[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Rules and Regulations]
[Pages 28403-28408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08997]
[[Page 28403]]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1261
[Docket No. CPSC-2023-0015]
Safety Standard for Clothing Storage Units
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
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SUMMARY: In November 2022, the U.S. Consumer Product Safety Commission
published a consumer product safety standard for clothing storage units
(CSUs) to protect children from tip-over-related death or injury, with
an effective date of May 24, 2023. In December 2022, the President
signed into law the STURDY legislation, which requires CPSC to either
develop and promulgate a new consumer product safety standard for CSUs
that meets certain requirements specified in STURDY or determine that a
voluntary standard exists that meets STURDY's requirements. If the
Commission determines that a timely issued voluntary standard satisfies
STURDY's criteria, then STURDY requires the Commission to promulgate a
final consumer product safety standard that adopts the applicable
performance requirements of the voluntary standard, to supersede any
existing CSU rule. On April 19, 2023, the Commission determined that
ASTM F2057-23, Standard Safety Specification for Clothing Storage
Units, is a voluntary standard that meets the requirements of STURDY.
In light of that determination, this direct final rule adopts the
requirements of ASTM F2057-23 as required by STURDY. Because STURDY
provides that adoption of the ASTM standard will supersede CPSC's
current rule, the current CSU rule, which was added in a final rule
published on November 25, 2022, is stayed and will not take effect.
DATES:
Effective date: The rule is effective September 1, 2023, unless the
Commission receives a significant adverse comment by June 5, 2023. If
the Commission receives such a comment, it will publish a document in
the Federal Register, withdrawing this direct final rule before its
effective date.
Incorporation by reference: The incorporation by reference of the
publication listed in this rule is approved by the Director of the
Federal Register as of September 1, 2023.
Stay and delay of effective date: The CSU rule promulgated as 16
CFR part 1261 in the final rule published at 87 FR 72598 on November
25, 2022, is stayed from May 4, 2023, through September 1, 2023, and
the effective date of amendatory instruction 3 (adding 16 CFR part
1261) at 87 FR 72598 is delayed from May 24, 2023, to September 1,
2023.
ADDRESSES: You can submit comments, identified by Docket No. CPSC-2023-
0015, 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 typically 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/Confidential Written Submissions: Submit
comments by mail, hand delivery, or courier to: Office of the
Secretary, 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. 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
through this website: 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/confidential 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-2023-0015, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Will Cusey, Small Business Ombudsman,
U.S. Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone (301) 504-7945 or (888) 531-9070; email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Statutory Authority
On November 25, 2022, the Commission published a consumer product
safety standard to protect children from tip-over-related death or
injury from CSUs (the current CSU rule), with an effective date of May
24, 2023. 87 FR 72598.
On December 29, 2022, President Biden signed STURDY into law.
Public Law 117-328, 136 Stat. 4459, Div. BB, tit. II, sec. 201. STURDY
provides that the Commission must assess whether ``a voluntary standard
exists that meets'' the performance and warning requirements in the
statute. STURDY sec. 201(d)(1). Specifically, the standard must protect
children from tip-over-related death or injury with ``tests that
simulate the weight of children up to 60 pounds,'' ``tests that
simulate real-world use and account for impacts on clothing storage
unit stability that may result from placement on carpeted surfaces,
drawers with items in them, multiple open drawers, and dynamic force,''
``testing of all clothing storage units, including those 27 inches and
above in height,'' and warnings. STURDY sec. 201(c)(2).
If the Commission determines that a voluntary standard exists that
was published not later than 60 days after STURDY's enactment, was
developed by ASTM International or another similar voluntary standards
organization, and meets STURDY's requirements for protecting children
from tip-over-related death or injury, then the Commission must, within
90 days of its determination, ``promulgate a final consumer product
safety standard'' that adopts the voluntary standard's relevant
performance requirements. STURDY sec. 201(d). Those mandatory
requirements ``will supersede any other existing standard for clothing
storage units to protect children from tip-over related death or
injury.'' STURDY sec. 201(d)(1).
