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[Federal Register Volume 78, Number 160 (Monday, August 19, 2013)]
[Rules and Regulations]
[Pages 50328-50335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19964]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1221

[CPSC Docket No. CPSC-2011-0064]
RIN 3041-AC92

Safety Standard for Play Yards

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The United States Consumer Product Safety Commission 
(Commission or CPSC or we) is issuing a final rule, amending the play 
yard mandatory standard. Currently, the CPSC play yard standard 
incorporates by reference ASTM F406-12a, Standard Consumer Safety 
Specification for Non-Full-Size Baby Cribs/Play Yards. In this final 
rule, the Commission is amending the play yard standard to incorporate 
by reference the most recent version of ASTM's play yard standard, ASTM 
F406-13. Through this amendment, the Commission is addressing hazards 
associated with misassembly of play yard bassinet accessories.

DATES: This rule will become effective on February 19, 2014 and will 
apply to all play yards manufactured or imported on or after that date. 
The incorporation by reference of the publication listed in this rule 
is approved by the Director of the Federal Register as of February 19, 
2014.

FOR FURTHER INFORMATION CONTACT: Justin Jirgl, Compliance Officer, 
Office of Compliance and Field Investigations, U.S. Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, MD 20814; email: 
jjirgl@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    On August 29, 2012, the Commission published a final rule 
establishing a CPSC safety standard for play yards. 77 FR 52220. On the 
same date, the Commission published a notice of proposed rulemaking 
(NPR), seeking comments on the addition of a requirement to the play 
yard mandatory standard to address the hazards associated with play 
yard bassinet accessories that can be assembled without key structural 
elements. 77 FR 52272. The NPR was prompted by the death of an infant 
in a play yard bassinet accessory, in which the end support rods, which 
attached two of the bassinet accessory's four sides to the play yard 
rails, were omitted during assembly. The other two sides were attached 
with plastic clips. After the infant was left to sleep, one of the 
plastic clips that attached the bassinet accessory to the play yard 
detached. Because the support rods were not in place to secure the 
bassinet accessory, the bassinet sleep surface tilted, and the infant 
slid into the corner of the tilted bassinet accessory and suffocated.
    In the August 2012 NPR, we proposed a provision that would require 
that all ``key structural elements'' be permanently attached to the 
bassinet accessory or pass the ``catastrophic failure test,'' which is 
described in more detail in section D of this preamble. In the August 
2012 NPR, the term ``key structural elements'' included all structures 
that attach the bassinet accessory to the play yard, as well as all 
structures that reinforce the bassinet accessory mattress by keeping it 
flat and stable, such as the mattress support rods.
    Since publication of the August 2012 NPR, the ASTM play yard 
subcommittee carefully assessed the incident that prompted this 
requirement. The subcommittee worked closely with the ASTM bassinet/
cradle subcommittee and chose to address the hazards associated with 
bassinet accessory misassembly in two different ASTM standards: (1) The 
play yard standard, ASTM F406-13, now addresses safety issues related 
to bassinet accessory attachment components (i.e., structures that 
attach the bassinet accessory to the play yard); and (2) the bassinet 
standard, ASTM F2194-13, Standard Consumer Safety Specification for 
Bassinets and Cradles, addresses safety issues related to mattress 
support rods (and all other structures that ensure that the bassinet 
accessory mattress is flat and stable) through the segmented mattress 
flatness test contained in the bassinet standard. That approach is now 
part of the current ASTM standard for play yards, ASTM F406-13, and for 
bassinets, ASTM F2194-13. Likewise, the Commission is following this 
approach in the CPSC standard for play yards and in the CPSC standard 
for bassinets and cradles. The Commission believes that this approach 
addresses the hazards known to CPSC staff associated with play yard 
bassinet misassembly.

