or collapse of the product. Latching
and locking mechanisms are subject to the same general and performance
requirements as required in 16 CFR part 1234 (some non-substantive
changes have been made to these requirements).
These changes improve safety, because 16 CFR part 1234 currently
does not explicitly require folding infant bath tubs or infant bath tub
accessories to have latching and locking mechanisms or ``other means''
of preventing the product from folding or collapsing.
b. Marking and Labeling
Revisions to the 2022 standard include the addition of specific
marking requirements for products that are battery-operated. Currently,
16 CFR part 1234 does not contain any marking and labeling requirements
specifically addressing battery-powered infant bath tubs. Section 8.4.1
of the 2022 standard states that the product's battery compartment,
battery compartment door/cover, or area immediately adjacent to the
battery compartment must be marked or labeled permanently and legibly
to show the correct battery polarity, size, and voltage. Products
utilizing one or more non-replaceable batteries are exempt from this
requirement. However, Section 8.4.2 states that products utilizing one
or more non-replaceable batteries accessible with the use of a coin,
screwdriver, or other common household tool shall be marked or labeled
permanently and legibly with a statement that the batteries are not
replaceable. If marking or labeling the product is not practicable,
then this statement shall be in the instructions.
In addition to on-product marking/labeling requirements, ASTM
F2670-22 now includes specific warning requirements for battery-powered
infant bath tubs and infant bath tub accessories packaging. Section
8.11 states that packages of infant bath tubs and infant bath tub
accessories that use replaceable button or coin cell batteries that are
1.5 V or greater and that are larger than 15 mm in diameter but fit
within the small parts cylinder (see 16 CFR 1501) shall include the
following warning:
AWARNING
Contains button or coin cell battery. Hazardous if swallowed--see
instructions. This warning is subject to the formatting requirements
found in section 8.5, which contains no substantive changes.
The changes in this section improve safety, as they address battery
ingestion hazards, which are not currently addressed by 16 CFR part
1234.
c. Instructional Literature
The requirements for instructional literature in ASTM F2670-22 now
include cautionary and warning statements specifically for battery-
operated products, which are not addressed in 16 CFR part 1234. Section
9.4 Cautionary and Warning Statements now requires that products that
operate using replaceable batteries include the following:
ACAUTION
To prevent battery leaks, which can burn skin and eyes:
Remove batteries when storing product for a long time.
Dispose of used batteries immediately.
Products that use more than one battery in any one circuit must also
include the following statements under the same CAUTION header:
Always replace the entire set of batteries at one time.
Never mix old and new batteries, or batteries of different
brands or types.
These changes improve safety, as they address burn hazards caused by
battery leaks, which are not currently addressed by 16 CFR part 1234.
2. Non-Substantive Revisions
ASTM F2670-22 also includes several non-substantive changes, such
as spacing and formatting. ASTM also revised the language in the
introduction and removed CPSIA from its list of referenced documents to
bring the standard into alignment with current Ad Hoc Recommended
Language.\4\ These changes to the text and formatting do not materially
affect the safety of infant bath tubs.
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\4\ ASTM convened a task group, ASTM Ad Hoc Wording Task Group
(Ad Hoc TG), consisting of members of the various durable nursery
products voluntary standards committees, including CPSC staff. The
purpose of the Ad Hoc TG is to harmonize the wording, as well as the
warning format, across durable infant and toddler product voluntary
standards. Ad Hoc TG recommendations were published as a reference
document, titled, ``Ad Hoc Wording--May 4, 2016,'' as part of the
F15 Committee Documents.
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[[Page 37731]]
C. Incorporation by Reference
Section 1234.2 of the direct final rule incorporates by reference
ASTM F2670-22. 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 F2670 of this preamble summarizes the major provisions of ASTM
F2670-22 that the Commission incorporates by reference into 16 CFR part
1234. The standard is reasonably available to interested parties. Until
the direct final rule takes effect, a read-only copy of ASTM F2670-22
is available for viewing, at no cost, 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, at no cost, 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]. Interested parties
can purchase a copy of ASTM F2670-22 from ASTM International, 100 Barr
Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA;
telephone: (610) 832-9585; www.astm.org.
