Federal Register, Volume 77 Issue 147 (Tuesday, July 31, 2012)

[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Rules and Regulations]
[Pages 45242-45246]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18483]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1215 and 1219

Revisions to Safety Standards for Durable Infant or Toddler
Products: Infant Bath Seats and Full-Size Cribs

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In accordance with section 104(b) of the Consumer Product
Safety Improvement Act of 2008 (CPSIA), also known as the Danny Keysar
Child Product Safety Notification Act, the U.S. Consumer Product Safety
Commission (Commission, CPSC, or we) has published consumer product
safety standards for numerous durable infant or toddler products,
including infant bath seats and full-size cribs. These standards
incorporated by reference the ASTM voluntary standards associated with
those products, with some modifications. In August 2011, Congress
enacted Public Law 112-28, which sets forth a process for updating
standards that the Commission has issued under the authority of section
104(b) of the CPSIA. In accordance with that process, we are publishing
this direct final rule, revising the CPSC's standards for infant bath
seats and full-size cribs to incorporate by reference more recent
versions of the applicable ASTM standards. Because the changes to the
ASTM standards make them essentially identical to the standards that
the CPSC has issued previously, no changes to the products are
required. We also received notification from ASTM of an updated ASTM
standard for toddler beds. However, the Commission is not accepting the
revised ASTM standard for toddler beds, and therefore, the CPSC
standard for toddler beds will remain as it currently is stated at 16
CFR part 1217.

DATES: The rule is effective on November 12, 2012, unless we receive
significant adverse comment by August 30, 2012. If we receive timely
significant adverse comments, we will publish notification in the
Federal Register, withdrawing this direct final rule before its
effective date. The incorporation by reference of the publications
listed in this rule is approved by the Director of the Federal Register
as of November 12, 2012. The compliance dates for the full-size crib
standard remain as stated in 16 CFR 1219.1(b).

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2012-
0039, by any of the following methods:

[[Page 45243]]

Submit electronic comments in the following way:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments. To ensure timely processing of
comments, the Commission is no longer accepting comments submitted by
electronic mail (email), except through www.regulations.gov.
Submit written submissions in the following way:
Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions), preferably in five copies, to: Office of the Secretary,
Consumer Product Safety Commission, Room 820, 4330 East West Highway,
Bethesda, MD 20814; telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received may be posted
without change, including any personal identifiers, contact
information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
electronically. Such information should be submitted in writing.

FOR FURTHER INFORMATION CONTACT: For information related to the full-
size crib standard, contact Troy Whitfield, Office of Compliance and
Field Operations, Consumer Product Safety Commission, Bethesda, MD
20814-4408; telephone (301) 504-7548; twhitfield@cpsc.gov. For
information related to the infant bath seat standard, contact Carolyn
Manley, Office of Compliance and Field Operations, Consumer Product
Safety Commission, Bethesda, MD 20814-4408; telephone (301) 504-7607;
cmanley@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

