[Federal Register Volume 87, Number 142 (Tuesday, July 26, 2022)]
[Proposed Rules]
[Pages 44309-44310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15904]



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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1310

[CPSC Docket No. 2022-0025]


Ban of Inclined Sleepers for Infants

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On May 16, 2022, the President signed into law the Safe Sleep 
for Babies Act of 2021 (SSBA), requiring that ``inclined sleepers for 
infants, regardless of the date of manufacture, shall be considered a 
banned hazardous product'' under the Consumer Product Safety Act 
(CPSA). Pursuant to this authority, the U.S. Consumer Product Safety 
Commission (CPSC, or Commission) is proposing to codify the ban on 
inclined sleepers for infants.

DATES: Submit comments by August 25, 2022.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2020-
0025, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: https://www.regulations.gov. Follow the 
instructions for submitting comments. CPSC typically does not accept 
comments submitted by electronic mail (email), except as described 
below. CPSC encourages you to submit electronic comments by using the 
Federal eRulemaking Portal, as described above.
    Mail/Hand Delivery/Courier Written Submissions: 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. If you wish to 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: [email protected].
    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: https://www.regulations.gov. 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. If you wish to submit such 
information, please submit it according to the instructions for mail/
hand delivery/courier written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2020-0025f, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Celestine T. Kish, Project Manager, 
Directorate for Engineering, U.S. Consumer Product Safety Commission, 5 
Research Place, Rockville, MD 20850; telephone: (301) 987-2547; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background and Statutory Authority

    On May 3, 2022, Congress passed the Safe Sleep for Babies Act of 
2021, H.R. 3182, Public Law 117-126, which the President signed on May 
16, 2022. Section 2(a) of the SSBA requires that, not later than 180 
days after enactment, ``inclined sleepers for infants, regardless of 
the date of manufacture, shall be considered a banned hazardous product 
under section 8 of the Consumer Product Safety Act (15 U.S.C. 2057).'' 
15 U.S.C. 2057d(a).

II. Description of Proposed Ban on Inclined Infant Sleepers

    In this rulemaking, CPSC proposes to codify the SSBA's mandate that 
``inclined sleepers for infants'' are a banned hazardous product, as 
set forth below.\1\
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    \1\ On July 19, 2022, the Commission voted 5-0 to issue this 
notice of proposed rulemaking.
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A. Definitions

    The Commission proposes codifying the definition of ``inclined 
sleepers for infants'' as stated in section 2(b) the SSBA: ``a product 
with an inclined sleep surface greater than ten degrees that is 
intended, marketed, or designed to provide sleeping accommodations for 
an infant up to 1 year old.''

B. Effective Date

    Section 2(a) of the SSBA states that inclined sleepers for infants 
shall be considered a banned hazardous product ``not later than 180 
days after the enactment of this Act,'' i.e., not later than November 
12, 2022. CPSC proposes to make the effective date for this ban 
November 12, 2022, consistent with 180-day period referenced by 
Congress.

C. Inventory

    The SSBA states that the ban applies to inclined sleepers for 
infants as defined in section 2 ``regardless of the date of 
manufacture.'' Therefore, inclined sleepers for infants manufactured 
before the ban becomes effective will be banned hazardous products 
beginning on the effective date, as well as any inclined sleepers for 
infants manufactured or sold on or after the effective date.

III. Preemption

    Section 3(b)(2)(A) of Executive Order 12988, Civil Justice Reform 
(Feb. 5, 1996), directs agencies to specify the preemptive effect of 
any rule. 61 FR 4729 (Feb. 7, 1996). Because the SSBA states that 
inclined sleepers for infants are banned hazardous products, any state 
performance standards for inclined sleepers for infants, as those 
products are defined in the SSBA, would be inconsistent with federal 
law and therefore preempted by this ban.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that 
agencies review proposed rules for their potential economic impact on 
small entities, including small businesses, and identify alternatives 
that may reduce such impact, unless the agency certifies that the rule 
will not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The SSBA will take effect on 
November 12, 2022. Because the proposed rule would adopt the same 
effective date and is limited to codifying the relevant provisions of 
the SSBA with regard to inclined sleepers for infants, the proposed 
rule imposes no additional economic impact on small entities beyond the 
requirements of section 2 of the SSBA. Therefore, the Commission 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities.

V. Environmental Considerations

    The Commission's regulations address whether the agency must 
prepare an environmental assessment or an environmental impact 
statement. Under these regulations, certain categories of CPSC actions 
that have ``little or no potential for affecting the human 
environment'' do not require an environmental assessment or an 
environmental impact statement. 16 CFR 1021.5(c). The proposed rule 
codifying section 2 of the SSBA falls within the categorical exclusion, 
so no environmental assessment or environmental impact statement is 
required.

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VI. Paperwork Reduction Act

    The proposed rule to codify inclined sleepers for infants as a 
banned hazardous product contains no information collection 
requirements that would be subject to public comment and review by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501-3521). However, if the Commission requires 
testing and certification to this ban, the Commission will expand the 
existing control number for Third Party Testing of Children's Products, 
OMB Control No. 3041-0159.