If, however, no mandatory safety standard has been established for
CSUs based on a voluntary standard, then by December 29, 2023, the
Commission must ``promulgate a final consumer product safety standard
for clothing storage units to protect children from tip-over-related
death or injury.'' STURDY secs. 201(c)(1) and (c)(1)(B).
A consumer product safety standard promulgated under STURDY ``shall
be treated as a consumer product safety rule promulgated under section
9 of the Consumer Product Safety Act (15 U.S.C. 2058).'' STURDY secs.
201(c)(4), (d)(1).\1\
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\1\ On April 19, 2023, the Commission voted (3-1) to publish
this direct final rule: https://www.cpsc.gov/s3fs-public/Meeting-Minutes-Implementation-of-STURDY-201d-Determination-Regarding-ASTM-F2057-23-and-Draft-Direct-Final-Rule.pdf?VersionId=rY0PyWa3BlDDKuarLMDyaZrvms9DKi9X. The Chair and
Commissioners issued the following statements: https://www.cpsc.gov/About-CPSC/Chairman/Alexander-Hoehn-Saric/Statement/Statement-of-Chair-Alexander-Hoehn-Saric-on-the-Commission%E2%80%99s-Favorable-Determination-on-ASTM-F2057-23-and-Adoption-of-a-Final-Clothing-Storage-Unit-Stability-Rule-Under-STURDY; https://www.cpsc.gov/About-CPSC/Commissioner/Peter-A-Feldman/Statement/Statement-of-Commissioner-Peter-A-Feldman-on-Sturdy-Act-Determination; https://www.cpsc.gov/About-CPSC/Commissioner/Richard-Trumka/Statement/CPSC-Makes-Grave-Error-Increasing-Children%E2%80%99s-Risk-Of-Death-From-Furniture-Tip-Over-And-Creating-Legal-Peril-For-Agency; and https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-Mandatory-Safety-Standards-for-Clothing-Storage-Units.
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II. Analysis of ASTM F2057-23
On February 1, 2023, ASTM International approved a revised version
of its Standard Safety Specification for Clothing Storage Units, ASTM
F2057-23.
A. Consultation With Stakeholders
Over more than five years, CPSC staff has collaborated extensively
and received comments from manufacturers and retailers of CSUs,
consumer groups, independent product safety experts, and other
stakeholders, both within the ASTM standards-setting process and during
CPSC's notice-and-comment rulemaking. This consultation continued
through the development and balloting of ASTM F2057-23 and after the
adoption of STURDY, including a broadly attended set of meetings hosted
at CPSC's laboratory in January 2023.
Following ASTM's adoption of ASTM F2057-23, the Commission received
recommendations that it determine that ASTM F2057-23 meets the
requirements of STURDY. On February 7, 2023, Parents Against Tip-overs
(PAT) and the American Home Furnishings Alliance (AHFA) jointly sent a
letter to the Commission, in which they made a ``request for prompt
agency action to review and consider F2057-23 as a mandatory product
safety standard for clothing storage furniture.'' Attachment A to the
Staff Briefing Package.\2\ PAT and AHFA asserted that the updated
standard ``meets the specific requirements of the Act'' because:
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\2\ The Staff Briefing Package is available at https://www.cpsc.gov/s3fs-public/ImplementationofSTURDY_201dDeterminationRegardingASTMF2057_23andDraftDirectFinalRule.pdf?VersionId=sg.kGfSKseJHE9WZ5Clnla_JYKcSeH5Y.
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It includes performance tests that simulate ``real-world''
use of clothing storage furniture;
It includes performance tests that account for the impact
of carpeted flooring on CSU stability, as well as the impact of
``loaded'' drawers, multiple open drawers, and the dynamic force of a
child climbing or playing on the unit; and,
The performance tests simulate the weight of children up
to 60 pounds and apply to all clothing storage units 27 inches and
above in height.
