Safety Standard Mandating ASTM F963 for Toys, 57119-57123 [2017-26009]

Download as PDF Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Rules and Regulations AIRAC date 4–Jan–18 4–Jan–18 4–Jan–18 4–Jan–18 4–Jan–18 4–Jan–18 4–Jan–18 ..... ..... ..... ..... ..... ..... ..... State IL IL IL IL IL KS IL City Airport Mattoon/Charleston .......... Mattoon/Charleston .......... Mattoon/Charleston .......... Mattoon/Charleston .......... Mattoon/Charleston .......... Pittsburg ........................... Mattoon/Charleston .......... Coles County Memorial ... Coles County Memorial ... Coles County Memorial ... Coles County Memorial ... Coles County Memorial ... Atkinson Muni .................. Coles County Memorial ... [FR Doc. 2017–25838 Filed 12–1–17; 8:45 am] BILLING CODE 4910–13–P CONSUMER PRODUCT SAFETY COMMISSION [Docket No. CPSC–2017–0010] 16 CFR Parts 1112 and 1250 Safety Standard Mandating ASTM F963 for Toys Consumer Product Safety Commission. ACTION: Direct final rule. AGENCY: Section 106 of the Consumer Product Safety Improvement Act (CPSIA) made ASTM F963–07e1, Standard Consumer Safety Specification for Toy Safety, a mandatory consumer product safety standard. That section also provides procedures for revisions to the standard. In accordance with these procedures, the Commission (CPSC or Commission) recently allowed the update to ASTM F963, ASTM F963–17, Standard Consumer Safety Specification for Toy Safety (ASTM F963–17), to become the mandatory toy standard, with one exception. This direct final rule incorporates by reference ASTM F963– 17, with one exception, and updates the existing notice of requirements (NOR) that provides the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing for ASTM F963 pursuant to the Consumer Product Safety Act (CPSA). DATES: The rule is effective on February 28, 2018, unless we receive significant adverse comment by January 3, 2018. If we receive timely significant adverse comment, 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 February 28, 2018. ADDRESSES: You may submit comments, identified by Docket No. CPSC–2017– 0010, by any of the following methods: Submit electronic comments in the following way: ethrower on DSK3G9T082PROD with RULES SUMMARY: VerDate Sep<11>2014 17:52 Dec 01, 2017 Jkt 244001 FDC No. 7/3400 7/3401 7/3402 7/3403 7/3404 7/4229 7/8801 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 toy standard, contact: Carolyn T. Manley, Lead Compliance Officer, Office of Compliance and Field Operations, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814–4408; telephone: 301–504–7607; email: cmanley@cpsc.gov. SUPPLEMENTARY INFORMATION: A. Background Section 106 of the Consumer Product Safety Improvement Act of 2008. Section 106(a) of the CPSIA mandated that beginning on February 10, 2009, ASTM F 963–07e1, Standard Consumer Safety Specifications for Toy Safety, 1 shall be considered a mandatory consumer product safety standard issued by the CPSC. Public Law 110– 314. Since ASTM F963 was first mandated in 2009, there have been three 1 Except for section 4.2 and Annex 4 or any provision that restates or incorporates an existing mandatory standard or ban promulgated by the Commission or by statute. PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 FDC date 11/6/17 11/6/17 11/6/17 11/6/17 11/6/17 11/6/17 11/6/17 57119 Subject ILS OR LOC RWY 29, Amdt 6C. RNAV (GPS) RWY 24, Amdt 1. RNAV (GPS) RWY 6, Orig. RNAV (GPS) RWY 11, Orig. RNAV (GPS) RWY 29, Amdt 1. RNAV (GPS) RWY 4, Amdt 1D. VOR RWY 24, Amdt 11A. revisions, ASTM F963–08, ASTM F963– 11, and ASTM F963–16. Currently, the provisions of ASTM F 963–16 are considered consumer product safety standards issued by the Commission under section 9 of the CPSA. Under section 106(g) of the CPSIA, if ASTM proposes revisions to ASTM F963, ASTM must notify the Commission. The revised standard shall be considered to be a consumer product safety standard issued by the CPSC under section 9 of the CPSA (15 U.S.C. 2058), effective 180 days after the date on which ASTM notifies the Commission of the revision, unless, within 90 days after receiving that notice, the Commission notifies ASTM that it has determined that the proposed revision does not improve the safety of toys. Codification of Safety Standard Mandating ASTM F963 for Toys. As stated above, the CPSIA mandated provisions of ASTM F963 as a consumer product safety standard. Because this action took place by statute, the standard did not appear in the Code of Federal Regulations. On February 2, 2017, the Commission published a direct final rule notifying the public that the Commission had allowed ASTM F963–16 to become the new CPSC standard and also incorporated that standard by reference at 16 CFR part 1250. 82 FR 8989. Thus, when revisions of F963 become the new CPSC standard, the Commission will amend 16 CFR part 1250 to revise the reference to the ASTM standard. As explained below, the Commission is amending 16 CFR part 1250 to incorporate by reference ASTM F963–17, except for one provision.2 Notification of Revisions. On September 1, 2017, ASTM notified the CPSC of ASTM’s approval and publication of revisions to ASTM F963– 17 in a revised standard approved on May 1, 2017, ASTM F963–17, Standard Consumer Safety Specification for Toy Safety. On November 27, 2017, the Commission voted 3 to allow the 2 16 CFR part 1250 continues to exclude from CPSC’s mandatory standard certain provisions of ASTM F963 that the CPSIA excluded by statute. 3 The Commission voted 3–1 to publish this direct final rule in the Federal Register. E:\FR\FM\04DER1.SGM Continued 04DER1 57120 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Rules and Regulations provisions of ASTM F963–17 to become the CPSC mandatory toy standard, with one exception. As discussed below, the Commission has reviewed the differences between ASTM F963–16 and ASTM F963–17 (the revised toy standard). B. Revisions to the ASTM Standard ethrower on DSK3G9T082PROD with RULES ASTM F963–17 contains various grammatical corrections, editorial corrections, and substantive changes to provisions concerning projectiles and sound-producing toys. The 2017 revision was published less than 1 year after ASTM F963–16 to correct some of the drafting errors found in ASTM F963–16. In particular, ASTM notified CPSC staff of negative consequences of a 2016 drafting error. In response, CPSC used enforcement discretion in March 2017, regarding testing and certification requirements in one section of ASTM F963–16 that concerned low-energy projectiles with stored energy. The changes from ASTM F963–16 to ASTM F963–17 are summarized below: • Scope: Minor editorial changes only. • Referenced documents: Nine new references were added that were mostly related to microbiological guidelines. • Terminology: One definition was removed, one definition was clarified, and one definition was changed editorially. • Safety Requirements: One substantive clarification was made to section 4.21.2, Projectiles Toys with Stored Energy; one non-substantive clarification was made to section 4.21.3, Projectiles Toys without Stored Energy; and one clarification was made to section 4.21.3, Projectiles Toys without Stored Energy. One