[Federal Register Volume 89, Number 12 (Thursday, January 18, 2024)]
[Rules and Regulations]
[Pages 3344-3351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00741]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1112 and 1250

[Docket No. CPSC-2017-0010]


Safety Standard Mandating ASTM F963 for Toys

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: Section 106 of the Consumer Product Safety Improvement Act 
(CPSIA) made ASTM F963-07[egr]1, Standard Consumer Safety Specification 
for Toy Safety, a mandatory consumer product safety standard. Section 
106 also provides procedures for revisions to the ASTM F963 standard. 
In accordance with those procedures, the Consumer Product Safety 
Commission (CPSC or Commission) has allowed the revised standard, ASTM 
F963-23, to become the mandatory toy standard. This direct final rule 
incorporates by reference ASTM F963-23 and updates the existing notice 
of requirements (NOR) that provide the criteria and processes for 
Commission acceptance of accreditation of third-party conformity 
assessment bodies for testing to ASTM F963.

DATES: The rule is effective on April 20, 2024, unless CPSC receives a 
significant adverse comment by February 20, 2024. If CPSC receives such 
a significant adverse comment, it will publish a document in the 
Federal Register withdrawing this direct final rule before its 
effective date. The incorporation by reference of the publication 
listed in this rule is approved by the Director of the Federal Register 
as of April 20, 2024.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2017-
0010, 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 typically does not accept comments submitted by email 
except as described below.
    Mail/Hand Delivery/Courier/Confidential Written Submissions: CPSC 
encourages you to submit electronic 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

[[Page 3345]]

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: <a href="/cdn-cgi/l/email-protection#ddbeadaebef0b2ae9dbeadaebef3bab2ab"><span class="__cf_email__" data-cfemail="ed8e9d9e8ec0829ead8e9d9e8ec38a829b">[email protected]</span></a>.
    Docket: For access to the docket to read background documents or 
comments received, go to: www.regulations.gov, and insert the docket 
number, CPSC-2017-0010, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Will Cusey, Small Business Ombudsman, 
U.S. Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-7945 or (888) 531-9070; email: 
<a href="/cdn-cgi/l/email-protection#3546575a75564546561b525a43"><span class="__cf_email__" data-cfemail="2457464b64475457470a434b52">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 106(a) of CPSIA mandated that beginning on February 10, 
2009, ASTM F963-07[egr]1, Standard Consumer Safety Specifications for 
Toy Safety,\1\ shall be considered a mandatory consumer product safety 
standard issued by CPSC. 15 U.S.C. 2056b(a). Since then, there have 
been five revisions to the ASTM F963 standard: ASTM F963-08, ASTM F963-
11, ASTM F963-16, ASTM F963-17, and ASTM F963-23. Currently, the 
provisions of ASTM F963-17 are considered a consumer product safety 
standard issued by the Commission under section 9 of the Consumer 
Product Safety Act (CPSA), with an exception stated in 16 CFR 1250.2(c) 
that ASTM F963-17's provision for testing sound-producing toys is not 
incorporated. 16 CFR 1250.2; 82 FR 57119 (Dec. 4, 2017).
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    \1\ Except for section 4.2 and Annex 4 of the voluntary standard 
or any provision that restates or incorporates an existing mandatory 
standard or ban promulgated by the Commission or by statute.
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    Under section 106(g) of the CPSIA, ASTM must notify the Commission 
when it revises ASTM F963. 15 U.S.C. 2056b(g). The revised standard 
shall be considered a consumer product safety standard issued by CPSC 
under section 9 of the CPSA (15 U.S.C. 2058), effective 180 days after 
the date on which ASTM notifies the Commission of the revision, unless, 
within 90 days after receiving that notice, the Commission notifies 
ASTM that it has determined that the proposed revision does not improve 
the safety of toys covered by the standard.
    On October 23, 2023, ASTM notified CPSC of ASTM's approval and 
publication of revisions to ASTM F963-17 in a revised standard, ASTM 
F963-23, Standard Consumer Safety Specification for Toy Safety. The 
Commission published in the Federal Register a notice of availability 
regarding the revised voluntary standard and sought comments on the 
effect of the revisions on the safety of the standard for toys. 88 FR 
75280 (Nov. 2, 2023). Two comments were submitted. The Consumer 
Federation of America and Kids in Danger submitted a joint comment 
stating that the revision to ASTM F963 should be accepted as the 
mandatory standard and urging continued efforts to address emerging 
hazards, including expanding materials in toys, to make the standard 
more protective of safety.
    The Swiss company Soci[eacute]t[eacute] G[eacute]n[eacute]rale de 
Surveillance (SGS) submitted a comment stating that the requirements 
for expanding materials in section 4.40 of ASTM F963-23 could be more 
stringent. While SGS's comment does not address whether the current 
revision in ASTM F963-23 improves safety compared to the requirements 
of F963-17, Commission staff continues to work with ASTM to improve the 
safety requirements for expanding materials in ASTM F963 for any future 
update to the standard. Specifically, CPSC's Fiscal Year 2024 Operating 
Plan \2\ directs staff to develop a notice of proposed rulemaking under 
section 106 of the CPSIA to further improve the standard for water 
beads, which are ``expanding materials'' under the voluntary standard.
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    \2\ Available at: https://www.cpsc.gov/s3fs-public/FY2024OperatingPlan.pdf?VersionId=N46Kg9oFJtn_Slys4cdzuQYza29oFynS.
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    As discussed below, the Commission will allow the revised voluntary 
standard to become the mandatory standard because it improves the 
safety of toys.\3\ Accordingly, by operation of law under section 
106(g) of the CPSIA as of April 20, 2024, ASTM F963-23 will become the 
mandatory consumer product safety standard for toys. 15 U.S.C. 
2056b(g). This direct final rule updates 16 CFR part 1250 to 
incorporate by reference the revised voluntary standard, ASTM F963-23. 
The rule also updates the existing NOR for ASTM F963 in 16 CFR part 
1112.
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    \3\ The Commission voted 4-0 to approve publication of this 
notification.
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II. Revisions in ASTM F963-23

