Safety Standard for Bedside Sleepers, 29820-29825 [2023-09772]

Download as PDF 29820 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations Issued in College Park, Georgia, on May 3, 2023. Lisa E. Burrows, Manager, Airspace & Procedures Team North, Eastern Service Center, Air Traffic Organization. [FR Doc. 2023–09800 Filed 5–8–23; 8:45 am] BILLING CODE 4910–13–P CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1222 [Docket No. CPSC–2012–0067] Safety Standard for Bedside Sleepers Consumer Product Safety Commission. ACTION: Direct final rule. AGENCY: In January 2014, the U.S. Consumer Product Safety Commission (CPSC or Commission) published a consumer product safety standard for bedside sleepers pursuant to section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The Commission’s mandatory standard incorporated by reference the ASTM voluntary standard that was in effect for bedside sleepers at the time, with modifications to further reduce the risk of injury associated with bedside sleepers. The CPSIA sets forth a process for updating mandatory standards for durable infant or toddler products that are based on a voluntary standard, when a voluntary standards organization revises the standard. On February 6, 2023, ASTM notified CPSC that it had published a revised voluntary standard for bedside sleepers. This direct final rule updates the mandatory standard for bedside sleepers to incorporate by reference ASTM’s 2023 version of the voluntary standard for bedside sleepers. DATES: The rule is effective on August 5, 2023, unless the Commission receives a significant adverse comment by June 8, 2023. If the Commission receives such a comment, it will publish a document in the Federal Register, withdrawing this direct final rule before its effective date. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of August 5, 2023. ddrumheller on DSK120RN23PROD with RULES1 SUMMARY: You can submit comments, identified by Docket No. CPSC–2012– 0067, 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. ADDRESSES: VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 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. Mail/Hand Delivery/Courier/ Confidential 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: cpsc-os@cpsc.gov. 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/ confidential 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–2012–0067, into the ‘‘Search’’ box, and follow the prompts. 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: sbo@cpsc.gov. SUPPLEMENTARY INFORMATION: I. Statutory Authority and Background A. Statutory Authority 1 Section 104(b)(1) of the CPSIA requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products and 1 On April 28, 2023, the Commission voted (4–0) to publish this direct final rule. This direct final rule is based on information and analysis contained in the April 19, 2023, Staff Briefing Package: ASTM’s Notice of a Revised Voluntary Standard for Bedside Sleepers (16 CFR part 1222) (Staff Briefing Package), available at: https://www.cpsc.gov/s3fspublic/ASTMs-Notice-of-a-Revised-VoluntaryStandard-for-Bedside-Sleepers.pdf?VersionId= slWQp6PbnV.76OOoDX63S_oMPxKX7IGD. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 to adopt mandatory standards for those products. 15 U.S.C. 2056a(b)(1). The mandatory standard must be ‘‘substantially the same as’’ the voluntary standard, or it may be ‘‘more stringent than’’ the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Id. Section 104(b)(4)(B) of the CPSIA also specifies the process for when a voluntary standards organization revises a standard that the Commission has incorporated by reference under section 104(b)(1). 15 U.S.C. 2056a(b)(4)(B). First, the voluntary standards organization must notify the Commission of its revised voluntary standard. Once the Commission receives that notification, the Commission may reject or accept the revised voluntary standard. The Commission may reject the revised standard by responding to the voluntary standards organization, within 90 days of receiving notification, that it has determined that the revised voluntary standard does not improve the safety of the consumer product covered by the standard, and that the Commission is retaining the existing mandatory standard. If the Commission does not take this action to reject the revised voluntary standard, then the revised voluntary standard will be considered a consumer product safety standard issued under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the Commission received notification of the revision (or a later date specified by the Commission in the Federal Register). 15 U.S.C. 2056a(b)(4)(B). B. Bedside Sleepers A bedside sleeper is a durable infant or toddler product as defined in section 104(f), and is a type of bassinet. 84 FR 49948–49. Section 5.1 of ASTM F2906 states that bedside sleepers are subject to the requirements in ASTM F2194, Consumer Safety Specification for Bassinets and Cradles. Section 3.1.2 of ASTM F2906 defines a bedside sleeper as ‘‘a rigid frame assembly that may be combined with a fabric or mesh assembly, or both, used to function as sides, ends, or floor or a combination thereof, and that is intended to provide a sleeping environment for infants and is secured to an adult bed.’’ On January 15, 2014, under section 104 of the CPSIA, the Commission published the bedside sleeper rule codified in 16 CFR part 1222, which incorporates by reference ASTM F2906– 13, Standard Consumer Safety Specification for Bedside Sleepers, as the mandatory standard, with E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations modifications to the standard to further reduce the risk of injury. 79 FR 2581. The modifications in part 1222 changed references in ASTM F2906–13 from the voluntary standard for bassinets (ASTM F2194) to the mandatory standard for bassinets, codified at 16 CFR part 1218 (78 FR 63034 (Oct. 23, 2013)), because the voluntary and mandatory standards for bassinets were not aligned, and bedside sleepers must meet the requirements of the bassinet standard.2 CPSC has not updated the bedside sleeper rule since publishing the final rule in 2014. On February 6, 2023, ASTM notified the Commission that it had approved and published a newly revised version of the voluntary standard, ASTM F2906–23. ASTM also informed CPSC that they had previously published 2019 and 2022 versions of ASTM F2906, but the 2019 version reapproved the 2013 version, so there were no material changes between the 2013 and 2019 versions. As explained below, the 2022 version addressed height requirements for side rails in new bedside sleeper designs. ASTM did not notify CPSC of the 2019 or 2022 revisions. On February 17, 2023, the Commission published in the Federal Register a Notice of Availability, requesting comment on whether the revisions to the bedside sleeper voluntary standard improve the safety of bedside sleepers. 