Marking of Toy, Look-Alike, and Imitation Firearms, 30226-30229 [2023-09999]
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Federal Register / Vol. 88, No. 91 / Thursday, May 11, 2023 / Rules and Regulations
Issued in Washington, DC, on April 14,
2023.
Thomas J. Nichols,
Aviation Safety, Flight Standards Service,
Manager, Standards Section, Flight
Procedures & Airspace Group, Flight
Technologies & Procedures Division.
Takeoff Minimums and ODPs, effective
at 0901 UTC on the dates specified, as
follows:
Adoption of the Amendment
Accordingly, pursuant to the
authority delegated to me, 14 CFR part
97 is amended by amending Standard
Instrument Approach Procedures and
■
AIRAC date
18–May–23 ..
18–May–23 ..
18–May–23 ..
State
MI
MI
MI
PART 97—STANDARD INSTRUMENT
APPROACH PROCEDURES
Airport
Traverse City ..........
Traverse City ..........
Traverse City ..........
Cherry Capital .........................
Cherry Capital .........................
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BILLING CODE 4910–13–P
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Part 1272
[Docket No. CPSC–2023–0021]
Marking of Toy, Look-Alike, and
Imitation Firearms
Consumer Product Safety
Commission.
ACTION: Direct final rule.
AGENCY:
The Federal Energy
Management Improvement Act Update
transferred the authority for regulating
the marking of toy, look-alike, and
imitation firearms from the Department
of Commerce to the Consumer Product
Safety Commission. The Commission is
issuing this direct final rule to adopt the
Department of Commerce rule for the
marking of toy, look-alike, and imitation
firearms, with non-substantive and
conforming changes.
DATES: The rule is effective June 26,
2023, unless CPSC receives a significant
adverse comment by June 12, 2023. If
CPSC receives such a comment, it will
publish a notice in the Federal Register
withdrawing this direct final rule before
its effective date. The incorporation by
reference of publications listed in this
rule is approved by the Director of the
Federal Register as of June 26, 2023.
ADDRESSES: You can submit comments,
identified by Docket No. CPSC–2023–
0021, by any of the following methods:
Electronic Submissions: Submit
electronic comments to the Federal
eRulemaking Portal at:
www.regulations.gov. Follow the
instructions for submitting comments.
Do not submit through this website:
SUMMARY:
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Authority: 49 U.S.C. 106(f), 106(g), 40103,
40106, 40113, 40114, 40120, 44502, 44514,
44701, 44719, 44721–44722.
City
[FR Doc. 2023–10044 Filed 5–10–23; 8:45 am]
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1. The authority citation for part 97
continues to read as follows:
16:20 May 10, 2023
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FDC No.
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confidential business information, trade
secret information, or other sensitive or
protected information that you do not
want to be available to the public. CPSC
does not accept comments submitted by
email, except as described below.
Mail/Hand Delivery/Courier/
Confidential Written Submissions: CPSC
encourages you to submit comments by
using the Federal eRulemaking Portal.
You may, however, submit comments
by mail, hand delivery, or courier to:
Office of the Secretary, Consumer
Product Safety Commission, 4330 East
West Highway, Bethesda, MD 20814;
telephone: (301) 504–7479.
Instructions: All submissions must
include the agency name and docket
number. CPSC may post all comments
without change, including any personal
identifiers, contact information, or other
personal information provided, to:
www.regulations.gov. If you wish to
submit confidential business
information, trade secret information, or
other sensitive or protected information
that you do not want to be available to
the public, you may submit such
comments by mail, hand delivery, or
courier, or you may email them to: cpscos@cpsc.gov.
Docket: For access to the docket to
read background documents or
comments received, go to:
www.regulations.gov, and insert the
docket number, CPSC–2023–0021, into
the ‘‘Search’’ box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT:
Salman Sarwar, Compliance Officer,
U.S. Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (301)
504–7682; email: ssarwar@cpsc.gov.
SUPPLEMENTARY INFORMATION:
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2. Part 97 is amended to read as
follows:
By amending: § 97.23 VOR, VOR/
DME, VOR or TACAN, and VOR/DME
or TACAN; § 97.25 LOC, LOC/DME,
LDA, LDA/DME, SDF, SDF/DME;
§ 97.27 NDB, NDB/DME; § 97.29 ILS,
ILS/DME, MLS, MLS/DME, MLS/RNAV;
§ 97.31 RADAR SIAPs; § 97.33 RNAV
SIAPs; and § 97.35 COPTER SIAPs,
Identified as follows:
■
* * * Effective Upon Publication
FDC date
3/30/23
3/30/23
3/30/23
Subject
RNAV (GPS) RWY 28, Orig–A.
RNAV (GPS) RWY 36, Orig–A.
VOR–A, Amdt 21.
A. Background
Section 4 of the Federal Energy
Management Improvement Act of 1988
made it unlawful for any person to
manufacture, enter into commerce, ship,
transport, or receive any toy, look-alike,
or imitation firearm unless the firearm
contains, or has affixed to it, a marking
approved by the Secretary of Commerce.
15 U.S.C. 5001. In 1989, the Department
of Commerce promulgated regulations
implementing this law at 15 CFR part
1150. 54 FR 19356 (May 5, 1989). In
2013, the Department of Commerce
moved those regulations to 15 CFR part
272. 78 FR 4764 (January 23, 2013).
