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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations
limit public input and exclude meaningful participation by some stakeholders. The commenter explains, for example, that to participate in ASTM
standards development, one must be an ASTM member, which costs $75 per year. The commenter notes that the regulated community can afford this and participate, while members of the public cannot meaningfully participate.
Response 32: Stakeholders have several options to review the content of a voluntary standard for free, as described in response to comments 30
and 31. ASTM typically seeks a cross section of stakeholders to participate in standards development. While ASTM
requires membership to vote on balloted items to create or revise a voluntary standard, ASTM does not require membership to participate in ASTM
meetings where stakeholders discuss standards development for durable infant or toddler products. Thus, if a consumer wanted to participate in an ASTM meeting, they could do so without membership. Additionally, if a consumer wanted to become an ASTM
voting member and cannot afford the membership fee, that person can contact ASTM to learn about additional options for membership. For example, students can be ASTM members free of charge.
We further note that CPSCs regulation at 16 CFR part 1031 does not allow staff to participate in voluntary standards meetings that are not open to the public. CPSC staffs participation in ASTM meetings discussing durable infant or toddler products are posted on CPSCs calendar on CPSCs website at least a week in advance. The meeting notice provides the date, time, purpose of the meeting, the staff attending, and contact information for staff to obtain ASTM login information so that any person who wants to participate in the ASTM meeting may do so. Moreover, CPSC staff creates a written meeting log for each ASTM meeting where staff participates, which summarizes the meeting content.
We encourage members of the public to meaningfully participate in standards development efforts for durable infant or toddler products through the ASTM
process and by commenting on CPSCs proposed rules.
Comment 33: A commenter describes a recent holding by the Eleventh Circuit finding that annotations to a Georgia statute were sufficiently law-like to require free public access. The commenter also describes two district court cases challenging PACER system fees, but notes the cases are in the early stages of litigation, but the underlying principles of free public access to the
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law and legal proceedings are directly relevant here.
Response 33: As described in response to comments 30 and 31, CPSC
exceeds the OFRs regulation requiring that voluntary standards that are incorporated by reference be made reasonably available to the class of persons affected, because the voluntary standards incorporated by reference by CPSC in rules under section 104 of the CPSIA are available for review by all interested parties. ASTM provides access to review voluntary standards incorporated by reference before and after a rulemaking, free of charge, on ASTMs website. Additionally, any person can 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.
c Alleged Notice and Comment and Section 104 Procedural Defects Comment 34: A commenter states that the rulemaking process for including flat products within the scope of the 2019 SNPR, such as in-bed sleepers, is procedurally deficient and does not follow the procedure for rules issued under section 104 of the CPSIA, because the Commissions 2019 SNPR did not include sufficient data demonstrating the need for a rule to cover non-inclined sleep products. The commenter states that the data set for non-inclined products is incomplete and insufficiently reviewed, suggesting that the Commission did not review incident data for non-inclined products with the ASTM committee. The commenter states that the Commissions failure to publish a revised SNPR to include CPSC
staffs concerns with compact bassinets, baby boxes, and in-bed sleepers, as described in a December 12, 2019 letter from staff to several ASTM
subcommittees, which the commenter states did not appear in the 2019 SNPR, and to instead provide a 30 day extension of the comment period, was insufficient notice to all interested parties, and may result in a flawed standard that is unable to withstand judicial scrutiny.
Response 34: The 2019 SNPR
provided notice to stakeholders that unregulated, non-inclined, flat infant sleep products were included in the proposal, by proposing to remove the term inclined from the standard, and to include within the scope of the rule currently unregulated infant sleep products, including inclined and noninclined products. For example, the SNPR states:
CPSCs proposed standard would cover products intended for infant sleep
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that are not already addressed by another standard. 84 FR at 60949.
CPSC proposes to define infant sleep products as products that provide sleeping accommodations for infants that are not currently covered by bassinets/cradles, cribs full-size and non-full size, play yards, and bedside sleepers . . . Id. at 60950. Similar statements are also made on pages 60951 three times, 60956, and in the draft regulatory text proposed 1236.1, 1236.2b4D and 1236.2b11i at 6096263.
The Supplemental NPR proposes to incorporate ASTM F311817a with substantial modifications, including revisions in the scope of the standard, section 1.3, to remove the term inclined, and to include any infant sleep product not currently covered by another mandatory rule for infant sleep products. . . .
The request for comments on page 60961 asks for comments on noninclined products likely to be impacted by the SNPR, including, for example, a request for comment on:
. . . any additional types of products that commenters believe may be impacted by the Supplemental NPR.
. . . products with inclines less than or equal to 10 degrees that do not already comply with the bassinet standard.
removing the upper age limit of 5
months because the SNPR proposes to address infant sleep products not already covered by traditional sleep product standards.
The Staffs October 16, 2019 SNPR
Briefing Package, referenced in the Federal Register notice, contains similar statements about the scope of the rule pages 15, 16, 21, 117, 136, and on page 133 also specifically states and on page 134, Figure 1 provides a picture of an unregulated flat sleep product:
The draft supplemental proposed rule would also cover products with inclined sleep surfaces greater than 30 degrees and less than 10 degrees, if they are intended or marketed for children under 5 months of age for sleep purposes, and they are not subject to another sleep product standard. For example, the draft supplemental proposed rule would include the hammock-style crib accessory shown in Figure 1. It appears to have an incline of 10 degrees or less, but does not fall under another sleep category.
CPSCs description of the scope of the rule throughout the 2019 SNPR and the Staffs SNPR Briefing Package, and the request for comment on these products, were sufficient to inform stakeholders that these unregulated flat sleep
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