Rule2022-15267
Amendment to Incorporation by Reference in Safety Standard for High Chairs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 18, 2022
Effective
July 23, 2022
Issuing agencies
Consumer Product Safety Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 136 (Monday, July 18, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="/cdn-cgi/l/email-protection#b0fbe7d1dcdbd5c2f0d3c0c3d39ed7dfc6"><span class="__cf_email__" data-cfemail="430814222f28263103203330206d242c35">[email protected]</span></a>.
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: <a href="https://www.cpsc.gov/s3fs-public/Update%20to%20Voluntary%20Standard%20for%20High%20Chairs.pdf">https://www.cpsc.gov/s3fs-public/Update%20to%20Voluntary%20Standard%20for%20High%20Chairs.pdf</a>.
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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: <a href="https://www.cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-High-Chairs_0.pdf?VersionId=OQF17Ki4XDJr0GJJikxve5tPrGpZmuC8">https://www.cpsc.gov/s3fs-public/ASTMs-Revised-Safety-Standard-for-High-Chairs_0.pdf?VersionId=OQF17Ki4XDJr0GJJikxve5tPrGpZmuC8</a>. 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: <a href="https://www.astm.org/CPSC.htm">https://www.astm.org/CPSC.htm</a>. 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: <a href="https://www.astm.org/READINGLIBRARY/">https://www.astm.org/READINGLIBRARY/</a>. 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: <a href="/cdn-cgi/l/email-protection#43203330206e2c3003203330206d242c35"><span class="__cf_email__" data-cfemail="5a392a29397735291a392a2939743d352c">[email protected]</span></a>. 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; <a href="http://www.astm.org">www.astm.org</a>.
[[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 <a href="https://www.astm.org/READINGLIBRARY/">https://www.astm.org/READINGLIBRARY/</a>. You may obtain a copy from ASTM International, 100
Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959;
telephone (610) 832-9585; <a href="http://www.astm.org">www.astm.org</a>. 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 <a href="/cdn-cgi/l/email-protection#53302320307e3c2013302320307d343c25"><span class="__cf_email__" data-cfemail="5d3e2d2e3e70322e1d3e2d2e3e733a322b">[email protected]</span></a>, or at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, email <a href="/cdn-cgi/l/email-protection#d3b5a1fdbabda0a3b6b0a7babcbd93bdb2a1b2fdb4bca5"><span class="__cf_email__" data-cfemail="3d5b4f1354534e4d585e495452537d535c4f5c135a524b">[email protected]</span></a>, or go to:
<a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a>.
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2022-15267 Filed 7-15-22; 8:45 am]
BILLING CODE 6355-01-P
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