The Department of Commerce
regulations incorporate by reference
ASTM F589–85, Standard Consumer
Safety Specification for Non-Powder
Guns, which ‘‘establishes performance
requirements and test methods intended
to provide a reasonable degree of safety
in the normal use of non-powder guns
and projectiles.’’ ASTM F589–85,
section 3.1; 15 CFR 272.1(b). That 1985
ASTM standard also addresses ‘‘the
misuse of non-powder guns and
specifies the minimum warnings and
instructions that are to be provided in
literature and on labels and packages.’’
Id. section 3.2. ASTM later issued
revised versions of F589, but the
Department of Commerce did not
incorporate the revisions into its
regulations.
The Department of Commerce
regulations also describe requirements
for the use of blaze orange coloring on
toy, look-alike, or imitation firearms. 15
CFR 272.3. Those regulations
incorporate by reference the federal
color standard, Federal Standard 595B,
December 1989, color number 12199
(Fed–Std–595B 12199). 15 CFR 272.3(e).
In February 2017, the General Services
Administration cancelled Federal
Standard 595B and it was replaced with
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SAE International’s Aerospace Material
Specification (AMS) Standard 595A,
Colors Used in Government
Procurement. The AMS standard
defines a color index system used by,
but not limited to, government activities
in a format suitable for color
identification, color selection, color
matching, and quality control
inspection. It also describes the
designation and use of color media that
are available to conduct these activities.
The Department of Commerce, however,
did not update its regulations after the
cancellation of Federal Standard 595B,
so those regulations continue to
incorporate by reference that federal
standard.
In August 2022, the President signed
into law the Federal Energy
Management Improvement Act Update.1
That law transferred implementation
and enforcement of 15 U.S.C. 5001 from
the Department of Commerce to CPSC.
This direct final rule creates a new 16
CFR part 1272 that adopts the substance
of the existing Department of Commerce
rule for the marking of toy, look-alike,
and imitation firearms with only nonsubstantive and conforming changes.2
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B. Description of the Rule
This direct final rule creates a new
part 1272, ‘‘Marking of Toy, Look-Alike,
and Imitation Firearms.’’ Part 1272
adopts in substance the Department of
Commerce regulation found in 15 CFR
part 272.
Part 1272 contains nomenclature and
other non-substantive and conforming
technical changes as described below.
• The incorporation by reference of
ASTM F589–85 in § 1272.1(b) has been
retained, with updates to provide
current information reflecting the
availability of the voluntary standard for
public inspection, and to follow the
current guidance of the Office of the
Federal Register (OFR) for incorporating
a voluntary standard by reference.
Incorporation of the 1985 version of the
ASTM F589 standard is being retained
for consistency with the Department of
Commerce regulation.
• ‘‘Secretary of Commerce’’ in
§ 1272.3 has been changed to
‘‘Consumer Product Safety
Commission.’’
• The incorporation by reference in
§ 1272.3(e) has been updated from
Federal Standard 595B–85 to reference
SAE International’s standard AMS STD
595A–17, Colors Used in Government
Procurement. The current version
1 Public Law 117–167, div. B, title II, 10246(e),
Aug. 9, 2022, 136 Stat. 1492.
2 The Commission voted 4–0 to approve
publication of this notice.
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incorporated in the rule is AMS STD
595A–17. The color 12199 referenced in
FED STD 595B is identical to color
12199 in AMS STD 595A–17. Thus, this
change of the color standard
incorporated in the regulation is not
substantive.
• The contact information for
submitting a waiver request under
§ 1272.4 has been changed to CPSC.
C. Incorporation by Reference
Sections 1272.1 and 1272.3 of the
direct final rule incorporate by reference
ASTM F589–85 and AMS STD–595A–
17, respectively. The OFR has
regulations regarding incorporation by
reference. 1 CFR part 51. Under these
regulations, agencies must discuss, in
the preamble to a final rule, ways in
which the material the agency
incorporates by reference is reasonably
available to interested parties, and how
interested parties can obtain the
material. In addition, the preamble to
the final rule must summarize the
material. 1 CFR 51.5(b).
In accordance with the OFR
regulations, this preamble summarizes
the provisions of ASTM F589–85 and
AMS STD 595A–17 that the
Commission incorporates by reference
into 16 CFR part 1272. These standards
are reasonably available to interested
parties. A read-only copy of ASTM
F589–85 is available for viewing, at no
cost, on ASTM’s website at:
www.astm.org/READINGLIBRARY/.
Interested parties can purchase a copy
of ASTM F589–85 from ASTM
International, 100 Barr Harbor Drive,
P.O. Box C700, West Conshohocken, PA
19428–2959; telephone (610) 832–9585;
www.astm.org.
A read-only copy of AMS STD 595A–
17 is available for viewing until the
direct final rule takes effect, at no cost,
on SAE’s website at: https://
www.sae.org/standards/reading-room.
Once the rule takes effect, a read-only
copy of the standard will continue to be
available for viewing, at no cost, at the
same web address. Interested parties can
purchase a copy of SAE AMS STD
595A–17, Colors Used in Government
Procurement, approved February 10,
2017, from SAE International, 400
Commonwealth Dr., Warrendale, PA
15096; telephone (888) 875–3976;
www.sae.org.
Interested parties can also schedule
an appointment to inspect a copy of the
standards at Office of the Secretary, U.S.
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814, telephone: (301) 504–7479;
email: cpsc-os@cpsc.gov.
