[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]
[[Page 54878]]
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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