[Federal Register Volume 87, Number 136 (Monday, July 18, 2022)]
[Rules and Regulations]
[Pages 42633-42636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15267]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1231

[Docket No. CPSC-2015-0031]


Amendment to Incorporation by Reference in Safety Standard for 
High Chairs

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Consumer Product Safety Commission (Commission or 
CPSC) previously published a consumer product safety standard for high 
chairs under section 104 of the Consumer Product Safety Improvement Act 
of 2008 (CPSIA). The CPSC mandatory standard incorporates by reference 
the ASTM voluntary standard for high chairs. ASTM recently updated this 
voluntary standard. Pursuant to the CPSIA, the updated ASTM standard 
will become the CPSC mandatory standard for high chairs effective July 
23, 2022. The Commission is issuing a final rule to update the version 
of the standard that is incorporated by reference in its regulations to 
reflect the version that will be mandatory by operation of law under 
the CPSIA.

DATES: This final rule is effective on July 23, 2022.

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 Provisions

    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 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 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 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, then 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 High Chairs

    In June 2018, under section 104(b)(1) of the CPSIA, the Commission 
adopted a mandatory rule for high chairs, codified in 16 CFR part 1231. 
The rule incorporated by reference ASTM F404-18, Standard Consumer 
Safety Specification for High Chairs, with no modifications. 83 FR 
28358 (June 19, 2018). At the time the Commission

[[Page 42634]]

published the final rule, ASTM F404-18 was the current version of the 
voluntary standard.
    In April 2019, ASTM notified CPSC that it had issued a revised 
standard for high chairs, ASTM F404-18a. In accordance with the 
procedures set out in section 104(b)(4)(B) of the CPSIA, the Commission 
determined that the updated standard did not improve the safety of high 
chairs and notified ASTM accordingly, thereby retaining ASTM F404-18 as 
the mandatory standard.\1\
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    \1\ CPSC staff's briefing package regarding ASTM F404-18a is 
available at: https://www.cpsc.gov/s3fs-public/Update%20to%20Voluntary%20Standard%20for%20High%20Chairs.pdf.
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    In January 2021, ASTM again notified CPSC that it had issued a 
revised standard for high chairs, ASTM F404-20. The Commission allowed 
the revised standard to become the new mandatory standard for high 
chairs, effective July 3, 2021. The Commission published a direct final 
rule to update 16 CFR part 1231, incorporating by reference ASTM F404-
20, with no modifications. 86 FR 17296 (Apr. 2, 2021).
    On January 24, 2022, ASTM notified CPSC that it had again revised 
the voluntary standard for high chairs, approving ASTM F404-21 on 
November 15, 2021.\2\ On April 22, 2022, the Commission voted on 
whether to accept the revised ASTM standard as the mandatory standard 
for high chairs.\3\ The Commission did not reach a majority vote and, 
accordingly, no action was taken. As such, by operation of law under 
section 104(b)(4)(B) of the CPSIA, ASTM F404-21 will become the 
mandatory consumer product safety standard for high chairs on July 23, 
2022, 180 days after CPSC received notice of the ASTM update. 15 U.S.C. 
2056a(b)(4)(B).
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    \2\ ASTM published ASTM F404-21 in January 2022.
    \3\ CPSC staff's briefing package regarding ASTM F404-21 is 
available at: https://www.cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-High-Chairs_0.pdf?VersionId=OQF17Ki4XDJr0GJJikxve5tPrGpZmuC8. The 
Commission voted 2-2. Chair Hoehn-Saric and Commissioner Baiocco 
voted to approve publication of a direct final rule to update the 
mandatory standard to incorporate by reference ASTM F404-21; 
Commissioners Feldman and Trumka voted not to approve publication of 
the direct final rule. Chair Hoehn-Saric, Commissioner Feldman, and 
Commissioner Trumka issued statements with their votes.
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    To align the Commission's regulations with the update that will 
take effect by operation of law, this final rule updates 16 CFR part 
1231 to incorporate by reference ASTM F404-21.\4\
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    \4\ The Commission voted 5-0 to approve this notification.
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B. Revisions to ASTM F404

    The ASTM standard for high chairs includes performance 
requirements, test methods, and requirements for warning labels and 
instructional literature, to address hazards to children associated 
with high chairs, including stability, structural integrity, trays, 
restraints, and entrapment. This section describes the changes in ASTM 
F404-21, as compared to ASTM F404-20, which is the current mandatory 
standard. ASTM F404-21 contains substantive revisions, as well as 
editorial, non-substantive revisions.

