[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Rules and Regulations]
[Pages 30226-30229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09999]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1272

[Docket No. CPSC-2023-0021]


Marking of Toy, Look-Alike, and Imitation Firearms

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: The Federal Energy Management Improvement Act Update 
transferred the authority for regulating the marking of toy, look-
alike, and imitation firearms from the Department of Commerce to the 
Consumer Product Safety Commission. The Commission is issuing this 
direct final rule to adopt the Department of Commerce rule for the 
marking of toy, look-alike, and imitation firearms, with non-
substantive and conforming changes.

DATES: The rule is effective June 26, 2023, unless CPSC receives a 
significant adverse comment by June 12, 2023. If CPSC receives such a 
comment, it will publish a notice in the Federal Register withdrawing 
this direct final rule before its effective date. The incorporation by 
reference of publications listed in this rule is approved by the 
Director of the Federal Register as of June 26, 2023.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2023-
0021, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: www.regulations.gov. Follow the instructions for 
submitting comments. 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. CPSC does not accept comments submitted by email, except as 
described below.
    Mail/Hand Delivery/Courier/Confidential Written Submissions: CPSC 
encourages you to submit comments by using the Federal eRulemaking 
Portal. You may, however, 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.
    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: www.regulations.gov. 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].
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number, CPSC-2023-0021, 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

    Section 4 of the Federal Energy Management Improvement Act of 1988 
made it unlawful for any person to manufacture, enter into commerce, 
ship, transport, or receive any toy, look-alike, or imitation firearm 
unless the firearm contains, or has affixed to it, a marking approved 
by the Secretary of Commerce. 15 U.S.C. 5001. In 1989, the Department 
of Commerce promulgated regulations implementing this law at 15 CFR 
part 1150. 54 FR 19356 (May 5, 1989). In 2013, the Department of 
Commerce moved those regulations to 15 CFR part 272. 78 FR 4764 
(January 23, 2013).
    The Department of Commerce regulations incorporate by reference 
ASTM F589-85, Standard Consumer Safety Specification for Non-Powder 
Guns, which ``establishes performance requirements and test methods 
intended to provide a reasonable degree of safety in the normal use of 
non-powder guns and projectiles.'' ASTM F589-85, section 3.1; 15 CFR 
272.1(b). That 1985 ASTM standard also addresses ``the misuse of non-
powder guns and specifies the minimum warnings and instructions that 
are to be provided in literature and on labels and packages.'' Id. 
section 3.2. ASTM later issued revised versions of F589, but the 
Department of Commerce did not incorporate the revisions into its 
regulations.
    The Department of Commerce regulations also describe requirements 
for the use of blaze orange coloring on toy, look-alike, or imitation 
firearms. 15 CFR 272.3. Those regulations incorporate by reference the 
federal color standard, Federal Standard 595B, December 1989, color 
number 12199 (Fed-Std-595B 12199). 15 CFR 272.3(e). In February 2017, 
the General Services Administration cancelled Federal Standard 595B and 
it was replaced with

[[Page 30227]]

SAE International's Aerospace Material Specification (AMS) Standard 
595A, Colors Used in Government Procurement. The AMS standard defines a 
color index system used by, but not limited to, government activities 
in a format suitable for color identification, color selection, color 
matching, and quality control inspection. It also describes the 
designation and use of color media that are available to conduct these 
activities. The Department of Commerce, however, did not update its 
regulations after the cancellation of Federal Standard 595B, so those 
regulations continue to incorporate by reference that federal standard.
    In August 2022, the President signed into law the Federal Energy 
Management Improvement Act Update.\1\ That law transferred 
implementation and enforcement of 15 U.S.C. 5001 from the Department of 
Commerce to CPSC. This direct final rule creates a new 16 CFR part 1272 
that adopts the substance of the existing Department of Commerce rule 
for the marking of toy, look-alike, and imitation firearms with only 
non-substantive and conforming changes.\2\
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    \1\ Public Law 117-167, div. B, title II, 10246(e), Aug. 9, 
2022, 136 Stat. 1492.
    \2\ The Commission voted 4-0 to approve publication of this 
notice.
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B. Description of the Rule

