Safety Standard for Infant Bath Seats

SUPPLEMENTARY INFORMATION:

I. Background

A. Statutory Authority

Section 104(b)(1) of the CPSIA requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products and adopt mandatory standards for these products. 15 U.S.C. 2056a(b)(1). The mandatory standard must be “substantially the same as” the voluntary standard, or it may be “more stringent than” the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Id.

Section 104(b)(4)(B) of the CPSIA specifies the process for updating the Commission's rules when a voluntary standards organization revises a standard that the Commission incorporated by reference under section 104(b)(1). First, the voluntary standards organization must notify the Commission of the revision. Once the Commission receives this notification, the Commission may reject or accept the revised standard. The Commission may reject the revised standard by notifying the voluntary standards organization, within 90 days of receiving notice of the revision, that it has determined that the revised standard does not improve the safety of the consumer product and that it is retaining the existing standard. If the Commission does not take this action to reject the revised standard, the revised voluntary standard will be considered a consumer product safety standard issued under section 9 of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2058), effective 180 days after the Commission received notification of the revision or on a later date specified by the Commission in the Federal Register . 15 U.S.C. 2056a(b)(4)(B).

B. Safety Standard for Infant Bath Seats

Under section 104(b)(1) of the CPSIA, the Commission published a mandatory standard for infant bath seats, codified in 16 CFR part 1215, “Safety Standard for Infant Bath Seats.” The rule incorporated by reference the then-current voluntary standard, ASTM F1967-08a, Standard Consumer Safety Specification for Infant Bath Seats, with modifications to make the standard more stringent. 75 FR 31691 (June 4, 2010). ASTM F1967 applies to infant bath seats, which it describes as products used in a bath tub, sink, or similar bathing enclosure and that provide support, at a minimum, to the front and back of a seated infant during bathing by a caregiver. The mandatory standard includes performance requirements and test methods, as well as requirements for warning labels and instructions, to address hazards to children.

The voluntary standard has been revised five times since 2010, and the Commission updated part 1215 upon each notice of revision from ASTM: 2012 (77 FR 45242 (July 31, 2012)), 2013 (78 FR 73692 (Dec. 9, 2013)), and 2019 (84 FR 49435 (Sep. 20, 2019)). ASTM F1967-19 is the current mandatory standard incorporated by reference in part 1215.

Most recently, in July 2024, ASTM published another revision to the voluntary standard for infant bath seats, approving ASTM F1967-24. On July 8, 2024, ASTM notified CPSC of the revision. On July 18, 2024, the Commission published a notice of availability of the revised voluntary standard in the Federal Register and sought comments on the effect of the revisions. 89 FR 58303. CPSC did not receive any comments.

As discussed below, based on staff's review of ASTM F1967-24, the Commission will allow the revised voluntary standard to become the mandatory standard for infant bath seats because the revised requirements in the voluntary standard improve the safety of infant bath seats overall, and none of the revised requirements reduce safety. Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F1967-24 will become the mandatory consumer product safety standard for infant bath seats on January 4, 2025. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates part 1215 to incorporate by reference the revised voluntary standard, ASTM F1967-24.

II. Revisions to ASTM F1967

ASTM F1967-24 includes a few substantive additions and revisions, as well as clarifications and editorial revisions.

A. Substantive and Clarifying Revisions

ASTM F1967-24 contains substantive changes to testing requirements in section 7.4.1.2 that clarify the test surface used in the stability test procedure. The revisions clarify that bath seats intended to contact the bottom surface of the bath tub must be tested on both Test Surface #1 and Test Surface #2. As defined in the voluntary standard, Test Surface #1 is any area on the bottom surface of the bath tub where safety tread strips are applied; and Test Surface #2 is any area on the bottom surface of the bath tub where safety tread slips are not applied. In general, Test Surface #1 is considered the most onerous testing surface for products utilizing suction cups on the bottom surface for stability because safety tread strips make it more difficult for suction cups to adhere to the surface.