PAT and AHFA also cited both STURDY and ASTM F2057-23 as ``the
result of an extraordinary collaborative effort between parents,
industry, consumer advocates and child safety experts,'' that
``achieved rare bipartisan backing in Congress.''
On February 20, 2023, PAT submitted a second letter to urge
``acceptance of ASTM F2057-23 as the final consumer product safety
standard for CSUs, according to the guidance provided under The STURDY
Act.'' Attachment B to the Staff Briefing Package. PAT stated in that
letter that ``[t]he tip-over problem has gone unresolved for far too
long, and adopting the new ASTM standard is the solution that will
result in much more stable CSUs'' than have historically been sold, and
thereby ``save lives.'' In addition, PAT reiterated its assertion that
ASTM F2057-23 was designed to and does meet the requirements of STURDY.
On March 3, 2023, Donald Mays, an independent product safety
expert, sent the Commission an assessment of the ASTM standard. Mr.
Mays stated that he analyzed the ASTM standard and the requirements of
STURDY and concluded that the Commission should ``adopt ASTM F2057-23
and incorporate that standard by reference in their rule.'' Attachment
C to the Staff Briefing Package. On March 6, 2023, Kids in Danger and
Consumer Reports jointly sent a letter to the Commission in which they
similarly ``urge[d] the Commission to promulgate a final consumer
product safety standard under the STURDY Act . . . that adopts [ASTM
F2057-23's] performance requirements as mandatory.'' Attachment D to
the Staff Briefing Package. Also on March 6, 2023, the Home Furnishings
Association (HFA), which stated that it represents 1,550 members and
more than 8,000 storefronts across the country, wrote to the Commission
urging adoption of ASTM F2057-23. HFA stated, ``We strongly believe
that the revised ASTM 2057-2023 safety standard for clothing storage
units meets the criteria outlined in the STURDY Act and must be adopted
by the CPSC as the federal Safety Standard. It achieves everyone's
goals of protecting children.'' Attachment E to the Staff Briefing
Package.
B. Staff Assessment of the Voluntary Standard
Staff assessed the voluntary standard in a Staff Briefing Package.
Staff noted that STURDY defines a clothing storage unit as ``any free-
standing furniture item manufactured in the United States or imported
for use in the United States that is intended for the storage of
clothing, typical of bedroom furniture.'' STURDY sec. 201(a). STURDY
also provides, however, that CPSC ``shall specify the types of
furniture items within the scope of subsection (a) as part of a
standard promulgated under [STURDY] based on tip-over data as
reasonably necessary to protect children up to 72 months of age.''
STURDY sec. 201(b). For a standard to satisfy the requirements of
STURDY, all types of clothing storage units specified by CPSC,
``including those 27 inches and above in height,'' must be tested.
STURDY sec. 201(c)(2)(C).
ASTM F2057-23 applies to ``free-standing clothing storage units,
including but not limited to chests, chests of drawers, drawer chests,
armoires, [chifforobes], bureaus, door chests, and dressers, which are
27 in. (686 mm) or greater in height, 30 lb (13.6 kg) or greater in
mass, and contain 3.2 ft \3\ (90.6 dm\3\) or greater of enclosed
storage volume.'' ASTM F2057-23 sec. 1.1. The standard ``does not cover
shelving units, such as bookcases or entertainment furniture, office
furniture, dining room furniture, jewelry armoires, underbed drawer
storage units, occasional/accent furniture not intended for bedroom
use, laundry storage/sorting units, or built-in units intended to be
permanently attached to the building, nor does it cover `Clothing
Storage Chests' as defined in Consumer Safety Specification F2598.''
ASTM F2057-23 sec. 1.2.