88 FR 10304. The public comment period closed on March 3, 2023. CPSC received two comments. One commenter (JPMA) supported updating the mandatory standard to incorporate by reference ASTM F2906– 23. The other commenter (a testing laboratory, SGS) alleged existing errors in ASTM F2906 that should be corrected, specifically in section 5.5 on testing of locking and latching devices, and sections 7.2, 7.3, and 7.4, related to marking and labeling. SGS stated that ddrumheller on DSK120RN23PROD with RULES1 2 Part 1222 replaces all references to ASTM F2194, Standard Consumer Safety Specification for Bassinets and Cradles, with 16 CFR part 1218, Safety Standard for Bassinets and Cradles. VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 these should be addressed to reduce confusion for test laboratories. This comment relates to material that is in the 2013 ASTM standard that part 1222 currently incorporates by reference, and the 2023 revision does not change. The comment therefore is outside the scope of this assessment of the 2022 and 2023 updates. However, the Commission intends that its staff will work with the ASTM subcommittee for bedside sleepers to address suggested clarifications in a future update. C. Revisions to the ASTM Bedside Sleeper Standard As detailed in section II of this preamble, in 2022 and 2023, ASTM revised the height requirements for side rails adjacent to an adult bed, to clarify requirements for newer designs of bedside sleepers that convert from a bassinet into a bedside sleeper. The Commission finds that ASTM F2906–23 improves the safety of bedside sleepers compared to ASTM F2906–13, and will allow this voluntary standard to become the new consumer product safety standard for bedside sleepers 180 days after notification, meaning as of August 5, 2023. However, consistent with the existing part 1222, the Commission will continue to replace ASTM F2906’s references to the voluntary standard for bassinets and cradles, ASTM F2194, with references to the mandatory standard for bassinets and cradles, 16 CFR part 1218. While revised § 1222.2(b) of the final rule contains non-substantive editorial changes that simplify how this substitution is codified, the Commission is maintaining references to part 1218 because the voluntary and mandatory standard for bassinets are not aligned and the mandatory standard supersedes the ASTM standard. II. Revisions to the Voluntary Standard for Bedside Sleepers, ASTM F2906 The ASTM standard for bedside sleepers includes performance requirements, test methods, and PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 29821 requirements for warning labels and instructional literature, to address hazards to infants associated with bedside sleepers. Following is a description and assessment of the changes to ASTM F2906 that were made in 2022 and 2023, as reflected in the 2023 version of the voluntary standard. A. Revisions to the Voluntary Standard Through 2022 Bedside sleepers traditionally had three side rails required to meet the height requirement of a bassinet, 7.5 inches, and one lower side rail required to have at least a 4-inch side height. The side rail with a lower side height was intended to be placed next to the adult bed. Currently, in 16 CFR part 1222, which incorporates by reference ASTM F2906–13, the entire side rail of the bedside sleeper next to the adult bed must have at least a 4-inch side height but also must be no higher than the adult bed mattress height. Sections 5.4 and 5.6 of ASTM F2906. In 2022, ASTM revised F2906 in response to newer bedside sleeper styles that had come onto the market. Some newer bedside sleepers can convert from a bassinet into a bedside sleeper; one of the side rails can be lowered from 7.5 inches to 4 inches and placed next to the adult bed. In some products, the entire side rail lowers to 4 inches, and in others, a portion of the side rail lowers to 4 inches, and a portion of the side rail remains fixed at 7.5 inches. One revision in ASTM F2906–22 was intended to clarify that newer bedside sleeper designs with a side rail that can be fully lowered to 4 inches, and a side rail that can be partially lowered to 4 inches (with the remainder of the rail at the 7.5-inch height), are both acceptable under the voluntary standard. ASTM revised section 5.6 of ASTM F2906 regarding the height requirement for lowered and fixed portions of a side rail next to the adult bed. ASTM deleted text that is crossed through and added the underlined text. BILLING CODE 6355–01–P E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations Thus, ASTM F2906–22 required that each of the 4 side rails of a bedside sleeper meet a side-height requirement: a partial low/lowered side height requirement of 4 inches next to the adult bed and otherwise a fixed side height requirement with a minimum of 7.5 inches.3 This revision would allow products to have a portion of the side rail at 7.5 inches. In this configuration the fixed-height side rails meet the 7.5inch side-height requirement, consistent with the Commission’s mandatory rule for bassinets. See 16 CFR part 1218. The lowered portion of the side rail is also required to be below the adult bed height and secured to, and flush with, the side of the adult bed. CPSC staff assesses that this configuration prevents positional asphyxia hazards due to head/neck entrapment over the lower side rail. The second revision in section 8.3.4 of ASTM F2906–22 conformed the instructional literature that accompanies bedside sleepers to the changes in section 5.6. ASTM added the underlined text. 8.3.4 To avoid death from the infant’s neck being caught on the top rail on the side that is next to the adult bed, the lowered portion of the top rail must be no higher than the adult bed mattress. B. 2023 Revisions to the Voluntary Standard BILLING CODE 6355–01–C side rail adjacent to an adult bed to be no less than 4 inches: 5.4 The bedside sleeper shall have a barrier around the entire perimeter of the occupant retention space. If a bedside sleeper is equipped with a side or end portion which is lower or partially lowers by any means, the height of the side rail in the lowest position shall be no less than 4 in. (10.2 cm) when measured from the top of the uncompressed bedside sleeper mattress to the top of the lowered side rail, when the mattress support is in its highest position. Section 5.4 of ASTM F2906, which has not changed since 2013, requires the lowered portion of a bedside sleeper 3 These requirements are continued in ASTM F2906–23 sections 5.4 and 5.1.1. VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\09MYR1.SGM 09MYR1 ER09MY23.025</GPH> C. Assessment of ASTM F2906–23 Revisions After publication of ASTM F2906–22, the ASTM subcommittee found that the revised section 5.6 exempting fixed side rails could be interpreted as allowing a fixed lower rail side to be above the adult bed mattress, posing a strangulation hazard if the infant’s neck is caught on this exposed rail that is less than 7.5 inches high. Accordingly, in ASTM F2960–23, ASTM further revised section 5.6 with the following changes compared to the 2022 version: ER09MY23.024</GPH> ddrumheller on DSK120RN23PROD with RULES1 29822 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations Table 1 compares side rail height requirements in section 5.6 of 16 CFR part 1222 (incorporating ASTM F2906– 29823 13) with those of the revised ASTM F2906–23. TABLE 1—SIDE-HEIGHT REQUIREMENTS IN 16 CFR PART 1222 AND ASTM F2906–23 16 CFR part 1222 (incorporating ASTM F2906–13) ASTM F2906–23 5.6 The bedside sleeper must provide a means to be secured to an adult bed and the top bed rail designed to be adjacent to the adult bed shall be at or below the acceptable adult bed height range specified in the instructional literature. 