[Federal Register Volume 87, Number 142 (Tuesday, July 26, 2022)]
[Proposed Rules]
[Pages 44307-44308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15906]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1309

[CPSC Docket No. 2022-0024]


Ban of Crib Bumpers

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, requiring that crib bumpers, ``regardless of 
the date of manufacture, shall be considered a banned hazardous 
product'' under the Consumer Product Safety Act (CPSA). Pursuant to 
this authority, CPSC is proposing to codify the ban on crib bumpers 
pursuant to the Safe Sleep for Babies Act, and under a separate 
document, published elsewhere in this issue of the Federal Register, 
terminate the rulemaking on crib bumpers/liners under the Consumer 
Product Safety Improvement Act of 2008 (CPSIA).

DATES: Submit comments by August 25, 2022.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2022-
0024, 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: To review background documents or comments received on the 
proposed codification of the Ban on Crib Bumpers, go to: https://www.regulations.gov, and insert the docket number, CPSC-2022-0024, into 
the ``Search'' box, and follow the prompts.

FOR FURTHER INFORMATION CONTACT: Timothy P. Smith, Project Manager, 
Directorate for Engineering Sciences, U.S. Consumer Product Safety 
Commission, 5 Research Place, Rockville, MD 20850; telephone: (301)987-
2557; email: [email protected].

SUPPLEMENTARY INFORMATION: Pursuant to section 3 of the Safe Sleep for 
Babies Act of 2021, H.R. 3182, Public Law 117-126 (SSBA), CPSC is 
issuing a proposed rule to codify the ban on crib bumpers under the 
SSBA. Additionally, under a separate Federal Register document, 
published elsewhere in this issue of the Federal Register, the 
Commission is terminating the pending rulemaking on crib bumpers/liners 
that CPSC initiated under section 104 of the CPSIA, CPSC Docket No. 
CPSC-2020-0010.

I. Background and Statutory Authority

    On April 3, 2020, the Commission published a notice of proposed 
rulemaking (NPR) that set forth proposed requirements for a safety 
standard for crib bumpers/liners pursuant to section 104 of the CPSIA 
(85 FR 18878). The Commission received comments on the proposed rule 
but has not published a final rule.
    On May 3, 2022, Congress passed the SSBA, which the President 
signed on May 16, 2022. Section 3 of the SSBA requires that, not later 
than 180 days after enactment, ``crib bumpers, 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. 2057e.
    In light of the SSBA's mandate that crib bumpers shall be 
considered a banned hazardous product under section 8 of the CPSA, CPSC 
no longer proposes to regulate crib bumpers under the CPSIA. By 
separate Federal Register document, CPSC is terminating the rulemaking 
to establish a consumer product safety standard for crib bumpers/
liners.\1\ Instead, CPSC now proposes to achieve a similar improvement 
to safety by codifying the ban on ``crib bumpers,'' as defined in 
section 3 of the SSBA, as banned hazardous products.\2\
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    \1\ The NPR used the terms ``crib bumpers,'' ``crib bumpers and 
liners,'' and ``crib bumpers/liners,'' but this NPR applies only to 
``crib bumpers'' as defined in the SSBA.
    \2\ On July 19, 2022, the Commission voted 5-0 to issue this 
notice of proposed rulemaking.
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II. Description of Proposed Ban on Crib Bumpers

    In this rulemaking, CPSC proposes to codify the SSBA's mandate that 
``crib bumpers'' are banned hazardous products, as set forth below.

A. Definitions

    The Commission proposes codifying the definition of ``crib bumper'' 
used in the SSBA, which states that ``crib bumper'':
     Means any material that is intended to cover the sides of 
a crib to prevent injury to any crib occupant from impacts against the 
side of a crib or to prevent partial or complete access to any openings 
in the sides of a crib to prevent a crib occupant from getting any part 
of the body entrapped in any opening;
     Includes a padded crib bumper, a supported and unsupported 
vinyl bumper guard, and vertical crib slat covers; and
     Does not include a non-padded mesh crib liner.