Although the ASTM voluntary standard does not include all CSUs as
defined in section 201(a) of STURDY, staff noted that STURDY
contemplates that not all ``clothing storage units'' would be subject
to a mandatory standard and gives CPSC the authority to limit ``the
types of furniture items'' that are within the scope of the rule based
on tip-over data. STURDY sec. 201(b). Indeed, STURDY specifies that
covered CSUs are limited to those ``intended for the storage of
clothing, typical of bedroom furniture,'' which staff noted could
further support a finding that the ASTM standard's exclusion of types
of furniture that are not free-standing, not intended for clothing
storage, and/or not bedroom
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furniture meets the requirements of STURDY. STURDY sec. 201(a).
The ASTM standard excludes units weighing less than 30 pounds
empty. The Commission has previously noted an absence of known
incidents causing death or serious injury for CSUs that weigh less than
30 pounds empty (see 87 FR 72628, Table 1). Therefore, staff assessed
that based on known tip-over data, the Commission could find that
testing units of less than 30 pounds is not ``reasonably necessary'' to
protect children from injury or death. STURDY sec. 201(b).
Similarly, staff noted that while there are data on nonfatal
incidents associated with tip-overs of CSU having a storage volume less
than 3.2 cubic feet, ASTM based this volume on the lowest known volume
of a fatal incident-involved CSU with a height of 27 inches or above.
Staff therefore concluded that the Commission could find that, based on
tip-over data, testing units having a storage volume less than 3.2
cubic feet is not ``reasonably necessary'' to protect children from
injury or death. STURDY sec. 201(b).
STURDY section 201(d)(2) establishes a checklist of requirements
that a voluntary standard must meet to become a mandatory standard. The
first requirement is that the standard ``protects children up to 72
months of age from tip-over-related death or injury.'' STURDY sec.
201(d)(2)(A). Section 7.1 of the ASTM standard states: ``The test
methods in this safety specification are intended to simulate the
reaction of a clothing storage unit on carpet, loaded drawers, multiple
open drawers, and a dynamic force from possible interaction of a child
up to 72 months.'' Staff therefore assessed that the Commission could
conclude that the standard ``protects children up to 72 months of age
from tip-over-related death or injury,'' as further described below.
Section 201(d)(2)(B) of STURDY requires that a voluntary standard
must meet requirements described in subsection (c)(2). Subsection
(c)(2) in turn requires:
Tests that simulate the weight of children up to 60
pounds;
Objective, repeatable, reproducible, and measurable tests,
or series of tests, that simulate real-world use and account for
impacts on clothing storage unit stability that may result from
placement on carpeted surfaces, drawers with items in them, multiple
open drawers, and dynamic force;
Testing of all clothing storage units as specified by the
Commission, including those 27 inches and above in height; and
Warning requirements based on ASTM F2057-19, or its
successor at the time of STURDY's enactment, provided that the
Commission may strengthen the warning requirements of ASTM F2057-19 or
its successor if reasonably necessary to protect children from tip-
over-related death or injury.
Staff assessed that the Commission could find that the ASTM
standard includes tests that simulate the weight of children up to 60
pounds. Staff noted that STURDY appears to use 72 months and 60 pounds
interchangeably; this, and the structure of STURDY, suggest that
Congress considered 60 pounds a representative weight for a 72-month-
old child. According to the 2000 Centers for Disease Control Clinical
Growth Charts, which ASTM members used as a reference for ASTM F2057-
23, 60 pounds is the approximate weight of a 95th percentile 72-month-
old child.
STURDY requires tests that simulate the weight of children up to 60
pounds, and ASTM F2057-23 has a set of three stability tests to
simulate the capability of a child weighing up to 60 pounds interacting
with a CSU. The first stability test, Section 9.2.1 Simulated Clothing
Load, loads drawers with simulated clothing loads. The CSU must not tip
over with all doors and extendible elements (movable load-bearing
storage components including, but not limited to, drawers and pullout
shelves) open. Staff assessed that it would be reasonable to conclude
that a child weighing up to 60 pounds would be able to open loaded
drawers and that the Commission could conclude that this is a test that
simulates the weight of children up to 60 pounds.