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D. Direct Final Rule Process
The Commission is issuing this rule
as a direct final rule. Although the
Administrative Procedure Act (APA; 5
U.S.C. 551–559) generally requires
agencies to provide notice of a rule and
an opportunity for interested parties to
comment on it, section 553 of the APA
provides an exception when the agency
‘‘for good cause finds’’ that notice and
comment are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ Id. 553(b)(B). The Commission
concludes that because this rule adopts
the substantive requirements of the
Commerce regulation found in 15 CFR
part 272 with only non-substantive and
conforming changes, notice and
comment are not necessary. The existing
Commerce regulation has been in effect
for over 30 years and stakeholders have
been subject to the requirements of the
regulation. CPSC is merely adopting the
existing regulation in response to
Congress transferring the authority for
regulating markings on toy, look-alike,
and imitation firearms under 15 U.S.C.
5001 from the Department of Commerce
to CPSC.
In Recommendation 95–4, the
Administrative Conference of the
United States (ACUS) endorses direct
final rulemaking as an appropriate
procedure to expedite rules that are
noncontroversial and not expected to
generate significant adverse comments.
See 60 FR 43108 (August 18, 1995).
ACUS recommends 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 CPSC does not expect any
significant adverse comments.
Unless CPSC receives a significant
adverse comment within 30 days of this
notification, the rule will become
effective on June 26, 2023. 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 a showing
that challenges ‘‘the rule’s underlying
premise or approach,’’ or that the rule
‘‘would be ineffective or unacceptable
without a change.’’ 60 FR 43108, 43111
(August 18, 1995). As noted, this rule
adopts the existing Commerce
regulation without making substantive
changes, and thus any public comments
should address only this specific action.
If the Commission receives a
significant adverse comment, the
Commission will withdraw this direct
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final rule. Depending on the comment
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.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA;
5 U.S.C. 601–612) generally requires
agencies to review proposed and final
rules for their potential economic
impact on small entities, including
small businesses, and to prepare
regulatory flexibility analyses. 5 U.S.C.
603, 604. The RFA applies to any rule
that is subject to notice and comment
procedures under section 553 of the
APA. Id. As discussed in section D.
Direct Final Rule Process of this
preamble, the Commission has
determined that notice and the
opportunity to comment are
unnecessary for this rule. Therefore, the
RFA does not apply.
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F. Effective Date
Unless the Commission receives a
significant adverse comment by June 12,
2023, the rule will become effective on
June 26, 2023. The requirements of 16
CFR part 1272 apply to look-alike and
imitation firearms manufactured or
imported after the effective date.
G. Certification
Look-alike and imitation firearms are
subject to the new 16 CFR part 1272.
Section 14(a)(1) of the Consumer
Product Safety Act (CPSA) requires
manufacturers of non-children’s
products subject to a consumer product
safety rule under the CPSA, or to a
similar rule, ban, standard, or regulation
under any other act enforced by the
Commission, to certify that the products
comply with all applicable CPSC
requirements based on a test of each
product, or on a reasonable testing
program. 15 U.S.C. 2063(a)(1). Such
certification is known as general
conformity certification (GCC). Lookalike and imitation firearms that are not
children’s products are subject to the
requirement to issue a GCC.
Toy guns are children’s products
currently regulated under CPSC’s
mandatory toy standard. Specifically,
toy guns are subject to the requirements
for toy gun markings contained in
section 4.30 of ASTM F963–17 that are
incorporated by reference at 16 CFR
1250.2. The requirements of section 4.30
are in turn based on the requirements in
the Department of Commerce regulation
at 15 CFR part 272. Section 14(a)(2) of
the CPSA requires the manufacturer or
private labeler of a children’s product
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that is subject to a children’s product
safety rule to certify, based on a thirdparty conformity assessment body’s
testing, that the product complies with
the applicable children’s product safety
rule. Id. 2063(a)(2). Such certification is
referred to as a children’s product
certificate (CPC). Section 14(a)(3) also
requires the Commission to publish a
notice of requirements (NOR) for a
third-party conformity assessment body
(i.e., testing laboratory) to obtain
accreditation to assess conformity with
a children’s product safety rule. Id.
2063(a)(3)(A).
In accordance with section
14(a)(3)(B)(vi) of the CPSA, the
Commission previously published an
NOR for accreditation of third party
conformity assessment bodies for testing
toy imitation firearms under section
4.30 for the required toy gun markings.
76 FR 46598 (Aug. 3, 2011); 15 U.S.C.
2063(a)(3)(B)(vi). The NOR provided the
criteria and process for CPSC to accept
accreditation of third party conformity
assessment bodies for toy gun markings
under section 4.30 of ASTM F963. The
NORs for all mandatory standards for
children’s products are listed in the
Commission’s rule, ‘‘Requirements
Pertaining to Third Party Conformity
Assessment Bodies,’’ codified in 16 CFR
part 1112. Specifically, the NOR for
section 4.30 of ASTM F963–17 is
codified at 16 CFR
1112.15(b)(32)(ii)(CC). Toy guns subject
to the toy gun marking requirements of
section 4.30 of ASTM F967–17 are
currently required to certify, based on
third party testing by a CPSC-accepted
laboratory, that the toy gun complies
with the requirements of section 4.30.
Issuance of this rule does not impact the
requirement for certification of toys
guns under section 4.30 of ASTM F967–
17. That requirement remains
unchanged and manufacturers are
expected to continue complying with it.
H. Preemption
15 U.S.C. 5001(g) provides that the
provisions of that section shall
supersede any provision of state or local
laws or ordinances which provide for
markings or identification inconsistent
with provisions of 5001(g), provided
that no State shall:
• prohibit the sale or manufacture of
any look-alike, nonfiring, collector
replica of an antique firearm developed
prior to 1898, or
• prohibit the sale (other than
prohibiting the sale to minors) of
traditional B–B, paint ball, or pelletfiring air guns that expel a projectile
through the force of air pressure.
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15 U.S.C. 5001(g). Therefore, new 16
CFR part 1272 will preempt any state or
local laws in accordance with 5001(g).