5.6 The bedside sleeper shall provide a means to be secured to an adult bed. The bedside sleeper rail that is designed to be adjacent to the adult bed shall be at or below the acceptable adult bed height range specified in the manufacturer’s instructions except for any portion of the rail that is 7.5 inches or higher when measured according to the side height requirement found in ASTM F2194. Based on the analysis in the Staff Briefing Package, the Commission determines that the revisions to the bedside sleeper voluntary standard made in ASTM F2906–23 are an improvement in safety relative to the 2013 version of the standard that is incorporated into the current rule, 16 CFR part 1222, because the revisions clarify the safety requirements for bedside sleeper side rails that use two different side heights for the rail next to the adult bed, allowing portions of the rail to be at an elevated height. This configuration was introduced into the marketplace without side-height provisions in the ASTM F2906–13 standard that specifically address this design feature. ASTM F2906–23 addresses such designs by specifying that the bedside sleeper side rail adjacent to the adult bed does not need to be one continuous rail as long as the side rail meets the height requirements in the revised ASTM F2906–23. ddrumheller on DSK120RN23PROD with RULES1 III. Incorporation by Reference Section 1222.2(a) of the direct final rule incorporates by reference ASTM F2906–23. In accordance with regulations of the Office of the Federal Register (OFR), 1 CFR 51.5(b), section II of this preamble, Revisions to the Voluntary Standard for Bedside Sleepers, ASTM F2906, summarizes the revised provisions of ASTM F2906–23 that the Commission incorporates by reference into 16 CFR part 1222. The standard is reasonably available to interested parties in several ways. Until the direct final rule takes effect, a readonly copy of ASTM F2906–23 is available for viewing on ASTM’s website at: https://www.astm.org/ CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing on the ASTM website at: https://www.astm.org/ READINGLIBRARY/. Additionally, interested parties can purchase a copy of ASTM F2906–23 from ASTM International, 100 Barr Harbor Drive, VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 P.O. Box C700, West Conshohocken, PA 19428–2959 USA; phone: 610–832– 9585; www.astm.org. Finally, interested parties can schedule an appointment to inspect a copy of the standard at CPSC’s Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, telephone: 301–504–7479; email: cpscos@cpsc.gov. IV. Testing and Certification Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051–2089) requires manufacturers, including importers, of products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the products comply with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children’s products, on tests of a sufficient number of samples by a third party conformity assessment body accredited by CPSC to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are ‘‘consumer product safety standards.’’ Thus, they are subject to the testing and certification requirements of section 14 of the CPSA. Additionally, because bedside sleepers are children’s products, a CPSC-accepted third party conformity assessment body must test samples of the products for compliance with 16 CFR part 1222. Products subject to part 1222 also must be compliant with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA,4 the phthalates prohibitions in section 108 of the CPSIA 5 and 16 CFR part 1307, the tracking label requirements in section 4 15 5 15 PO 00000 U.S.C. 1278a. U.S.C. 2057c. Frm 00009 Fmt 4700 14(a)(5) of the CPSA,6 and the consumer registration form requirements in section 104(d) of the CPSIA.7 In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the Commission previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies (third party labs) for testing bedside sleepers, and codified the requirement at 16 CFR 1112.15(b)(35). The modified requirements for bedside sleepers in ASTM F2906–23 use testing requirements that are substantially the same as existing requirements for evaluating side rail height compliance. Accordingly, the revisions in ASTM F2906–23 do not require that labs obtain additional test equipment or new training. The Commission considers third party labs that are currently CPSC-accepted for 16 CFR part 1222 to have demonstrated competence to test bedside sleepers to the revised ASTM F2906–23, as incorporated into part 1222. Accordingly, the existing accreditations that the Commission has accepted for testing to this standard will cover testing to the revised standard. The existing NOR for the Safety Standard for Bedside Sleepers will remain in place, and CPSC-accepted third party labs are expected to update the scope of their accreditations to reflect the revised bedside sleepers standard in the normal course of renewing their accreditations. V. Direct Final Rule Process The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551–559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency ‘‘for good cause finds’’ that notice and comment are ‘‘impracticable, 6 15 7 15 Sfmt 4700 U.S.C. 2063(a)(5). U.S.C. 2056a(d). E:\FR\FM\09MYR1.SGM 09MYR1 ddrumheller on DSK120RN23PROD with RULES1 29824 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations unnecessary, or contrary to the public interest.’’ Id. 553(b)(B). The purpose of this direct final rule is to update the reference in the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F2906–23 would take effect as the new CPSC standard for bedside sleepers in the absence of any action by the Commission. Thus, public comments would not lead to substantive changes to the standard or to the effect of the revised standard as a consumer product safety rule under section 104(b) of the CPSIA. Under these circumstances, notice and comment are unnecessary. In Recommendation 95–4, the Administrative Conference of the United States (ACUS) endorses direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the ‘‘unnecessary’’ prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments. We note that CPSC did not receive any adverse comments about the requirements in this update based on the Notice of Availability, as reviewed in section I.B of this preamble. Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on August 5, 2023. In accordance with ACUS’s recommendation, the Commission considers a significant adverse comment to be ‘‘one where the commenter explains why the rule would be inappropriate,’’ including an assertion that undermines ‘‘the rule’s underlying premise or approach’’ or a showing that the rule ‘‘would be ineffective or unacceptable without change.’’ 60 FR 43108, 43111. As noted, this rule updates a reference in the CFR to reflect a change that occurs by statute. If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing a further opportunity for public comment. VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 VI. