82 FR 11317 - Revisions to Safety Standard for Toddler Beds

CONSUMER PRODUCT SAFETY COMMISSION

Federal Register Volume 82, Issue 34 (February 22, 2017)

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, in April 2011 the U.S. Consumer Product Safety Commission (Commission, or CPSC) published a consumer product safety standard for toddler beds. The standard incorporated by reference the ASTM voluntary standard for toddler beds, with several modifications. The CPSIA 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 standard for toddler beds to incorporate by reference a more recent version of the applicable ASTM standard.

[Federal Register Volume 82, Number 34 (Wednesday, February 22, 2017)]
[Rules and Regulations]
[Pages 11317-11320]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-03332]


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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2017-0012]

16 CFR Part 1217


Revisions to Safety Standard for Toddler Beds

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, in April 2011 the U.S. Consumer 
Product Safety Commission (Commission, or CPSC) published a consumer 
product safety standard for toddler beds. The standard incorporated by 
reference the ASTM voluntary standard for toddler beds, with several 
modifications. The CPSIA 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 standard for toddler beds to 
incorporate by reference a more recent version of the applicable ASTM 
standard.

DATES: The rule is effective on June 6, 2017, unless we receive 
significant adverse comment by March 24, 2017. 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 publication 
listed in this rule is approved by the Director of the Federal Register 
as of June 6, 2017.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2017-
0012, by any of the following methods:
    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: Daniel E. Dunlap, Compliance Officer, 
Office of Compliance and Field Operations, Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, MD 20814-4408; telephone: 
301-504-7733; email: [email protected].

SUPPLEMENTARY INFORMATION: 

A. Background

    The Danny Keysar Child Product Safety Notification Act. Section 
104(b)(1)(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.
    Section 104(b)(4)(B) of the CPSIA also sets forth a process for 
updating CPSC's durable infant or toddler standards when the voluntary 
standard upon which the CPSC standard was based is changed. Under that 
process, when an organization revises the voluntary standard, it must 
notify the Commission. Unless the Commission determines within 90 days 
of receiving the notice that the revision does not improve the safety 
of the product, the revised standard is considered to be the new CPSC 
standard effective 180 days from the date the Commission received 
notice of the revision (or a later date specified by the Commission).
    The CPSC's Toddler Bed Standard. In accordance with section 
104(b)(1) of the CPSIA, on April 20, 2011, the Commission published a 
safety standard that incorporated by reference ASTM F1821-09, Standard 
Consumer Safety Specification for Toddler Beds, along with several 
modifications, as a mandatory consumer product safety standard. (76 FR 
22019 (April 20, 2011)); correction notice \1\ (76 FR 27882 (May 13, 
2011)). ASTM officially notified the CPSC on September 25, 2013 that 
ASTM had published a revised 2013 version of ASTM F1821. The Commission 
voted unanimously to publish a Federal Register notice revising the 
Commission's toddler bed standard to reference ASTM F1821-13, effective 
March 24, 2014 (78 FR 73692 (December 9, 2013); codified at 16 CFR

[[Page 11318]]

part 1217). On April 6, 2015, ASTM officially notified the CPSC that 
ASTM had revised ASTM's toddler bed standard again and had published a 
revised 2015 version of ASTM F1821. Due to an inadvertent omission in 
the revised standard, the Commission voted unanimously (5-0) to retain 
the existing consumer product safety standard.\2\ As explained below, 
ASTM has notified the CPSC that it has published a revised 2016 version 
of ASTM F1821 that corrects the previous omission.
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    \1\ The Office of the Federal Register inadvertently omitted the 
last two sections and figures from the April 20, 2011 Federal 
Register notice.
    \2\ https://www.cpsc.gov/th/content/rca-astm%E2%80%99s-revisions-to-toddler-bed-standard.
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    Notification of Recent Revision. On December 8, 2016, ASTM notified 
the CPSC of ASTM's approval and publication of ASTM F1821-16 in a 
standard approved on October 1, 2016, ASTM F1821-16, Standard Consumer 
Safety Performance Specification for Toddler Beds. As discussed below, 
the Commission has reviewed the differences between 16 CFR part 1217 
and ASTM F1821-16.