I. Environmental Considerations
Commission rules are categorically
excluded 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. Congressional Review Act
The Congressional Review Act (CRA;
5 U.S.C. 801–808) states that before a
rule may take effect, the agency issuing
the rule must submit the rule, and
certain related information, to each
House of Congress and the Comptroller
General. 5 U.S.C. 801(a)(1). The CRA
submission must indicate whether the
rule is a ‘‘major rule.’’ The CRA states
that the Office of Information and
Regulatory Affairs determines whether a
rule qualifies as a ‘‘major rule.’’
Pursuant to the CRA, OMB’s Office of
Information and Regulatory Affairs has
determined that this rule does not
qualify as a ‘‘major rule,’’ as defined in
5 U.S.C. 804(2). To comply with the
CRA, CPSC will submit the required
information to each House of Congress
and the Comptroller General.
List of Subjects in 16 CFR Part 1272
Consumer protection, Imports,
Incorporation by reference, Law
enforcement, Safety.
■ For the reasons stated in the preamble,
the Commission amends title 16 of the
CFR to add part 1272 to read as follows:
PART 1272—MARKING OF TOY,
LOOK-ALIKE, AND IMITATION
FIREARMS
Sec.
1272.1
1272.2
1272.3
1272.4
1272.5
Applicability.
Prohibitions.
Approved markings.
Waiver.
Preemption.
Authority: 15 U.S.C. 5001.
§ 1272.1
Applicability.
This part applies to toy, look-alike,
and imitation firearms (‘‘devices’’)
having the appearance, shape, and/or
configuration of a firearm and produced
or manufactured and entered into
commerce on or after May 5, 1989,
including devices modelled on real
firearms manufactured, designed, and
produced since 1898. This part does not
apply to:
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(a) Non-firing collector replica antique
firearms, which look authentic and may
be a scale model but are not intended
as toys modelled on real firearms
designed, manufactured, and produced
prior to 1898;
(b) Traditional B–B, paint-ball, or
pellet-firing air guns that expel a
projectile through the force of
compressed air, compressed gas or
mechanical spring action, or any
combination thereof, as described in
ASTM F589–85, Standard Consumer
Safety Specification for Non-Powder
Guns. ASTM F589–85, Standard
Consumer Safety Specification for NonPowder Guns, approved June 28, 1985,
is incorporated by reference into this
section with the approval of the Director
of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. This material
is available for inspection at the
Consumer Product Safety Commission
(CPSC) and at the National Archives and
Records Administration (NARA).
Contact CPSC at: Office of the Secretary,
U.S. Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814, telephone (301)
504–7479, email cpsc-os@cpsc.gov. For
information on the availability of this
material at NARA, visit
www.archives.gov/federal-register/cfr/
ibr-locations.html or email
fr.inspection@nara.gov. A read-only
copy of the standard is available for
viewing on the ASTM website at
www.astm.org/READINGLIBRARY/. You
may obtain a copy from ASTM
International, 100 Barr Harbor Drive,
P.O. Box C700, West Conshohocken, PA
19428–2959; telephone (610) 832–9585;
www.astm.org.
(c) Decorative, ornamental, and
miniature objects having the
appearance, shape and/or configuration
of a firearm, including those intended to
be displayed on a desk or worn on
bracelets, necklaces, key chains, and so
on, provided that the objects measure no
more than thirty-eight (38) millimeters
in height by seventy (70) millimeters in
length, the length measurement
excluding any gun stock length
measurement.
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§ 1272.2
Prohibitions.
No person shall manufacture, enter
into commerce, ship, transport, or
receive any toy, look-alike, or imitation
firearm (‘‘device’’) covered by this part
as set forth in § 1272.1 unless such
device contains, or has affixed to it, one
of the markings set forth in § 1272.3, or
unless this prohibition has been waived
by § 1272.4.
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§ 1272.3
Approved markings.
The following markings are approved
by the Consumer Product Safety
Commission:
(a) A blaze orange (AMS STD 595A–
17 color 12199) or orange color brighter
than that specified by the AMS standard
color number, solid plug permanently
affixed to the muzzle end of the barrel
as an integral part of the entire device
and recessed no more than 6 millimeters
from the muzzle end of the barrel.
(b) A blaze orange (AMS STD 595A–
17 color 12199) or orange color brighter
than that specified by the AMS standard
color number, marking permanently
affixed to the exterior surface of the
barrel, covering the circumference of the
barrel from the muzzle end for a depth
of at least 6 millimeters.
(c) Construction of the device entirely
of transparent or translucent materials
which permits unmistakable
observation of the device’s complete
contents.
(d) Coloration of the entire exterior
surface of the device in white, bright
red, bright orange, bright yellow, bright
green, bright blue, bright pink, or bright
purple, either singly or as the
predominant color in combination with
other colors in any pattern.
(e) SAE AMS STD 595A–17, Colors
Used in Government Procurement,
approved February 10, 2017, is
incorporated by reference into this
section with the approval of the Director
of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. This material
is available for inspection at the
Consumer Product Safety Commission
(CPSC) and at the National Archives and
Records Administration (NARA).
Contact CPSC at: Office of the Secretary,
U.S. Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814, telephone (301)
504–7479, email cpsc-os@cpsc.gov. For
information on the availability of this
material at NARA, visit
www.archives.gov/federal-register/cfr/
ibr-locations.html or email
fr.inspection@nara.gov. A read-only
copy of the standard is available for
viewing on the SAE website at https://
www.sae.org/standards/reading-room.