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA; 5 U.S.C. 601–612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section V of this preamble regarding the Direct Final Rule Process, the Commission has determined that notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. The Commission also notes the limited nature of this document, which updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA. VII. Paperwork Reduction Act The current mandatory standard for bedside sleepers includes requirements for marking, labeling, and instructional literature that constitute a ‘‘collection of information,’’ as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501–3521). The revised mandatory standard for bedside sleepers does not alter these requirements. The Commission took the steps required by the PRA for information collections when it adopted 16 CFR part 1222, including obtaining approval and a control number, which have now been incorporated into the collection for Third Party Testing of Children’s Products, Office of Management and Budget (OMB) Control No. 3041–0159. Because the information collection is unchanged, the revision does not affect the information collection requirements or approval related to the standard. VIII. Environmental Considerations The Commission’s regulations provide for a categorical exclusion from any requirement to prepare an environmental assessment or an environmental impact statement where they ‘‘have little or no potential for affecting the human environment.’’ 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required. IX. Preemption Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued under that provision ‘‘consumer product safety standards.’’ Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA. X. Effective Date Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard 180 days after notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register. 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those actions with respect to the revised standard for bedside sleepers. Therefore, ASTM F2906–23 automatically will take effect as the new mandatory standard for bedside sleepers on August 5, 2023, 180 days after the Commission received notice of the revision. As a direct final rule, unless the Commission receives a significant adverse comment within 30 days of this notification, the rule will become effective on August 5, 2023. XI. Congressional Review Act The Congressional Review Act (CRA; 5 U.S.C. 801–808) states that before a rule may 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). The CRA submission must indicate whether the rule is a ‘‘major rule.’’ The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a ‘‘major rule.’’ Pursuant to the CRA, OIRA has determined that this rule does not qualify as a ‘‘major rule,’’ as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General. List of Subjects in 16 CFR Part 1222 Consumer protection, Imports, Incorporation by reference, Infants and E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 88, No. 89 / Tuesday, May 9, 2023 / Rules and Regulations children, Labeling, Law enforcement, Safety, Toys. For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows: PART 1222—SAFETY STANDARD FOR BEDSIDE SLEEPERS 1. Revise the authority citation for part 1222 to read as follows: ■ Authority: 15 U.S.C. 2056a. ■ 2. Revise § 1222.2 to read as follows: (b) Each bedside sleeper shall comply with the ASTM F2906–23 standard except in sections 2.1, 5.1, 5.6, 7.1, and 8.1 of ASTM F2906–23, replace both ‘‘F2194 Consumer Safety Specification for Bassinets and Cradles’’ and ‘‘Consumer Specification F2194,’’ with ‘‘16 CFR part 1218 Safety Standard for Bassinets and Cradles.’’ Pamela J. Stone, Acting Secretary, Consumer Product Safety Commission. [FR Doc. 2023–09772 Filed 5–8–23; 8:45 am] § 1222.2 Requirements for bedside sleepers. BILLING CODE 6355–01–P (a) Except as provided in paragraph (b) of this section, each bedside sleeper shall comply with all applicable provisions of ASTM F2906–23, Standard Consumer Safety Specification for Bedside Sleepers, approved on January 1, 2023. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for inspection at the U.S. Consumer Product Safety Commission and at the National Archives and Records Administration (NARA). Contact the U.S. Consumer Product Safety Commission at: the Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, telephone (301) 504–7479, email: cpscos@cpsc.gov. For information on the availability of this material at NARA, email fr.inspection@nara.gov, or go to: www.archives.gov/federal-register/cfr/ ibr-locations.html. A free, read-only copy of the standard is available for viewing on the ASTM website at https:// www.astm.org/READINGLIBRARY/. You may also obtain a copy from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428–2959; phone: (610) 832–9585; www.astm.org. ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2022–0102; FRL–10369– 02–R9] Air Plan Approval; Bay Area Air Quality Management District; Nonattainment New Source Review; 2015 Ozone Standard Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve a state implementation plan (SIP) revision submitted by the State of California addressing the nonattainment new source review (NNSR) requirements for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS). This SIP revision addresses the Bay Area Air Quality Management District (BAAQMD or ‘‘District’’) portion of the California SIP. This action is being taken pursuant to the Clean Air Act (CAA or ‘‘Act’’) and its implementing regulations. DATES: This rule is effective on June 8, 2023. SUMMARY: 29825 The EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2022–0102. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https:// www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information. If you need assistance in a language other than English or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. ADDRESSES: PoChieh Ting, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972–3191 or by email at ting.pochieh@epa.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to the EPA. Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action On December 23, 2022 (87 FR 78900), the EPA proposed to approve the SIP revision listed in Table 1 of this document, addressing the NNSR requirements for the 2015 ozone NAAQS for the BAAQMD. ddrumheller on DSK120RN23PROD with RULES1 TABLE 1—SUBMITTED CERTIFICATION LETTER District Adoption date Submittal date Bay Area Air Quality Management District (BAAQMD) .............................................................................. 9/1/2021 10/6/2021 We proposed approval of the submitted SIP revision because we determined that the 2015 ozone certification submitted by the District fulfills the 40 CFR 51.1314 revision requirement and meets the requirements of CAA section 110 and the minimum SIP requirements of 40 CFR 51.165. Our proposed action contains more information on the SIP revision and our evaluation. VerDate Sep<11>2014 17:00 May 08, 2023 Jkt 259001 II. Public Comments and EPA Responses The EPA’s proposed action provided a 30-day public comment period. During this period, we received no comments. III. EPA Action No comments were submitted during the 30-day public comment period. Therefore, as authorized in section PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 110(k)(3) of the Act, the EPA is approving this certification into the California SIP as proposed. IV. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); E:\FR\FM\09MYR1.SGM 09MYR1

