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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations F100421 is safety neutral when compared to 16 CFR part 1239. The Commission will allow ASTM F1004
21 to become the mandatory standard for gates and enclosures, and is updating 16 CFR part 1239 to reference this most recent updated voluntary standard, without modification.
III. Incorporation by Reference Section 1239.2 of the direct final rule incorporates by reference ASTM F1004
21. 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 51.5b.
In accordance with the OFR
regulations, section II. Description of ASTM F100421 of this preamble summarizes the major and revised provisions of ASTM F100421 that the Commission incorporates by reference into 16 CFR part 1239.4 The standard is reasonably available to interested parties in several ways. Interested parties can purchase a copy of ASTM
F100421 from ASTM International, 100
Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 194282959 USA;
phone: 6108329585; www.astm.org.
Additionally, until the direct final rule takes effect, a read-only copy of ASTM
F100421 is available for viewing on ASTMs website at: https
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: https
www.astm.org/READINGLIBRARY/.
Interested parties can also schedule an appointment to inspect a copy of the standard at CPSCs Division of the Secretariat, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814, telephone: 3015047479; email: cpscos@cpsc.gov.
IV. Certification Section 14a of the Consumer Product Safety Act CPSA; 15 U.S.C.
20512089 requires manufacturers 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 4 A detailed description of ASTM F100419 and the modifications made by the Commission in the final rule are also available in the final rule for gates and enclosures at 85 FR at 4010405.

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comply with all applicable CPSC
requirements. 15 U.S.C. 2063a. Such certification must be based on a test of each product, or on a reasonable testing program, or, for childrens products, on tests of a sufficient number of samples by a third party conformity assessment body accredited by CPSC to test according to the applicable requirements. As noted, standards issued under section 104b1B 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 gates and enclosures are childrens products, a CPSC-accepted third party conformity assessment body must test samples of the products for compliance with 16 CFR part 1239.
Products subject to part 1239 also must comply with all other applicable CPSC
requirements, such as the lead content requirements in section 101 of the CPSIA,5 the phthalates prohibitions in section 108 of the CPSIA 6 and 16 CFR
part 1307, the tracking label requirements in section 14a5 of the CPSA,7 and the consumer registration form requirements in section 104d of the CPSIA.8
V. Notice of Requirements In accordance with section 14a3Biv of the CPSIA, the Commission previously published a notice of requirements NOR for accreditation of third party conformity assessment bodies third party labs for testing gates and enclosures, and codified the requirement at 16 CFR
1112.15b49. 85 FR at 40112. The NOR provided the criteria and process for CPSC to accept accreditation of third party labs for testing gates and enclosures to 16 CFR part 1239. Id. The Commission codified NORs for all mandatory standards for durable infant or toddler products in Requirements Pertaining to Third Party Conformity Assessment Bodies, 16 CFR part 1112.
Because ASTM F100421 is substantially identical to the existing mandatory standard for gates and enclosures, the Commission considers third party labs that are currently CPSCaccepted for 16 CFR part 1239 to have demonstrated competence to test gates and enclosures to the revised ASTM
F100421, as incorporated into part 1239. Third party labs have already begun testing to part 1239 when it became effective on July 6, 2021.
Accordingly, the existing accreditations 5 15

U.S.C. 1278a.
U.S.C. 2057c.
7 15 U.S.C. 2063a5.
8 15 U.S.C. 2056ad.
6 15

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that the Commission has accepted for testing to this standard will cover testing to the revised standard. The existing NOR for the Safety Standard for Gates and Enclosures will remain in place, and CPSC-accepted third party labs are expected to update the scope of the third party labs accreditations to reflect the revised gates and enclosure standard in the normal course of renewing their accreditations.
VI. 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. 551559 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. 553bB. The Commission concludes that when it updates a reference to an ASTM standard that the Commission incorporated by reference under section 104b of the CPSIA, notice and comment are not necessary.
Under the process set out in section 104b4B of the CPSIA, when ASTM
revises a standard that the Commission has previously incorporated by reference under section 104b1B of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTMs revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSCs standard by operation of law. The Commission is allowing ASTM F100421 to become CPSCs new standard. 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 F100421 takes effect as the new CPSC standard for gates and enclosures, even if the Commission does not issue this rule. Thus, public comments would not alter substantive changes to the standard or the effect of the revised standard as a consumer product safety rule under section 104b of the CPSIA.
Under these circumstances, notice and comment are unnecessary.
In Recommendation 954, 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
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