September 28, 2020

On April 3, The Consumer Product Safety Commission (CPSC) Published a Notice of Proposed Rulemaking Proposing a Safety Standard for Crib Bumpers/Liners (16 CFR 1240, Docket No. CPSC 2020-0010)

DATES: Comments must be submitted on or before June 17, 2020

SUMMARY:  The CPSC is proposing a safety standard for crib bumpers/liners, and it is also proposing to identify crib bumpers/liners as durable infant or toddler products subject to CPSC’s consumer registration requirements. In addition, the Commission is proposing an amendment to include crib bumpers in the list of notice of requirements (NORs) issued by the Commission.

The Commission proposes to incorporate by reference ASTM F1917– 12, with the following modifications to the standard, (discussed in Section VI of the Notice):

  1. Provide a broad definition of crib bumpers that encompasses traditional crib bumpers as well as mesh crib liners;
  2. Suffocation Hazard
    1. The Commission proposes to apply the F1917-12 thickness requirement to all crib bumpers/liners, regardless of their construction;
    1. The Commission is proposing a firmness requirement and test method that is based on an Australian/New Zealand standard, AS/NZS 8811.1:2013, Methods of Testing Infant Products: Part 1: Sleep Surfaces—Test for Firmness.
  3.  Suffocation Hazard and Entrapment Hazard—Crib Bumper Attachment
    1. The Commission is proposing a new performance requirement that would replace the existing F1917 attachment requirements. The proposed requirement would not allow the small head probe currently used in ASTM F963 to pass between an installed crib bumper and the interior crib side.
  4. Entanglement, Choking, and Suffocation Hazards—Crib Bumper Tie/ Attachment Means Strength Requirement
    1. Attachment Means, Decorative Components, and Seams—ASTM F1917–12 includes a strength requirement for crib bumper ties. The Commission is proposing to revise the strength requirement for bumper ties to apply to all “attachment means”, rather than just to ties. 
    1. Decorative Components and Seams Strength Requirements—The Commission is proposing to include strength requirements for decorative components and bumper seams. 
  5. Suffocation, Entanglement and Fall Hazards—Crib Bumper Warnings and Instructions
    1. Warning Content and Format—The Commission proposes to replace the ASTM F1917–12 warning requirements with new warning requirements involving content and general format.
    1. They propose changes involving (a) warning placement, (b) warning permanence, (c) additional crib bumper warnings, and (d) the proposed standard would require instructional literature in addition to the product warnings.

XVII. Request for Comments—The Commission invites comments on any aspect of this proposal. In addition, the Commission invites comments on the following:

1. Is the 2 inch maximum thickness requirement and the related test method sufficient?

2. With regard to the firmness requirements and related test methods:

  1. Potential facial conformity test devices and methods, such as mechanical test surrogates;
  2. recommendations for a more anthropomorphic test method;
  3. the repeatability of the proposed firmness test; and
  4. the validity of the proposed firmness requirements and related test methods.

3. Is an airflow performance requirement based on the airflow characteristics of typical mesh bumpers protective enough to eliminate the risks of suffocation against a crib bumper?

4. What further modifications to the British air flow test method (BS 4568:1970) would enhance the repeatability and validity of the airflow test requirement for crib bumpers?

5. Is there an alternative test method, such as ASTM D737–18, Standard Test Method for Air Permeability of Textile Fabrics, that can be correlated with results from the British Standard, as modified, and would adoption of this alternative test method offer benefits?

6. If the Commission adopts an airflow performance requirement, what effect will this have on the need for the proposed thickness and firmness tests and will the proposed warnings and instructions need to be modified?

7. Is there evidence that demonstrates that climb-out rates are higher when crib bumpers or mesh liners are installed in a crib, and should the Commission require the new warnings about removal of the product and climbing out?

8. Does having an airflow performance requirement for crib bumpers adversely affect public education about safe sleep best practices?

9. Is there any research into air permeability, breathability, infants’ oxygen and carbon dioxide levels, rebreathing, anatomical features, airway openings, respiratory rates and volumes, anthropometry of facial features such as nasal deformation against crib bumpers, effects of exhaled moisture and saliva on the air permeability of fabric and mesh bumpers, patterns of gas dispersal within a crib, or other related topics that the Commission should consider?