    This direct final rule creates a new part 1272, ``Marking of Toy, 
Look-Alike, and Imitation Firearms.'' Part 1272 adopts in substance the 
Department of Commerce regulation found in 15 CFR part 272.
    Part 1272 contains nomenclature and other non-substantive and 
conforming technical changes as described below.
     The incorporation by reference of ASTM F589-85 in Sec.  
1272.1(b) has been retained, with updates to provide current 
information reflecting the availability of the voluntary standard for 
public inspection, and to follow the current guidance of the Office of 
the Federal Register (OFR) for incorporating a voluntary standard by 
reference. Incorporation of the 1985 version of the ASTM F589 standard 
is being retained for consistency with the Department of Commerce 
regulation.
     ``Secretary of Commerce'' in Sec.  1272.3 has been changed 
to ``Consumer Product Safety Commission.''
     The incorporation by reference in Sec.  1272.3(e) has been 
updated from Federal Standard 595B-85 to reference SAE International's 
standard AMS STD 595A-17, Colors Used in Government Procurement. The 
current version incorporated in the rule is AMS STD 595A-17. The color 
12199 referenced in FED STD 595B is identical to color 12199 in AMS STD 
595A-17. Thus, this change of the color standard incorporated in the 
regulation is not substantive.
     The contact information for submitting a waiver request 
under Sec.  1272.4 has been changed to CPSC.

C. Incorporation by Reference

    Sections 1272.1 and 1272.3 of the direct final rule incorporate by 
reference ASTM F589-85 and AMS STD-595A-17, respectively. The 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, this preamble summarizes 
the provisions of ASTM F589-85 and AMS STD 595A-17 that the Commission 
incorporates by reference into 16 CFR part 1272. These standards are 
reasonably available to interested parties. A read-only copy of ASTM 
F589-85 is available for viewing, at no cost, on ASTM's website at: 
www.astm.org/READINGLIBRARY/. Interested parties can purchase a copy of 
ASTM F589-85 from ASTM International, 100 Barr Harbor Drive, P.O. Box 
C700, West Conshohocken, PA 19428-2959; telephone (610) 832-9585; 
www.astm.org.
    A read-only copy of AMS STD 595A-17 is available for viewing until 
the direct final rule takes effect, at no cost, on SAE's website at: 
https://www.sae.org/standards/reading-room. Once the rule takes effect, 
a read-only copy of the standard will continue to be available for 
viewing, at no cost, at the same web address. Interested parties can 
purchase a copy of SAE AMS STD 595A-17, Colors Used in Government 
Procurement, approved February 10, 2017, from SAE International, 400 
Commonwealth Dr., Warrendale, PA 15096; telephone (888) 875-3976; 
www.sae.org.
    Interested parties can also schedule an appointment to inspect a 
copy of the standards at Office of the Secretary, U.S. Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, MD 20814, 
telephone: (301) 504-7479; email: [email protected].

D. 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 because 
this rule adopts the substantive requirements of the Commerce 
regulation found in 15 CFR part 272 with only non-substantive and 
conforming changes, notice and comment are not necessary. The existing 
Commerce regulation has been in effect for over 30 years and 
stakeholders have been subject to the requirements of the regulation. 
CPSC is merely adopting the existing regulation in response to Congress 
transferring the authority for regulating markings on toy, look-alike, 
and imitation firearms under 15 U.S.C. 5001 from the Department of 
Commerce to CPSC.
    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 (August 18, 
1995). ACUS recommends that agencies use the direct final rule process 
when they act under the ``unnecessary'' prong of the good cause 
exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS 
recommendation, the Commission is publishing this rule as a direct 
final rule, because CPSC does not expect any significant adverse 
comments.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notification, the rule will become effective on June 26, 2023. 
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 a showing that 
challenges ``the rule's underlying premise or approach,'' or that the 
rule ``would be ineffective or unacceptable without a change.'' 60 FR 
43108, 43111 (August 18, 1995). As noted, this rule adopts the existing 
Commerce regulation without making substantive changes, and thus any 
public comments should address only this specific action.
    If the Commission receives a significant adverse comment, the 
Commission will withdraw this direct

[[Page 30228]]

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.

E. 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 to 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 D. 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.

F. Effective Date

    Unless the Commission receives a significant adverse comment by 
June 12, 2023, the rule will become effective on June 26, 2023. The 
requirements of 16 CFR part 1272 apply to look-alike and imitation 
firearms manufactured or imported after the effective date.