The second stability test, Section 9.2.2 Simulated Horizontal
Dynamic Force, applies a 10-pound horizontal force over a period of at
least 5 seconds at a ``hand-hold'' not to exceed a 56-inch height, and
then holds the force for at least 10 seconds. The Staff Briefing
Package cites a study that found the elbow pull strength of children 2
to 5 years old to be in the range of 6.14 to 26.0 pounds. Staff
assessed that the Commission could conclude that this second stability
test simulates the pull force of children up to 60 pounds.
The third stability test, Section 9.2.3 Simulating a Reaction on
Carpet with Child Weight, uses 60 pounds of weight placed on the edge
of an open drawer or pull-out shelf, while the CSU is tilted forward
using a 0.43 inch test block to simulate placement on a carpeted
surface, with all doors and extendible elements open. Based on the
requirements of STURDY, staff assessed that the Commission could
conclude that this is a test that simulates the static weight of
children up to 60 pounds.
STURDY also requires ``objective, repeatable, reproducible, and
measurable tests or series of tests that simulate real-world use and
account for impacts on clothing storage unit stability that may result
from placement on carpeted surfaces, drawers with items in them,
multiple open drawers, and dynamic force.'' STURDY sec. 201(c)(2)(B).
Staff noted that the ASTM F2057-23 test methods describe the steps to
take, specifications for test apparatus, load, dimension, and
tolerances for dimensions and loads, all of which are consistent with
accepted practices. Because all of these test methods are specified in
the ASTM standard, staff assessed that the Commission could conclude
that the tests in ASTM F2057-23 are objective, repeatable,
reproducible, and measurable.
Staff assessed that the ASTM stability tests utilize tests or a
series of tests that represent real-world conditions. For example,
section 9.2.1 Simulated Clothing Load tests the CSU with multiple open
and loaded drawers on a flat surface. Section 9.2.3 of ASTM 2057-23,
described above, is a stability test that simulates placement on a
carpeted surface with open drawers. The use of a 0.43-inch thick test
block (as specified in section 8.2.3) is consistent with the carpet
simulation in CPSC's final CSU rule. See 87 FR 72636. Staff assessed
that the Commission could, therefore, conclude that ASTM F2057-23
includes a stability test that simulates interaction with a CSU on a
carpeted surface, which is a real-world condition.
Section 9.2.1 of the ASTM standard, Simulated Clothing Load, is a
test conducted on a hard, level, and flat test surface with extendible
elements and doors open and, if 50 percent or more of the storage
volume is extended, the unit is to be filled with a ``simulated
clothing load.'' The fill weight in extendible elements is calculated
using a density of 8.5 pounds per cubic foot of volume, which is the
same density used by the Commission in its November 2022 rule. See 87
FR 72610-11. All extendible elements are opened and must remain open
for 30 seconds without tip over. Based on this test, staff assessed
that the Commission could conclude that ASTM F2057-23 includes a test
that simulates drawers with items in them and multiple open drawers,
which is another scenario reflecting real-world use.
STURDY section 201(c)(2)(D) requires warnings based on ASTM F2057-
19 (the predecessor standard to ASTM F2057-
[[Page 28406]]
23). Many of the warning requirements in section 10 of ASTM F2057-23,
Marking and Labeling, are substantively identical to those in the 2019
version. Product safety expert Donald Mays has opined that the ASTM
F2057-23 warning requirements differ from the F2057-19 requirements by
being ``more specific,'' adding requirements for conspicuous placement,
and warning against defeating drawer interlocks. Mays Letter at 4.
Therefore, staff assessed that the Commission could conclude that ASTM
F2057-23 meets the warning requirements of STURDY.