B. Effective Date

    The SSBA states that crib bumpers shall be considered banned 
hazardous products ``not later than 180 days after the enactment of 
this Act,'' i.e., not later than November 12, 2022. Applying the 180-
day effective date referenced by Congress would avoid confusion among 
manufacturers and retailers, while also being consistent with the 6-
month implementation period the Commission proposed in its 2020 NPR to 
establish a safety standard for crib bumpers/liners. Therefore, CPSC 
proposes to make the effective date for the ban on crib bumpers 
November 12, 2022.

C. Inventory

    The SSBA states that the ban applies to crib bumpers ``regardless 
of the date of manufacture.'' Therefore, crib bumpers manufactured 
before the ban

[[Page 44308]]

becomes effective will be banned hazardous products beginning on the 
effective date of the SSBA, as well as any crib bumpers manufactured or 
sold after the effective date.

III. Preemption

    Section 3(b)(2)(A) of the 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 crib bumpers are banned hazardous products, any state performance 
standards for a ``crib bumper,'' as defined in the SSBA (which 
expressly excludes non-padded mesh crib liners), would be inconsistent 
with federal law, and therefore, preempted.

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 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities. The SSBA will take effect no 
later than November 12, 2022. Because the proposed rule is limited to 
codifying section 3 of the SSBA, with an effective date of November 12, 
2022, the proposed rule imposes no additional economic impact on small 
entities beyond the requirements of the SSBA itself. 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 3 of the SSBA falls within the categorical exclusion, 
so no environmental assessment or environmental impact statement is 
required.

VI. Paperwork Reduction Act

    The proposed rule to codify crib bumpers 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 crib bumpers in section 3 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 document. CPSC specifically requests comment on the 
following:
    A. Effective Date: The Commission proposes to implement the crib 
bumper 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 3 of the SSBA, what 
is the legal basis for that assertion, and what later date should be 
adopted?
    B. 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, non-padded mesh crib liners are not within the scope of the 
SSBA's ban on crib bumpers. Because the crib bumper ban does not 
eliminate non-padded mesh crib liners from the market, what, if any, 
testing and certification requirements remain? For example, should CPSC 
require certification to the ban for non-padded mesh crib liners to 
demonstrate that a product is not within the scope of the ban? Why, or 
why not? Additionally, should the Commission add ``non-padded mesh crib 
liners'' to the list of durable infant or toddler products that require 
a registration card? Why, or why not?

List of Subjects in 16 CFR Part 1309

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

    For the reasons stated in the preamble, the Commission proposes to 
add part 1309 to title 16 of the Code of Federal Regulations to read as 
follows:

PART 1309--BAN OF CRIB BUMPERS

Sec.
1309.1 Purpose and scope.
1309.2 Definitions.
1309.3 Banned hazardous product.
1309.4 Effective date.

    Authority:  Sec. 3, Pub. L. 117-126, 136 Stat. 1208. 15 U.S.C. 
2057e.


Sec.  1309.1   Purpose and scope.

    The purpose of this part is to prohibit the sale of crib bumpers, 
as defined in Sec.  1309.2, as set forth in the Safe Sleep for Babies 
Act of 2021.


Sec.  1309.2   Definitions.

    Crib bumper, as used in this part:
    a. Means any material that is intended to cover the sides of a crib 
to prevent injury to any crib occupant from impacts against the side of 
a crib or to prevent partial or complete access to any openings in the 
sides of a crib to prevent a crib occupant from getting any part of the 
body entrapped in any opening;
    b. Includes a padded crib bumper, a supported and unsupported vinyl 
bumper guard, and vertical crib slat covers; and
    c. Does not include a non-padded mesh crib liner.


Sec.  1309.3   Banned hazardous product.

    Any crib bumper, as defined in section 1309.2, 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.  1309.4   Effective date.

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

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2022-15906 Filed 7-25-22; 8:45 am]
BILLING CODE 6355-01-P