    The ASTM F963 toy standard includes performance requirements and 
test methods, as well as requirements for warning labels and 
instructional literature, to reduce or prevent death or injuries to 
children from mechanical, chemical, and other hazards subject to the 
standard.
    The 2023 revisions to the voluntary standard include new 
performance requirements, clarifications, and corrections that will 
increase toy safety and reduce test burden. Additionally, the standard 
includes changes that do not affect safety, but instead enhance the 
clarity and utility of the standard or reduce the burden of performance 
testing. Numerous editorial changes were also made throughout the 
standard, including formatting and numbering changes that do not impact 
safety. The Commission finds the revisions to ASTM F963-23 to be an 
improvement to the safety of toys, or to not impact safety. Below is a 
brief description of the revisions and the Commission's assessment of 
their impact on safety.

A. Revisions That Impact Safety

1. Battery Accessibility
    Section 4.25 of ASTM F963 addresses the safety of battery-operated 
toys. The requirements are intended to address hazards related to 
battery overheating, leakage, explosion, and fire, and choking or 
swallowing batteries. ASTM F963-17 specifically addresses the hazard of 
choking or swallowing batteries in sections 4.25.4 and 4.25.5. Section 
4.25.4 addresses the accessibility of batteries in toys for children 
less than three years old; section 4.25.5 addresses the accessibility 
of small part batteries (batteries that fit within the small parts 
cylinder described in 16 CFR 1501.4, including button cell or coin 
batteries and AAA batteries). Both sections of ASTM F963-17 require 
that batteries remain inaccessible without the use of a ``coin, 
screwdriver, or other household tool'' before and after the use and 
abuse testing specified in sections 8.5-8.10.
    ASTM F963-23 also incorporates changes to definitions, safety 
requirements, and labeling requirements that strengthen the battery 
accessibility requirements:
    <bullet> Section 3.1.17 of the 2023 standard changes the defined 
term ``tool'' (previously in section 3.1.90) to ``common household 
tool,'' and clarifies that common household tools include straight-
blade or Phillips-type screwdrivers, pliers, coins, or other objects 
``commonly found in most households.''
    <bullet> Section 8.6 of the standard continues to specify that 
``[u]nless otherwise specified, none of the abuse testing . . . applies 
to toys intended for children over 96 months of age.'' New Note 22 to 
section 4.25.4.2, however, clarifies the test parameters used to 
conduct use and abuse testing (in

[[Page 3346]]