of the three clarifications (section 4.21.2) had been balloted and approved by the ASTM F15 Committee for Consumer Products for inclusion in the 2016 version, but the wording in section 4.21.2.3 was inadvertently omitted in the test method associated with kinetic energy (KE) of stored energy projectiles in the ASTM F963–16 revision. • Labeling Requirements: Minor editorial changes only. • Instructional Literature: Minor editorial changes only. • Test Methods: An additional sentence was added to the soundproducing toys test method in Section Commissioners Robert S. Adler, Marietta S. Robinson, and Elliot F. Kaye voted to publish this direct final rule. Acting Chairman Anne Marie Buerkle voted to allow ASTM F963–17, as published by ASTM, to become CPSC’s mandatory standard and publish a direct final rule in the Federal Register reflecting approval of the standard as published by ASTM. VerDate Sep<11>2014 17:52 Dec 01, 2017 Jkt 244001 8.20.1.5 (5). This sentence functionally exempts pull/push toys from the Aweighted maximum sound pressure level (LAFmax) requirement. As explained below, the Commission is not including this language in the mandatory standard. • Annex: The rationale was added addressing the new language in 4.21.2.3 for projectiles with stored energy. The majority of the editorial revisions changed the word ‘‘must’’ to ‘‘shall,’’ which brings the revised standard in line with ASTM’s current preferred language. In addition, new reference documents, references to tables/figures, and other editorial corrections were completed to fix known grammatical errors and incorrect references in the ASTM F963–16 version. Two changes were substantive in nature. The first change, relating to requirements for projectile toys (Section 4.21), was a clarification that will neither increase, nor decrease, safety. The Commission had anticipated this change. However, the second change, relating to sound-producing toys, is substantive and reduces safety. This item was not balloted and was not reviewed by CPSC staff before ASTM published ASTM F963–17. ASTM added a sentence to the soundproducing toys test method in Section 8.20.1.5 (5) of ASTM F963–17 that functionally exempts push/pull toys from the A-weighted maximum sound pressure level (LAFmax) requirement. The LAFmax is a measurement of continuous sound. Without the LAFmax requirement, push/pull toys will only be subject to the LCpeak requirement, a requirement that is based on noise limits for impulse sounds (e.g., gun shots), not the continuous sounds, such as regular popping or clacking, which would be expected from push/pull toys. The Commission’s interpretation that the LAFmax requirement applied to push/pull toys in ASTM F963–16 is based on the text of the standard. The additional text added in ASTM F963–17 is a substantial change that reduces safety, because the additional text in Section 8.20.1.5 (5) provides an exemption for push/pull toys to the LAFmax requirement, which did not exist in ASTM F963–16. If such toys are exempt from the LAFmax requirement, they would be allowed on the market, even though their continuous sound level is greater than the standard permits for other floor toys. The Commission finds that the addition of text in Section 8.20.1.5(5) related to sound-producing toy requirements will decrease safety by allowing toys that produce sound levels that exceed noise exposure limits by the National Institute PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 of Occupational and Health (NIOSH).4 Staff concludes that the LAFmax exemption has a negative impact on safety. Additionally, the exemption will reduce harmonization with EN–71. See Tab A of the staff briefing package https://www.cpsc.gov/s3fs-public/ Proposed%20Revision%20of%20ASTM %20F963%20Mandatory%20Toy%20 Standard%20-%20November%2015 %202017.pdf?Rqy8BAU21cW2qoESRe_ DSqkDknOpDtBq for a more detailed discussion regarding the exemption’s effect on safety. Because addition of the text in Section 8.20.1.5(5) of ASTM F 963–17 would not improve the safety of toys, the Commission determined that this provision should not be allowed to become part of CPSC’s mandatory toy standard. The other changes are either editorial non-substantive changes that will not affect safety, or they are substantive changes that will improve safety. Thus, the Commission accepts all changes in ASTM F963–17, with the exception of the addition of text in Section 8.20.1.5 (5) because it reduces safety. C. Incorporation by Reference Although ASTM F963–17 is mandatory by operation of statute, the Commission has incorporated by reference ASTM F963 in the Code of Federal Regulations (CFR) to indicate that ASTM F963 is a CPSC mandatory standard. 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 ASTM F963–17 standard that the Commission incorporates by reference into 16 CFR part 1250. 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; http://www.astm.org/. A copy of the standard can also be inspected at CPSC’s Office of the Secretary, U.S. 4 ASTM F963 sound limit calculations are based on occupation exposure limits recommended by NIOSH. E:\FR\FM\04DER1.SGM 04DER1 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Rules and Regulations Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301– 504–7923. ethrower on DSK3G9T082PROD with RULES D. 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 106(f)(1)(B) are ‘‘consumer product safety standards.’’ Thus, they are subject to the testing and certification requirements of section 14 of the CPSA. Because toys 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 of section 101 of the CPSIA, the phthalates prohibitions of section 106 of the CPSIA, and the tracking label requirement in section 14(a)(5) of the CPSA. E. Notice of Requirements In accordance with section 14(a)(3)(B)(vi) of the CPSA, the Commission has previously published three NORs for accreditation of third party conformity assessment bodies for testing toys (76 FR 46598 (Aug. 3, 2011), 78 FR 15836 (March 12, 2013), and 82 FR 8989 (February 2, 2017)). The last NOR provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing toys to ASTM F963– 16. The NOR for ASTM F963–16 is listed in the Commission’s rule, ‘‘Requirements Pertaining to Third Party Conformity Assessment Bodies.’’ 