Agencies

[Federal Register Volume 88, Number 89 (Tuesday, May 9, 2023)]
[Rules and Regulations]
[Pages 29820-29825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09772]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1222

[Docket No. CPSC-2012-0067]


Safety Standard for Bedside Sleepers

AGENCY: Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: In January 2014, the U.S. Consumer Product Safety Commission 
(CPSC or Commission) published a consumer product safety standard for 
bedside sleepers pursuant to section 104 of the Consumer Product Safety 
Improvement Act of 2008 (CPSIA). The Commission's mandatory standard 
incorporated by reference the ASTM voluntary standard that was in 
effect for bedside sleepers at the time, with modifications to further 
reduce the risk of injury associated with bedside sleepers. The CPSIA 
sets forth a process for updating mandatory standards for durable 
infant or toddler products that are based on a voluntary standard, when 
a voluntary standards organization revises the standard. On February 6, 
2023, ASTM notified CPSC that it had published a revised voluntary 
standard for bedside sleepers. This direct final rule updates the 
mandatory standard for bedside sleepers to incorporate by reference 
ASTM's 2023 version of the voluntary standard for bedside sleepers.

DATES: The rule is effective on August 5, 2023, unless the Commission 
receives a significant adverse comment by June 8, 2023. If the 
Commission receives such a comment, it will publish a document in the 
Federal Register, withdrawing this direct final rule before its 
effective date. The incorporation by reference of the publication 
listed in this rule is approved by the Director of the Federal Register 
as of August 5, 2023.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2012-
0067, 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.
    Mail/Hand Delivery/Courier/Confidential 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/confidential 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-2012-0067, into the ``Search'' box, and follow the 
prompts.

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: 

I. Statutory Authority and Background

A. Statutory Authority \1\
---------------------------------------------------------------------------

    \1\ On April 28, 2023, the Commission voted (4-0) to publish 
this direct final rule. This direct final rule is based on 
information and analysis contained in the April 19, 2023, Staff 
Briefing Package: ASTM's Notice of a Revised Voluntary Standard for 
Bedside Sleepers (16 CFR part 1222) (Staff Briefing Package), 
available at: https://www.cpsc.gov/s3fs-public/ASTMs-Notice-of-a-Revised-Voluntary-Standard-for-Bedside-Sleepers.pdf?VersionId=slWQp6PbnV.76OOoDX63S_oMPxKX7IGD.
---------------------------------------------------------------------------

    Section 104(b)(1) of the CPSIA requires the Commission to assess 
the effectiveness of voluntary standards for durable infant or toddler 
products and to adopt mandatory standards for those products. 15 U.S.C. 
2056a(b)(1). The mandatory standard must be ``substantially the same 
as'' the voluntary standard, or it may be ``more stringent than'' the 
voluntary standard, if the Commission determines that more stringent 
requirements would further reduce the risk of injury associated with 
the product. Id.
    Section 104(b)(4)(B) of the CPSIA also specifies the process for 
when a voluntary standards organization revises a standard that the 
Commission has incorporated by reference under section 104(b)(1). 15 
U.S.C. 2056a(b)(4)(B). First, the voluntary standards organization must 
notify the Commission of its revised voluntary standard. Once the 
Commission receives that notification, the Commission may reject or 
accept the revised voluntary standard. The Commission may reject the 
revised standard by responding to the voluntary standards organization, 
within 90 days of receiving notification, that it has determined that 
the revised voluntary standard does not improve the safety of the 
consumer product covered by the standard, and that the Commission is 
retaining the existing mandatory standard. If the Commission does not 
take this action to reject the revised voluntary standard, then the 
revised voluntary standard will be considered a consumer product safety 
standard issued under section 9 of the Consumer Product Safety Act (15 
U.S.C. 2058), effective 180 days after the Commission received 
notification of the revision (or a later date specified by the 
Commission in the Federal Register). 15 U.S.C. 2056a(b)(4)(B).

B. Bedside Sleepers

    A bedside sleeper is a durable infant or toddler product as defined 
in section 104(f), and is a type of bassinet. 84 FR 49948-49. Section 
5.1 of ASTM F2906 states that bedside sleepers are subject to the 
requirements in ASTM F2194, Consumer Safety Specification for Bassinets 
and Cradles. Section 3.1.2 of ASTM F2906 defines a bedside sleeper as 
``a rigid frame assembly that may be combined with a fabric or mesh 
assembly, or both, used to function as sides, ends, or floor or a 
combination thereof, and that is intended to provide a sleeping 
environment for infants and is secured to an adult bed.''
    On January 15, 2014, under section 104 of the CPSIA, the Commission 
published the bedside sleeper rule codified in 16 CFR part 1222, which 
incorporates by reference ASTM F2906-13, Standard Consumer Safety 
Specification for Bedside Sleepers, as the mandatory standard, with

[[Page 29821]]

modifications to the standard to further reduce the risk of injury. 79 
FR 2581. The modifications in part 1222 changed references in ASTM 
F2906-13 from the voluntary standard for bassinets (ASTM F2194) to the 
mandatory standard for bassinets, codified at 16 CFR part 1218 (78 FR 
63034 (Oct. 23, 2013)), because the voluntary and mandatory standards 
for bassinets were not aligned, and bedside sleepers must meet the 
requirements of the bassinet standard.\2\
---------------------------------------------------------------------------

    \2\ Part 1222 replaces all references to ASTM F2194, Standard 
Consumer Safety Specification for Bassinets and Cradles, with 16 CFR 
part 1218, Safety Standard for Bassinets and Cradles.
---------------------------------------------------------------------------

    CPSC has not updated the bedside sleeper rule since publishing the 
final rule in 2014. On February 6, 2023, ASTM notified the Commission 
that it had approved and published a newly revised version of the 
voluntary standard, ASTM F2906-23. ASTM also informed CPSC that they 
had previously published 2019 and 2022 versions of ASTM F2906, but the 
2019 version reapproved the 2013 version, so there were no material 
changes between the 2013 and 2019 versions. As explained below, the 
2022 version addressed height requirements for side rails in new 
bedside sleeper designs. ASTM did not notify CPSC of the 2019 or 2022 
revisions.
    On February 17, 2023, the Commission published in the Federal 
Register a Notice of Availability, requesting comment on whether the 
revisions to the bedside sleeper voluntary standard improve the safety 
of bedside sleepers. 88 FR 10304. The public comment period closed on 
March 3, 2023. CPSC received two comments. One commenter (JPMA) 
supported updating the mandatory standard to incorporate by reference 
ASTM F2906-23. The other commenter (a testing laboratory, SGS) alleged 
existing errors in ASTM F2906 that should be corrected, specifically in 
section 5.5 on testing of locking and latching devices, and sections 
7.2, 7.3, and 7.4, related to marking and labeling. SGS stated that 
these should be addressed to reduce confusion for test laboratories. 
This comment relates to material that is in the 2013 ASTM standard that 
part 1222 currently incorporates by reference, and the 2023 revision 
does not change. The comment therefore is outside the scope of this 
assessment of the 2022 and 2023 updates. However, the Commission 
intends that its staff will work with the ASTM subcommittee for bedside 
sleepers to address suggested clarifications in a future update.