The Danny Keysar Child Product Safety Notification Act. The
Consumer Product Safety Improvement Act of 2008 (CPSIA, Pub. L. 110-
314) was enacted on August 14, 2008. Section 104(b) of the CPSIA, also
known as the Danny Keysar Child Product Safety Notification Act,
requires the Commission to promulgate consumer product safety standards
for durable infant or toddler products. The law requires that these
standards are to be ``substantially the same as'' applicable voluntary
standards or more stringent than the voluntary standards if the
Commission concludes that more stringent requirements would further
reduce the risk of injury associated with the product. Under the
statute, the term ``durable infant or toddler product'' explicitly
includes infant bath seats, full-size cribs, and toddler beds. In
accordance with section 104(b), the Commission has published safety
standards for these products that incorporate by reference the relevant
ASTM standards with certain modifications that make the voluntary
standard more stringent.
Public Law 112-28. On August 12, 2011, Congress enacted Public Law
112-28, amending and revising several provisions of the CPSIA,
including the Danny Keysar Child Product Safety Notification Act. The
revised provision sets forth a process for updating CPSC's durable and
infant or toddler standards when the voluntary standard upon which the
CPSC standard was based is changed. This provision states that if an
organization revises a standard that has been adopted, in whole or in
part, as a consumer product safety standard under this subsection, it
shall notify the Commission. The revised voluntary standard shall be
considered to be a consumer product safety standard issued by the
Commission under section 9 of the Consumer Product Safety Act (15
U.S.C. 2058), effective 180 days after the date on which the
organization notifies the Commission (or such later date specified by
the Commission in the Federal Register) unless, within 90 days after
receiving that notice, the Commission notifies the organization that it
has determined that the proposed revision does not improve the safety
of the consumer product covered by the standard and that the Commission
is retaining the existing consumer product safety standard. See Public
Law 112-28, section 3.
Notification and Review of Revisions. On May 16, 2012, ASTM
notified us of ASTM's approval and publication of revisions to ASTM
F1169, Standard Consumer Safety Specification for Full-Size Baby Cribs;
ASTM F1967, Standard Consumer Safety Specification for Infant Bath
Seats; and ASTM F1821, Standard Consumer Safety Specification for
Toddler Beds. In its notification, ASTM stated that revisions to these
standards have occurred since the enactment of Public Law 112-28.
The Commission has reviewed the revisions. ASTM's revision to its
toddler bed standard, ASTM F1821-11b, does not include several of the
modifications that the Commission made in its mandatory standard at 16
CFR part 1217. Therefore, we have determined that ASTM F1821-11b does
not improve the safety of toddler beds, and we are notifying ASTM that
the Commission will retain the CPSC toddler bed standard at 16 CFR part
1217 as it is.
As explained below, ASTM's revisions to its standards for infant
bath seats and full-size cribs make these revised ASTM standards
essentially identical to the CPSC mandated standards for these
products. In accordance with Public Law 112-28, unless the Commission
determines that these revisions do not improve the safety of these
consumer products, the revised ASTM standards for infant bath seats and
full-size cribs will become the new CPSC mandatory standard for those
products. We are publishing this direct final rule revising the
incorporation by reference that is stated in each of these rules so
that they will accurately reflect the revised version of the relevant
ASTM standards.

B. Revisions to the Particular ASTM Standards

1. Infant Bath Seats

On June 4, 2010, the Commission published a final rule issuing a
safety standard for infant bath seats that incorporated by reference
ASTM F1967-08a, Standard Consumer Specification for Infant Bath Seats,
with certain modifications to make the standard more stringent. 75 FR
31691.
ASTM notified us that the current version of the ASTM standard for
infant bath seats is ASTM F1967-11a, which was approved and published
in September 2011. Two previous revisions, ASTM F1967-10 and ASTM
F1967-11, made minor changes to the ASTM standard. ASTM F1967-11a
includes all the modifications that CPSC made when it issued its
mandatory standard. Thus, the revised ASTM standard, ASTM F1967-11a, is
essentially identical to CPSC's mandatory standard for infant bath
seats at 16 CFR part 1215. Because the revised ASTM standard is
essentially identical to the current mandatory standard, the Commission
will not make the determination that ``the proposed revision does not
improve the safety'' of infant bath seats, under Public Law 112-28.
Therefore, in accordance with Public Law 112-28, the revised ASTM
standard for infant bath seats becomes the new CPSC standard 180 days
from the date we received notification of the revision from ASTM. This
rule revises the incorporation by reference at 16 CFR part 1215, to
reference the revised ASTM standard.