16 CFR part 1112. The previous NOR for the toy safety standard included 37 sections from ASTM F963–16 that required third party testing. Certain provisions of ASTM F963–17 do not require third party testing as was the case in the previous NORs issued for ASTM F963. The ASTM F963–17 VerDate Sep<11>2014 17:52 Dec 01, 2017 Jkt 244001 provisions that do not require third party testing are in the following areas: • Any provision of ASTM F963 that section 106 of the CPSIA excepted from being a mandatory consumer product safety standards issued by the Commission. The CPSIA also excepted from ASTM F963, any provision that restates or incorporates an existing mandatory standard or ban promulgated by the Commission or by statute. In addition, the CPSIA excepted provisions from ASTM F963 that restate or incorporate a regulation promulgated by the Food and Drug Administration or any statute administered by the U.S. Food and Drug Administration. Section 4, Public Law 112–28, Aug 12, 2011. • Those sections of ASTM F963–17 that pertain to the manufacturing process and, thus, cannot be evaluated meaningfully by a test of the finished product (e.g., the purified water provision at section 4.3.6.1). • Those provisions of ASTM F963–17 with requirements for labeling, instructional literature, or producer’s markings. • Those provision in ASTM F963–17 that sets a limit for a DI (2-ethylhexyl) phthalate in pacifiers, rattles, and teethers. This section is excepted from third party testing because section 108 of the CPSIA sets limits for this and other phthalates that are more stringent than this requirement in ASTM F963– 17. This latest revision of the toy safety standard, ASTM F963–17, had a much shorter period between revisions than is typical. In the earlier revisions, the transition period for CPSC acceptance of laboratory accreditation and the certification effective dates allowed adequate time for laboratories to update their accreditations to the latest standard. The revisions in earlier versions of the standard typically included several substantive changes in test requirements and testing methods. This is not the case when comparing ASTM F963–17 to ASTM F963–16. In response to the directions in the ASTM F963–16 NOR, testing laboratories began working with their accreditation bodies to update their scope of accreditation to include references to ASTM F963–16. Since issuance of the ASTM F963–16 NOR, the CPSC has accepted applications from more than 100 testing laboratories for sections in ASTM F963– 16 and posted the information for each laboratory on the CPSC Web site. However, there are still more than 100 CPSC-accepted laboratories that are listed only for ASTM F963–11 and have not yet updated their accreditation scope to include ASTM F963–16. Many of these laboratories may be in the PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 57121 process of updating their accreditation scope to ASTM F963–16. Other laboratories may be waiting on Commission action regarding adoption of ASTM F963–17 and the NOR for ASTM F963–17. To address the transition just described, the Commission is permitting acceptance of testing that supports ASTM F963–17 certification, and acceptance of laboratory accreditation that take into account testing laboratories that are already CPSCaccepted for testing to relevant sections in ASTM F963–16, ASTM F963–11, and ASTM F963–07ε1 Section 4.27, as described below. 1. CPSC Automatically Accepts Laboratories for ASTM F963–17, if the Laboratories Are CPSC-Accepted to ASTM F963–16 The CPSC’s online laboratory application and Web site listing for testing laboratories that have been CPSC-accepted to sections in ASTM F963–16 will be modified to show CPSC-acceptance to ‘‘ASTM F963–16/ ASTM F963–17.’’ For example, CPSCaccepted laboratories currently listed on the CPSC Web site for: • 4.6 (ASTM F963–16), Small Objects • 4.7 (ASTM F963–16), Accessible Edges • 4.8 (ASTM F963–16), Projections will be changed on the CPSC Web site to read: • 4.6 (ASTM F963–16/ASTM F963–17), Small Objects • 4.7 (ASTM F963–16/ASTM F963–17), Accessible Edges • 4.8 (ASTM F963–16/ASTM F963–17), Projections This will accommodate laboratories that updated their accreditation scope and received CPSC acceptance shortly after issuance of the ASTM F963–16 NOR. For laboratories that are accredited to ASTM F963–11 and that have not yet updated their scope to later versions, they may elect scope revisions to reflect ASTM F963–16 or ASTM F963–17, or both. When these laboratories apply to the CPSC, the CPSC will accept references to either the –16 or –17 version, and the lab will be listed on the CPSC Web site for ‘‘4.x (ASTM F963– 16/ASTM F963–17).’’ This will provide an equitable approach for all the third party laboratories that applied and were CPSC-accepted for sections in ASTM F963–16 and for testing laboratories that are currently working with their accreditation bodies to update the ASTM F963 references in their accreditation scope. In addition, this will allow laboratories that are CPSC- E:\FR\FM\04DER1.SGM 04DER1 57122 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Rules and Regulations listed for ‘‘ASTM F963–16/ASTM F963– 17’’ to conduct testing to support certification to the –16 and –17 versions ASTM F963. ethrower on DSK3G9T082PROD with RULES 2. Maintain the Interim Allowance for Laboratories Accredited to ASTM F963– 11 To Test for ASTM F963–16 and ASTM F963–17 The NOR for ASTM F963–16 that was issued on February 2, 2017 (82 FR 8989), provided a transition period for CPSC-accepted labs to support certification testing to ASTM F963–16. During the transition period, CPSC will accept ASTM F963–16 testing results by test laboratories that are CPSC-accepted to ASTM F963–11 sections, or ASTM F963–07ε1 section 4.27 for toy chests, for a period not to exceed 2 years. The 2-year period ends on February 4, 2019. This allowance was to provide adequate time for testing laboratories to work with their accreditation bodies, make official updates to their accreditation scope to include ASTM F963–16 sections, and submit applications to the CPSC. The ASTM F963–17 NOR will continue the transition period provided in the ASTM F963–16 NOR. The CPSC will accept ASTM F963–17 testing results by laboratories that are CPSCaccepted to ASTM sections in F963–11 (or 4.27 of ASTM F963–07ε1) until February 4, 2019. The CPSC will open the application process for all sections of ASTM F963– 17 when this direct final rule is published in the Federal Register as an amendment to 16 CFR part 1112. The CPSC is providing notice of these requirements through this direct final rule and through direct email to all current CPSC-accepted laboratories and their accreditation bodies. This process will avoid disruption to continuous third party testing to the toy safety standard and allow for a practicable transition from ASTM F963–11 to ASTM F963–16 to ASTM F963–17 for testing laboratories, the toy industry, and other interested parties. 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.’’ The Commission concludes that notice and comment is unnecessary because ASTM F963 automatically becomes a consumer product safety standard by operation of law. The Commission has voted to allow ASTM VerDate Sep<11>2014 17:52 Dec 01, 2017 Jkt 244001 F963–17 to become the mandatory CPSC standard. Even without the incorporation by reference, ASTM F963–17, except for Section 8.20.1.5 (5) and provisions the CPSIA excluded, will take effect as the new mandatory CPSC standard pursuant to section 106(g) of the CPSIA. This rule amends 16 CFR part 1250 to reflect the standard that CPSC has allowed under section 106(g) of the CPSIA. Because this document merely incorporates by reference a standard that takes effect by operation of statute, public comment could not affect the changes to the standard or the effect of the revised standard as a consumer product safety standard under section 106(g) of the CPSIA. The rule also updates the corresponding provisions of the NOR for ASTM F963 in part 1112 to reflect the revision to the standard. The amendment to part 1112 does not establish substantive requirements, but updates the criteria and process for CPSC’s acceptance of accreditation of third party conformity assessment bodies for testing toys under the revised ASTM F963 standard. Therefore, the Commission concludes that public comment is not necessary. The Commission believes that issuing a direct final rule in these circumstances is appropriate. 