10. Are there reports of incidents or injuries associated with vertical bumpers? What is the recommended user population, market size and expected, useful lifespan of vertical bumpers? What design characteristics of vertical bumpers are critical for safety, such as shape, thickness, fill materials, and attachment means? Are there any requirements in this proposal from which vertical bumpers should be exempt and why? Are there any test methods that need to be modified for testing vertical bumpers?

11. A central purpose of the Consumer Product Safety Act is ‘‘to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations.’’ See 15 U.S.C. 2051(b)(3). Given this mandate, what should the preemptive effect of any regulation promulgated under this rulemaking be?

12. Should the Commission consider an effective date of 12 months for any regulation promulgated under this rulemaking?

13. Should CPSC consider any other alternatives to reduce the impact on small entities?

14. On October 19, 2016, the Commission voted to initiate rulemaking under section 104 of the Consumer Product Safety Improvement Act (CPSIA) to address the risk of injury or death associated with the use of crib bumpers. Do crib bumpers and liners meet the definition of ‘‘durable product’’? What are the anticipated legal challenges to pursuing rulemaking under this authority?

15. Many outside groups have advocated for an outright ban of crib bumpers and liners. Does CPSC have jurisdiction under Section 104 to ban this product category? If not, may CPSC promulgate a rule declaring such products a banned hazardous product under Section 8 of the CPSIA, 15 U.S.C. 2057? During the comment period, the ASTM F1917–12 Standard Consumer Safety Performance Specification for Infant Bedding and Related Accessories, is available as a read-only document at: http://www.astm.org/cpsc.htm.

For a more detailed summary of the notice please email me at sselander@selanderlaw.com. To see the notice itself, follow the link https://www.govinfo.gov/content/pkg/FR-2020-04-03/pdf/2020-06142.pdf

On February 25, the Consumer Product Safety Commission Published a Direct Final Rule for Portable Bed Rails (15 CFR 1224), Replacing the 2012 Version of ASTM F 2085-12 with the 2019 Version ASTM F 2085-19

SUMMARY: This rule pertains to portable bed rails intended to be installed on an adult bed to prevent children from falling out of bed.

Section 104(b)(1)(B) of the Consumer Product Safety Improvement Act (CPSIA) requires the CPSC to promulgate consumer product safety standards for durable infant or toddler products. The law requires these standards to be ‘‘substantially the same as’’ applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

The CPSC is updating 15 CFR 1224 by replacing the 2012 Version of ASTM F 2085-12 with the 2019 Version, ASTM F 2085-19.

The CPSC found that all of the non-substantive changes made in ASTM F2085–19 were neutral regarding safety for portable bed rails because they were editorial in nature. The one substantive change to the standard was the change in the type of twin bed sheet from 50/50 polyester cotton blend to 60/40 polyester cotton blend. The test labs had indicated that it was difficult to find a sheet that could be verified as a 50/50 blend and that most twin sheets on the market were the 60/40 blend.

The CPSC staff believes that changing the sheet source from a 50/50 blend to a 60/40 blend would not affect how a technician performs the test or alter the results of the testing. Therefore, the CPSC concludes that this change is neutral regarding safety while increasing the ease of sourcing the test materials and is adopting this revision as the new safety standard.

DATES: The rule is effective on May 20, 2020, unless the CPSC receives significant adverse comment by March 26, 2020.

On January 31, the Consumer Product Safety Commission Published a Request for Comments on an Evaluation of the CPSC Safety Standards for Full-Size and Non-Full-Size Baby Cribs (16 CFR 1219 and 1220)

DATES: Written comments should be filed on or before March 31, 2020.