B. The Product

    ASTM F406-13 defines a ``play yard'' as a ``framed enclosure that 
includes a floor and has mesh or fabric sided panels primarily intended 
to provide a play or sleeping environment for children. It may fold for 
storage or travel.'' Play yards are intended for children who are less 
than 35 inches tall and who cannot climb out of the product. Some play 
yards include accessory items that attach to the product, such as 
mobiles, toy bars, canopies, bassinets, and changing tables. The 
accessory item usually attaches to the side rails or corner brackets of 
the play yard.
    A ``bassinet/cradle accessory'' is defined in ASTM F406-13 as ``an 
elevated sleep surface that attaches to a play yard designed to convert 
the product into a bassinet/cradle intended to have a horizontal sleep 
surface while in a rest (non-rocking) position.'' Play yard bassinet 
accessories commonly consist of a textile shell that provides an 
elevated sleep surface within the play yard. The floor of the bassinet 
accessory is typically the same dimensions as the play yard floor. 
Usually, the segmented mattress pad that is used on the floor of

[[Page 50329]]

the play yard is inserted into the bassinet shell. The floor of the 
bassinet accessory is typically reinforced with mattress support rods 
to ensure a flat, stable sleep surface. The top edges of the sides of 
the bassinet accessory can be secured to the play yard top rails with 
any number of devices, but most often is done through plastic clips 
sewn onto the sides of the shell. Metal rods may also be used to secure 
the bassinet to the play yard. These metal rods are usually inserted 
into a sleeve on the top edge of the shell's side wall and clipped into 
a play yard's corner brackets.

C. History of the Play Yard Mandatory Standard

    In the Federal Register of September 20, 2011 (76 FR 58167), the 
Commission published an NPR to establish a safety standard for play 
yards. The NPR proposed incorporating by reference ASTM F406-11. It is 
important to note that ASTM F406 is the safety standard for both non-
full-size cribs and play yards. The NPR for play yards indicated which 
sections of the ASTM standard would apply to play yards and excluded 
from CPSC's play yard standard the provisions of ASTM F406 that apply 
to non-full-size cribs. After publication of the 2011 NPR, CPSC staff 
became aware of an incident, mentioned in section A of this preamble 
and described in more detail in section D of this preamble, where an 
infant died while sleeping in a play yard bassinet accessory that had 
been assembled without end supports. The Commission received a comment 
to the 2011 NPR requesting that we address play yard bassinet accessory 
misassembly.
    On August 29, 2012, the Commission published a final rule to 
establish a safety standard for play yards that incorporated by 
reference ASTM F406-12a. 77 FR 52220. The final rule did not address 
the hazards associated with the use of play yard bassinet accessories 
that can be assembled missing key structural elements. On the same 
date, the Commission published an NPR proposing an addition to the play 
yard mandatory standard to address the hazards associated with the use 
of play yard bassinet accessories that can be assembled missing key 
structural elements and asking for comments on the proposal. 77 FR 
52272.

D. The Play Yard Bassinet Accessory Misassembly Provision

1. Summary of the Hazard and the Infant Fatality

    Many play yards are sold with accessories that attach to the 
product, such as mobiles, toy bars, canopies, bassinets, and changing 
tables. Play yard bassinet accessories are unique among play yard 
accessories because they are intended to be used as a sleeping 
environment, and infants are meant to be left unsupervised in them for 
extended periods of time. Serious injuries or fatalities can result if 
a play yard bassinet accessory has been assembled without support 
structures. Those structures are intended to attach the bassinet 
accessory to the side of the play yard, as well as support the bassinet 
accessory mattress in order to keep the sleep surface flat and level. A 
tilt in the sleeping surface of the bassinet can result in an infant 
getting into a position where he or she is unable to breathe and is at 
risk of suffocation.
    In August 2011, the CPSC received a report of an infant fatality 
that occurred in the bassinet accessory of a play yard. The child died 
when the sleeping surface of the bassinet tilted, causing the child to 
slip into the corner of the bassinet accessory, where she suffocated. A 
review of the In-Depth Investigation Report (IDI), as well as CPSC 
staff testing on an exemplar model of the bassinet accessory and play 
yard involved in the fatality, led CPSC staff to conclude that the 
incident was caused by the omission of metal support rods that were 
used to secure two of the bassinet accessory's ends to the side of the 
play yard. The bassinet accessory also had sewn-on plastic clips that 
attached the product to the side rails of the play yard. Sometime after 
the child was placed in the bassinet accessory, one of the plastic 
clips detached. If the metal support rods had been used in the assembly 
of the play yard, the detachment of the plastic clip would not have 
been enough to cause the tilt in the sleeping surface that led to the 
fatality. However, the plastic clips caused the consumer to assume 
erroneously that the product was safe when key structural elements, the 
end support rods that secured the bassinet accessory's ends to the play 
yard end rails, were missing. The omission of the metal support rods 
caused the fatal tilt of the bassinet accessory sleep surface and 
resulted in the infant's death.
    As in this case, a consumer initially may not see that supporting 
rods are missing. If the misassembled accessory supports an infant 
without a catastrophic and obvious change to the sleep surface, a 
consumer may continue to use the accessory and inadvertently place a 
child in danger. If the bassinet's sleep surface tilts while the child 
is unsupervised, the caregiver may not discover the condition for 
hours, placing the child in a potentially fatal situation.