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 also recommended using direct final rulemaking when an agency uses the ‘‘unnecessary’’ prong of the good cause exemption to notice and comment rulemaking. Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because we do not believe comment is necessary and do not expect any significant adverse comments to the direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on February 28, 2018. In accordance with ACUS’s recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule revising the incorporation by reference would be inappropriate. We note that comments on the underlying substantive provisions of ASTM F963–17 are not considered significant adverse comments because those provisions are mandatory by operation of the statute, and therefore, the Commission cannot change them in PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 response to comments. The Commission could only make changes to the way the incorporation by reference appears in the CFR. Should the Commission receive 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. 5 U.S.C. 603 and 604. As explained above, the Commission has determined that notice and comment is not necessary for this direct final rule. We also note the limited nature of this document. The incorporation by reference of ASTM F963–17 and the update to the notice of requirements in part 1112 will not result in any substantive changes to the standard. Thus, the rule does not create new substantive obligations for any entity, including any small entity. Rather, with this action, the CFR will reflect the mandatory CPSC standard that takes effect under the CPSIA and will update the corresponding NOR provisions in 16 CFR part 1112. H. Paperwork Reduction Act The toy standard contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). OMB has approved the collection of information for ASTM F963 under OMB Control No. 3041– 0159. 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. E:\FR\FM\04DER1.SGM 04DER1 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Rules and Regulations J. Preemption Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a ‘‘consumer product safety standard under [the 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. Section 106(f) of the CPSIA states that rules issued under that section ‘‘shall be considered consumer product safety standards issued by the Commission under section of the Consumer Product Safety Act’’ thus, implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 106 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 106(g) of the CPSIA, when ASTM revises ASTM F963, 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. In accordance with this provision, this rule establishes an effective date that is 180 days after we received notification from ASTM of revisions to the standard. As discussed in section F of this preamble, this is a direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on February 28, 2018. Additionally, the effective date for the NOR is February 28, 2018, the same date that the provisions of ASTM F963–17 become effective. List of Subjects ethrower on DSK3G9T082PROD with RULES 16 CFR Part 1112 Administrative practice and procedure, Audit, Consumer protection, Incorporation by reference, Reporting and recordkeeping requirements, Third party conformity assessment body. 16 CFR Part 1250 Consumer protection, Imports, Incorporation by reference, Infants and children, Law enforcement, Safety, Toys. For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II, as follows: VerDate Sep<11>2014 17:52 Dec 01, 2017 Jkt 244001 PART 1112—REQUIREMENTS PERTAINING TO THIRD PARTY CONFORMITY ASSESSMENT BODIES 1. The authority citation for part 1112 continues to read as follows: ■ Authority: 15 U.S.C. 2063; Pub. L. 110– 314, section 3, 122 Stat. 3016, 3017 (2008). 2. Amend § 1112.15 by: a. Revising the introductory text to paragraph (b)(32); ■ b. Revising paragraph (b)(32)(ii); and ■ c. Revising paragraph (c)(1)(ii). The revisions read as follows: ■ ■ § 1112.15 When can a third party conformity assessment body apply for CPSC acceptance for a particular CPSC rule or test method? * * * * * (b) * * * (32) 16 CFR part 1250, safety standard for toys. The CPSC only requires certain provisions of ASTM F963–17 to be subject to third party testing; and therefore, the CPSC only accepts the accreditation of third party conformity assessment bodies for testing under the following toy safety standards: * * * * * (ii) ASTM F963–17: * * * * * (c) * * * (1) * * * (ii) ASTM F963–17, ‘‘Standard Consumer Safety Specification for Toy Safety,’’ May 1, 2017. * * * * * 57123 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. * * * * * (c) Instead of complying with section 8.20.1.5(5) of ASTM F963–17, comply with the following: (1) Floor and tabletop toys that move, where the sound is caused as a result of the movement imparted on the toy (for example, a noise making mechanism attached to an axle of a toy vehicle) shall be tested using the method for push and pull toys. In addition to the Cweighted peak measurement maximum A-weighted sound pressure level, LAFmax, shall be made and compared to the requirements of 4.5.1.2. (2) [Reserved] Alberta E. Mills, Acting Secretary, U.S. Consumer Product Safety Commission. [FR Doc. 2017–26009 Filed 12–1–17; 8:45 am] BILLING CODE 6355–01–P ENVIRONMENTAL PROTECTION AGENCY PART 1250—SAFETY STANDARD MANDATING ASTM F963 FOR TOYS 40 CFR Part 52 ■ 3. The authority citation for part 1250 continues to read as follows: [EPA–R09–OAR–2016–0740; FRL–9970–93– Region 9] Authority: Pub. L. 110–314, sec. 106, 122 Stat. 3016 (August 14, 2008); Pub. L. 112–28, 125 Stat. 273 (August 12, 2011). Approval of California Air Plan Revisions, Sacramento Metropolitan Air Quality Management District 4. Amend § 1250.2 by: a. Revising paragraph (a); and b. Adding paragraph (c). The revisions and additions read as follows: ■ ■ ■ § 1250.2 Requirements for toy safety. (a) Except as provided for in paragraphs (b) and (c) of this section, toys must comply with the provisions of ASTM F963–17, Standard Consumer Safety Specification for Toy Safety, approved May 1, 2017. 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, P.O. Box C700, West Conshohocken, PA 19428–2959 USA; PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Sacramento Metropolitan Air Quality Management District (SMAQMD) portion of the California State Implementation Plan (SIP). This revision concerns volatile organic compound (VOC) emissions from Organic Chemical Manufacturing Operations. We are proposing to simultaneously approve a local rule and a rule rescission to regulate these emission sources under the Clean Air Act (CAA or the Act). DATES: This rule is effective on January 3, 2018. SUMMARY: E:\FR\FM\04DER1.SGM 04DER1

