[Federal Register Volume 88, Number 155 (Monday, August 14, 2023)]
[Rules and Regulations]
[Pages 54878-54880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17355]



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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: Final rule.

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SUMMARY: The Consumer Product Safety Commission is issuing this final 
rule to codify the ban of crib bumpers pursuant to the Safe Sleep for 
Babies Act of 2021, which requires that crib bumpers, regardless of the 
date of manufacture, shall be considered a banned hazardous product 
under the Consumer Product Safety Act.

DATES: This rule is effective on September 13, 2023.

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: 
[email protected].

SUPPLEMENTARY INFORMATION: Pursuant to section 3 of the Safe Sleep for 
Babies Act of 2021 (SSBA), Public Law 117-126, 15 U.S.C. 2057e, CPSC is 
issuing this final rule to reflect, in the Code of Federal Regulations, 
the statutory ban of crib bumpers that took effect by operation of law 
on November 12, 2022.

I. Background and Statutory Authority

    On May 3, 2022, Congress passed the SSBA, which the President 
signed on May 16, 2022. Section 3(a) 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 (CPSA) (15 U.S.C. 
2057). 15 U.S.C. 2057e(a). The 180th day after enactment was November 
12, 2022.
    On July 26, 2022, the Consumer Product Safety Commission 
(Commission or CPSC) published a notice of proposed rulemaking (NPR) 
stating the Commission's intention to codify the language in the SSBA 
requiring that crib bumpers be considered a banned hazardous product 
under section 8 of the CPSA. 87 FR 44307 (July 26, 2022). CPSC 
requested and received comments from the public on the proposed rule.
    Because the SSBA mandated that crib bumpers shall be considered a 
banned hazardous product under section 8 of the CPSA, CPSC also 
terminated a prior proposed rule to establish a consumer product safety 
standard for crib bumpers/liners pursuant to section 104 of the 
Consumer Product Safety Improvement Act of 2008. 87 FR 44306 (July 26, 
2022).

II. Overview of the Final Rule Banning Crib Bumpers

    In this rule, the Commission codifies the SSBA's mandate that crib 
bumpers are a banned hazardous product, as set forth in this section of 
this preamble.\1\
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    \1\ The Commission voted 4-0 to publish this final rule. Chair 
Hoehn-Saric and Commissioner Trumka issued statements in connection 
with their votes.
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A. Definitions

    The Commission is codifying the definition of ``crib bumper'' used 
in the SSBA, 15 U.S.C. 2057e(b), which states that ``crib bumper'':
    (1) 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;
    (2) Includes a padded crib bumper, a supported and unsupported 
vinyl bumper guard, and vertical crib slat covers; and
    (3) Does not include a non-padded mesh crib liner.

B. Effective Date

    Section 3(a) of the SSBA states that crib bumpers shall be 
considered a banned hazardous product ``not later than 180 days after 
the enactment of this Act.'' The NPR proposed an effective date of 
November 12, 2022, which was 180 days after enactment of the SSBA. The 
Administrative Procedure Act (APA) generally requires that the 
effective date of a rule be at least 30 days after publication of the 
final rule. 5 U.S.C. 553(d). Because the November 12, 2022, effective 
date proposed in the NPR has passed, and because commenters supported 
CPSC implementing the rule expeditiously, the Commission is finalizing 
this rule with a 30-day effective date, the minimum permitted under the 
APA. Although the final rule will not be effective until September 13, 
2023, the ban of crib bumpers has been in effect since November 12, 
2022, pursuant to the SSBA. To reflect that the SSBA took effect on 
November 12, 2022, 16 CFR 1309.4 notifies the public that the ban of 
crib bumpers was effective as of November 12, 2022.

C. Inventory

    The SSBA states that the ban applies to crib bumpers ``regardless 
of the date of manufacture.'' Therefore, by statute, crib bumpers 
manufactured at any time became banned hazardous products as of 
November 12, 2022.

III. Response to Comments

    CPSC received six comments on the NPR during the comment period.\2\ 
After the comment deadline, CPSC received a seventh comment \3\ that 
primarily addressed non-padded mesh crib liners, which are outside the 
scope of this rule. The seventh comment has been added to the docket 
for this rulemaking, although it did not address the substance of this 
rule.
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    \2\ The commenters were: Johns Hopkins Bloomberg School of 
Public Health; Consumer Federation of America; Juvenile Products 
Manufacturers Association, Inc.; Kids In Danger; Consumer Reports; 
and American Academy of Pediatrics.
    \3\ BreathableBaby, LLC, was the late commenter.
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A. Effective Date

    All the commenters supported CPSC codifying the ban of crib 
bumpers, as stated in the SSBA. None of the commenters suggested any 
revisions to the language of the proposed rule. Five of the commenters 
addressed the effective date of this rule. All five agreed with an 
effective date not later than November 12, 2022; four of these 
commenters (Johns Hopkins Bloomberg School of Public Health, Kids In 
Danger (KID), Consumer Reports, and American Academy of Pediatrics) 
urged CPSC to act as quickly as possible, asserting that an earlier 
effective date would benefit the public by improving safety. The SSBA's 
statutory ban of crib bumpers went into effect on November 12, 2022. 
The final rule will become effective 30 days after it is published, 
though crib bumpers have been banned pursuant to the SSBA since 
November 12, 2022. Commenter KID specifically commended CPSC's 
inclusion of the language from the SSBA stating that crib bumpers are 
banned regardless of the date of manufacture. The Consumer Federation 
of America agreed that crib bumpers manufactured before the effective 
date, as well as those manufactured after the effective date, are 
banned products.