2. The Bassinet Misassembly Requirement Contained in the August 2012 
NPR

    The requirement the Commission proposed in the August 2012 NPR was 
designed to address the hazards that can occur when play yard bassinet 
accessories are misassembled by omitting key structural elements during 
assembly. The NPR proposed two compliance options. First, the bassinet 
accessory would meet the requirement if all of the key structural 
elements were attached permanently to the bassinet accessory. This 
would prevent any support rods, tubes, bars, and hooks from being 
omitted inadvertently when the consumer assembles the bassinet 
accessory. Manufacturers who choose to affix all key structural 
elements to their bassinets permanently would not need to conduct 
further testing on their product to meet the requirement.
    The second method for compliance proposed in the NPR involved a 
test method that CPSC refers to as the ``catastrophic failure test.'' 
If a manufacturer chooses not to attach support rods, tubes, bars, or 
hooks permanently to the bassinet, the bassinet would have to be tested 
by removing each key structural element and numbering each from 1 
through n. Subsequently, all of the key structural elements would be 
put back into place. Key structural element number 1 would then be 
removed from the bassinet. To pass the test when an anthropomorphic 
infant dummy is placed in the center of the sleep surface, the product 
must: (1) Collapse completely, or (2) tilt more than 30[deg]. The angle 
of 30[deg] represents a safety factor of three times the 10[deg] 
maximum safe sleep surface angle of incline. CPSC Human Factors staff 
concluded that an angle of 30[deg] would be sufficiently obvious to a 
consumer to discourage the consumer from continuing to use the 
bassinet. The test would continue until each key structural element has 
been tested individually (thus, key structural element number 1 would 
be inserted back into the product, key structural element number 2 
would be removed, and the test would be repeated.)
    The proposed requirement was meant to ensure that the omission of a 
key structural element would be so visually obvious that the consumer 
would not use the product and place the child in danger inadvertently. 
To pass this test, the item must fail catastrophically when each key 
structural element is omitted.

[[Page 50330]]