You may obtain a copy from SAE
International, 400 Commonwealth Dr.,
Warrendale, PA 15096; telephone (888)
875–3976; www.sae.org.
§ 1272.4
Waiver.
The prohibitions set forth in § 1272.2
may be waived for any toy, look-alike,
or imitation firearm that will be used
only in the theatrical, movie, or
television industry. A request for such
a waiver should be made, in writing, by
email to RegulatoryEnforcement@
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cpsc.gov and by physical mail to U.S.
Consumer Product Safety Commission,
Office of Compliance and Field
Operations, Regulatory Enforcement
Division, 7500 Lindbergh Dr., Unit-A,
Gaithersburg, MD 20879–5413. The
request must include a sworn affidavit
which states that the toy, look-alike, or
imitation firearm will be used only in
the theatrical, movie, or television
industry. A sample of the item must be
included with the physically mailed
request.
§ 272.5
Preemption.
In accordance with section 4(g) of the
Federal Energy Management
Improvement Act of 1988 (15 U.S.C.
5001(g)), the provisions of section 4(a)
of that Act and the provisions of this
part supersede any provision of State or
local laws or ordinances which provides
for markings or identification
inconsistent with the provisions of
section 4 of that Act or the provisions
of this part.
Pamela J. Stone,
Acting Secretary, Consumer Product Safety
Commission.
[FR Doc. 2023–09999 Filed 5–10–23; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2023–0374]
RIN 1625–AA08
Special Local Regulation; Wando River
and Cooper River, Charleston and
Mount Pleasant, SC
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary special local
regulation for the Lowcountry Splash on
certain navigable waters of the Wando
River and Cooper River in Charleston
and Mount Pleasant, SC. This action is
necessary to provide for the safety of life
on navigable waters during this open
water swim event. This regulation
restricts persons and vessels from
entering certain waters of the Wando
River and Cooper River, unless
authorized by the Captain of the Port
(COTP) Charleston or a designated
represented.
DATES: This rule is effective from 7 a.m.
through 11 a.m. on May 13, 2023.
ADDRESSES: To view documents
mentioned in this preamble as being
SUMMARY:
E:\FR\FM\11MYR1.SGM
11MYR1
]]>Agencies
[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Rules and Regulations]
[Pages 30226-30229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09999]
=======================================================================
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1272
[Docket No. CPSC-2023-0021]
Marking of Toy, Look-Alike, and Imitation Firearms
AGENCY: Consumer Product Safety Commission.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Management Improvement Act Update
transferred the authority for regulating the marking of toy, look-
alike, and imitation firearms from the Department of Commerce to the
Consumer Product Safety Commission. The Commission is issuing this
direct final rule to adopt the Department of Commerce rule for the
marking of toy, look-alike, and imitation firearms, with non-
substantive and conforming changes.
DATES: The rule is effective June 26, 2023, unless CPSC receives a
significant adverse comment by June 12, 2023. If CPSC receives such a
comment, it will publish a notice in the Federal Register withdrawing
this direct final rule before its effective date. The incorporation by
reference of publications listed in this rule is approved by the
Director of the Federal Register as of June 26, 2023.
ADDRESSES: You can submit comments, identified by Docket No. CPSC-2023-
0021, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: www.regulations.gov. Follow the instructions for
submitting comments. Do not submit through this website: confidential
business information, trade secret information, or other sensitive or
protected information that you do not want to be available to the
public. CPSC does not accept comments submitted by email, except as
described below.
Mail/Hand Delivery/Courier/Confidential Written Submissions: CPSC
encourages you to submit comments by using the Federal eRulemaking
Portal. You may, however, submit comments by mail, hand delivery, or
courier to: Office of the Secretary, Consumer Product Safety
Commission, 4330 East West Highway, Bethesda, MD 20814; telephone:
(301) 504-7479.
Instructions: All submissions must include the agency name and
docket number. CPSC may post all comments without change, including any
personal identifiers, contact information, or other personal
information provided, to: www.regulations.gov. If you wish to submit
confidential business information, trade secret information, or other
sensitive or protected information that you do not want to be available
to the public, you may submit such comments by mail, hand delivery, or
courier, or you may email them to: [email protected].
Docket: For access to the docket to read background documents or
comments received, go to: www.regulations.gov, and insert the docket
number, CPSC-2023-0021, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Salman Sarwar, Compliance Officer,
U.S. Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (301) 504-7682; email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
Section 4 of the Federal Energy Management Improvement Act of 1988
made it unlawful for any person to manufacture, enter into commerce,
ship, transport, or receive any toy, look-alike, or imitation firearm
unless the firearm contains, or has affixed to it, a marking approved
by the Secretary of Commerce. 15 U.S.C. 5001. In 1989, the Department
of Commerce promulgated regulations implementing this law at 15 CFR
part 1150. 54 FR 19356 (May 5, 1989). In 2013, the Department of
Commerce moved those regulations to 15 CFR part 272. 78 FR 4764
(January 23, 2013).
The Department of Commerce regulations incorporate by reference
ASTM F589-85, Standard Consumer Safety Specification for Non-Powder
Guns, which ``establishes performance requirements and test methods
intended to provide a reasonable degree of safety in the normal use of
non-powder guns and projectiles.'' ASTM F589-85, section 3.1; 15 CFR
272.1(b). That 1985 ASTM standard also addresses ``the misuse of non-
powder guns and specifies the minimum warnings and instructions that
are to be provided in literature and on labels and packages.'' Id.
section 3.2. ASTM later issued revised versions of F589, but the
Department of Commerce did not incorporate the revisions into its
regulations.