1. Substantive Revisions

    ASTM F404-21 includes updates to section 7.7, Stability Testing, to 
clarify the design and placement of test weights, which are used to 
conduct forward, sideways, and rearward stability testing, prescribed 
in sections 7.7.2.5, 7.7.2.6, and 7.7.27 of the standard.
    The first revision is in section 7.7.1 of the standard. This 
section states that the test weight is a ``steel weight'' with 
specified dimensions. In ASTM F404-20, note 11 to section 7.7.1 stated 
that the steel test weight size was designed to allow the use of eight 
stacked plates of standard, cold-rolled steel, with specified 
dimensions. In ASTM F404-21, note 11 has been revised to allow for the 
use of a solid steel block as the test weight, as an alternative to the 
stack of cold-rolled steel plates.
    The second revision is in section 7.7.2.3, which specifies the 
placement of test weights on the seat. ASTM F404-20 specified that test 
weights were to be placed horizontally on the seat bottom with the 
longest dimension in the front-to-back direction and in contact with 
the seat back. In ASTM F404-21, section 7.7.2.3 and note 12 to that 
section have been revised so that when test weights cannot be centered 
on a seating surface when oriented horizontally, they may be oriented 
vertically on the seat to align the center of the test weights with the 
center of the seat.
    The third revision relocated section 7.7.2.1 to section 7.7.2.4. 
This section specifies that, for high chairs that include a tray, the 
tray is to be adjusted to the rear position, closest to the seat back 
for stability testing. In ASTM F404-20, tray adjustment occurred at the 
beginning of the stability testing procedure before test weights were 
placed in the high chair. In ASTM F404-21, the tray adjustment occurs 
after the placement of test weights. The standard now specifies that, 
for high chairs that include a tray, the tray is to be adjusted to the 
rear position, closest to the seat back or until the tray comes into 
contact with the test weight on the seat.

2. Non-Substantive Revisions

    ASTM F404-21 also includes minor additions and revisions that are 
editorial and do not alter any substantive requirements in the 
standard. These changes include revising section numbers referenced 
throughout the standard to reflect updated section numbers in section 7 
of the standard; revising wording for clarity; adding conversions to 
metric units for certain measurements; and changing the phrase 
``restraining system'' to ``restraint system,'' to be consistent with 
other standards.

C. Incorporation by Reference

    Section 1231.2 of the final rule incorporates by reference ASTM 
F404-21. 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).
    In accordance with the OFR regulations, section B. Revisions to 
ASTM F404 of this preamble summarizes the major provisions of ASTM 
F404-21 that the Commission incorporates by reference into 16 CFR part 
1231. The standard is reasonably available to interested parties. Until 
the final rule takes effect, a read-only copy of ASTM F404-21 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 F404-21 from ASTM International, 100 Barr 
Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; 
telephone: (610) 832-9585; www.astm.org.

[[Page 42635]]

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 high chairs are children's products, a CPSC-accepted third 
party conformity assessment body must test samples of the products. 
Products subject to part 1231 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 
high chairs. 83 FR 28358 (June 19, 2018). The NOR provided the criteria 
and process for CPSC to accept accreditation of third party conformity 
assessment bodies for testing high chairs to 16 CFR part 1231. 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 F404-21 includes revised requirements for testing high chairs. 
However, these revisions to test requirements do not require additional 
equipment or significant changes to existing test protocols. The change 
to test weight design provides an alternative to the existing 
requirement, and the changes to test weight orientation and tray 
adjustment alter only the timing and placement of features during 
existing test procedures. Accordingly, the revisions do not 
significantly change the way that third party conformity assessment 
bodies test these products for compliance with the safety standard for 
high chairs. Laboratories will begin testing to the new standard when 
ASTM F404-21 takes 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 F404-20 to be 
capable of testing to ASTM F404-21 as well. 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. Good Cause for Immediate Adoption