VII. Request for Comments

    We invite comments on all aspects of the Commission's proposal to 
codify the ban on inclined sleepers for infants under section 2 of the 
SSBA with an effective date of November 12, 2022. Comments must be 
submitted in accordance with the instructions in the ADDRESSES section 
at the beginning of this notice. We also invite comment on the 
following topics:
    A. Effective Date: The Commission proposes to implement the 
inclined sleeper ban in the SSBA with an effective date of November 12, 
2022. Should the Commission adopt this proposed effective date, or an 
alternative date ``[n]ot later than 180 days after the date of 
enactment''? If the commenter believes that an effective date later 
than November 12, 2022, is permitted under section 2 of the SSBA, what 
is the legal basis for that assertion, and what later date should be 
adopted?
    B. Interpretation: In 2021, the Commission promulgated its Safety 
Standard for Infant Sleep Products (16 CFR part 1236, the ISP Rule), 
which became effective on June 23, 2022. (86 FR 33022 (June 23, 2021)). 
Pursuant to 16 CFR 1236.2(b)(10)(i), the ISP Rule defines an ``infant 
sleep product'' as a ``product marketed or intended to provide a 
sleeping accommodation for an infant up to 5 months of age, and that is 
not subject to'' one of the following: 16 CFR part 1218 (bassinets and 
cradles); 16 CFR part 1219 (full-size cribs); 16 CFR part 1220 (non-
full-size cribs); 16 CFR part 1221 (play yards); and 16 CFR part 1222 
(bedside sleepers) (collectively, CPSC sleep standards).\2\ 86 FR at 
33072. The SSBA, by contrast, applies to products ``marketed, intended, 
or designed'' for infants up to 1 years old. The operative provisions 
of the SSBA and the ISP Rule thus are not identical. Particularly in 
that light, the Commission requests comment on interpreting, codifying, 
and enforcing the SSBA with respect to inclined sleep products, 
including:
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    \2\ If an infant sleep product does not already comply with a 
CPSC sleep standard, the ISP Rule requires the sleep surface angle 
to measure l0 degrees or less, and the product must meet part 1218 
of the Commission's Rules, the bassinet standard, including the 
definition of a bassinet, meaning the product must have a stand. The 
ISP Rule applies to both flat and inclined products.
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    1. How should the Commission interpret and implement the phrase 
``sleeping accommodations'' for purposes of the SSBA ban?
    2. What, if any, effect should inclusion of the term ``designed'' 
in the SSBA have on the Commission's interpretation and implementation 
of the SSBA as compared to the ISP Rule? For example, what 
significance, if any, might ``designed'' have for inclined products 
that are not marketed for sleep but in which an infant may fall asleep, 
such as bouncers, swings, and rockers?
    3. In the SSBA, what product characteristics, if any, demonstrate 
that a product is ``designed'' for sleep?
    4. How should the Commission interpret and implement the terms 
``marketed'' and ``intended'' as a sleeping accommodation in the SSBA? 
Should these terms be interpreted and implemented the same as in the 
ISP Rule? Why or why not?
    5. What is the significance of the age distinction between the ISP 
Rule and the SSBA's ban? How might this difference bear on 
implementation of the SSBA as compared to the ISP Rule, including with 
respect to developmental differences between a newborn to 5 month old 
as identified in the ISP Rule, versus a newborn to 1 year old as 
identified in the SSBA?
    6. How, if at all, should the SSBA's ban of inclined sleepers for 
infants affect the ISP Rule or the Commission's application of it?
    C. Testing and Certification: When a ban does not remove all 
products in a product category from the market, testing and 
certification requirements may apply. For example, CPSC requires a 
General Certificate of Conformity (GCC) for certain banned hazardous 
products. See, e.g., https://www.cpsc.gov/Business-Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity, CPSC's website providing guidance that bans 
set forth in 16 CFR parts 1304, 1305, and 1306 require a GCC. In this 
case, inclined sleepers with an inclined sleep surface of 10 degrees or 
less, or that are marketed, intended, or designed to provide sleeping 
accommodations for an infant older than 1 year, are not within the 
scope of the SSBA's ban. To the extent inclined sleepers remain on the 
market that are not banned by this rule, and that are not regulated 
under the ISP Rule, should CPSC require testing and certification to 
this ban, to demonstrate that a product is not within the scope of the 
ban? Why, or why not?

List of Subjects in 16 CFR Part 1310

    Administrative practice and procedure, Consumer protection, Infants 
and children.

    For the reasons stated in the preamble, the Commission proposes to 
add part 1310 to title 16 of the Code of Federal Regulations as 
follows:

PART 1310--BAN OF INCLINED SLEEPERS FOR INFANTS

Sec.
1310.1 Purpose and scope
1310.2 Definition
1310.3 Banned hazardous product
1310.4 Effective date

    Authority: Sec. 2, Pub. L. 117-126, 136 Stat. 1208; 15 U.S.C. 
2057d.


Sec.  1310.1   Purpose and scope

    The purpose of this rule is to prohibit the sale of inclined 
sleepers for infants as set forth in the Safe Sleep for Babies Act of 
2021.


Sec.  1310.2   Definition

    Inclined sleeper for infants means ``a product with an inclined 
sleep surface greater than ten degrees that is intended, marketed, or 
designed to provide sleeping accommodations for an infant up to 1 year 
old.''


Sec.  1310.3  Banned Hazardous product

    Any inclined sleeper for infants, regardless of the date of 
manufacture, is a banned hazardous product under section 8 of the 
Consumer Product Safety Act (15 U.S.C. 2057).


Sec.  1310.4  Effective date

    The effective date of this ban is November 12, 2022.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2022-15904 Filed 7-25-22; 8:45 am]
BILLING CODE 6355-01-P