accordance with sections 8.5-8.10) on toys containing small part 
batteries for children over 96 months (eight years) of age. These toys 
are now subject to use and abuse requirements using the test parameters 
for children above age 36 months up to age 96 months; because previous 
versions of ASTM F963 did not specify test parameters for toys 
containing small part batteries for children over 96 months, these toys 
were not required to be abuse tested per the standard. Note 22 thus 
extends use and abuse test requirements so that they apply to all toys 
with small part batteries in scope of the standard, which improves the 
security of battery compartments.
    <bullet> Section 4.25.4.3 adds a new requirement that fasteners 
used to secure battery compartments shall remain attached to the toy or 
battery compartment cover before and after use and abuse testing.
    <bullet> Section 4.25.4.4 allows specialty fasteners, such as 
screws that use a Torx or hex drive, as an alternative to common 
household tools if the appropriate tool is included with the toy and 
instructional material conforming to section 6.9 is included (see 
below).
    <bullet> Section 6.9 adds a new requirement that instructional 
literature for toys that require a manufacturer-supplied specialty or 
custom tool to access the battery shall direct parents to retain the 
tool for future use, store the tool where the child cannot access it, 
and state that the tool is not a toy.
    The changes related to battery accessibility generally result in 
more secure battery compartments or streamline existing requirements in 
the standard without impacting safety. In particular, the addition of 
Note 22 means that toys with small part batteries for children over 96 
months of age are now required to undergo the use and abuse testing in 
sections 8.5-8.10. Further, the addition of section 4.25.4.3 means that 
fasteners such as screws used to secure batteries are less likely to be 
removed or lost, meaning that fasteners are more likely to be used 
effectively and will likely result in fewer incidents of unintended 
battery access, thus improving safety.
    The changes allowing for the use of ``specialty fastener[s]'' in 
section 4.25.4.4 of the ASTM F963-23 standard are consistent with their 
use for other toys (see section 4.17 of the standard), and their use 
provides children less opportunity to gain access to the battery 
compartment using a substitute common household tool. Special tools do 
introduce potential additional risks. The consumer must store and keep 
track of an additional tool; if the tool is lost or not passed along or 
sold with the toy for secondhand use, caregivers can no longer access 
the compartment as intended, which may lead to battery leakage (if 
never removed) or damaged or ineffective battery compartments (if the 
consumer attempts to access the compartment using the inappropriate 
tool). The new section 6.9 mitigates these possible hazards introduced 
by section 4.25.4.4 by requiring that instructional literature for toys 
that require a manufacturer-supplied specialty or custom tool to access 
the battery shall direct parents to retain the tool for future use and 
store the tool where the child cannot access it and shall state the 
tool is not a toy. Additionally, a battery compartment that is 
inaccessible due to a lost tool is a safer alternative than a battery 
compartment that is easily opened. Therefore, the changes allowing for 
specialty fasteners are, overall, an improvement to safety.
2. Expanding Materials
    ASTM F963-16 added new definitions, performance requirements, a 
test methodology, and a test fixture to address gastrointestinal (GI) 
blockage from expanding materials. Expanding materials are defined in 
ASTM F963 as ``any material used in a toy which expands greater than 
50% in any dimension from its as-received state.'' New Annex A14.6 
explains the basis for the new requirements for expanding materials. 
Since the time of the ASTM F963-16 revision, items have been identified 
in the marketplace that are not small parts as received by the 
consumer, and therefore fall outside the scope of the original 
requirement but present the same GI blockage hazard. The revisions in 
ASTM F963-23 are intended to increase the scope of the standard to 
cover these products.
    Below is a summary of changes made in ASTM F963-23 that may apply 
to expanding materials.
    <bullet> Section 3.1.28 removes the time intervals for conditioning 
and instead refers to the test method section, where the same time 
intervals are already stated.
    <bullet> Section 3.1.73 adds a definition of a ``removable 
component,'' as ``a component of a toy which is intended or likely to 
be removed by the child during normal use.''
    <bullet> Section 4.40 adds ``removable'' to components as defined. 
It also removes conditions identifying the expanding materials, and 
instead directly references the definition and relevant test method in 
section 8.30.8. Section 4.40.1 increases the scope to include the 
following:
    [cir] Section 4.40.1.1--components of toys which are small parts 
but encased in an outer shell that is not a small part and intended to 
be dissolved, opened, or broken to access the expanding component; and
    [cir] Section 4.40.1.2--components sold in an expanded state, which 
are not small parts, but could contract to yield a re-expandable small 
part.
    The expanded scope of the ASTM F963-23 standard represents an 
improvement in toy safety that should help reduce the hazard of 
potentially fatal intestinal blockages caused by ingestion of toys and 
toy components made of superabsorbent materials. The changes to the 
provisions for expanding materials are an improvement in safety, as 
noted above. However, as noted, the Commission also has directed staff 
to develop a notice of proposed rulemaking under section 106 of the 
CPSIA to further improve the safety standard for water beads.
3. Sound-Producing Toys
    In 2017, the Commission incorporated ASTM F963-17 into the 
mandatory toy standard at 16 CFR part 1250 with one exception related 
to sound-producing toys, codified at 16 CFR 1250.2(c). The requirements 
for sound-producing toys in section 4.5 of ASTM F963 are intended to 
reduce the risk of hearing loss caused by exposure to sound produced by 
toys. When it adopted the exception, the Commission rejected one clause 
in the sound-producing toys test method in section 8.20.1.5 (5) of ASTM 
F963-17 that functionally exempted push or pull toys from an 85 dB A-
weighted maximum sound pressure level (L<INF>AFmax</INF>) 
requirement.\4\ The Commission concluded that this clause, which had 
been added without ballot during the 2017 ASTM process, decreased 
safety because it exempted push or pull toys from a previously 
applicable sound limit. 82 FR 57119 (Dec. 4, 2017). With the 
Commission's rejection of the relevant clause, as stated in 16 CFR 
1250.2(c), the mandatory toy standard based on ASTM F973-17 retained 
the same level of safety for push or pull toys as was provided by ASTM 
F963-16.
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    \4\ A-weighting or C-weighting is typically applied to sounds to 
represent more accurately the frequency response of the human ear by 
reducing the contribution of lower and higher frequencies in 
calculation of overall sound level.
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    As explained below, ASTM F963-23 provides a new sound limit for 
push or pull toys that eliminates the deficiency in ASTM F963-17 and 
provides the same level of safety as the sound limit in ASTM F963-16. 
Therefore, because the incorporation of ASTM F963-23