SUMMARY:  The CPSC is conducting this review as mandated by Section 610 of the Regulatory Flexibility Act which requires a review within 10 years of when a Standard is issued, if the Standard has a significant economic impact on small entitiesl

The CPSC is seeking comments on:

  1. Safety and Effectiveness
    1. Are there any technological developments that would improve the full-size or non-full-size crib standards?  If so, what would be the impact on large or small suppliers?
    2. Could the standards be improved?  If so, how would this impact suppliers?
  2. Costs and Impacts—Suppliers
    1.  Are there any requirements of the current standards that are unduly burdensome?
    2.  How does the cost of compliance affect crib production?
    3.  What kinds of modifications did manufacturers have to make to comply with the standards?
    4.  Have new entrants come into the market since the standards were issued?  Did the standards presented any difficulties for new entrants?
    5.  Have any manufacturers dropped crib models or crib lines because of the standards?
    6. Was the impact of the standards reduced due to the longer effective date of childcare facilities?
    7.  Are any other small entities affected by these standards?
  3. Recordkeeping and Third Party Testing
    1.  Questions regarding the cost and time required to certify to the standards.
    2.  Are the recordkeeping requirements of the standards adequate, inadequate, or unduly burdensome?
    3.  How frequently do suppliers submit samples to third party testing organization to test conformity of their products?
    4. To what extent has third party testing replaced in-house testing, and therefore not substantially increased the costs to manufacturers?
    5.  Could changes be made in third party testing procedures that would reduce the burden to crib manufacturers while still assuring compliance with the standards?
  4. Clarity and Duplication
    1.  Are there any aspects of the standards that are unclear?
    2.  Do any parts of the standards duplicate or conflict with other federal, state, or local government rules?
  5. Outreach and Advocacy
    1.  Are any suppliers of cribs unaware of the CPSC standards?  How can the CPSC more effectively communicate the standards to those suppliers?
    2.  Are there any cribs as small child care facilities or public accommodation facilities that do not meet the standards?  What can the CPSC do the increase awareness of the standards?

On November 12 ,2019 the Consumer Product Safety Commission (CPSC) Published a Supplemental Notice of Proposed Rulemaking Regarding Inclined Sleep Products for Infants (16 CFR 1226).

SUMMARY EXCERPT: In 2017 the CPSC published a Notice of Proposed Rulemaking (NPR) proposing to adopt a voluntary standard for inclined sleep products developed by ASTM International, with a modification to the standard’s definition of ‘‘accessory.’’ Based on subsequent information and events, the Commission is now issuing a supplemental proposed rule (Supplemental NPR), proposing to adopt the current ASTM standard for inclined sleep products, with modifications that would make the mandatory standard more stringent than the voluntary standard. The proposed changes include limiting the seat back angle for sleep to 10 degrees or less. CPSC’s proposed standard would cover products intended for infant sleep that are not already addressed by another standard. Additionally, the Commission proposes to include the mandatory standard for infant sleep products in the Commission’s list of notices of requirements (NORs). The Commission also proposes to amend the consumer registration rule to identify explicitly infant sleep products as a durable infant or toddler product subject to CPSC’s consumer registration requirements.

DATES: Comments should be submitted by January 27, 2020.

On June 18, the CPSC Published Its Final Rule Safety Standard on Stationary Activity Centers, [(SACs) (16 CFR 1112 and 1238)]

DATES:  The rule will become effective on December 18, 2019. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of December 18, 2019.

PRODUCT DESCRIPTION:

ASTM F2012–18?1 defines an SAC as ‘‘a freestanding product intended to remain stationary that enables a sitting or standing occupant whose torso is completely surrounded by the product to walk, rock, play, spin or bounce, or all of these, within a limited range of motion.’’ ASTM F2012–18?1, section 3.1.12. This definition does not include doorway jumpers.

BACKGROUND:

On June 19, 2018, the Commission issued a notice of proposed rulemaking (NPR), proposing to incorporate by reference the voluntary standard for SACs, ASTM F2012–18?1, without modifications. ASTM F2012–18?1 is still the current version of the standard.

In this final rule, the Commission incorporated by reference ASTM F2012– 18?1, with no modifications, as the mandatory safety standard for SACs. The CPSC staff had consulted with manufacturers, retailers, trade organizations, laboratories, consumer advocacy groups, consultants, and the public to develop this standard, largely through the ASTM standard- development process. In addition, this final rule amended the list of the requirements in 16 CFR part 1112.15(b) for third party conformity testing bodies to include the standard for SACs. This rule was based on information in CPSC staff’s briefing package, ‘‘Staff’s Draft Final Rule for Stationary Activity Centers Under the Danny Keysar Child Product Safety Notification Act,’’ which is available on CPSC’s website.