G. Certification

    Look-alike and imitation firearms are subject to the new 16 CFR 
part 1272. Section 14(a)(1) of the Consumer Product Safety Act (CPSA) 
requires manufacturers of non-children's 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 based on a test of each product, or on a reasonable 
testing program. 15 U.S.C. 2063(a)(1). Such certification is known as 
general conformity certification (GCC). Look-alike and imitation 
firearms that are not children's products are subject to the 
requirement to issue a GCC.
    Toy guns are children's products currently regulated under CPSC's 
mandatory toy standard. Specifically, toy guns are subject to the 
requirements for toy gun markings contained in section 4.30 of ASTM 
F963-17 that are incorporated by reference at 16 CFR 1250.2. The 
requirements of section 4.30 are in turn based on the requirements in 
the Department of Commerce regulation at 15 CFR part 272. 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, based on a third-party conformity assessment body's 
testing, that the product complies with the applicable children's 
product safety rule. Id. 2063(a)(2). Such certification is referred to 
as a children's product certificate (CPC). Section 14(a)(3) 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).
    In accordance with section 14(a)(3)(B)(vi) of the CPSA, the 
Commission previously published an NOR for accreditation of third party 
conformity assessment bodies for testing toy imitation firearms under 
section 4.30 for the required toy gun markings. 76 FR 46598 (Aug. 3, 
2011); 15 U.S.C. 2063(a)(3)(B)(vi). The NOR provided the criteria and 
process for CPSC to accept accreditation of third party conformity 
assessment bodies for toy gun markings under section 4.30 of ASTM F963. 
The NORs for all mandatory standards for children's products are listed 
in the Commission's rule, ``Requirements Pertaining to Third Party 
Conformity Assessment Bodies,'' codified in 16 CFR part 1112. 
Specifically, the NOR for section 4.30 of ASTM F963-17 is codified at 
16 CFR 1112.15(b)(32)(ii)(CC). Toy guns subject to the toy gun marking 
requirements of section 4.30 of ASTM F967-17 are currently required to 
certify, based on third party testing by a CPSC-accepted laboratory, 
that the toy gun complies with the requirements of section 4.30. 
Issuance of this rule does not impact the requirement for certification 
of toys guns under section 4.30 of ASTM F967-17. That requirement 
remains unchanged and manufacturers are expected to continue complying 
with it.

H. Preemption

    15 U.S.C. 5001(g) provides that the provisions of that section 
shall supersede any provision of state or local laws or ordinances 
which provide for markings or identification inconsistent with 
provisions of 5001(g), provided that no State shall:
     prohibit the sale or manufacture of any look-alike, 
nonfiring, collector replica of an antique firearm developed prior to 
1898, or
     prohibit the sale (other than prohibiting the sale to 
minors) of traditional B-B, paint ball, or pellet-firing air guns that 
expel a projectile through the force of air pressure.
    15 U.S.C. 5001(g). Therefore, new 16 CFR part 1272 will preempt any 
state or local laws in accordance with 5001(g).

I. Environmental Considerations

    Commission rules are categorically excluded 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. 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, OMB's Office of Information and Regulatory 
Affairs has determined that 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 1272

    Consumer protection, Imports, Incorporation by reference, Law 
enforcement, Safety.

0
For the reasons stated in the preamble, the Commission amends title 16 
of the CFR to add part 1272 to read as follows:

PART 1272--MARKING OF TOY, LOOK-ALIKE, AND IMITATION FIREARMS

Sec.
1272.1 Applicability.
1272.2 Prohibitions.
1272.3 Approved markings.
1272.4 Waiver.
1272.5 Preemption.

    Authority:  15 U.S.C. 5001.


Sec.  1272.1  Applicability.

    This part applies to toy, look-alike, and imitation firearms 
(``devices'') having the appearance, shape, and/or configuration of a 
firearm and produced or manufactured and entered into commerce on or 
after May 5, 1989, including devices modelled on real firearms 
manufactured, designed, and produced since 1898. This part does not 
apply to:

[[Page 30229]]

