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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations
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performance requirements in international standards to demonstrate that products within the scope of the final rule have similar hazard patterns that can be addressed by the requirements in the bassinet standard.
Comment 42: A commenter states that the Commission previously recognized the importance of product specificity in promulgating the consumer registration rule, 16 CFR part 1130. Despite this, the commenter states that the 2019 SNPR
failed to discuss which product types would be considered durable infant or toddler products for product registration card purposes, and simply concludes in a circular fashion that infant sleep products are durable infant or toddler products. The commenter believes that a specific rationale is required for each product to independently qualify as a durable infant or toddler product. The commenter concludes that under the APA, CPSC must specifically define products that fall within an infant sleep product in another SNPR before it can issue a final rule.
Response 42: The preamble for the final rule identifies product types that fall within the scope of the rule.
However, the 2019 SNPR and the final rule purposely do not define product types by name in the regulation text, and instead identify product types by purpose and age limit, to ensure that all infant sleep products meet minimum safe sleep requirements in the bassinet standard, including existing products and future products.
Section 104f1 of the CPSIA does not require any further product type specificity to identify these products as durable infant or toddler products. The statute defines a durable infant or toddler product as a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years and then provides a list of products that are durable infant or toddler products. The Commissions implementing rule at 16
CFR 1130.2a states:
DEFINITION OF DURABLE INFANT OR
TODDLER PRODUCT means the following products intended for use, or that may be reasonably expected to be used, by children under the age of 5 years. The listed product categories are further defined in the applicable standards that the Commission issues under section 104b of the Consumer Product Safety Improvement Act of 2008, and include products that are combinations of the following product categories . . .

Based on this definition in part 1130, a product marketed or intended as a sleeping accommodation for an infant up to 5 months old is a durable infant or toddler product. Because the
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products are intended for infants up to 5 months old, the products are intended for use, and reasonably expected to be used, by children under 5 years old. Products intended for infant sleep are similar to products on the statutory list intended for infant sleep, such as cribs, and bassinets and cradles.
Additionally, infant sleep products are further defined in the final rule.
Accordingly, adding infant sleep products as a durable infant or toddler product is consistent with the Commissions approach of adding a durable infant or toddler product category with a mandatory standard to the list of products in part 1130, to clarify that these products must meet the consumer registration rule, and the testing and certification requirements for durable infant or toddler products.
Comment 43: A commenter contends that the creation of specific types of infant sleep products is not by the Commissions choice, but required by section 104 of the CPSIA. The commenter states that Congress purposely listed different types of infant sleep products separately in section 104, because differences between these products warrant individual consideration in any rulemaking proceeding, and that this principle is true with the remaining infant sleep product types.
Response 43: The commenter offers no legislative history to support the idea that Congress listed sleep products separately because product differences warranted individual rulemaking proceedings. The products listed as durable infant or toddler products are examples of durable infant or toddler products that Congress expected the Commission to regulate by issuing a mandatory standard. Most of these products had existing voluntary standards in 2008 when Congress passed the CPSIA. Congress gave CPSC
the authority to add products to the list of durable infant or toddler products, gave CPSC the mission to protect consumers, and instructed CPSC to periodically review and revise the standards set forth under this subsection to ensure that such standards provide the highest level of safety for such products that is feasible.
Flat sleep products that are subject to the final rule are not currently defined or covered by any existing ASTM
standard. If CPSC could not use its authority to expand the scope of a rule to include such products, especially when staffs analysis demonstrates that the existing bassinets and cradles standard would address the risk of injury associated with such products, ASTM could dictate when and if
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durable infant or toddler products are regulated by CPSC. Similarly, when products fall within an ASTM standard, CPSC should not be bound by ASTMs categorization of such products if CSPC
can demonstrate that the voluntary standard is inadequate to address the risk of injury associated with the products, but another voluntary standard would be adequate.
Comment 44: A commenter states that CPSC must not only specifically identify product types that fall within the infant sleep product category, but must also provide the rationale for applying the bassinet and cradle standard requirements to each product type within the category, as well as establishing the product type is a durable infant or toddler product. The commenter contends that this analysis must identify the specific characteristics for each product type and the related hazards, to describe how the bassinet standard would address each hazard pattern. The commenter contends that a requirement that may be applicable to one product type may not be applicable to another product type. The commenter contends that no broad product category to date has ever been subject to a rule without such specificity. The commenter states this level of specificity is required to avoid banning existing safe products or chilling future innovation.
Response 44: As set forth in response to comment 34, the 2019 SNPR
provided notice that the rulemaking included flat infant sleep products, and multiple other efforts, including those at ASTM, reinforced this. In response to comments, the preamble to this final rule provides further clarity, identifying product types that fall within the scope of the rule, including inclined and flat sleep products, as well associated incident data and hazard patterns. This final rule also provides an analysis demonstrating that the requirements of the bassinet standard are adequate to address each risk of injury associated with infant sleep products, both flat and inclined product types. As set forth in response to comment 39, we disagree that a rule under section 104 of the CPSIA cannot have a scope that is broader than one product type. For example, many types of carriages and strollers fall within the Safety Standard for Carriage and Strollers. Strollers offered for sale in the United States must meet the requirements in this regulation, regardless of product type.
The Commissions statutory mandate under section 104 of the CPSIA is to ensure that durable infant or toddler product standards provide the highest level of safety for such products that is
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