Agencies

[Federal Register Volume 82, Number 231 (Monday, December 4, 2017)]
[Rules and Regulations]
[Pages 57119-57123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26009]


=======================================================================
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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2017-0010]

16 CFR Parts 1112 and 1250


Safety Standard Mandating ASTM F963 for Toys

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: Section 106 of the Consumer Product Safety Improvement Act 
(CPSIA) made ASTM F963-07[epsi]1, Standard Consumer Safety 
Specification for Toy Safety, a mandatory consumer product safety 
standard. That section also provides procedures for revisions to the 
standard. In accordance with these procedures, the Commission (CPSC or 
Commission) recently allowed the update to ASTM F963, ASTM F963-17, 
Standard Consumer Safety Specification for Toy Safety (ASTM F963-17), 
to become the mandatory toy standard, with one exception. This direct 
final rule incorporates by reference ASTM F963-17, with one exception, 
and updates the existing notice of requirements (NOR) that provides the 
criteria and process for Commission acceptance of accreditation of 
third party conformity assessment bodies for testing for ASTM F963 
pursuant to the Consumer Product Safety Act (CPSA).

DATES: The rule is effective on February 28, 2018, unless we receive 
significant adverse comment by January 3, 2018. If we receive timely 
significant adverse comment, 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 February 28, 2018.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2017-
0010, 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: For information related to the toy 
standard, contact: Carolyn T. Manley, Lead Compliance Officer, Office 
of Compliance and Field Operations, Consumer Product Safety Commission, 
4330 East West Highway, Bethesda, MD 20814-4408; telephone: 301-504-
7607; email: cmanley@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 106 of the Consumer Product Safety Improvement Act of 2008. 
Section 106(a) of the CPSIA mandated that beginning on February 10, 
2009, ASTM F 963-07[epsi]1, Standard Consumer Safety Specifications for 
Toy Safety, \1\ shall be considered a mandatory consumer product safety 
standard issued by the CPSC. Public Law 110-314. Since ASTM F963 was 
first mandated in 2009, there have been three revisions, ASTM F963-08, 
ASTM F963-11, and ASTM F963-16. Currently, the provisions of ASTM F 
963-16 are considered consumer product safety standards issued by the 
Commission under section 9 of the CPSA. Under section 106(g) of the 
CPSIA, if ASTM proposes revisions to ASTM F963, ASTM must notify the 
Commission. The revised standard shall be considered to be a consumer 
product safety standard issued by the CPSC under section 9 of the CPSA 
(15 U.S.C. 2058), effective 180 days after the date on which ASTM 
notifies the Commission of the revision, unless, within 90 days after 
receiving that notice, the Commission notifies ASTM that it has 
determined that the proposed revision does not improve the safety of 
toys.
---------------------------------------------------------------------------

    \1\ Except for section 4.2 and Annex 4 or any provision that 
restates or incorporates an existing mandatory standard or ban 
promulgated by the Commission or by statute.
---------------------------------------------------------------------------

    Codification of Safety Standard Mandating ASTM F963 for Toys. As 
stated above, the CPSIA mandated provisions of ASTM F963 as a consumer 
product safety standard. Because this action took place by statute, the 
standard did not appear in the Code of Federal Regulations. On February 
2, 2017, the Commission published a direct final rule notifying the 
public that the Commission had allowed ASTM F963-16 to become the new 
CPSC standard and also incorporated that standard by reference at 16 
CFR part 1250. 82 FR 8989. Thus, when revisions of F963 become the new 
CPSC standard, the Commission will amend 16 CFR part 1250 to revise the 
reference to the ASTM standard. As explained below, the Commission is 
amending 16 CFR part 1250 to incorporate by reference ASTM F963-17, 
except for one provision.\2\
---------------------------------------------------------------------------

    \2\ 16 CFR part 1250 continues to exclude from CPSC's mandatory 
standard certain provisions of ASTM F963 that the CPSIA excluded by 
statute.
---------------------------------------------------------------------------

    Notification of Revisions. On September 1, 2017, ASTM notified the 
CPSC of ASTM's approval and publication of revisions to ASTM F963-17 in 
a revised standard approved on May 1, 2017, ASTM F963-17, Standard 
Consumer Safety Specification for Toy Safety. On November 27, 2017, the 
Commission voted \3\ to allow the

[[Page 57120]]

provisions of ASTM F963-17 to become the CPSC mandatory toy standard, 
with one exception. As discussed below, the Commission has reviewed the 
differences between ASTM F963-16 and ASTM F963-17 (the revised toy 
standard).
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    \3\ The Commission voted 3-1 to publish this direct final rule 
in the Federal Register. Commissioners Robert S. Adler, Marietta S. 
Robinson, and Elliot F. Kaye voted to publish this direct final 
rule. Acting Chairman Anne Marie Buerkle voted to allow ASTM F963-
17, as published by ASTM, to become CPSC's mandatory standard and 
publish a direct final rule in the Federal Register reflecting 
approval of the standard as published by ASTM.
---------------------------------------------------------------------------