2. Full-Size Cribs

On December 28, 2010, the Commission published a final rule issuing
a standard for full-size cribs that incorporated by reference ASTM
F1969-10, with two modifications to

[[Page 45244]]

make the standard more stringent. 75 FR 81766.
ASTM notified us that the current version of the ASTM standard for
full-size cribs is ASTM F1169-11, which was approved and published in
September 2011. A previous revision, ASTM F1169-10a, made one change
that clarified testing of cribs with folding or moveable sides. This
change was identical to one of the modifications that the Commission
made in its mandatory standard. ASTM F1169-11 has two additional
revisions. One is editorial and corrects a typographical error. The
other change tracks a modification that the Commission made in its
mandatory standard: it removes a provision that required retightening
of hardware between tests. With these changes, ASTM F 1169-11 is now
essentially identical to the full-size crib standard that the
Commission mandated at 16 CFR part 1219. Because the revised ASTM
standard is essentially identical to the current mandatory standard,
the Commission will not make the determination that ``the proposed
revision does not improve the safety'' of full-size cribs. Therefore,
in accordance with Public Law 112-28, the revised ASTM standard for
full-size cribs becomes the new CPSC standard 180 days from the date we
received notification of the revision from ASTM. This rule revises the
incorporation by reference at 16 CFR part 1219 to reference the revised
ASTM standard.
The 2010 crib rule fulfilled the direction in the Danny Keysar
Child Product Safety Notification Act to issue standards for durable
infant or toddler products, and it also implemented direction specific
to cribs in section 104(c) of the CPSIA. In accordance with section
104(c) of the CPSIA, the CPSC's crib standards (covering both full-size
and non-full-size cribs) apply to persons and entities not required to
comply with other CPSC standards, such as child care facilities, family
child care homes, and places of public accommodation. 75 FR 81786-87.
The crib rule became effective on June 28, 2011. It provided for two
compliance dates. The first date, June 28, 2011, applies to all
entities subject to the crib rule, except for child care facilities,
family child care homes, and places of public accommodation. The second
date, December 28, 2012, applies to child care facilities, family child
care homes, and places of public accommodation. 75 FR at 81781. In June
2011, the Commission gave additional time to companies that provide
short-term crib rentals; accordingly, they have until December 28,
2012, to meet the crib standards.
Public Law 112-28 contains a provision limiting the application of
revisions when ASTM revises its crib standards. That language states
that such revisions shall apply only to a person that manufactures or
imports cribs, unless the Commission determines that application to any
person described in paragraph (2) [of section 104(c) of the CPSIA] is
necessary to protect against an unreasonable risk to health or safety.
If the Commission determines that application to a person described in
paragraph (2) [of section 104(c) of the CPSIA] is necessary, it shall
provide not less than 12 months for such person to come into
compliance. See Public Law 112-28, section 3(b). According to this
provision, changes to CPSC's crib standards would apply only to crib
manufacturers and importers, not to the other entities mentioned in
section 104(c)(2) who are not usually subject to CPSC's standards, such
as child care facilities, family child care homes, and places of public
accommodation.
ASTM's revision to its full-size crib standard included the
modifications that the Commission made when it issued the CPSC's
mandatory standard for full-size cribs. Thus, there is no substantive
difference between ASTM's revised standard, ASTM F1169-11, and the
currently mandated standard that the Commission published in December
2010. Therefore, the CPSC's action in this direct final rule, which
revises the incorporation by reference in 16 CFR part 1219, does not
require any change by the persons and entities subject to the CPSC's
full-size crib standard. Those who manufacture, import, or sell full-
size cribs continue to be required to meet the same full-size crib
requirements as they have been required to meet since June 28, 2011.
Child care facilities, family child care homes, places of public
accommodation, and businesses that rent cribs for short terms will be
required to meet the same requirements for full-size cribs beginning on
December 28, 2012. Because the revision contemplated by this direct
final rule does not require any change by the persons subject to the
mandatory standard published in 2010, the provision set forth in Public
Law 112-28 limiting the application of revisions is without effect in
this instance.