C. Revisions to the ASTM Bedside Sleeper Standard

    As detailed in section II of this preamble, in 2022 and 2023, ASTM 
revised the height requirements for side rails adjacent to an adult 
bed, to clarify requirements for newer designs of bedside sleepers that 
convert from a bassinet into a bedside sleeper. The Commission finds 
that ASTM F2906-23 improves the safety of bedside sleepers compared to 
ASTM F2906-13, and will allow this voluntary standard to become the new 
consumer product safety standard for bedside sleepers 180 days after 
notification, meaning as of August 5, 2023. However, consistent with 
the existing part 1222, the Commission will continue to replace ASTM 
F2906's references to the voluntary standard for bassinets and cradles, 
ASTM F2194, with references to the mandatory standard for bassinets and 
cradles, 16 CFR part 1218. While revised Sec.  1222.2(b) of the final 
rule contains non-substantive editorial changes that simplify how this 
substitution is codified, the Commission is maintaining references to 
part 1218 because the voluntary and mandatory standard for bassinets 
are not aligned and the mandatory standard supersedes the ASTM 
standard.

II. Revisions to the Voluntary Standard for Bedside Sleepers, ASTM 
F2906

    The ASTM standard for bedside sleepers includes performance 
requirements, test methods, and requirements for warning labels and 
instructional literature, to address hazards to infants associated with 
bedside sleepers. Following is a description and assessment of the 
changes to ASTM F2906 that were made in 2022 and 2023, as reflected in 
the 2023 version of the voluntary standard.

A. Revisions to the Voluntary Standard Through 2022

    Bedside sleepers traditionally had three side rails required to 
meet the height requirement of a bassinet, 7.5 inches, and one lower 
side rail required to have at least a 4-inch side height. The side rail 
with a lower side height was intended to be placed next to the adult 
bed. Currently, in 16 CFR part 1222, which incorporates by reference 
ASTM F2906-13, the entire side rail of the bedside sleeper next to the 
adult bed must have at least a 4-inch side height but also must be no 
higher than the adult bed mattress height. Sections 5.4 and 5.6 of ASTM 
F2906.
    In 2022, ASTM revised F2906 in response to newer bedside sleeper 
styles that had come onto the market. Some newer bedside sleepers can 
convert from a bassinet into a bedside sleeper; one of the side rails 
can be lowered from 7.5 inches to 4 inches and placed next to the adult 
bed. In some products, the entire side rail lowers to 4 inches, and in 
others, a portion of the side rail lowers to 4 inches, and a portion of 
the side rail remains fixed at 7.5 inches.
    One revision in ASTM F2906-22 was intended to clarify that newer 
bedside sleeper designs with a side rail that can be fully lowered to 4 
inches, and a side rail that can be partially lowered to 4 inches (with 
the remainder of the rail at the 7.5-inch height), are both acceptable 
under the voluntary standard. ASTM revised section 5.6 of ASTM F2906 
regarding the height requirement for lowered and fixed portions of a 
side rail next to the adult bed. ASTM deleted text that is crossed 
through and added the underlined text.
BILLING CODE 6355-01-P

[[Page 29822]]

[GRAPHIC] [TIFF OMITTED] TR09MY23.024

    Thus, ASTM F2906-22 required that each of the 4 side rails of a 
bedside sleeper meet a side-height requirement: a partial low/lowered 
side height requirement of 4 inches next to the adult bed and otherwise 
a fixed side height requirement with a minimum of 7.5 inches.\3\ This 
revision would allow products to have a portion of the side rail at 7.5 
inches. In this configuration the fixed-height side rails meet the 7.5-
inch side-height requirement, consistent with the Commission's 
mandatory rule for bassinets. See 16 CFR part 1218. The lowered portion 
of the side rail is also required to be below the adult bed height and 
secured to, and flush with, the side of the adult bed. CPSC staff 
assesses that this configuration prevents positional asphyxia hazards 
due to head/neck entrapment over the lower side rail.
---------------------------------------------------------------------------

    \3\ These requirements are continued in ASTM F2906-23 sections 
5.4 and 5.1.1.
---------------------------------------------------------------------------

    The second revision in section 8.3.4 of ASTM F2906-22 conformed the 
instructional literature that accompanies bedside sleepers to the 
changes in section 5.6. ASTM added the underlined text.
    8.3.4 To avoid death from the infant's neck being caught on the top 
rail on the side that is next to the adult bed, the lowered portion of 
the top rail must be no higher than the adult bed mattress.

B. 2023 Revisions to the Voluntary Standard

    After publication of ASTM F2906-22, the ASTM subcommittee found 
that the revised section 5.6 exempting fixed side rails could be 
interpreted as allowing a fixed lower rail side to be above the adult 
bed mattress, posing a strangulation hazard if the infant's neck is 
caught on this exposed rail that is less than 7.5 inches high. 
Accordingly, in ASTM F2960-23, ASTM further revised section 5.6 with 
the following changes compared to the 2022 version:
[GRAPHIC] [TIFF OMITTED] TR09MY23.025

BILLING CODE 6355-01-C

C. Assessment of ASTM F2906-23 Revisions

    Section 5.4 of ASTM F2906, which has not changed since 2013, 
requires the lowered portion of a bedside sleeper side rail adjacent to 
an adult bed to be no less than 4 inches:
    5.4 The bedside sleeper shall have a barrier around the entire 
perimeter of the occupant retention space. If a bedside sleeper is 
equipped with a side or end portion which is lower or partially lowers 
by any means, the height of the side rail in the lowest position shall 
be no less than 4 in. (10.2 cm) when measured from the top of the 
uncompressed bedside sleeper mattress to the top of the lowered side 
rail, when the mattress support is in its highest position.

[[Page 29823]]

    Table 1 compares side rail height requirements in section 5.6 of 16 
CFR part 1222 (incorporating ASTM F2906-13) with those of the revised 
ASTM F2906-23.