[[Page 3347]]

maintains the same level of safety as ASTM F963-16, the exception to 
ASTM F963-17 that is made by Sec.  1250.2(c) is no longer needed, and 
the Commission is removing that exception by deleting Sec.  1250.2(c).
    Specifically, section 4.5.1.6(1) of ASTM F963-23 adds a 94 dB A-
weighted sound limit (L<INF>AFmax</INF>) for push or pull toys in user-
propelled modes (the child is moving the toy), where the sound is 
caused as a result of translational motion imparted on the toy by the 
user (for example, a mechanism attached to the wheel of a push toy that 
clicks when the wheel rotates).\5\ Push or pull toys are defined in 
ASTM F963-23 as, ``a toy with a cord, tether, or handle attached to the 
toy and where the toy is intended for use on the floor or ground with 
the child in a standing/upright position, typically walking, while 
using pushing or pulling the toy.'' CPSC Age Determination Guidelines 
state that push toys with high upright handles or rigid rods with 
large, attached handles are appropriate for children starting at 12 
months old, and pull toys with cords are appropriate for children 
starting at 19 months old because they do not provide support, so they 
require more advanced walking and body skills to operate.\6\
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    \5\ Push or pull toys in stationary or self-propelled modes are 
still subject to the 85 dB A-weighted sound limit, as in previous 
versions of the standard.
    \6\ Age Determination Guidelines 2020, p. 47. Available at 
https://www.cpsc.gov/content/2020-Age-Determination-Guidelines.
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    Sound level generally decreases with increasing distance from the 
sound source; a quieter toy used closer to a child's ear can produce 
the same sound exposure as a louder toy used farther from the child's 
ear. The previously applicable 85 dB(A) sound-limit for push or pull 
toys in ASTM F963-16 was based on a 25 cm sound exposure distance 
(assumed distance from the sound source to the child's ear) for 
tabletop, floor and crib toys.\7\ The 94 dB(A) sound limit for push or 
pull toys in ASTM F963-23 is based on a sound exposure distance of 63.5 
cm that more accurately reflects the distance between the sound-
producing element of a push or pull toy and a standing child's ear. 
Based on anthropometric data, staff estimate that the fifth percentile 
ear height for a 19-24 month old child is 66.7 cm.\8\ For a push toy 
with a sound source located 5 cm from the floor and 15 cm horizontally 
from the ear, which is an estimate for a sound source located on a rear 
wheel of a push toy, the estimated distance from the sound source to a 
fifth percentile 19-24 month old standing child's ear is 63.5 cm.
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    \7\ See Annex A9.2 in ASTM F963-23 for more information.
    \8\ Based on ear to top-of-head distance and stature data from 
Schneider, L.W., Lehman, R.J., Pflug, M.A., & Owings, C.L. (1986). 
(rep.). Size and Shape of the Head and Neck from Birth to Four Years 
(p. 111). Ann Arbor, MI: University of Michigan.
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    Using the standard equations for the distance-related decrease of 
sound level in a free field sound environment,\9\ with the 63.5 cm 
sound exposure distance, the 50 cm measurement distance (distance from 
the sound source or surface of the toy to the microphone during 
testing), and an allowable sound exposure at the ear of 92.3 dB(A),\10\ 
the allowable sound level at the measurement distance is 94.4 dB(A), 
which rounds to 94 dB(A), the sound limit in ASTM F963-23.
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    \9\ See Annex A14.4.2 in ASTM F963-23 for more information.
    \10\ This is the allowable sound exposure based on the National 
Institute for Occupational Safety and Health 85 dB(A) recommended 
exposure limit and 3 dB exchange rate for an assumed 1.5 hours of 
play, as described in Annex A9.2 in ASTM F963-23. Note that 92.3 
dB(A) is higher than the 90 dB(A) used to calculate the 85 dB(A) 
sound limit but is one of the listed recommended values (Annex 
A9.2.1.4). More information on the recommended exposure limit and 
noise dose calculations can be found in Centers for Disease Control 
and Prevention (1998). Occupational noise exposure; criteria for a 
recommended standard. Available at Occupational noise exposure; 
criteria for a recommended standard (cdc.gov).
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    Table 1 shows the A-weighted sound limit, measurement distance, 
sound exposure distance, and sound level at the ear by toy category in 
ASTM F963. This table shows that the new sound limit for push or pull 
toys produces a similar sound level at the ear to the other toy limits 
in the toy standard and is below the generally applicable limit of 92.3 
dB at the ear.

  Table 1--A Weighted Sound Limit, Measurement Distance, Sound Exposure Distance, and Sound Level at the Ear by
                                                  Toy Category
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                                                                                           Sound
                                                                           Measurement   exposure    Sound level
             Toy category                    A-weighted sound limit         distance     distance    at the ear
                                                                              (cm)         (cm)         (dBA)
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Close-to-the ear toys.................  65 dB (LAeq)....................            50         2.5         91.02
Hand-held toys........................  85 dB (LAeq)....................            50          25         91.02
Tabletop, Floor, or Crib Toys in        85 dB (LAeq)....................            50          25         91.02
 stationary or self-propelled modes.
Tabletop, Floor, or Crib Toys in user-  85 dB (LAFmax)..................            50          25         91.02
 propelled modes.
Push or Pull Toys in stationary or      85 dB (LAeq)....................            50          25         91.02
 self-propelled modes.
Push or Pull Toys in user-propelled     94 dBA (LAFmax).................            50        63.5         91.92
 modes.
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    Although the revised 94 dB(A) sound limit for push or pull toys is 
higher than the 85 dB(A) sound limit in ASTM F963-16, the change does 
not negatively impact safety because the sound exposure distance on 
which the revised limit is now based more accurately reflects the 
expected distance between the push or pull toy sound source and the 
child's ear when the child is using the toy, and because the 94 dB(A) 
sound limit is within the margin of safety based on the assumptions 
used in the sound-producing toys section of the standard. This revision 
in ASTM F963-23 thus resolves the issue that required the Commission to 
provide the exception in 16 CFR 1250.2(c). Therefore, the direct final 
rule removes the codified text in 16 CFR 1250.2(c) because it is no 
longer necessary.