    The Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally 
requires agencies to provide notice of a rule, an opportunity for 
interested parties to comment on it, and that the rule be published at 
least 30 days before its effective date. 5 U.S.C. 553(b), (c), (d). 
However, under section 553(b)(3)(B) of the APA, the notice and comment 
requirement does not apply when an agency ``for good cause finds'' that 
notice and comment procedures are ``impracticable, unnecessary, or 
contrary to the public interest'' and includes such finding and a brief 
statement of supporting reasons in the rule. In addition, section 
553(d)(3) of the APA allows an agency, upon finding good cause and 
publishing it with the rule, to make a rule effective earlier than the 
30-day delay required in the statute.
    As discussed above, this final rule updates the Commission's 
regulations to reflect a revision to the mandatory standard that 
automatically will take effect by operation of law under the CPSIA. 
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 of the CPSIA, that revision 
will become the new mandatory CPSC standard, unless the Commission 
determines that ASTM's revision does not improve the safety of the 
product and so notifies ASTM. Thus, if the Commission does not take 
these steps to reject an update, the ASTM revision becomes CPSC's 
standard by operation of law. Because the Commission did not notify 
ASTM that it was rejecting ASTM F404-21 within 90 days of notification, 
the revised standard will become mandatory by operation of law on July 
23, 2022.
    The purpose of this final rule is to update the reference in the 
Code of Federal Regulations (CFR) so that it reflects the version of 
the standard that will take effect by statute. This rule updates the 
reference in the CFR, but under the terms of the CPSIA, ASTM F404-21 
will take effect as the new CPSC standard for high chairs, even if the 
Commission does not issue this rule. Because the update will take 
effect by operation of law, this final rule does not substantively 
alter the mandatory standard; rather, it aligns the regulations with 
the statutory mandate that takes effect on July 23, 2022. As such, 
public comments would not alter the substance of the standard or the 
effect of the revised standard as a consumer product safety standard 
under section 104 of the CPSIA. Therefore, the Commission finds that 
notice and public comment on this final rule are unnecessary.
    In addition, the Commission finds good cause to make this rule 
effective on July 23, 2022, rather than providing a 30-day delay before 
the effective date. If the update to the regulations is delayed, the 
regulations will not reflect the correct version of the ASTM standard 
that is mandatory, making the regulations inaccurate and potentially 
confusing for regulated entities. Moreover, because this final rule 
merely updates the regulations to reflect a statutory change to the 
mandatory standard, a delayed effective date is unnecessary, as 
regulated entities will have to comply with the revised standard as of 
July 23, 2022, regardless of whether the regulations have been updated. 
Therefore, the Commission finds good cause to make this final rule 
effective on July 23, 2022.

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. 
Good Cause for Immediate Adoption of this preamble, the Commission has 
determined that notice and the opportunity to comment are

[[Page 42636]]

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 
will take effect under section 104 of the CPSIA.

H. Paperwork Reduction Act

    The mandatory standard for high chairs 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 updated 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 1231, 
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 and so notifies the standards organization, or the 
Commission sets a later date in the Federal Register. 15 U.S.C. 
2056a(b)(4)(B). Because the Commission did not notify ASTM that it was 
rejecting the update or set a later effective date, ASTM F404-21 will 
take effect as the new mandatory standard for high chairs on July 23, 
2022, 180 days after January 24, 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 1231

    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 1231--SAFETY STANDARD FOR HIGH CHAIRS

0
1. The authority citation for part 1231 continues 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.  1231.2 to read as follows:


Sec.  1231.2  Requirements for high chairs.

    Each high chair shall comply with all applicable provisions of ASTM 
F404-21, Standard Consumer Safety Specification for High Chairs, 
approved on November 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. A read-only copy of the standard is available 
for viewing on the ASTM website at https://www.astm.org/READINGLIBRARY/. You may obtain a copy from ASTM International, 100 
Barr Harbor Drive, PO 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. 2022-15267 Filed 7-15-22; 8:45 am]
BILLING CODE 6355-01-P