 Table 1--Side-Height Requirements in 16 CFR Part 1222 and ASTM F2906-23
------------------------------------------------------------------------
  16 CFR part 1222 (incorporating ASTM
               F2906-13)                          ASTM F2906-23
------------------------------------------------------------------------
5.6 The bedside sleeper must provide a   5.6 The bedside sleeper shall
 means to be secured to an adult bed      provide a means to be secured
 and the top bed rail designed to be      to an adult bed. The bedside
 adjacent to the adult bed shall be at    sleeper rail that is designed
 or below the acceptable adult bed        to be adjacent to the adult
 height range specified in the            bed shall be at or below the
 instructional literature.                acceptable adult bed height
                                          range specified in the
                                          manufacturer's instructions
                                          except for any portion of the
                                          rail that is 7.5 inches or
                                          higher when measured according
                                          to the side height requirement
                                          found in ASTM F2194.
------------------------------------------------------------------------

    Based on the analysis in the Staff Briefing Package, the Commission 
determines that the revisions to the bedside sleeper voluntary standard 
made in ASTM F2906-23 are an improvement in safety relative to the 2013 
version of the standard that is incorporated into the current rule, 16 
CFR part 1222, because the revisions clarify the safety requirements 
for bedside sleeper side rails that use two different side heights for 
the rail next to the adult bed, allowing portions of the rail to be at 
an elevated height. This configuration was introduced into the 
marketplace without side-height provisions in the ASTM F2906-13 
standard that specifically address this design feature. ASTM F2906-23 
addresses such designs by specifying that the bedside sleeper side rail 
adjacent to the adult bed does not need to be one continuous rail as 
long as the side rail meets the height requirements in the revised ASTM 
F2906-23.

III. Incorporation by Reference

    Section 1222.2(a) of the direct final rule incorporates by 
reference ASTM F2906-23. In accordance with regulations of the Office 
of the Federal Register (OFR), 1 CFR 51.5(b), section II of this 
preamble, Revisions to the Voluntary Standard for Bedside Sleepers, 
ASTM F2906, summarizes the revised provisions of ASTM F2906-23 that the 
Commission incorporates by reference into 16 CFR part 1222. The 
standard is reasonably available to interested parties in several ways. 
Until the direct final rule takes effect, a read-only copy of ASTM 
F2906-23 is available for viewing on ASTM's website at: https://www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of 
the standard will be available for viewing on the ASTM website at: 
https://www.astm.org/READINGLIBRARY/. Additionally, interested parties 
can purchase a copy of ASTM F2906-23 from ASTM International, 100 Barr 
Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; 
phone: 610-832-9585; www.astm.org. Finally, interested parties can 
schedule an appointment to inspect a copy of the standard at CPSC's 
Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 
East West Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: 
[email protected].

IV. Testing and Certification

    Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 
2051-2089) requires manufacturers, including importers, of products 
subject to a consumer product safety rule under the CPSA, or to a 
similar rule, ban, standard, or regulation under any other act enforced 
by the Commission, to certify that the products comply with all 
applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification 
must be based on a test of each product, or on a reasonable testing 
program, or, for children's products, on tests of a sufficient number 
of samples by a third party conformity assessment body accredited by 
CPSC to test according to the applicable requirements. As noted, 
standards issued under section 104(b)(1)(B) of the CPSIA are ``consumer 
product safety standards.'' Thus, they are subject to the testing and 
certification requirements of section 14 of the CPSA.
    Additionally, because bedside sleepers are children's products, a 
CPSC-accepted third party conformity assessment body must test samples 
of the products for compliance with 16 CFR part 1222. Products subject 
to part 1222 also must be compliant with all other applicable CPSC 
requirements, such as the lead content requirements in section 101 of 
the CPSIA,\4\ the phthalates prohibitions in section 108 of the CPSIA 
\5\ and 16 CFR part 1307, the tracking label requirements in section 
14(a)(5) of the CPSA,\6\ and the consumer registration form 
requirements in section 104(d) of the CPSIA.\7\ In accordance with 
section 14(a)(3)(B)(iv) of the CPSIA, the Commission previously 
published a notice of requirements (NOR) for accreditation of third 
party conformity assessment bodies (third party labs) for testing 
bedside sleepers, and codified the requirement at 16 CFR 
1112.15(b)(35).
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 1278a.
    \5\ 15 U.S.C. 2057c.
    \6\ 15 U.S.C. 2063(a)(5).
    \7\ 15 U.S.C. 2056a(d).
---------------------------------------------------------------------------

    The modified requirements for bedside sleepers in ASTM F2906-23 use 
testing requirements that are substantially the same as existing 
requirements for evaluating side rail height compliance. Accordingly, 
the revisions in ASTM F2906-23 do not require that labs obtain 
additional test equipment or new training. The Commission considers 
third party labs that are currently CPSC-accepted for 16 CFR part 1222 
to have demonstrated competence to test bedside sleepers to the revised 
ASTM F2906-23, as incorporated into part 1222. Accordingly, the 
existing accreditations that the Commission has accepted for testing to 
this standard will cover testing to the revised standard. The existing 
NOR for the Safety Standard for Bedside Sleepers will remain in place, 
and CPSC-accepted third party labs are expected to update the scope of 
their accreditations to reflect the revised bedside sleepers standard 
in the normal course of renewing their accreditations.

V. Direct Final Rule Process

    The Commission is issuing this rule as a direct final rule. 
Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) 
generally requires agencies to provide notice of a rule and an 
opportunity for interested parties to comment on it, section 553 of the 
APA provides an exception when the agency ``for good cause finds'' that 
notice and comment are ``impracticable,

[[Page 29824]]