    (a) Non-firing collector replica antique firearms, which look 
authentic and may be a scale model but are not intended as toys 
modelled on real firearms designed, manufactured, and produced prior to 
1898;
    (b) Traditional B-B, paint-ball, or pellet-firing air guns that 
expel a projectile through the force of compressed air, compressed gas 
or mechanical spring action, or any combination thereof, as described 
in ASTM F589-85, Standard Consumer Safety Specification for Non-Powder 
Guns. ASTM F589-85, Standard Consumer Safety Specification for Non-
Powder Guns, approved June 28, 1985, is incorporated by reference into 
this section with the approval of the Director of the Federal Register 
under 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for 
inspection at the Consumer Product Safety Commission (CPSC) and at the 
National Archives and Records Administration (NARA). Contact CPSC at: 
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, visit www.archives.gov/federal-register/cfr/ibr-locations.html 
or email [email protected]. A read-only copy of the standard is 
available for viewing on the ASTM website at www.astm.org/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.
    (c) Decorative, ornamental, and miniature objects having the 
appearance, shape and/or configuration of a firearm, including those 
intended to be displayed on a desk or worn on bracelets, necklaces, key 
chains, and so on, provided that the objects measure no more than 
thirty-eight (38) millimeters in height by seventy (70) millimeters in 
length, the length measurement excluding any gun stock length 
measurement.


Sec.  1272.2  Prohibitions.

    No person shall manufacture, enter into commerce, ship, transport, 
or receive any toy, look-alike, or imitation firearm (``device'') 
covered by this part as set forth in Sec.  1272.1 unless such device 
contains, or has affixed to it, one of the markings set forth in Sec.  
1272.3, or unless this prohibition has been waived by Sec.  1272.4.


Sec.  1272.3  Approved markings.

    The following markings are approved by the Consumer Product Safety 
Commission:
    (a) A blaze orange (AMS STD 595A-17 color 12199) or orange color 
brighter than that specified by the AMS standard color number, solid 
plug permanently affixed to the muzzle end of the barrel as an integral 
part of the entire device and recessed no more than 6 millimeters from 
the muzzle end of the barrel.
    (b) A blaze orange (AMS STD 595A-17 color 12199) or orange color 
brighter than that specified by the AMS standard color number, marking 
permanently affixed to the exterior surface of the barrel, covering the 
circumference of the barrel from the muzzle end for a depth of at least 
6 millimeters.
    (c) Construction of the device entirely of transparent or 
translucent materials which permits unmistakable observation of the 
device's complete contents.
    (d) Coloration of the entire exterior surface of the device in 
white, bright red, bright orange, bright yellow, bright green, bright 
blue, bright pink, or bright purple, either singly or as the 
predominant color in combination with other colors in any pattern.
    (e) SAE AMS STD 595A-17, Colors Used in Government Procurement, 
approved February 10, 2017, is incorporated by reference into this 
section with the approval of the Director of the Federal Register under 
5 U.S.C. 552(a) and 1 CFR part 51. This material is available for 
inspection at the Consumer Product Safety Commission (CPSC) and at the 
National Archives and Records Administration (NARA). Contact CPSC at: 
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, visit www.archives.gov/federal-register/cfr/ibr-locations.html 
or email [email protected]. A read-only copy of the standard is 
available for viewing on the SAE website at https://www.sae.org/standards/reading-room. You may obtain a copy from SAE International, 
400 Commonwealth Dr., Warrendale, PA 15096; telephone (888) 875-3976; 
www.sae.org.


Sec.  1272.4  Waiver.

    The prohibitions set forth in Sec.  1272.2 may be waived for any 
toy, look-alike, or imitation firearm that will be used only in the 
theatrical, movie, or television industry. A request for such a waiver 
should be made, in writing, by email to [email protected] 
and by physical mail to U.S. Consumer Product Safety Commission, Office 
of Compliance and Field Operations, Regulatory Enforcement Division, 
7500 Lindbergh Dr., Unit-A, Gaithersburg, MD 20879-5413. The request 
must include a sworn affidavit which states that the toy, look-alike, 
or imitation firearm will be used only in the theatrical, movie, or 
television industry. A sample of the item must be included with the 
physically mailed request.


Sec.  272.5  Preemption.

    In accordance with section 4(g) of the Federal Energy Management 
Improvement Act of 1988 (15 U.S.C. 5001(g)), the provisions of section 
4(a) of that Act and the provisions of this part supersede any 
provision of State or local laws or ordinances which provides for 
markings or identification inconsistent with the provisions of section 
4 of that Act or the provisions of this part.

Pamela J. Stone,
Acting Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-09999 Filed 5-10-23; 8:45 am]
BILLING CODE 6355-01-P