ASTM F1967-19 states that the stability test must be conducted using all relevant surfaces and is not clear that all bath seats that come into contact with the bottom surface of the bath tub must be tested on both Test Surface #1 and Test Surface #2. The language in ASTM F1967-19 implies that the choice of testing surface(s) may be at the discretion of the manufacturer. For example, if the manufacturer's use instructions for a bath seat state “only for use on smooth surfaces,” application of ASTM F1967-19 could be interpreted so that the bath seat should only be evaluated on Testing Surface #2. Allowing manufacturers to decide which testing surface(s) the product should be evaluated on may lead to some bath seats only being tested on the one surface on which they perform best, while ignoring how the product performs on a more onerous testing surface. Accordingly, requiring all bath seats that come into contact with the bottom surface of the bath tub to use both test surfaces will promote consistency across different test labs and improve the safety of infant bath seats.

In addition, ASTM F1967-24 contains substantive changes to testing requirements in section 7.4.1.1 that relate to specifications for the test platform ( i.e., the bath tub on which the infant bath seat is placed for the stability test). ASTM F1967-24 now requires the test platform to be “alcove-style” and no longer requires all surfaces of the tub to be “smooth” or that the side ledge of the tub must have any certain uniform thickness. As indicated above, a smooth surface generally provides the most favorable testing surface for products utilizing suction cups on the bottom surface for stability because rough surfaces make it more difficult for suction cups to adhere to the surface. Because section 7.4.1.2 in ASTM F1967-24 clarifies that testing is necessary on both Test Surface #1 and Test Surface #2, removing “smooth” from the bath tub description should not impact test results. Also, ASTM F1967-24 updates and removes certain dimension requirements of the test platform in Figure 3 and removes Figures 4 and 5, which had illustrated the side sectional views of the test platform.

ASTM made these revisions because of the current unavailability of the bath tub described and specified in ASTM F1967-19. Staff's market research identified the most common style of bath tub as an “Alcove” tub, meaning a rectangular tub that is intended to be surrounded by tile or similar waterproof material walls, and a textured or grit floor surface. Bath tubs currently available on the market typically have a textured or grit floor surface to provide slip resistance to the floor; ASTM members and staff report that it is challenging to find a bath tub with a smooth surface. In addition, the most common size of bath tubs available is 60 inches long by 30 inches wide. A similar overall exterior length and width could be discerned from Figure 3 in ASTM F1967-19. However, the bath tub make, and model shown in Figure 3, including the side dimensions in Figures 4 and 5 of ASTM F1967-19, is no longer available, and many of the dimensions are not relevant to testing bath seats available on the market. The revised Figure 3 dimensions in ASTM F1967-24, making clear the overall 60 x 30-inch exterior length and width, reflect current market availability and remove unnecessary dimensions from the test platform. The removal of Figures 4 and 5 in ASTM F1967-24 that display bath tub thickness dimensions is consistent with these revisions to Figure 3 and description of the test platform. However, these changes are neutral to safety because they do not impact the outcome of performance testing.

The proposed dimension and description changes will still allow labs to use the bath tub described by ASTM F1967-19 for infant bath seat evaluations and will not cause any procedural or equipment changes. These changes are being implemented because the bath tub described by the standard in ASTM F1967-19 no longer exists on the market, which would prevent future labs from meeting the equipment requirements to become International Organization for Standardization (ISO) accredited and CPSC-accepted to perform infant bath seat testing in accordance with part 1215. Because the changes to the test platform will not impact the testing procedure of currently approved labs and will not affect test results for bath seats currently available on the market, CPSC considers these changes to be neutral to safety.

B. Non-Substantive Revisions

ASTM F1967-24 also includes several minor additions and revisions that are editorial and do not alter any substantive requirements in the standard. The revised standard updates certain contact information as well as section and figure numbers to reflect revised sections and figures. ASTM also updated the Rationale section of the standard to provide explanatory information about the 2024 standard revisions. Because these revisions do not change any substantive testing or labeling requirements, they are neutral regarding the safety of infant bath seats.

III. Incorporation by Reference

Section 1215.2 of the direct final rule incorporates by reference ASTM F1967-24. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section II of this preamble summarizes the revisions to ASTM F1967-24 that the Commission incorporates by reference into 16 CFR part 1215. The standard is reasonably available to interested parties in several ways. Until the direct final rule takes effect, a read-only copy of ASTM F1967-24 is available for viewing on ASTM's website at: www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing on the ASTM website at: www.astm.org/READINGLIBRARY/. Additionally, interested parties can purchase a copy of ASTM F1967-24 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; phone: (610) 832-9500; www.astm.org. Finally, interested parties can schedule an appointment to inspect a copy of the standard at CPSC's 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.