The Department of Commerce regulations also describe requirements
for the use of blaze orange coloring on toy, look-alike, or imitation
firearms. 15 CFR 272.3. Those regulations incorporate by reference the
federal color standard, Federal Standard 595B, December 1989, color
number 12199 (Fed-Std-595B 12199). 15 CFR 272.3(e). In February 2017,
the General Services Administration cancelled Federal Standard 595B and
it was replaced with
[[Page 30227]]
SAE International's Aerospace Material Specification (AMS) Standard
595A, Colors Used in Government Procurement. The AMS standard defines a
color index system used by, but not limited to, government activities
in a format suitable for color identification, color selection, color
matching, and quality control inspection. It also describes the
designation and use of color media that are available to conduct these
activities. The Department of Commerce, however, did not update its
regulations after the cancellation of Federal Standard 595B, so those
regulations continue to incorporate by reference that federal standard.
In August 2022, the President signed into law the Federal Energy
Management Improvement Act Update.\1\ That law transferred
implementation and enforcement of 15 U.S.C. 5001 from the Department of
Commerce to CPSC. This direct final rule creates a new 16 CFR part 1272
that adopts the substance of the existing Department of Commerce rule
for the marking of toy, look-alike, and imitation firearms with only
non-substantive and conforming changes.\2\
---------------------------------------------------------------------------
\1\ Public Law 117-167, div. B, title II, 10246(e), Aug. 9,
2022, 136 Stat. 1492.
\2\ The Commission voted 4-0 to approve publication of this
notice.
---------------------------------------------------------------------------
B. Description of the Rule
This direct final rule creates a new part 1272, ``Marking of Toy,
Look-Alike, and Imitation Firearms.'' Part 1272 adopts in substance the
Department of Commerce regulation found in 15 CFR part 272.
Part 1272 contains nomenclature and other non-substantive and
conforming technical changes as described below.
The incorporation by reference of ASTM F589-85 in Sec.
1272.1(b) has been retained, with updates to provide current
information reflecting the availability of the voluntary standard for
public inspection, and to follow the current guidance of the Office of
the Federal Register (OFR) for incorporating a voluntary standard by
reference. Incorporation of the 1985 version of the ASTM F589 standard
is being retained for consistency with the Department of Commerce
regulation.
``Secretary of Commerce'' in Sec. 1272.3 has been changed
to ``Consumer Product Safety Commission.''
The incorporation by reference in Sec. 1272.3(e) has been
updated from Federal Standard 595B-85 to reference SAE International's
standard AMS STD 595A-17, Colors Used in Government Procurement. The
current version incorporated in the rule is AMS STD 595A-17. The color
12199 referenced in FED STD 595B is identical to color 12199 in AMS STD
595A-17. Thus, this change of the color standard incorporated in the
regulation is not substantive.
The contact information for submitting a waiver request
under Sec. 1272.4 has been changed to CPSC.
C. Incorporation by Reference
Sections 1272.1 and 1272.3 of the direct final rule incorporate by
reference ASTM F589-85 and AMS STD-595A-17, respectively. The OFR has
regulations regarding incorporation by reference. 1 CFR part 51. Under
these regulations, agencies must discuss, in the preamble to a final
rule, ways in which the material the agency incorporates by reference
is reasonably available to interested parties, and how interested
parties can obtain the material. In addition, the preamble to the final
rule must summarize the material. 1 CFR 51.5(b).
In accordance with the OFR regulations, this preamble summarizes
the provisions of ASTM F589-85 and AMS STD 595A-17 that the Commission
incorporates by reference into 16 CFR part 1272. These standards are
reasonably available to interested parties. A read-only copy of ASTM
F589-85 is available for viewing, at no cost, on ASTM's website at:
www.astm.org/READINGLIBRARY/. Interested parties can purchase a copy of
ASTM F589-85 from ASTM International, 100 Barr Harbor Drive, P.O. Box
C700, West Conshohocken, PA 19428-2959; telephone (610) 832-9585;
www.astm.org.
A read-only copy of AMS STD 595A-17 is available for viewing until
the direct final rule takes effect, at no cost, on SAE's website at:
https://www.sae.org/standards/reading-room. Once the rule takes effect,
a read-only copy of the standard will continue to be available for
viewing, at no cost, at the same web address. Interested parties can
purchase a copy of SAE AMS STD 595A-17, Colors Used in Government
Procurement, approved February 10, 2017, from SAE International, 400
Commonwealth Dr., Warrendale, PA 15096; telephone (888) 875-3976;
www.sae.org.
Interested parties can also schedule an appointment to inspect a
copy of the standards at Office of the Secretary, U.S. Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, MD 20814,
telephone: (301) 504-7479; email: [email protected].
D. Direct Final Rule Process
The Commission is issuing this rule as a direct final rule.
Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559)
generally requires agencies to provide notice of a rule and an
opportunity for interested parties to comment on it, section 553 of the
APA provides an exception when the agency ``for good cause finds'' that
notice and comment are ``impracticable, unnecessary, or contrary to the
public interest.'' Id. 553(b)(B). The Commission concludes that because
this rule adopts the substantive requirements of the Commerce
regulation found in 15 CFR part 272 with only non-substantive and
conforming changes, notice and comment are not necessary. The existing
Commerce regulation has been in effect for over 30 years and
stakeholders have been subject to the requirements of the regulation.
CPSC is merely adopting the existing regulation in response to Congress
transferring the authority for regulating markings on toy, look-alike,
and imitation firearms under 15 U.S.C. 5001 from the Department of
Commerce to CPSC.