C. Direct Final Rule Process

The Commission is issuing this rule as a direct final rule.
Although the Administrative Procedure Act (APA) generally requires
notice and comment rulemaking, section 553 of the APA provides an
exception when the agency, for good cause, finds that notice and public
procedure are ``impracticable, unnecessary, or contrary to the public
interest.'' We believe that in the circumstances of these revisions to
ASTM standards upon which CPSC's durable infant or toddler product
standards are based, notice and comment is not necessary. Public Law
112-128 provides for nearly automatic updating of durable infant or
toddler product standards that the Commission issues under the Danny
Keysar Child Product Safety Notification Act, if ASTM revises the
underlying voluntary standard and the Commission does not determine
that the revision ``does not improve the safety of the consumer product
covered by the standard.'' Nevertheless, without Commission action to
update the incorporation by reference in its mandated standards, the
standard published in the Code of Federal Regulations will not reflect
the revised ASTM standard. Thus, the Commission believes that it is
appropriate to issue a rule revising the incorporation by reference in
these circumstances. However, little would be gained by allowing for
public comment because Public Law 112-28 requires that the CPSC's
mandatory standard must change to the revised voluntary standard
(unless the Commission has made the requisite finding concerning
safety). The revisions to the infant bath seat standard and full-size
crib standard merely reflect the modifications that the Commission made
previously when it mandated these standards. It is possible, that in
the future, revisions to other voluntary standards that were the basis
for Commission standards under section 104(b) of the CPSIA could
include substantive changes that do more than reflect the Commission's
changes. Therefore, we believe that it is appropriate to set in place a
procedure that allows the Commission to receive significant adverse
comments but at the same time accommodates the nearly automatic update
procedure set forth in the statute.
In its Recommendation 95-4, the Administrative Conference of the
United States (ACUS) endorsed direct final rulemaking as an appropriate
procedure to expedite promulgation of rules that are noncontroversial
and that are not expected to generate significant adverse comment. See
60 FR 43108 (August 18, 1995). ACUS recommends using direct final
rulemaking when an agency employs the ``unnecessary'' prong of the good
cause exemption to notice and comment rulemaking.
Thus, the Commission is publishing this rule as a direct final rule
because we do not expect any significant adverse

[[Page 45245]]

comments. Unless we receive a significant adverse comment within 30
days, the rule will become effective November 12, 2012. In accordance
with ACUS's recommendation, we consider a significant adverse comment
to be one where the commenter explains why the rule would be
inappropriate, including an assertion challenging the rule's underlying
premise or approach, or a claim that the rule would be ineffective or
unacceptable without change. Should the Commission receive a
significant adverse comment, it would withdraw this rule. 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.

D. Effective Date

Under the procedure set forth in Public Law 112-28, when a
voluntary standard organization revises a standard upon which a
consumer product safety standard issued under the Danny Keysar Child
Product Safety Notification Act was based, the revision becomes the
CPSC standard within 180 days of notification to the Commission, unless
the Commission determines that the revision does not improve the safety
of the product, or the Commission sets a later date in the Federal
Register. In accordance with this provision, this rule establishes an
effective date that is 180 days after we received notification from
ASTM of revisions to these standards. As discussed in the preceding
section, this is a direct final rule. Unless we receive a significant
adverse comment within 30 days, the rule will become effective November
12, 2012.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires that
agencies 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 and 604. The changes to
the incorporation by reference in the infant bath seat and full-size
crib standards will not result in any substantive changes to the
standards. Therefore, this rule will not have any economic impact on
small entities.

F. 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 because 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.

G. Paperwork Reduction Act

Both the infant bath seat standard and the full-size crib standard
contain information collection requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). No changes have been made
to those sections of the standards. Thus, these revisions will not have
any effect on the information collection requirements related to those
standards.

H. Preemption

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a
``consumer product safety standard under [the Consumer Product Safety
Act (CPSA)]'' 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. (Section 26(c)
of the CPSA also provides that states or political subdivisions of
states may apply to the Commission for an exemption from this
preemption under certain circumstances.) The Danny Keysar Child Product
Safety Notification Act (at section 104(b)(1)(B) of the CPSIA) refers
to the rules to be issued under that section as ``consumer product
safety standards,'' thus, implying that the preemptive effect of
section 26(a) of the CPSA would apply. Therefore, a rule issued under
section 104 of the CPSIA will invoke the preemptive effect of section
26(a) of the CPSA when it becomes effective.