B. Revisions to the ASTM Standard

    ASTM F963-17 contains various grammatical corrections, editorial 
corrections, and substantive changes to provisions concerning 
projectiles and sound-producing toys. The 2017 revision was published 
less than 1 year after ASTM F963-16 to correct some of the drafting 
errors found in ASTM F963-16. In particular, ASTM notified CPSC staff 
of negative consequences of a 2016 drafting error. In response, CPSC 
used enforcement discretion in March 2017, regarding testing and 
certification requirements in one section of ASTM F963-16 that 
concerned low-energy projectiles with stored energy.
    The changes from ASTM F963-16 to ASTM F963-17 are summarized below:
     Scope: Minor editorial changes only.
     Referenced documents: Nine new references were added that 
were mostly related to microbiological guidelines.
     Terminology: One definition was removed, one definition 
was clarified, and one definition was changed editorially.
     Safety Requirements: One substantive clarification was 
made to section 4.21.2, Projectiles Toys with Stored Energy; one non-
substantive clarification was made to section 4.21.3, Projectiles Toys 
without Stored Energy; and one clarification was made to section 
4.21.3, Projectiles Toys without Stored Energy. One of the three 
clarifications (section 4.21.2) had been balloted and approved by the 
ASTM F15 Committee for Consumer Products for inclusion in the 2016 
version, but the wording in section 4.21.2.3 was inadvertently omitted 
in the test method associated with kinetic energy (KE) of stored energy 
projectiles in the ASTM F963-16 revision.
     Labeling Requirements: Minor editorial changes only.
     Instructional Literature: Minor editorial changes only.
     Test Methods: An additional sentence was added to the 
sound-producing toys test method in Section 8.20.1.5 (5). This sentence 
functionally exempts pull/push toys from the A-weighted maximum sound 
pressure level (LAFmax) requirement. As explained below, the 
Commission is not including this language in the mandatory standard.
     Annex: The rationale was added addressing the new language 
in 4.21.2.3 for projectiles with stored energy.
    The majority of the editorial revisions changed the word ``must'' 
to ``shall,'' which brings the revised standard in line with ASTM's 
current preferred language. In addition, new reference documents, 
references to tables/figures, and other editorial corrections were 
completed to fix known grammatical errors and incorrect references in 
the ASTM F963-16 version.
    Two changes were substantive in nature. The first change, relating 
to requirements for projectile toys (Section 4.21), was a clarification 
that will neither increase, nor decrease, safety. The Commission had 
anticipated this change. However, the second change, relating to sound-
producing toys, is substantive and reduces safety. This item was not 
balloted and was not reviewed by CPSC staff before ASTM published ASTM 
F963-17. ASTM added a sentence to the sound-producing toys test method 
in Section 8.20.1.5 (5) of ASTM F963-17 that functionally exempts push/
pull toys from the A-weighted maximum sound pressure level 
(LAFmax) requirement. The LAFmax is a measurement 
of continuous sound. Without the LAFmax requirement, push/
pull toys will only be subject to the LCpeak requirement, a 
requirement that is based on noise limits for impulse sounds (e.g., gun 
shots), not the continuous sounds, such as regular popping or clacking, 
which would be expected from push/pull toys. The Commission's 
interpretation that the LAFmax requirement applied to push/
pull toys in ASTM F963-16 is based on the text of the standard.
    The additional text added in ASTM F963-17 is a substantial change 
that reduces safety, because the additional text in Section 8.20.1.5 
(5) provides an exemption for push/pull toys to the LAFmax 
requirement, which did not exist in ASTM F963-16. If such toys are 
exempt from the LAFmax requirement, they would be allowed on 
the market, even though their continuous sound level is greater than 
the standard permits for other floor toys. The Commission finds that 
the addition of text in Section 8.20.1.5(5) related to sound-producing 
toy requirements will decrease safety by allowing toys that produce 
sound levels that exceed noise exposure limits by the National 
Institute of Occupational and Health (NIOSH).\4\ Staff concludes that 
the LAFmax exemption has a negative impact on safety. 
Additionally, the exemption will reduce harmonization with EN-71. See 
Tab A of the staff briefing package https://www.cpsc.gov/s3fs-public/Proposed%20Revision%20of%20ASTM%20F963%20Mandatory%20Toy%20Standard%20-%20November%2015%202017.pdf?Rqy8BAU21cW2qoESRe_DSqkDknOpDtBq for a more 
detailed discussion regarding the exemption's effect on safety.
---------------------------------------------------------------------------

    \4\ ASTM F963 sound limit calculations are based on occupation 
exposure limits recommended by NIOSH.
---------------------------------------------------------------------------

    Because addition of the text in Section 8.20.1.5(5) of ASTM F 963-
17 would not improve the safety of toys, the Commission determined that 
this provision should not be allowed to become part of CPSC's mandatory 
toy standard. The other changes are either editorial non-substantive 
changes that will not affect safety, or they are substantive changes 
that will improve safety. Thus, the Commission accepts all changes in 
ASTM F963-17, with the exception of the addition of text in Section 
8.20.1.5 (5) because it reduces safety.

C. Incorporation by Reference

    Although ASTM F963-17 is mandatory by operation of statute, the 
Commission has incorporated by reference ASTM F963 in the Code of 
Federal Regulations (CFR) to indicate that ASTM F963 is a CPSC 
mandatory standard.
    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 ASTM F963-17 standard that the Commission 
incorporates by reference into 16 CFR part 1250. 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; http://www.astm.org/. A copy of the standard can 
also be inspected at CPSC's Office of the Secretary, U.S.

[[Page 57121]]

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 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 106(f)(1)(B) are 
``consumer product safety standards.'' Thus, they are subject to the 
testing and certification requirements of section 14 of the CPSA.
    Because toys 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 of section 101 of the CPSIA, the phthalates 
prohibitions of section 106 of the CPSIA, and the tracking label 
requirement in section 14(a)(5) of the CPSA.