In Recommendation 95-4, the Administrative Conference of the United
States (ACUS) endorses direct final rulemaking as an appropriate
procedure to expedite rules that are noncontroversial and not expected
to generate significant adverse comments. See 60 FR 43108 (August 18,
1995). ACUS recommends 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 CPSC does not expect any significant adverse
comments.
Unless CPSC receives a significant adverse comment within 30 days
of this notification, the rule will become effective on June 26, 2023.
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 a showing that
challenges ``the rule's underlying premise or approach,'' or that the
rule ``would be ineffective or unacceptable without a change.'' 60 FR
43108, 43111 (August 18, 1995). As noted, this rule adopts the existing
Commerce regulation without making substantive changes, and thus any
public comments should address only this specific action.
If the Commission receives a significant adverse comment, the
Commission will withdraw this direct
[[Page 30228]]
final rule. Depending on the comment 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.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally
requires agencies to review proposed and final rules for their
potential economic impact on small entities, including small
businesses, and to prepare regulatory flexibility analyses. 5 U.S.C.
603, 604. The RFA applies to any rule that is subject to notice and
comment procedures under section 553 of the APA. Id. As discussed in
section D. Direct Final Rule Process of this preamble, the Commission
has determined that notice and the opportunity to comment are
unnecessary for this rule. Therefore, the RFA does not apply.
F. Effective Date
Unless the Commission receives a significant adverse comment by
June 12, 2023, the rule will become effective on June 26, 2023. The
requirements of 16 CFR part 1272 apply to look-alike and imitation
firearms manufactured or imported after the effective date.
G. Certification
Look-alike and imitation firearms are subject to the new 16 CFR
part 1272. Section 14(a)(1) of the Consumer Product Safety Act (CPSA)
requires manufacturers of non-children's products subject to a consumer
product safety rule under the CPSA, or to a similar rule, ban,
standard, or regulation under any other act enforced by the Commission,
to certify that the products comply with all applicable CPSC
requirements based on a test of each product, or on a reasonable
testing program. 15 U.S.C. 2063(a)(1). Such certification is known as
general conformity certification (GCC). Look-alike and imitation
firearms that are not children's products are subject to the
requirement to issue a GCC.
Toy guns are children's products currently regulated under CPSC's
mandatory toy standard. Specifically, toy guns are subject to the
requirements for toy gun markings contained in section 4.30 of ASTM
F963-17 that are incorporated by reference at 16 CFR 1250.2. The
requirements of section 4.30 are in turn based on the requirements in
the Department of Commerce regulation at 15 CFR part 272. Section
14(a)(2) of the CPSA requires the manufacturer or private labeler of a
children's product that is subject to a children's product safety rule
to certify, based on a third-party conformity assessment body's
testing, that the product complies with the applicable children's
product safety rule. Id. 2063(a)(2). Such certification is referred to
as a children's product certificate (CPC). Section 14(a)(3) also
requires the Commission to publish a notice of requirements (NOR) for a
third-party conformity assessment body (i.e., testing laboratory) to
obtain accreditation to assess conformity with a children's product
safety rule. Id. 2063(a)(3)(A).
In accordance with section 14(a)(3)(B)(vi) of the CPSA, the
Commission previously published an NOR for accreditation of third party
conformity assessment bodies for testing toy imitation firearms under
section 4.30 for the required toy gun markings. 76 FR 46598 (Aug. 3,
2011); 15 U.S.C. 2063(a)(3)(B)(vi). The NOR provided the criteria and
process for CPSC to accept accreditation of third party conformity
assessment bodies for toy gun markings under section 4.30 of ASTM F963.
The NORs for all mandatory standards for children's products are listed
in the Commission's rule, ``Requirements Pertaining to Third Party
Conformity Assessment Bodies,'' codified in 16 CFR part 1112.
Specifically, the NOR for section 4.30 of ASTM F963-17 is codified at
16 CFR 1112.15(b)(32)(ii)(CC). Toy guns subject to the toy gun marking
requirements of section 4.30 of ASTM F967-17 are currently required to
certify, based on third party testing by a CPSC-accepted laboratory,
that the toy gun complies with the requirements of section 4.30.
Issuance of this rule does not impact the requirement for certification
of toys guns under section 4.30 of ASTM F967-17. That requirement
remains unchanged and manufacturers are expected to continue complying
with it.
H. Preemption
15 U.S.C. 5001(g) provides that the provisions of that section
shall supersede any provision of state or local laws or ordinances
which provide for markings or identification inconsistent with
provisions of 5001(g), provided that no State shall:
prohibit the sale or manufacture of any look-alike,
nonfiring, collector replica of an antique firearm developed prior to
1898, or
prohibit the sale (other than prohibiting the sale to
minors) of traditional B-B, paint ball, or pellet-firing air guns that
expel a projectile through the force of air pressure.
15 U.S.C. 5001(g). Therefore, new 16 CFR part 1272 will preempt any
state or local laws in accordance with 5001(g).
I. Environmental Considerations
Commission rules are categorically excluded 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. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that
before a rule may take effect, the agency issuing the rule must submit
the rule, and certain related information, to each House of Congress
and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission
must indicate whether the rule is a ``major rule.'' The CRA states that
the Office of Information and Regulatory Affairs determines whether a
rule qualifies as a ``major rule.''
Pursuant to the CRA, OMB's Office of Information and Regulatory
Affairs has determined that this rule does not qualify as a ``major
rule,'' as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC
will submit the required information to each House of Congress and the
Comptroller General.
List of Subjects in 16 CFR Part 1272
Consumer protection, Imports, Incorporation by reference, Law
enforcement, Safety.