B. 2015 and 2016 Revisions to the ASTM Standard

    A ``toddler bed'' is defined in ASTM F1821-16 as any bed sized to 
accommodate a full-size crib mattress having minimum dimensions of 51 
\5/8\ inches (1310 mm) in length and 27 \1/4\ inches (690 mm) in width 
and is intended to provide free access and egress to a child not less 
than 15 months of age and who weighs no more than 50 pounds (27.7 kg). 
The standard was developed in response to incident data supplied by the 
CPSC in an attempt to minimize the following hazards: Entrapment in bed 
end structures, entrapment between the guardrail and side rail, and 
entrapment in the mattress support system. The standard has provisions 
that address these hazards. In addition, the ASTM standard has 
provisions addressing corner post extensions, which may catch cords, 
ribbons, necklaces or clothing. There are several differences between 
16 CFR part 1217 (which incorporates by reference ASTM F1821-13) and 
the revised version of the standard, ASTM F1821-16. We summarize the 
differences and the CPSC's assessment of the revisions below.

ASTM F1821-15 Revision

    ASTM F1821-15, approved in February 2015, and published in March 
2015, revised ASTM F1821-13. ASTM notified the Commission about this 
revision on April 6, 2015. This revision contained two significant 
changes.
     Section 5.10--Corner Post Extensions was modified to allow 
an exception to the requirement for corner posts so that canopy post 
extensions 57 inches or greater are allowed on toddler beds. General 
requirements were added in section 5.10.1 and 5.10.2 so that new 
protrusion/entanglement hazards are not created as a result of this 
exception. The Commission considers this a neutral change to the 
standard.
     Section 6.5--End Structures was modified to address 
potential entrapment hazards between the side rails and mattress 
support system. Because guard rails are optional on toddler beds, the 
ASTM subcommittee recognized the need to address the entrapment hazard 
with side rails and guardrails, not just the head and foot ``end'' 
structures. The Commission considers this a safety improvement to the 
standard.
    As mentioned, the 2015 version should have modified, but 
inadvertently did not modify, the Section 7.5 --; End Structures test 
requirements to include testing requirements for potential entrapment 
in the side rails, as identified in 6.5. Failure to include these 
requirements negated the intended safety improvement noted in section 
6.5.

ASTM F1821-16 Revision

    ASTM F1821-16, approved and published on October 1, 2016, revised 
ASTM F1821-15. ASTM notified the Commission of this revision on 
December 8, 2016. This revision contains the test requirements for the 
side rails, which were missing from ASTM F1821-15. Section 7.5 now 
includes end structures and side rails in the testing requirements. 
Section 7.5.1 explains how to test potential entrapment hazards in end 
structures, and section 7.5.2 explains how to test potential entrapment 
hazards in side rails. The Commission considers the addition of 
performance and test requirements for potential entrapment in side 
rails to improve the safety of toddler beds. Thus, the Commission is 
allowing the revised version, ASTM F1821-16, to become the new CPSC 
mandatory standard for toddler beds.
    In accordance with section 104(b)(4) of the CPSIA, the revised ASTM 
standard for toddler beds becomes the new CPSC standard 180 days after 
the date the CPSC received notification of the revision from ASTM. This 
rule revises the incorporation by reference in 16 CFR part 1217, to 
reference ASTM F1821-16.

C. Incorporation by Reference

    The Office of the Federal Register (OFR) has regulations concerning 
incorporation by reference. 1 CFR part 51. Under these regulations, 
agencies must discuss, in the preamble to the final rule, ways that the 
materials the agency incorporates by reference are reasonably available 
to interested persons and how interested parties can obtain the 
materials. In addition, the preamble to the final rule must summarize 
the material. 1 CFR 51.5(b).
    In accordance with the OFR's requirements, section B of this 
preamble summarizes the major provisions of ASTM F1821-16 standard that 
the Commission incorporates by reference into 16 CFR part 1217. The 
standard is reasonably available to interested parties and interested 
parties may purchase a copy of the standard from ASTM International, 
100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959 
USA, phone: 610-832-9585; http://www.astm.org/. A copy of the standard 
can also be inspected at CPSC's Office of the Secretary, U.S. Consumer 
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, 
MD 20814, telephone 301-504-7923.