E. Notice of Requirements

    In accordance with section 14(a)(3)(B)(vi) of the CPSA, the 
Commission has previously published three NORs for accreditation of 
third party conformity assessment bodies for testing toys (76 FR 46598 
(Aug. 3, 2011), 78 FR 15836 (March 12, 2013), and 82 FR 8989 (February 
2, 2017)). The last NOR provided the criteria and process for our 
acceptance of accreditation of third party conformity assessment bodies 
for testing toys to ASTM F963-16. The NOR for ASTM F963-16 is listed in 
the Commission's rule, ``Requirements Pertaining to Third Party 
Conformity Assessment Bodies.'' 16 CFR part 1112.
    The previous NOR for the toy safety standard included 37 sections 
from ASTM F963-16 that required third party testing.
    Certain provisions of ASTM F963-17 do not require third party 
testing as was the case in the previous NORs issued for ASTM F963. The 
ASTM F963-17 provisions that do not require third party testing are in 
the following areas:
     Any provision of ASTM F963 that section 106 of the CPSIA 
excepted from being a mandatory consumer product safety standards 
issued by the Commission. The CPSIA also excepted from ASTM F963, any 
provision that restates or incorporates an existing mandatory standard 
or ban promulgated by the Commission or by statute. In addition, the 
CPSIA excepted provisions from ASTM F963 that restate or incorporate a 
regulation promulgated by the Food and Drug Administration or any 
statute administered by the U.S. Food and Drug Administration. Section 
4, Public Law 112-28, Aug 12, 2011.
     Those sections of ASTM F963-17 that pertain to the 
manufacturing process and, thus, cannot be evaluated meaningfully by a 
test of the finished product (e.g., the purified water provision at 
section 4.3.6.1).
     Those provisions of ASTM F963-17 with requirements for 
labeling, instructional literature, or producer's markings.
     Those provision in ASTM F963-17 that sets a limit for a DI 
(2-ethylhexyl) phthalate in pacifiers, rattles, and teethers. This 
section is excepted from third party testing because section 108 of the 
CPSIA sets limits for this and other phthalates that are more stringent 
than this requirement in ASTM F963-17.
    This latest revision of the toy safety standard, ASTM F963-17, had 
a much shorter period between revisions than is typical. In the earlier 
revisions, the transition period for CPSC acceptance of laboratory 
accreditation and the certification effective dates allowed adequate 
time for laboratories to update their accreditations to the latest 
standard. The revisions in earlier versions of the standard typically 
included several substantive changes in test requirements and testing 
methods. This is not the case when comparing ASTM F963-17 to ASTM F963-
16. In response to the directions in the ASTM F963-16 NOR, testing 
laboratories began working with their accreditation bodies to update 
their scope of accreditation to include references to ASTM F963-16.
    Since issuance of the ASTM F963-16 NOR, the CPSC has accepted 
applications from more than 100 testing laboratories for sections in 
ASTM F963-16 and posted the information for each laboratory on the CPSC 
Web site. However, there are still more than 100 CPSC-accepted 
laboratories that are listed only for ASTM F963-11 and have not yet 
updated their accreditation scope to include ASTM F963-16. Many of 
these laboratories may be in the process of updating their 
accreditation scope to ASTM F963-16. Other laboratories may be waiting 
on Commission action regarding adoption of ASTM F963-17 and the NOR for 
ASTM F963-17.
    To address the transition just described, the Commission is 
permitting acceptance of testing that supports ASTM F963-17 
certification, and acceptance of laboratory accreditation that take 
into account testing laboratories that are already CPSC-accepted for 
testing to relevant sections in ASTM F963-16, ASTM F963-11, and ASTM 
F963-07[egr]\1\ Section 4.27, as described below.

1. CPSC Automatically Accepts Laboratories for ASTM F963-17, if the 
Laboratories Are CPSC-Accepted to ASTM F963-16

    The CPSC's online laboratory application and Web site listing for 
testing laboratories that have been CPSC-accepted to sections in ASTM 
F963-16 will be modified to show CPSC-acceptance to ``ASTM F963-16/ASTM 
F963-17.'' For example, CPSC-accepted laboratories currently listed on 
the CPSC Web site for:

 4.6 (ASTM F963-16), Small Objects
 4.7 (ASTM F963-16), Accessible Edges
 4.8 (ASTM F963-16), Projections
will be changed on the CPSC Web site to read:

 4.6 (ASTM F963-16/ASTM F963-17), Small Objects
 4.7 (ASTM F963-16/ASTM F963-17), Accessible Edges
 4.8 (ASTM F963-16/ASTM F963-17), Projections

This will accommodate laboratories that updated their accreditation 
scope and received CPSC acceptance shortly after issuance of the ASTM 
F963-16 NOR.
    For laboratories that are accredited to ASTM F963-11 and that have 
not yet updated their scope to later versions, they may elect scope 
revisions to reflect ASTM F963-16 or ASTM F963-17, or both. When these 
laboratories apply to the CPSC, the CPSC will accept references to 
either the -16 or -17 version, and the lab will be listed on the CPSC 
Web site for ``4.x (ASTM F963-16/ASTM F963-17).''
    This will provide an equitable approach for all the third party 
laboratories that applied and were CPSC-accepted for sections in ASTM 
F963-16 and for testing laboratories that are currently working with 
their accreditation bodies to update the ASTM F963 references in their 
accreditation scope. In addition, this will allow laboratories that are 
CPSC-

[[Page 57122]]

listed for ``ASTM F963-16/ASTM F963-17'' to conduct testing to support 
certification to the -16 and -17 versions ASTM F963.

2. Maintain the Interim Allowance for Laboratories Accredited to ASTM 
F963-11 To Test for ASTM F963-16 and ASTM F963-17

    The NOR for ASTM F963-16 that was issued on February 2, 2017 (82 FR 
8989), provided a transition period for CPSC-accepted labs to support 
certification testing to ASTM F963-16. During the transition period, 
CPSC will accept ASTM F963-16 testing results by test laboratories that 
are CPSC-accepted to ASTM F963-11 sections, or ASTM F963-07[egr]\1\ 
section 4.27 for toy chests, for a period not to exceed 2 years. The 2-
year period ends on February 4, 2019. This allowance was to provide 
adequate time for testing laboratories to work with their accreditation 
bodies, make official updates to their accreditation scope to include 
ASTM F963-16 sections, and submit applications to the CPSC. The ASTM 
F963-17 NOR will continue the transition period provided in the ASTM 
F963-16 NOR. The CPSC will accept ASTM F963-17 testing results by 
laboratories that are CPSC-accepted to ASTM sections in F963-11 (or 
4.27 of ASTM F963-07[egr]\1\) until February 4, 2019.
    The CPSC will open the application process for all sections of ASTM 
F963-17 when this direct final rule is published in the Federal 
Register as an amendment to 16 CFR part 1112. The CPSC is providing 
notice of these requirements through this direct final rule and through 
direct email to all current CPSC-accepted laboratories and their 
accreditation bodies. This process will avoid disruption to continuous 
third party testing to the toy safety standard and allow for a 
practicable transition from ASTM F963-11 to ASTM F963-16 to ASTM F963-
17 for testing laboratories, the toy industry, and other interested 
parties.