Lastly, under STURDY section 201(d)(2)(C) and (D), a voluntary
standard must be ``developed by ASTM International'' or another
voluntary standards organization that the Commission deems appropriate,
and such standard must be published not later than 60 days after
STURDY's enactment, i.e., by February 27, 2023. STURDY sec.
201(d)(2)(C) and (D). ASTM F2057-23, which ASTM International published
on February 6, 2023, satisfies these requirements.
C. Commission Determination
Based on the Commission's assessment of ASTM F2057-23 and for the
reasons stated in the Staff Briefing Package, on April 19, 2023, the
Commission determined that ASTM F2057-23 meets the requirements of
STURDY. Therefore, as required by STURDY, this direct final rule adopts
the requirements of that voluntary standard as a consumer product
safety standard. Because STURDY provides that adoption of the voluntary
standard ``will supersede any other existing standard for clothing
storage units,'' the current CSU rule would only be in effect for about
two months before being superseded by this new standard. Therefore, the
Commission finds good cause to stay the current CSU rule from May 4,
2023, through September 1, 2023, so that it will not take effect.
The Commission's determination to adopt ASTM F2057-23 is based on
the specific provisions of that standard and the unique history of its
adoption in conjunction with the STURDY legislation. The Commission
does not anticipate approving through the standard-revision process of
STURDY section 201(e) any changes to ASTM F2057-23 that would reduce
the level of protection for children up to 72 months of age from tip-
over-related death or injury. After December 2027, moreover, STURDY
allows the Commission ``to modify the requirements of [an adopted
voluntary] standard or to include additional provisions if the
Commission makes a determination that such modifications or additions
are reasonably necessary to protect children from tip-over-related
death or injury.'' STURDY sec. 201(f)(1).
III. Incorporation by Reference
In accordance with regulations of the Office of the Federal
Register (OFR), 1 CFR part 51, section II. of this preamble summarizes
ASTM F2057-23. The standard is reasonably available to interested
parties in several ways. Until the direct final rule takes effect, a
read-only copy 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. Additionally, interested parties
can purchase a copy of ASTM F2057-23 from ASTM International, 100 Barr
Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA;
phone: 610-832-9585; www.astm.org. Interested parties also can schedule
an appointment to inspect a copy of the standard at CPSC's Office of
the Secretary, U.S. Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: [email protected].
IV. Testing and Certification
Section 14(a) of the Consumer Product Safety Act (CPSA) includes
requirements for certifying that children's products and non-children's
products comply with applicable mandatory standards. 15 U.S.C. 2063(a).
Section 14(a)(1) addresses required certifications for non-children's
products, and sections 14(a)(2) and (a)(3) address certification
requirements specific to children's products.
A ``children's product'' is a consumer product ``designed or
intended primarily for children 12 years of age or younger.'' Id.
2052(a)(2). The following factors are relevant when determining whether
a product is a children's product:
Manufacturer statements about the intended use of the
product, including a label on the product if such statement is
reasonable;
Whether the product is represented in its packaging,
display, promotion, or advertising as appropriate for use by children
12 years of age or younger;
Whether the product is commonly recognized by consumers as
being intended for use by a child 12 years of age or younger; and
The Age Determination Guidelines issued by CPSC staff in
September 2002, available at https://www.cpsc.gov/content/2002-Age-Determination-Guidelines, and any successor to such guidelines.
Id. ``For use by children 12 years and younger'' generally means
that children will interact physically with the product based on
reasonably foreseeable use. 16 CFR 1200.2(a)(2). Children's products
may be decorated or embellished with a children's theme, be sized for
children, or be marketed to appeal primarily to children. Id. Sec.
1200.2(d)(1).