D. Certification

    Section 14(a) of the CPSA requires 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 toddler beds are children's products, samples of these 
products must be tested by a third party conformity assessment body 
whose accreditation has been accepted by the Commission. These products 
also must comply with all other applicable CPSC requirements, such as 
the lead content requirements in section 101 of the CPSIA, the 
phthalates prohibitions 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.

[[Page 11319]]

E. Notice of Requirements

    In accordance with section 14(a)(3)(B)(iv) of the CPSA, the 
Commission has previously published a notice of requirements (NOR) for 
accreditation of third party conformity assessment bodies for testing 
toddler beds (76 FR 22030 (April 20, 2011)). The NOR provided the 
criteria and process for our acceptance of accreditation of third party 
conformity assessment bodies for testing toddler beds to 16 CFR part 
1217 (which incorporated ASTM F1821-13 with several modifications). The 
NOR is listed in the Commission's rule, ``Requirements Pertaining to 
Third Party Conformity Assessment Bodies.'' 16 CFR part 1112.
    No change to the NOR in 16 CFR part 1112 is required for the 
Commission's revision to 16 CFR part 1217 updating the reference to 
ASTM F1821-16 because the NOR currently in effect already requires that 
the accreditation scope include a reference to 16 CFR part 1217. 
Laboratories would begin testing to the new standard when it goes into 
effect. Therefore, the Commission considers the existing accreditations 
that the Commission has accepted for testing to this standard also to 
cover testing to the revised standard. 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' accreditation to reflect the revised standard in the 
normal course of renewing their accreditation.

F. 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.'' 5 U.S.C. 553(b)(B). The Commission concludes that when the 
Commission updates a reference to an ASTM standard that the Commission 
has incorporated by reference under section 104(b) of the CPSIA, notice 
and comment is not necessary.
    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 as a Commission standard for a durable infant 
or toddler product under section 104(b)(1)(b) of the CPSIA, that 
revision will become the new CPSC standard unless the Commission 
determines that ASTM's revision does not improve the safety of the 
product. Thus, unless the Commission makes such a determination, the 
ASTM revision becomes CPSC's standard by operation of law. The 
Commission is allowing ASTM F1821-16 to become CPSC's new standard. The 
purpose of this direct final rule is merely to update the reference in 
the Code of Federal Regulations so that it accurately reflects the 
version of the standard that takes effect by statute. Public comment 
will not impact the substantive changes to the standard or the effect 
of the revised standard as a consumer product safety standard under 
section 104(b) of the CPSIA. Under these circumstances, notice and 
comment is not necessary. In 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 recommended 
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 we do not expect 
any significant adverse comments.
    Unless we receive a significant adverse comment within 30 days, the 
rule will become effective on June 6, 2017. 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 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, the 
Commission would withdraw this direct final rule. Depending on the 
comments 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.

G. 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 RFA applies 
to any rule that is subject to notice and comment procedures under 
section 553 of the APA. Id. As explained above, the Commission has 
determined that notice and comment is not necessary for this direct 
final rule. Thus, the RFA does not apply. We also note the limited 
nature of this document which updates the incorporation by reference to 
reflect the mandatory CPSC standard that takes effect under section 104 
of the CPSIA.

H. Paperwork Reduction Act

    The toddler beds standard contains information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). The revision made no changes to that section of the standard. 
Thus, these revision will not have any effect on the information 
collection requirements related to that 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 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.

J. 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.

K. Effective Date

    Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, 
when

[[Page 11320]]

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. The Commission has not set a different effective date. Thus, 
in accordance with this provision, this rule takes effect 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 on June 6, 2017.

List of Subjects in 16 CFR Part 1217

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

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

PART 1217--SAFETY STANDARD FOR TODDLER BEDS

0
1. The authority citation for part 1217 continues to read as follows:

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


0
2. Revise Sec.  1217.2 to read as follows:


Sec.  1217.2   Requirements for toddler beds.

    Each toddler bed shall comply with all applicable provisions of 
ASTM F1821-16, Standard Consumer Safety Specification for Toddler Beds, 
approved October 1, 2016. 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 this 
ASTM standard from ASTM International, 100 Barr Harbor Drive, PO Box 
C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585; http://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_federalregulations/ibr_locations.html.

    Dated: February 15, 2017.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2017-03332 Filed 2-21-17; 8:45 am]
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