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 bath tubs are children's products, a CPSC-accepted
third party conformity assessment body must test samples of the
products. Products subject to part 1234 also must comply with all other
applicable CPSC requirements, such as the lead content requirements in
section 101 of the CPSIA,\5\ the tracking label requirements in section
14(a)(5) of the CPSA,\6\ and the consumer registration form
requirements in section 104(d) of the CPSIA.\7\ ASTM F2670-22 makes no
changes that would impact any of these existing requirements.
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\5\ 15 U.S.C. 1278a.
\6\ 15 U.S.C. 2063(a)(5).
\7\ 15 U.S.C. 2056a(d).
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E. Notice of Requirements
In accordance with section 14(a)(3)(B)(vi) of the CPSA, the
Commission previously published a notice of requirements (NOR) for
accreditation of third party conformity assessment bodies for testing
infant bath tubs. 82 FR 15615 (March 30, 2017). The NOR provided the
criteria and process for CPSC to accept accreditation of third party
conformity assessment bodies for testing infant bath tubs to 16 CFR
part 1234. 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 F2670-22 did not change the testing requirements, testing
equipment, or testing protocols for infant bath tubs. Accordingly, the
revisions do not change the way that third party conformity assessment
bodies test these products for compliance with the safety standard for
infant bath tubs. Testing laboratories that have demonstrated
competence for testing in accordance with ASTM F2670-18 therefore are
competent to test in accordance with the revised standard ASTM F2670-
22. Laboratories will begin testing to the new standard when ASTM
F2670-22 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 F2670-18 to be
capable of testing to ASTM F267-22 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.
Specifically, 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 F2670-22 to become CPSC's new standard
because its provisions improve product safety. The purpose of this
direct final rule is to update 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 F2670-22 takes effect as the new CPSC standard
for infant bath tubs, 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 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
[[Page 37732]]
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 September 24,
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 a
change.'' 60 FR 43108, 43111 (Aug. 18, 1995). As noted, this rule
merely updates a reference in the CFR to reflect a change that occurs
by statute, and public comments should address this specific action.
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 bath tubs 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 adds additional marking, labeling, and instructional
literature language for battery-powered infant bath tubs, the new
requirements would not add to the burden hours because the products
already require marking, labeling, and instructional literature. The
new requirements merely require a small amount of labeling language in
addition to that already required by the standard, for infant bath tubs
using batteries. Therefore, the new requirements are not measurably
more burdensome than the existing requirements. The Commission took the
steps required by the PRA for information collections when it
promulgated 16 CFR part 1234, and the marking, labeling, and
instructional literature for infant bath tubs are currently approved
under OMB Control Number 3041-0159. Because the information collection
burden 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 timely notifies the standards organization that it has
determined 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 bath tubs. Therefore,
ASTM F2670-22 will take effect as the new mandatory standard for infant
bath tubs on September 24, 2022, 180 days after March 28, 2022, when
the Commission received notice of the revision.
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 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 1234
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 1234--SAFETY STANDARD FOR INFANT BATH TUBS
0
1. The authority citation for part 1234 continues to read as follows:
Authority: The Consumer Product Safety Improvement Act of 2008,
Pub. L. 110-314, 104, 122 Stat. 3016 (August 14, 2008); Pub. L. 112-
28, 125 Stat. 273 (August 12, 2011).
0
2. Revise Sec. 1234.2 to read as follows:
Sec. 1234.2 Requirements for Infant Bath Tubs.
Each infant bath tub must comply with all applicable provisions of
ASTM F2670-22, Standard Consumer Safety Specification for Infant Bath
Tubs, approved on March 1, 2022. 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. A read-only copy of the standard is available
for viewing on the ASTM website at https://www.astm.org/
[[Page 37733]]
READINGLIBRARY/. You may obtain a copy from ASTM International, 100
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959;
telephone (610) 832-9585; www.astm.org. You may inspect a copy at the
Division of the Secretariat, U.S. Consumer Product Safety Commission,
Room 820, 4330 East-West Highway, Bethesda, MD 20814, telephone (301)
504-7479, 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. 2022-13255 Filed 6-23-22; 8:45 am]
BILLING CODE 6355-01-P