Revisions to Safety Standard for Portable Bed Rails
| Published date | 25 February 2020 |
| Citation | 85 FR 10565 |
| Record Number | 2020-03106 |
| Section | Rules and Regulations |
| Court | Consumer Product Safety Commission |
Federal Register, Volume 85 Issue 37 (Tuesday, February 25, 2020)
[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Rules and Regulations]
[Pages 10565-10568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03106]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[Docket No. CPSC-2011-0019]
16 CFR Part 1224
Revisions to Safety Standard for Portable Bed Rails
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In February 2012, the U.S. Consumer Product Safety Commission
(CPSC) issued a consumer product safety standard for portable bed
rails. The standard incorporated by reference the applicable ASTM
voluntary standard. We are publishing this direct final rule revising
the CPSC's mandatory standard for portable bed rails to incorporate by
reference the most recent version of the applicable ASTM standard.
DATES: The rule is effective on May 20, 2020, unless we receive
significant adverse comment by March 26, 2020. 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 May 20, 2020.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2011-
0019, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: https://www.regulations.gov. Follow the
instructions for submitting comments. The CPSC does not accept comments
submitted by electronic mail (email), except through
www.regulations.gov. The CPSC encourages you to submit electronic
comments by using the Federal eRulemaking Portal, as described above.
Written Submissions: Submit written submissions in the following
way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions), preferably in five copies, to: Division of the
Secretariat, 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 proposed rulemaking. All comments received
may be posted without change, including any personal identifiers,
contact information, or other personal information provided, to:
https://www.regulations.gov. Do not submit electronically confidential
business information, trade secret information, or other sensitive or
protected information that you do not want to be available to the
public. If you wish to submit such information please submit it
according to the instructions for written submissions.
Docket: For access to the docket to read background documents or
comments received, go to: www.regulations.gov, and insert the docket
number, CPSC-2011-0019, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Justin Jirgl, Compliance Officer,
Office of Compliance and Field Operations, Consumer Product Safety
Commission, 4330 East West Highway, Bethesda, MD 20814-4408; telephone:
301-504-7814; email: [email protected].
[[Page 10566]]
SUPPLEMENTARY INFORMATION:
A. Background
1. Statutory Authority
Section 104(b)(1)(B) of the Consumer Product Safety Improvement Act
(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 these standards 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.
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. Section 104(b)(4)(B) of the CPSIA
provides 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. In addition, 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.
2. The Portable Bed Rails Standard
On February 29, 2012, the Commission published a final rule issuing
a mandatory standard for portable bed rails that incorporated by
reference the standard in effect at that time, ASTM F2085-12, Standard
Consumer Specification for Portable Bed Rails. 77 FR 12182. The ASTM
standard for portable bed rails, ASTM F2085, Standard Consumer Safety
Specification for Portable Bed Rails, applies to portable bed rails
intended to be installed on an adult bed to prevent children from
falling out of bed. These bed rails are intended for children who can
get in and out of an adult bed unassisted (typically from 2 to 5 years
of age). The standard was codified in the Commission's regulations at
16 CFR part 1224. Since publication of ASTM F2085-12, the current
mandatory standard, ASTM has published one revision to ASTM F2085. ASTM
F2085-19 was approved and published in November 2019. ASTM officially
notified the Commission of this revision on November 22, 2019. The rule
is incorporating ASTM F2085-19 as the mandatory standard.
B. Revisions to the ASTM Standard
Under section 104(b)(4)(B) of the CPSIA, unless the Commission
determines that ASTM's revision of a voluntary standard that is a CPSC
mandatory standard ``does not improve the safety of the consumer
product covered by the standard,'' the revised voluntary standard
becomes the new mandatory standard. As discussed below, the Commission
determines that the changes made in ASTM F2085-19 are neutral with
respect to the safety of portable bed rails. Therefore, the Commission
will allow the revised voluntary standard to become effective as a
mandatory consumer product safety standard under the statute, effective
May 20, 2020.