3. The Bassinet Misassembly Requirement Contained in ASTM F406-13 and 
Incorporated in the Final Rule

    The work on the play yard bassinet accessory misassembly 
requirement began after we received a comment on the issue in response 
to the September 2011 play yard NPR. CPSC staff worked with the ASTM 
play yard subcommittee for more than a year to develop the language to 
address this hazard. The ASTM play yard subcommittee is made up of key 
stakeholders, including manufacturers, retailers, third party test 
laboratories, independent consultants, consumer advocates, 
representatives from Health Canada, and CPSC staff.
    The result of this effort is the language now contained in ASTM 
F406-13, which this rule incorporates by reference. The requirement 
addressing play yard bassinet accessory misassembly is essentially the 
same as the requirement proposed in the August 2012 NPR, with two 
important differences that were suggested in comments that the 
Commission received in response to the August 2012 NPR.
    The first difference involves addressing the bassinet accessory 
structural supporting elements in two different standards: Play yards 
and bassinets/cradles. In the August 2012 NPR, the term ``key 
structural elements,'' included all rods, tubes, bars, and hooks that 
supported the bassinet accessory or that were used in assembling the 
bassinet accessory. Not only did the term include structures that 
attach the bassinet to the play yard, but the term also encompassed the 
mattress support rods and other structures that support the bassinet 
accessory mattress in order to keep the sleep surface flat and stable. 
The ASTM play yard subcommittee, working closely with the ASTM 
bassinet/cradle subcommittee, determined that any issues dealing with 
misassembly of the mattress support rods should be addressed in the 
bassinet standard. Thus, both ASTM subcommittees agreed that: (1) The 
play yard standard, ASTM F406-13, will address safety issues related to 
bassinet accessory attachment components (i.e., structures that attach 
the bassinet accessory to the play yard); and (2) the bassinet 
standard, ASTM F2194-13, will address mattress support rods (and all 
other structures that keep the bassinet accessory mattress flat and 
stable) through the segmented mattress flatness test contained in the 
bassinet standard.
    The second substantive difference is also the result of a comment 
received in response to the August 2012 NPR. As proposed in the August 
2012 NPR, the catastrophic failure test is conducted with a 7.5-pound 
newborn CAMI dummy. ASTM F406-13 requires that the test be conducted 
with a four-pound test mass. This weight represents the mass of the 
smallest newborn known to staff that would be released from a hospital, 
and thus, the smallest expected play yard bassinet accessory occupant. 
Using a smaller test mass makes the play yard bassinet misassembly 
provision in ASTM F406-13 more stringent than the requirement the 
Commission proposed in the August 2012 NPR.
    The final rule incorporates by reference ASTM F 406-13. By 
referencing this newer version of the ASTM play yard standard, the CPSC 
standard addresses the hazards known to CPSC staff posed by misassembly 
of play yard bassinet accessories in substantially the same manner as 
the Commission proposed in the 2012 NPR. The final rule continues to 
exclude from the CPSC's play yard standard the provisions in ASTM F 406 
that apply to non-full-size cribs. The Commission has a separate 
standard for non-full-size cribs. See 16 CFR part 1220.

E. Response to Comments on the Proposed Rule

    The preamble to the NPR invited comments concerning all aspects of 
the proposed rule. We received 13 comments. Many of the comments 
contained more than one issue. Thus, we organized our responses by 
issue, rather than respond to each commenter individually. All of the 
comments can be viewed on www.regulations.gov, by searching under the 
docket number for this rulemaking, CPSC-2011-0064.