This rule requires CSUs that are not children's products to meet
the certification requirements under section 14(a)(1) of the CPSA and
requires CSUs that are children's products to meet the certification
requirements under section 14(a)(2) and (a)(3) of the CPSA. The
Commission's requirements for certificates of compliance are codified
at 16 CFR part 1110. Section 14(a)(1) of the CPSA requires every
manufacturer (which includes importers) of a non-children's product
that is subject to a consumer product safety rule under the CPSA or a
similar rule, ban, standard, or regulation under any other law enforced
by the Commission to certify that the product complies with all
applicable CPSC-enforced requirements. 15 U.S.C. 2063(a)(1). Section
14(a)(2) of the CPSA requires the manufacturer or private labeler of a
children's product that is subject to a children's product safety rule
to certify that, based on a third-party conformity assessment body's
testing, the product complies with the applicable children's product
safety rule. Id. 2063(a)(2). Section 14(a) also requires the Commission
to publish a notice of requirements (NOR) for a third-party conformity
assessment body (i.e., testing laboratory) to obtain accreditation to
assess conformity with a children's product safety rule. Id.
2063(a)(3)(A). Because some CSUs are children's products, the rule is a
children's product safety rule as applied to those products.
The Commission published a final rule, codified at 16 CFR part
1112, Requirements Pertaining to Third Party Conformity Assessment
Bodies, which established requirements and criteria concerning testing
laboratories. Part 1112 includes procedures for CPSC to accept a
testing laboratory's accreditation and lists the children's product
safety rules for which CPSC has published NORs. The stability standard
for CSUs is on the list of children's product safety rules for which
CPSC has issued an NOR. 87 FR 72598 (Nov. 25, 2022); 16 CFR
1112.15(b)(54). Testing laboratories that apply for CPSC acceptance to
test CSUs that are children's products for compliance with the rule
must meet the requirements in
[[Page 28407]]
part 1112. When a laboratory meets the requirements of a CPSC-accepted
third party conformity assessment body, the laboratory can apply to
CPSC to include 16 CFR part 1261, Safety Standard for Clothing Storage
Units, in the laboratory's scope of accreditation listed on the CPSC
website at www.cpsc.gov/labsearch.
The requirements of ASTM F2057-23 are sufficiently similar to the
current CSU rule that firms approved to test to the current rule can
also test to ASTM F2057-23. Therefore, the existing NOR will remain in
place. CPSC-accepted third party labs are expected to update the scope
of their accreditations to reflect the revised standard in the normal
course of renewing their accreditations.
V. 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 purpose of this direct final rule is to adopt the applicable
performance requirements of ASTM F2057-23. STURDY requires that once
the Commission has determined that ASTM F2057-23 ``exists'' and ``meets
the requirements'' of STURDY section 201(d)(2), it must adopt the
applicable performance requirements of ASTM F2037-23, which ``shall be
treated as a consumer product safety rule promulgated under section 9
of the Consumer Product Safety Act.'' STURDY sec. 201(d)(1). Because
the Commission made this determination on April 19, 2023, the adoption
of ASTM F2057-23 as a mandatory standard is required by law, and public
comments would not lead to substantive changes to the standard or to
the effect of the standard as a consumer product safety rule. Under
these circumstances, notice and comment are unnecessary.
In Recommendation 95-4, the Administrative Conference of the United
States (ACUS) endorses direct final rulemaking as an appropriate
procedure to expedite rules that are noncontroversial and that are not
expected to generate significant adverse comments. See 60 FR 43108
(Aug. 18, 1995). ACUS recommends that agencies use the direct final
rule process when they act under the ``unnecessary'' prong of the good
cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS
recommendation, the Commission is publishing this rule as a direct
final rule, because CPSC does not expect any significant adverse
comments.
If the Commission receives a significant adverse comment, the
Commission will withdraw this direct final rule. 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 undermining ``the rule's
underlying premise or approach,'' or a showing that the rule ``would be
ineffective or unacceptable without change.'' 60 FR 43108, 43111.
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.
VI. 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 this
preamble, the Commission has determined that notice and the opportunity
to comment are unnecessary for this rule. Therefore, the RFA does not
apply.