Differences Between 16 CFR Part 1224 and ASTM F2085-19
1. Reapproval Ballot
ASTM has published only one revision since the 2012 version.
However, in May 2019, ASTM passed a reapproval ballot that made minor
editorial revisions. This reapproved standard, ASTM F2085-12R19,
included the following changes:
In section, 1.7 ``safety and health'' was changed to
``safety, health, and environmental.''
Section 1.8 was added, stating that ASTM developed the
standard in accordance with principles recognized by the World Trade
Organization.
Title of D3359 was updated from ``Test Methods for Measure
Adhesion by Tape Test'' to ``Test Methods for Rating Adhesion by Tape
Test.''
In subsection 9.3, ``san'' was changed to ``sans'' (for
``sans serif'').
These changes all constitute minor editorial changes that do not
have any impact on the safety of portable bedrails.
2. ASTM F2085-19
In November 2019, ASTM revised ASTM F2085-12R19. The resulting
standard, ASTM F2085-19, includes the revisions listed above, as well
as the changes below:
Non-substantive changes
Two of the footnotes that were in Section 7, which provide
explanatory information, such as how to measure thickness and the
definition of the ``indentation load,'' have been moved to Notes within
the text. Notes and footnotes are both considered to be nonmandatory
text, for information only. ASTM's form and style guidelines say that
the distinction is that footnotes are meant only for availability
information (references, sources of supply) while notes are meant to
provide additional (nonmandatory) information. Therefore, the ASTM
editor moved the footnotes.
Changes to unit expressions to bring the standard into
accordance with ASTM form and style guidelines. For example, the
revision added a repeater unit when expressing a range--1 in. to 2 in.,
instead of 1 to 2 in.
All of the non-substantive changes made in ASTM F2085-19 are
neutral regarding safety for portable bed rails because they are
editorial in nature.
Substantive change
The revisions that resulted in ASTM F2085-19 made one substantive
change. This change affects test platform 2, which is a standard, twin
size, innerspring, thick mattress covered by a sheet. The mattress was
chosen to assess the influence of mattress thickness on bedrail
performance. The sheet simulates common use patterns. ASTM F2085-12
specified the fiber content of the sheet as a white, 50/50 cotton/
polyester blend. Reports from test labs have indicated difficulty
sourcing a sheet that is marketed as a 50/50 blend and can be verified
to be a 50/50 blend. Test labs requested that the sheet content change
to 60/40 cotton/polyester, a blend more consistent with twin sheets on
the consumer market, and therefore, easier to source. Before ASTM
balloted this change, Engineering Sciences consulted with staff of the
Laboratory Sciences Division of Mechanical Engineering (LSM), regarding
the availability of 50/50 blend sheets. LSM staff concurred with the
difficulty of sourcing a 50/50 blend sheet and reported no objections
to the change.
CPSC does not anticipate that the change will affect safety. LSM
staff notes that the standard continues to specify the thread count of
the sheet as 100 to 300 threads per inch, and staff assesses the thread
count range contributes more to friction than the specified change in
fiber content. LSM staff has not observed any differences in testing
qualitatively. Thus, staff believes that changing the sheet source from
a 50/50 blend to a 60/40 blend would not
[[Page 10567]]
affect how a technician performs the test or alter the results of the
testing. Therefore, we conclude that this change is neutral regarding
safety while increasing the ease of sourcing the test materials.
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 A of this
preamble summarizes the major provisions of the ASTM F2085-19 standard
that the Commission incorporates by reference into 16 CFR part 1224.
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, P.O. Box C700, West Conshohocken,
PA 19428-2959 USA; phone: 610-832-9585; www.astm.org. A copy of the
standard can also be inspected at CPSC's Division of the Secretariat,
U.S. Consumer Product Safety Commission, Room 820, 4330 East West
Highway, Bethesda, MD 20814, telephone 301-504-7923.