unnecessary, or contrary to the public interest.'' Id. 553(b)(B).
    The purpose of this direct final rule is to update the reference in 
the Code of Federal Regulations (CFR) so that it reflects the version 
of the standard that takes effect by statute. This rule updates the 
reference in the CFR, but under the terms of the CPSIA, ASTM F2906-23 
would take effect as the new CPSC standard for bedside sleepers in the 
absence of any action by the Commission. Thus, public comments would 
not lead to substantive changes to the standard or to the effect of the 
revised standard as a consumer product safety rule under section 104(b) 
of the CPSIA. Under these circumstances, notice and comment are 
unnecessary.
    In Recommendation 95-4, the Administrative Conference of the United 
States (ACUS) endorses direct final rulemaking as an appropriate 
procedure to expedite rules that are noncontroversial and that are not 
expected to generate significant adverse comments. See 60 FR 43108 
(Aug. 18, 1995). ACUS recommends that agencies use the direct final 
rule process when they act under the ``unnecessary'' prong of the good 
cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS 
recommendation, the Commission is publishing this rule as a direct 
final rule, because CPSC does not expect any significant adverse 
comments. We note that CPSC did not receive any adverse comments about 
the requirements in this update based on the Notice of Availability, as 
reviewed in section I.B of this preamble.
    Unless CPSC receives a significant adverse comment within 30 days 
of this notification, the rule will become effective on August 5, 2023. 
In accordance with ACUS's recommendation, the Commission considers a 
significant adverse comment to be ``one where the commenter explains 
why the rule would be inappropriate,'' including an assertion that 
undermines ``the rule's underlying premise or approach'' or a showing 
that the rule ``would be ineffective or unacceptable without change.'' 
60 FR 43108, 43111. As noted, this rule updates a reference in the CFR 
to reflect a change that occurs by statute.
    If the Commission receives a significant adverse comment, the 
Commission will withdraw this direct final rule. Depending on the 
comment and other circumstances, the Commission may then incorporate 
the adverse comment into a subsequent direct final rule or publish a 
notice of proposed rulemaking, providing a further opportunity for 
public comment.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally 
requires agencies to review proposed and final rules for their 
potential economic impact on small entities, including small 
businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 
604. The RFA applies to any rule that is subject to notice and comment 
procedures under section 553 of the APA. Id. As discussed in section V 
of this preamble regarding the Direct Final Rule Process, the 
Commission has determined that notice and the opportunity to comment 
are unnecessary for this rule. Therefore, the RFA does not apply. The 
Commission also notes the limited nature of this document, which 
updates the incorporation by reference to reflect the mandatory CPSC 
standard that takes effect under section 104 of the CPSIA.

VII. Paperwork Reduction Act

    The current mandatory standard for bedside sleepers includes 
requirements for marking, labeling, and instructional literature that 
constitute a ``collection of information,'' as defined in the Paperwork 
Reduction Act (PRA; 44 U.S.C. 3501-3521). The revised mandatory 
standard for bedside sleepers does not alter these requirements. The 
Commission took the steps required by the PRA for information 
collections when it adopted 16 CFR part 1222, including obtaining 
approval and a control number, which have now been incorporated into 
the collection for Third Party Testing of Children's Products, Office 
of Management and Budget (OMB) Control No. 3041-0159. Because the 
information collection is unchanged, the revision does not affect the 
information collection requirements or approval related to the 
standard.

VIII. Environmental Considerations

    The Commission's regulations provide for a categorical exclusion 
from any requirement to prepare an environmental assessment or an 
environmental impact statement where they ``have little or no potential 
for affecting the human environment.'' 16 CFR 1021.5(c)(2). This rule 
falls within the categorical exclusion, so no environmental assessment 
or environmental impact statement is required.

IX. Preemption

    Section 26(a) of the CPSA provides that where a consumer product 
safety standard is in effect and applies to a product, no state or 
political subdivision of a state may either establish or continue in 
effect a requirement dealing with the same risk of injury unless the 
state requirement is identical to the Federal standard. 15 U.S.C. 
2075(a). Section 26(c) of the CPSA also provides that states or 
political subdivisions of states may apply to CPSC for an exemption 
from this preemption under certain circumstances. Section 104(b) of the 
CPSIA deems rules issued under that provision ``consumer product safety 
standards.'' Therefore, once a rule issued under section 104 of the 
CPSIA takes effect, it will preempt in accordance with section 26(a) of 
the CPSA.

X. Effective Date

    Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, 
when a voluntary standards organization revises a standard that the 
Commission adopted as a mandatory standard, the revision becomes the 
CPSC standard 180 days after notification to the Commission, unless the 
Commission determines that the revision does not improve the safety of 
the product, or the Commission sets a later date in the Federal 
Register. 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of 
those actions with respect to the revised standard for bedside 
sleepers. Therefore, ASTM F2906-23 automatically will take effect as 
the new mandatory standard for bedside sleepers on August 5, 2023, 180 
days after the Commission received notice of the revision. As a direct 
final rule, unless the Commission receives a significant adverse 
comment within 30 days of this notification, the rule will become 
effective on August 5, 2023.

XI. Congressional Review Act

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

List of Subjects in 16 CFR Part 1222

    Consumer protection, Imports, Incorporation by reference, Infants 
and

[[Page 29825]]

children, Labeling, Law enforcement, Safety, Toys.

    For the reasons discussed in the preamble, the Commission amends 16 
CFR chapter II as follows:

PART 1222--SAFETY STANDARD FOR BEDSIDE SLEEPERS

0
1. Revise the authority citation for part 1222 to read as follows:

    Authority: 15 U.S.C. 2056a.


0
2. Revise Sec.  1222.2 to read as follows:


Sec.  1222.2  Requirements for bedside sleepers.

    (a) Except as provided in paragraph (b) of this section, each 
bedside sleeper shall comply with all applicable provisions of ASTM 
F2906-23, Standard Consumer Safety Specification for Bedside Sleepers, 
approved on January 1, 2023. The Director of the Federal Register 
approves this incorporation by reference in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. This material is available for inspection at 
the U.S. Consumer Product Safety Commission and at the National 
Archives and Records Administration (NARA). Contact the U.S. Consumer 
Product Safety Commission at: the Office of the Secretary, U.S. 
Consumer Product Safety Commission, 4330 East West Highway, Bethesda, 
MD 20814, telephone (301) 504-7479, email: [email protected]. For 
information on the availability of this material at NARA, email 
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. A free, read-only copy of the standard is 
available for viewing on the ASTM website at https://www.astm.org/READINGLIBRARY/. You may also obtain a copy from ASTM International, 
100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; 
phone: (610) 832-9585; www.astm.org.
    (b) Each bedside sleeper shall comply with the ASTM F2906-23 
standard except in sections 2.1, 5.1, 5.6, 7.1, and 8.1 of ASTM F2906-
23, replace both ``F2194 Consumer Safety Specification for Bassinets 
and Cradles'' and ``Consumer Specification F2194,'' with ``16 CFR part 
1218 Safety Standard for Bassinets and Cradles.''

Pamela J. Stone,
Acting Secretary, Consumer Product Safety Commission.
[FR Doc. 2023-09772 Filed 5-8-23; 8:45 am]
BILLING CODE 6355-01-P
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