VII. Paperwork Reduction Act
The current CSU rule 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). This revised mandatory standard contains similar
warning and labeling requirements compared to the current rule, but
does not require a hang tag. Therefore, this rule does not increase the
burden of these requirements. The Commission took the steps required by
the PRA for information collections when it adopted 16 CFR part 1261,
including obtaining approval and a control number. Because the warning
and labeling burden is similar and there is no increase in the
information collection burden but only a reduction, the revision does
not affect the information collection requirements or approval related
to the standard.
VIII. Environmental Considerations
The Commission's regulations provide for a categorical exclusion
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.
IX. 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. STURDY deems a rule
issued under that Act to be a ``consumer product safety standard.''
Therefore, once this takes effect, it will preempt in accordance with
section 26(a) of the CPSA.
X. Effective Date
Under STURDY, this rule ``shall take effect 120 days after the date
of the promulgation of the rule, or such a later date as the Commission
determines appropriate.'' Manufacturers of CSUs have been aware of new
stability requirements since the current CSU rule was published in
November 2022, and the instant rule is based on a voluntary standard
published in February 2023. The Commission accordingly will make this
rule effective 120 days after promulgation. Unless the Commission
receives a significant adverse comment within 30 days of this direct
final rule's publication, the rule will become effective on September
1, 2023. As a consumer product safety standard under the CPSA, this
rule applies to CSUs manufactured after the effective date. 15 U.S.C.
2058(g)(1).
XI. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that
before a rule may take effect, the agency issuing the rule must submit
the rule, and certain related information, to each House of Congress
and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission
must indicate whether the rule is a ``major rule.'' The CRA states
[[Page 28408]]
that the Office of Information and Regulatory Affairs (OIRA) determines
whether a rule qualifies as a ``major rule.''
Pursuant to the CRA, OIRA has determined that this rule is 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 1261
Consumer protection, Imports, Incorporation by reference,
Information, Labeling, Safety.
0
The Commission revises 16 CFR part 1261 to read as follows:
PART 1261--SAFETY STANDARD FOR CLOTHING STORAGE UNITS
Sec.
1261.1 Scope and purpose.
1261.2 Requirements for clothing storage units.
Authority: 15 U.S.C. 2058; Div. BB, tit. II, sec. 201, Pub. L.
117-328, 136 Stat. 4459.
Sec. 1261.1 Scope and purpose.
(a) Scope and purpose. This part, a consumer product safety
standard, prescribes safety requirements for clothing storage units, as
defined in paragraph (b) of this section. The requirements in this part
are intended to protect children up to 72 months of age from tip-over-
related death or injury.
(b) Application. Clothing storage unit means any free-standing
furniture item manufactured in the United States or imported for use in
the United States that is intended for the storage of clothing, typical
of bedroom furniture. All clothing storage units that are manufactured
after September 1, 2023, are subject to the requirements of this part.
Sec. 1261.2 Requirements for clothing storage units.
Each clothing storage unit that is subject to ASTM F2057-23,
Standard Safety Specification for Clothing Storage Units, approved on
February 1, 2023, shall comply with ASTM F2057-23. ASTM F2057-23 is
incorporated by reference into this section with the approval of the
Director of the Federal Register under 5 U.S.C. 552 and 1 CFR part 51.
This material is available for inspection at the U.S. Consumer Product
Safety Commission and at the National Archives and Records
Administration (NARA). Contact the U.S. Consumer Product Safety
Commission at the Office of the Secretary, U.S. Consumer Product Safety
Commission, 4330 East West Highway, Bethesda, MD 20814, telephone (301)
504-7479, email: [email protected]. 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. A free, read-
only copy of the standard is available for viewing on the ASTM website
at https://www.astm.org/READINGLIBRARY/. You may also 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.
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-08997 Filed 5-3-23; 8:45 am]
BILLING CODE 6355-01-P