B. Revisions Not Impacting Safety

    ASTM F963-23 contains numerous non-substantive changes, including 
editorial changes such as correcting typographical errors, 
reformatting, renumbering, and restructuring provisions, that do not 
impact the safety of toys. Below is a discussion of those revisions.
1. Sound-Producing Toys
    In addition to the substantive change discussed above, the 
revisions for sound producing toys reflected in ASTM F963-23 also 
include changes to sound-producing toy definitions, performance 
requirements, and test methods to improve clarity. Most of the changes 
clarify categories of toys, applicable requirements, and the 
relationship

[[Page 3348]]

between the definitions in section 3, the requirements in section 4, 
and the test methods in section 8.
    <bullet> Clarifying changes were made to improve the precision of 
definitions related to sound-producing toys and provide additional 
examples--for example in sections 3.1.14, 3.1.37, 3.1.69, and 3.1.89. 
Clarifying changes were also made to sections 4.5, 4.5.1, 4.5.1.1, and 
4.5.1.7.
    <bullet> New language based on existing section 4.5 was added to 
sections 4.5.1.2 (Hand-held toys), 4.5.1.3 (Rattles), 4.5.1.4 
(Stationary or Self-propelled Tabletop, Floor, or Crib Toys), 4.5.1.5 
(User-propelled Tabletop, Floor, or Crib Toys), and 4.5.1.6 (Push or 
Pull Toys).
    <bullet> A new Note 13 relating to modes of tabletop, floor, or 
crib toys was added to section 4 of the standard.
    <bullet> Both clarifying and editorial changes were made to the 
test methods in section 8.20, 8.20.1, 8.20.1.1, 8.20.1.2, 8.20.1.3, 
8.20.1.4, 8.20.1.5, 8.20.1.6, 8.20.2.1, 8.20.2.4, 8.20.2.5, and 
8.20.2.6 of the standard. Sections 8.20.2.2 (Hand-held Toys) and 
8.20.2.3 (Rattles) were moved, in addition to such clarifying and 
editorial changes.
    <bullet> Note 52, concerning use and abuse testing, was added to 
the test methods section.
    <bullet> ASTM F963-23 also contains a new Annex A14.4 that explains 
the technical basis for the revision to the A-weighted sound limit for 
push or pull toys, and rationale for the other changes to the sound-
producing toys section.
    The changes to the sound-producing toy definitions, performance 
requirements, and test methods improve clarity but do not affect the 
scope of toys covered by the standard, the performance requirements for 
these toys, or the test methods applicable to these toys. In addition, 
these clarifying changes will likely increase consistency in testing of 
sound-producing toys between test laboratories, which could improve 
safety.
2. Drop Test Floor Specification
    Section 8.7 of ASTM F963-23, which is unchanged from the 2017 
version of the standard, describes a drop test in which a toy is 
dropped a certain number of times in random orientations from heights 
based on the ages and expected heights of certain children, onto a 
specified impact surface. After testing, the toy is examined for 
mechanical hazards such as hazardous sharp points and sharp edges, and 
for ingestion hazards such as small, liberated components, chips, or 
fragments. In ASTM F963-17 and previous versions of the standard, the 
impact surface was specified in a referenced federal standard SS-T-
312B, Tile, Floor: Asphalt, Rubber, Vinyl, Vinyl-Asbestos. The SS-T-
312B standard, however, has been withdrawn and replaced with ASTM 
F1066, Specification for Vinyl Composition Floor Tile. The impact 
medium now specified in ASTM F1066 is the same one formerly specified 
in SS-T-312B. Accordingly, while ASTM F963-23, section 2 Referenced 
Documents has been revised to replace the standard SS-T-312B with ASTM 
F1066, there is no change to the test method or subsequent results. 
Therefore, this change does not impact safety.
3. Toxicology
    Section 4.3 addresses the safety of substances and materials used 
in toys. Below is a brief description of the non-substantive changes to 
the following provisions.
a. Section 4.3.5.2--Toy Substrate Materials
    Section 4.3.5.2 of ASTM F963-23 addresses requirements and test 
methods for specified chemical substances in the substrate materials of 
toys, where substrate refers to the materials used in toys other than 
the paints and surface coatings. Changes were made to improve the 
text's clarity and flow and to update references to CPSC regulations. 
Among the clarifications is a new section, 4.3.5.2(1)(e), which 
indicates that paper and paperboard are not included in the scope of 
the requirements of section 4.3.5.2. The information in this new 
section was previously included in Note 5 in the F963-17 standard. 
Thus, the change is a non-substantive rearrangement of the existing 
text and is not a change in any requirements.
b. Section 4.3.8--Phthalates
    Section 4.3.8 of ASTM F963-23 was retitled ``Phthalates'' from the 
previous ``DEHP(DOP)'' and updates the provision to be consistent with 
the requirements for specified phthalates contained in 16 CFR part 
1307. The revised section also references the current CPSC test method 
and Commission determinations related to requirements for third-party 
testing. The changes reflect current regulation and practice. While the 
revisions are intended to avoid stakeholder confusion by providing an 
up-to-date description of CPSC's mandatory phthalates requirements, 
revised section 4.3.8 and the accompanying notes are restatements of 
existing CPSC rules. Under section 106(a) of the CPSIA, restatements of 
other CPSC regulations are not considered to be part of the mandatory 
toy standard and thus are not part of the section 106 standard-revision 
process.
c. Section 4.3.6.1--Most Recent Version of USP 35
    Section 4.3.6.1 provides information on the bacteriological 
standards for water used in the manufacturing and filling of toys. This 
section references USP 35, which is the current version of the standard 
established by United States Pharmacopeial Convention (USP) General 
Chapter 1231 (identified in the standard as USP <1231>). ASTM F963-23 
revises section 4.3.6.1 to allow for the use of the current version of 
the USP standard (USP 35) or the most recent version of USP <1231>), if 
the USP standard is updated to a version beyond USP 35. Because USP 
<1231>) addresses water used for pharmaceutical purposes, any future 
revisions should continue to provide a high level of safety for toys. 
Should a future update to USP <1231>) result in a reduction to toy 
safety, the Commission has authority under sections 106(c) and (d) of 
the CPSIA to address such an issue.
4. Section 5.1.2--Tracking Labels
    ASTM F963-23 adds a new section 5.1.2, restating CPSC regulations 
for tracking labels and adding Notes 26 and 27 restating CPSC guidance 
regarding tracking labels. While this addition assists stakeholders in 
understanding the applicable policies, under section 106(a) of the 
CPSIA it is a restatement of existing Commission requirements and not 
considered to be part of the mandatory toy standard.
5. Section 8.3.2.1--Apparatus Metal Sieve
    ASTM F963 calls for the use of a metal sieve consisting of 
stainless-steel wire mesh held in a round metal frame, as a screen 
tool. Section 8.3.2.1 requires the use of a 0.5 mm (500 [mu]m) standard 
sieve, also known as a No. 35 sieve (U.S. Alternative). Revised section 
8.3.2.1 in ASTM F963-23 corrects a typographical error regarding the 
nominal wire diameter and the maximum size deviation for an individual 
opening of a No. 35 sieve, which are both listed incorrectly in units 
of micrometers ([mu]m) in ASTM F963-17. Revised section 8.3.2.1 uses 
millimeters (mm)--the correct unit of measurement. Because the No. 35 
sleeve was specified previously and remains specified, this correction 
does not impact safety.
6. Section 8.14--Projectile Toys
    Several changes were made to the test method for projectile toys in 
section 8.14 of ASTM F963-23. Section 8.14.3