B. Testing and Certification

    CPSC sometimes requires testing and certification to demonstrate 
that a product is not within the scope of a ban. Section 14(a)(2) of 
the CPSA requires the manufacturer or private labeler of a children's 
product that is subject to a children's product safety rule to certify

[[Page 54879]]

that, based on a third-party conformity assessment body's testing, the 
product complies with the applicable children's product safety rule. 15 
U.S.C. 2063(a)(2). A ``children's product'' is a consumer product 
``designed or intended primarily for children 12 years of age or 
younger.'' Id. 2052(a)(2). A ``children's product safety rule'' 
includes rules under any act enforced by the Commission that 
``declar[e] a consumer product to be a banned hazardous product or 
substance.'' Id. 206(f)(1). Crib bumpers as defined in the SSBA meet 
the definition of a children's product for the purpose of Section 14. 
This final rule, which codifies crib bumpers as a banned hazardous 
product pursuant to the SSBA, fits the definition of a children's 
product safety rule under the CPSA. However, because the ban does not 
leave any crib bumpers in the marketplace, in this instance there is 
nothing to test. Though commenters provided a variety of ideas 
regarding testing and certification requirements, emerging products, 
age grading, and attachment issues for non-padded mesh crib liners, 
none urged a test for crib bumpers. Although the Commission may 
consider these issues at a later time, as warranted, CPSC is limiting 
this rule to codification of the terms of the ban prescribed by the 
SSBA. Therefore, CPSC has not made any revisions to the proposed rule 
based on these comments.

C. Technical and Clarifying Revisions

    For the final rule, the Commission has updated the language 
proposed in the NPR by replacing the public law citation for the SSBA 
(Pub. L. 117-126) with the new U.S. Code citation (15 U.S.C. 2057e).
    The Commission has also revised the proposed 16 CFR 1309.1, Purpose 
and scope, to more fully describe the substantive effect of Congress's 
classification of crib bumpers as banned hazardous products. Section 
1309.1 of the final rule makes clear that the rule prohibits not only 
the sale of banned crib bumpers but also, in accordance with section 
19(a)(1) of the CPSA, the offer for sale, manufacture for sale, 
distribution in commerce, or importation into the United States, of 
these products. See 15 U.S.C. 2068(a)(1).
    The Commission has also revised the proposed 16 CFR 1309.4, 
Effective date, to clarify that the ban of crib bumpers was effective 
as of November 12, 2022, pursuant to the SSBA, but that this final rule 
is effective as of September 13, 2023. The promulgation of this final 
rule does not change the fact that inclined sleepers have been banned 
pursuant to the SSBA since November 12, 2022.

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 crib 
bumpers are a banned hazardous product, any state performance standards 
allowing the sale of crib bumpers, as defined in the SSBA and this 
rule, would be inconsistent with federal law and therefore preempted by 
this ban.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that 
agencies review proposed and final 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. In the NPR, the 
Commission certified that the final rule will not have a significant 
economic impact on a substantial number of small entities and received 
no comment on that issue. 87 FR 44308.

VII. Environmental Considerations

    The Commission's regulations at 16 CFR part 1021 address whether 
the agency must prepare an environmental assessment or an environmental 
impact statement. Under those 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). This final rule 
codifying section 3 of the SSBA falls within the categorical exclusion, 
so no environmental assessment or environmental impact statement is 
required.

VIII. Paperwork Reduction Act

    This final rule contains no information collection requirements 
that would be subject to public comment and review by the Office of 
Management and Budget under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521).

IX. Congressional Review Act

    The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, 
before a rule can 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), and indicate whether the 
rule is a ``major rule'' as defined in 5 U.S.C. 804(2). The CRA further 
states that the Office of Information and Regulatory Affairs (OIRA) 
determines whether a rule qualifies as a ``major rule.'' OIRA has 
determined that this rule is not a ``major rule'' under the CRA. To 
comply with the CRA, the Commission will submit the required 
information to each House of Congress and the Comptroller General.

List of Subjects in 16 CFR Part 1309

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


0
For the reasons discussed above, the Commission adds part 1309 to title 
16 of the Code of Federal Regulations as follows:

PART 1309--BAN OF CRIB BUMPERS

Sec.
1309.1 Purpose and Scope
1309.2 Definition
1309.3 Banned Hazardous Product
1309.4 Effective Date

    Authority:  15 U.S.C. 2057e.


Sec.  1309.1  Purpose and Scope

    The purpose of this rule is to prohibit the sale, offer for sale, 
manufacture for sale, distribution in commerce, or importation into the 
United States, of any crib bumpers, as defined in part 1309.2, as set 
forth in the Safety Sleep for Babies Act of 2021 (15 U.S.C. 2057e).


Sec.  1309.2  Definition

    Crib bumper:
    (1) 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;
    (2) Includes a padded crib bumper, a supported and unsupported 
vinyl bumper guard, and vertical crib slat covers; and
    (3) 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).

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Sec.  1309.4  Effective Date

    By statute, the effective date of this ban is November 12, 2022. 
This effective date of this rule is September 13, 2023.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-17355 Filed 8-11-23; 8:45 am]
BILLING CODE 6355-01-P