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.'' The Commission concludes that notice and comment is 
unnecessary because ASTM F963 automatically becomes a consumer product 
safety standard by operation of law. The Commission has voted to allow 
ASTM F963-17 to become the mandatory CPSC standard. Even without the 
incorporation by reference, ASTM F963-17, except for Section 8.20.1.5 
(5) and provisions the CPSIA excluded, will take effect as the new 
mandatory CPSC standard pursuant to section 106(g) of the CPSIA. This 
rule amends 16 CFR part 1250 to reflect the standard that CPSC has 
allowed under section 106(g) of the CPSIA. Because this document merely 
incorporates by reference a standard that takes effect by operation of 
statute, public comment could not affect the changes to the standard or 
the effect of the revised standard as a consumer product safety 
standard under section 106(g) of the CPSIA. The rule also updates the 
corresponding provisions of the NOR for ASTM F963 in part 1112 to 
reflect the revision to the standard. The amendment to part 1112 does 
not establish substantive requirements, but updates the criteria and 
process for CPSC's acceptance of accreditation of third party 
conformity assessment bodies for testing toys under the revised ASTM 
F963 standard. Therefore, the Commission concludes that public comment 
is not necessary.
    The Commission believes that issuing a direct final rule in these 
circumstances is appropriate. 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 also recommended using direct final rulemaking when an 
agency uses the ``unnecessary'' prong of the good cause exemption to 
notice and comment rulemaking. Consistent with the ACUS recommendation, 
the Commission is publishing this rule as a direct final rule because 
we do not believe comment is necessary and do not expect any 
significant adverse comments to the direct final rule.
    Unless we receive a significant adverse comment within 30 days, the 
rule will become effective on February 28, 2018. In accordance with 
ACUS's recommendation, the Commission considers a significant adverse 
comment to be one where the commenter explains why the rule revising 
the incorporation by reference would be inappropriate. We note that 
comments on the underlying substantive provisions of ASTM F963-17 are 
not considered significant adverse comments because those provisions 
are mandatory by operation of the statute, and therefore, the 
Commission cannot change them in response to comments. The Commission 
could only make changes to the way the incorporation by reference 
appears in the CFR.
    Should the Commission receive 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. 5 U.S.C. 603 and 604. As explained above, the 
Commission has determined that notice and comment is not necessary for 
this direct final rule. We also note the limited nature of this 
document. The incorporation by reference of ASTM F963-17 and the update 
to the notice of requirements in part 1112 will not result in any 
substantive changes to the standard. Thus, the rule does not create new 
substantive obligations for any entity, including any small entity. 
Rather, with this action, the CFR will reflect the mandatory CPSC 
standard that takes effect under the CPSIA and will update the 
corresponding NOR provisions in 16 CFR part 1112.

H. Paperwork Reduction Act

    The toy standard contains information collection requirements under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). OMB has 
approved the collection of information for ASTM F963 under OMB Control 
No. 3041-0159.

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.

[[Page 57123]]

J. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a 
``consumer product safety standard under [the 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.
    Section 106(f) of the CPSIA states that rules issued under that 
section ``shall be considered consumer product safety standards issued 
by the Commission under section of the Consumer Product Safety Act'' 
thus, implying that the preemptive effect of section 26(a) of the CPSA 
would apply. Therefore, a rule issued under section 106 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 106(g) of the CPSIA, when 
ASTM revises ASTM F963, 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. In accordance with this provision, this rule establishes an 
effective date that is 180 days after we received notification from 
ASTM of revisions to the standard. As discussed in section F of this 
preamble, this is a direct final rule. Unless we receive a significant 
adverse comment within 30 days, the rule will become effective on 
February 28, 2018. Additionally, the effective date for the NOR is 
February 28, 2018, the same date that the provisions of ASTM F963-17 
become effective.

List of Subjects

16 CFR Part 1112

    Administrative practice and procedure, Audit, Consumer protection, 
Incorporation by reference, Reporting and recordkeeping requirements, 
Third party conformity assessment body.

16 CFR Part 1250

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

    For the reasons discussed in the preamble, the Commission amends 16 
CFR chapter II, as follows:

PART 1112--REQUIREMENTS PERTAINING TO THIRD PARTY CONFORMITY 
ASSESSMENT BODIES

0
1. The authority citation for part 1112 continues to read as follows:

    Authority: 15 U.S.C. 2063; Pub. L. 110-314, section 3, 122 Stat. 
3016, 3017 (2008).


0
2. Amend Sec.  1112.15 by:
0
a. Revising the introductory text to paragraph (b)(32);
0
b. Revising paragraph (b)(32)(ii); and
0
c. Revising paragraph (c)(1)(ii).
    The revisions read as follows:


Sec.  1112.15   When can a third party conformity assessment body apply 
for CPSC acceptance for a particular CPSC rule or test method?

* * * * *
    (b) * * *
    (32) 16 CFR part 1250, safety standard for toys. The CPSC only 
requires certain provisions of ASTM F963-17 to be subject to third 
party testing; and therefore, the CPSC only accepts the accreditation 
of third party conformity assessment bodies for testing under the 
following toy safety standards:
* * * * *
    (ii) ASTM F963-17:
* * * * *
    (c) * * *
    (1) * * *
    (ii) ASTM F963-17, ``Standard Consumer Safety Specification for Toy 
Safety,'' May 1, 2017.
* * * * *

PART 1250--SAFETY STANDARD MANDATING ASTM F963 FOR TOYS

0
3. The authority citation for part 1250 continues to read as follows:

    Authority: Pub. L. 110-314, sec. 106, 122 Stat. 3016 (August 14, 
2008); Pub. L. 112-28, 125 Stat. 273 (August 12, 2011).

0
4. Amend Sec.  1250.2 by:
0
a. Revising paragraph (a); and
0
b. Adding paragraph (c).
    The revisions and additions read as follows:


Sec.  1250.2  Requirements for toy safety.

    (a) Except as provided for in paragraphs (b) and (c) of this 
section, toys must comply with the provisions of ASTM F963-17, Standard 
Consumer Safety Specification for Toy Safety, approved May 1, 2017. 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, P.O. 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.
* * * * *
    (c) Instead of complying with section 8.20.1.5(5) of ASTM F963-17, 
comply with the following:
    (1) Floor and tabletop toys that move, where the sound is caused as 
a result of the movement imparted on the toy (for example, a noise 
making mechanism attached to an axle of a toy vehicle) shall be tested 
using the method for push and pull toys. In addition to the C-weighted 
peak measurement maximum A-weighted sound pressure level, 
LAFmax, shall be made and compared to the requirements of 
4.5.1.2.
    (2) [Reserved]

Alberta E. Mills,
Acting Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2017-26009 Filed 12-1-17; 8:45 am]
 BILLING CODE 6355-01-P