IV. Certification

Section 14(a) of the CPSA (15 U.S.C. 2063(a)) requires manufacturers, including importers, of products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the products comply with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests of a sufficient number of samples by a CPSC-accepted third party conformity assessment body accredited to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because infant bath seats are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. Products subject to part 1215 also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA; the phthalates prohibitions in section 108 of the CPSIA and 16 CFR part 1307; the tracking label requirements in section 14(a)(5) of the CPSA; and the consumer registration form requirements in 16 CFR part 1130. ASTM F1967-24 makes no changes that would impact any of these existing requirements.

V. Notice of Requirements

In accordance with section 14(a)(3)(B)(vi) of the CPSA, the Commission previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies (third party labs) for testing infant bath seats. 75 FR 31688 (June 4, 2010). The NOR provided the criteria and process for CPSC to accept accreditation of third party conformity assessment bodies for testing infant bath seats to 16 CFR part 1215. The NORs for all mandatory standards for durable infant or toddler products are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies,” codified in 16 CFR part 1112. The NOR for accreditation of third party labs for testing infant bath seats is codified at 16 CFR 1112.15(b)(2).

As previously mentioned in this preamble to the direct final rule, the changes to the test platform will not change the way that third party labs test infant bath seats for compliance with the safety standard for infant bath seats. The dimension and description changes to the test platform will still allow labs to use the bath tub described by ASTM F1967-19 for infant bath seat evaluations and will not cause any procedural or equipment changes. Testing laboratories that have demonstrated competence for testing in accordance with ASTM F1967-19 will have the competence to test in accordance with the revised standard ASTM F1967-24. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F1967-19 to be capable of testing to ASTM F1967-24 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditation to reflect the revised standard in the normal course of renewing their accreditation.

VI. Direct Final Rule Process

On July 18, 2024, the Commission provided notice in the Federal Register of the 2024 revision to ASTM F1967 and requested comment on whether the revision improves the safety of infant bath seats covered by the standard. 89 FR 58303. CPSC did not receive any comments. Now, 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 when it updates a reference to an ASTM standard that the Commission incorporated by reference under section 104(b) of the CPSIA, notice and comment are not necessary.

The purpose of this direct final rule is to update the reference in the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F1967-24 would take effect as the new CPSC standard for infant bath seats in the absence of any action by the Commission. Thus, public comments would not lead to substantive changes to the standard or to the effect of the revised standard as a consumer product safety rule under section 104(b) of the CPSIA. Under these circumstances, notice and comment are unnecessary.

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 that are not expected to generate significant adverse comments. See60 FR 43108 (Aug. 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. CPSC did not receive any adverse comments about the requirements in this update in response to the Notice of Availability published on July 18, 2024.

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on January 4, 2025. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion that undermines “the rule's underlying premise or approach,” or a showing that the rule “would be ineffective or unacceptable without change.” 60 FR 43108, 43111. As noted, this rule updates a reference in the CFR to reflect a change that occurs by statute.

If the Commission receives a significant adverse comment, the Commission will withdraw this direct 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.

VII. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section VI of this preamble, the Commission has determined that further notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. CPSC also notes the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

VIII. Paperwork Reduction Act

The current mandatory standard includes requirements for marking, labeling, and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). The Commission took the steps required by the PRA for information collections when it promulgated 16 CFR part 1215, and the marking, labeling, and instructional literature for infant bath seats are currently approved under OMB Control Number 3041-0159. The revision does not affect the information collection requirements or approval related to the standard.

IX. Environmental Considerations

The Commission's regulations provide for a categorical exclusion 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). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

X. Preemption

Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued under that provision “consumer product safety standards.” Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

XI. Effective Date

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard 180 days after notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those actions with respect to the revised standard for infant bath seats. Therefore, ASTM F1967-24 automatically will take effect as the new mandatory standard for infant bath seats on January 4, 2025, 180 days after the Commission received notice of the revision. As a direct final rule, unless the Commission receives a significant adverse comment within 30 days of this document, the rule will become effective on January 4, 2025.

XII. 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 (OIRA) determines whether a rule qualifies as a “major rule.”

Pursuant to the CRA, OIRA 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.

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

1. The authority citation for part 1215 is revised to read as follows:

Authority: 15 U.S.C. 2056a.

2. Revise § 1215.2 to read as follows:

[FR Doc. 2024-23211 Filed 10-8-24; 8:45 am]

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