[[Page 3349]]

reorders the conditions of the bow used for testing, placing the 70 cm 
pullback distance condition ahead of the 150 Newtons (N) pull force 
condition when stretching the bow to determine the velocity of the 
arrow. Section 8.14.5.4 reorders the test conditions to determine the 
velocity of the projectile in a more logical sequence. Sections 
8.14.5.4 and 8.14.5.5 of ASTM F963-17 have been renumbered to sections 
8.14.5.5 and 8.14.5.6 in ASTM F963-23. Section 8.14.6.2 also places the 
70 cm pullback distance condition ahead of the 150 N pull force 
condition when stretching the bow to determine the velocity of the 
arrow. These changes do not change the substantive performance 
requirements or otherwise affect toy safety.

III. Incorporation by Reference

    Section 1250.2 of the direct final rule incorporates by reference 
ASTM F963-23. 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, how 
the material the agency incorporates by reference is reasonably 
available to interested parties. 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 major provisions of ASTM F963-23 that the Commission 
incorporates by reference into 16 CFR part 1250. Until the direct final 
rule takes effect, a read-only copy of ASTM F963-23 is available for 
viewing, at no cost, 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, at no cost, on the ASTM website at: 
www.astm.org/READINGLIBRARY/. Interested parties can also schedule an 
appointment to inspect a copy of the standard at the Office of the 
Secretary, U.S. Consumer Product Safety Commission, 4330 East West 
Highway, Bethesda, MD 20814, telephone: (301) 504-7479; email: <a href="/cdn-cgi/l/email-protection#bfdccfccdc92d0ccffdccfccdc91d8d0c9"><span class="__cf_email__" data-cfemail="51322122327c3e2211322122327f363e27">[email protected]</span></a>. Interested parties can purchase a copy of ASTM F963-23 
from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West 
Conshohocken, PA 19428-2959, telephone: (610) 832-9500; website: 
www.astm.org.

