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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations
have been producing products for these alternative uses. At least nine small domestic companies and twelve small importers are likely to be significantly impacted because products in scope of this rule represent most or a substantial portion of their product line. Hundreds of home-based manufacturers based in the U.S. supply baby nests, baby pods, in-bed sleepers, hammocks, and crib hammocks are likely to be significantly impacted, although some may be able to relabel their items as not for sleep or for older children. If the products cannot be remarketed, many of these home-based manufacturers may eliminate infant sleep products from their product lines;
it also possible that a significant proportion may go out of business.
In summary, taking all of these factors into account, the final rule is likely to have a significant economic impact on a substantial number of small entities.

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G. Other Potential Impacts of the Final Rule The final rule would make it illegal to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States products not compliant with the rule 12 months after the publication of the rule in the Federal Register. This means that parents and other caregivers would not be able to purchase these items. The large volume of these products sold or home-made reflect that these products all address a demand for a compact sleep space for babies, so it is reasonable to assume that demand will continue for new or redesigned products that meet one of CPSCs sleep standards. As discussed earlier, products that are compliant with the current CPSC sleep standards are already widely available, provide compact sleep spaces, and are in the same general price range as the items covered by this rule.
Several public commenters suggested that this rule would cause caregivers to resort to less safe sleep solutions, such as putting infants to sleep in car seats, or using pillows to position infants on adult beds. Caregivers may already make home-made sleep places or misuse other types of products, and CPSC
is unaware of data to support the assertion that this rule would further encourage such practices. Directions for making home-made baby nests were widely available on the internet before CPSC published the 2017 NPR. The DNPES, which was done in 2014, found that a majority of parents were using products for sleep that are not marketed for sleep, such as swings, bouncer seats, and hand-held carriers at least once a
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week.46 In addition, many inclined products have already been removed from the market or relabeled as not for sleep since publication of the 2017 NPR.
While some of the inclined products may be remarketed as not for infant sleep, the final rule will provide parents and other caregivers clearer information as to the manufacturers intended safe use.
The effective date is a sold by date.
This means that retailers will need to sell or otherwise dispose of their stock by that date. Given that this rule has been in progress for several years through a notice and comment rulemaking, and that many of the inclined products have already been withdrawn from the market, this should not have a significant impact on small retailers.
This rule would require all infant sleep products not in the scope of other CPSC sleep standards to comply with this rule. This means that new products would have to comply with this rule, or one of the other sleep standards.
Suppliers may introduce new products that comply with any of those standards, such as an innovative bassinet design that meets all the requirements of the bassinet standard.
They may also work with ASTM to revise one of the ASTM sleep standards to cover their new product, and then CPSC could consider such revision as part of CPSCs procedures for accepting revisions to voluntary standards that are the basis for CPSC mandatory standards.
Suppliers of innovative products may also work with ASTM to develop a separate, new sleep standard, then seek to have CPSC codify the new ASTM
standard as a mandatory infant sleep standard under section 104 of the CPSIA.
H. Efforts to Minimize the Impact on Small Entities Alternatives CPSC has attempted to minimize the impact of the final rule on small entities by defining the scope of this rule to only include infant sleep products that are:
Not within the scope of another standard;
marketed or intended for infant sleep, including napping; and marketed or intended for use by children up to 5 months old.
These requirements provide small businesses the opportunity to remove their products from the scope of this 46 The DNPES reported that in households with children under 6, children slept in bouncer seats at least once a week in 70% of households that owned a bouncer seat, slept in swings at least once a week in 91% of households with a swing, and slept in hand-held carriers at least once a week in 87% of households with hand-held carriers.

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standard by marketing them as not intended for sleep, or only intended for use by older children, or for pets.
Companies can also redesign their products to meet the requirements of another standard, such as infant bouncer seats or hand-held carriers. In some cases where there is another use for the product, the only change required to make a product subject to one of these other standards is to relabel or remarket the product, removing any references to its use for sleeping.
CPSC also published an SNPR in 2019, which means firms have been aware of this rulemaking effort and have had several years to prepare for implementation of the final rule. Many companies that had inclined products that were in the scope of the 2017 NPR
have removed those products from the market since 2019, or remarketed them as loungers, bouncer seats, or other products not for sleep.
While the Commission has exempted small batch manufacturers from the testing requirements proposed under other rules, under Section 14d4Cii of the CPSA, the Commission cannot provide any alternative requirements or exemption from third party testing for durable infant or toddler products, as defined in section 104f of the CPSIA. Consequently, staff cannot recommend a small batch exemption for small baby nest and hammock homebased manufacturers absent a statutory change.
The ASTM F3118 committee considered wording that would allow manufacturers to choose whether to comply with F3118 or another ASTM
sleep standard, to allow innovative products to enter the market more easily. This final rule requires suppliers to comply with this rule or one of CPSC
mandatory standards for full-size cribs, non-full-size cribs, bassinets and cradles, play yards, or bedside sleepers.
The approach considered by ASTM to allow suppliers to choose other ASTM
sleep product standards would allow suppliers to sell products that did not meet an existing CPSC sleep standard, such as a drop side crib, so long as that product had a sleep surface incline of less than 10 degrees and otherwise complied with ASTM F3118. Staff did not recommend this approach, which would effectively allow potentially unsafe, non-compliant sleep products to re-enter the market.
Finally, the IRFA discussed allowing a later effective date. A later effective date would reduce the economic impact on firms in two ways. Firms would be less likely to experience a lapse in production/importation, which could result if they are unable to comply and
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