0
For the reasons stated in the preamble, the Commission amends title 16
of the CFR to add part 1272 to read as follows:
PART 1272--MARKING OF TOY, LOOK-ALIKE, AND IMITATION FIREARMS
Sec.
1272.1 Applicability.
1272.2 Prohibitions.
1272.3 Approved markings.
1272.4 Waiver.
1272.5 Preemption.
Authority: 15 U.S.C. 5001.
Sec. 1272.1 Applicability.
This part applies to toy, look-alike, and imitation firearms
(``devices'') having the appearance, shape, and/or configuration of a
firearm and produced or manufactured and entered into commerce on or
after May 5, 1989, including devices modelled on real firearms
manufactured, designed, and produced since 1898. This part does not
apply to:
[[Page 30229]]
(a) Non-firing collector replica antique firearms, which look
authentic and may be a scale model but are not intended as toys
modelled on real firearms designed, manufactured, and produced prior to
1898;
(b) Traditional B-B, paint-ball, or pellet-firing air guns that
expel a projectile through the force of compressed air, compressed gas
or mechanical spring action, or any combination thereof, as described
in ASTM F589-85, Standard Consumer Safety Specification for Non-Powder
Guns. ASTM F589-85, Standard Consumer Safety Specification for Non-
Powder Guns, approved June 28, 1985, is incorporated by reference into
this section with the approval of the Director of the Federal Register
under 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for
inspection at the Consumer Product Safety Commission (CPSC) and at the
National Archives and Records Administration (NARA). Contact CPSC at:
Office of the Secretary, U.S. Consumer Product Safety Commission, 4330
East West Highway, Bethesda, MD 20814, telephone (301) 504-7479, email
[email protected]. For information on the availability of this material
at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html
or email [email protected]. A read-only copy of the standard is
available for viewing on the ASTM website at www.astm.org/READINGLIBRARY/. You may obtain a copy from ASTM International, 100
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959;
telephone (610) 832-9585; www.astm.org.
(c) Decorative, ornamental, and miniature objects having the
appearance, shape and/or configuration of a firearm, including those
intended to be displayed on a desk or worn on bracelets, necklaces, key
chains, and so on, provided that the objects measure no more than
thirty-eight (38) millimeters in height by seventy (70) millimeters in
length, the length measurement excluding any gun stock length
measurement.
Sec. 1272.2 Prohibitions.
No person shall manufacture, enter into commerce, ship, transport,
or receive any toy, look-alike, or imitation firearm (``device'')
covered by this part as set forth in Sec. 1272.1 unless such device
contains, or has affixed to it, one of the markings set forth in Sec.
1272.3, or unless this prohibition has been waived by Sec. 1272.4.
Sec. 1272.3 Approved markings.
The following markings are approved by the Consumer Product Safety
Commission:
(a) A blaze orange (AMS STD 595A-17 color 12199) or orange color
brighter than that specified by the AMS standard color number, solid
plug permanently affixed to the muzzle end of the barrel as an integral
part of the entire device and recessed no more than 6 millimeters from
the muzzle end of the barrel.
(b) A blaze orange (AMS STD 595A-17 color 12199) or orange color
brighter than that specified by the AMS standard color number, marking
permanently affixed to the exterior surface of the barrel, covering the
circumference of the barrel from the muzzle end for a depth of at least
6 millimeters.
(c) Construction of the device entirely of transparent or
translucent materials which permits unmistakable observation of the
device's complete contents.
(d) Coloration of the entire exterior surface of the device in
white, bright red, bright orange, bright yellow, bright green, bright
blue, bright pink, or bright purple, either singly or as the
predominant color in combination with other colors in any pattern.
(e) SAE AMS STD 595A-17, Colors Used in Government Procurement,
approved February 10, 2017, is incorporated by reference into this
section with the approval of the Director of the Federal Register under
5 U.S.C. 552(a) and 1 CFR part 51. This material is available for
inspection at the Consumer Product Safety Commission (CPSC) and at the
National Archives and Records Administration (NARA). Contact CPSC at:
Office of the Secretary, U.S. Consumer Product Safety Commission, 4330
East West Highway, Bethesda, MD 20814, telephone (301) 504-7479, email
[email protected]. For information on the availability of this material
at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html
or email [email protected]. A read-only copy of the standard is
available for viewing on the SAE website at https://www.sae.org/standards/reading-room. You may obtain a copy from SAE International,
400 Commonwealth Dr., Warrendale, PA 15096; telephone (888) 875-3976;
www.sae.org.
Sec. 1272.4 Waiver.
The prohibitions set forth in Sec. 1272.2 may be waived for any
toy, look-alike, or imitation firearm that will be used only in the
theatrical, movie, or television industry. A request for such a waiver
should be made, in writing, by email to [email protected]
and by physical mail to U.S. Consumer Product Safety Commission, Office
of Compliance and Field Operations, Regulatory Enforcement Division,
7500 Lindbergh Dr., Unit-A, Gaithersburg, MD 20879-5413. The request
must include a sworn affidavit which states that the toy, look-alike,
or imitation firearm will be used only in the theatrical, movie, or
television industry. A sample of the item must be included with the
physically mailed request.
Sec. 272.5 Preemption.
In accordance with section 4(g) of the Federal Energy Management
Improvement Act of 1988 (15 U.S.C. 5001(g)), the provisions of section
4(a) of that Act and the provisions of this part supersede any
provision of State or local laws or ordinances which provides for
markings or identification inconsistent with the provisions of section
4 of that Act or the provisions of this part.
Pamela J. Stone,
Acting Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-09999 Filed 5-10-23; 8:45 am]
BILLING CODE 6355-01-P