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, 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 portable bed rails 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 and 16 CFR part
1307, the tracking label requirement in section 14(a)(5) of the CPSA,
and the consumer registration form requirements in section 104(d) of
the CPSIA.
E. Notice of Requirements
In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the
Commission has previously published a notice of requirements (NOR) for
accreditation of third party conformity assessment bodies for testing
portable bed rails (77 FR 31102, May 24, 2012). The NOR provided the
criteria and process for our acceptance of accreditation of third party
conformity assessment bodies for testing portable bed rails to 16 CFR
part 1224. 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 at
16 CFR part 1112.
The revision to the test platform 2 provision (Section 7.1.2.1)
changes the fiber content and color of the sheet covering the mattress,
but does not require a new test or any changes to the test methodology.
Testing laboratories that are currently CPSC-accepted, have
demonstrated competence for testing in accordance with ASTM F2085-12,
and will have the competence to source a new sheet and conduct the
testing to the new standard under the revised standard ASTM F2085-19.
Therefore, the Commission considers the existing CPSC-accepted
laboratories for testing to ASTM F2085-12 to be capable of testing to
ASTM F2085-19 as well. Accordingly, the existing NOR for this standard
will remain in place, and CPSC-accepted third party conformity
assessment bodies are expected in the normal course of renewing their
accreditation to update the scope of the testing laboratories'
accreditation to reflect the revised standard.
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 are 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 F2085-19 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 (CFR) so that it reflects accurately
the version of the standard that takes effect by statute. The rule
updates the reference in the CFR, but under the terms of the CPSIA,
ASTM F2085-19 takes effect as the new CPSC standard for portable
bedrails, even if the Commission did not issue this rule. Thus, 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 are not necessary. In Recommendation 95-4, the
Administrative Conference of the United States (ACUS) endorsed direct
final rulemaking as an appropriate procedure to expedite promulgating
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 May 20, 2020. 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. As noted, this rule merely
[[Page 10568]]
updates a reference in the CFR to reflect a change that occurs by
statute.
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, the Commission has determined
that notice and comment are not necessary for this direct final rule.
Thus, the RFA does not apply. We also note the limited nature of this
document, which merely 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 standard for portable bed rails contains information-collection
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). The revisions made no changes to that section of the standard.
Thus, the revisions will have no effect on the information-collection
requirements 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, 15 U.S.C. 2075(a), 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.
Section 26(c) of the CPSA also provides that states or political
subdivisions of states may apply to the CPSC for an exemption from this
preemption under certain circumstances. Section 104(b) of the CPSIA
deems rules issued there under ``consumer product safety rules.''
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 standard organization revises a standard upon which a
consumer product safety standard 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 revision to this standard.
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 May 20, 2020.
L. The 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 submission must
indicate whether the rule is a ``major rule.'' The CRA states that the
Office of Information and Regulatory Affairs (OIRA) 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, the Office of the General Counsel will submit the
required information to each House of Congress and the Comptroller
General.
List of Subjects in 16 CFR Part 1224
Consumer protection, Imports, Incorporation by reference, Infants
and children, Law enforcement, Safety, Toys.
For the reasons stated above, the Commission amends 16 CFR part
1224 as follows:
PART 1224--SAFETY STANDARD FOR PORTABLE BED RAILS
0
1. Revise the authority citation for part 1224 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. 1224.2 to read as follows:
Sec. 1224.2 Requirements for portable bed rails.
Each portable bed rail as defined in ASTM F2805-19, Standard
Consumer Safety Specification for Portable Bed Rails, approved on
November 1, 2019, must comply with all applicable provisions of ASTM
F2805-19. 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;
www.astm.org. 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 301-504-7923, or at
the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.
Alberta E. Mills,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2020-03106 Filed 2-24-20; 8:45 am]
BILLING CODE 6355-01-P