IV. Certification

    Section 14(a) of the CPSA (15 U.S.C. 2051-2089) 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 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 third-party conformity 
assessment body accredited by CPSC to test according to the applicable 
requirements. As noted, rules issued under section 106 of the CPSIA are 
``consumer product safety standards.'' 15 U.S.C. 2056b(f). Thus, they 
are subject to the testing and certification requirements of section 14 
of the CPSA.
    Because toys are children's products, a CPSC-accepted third-party 
conformity assessment body must test samples of the products. Products 
subject to part 1250 also must comply with all other applicable CPSC 
requirements, such as the lead content requirements in section 101 of 
the CPSIA (15 U.S.C. 1278a), the tracking label requirements in section 
14(a)(5) of the CPSA (15 U.S.C. 2063(a)(5)), and the consumer 
registration form requirements in section 104(d) of the CPSIA (15 
U.S.C. 2056a(d)). ASTM F963-23 makes no changes to ASTM F963-17 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 has previously published four NORs for accreditation of 
third-party conformity assessment bodies for testing toys. See 76 FR 
46598 (Aug. 3, 2011); 78 FR 15836 (Mar. 12, 2013); 82 FR 8989 (Feb. 2, 
2017); 82 FR 57119 (Dec. 4, 2017). The 2013 NOR provided the criteria 
and process for the Commission's acceptance of accreditation of third-
party conformity assessment bodies for testing toys to ASTM F963-11. 
The two updates published in 2017 addressed the revisions in ASTM F963-
16 and ASTM F963-17. The current NOR for ASTM F963-17 is listed in the 
Commission's rule, ``Requirements Pertaining to Third Party Conformity 
Assessment Bodies.'' 16 CFR part 1112.
    The previous NOR for the toy safety standard addressed testing to 
37 provisions of ASTM F963. The Commission will require third party 
testing for the same 37 provisions. To that end, this rule revises 
Sec.  1112.15(b)(32) introductory text, (b)(32)(ii) introductory text, 
and (c)(1)(iii) of 16 CFR part 1112 by updating the incorporations by 
reference to reflect the numbering in ASTM F963-23. Additionally, Sec.  
1112.15(b)(32)(ii)(C) is revised to include ``Items of Avian Feather 
Origin'' in the title for section 4.3.6 of the voluntary standard, 
which was inadvertently not included in the previous NOR in part 1112.
    Some of the revised sections of ASTM F963 include changes to test 
methods discussed in section II of the preamble. These changes do not 
involve a change in scientific discipline or significant increases in 
complexity. Therefore, CPSC will accept testing to support product 
certifications for sections in ASTM F963-23 if the test laboratory is 
already CPSC-accepted to the corresponding provisions in ASTM F963-17. 
Test laboratories that conduct testing to support product 
certifications to ASTM F963-23 must show in their test reports ``ASTM 
F963-23'' and the specific section numbers in the standard to which the 
product was evaluated.
    When test laboratories seek CPSC acceptance for one or more ASTM 
F963-23 sections, they will be required to update their accreditation 
scope. CPSC will open the application process for all sections of ASTM 
F963-23 when this document is published in the Federal Register. To be 
CPSC-accepted for sections in ASTM F963-23, a test laboratory's scope 
of accreditation must include the reference to ``ASTM F963-23'' and a 
specific reference to one or more of the 37 sections listed in the NOR. 
Test laboratories that are currently accepted to ASTM F963-17 are 
instructed to update their accreditation scope to include ASTM F963-23 
sections as soon as possible and submit their ASTM F963-23 application 
for CPSC acceptance within two years. Test laboratories that were not 
previously CPSC-accepted to sections of ASTM F963-17 and that wish to 
request CPSC acceptance to ASTM F963-23 should work with their 
accreditation bodies to include ``ASTM F963-23'' sections in their 
scope of accreditation. This approach will avoid disruption to third 
party testing to the toy safety standard and allow for a practicable 
transition from ASTM F963-17 to ASTM F963-23 for testing laboratories, 
the toy industry, consumers, and other interested parties.

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. 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.'' 5 U.S.C. 553(b)(B).

[[Page 3350]]

    Under the process set out in section 106(g) of the CPSIA, when ASTM 
revises a standard that the Commission has previously incorporated by 
reference under section 104(b)(1)(B) of the CPSIA, that revision 
becomes the new CPSC standard by operation of law, unless the 
Commission determines that ASTM's revision does not improve the safety 
of the product. The Commission is allowing ASTM F963-23 to become 
CPSC's new standard because its provisions improve product safety. This 
rule updates the Code of Federal Regulations so that it reflects the 
version of the standard that takes effect by statute, but under the 
terms of the CPSIA, ASTM F963-23 would take effect as the new CPSC 
standard for toys even if the Commission did 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 
standard under section 106(g) of the CPSIA. Under these circumstances, 
notice and comment are unnecessary under the APA.
    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 (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.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notification, the rule will become effective on April 20, 2024. 
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 
challenging ``the rule's underlying premise or approach'' or a claim 
that the rule ``would be ineffective or unacceptable without a 
change.'' 60 FR 43108, 43111 (Aug. 18, 1995). As noted, this rule 
merely updates the CFR to reflect a change that occurs by statute, and 
public comments should address this specific action.
    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 to prepare regulatory flexibility analyses. The RFA 
applies to any rule that is subject to notice and comment procedures 
under section 553 of the APA. 5 U.S.C. 603, 604. As discussed in 
section VI 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. 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 by operation 
of CPSIA section 106.

