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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations When the public is not informed about relevant legal standards, this has the potential for arbitrary or discriminatory enforcement.
People cannot comply with a law if they do not know the substance of the law.
Response 30: Section 104 of the CPSIA directs the Commission to issue standards for durable infant or toddler products that are substantially the same as, or more stringent than, applicable voluntary standards. Thus, unless the Commission determines that more stringent requirements are necessary to further reduce the risk of injury, the Commissions rules must be, for the most part, the same as the applicable voluntary standard. In this case, the final rule would incorporate by reference ASTM F311817a, with substantial modifications to make the standard more stringent, to further reduce the risk of injury associated with infant sleep products. This final rule would set forth in the Code of Federal Regulations CFR: Definitions, one test for the seatback/sleep surface angle of an infant sleep product, and otherwise require infant sleep products that do not already meet a CPSC sleep standard to meet the requirements of the bassinet standard, to further reduce the risk of injury associated with inclined and flat infant sleep products. CPSCs bassinet standard, 16 CFR part 1218, currently incorporates by reference performance and labeling requirements in ASTM
F219413, with modifications set forth in the CFR. CPSCs mandatory standard is substantially similar to ASTM F2194
16e1.
ASTMs voluntary standards are protected by copyright, which the Commission and the federal government generally must observe.
The United States may be held liable for copyright infringement. 28 U.S.C. 1498.
Accordingly, the Commission cannot violate copyright law by publishing ASTMs voluntary standards in the CFR.
The Office of the Federal Register OFR
has established procedures for incorporation by reference that seek to balance the interests of copyright protection and public accessibility of material. 1 CFR part 51. OFRs regulations are based on Freedom of Information Act provisions that require materials to be reasonably available when incorporated by reference with approval of the Director of the Federal Register. 5 U.S.C. 552a1. Under the OFRs requirements, an agency may incorporate by reference specific publications, including standards, if they are reasonably available to and usable by the class of persons affected.

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1 CFR 51.7. To ensure the material is reasonably available, an agency must summarize the material it will incorporate by reference and discuss how that material is available to interested parties in the Federal Register notice. Id. 51.3a, 51.5a.
Manufacturers and importers of infant sleep products represent the class of persons affected by the final rule.
Although any interested person has access to the content of CPSCs regulations through Federal Register notices of proposed and final rules, the CFR, and the content of voluntary standards on ASTMs website, under the statutory scheme set forth in the CPSIA, it is those manufacturers and importers who want to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States, any durable infant or toddler product, that must conduct testing using a third party conformity assessment body lab and certify their product as compliant with the applicable consumer product safety rule. 15 U.S.C.
2063a2.
The Commission complies with the requirement that publications, including standards, are reasonably available to and usable by the class of persons affected, whenever incorporating material by reference. For example, when the Commission proposes a rule under section 104 of the CPSIA, the Commission describes and summarizes the requirements of the rule, including the voluntary standard, in the preamble of the rule printed in the Federal Register, and explains that ASTMs copyrighted voluntary standards are available to review online for free during the comment period at https
www.astm.org/CPSC.htm. Once a rule becomes effective, ASTM provides a read-only copy of the standard for review on the ASTM website at: https
www.astm.org/READINGLIBRARY/. As always, any person can purchase a voluntary standard from ASTM, or may schedule a time to review a voluntary standard for free at the Commissions headquarters in Bethesda, MD, or at the National Archives and Records Administration NARA. Accordingly, citizens who are interested in the content of the law have unimpeded access to the regulation, and have several avenues for free access to the text of voluntary standards incorporated by reference into a mandatory CPSC
standard for a durable infant or toddler product.
Comment 31: A commenter states that CPSCs practice of incorporating voluntary standards by reference into law forces citizens to either visit the agency in person, or pay for access, to
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view the proposed law. The commenter contends that CPSCs actions to allow public access to the proposal, including summarizing the proposed requirements in the preamble to the proposed rule, making the voluntary standard available for review at CPSCs offices, or reading the standard on ASTMs website free of charge, are all problematic, as the regulations are not reasonably available to the class or persons affected. The commenter states that ASTMs restrictions on downloading or printing the standard unless the standard is purchased are an impediment to accessing the law, and describes the Commissions access to the proposed law as limited and insufficient to ensure robust public access to the law. Specifically, the commenter notes that without the ability to download graphs and charts in the ASTM standard, the graphs are unreadable in portrait view. The commenter states that reasonably available is not defined in the APA, but should be interpreted broadly to promote fundamental constitutional values. . . .
Response 31: We disagree with the commenter that CPSCs efforts to make voluntary standards reasonably available are limited. For rules issued under section 104 of the CPSIA, stakeholders have several ways to access the content of the voluntary standard proposed to be incorporated by reference, and after the standard is incorporated by reference into a regulation, including reading a summary of the requirements of a voluntary standard in a proposed or final rule free, reviewing voluntary standards in person at CPSCs offices free, reviewing read-only copies of the voluntary standard on ASTMs website free, and by purchasing a copy of the standard. The OFRs regulations do not require free access to the contents of copyrighted materials. In developing a regulation, the OFR considered whether to require free access to materials that are incorporated by reference into regulations, and specifically declined to do so. 79 FR 66267 Nov. 7, 2014. The OFR found that adopting requirements to summarize the content of the material incorporated, and explaining to stakeholders how to obtain the material, was adequate to make the material reasonably available. Id. at 66,270.
Accordingly, CPSCs efforts to make copyrighted materials reasonably available exceed the OFRs requirements.
Comment 32: A commenter states that incorporation by reference, without providing free access to the law, undermines due process because it may
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