I. Certification

Section 14(a) of the CPSA imposes the requirement that 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, be certified as complying 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 on a sufficient number of samples by a
third party conformity assessment body accredited by the Commission to
test according to the applicable requirements. As noted in the
preceding discussion, 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 seats and full-size cribs are children's
products, they must be tested by a third party conformity assessment
body whose accreditation has been accepted by the Commission. (They
also must comply with all other applicable CPSC requirements, such as
the lead content requirements of section 101 of the CPSIA, the
phthalate content requirements in section 108 of the CPSIA, the
tracking label requirement in section 14(a)(5) of the CPSA, and the
consumer registration form requirements in the Danny Keysar Child
Product Safety Notification Act.)

J. Notice of Requirements

In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the
Commission has previously published notices of requirements for
accreditation of third party conformity assessment bodies for testing
infant bath seats (75 FR 31688 (June 4, 2010)) and full-size cribs (75
FR 81789 (December 28, 2010)). The notices of requirements provided the
criteria and process for our acceptance of accreditation of third party
conformity assessment bodies for testing infant bath seats to 16 CFR
part 1215 (which incorporated ASTM F1967-08a with modifications) and
for testing full-size cribs to 16 CFR part 1219 (which incorporated
ASTM F1969-10 with modifications). This rule revises the references to
the standards that are incorporated by reference in the CPSC's infant
bath seat and full-size crib standards. As discussed previously, the
revised ASTM standards for these products make them substantively
identical to the infant bath seat and full-size crib standards that the
Commission mandated. Thus, revising the references will not necessitate
any change in the way that third party conformity assessment bodies are
testing these products for compliance to CPSC standards. Therefore, the
Commission considers the existing accreditations that the Commission
has accepted for testing to these standards also to cover testing to
the revised standards.

List of Subjects in 16 CFR Parts 1215 and 1219

Consumer protection, Incorporation by reference, Imports, Infants
and children, Law enforcement, Safety, Toys.

For the reasons stated above, the Commission amends 16 CFR chapter
II as follows:

[[Page 45246]]

PART 1215--SAFETY STANDARD FOR INFANT BATH SEATS

0
1. The authority citation for part 1215 is revised to read as follows:

Authority: Sections 3 and 104 of Pub. L. 110-314, 122 Stat. 3016
(August 14, 2008); section 3 of Pub. L. 112-28, 125 Stat. 273
(August 12, 2011).

0
2. Revise Sec. 1215.2 to read as follows:

Sec. 1215.2 Requirements for infant bath seats.

Each infant bath seat shall comply with all applicable provisions
of ASTM F1967-11a, Standard Consumer Safety Specification for Infant
Bath Seats, approved September 1, 2011. The Director of the Federal
Register approves the incorporation by reference listed in this section
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a
copy of these ASTM standards from ASTM International, 100 Barr Harbor
Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA, phone: 610-
832-9585; http://www.astm.org/. You may inspect copies at the Office of
the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal regulations/ibr_locations.html.

PART 1219--SAFETY STANDARD FOR FULL-SIZE BABY CRIBS

0
3. The authority citation for part 1219 is revised to read as follows:

Authority: The Consumer Product Safety Improvement Act of 2008,
Pub. L. 110-314, Sec. 104, 122 Stat. 3016 (August 14, 2008); section
3 of Pub. L. 112-28, 125 Stat. 273 (August 12, 2011).

0
4. Revise Sec. 1219.2 to read as follows:

Sec. 1219.2 Requirements for full-size baby cribs.

Each full-size baby crib shall comply with all applicable
provisions of ASTM F1169-11, Standard Consumer Safety Specification for
Full-Size Baby Cribs, approved August 15, 2011. The Director of the
Federal Register approves this incorporation by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from ASTM
International, 100 Barr Harbor Drive, P.O. Box 0700, West Conshohocken,
PA 19428; telephone 610-832-9585; www.astm.org. You may inspect a copy
at the Office of the Secretary, U.S. Consumer Product Safety
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814,
telephone 301-504-7923, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

Dated: July 25, 2012.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2012-18483 Filed 7-30-12; 8:45 am]
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