VIII. Paperwork Reduction Act

    The current mandatory standard for toys 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 Office of Management and Budget (OMB) 
has approved the collection of information for ASTM F963-17 under OMB 
Control No. 3041-0159. ASTM F963-23 updates the requirement for 
instructional literature to add an instruction for toys that require a 
manufacturer-supplied specialty or custom tool to access batteries, 
which directs parents to retain the tool for future use, to store it 
where the child cannot access it, and state that the tool is not a toy. 
This change to the instructional literature is within the scope of the 
information collection approved by OMB in 2022.

IX. Effective Date

    Under the procedure set forth in section 106(g) of the CPSIA, when 
ASTM revises ASTM F963, the revision becomes the CPSC standard within 
180 days of notification to the Commission, unless the Commission 
determines that the revision does not improve the safety of the 
product. In accordance with this provision, this rule establishes an 
effective date that is 180 days after the Commission received 
notification from ASTM of revisions to the standard. As discussed in 
section VI of this preamble, this is a direct final rule. Unless we 
receive a significant adverse comment within 30 days, the rule will 
become effective on April 20, 2024. The effective date for the NOR is 
likewise April 20, 2024, the same date that the provisions of ASTM 
F963-23 become effective.

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 106(f) of the 
CPSIA deems rules issued under that provision ``consumer product safety 
standards.'' Therefore, once a rule issued under section 106 of the 
CPSIA takes effect, it will preempt in accordance with section 26(a) of 
the CPSA.

XI. 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.

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 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 is not 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.

[[Page 3351]]

List of Subjects

16 CFR Part 1112

    Administrative practice and procedure, Audit, Consumer protection, 
Incorporation by reference, Reporting and recordkeeping requirements, 
Third party conformity assessment body.

16 CFR Part 1250

    Consumer protection, Imports, Incorporation by reference, Imports, 
Infants and children, Law enforcement, Safety, Toys.

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

PART 1112--REQUIREMENTS PERTAINING TO THIRD PARTY CONFORMITY 
ASSESSMENT BODIES

0
1. Revise the authority citation for part 1112 to read as follows:

    Authority:  15 U.S.C. 2063.


0
2. Amend Sec.  1112.15 by revising paragraphs (b)(32) introductory 
text, (b)(32)(ii) introductory text, (b)(32)(ii)(C), and (c)(1)(ii) to 
read as follows:


Sec.  1112.15   When can a third-party conformity assessment body apply 
for CPSC acceptance for a particular CPSC rule or test method?

* * * * *
    (b) * * *
    (32) 16 CFR part 1250, safety standard for toys. CPSC only requires 
certain provisions of ASTM F963-23 to be subject to third party 
testing; therefore, CPSC only accepts the accreditation of third-party 
conformity assessment bodies for testing under the following toy safety 
standards:
* * * * *
    (ii) ASTM F963-23:
* * * * *
    (C) Section 4.3.6, Cleanliness of Liquids, Pastes, Putties, Gels, 
and Powders, and Items of Avian Feather Origin (except for cosmetics 
and tests on formulations used to prevent microbial degradation).
* * * * *
    (c) * * *
    (1) * * *
    (ii) ASTM F963-23, ``Standard Consumer Safety Specification for Toy 
Safety,'' August 1, 2023.
* * * * *

PART 1250--SAFETY STANDARD MANDATING ASTM F9623 FOR TOYS

0
3. Revise the authority citation for part 1250 to read as follows:

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


0
4. Revise Sec.  1250.2 to read as follows:


Sec.  1250.2   Requirements for toy safety.

    (a) Each toy must comply with all applicable provisions of ASTM 
F963-23 Standard Consumer Safety Specification for Toy Safety, approved 
on August 1, 2023. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. This incorporation by reference (IBR) material is available 
for inspection at the U.S. Consumer Product Safety Commission and at 
the National Archives and Records Administration (NARA). Contact the 
U.S. Consumer Product Safety Commission at: Office of the Secretary, 
U.S. Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814, telephone (301) 504-7479, email <a href="/cdn-cgi/l/email-protection#1576656676387a6655766566763b727a63"><span class="__cf_email__" data-cfemail="67041714044a0814270417140449000811">[email protected]</span></a>. 
For information on the availability of this material at NARA, email 
<a href="/cdn-cgi/l/email-protection#b0d6c29ed9dec3c0d5d3c4d9dfdef0ded1c2d19ed7dfc6"><span class="__cf_email__" data-cfemail="6204104c0b0c11120701160b0d0c220c0310034c050d14">[email protected]</span></a>, or go to: www.archives.gov/federal-register/cfr/ibr-locations. A read-only copy of the standard is available for 
viewing on the ASTM website at https://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-
9500; www.astm.org.
    (b) Pursuant to section 106(a) of the Consumer Product Safety 
Improvement Act of 2008, section 4.2 and Annex 5 or any provision of 
ASTM F963 that restates or incorporates an existing mandatory standard 
or ban promulgated by the Commission or by statute or any provision 
that restates or incorporates a regulation promulgated by the Food and 
Drug Administration or any statute administered by the Food and Drug 
Administration are not part of the mandatory standard incorporated in 
paragraph (a) of this section.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2024-00741 Filed 1-17-24; 8:45 am]
BILLING CODE 6355-01-P


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