1. Generally Unsupportive

    (Comment 1)--Two commenters indicate that they generally do not 
support the requirement. Both commenters feel that the regulation is 
unnecessary because the hazard was caused by misassembly of the 
product.
    (Response 1) --The Danny Keysar Child Product Safety Notification 
Act, section 104 of the Consumer Product Safety Improvement Act of 2008 
(CPSIA) requires that we promulgate mandatory regulations for durable 
infant and toddler products, including play yards, that are 
substantially the same as an existing voluntary standard, or more 
stringent than the voluntary standard if the Commission determines that 
more stringent standards would reduce the risk of injury associated 
with the product. In this case, we believe that the proposed final rule 
incorporating by reference ASTM F406-13 is appropriate to reduce the 
risk of injury associated with play yards. Therefore, the issuance of 
this final rule fulfills a statutory mandate given to the CPSC by 
Congress.
    In addition, we disagree with the assertion that hazards caused by 
misassembly should not be addressed through mandatory regulations. The 
CPSC is often faced with hazards that result from the reasonably 
foreseeable use of consumer products. Preventing the possibility of 
misassembly is especially critical when the product in question has 
been designed to provide a safe sleep environment for an infant, and 
when the result of misassembly could be severe, such as an infant 
fatality. The CPSC must assess whether there are solutions that would 
minimize the possibility of misassembly. One solution could be to 
improve assembly instructions or warning labels. Another solution, and 
the one that has been chosen here, is to require that products that 
must be assembled by consumers be designed in such a way that they are 
very difficult to misassemble.
    (Comment 2)--One commenter expresses a number of concerns about the 
new requirement. Specifically, the commenter feels that the 
requirement: (1) Does not address completely the hazards that caused 
the infant fatality; (2) was created too quickly and the process 
rushed; (3) is design restrictive; and (4) will fail safe products.
    (Response 2)--The bassinet accessory misassembly performance 
requirement and test method were fine-tuned for more than a year from 
January 2012 through April 2013. The circumstances involving the infant 
fatality were analyzed in detail and significant changes were made to 
the requirement to ensure that it addressed the hazard in the least 
burdensome manner. Notably, the scope of the play yard bassinet 
accessory misassembly requirement was reduced by focusing only on 
accessory attachment components and not all key structural elements. 
This reduction in scope was a direct result of careful analysis of the 
circumstances that resulted in the infant fatality.
    The requirement was created and approved through consultation with 
members of the ASTM play yard subcommittee, which includes many play 
yard importers and manufacturers, as well as other stakeholders, such 
as retailers, testing laboratories, independent consultants, 
representatives from consumer advocacy groups, and representatives from 
Health Canada.
    To provide manufacturers with options, and to avoid creating a 
design restrictive standard, two methods of compliance were provided. A 
manufacturer can permanently attach all

[[Page 50331]]

accessory attachment components or design a product that passes the 
catastrophic failure test. Finally, if the standard is found to be too 
severe and is failing safe products, it can be updated as more data is 
received by the CPSC.

2. Generally Supportive

    (Comment 3)--Several commenters support the new requirement. One 
commenter notes: ``(o)ur organizations strongly support these specific 
requirements and test methods as well as the general principle that 
misassembly is a design safety issue and should be adequately addressed 
in product safety standards.'' Another commenter indicates: ``(w)hile I 
strongly support and would prefer to see all key structural elements 
permanently attached to the bassinet accessory, the catastrophic 
failure test provides an option for manufacturers to come into 
compliance and appears to address the hazards associated with play yard 
bassinet accessories.'' Another commenter expresses ``overall support'' 
for the requirement and notes: ``(o)ne infant death is too many, and 
the CPSC has acted quickly to develop a new safety standard for 
bassinet accessories.''
    (Response 3)--We agree with the commenters.

3. Effective Date

    (Comment 4)--We received four comments addressing the appropriate 
effective date for this regulation. One individual indicates her 
agreement with the proposed six-month effective date. Other commenters 
recommend a shorter effective date. Some commenters suggest that a 90-
day effective date would be more appropriate because safer products 
would be available sooner, and manufacturers have had adequate notice 
that the play yard bassinet accessory misassembly requirement will soon 
be mandatory. Some commenters note that only products manufactured 
after the effective date are impacted by the regulation. Thus, products 
made before the effective date (products that may not be in compliance 
with the bassinet accessory misassembly requirement contained in ASTM 
F406-13) can continue to be sold.
    (Response 4)--The CPSC has generally recommended a six-month 
effective date for rules issued under section 104 of the CPSIA and we 
find no compelling reason to deviate from this practice for this rule. 
We share concerns about noncompliant products, those manufactured or 
imported before the effective date, being available for years beyond 
the effective date. However, ongoing compliance activities would 
continue to be used to remove unsafe play yards from the market.

4. Coordination Between the Play Yard and Bassinet Standard

    (Comment 5)--Four commenters discuss the overlap between the 
mattress flatness requirement contained in ASTM F2194-13, Standard 
Consumer Safety Specification for Bassinets and Cradles, and the 
proposed play yard bassinet accessory misassembly requirements. The 
commenters state that the play yard bassinet accessory misassembly 
requirements, as published in the August 2012 NPR, contain requirements 
that are more appropriately addressed in the bassinet segmented 
mattress flatness requirement contained in the bassinet voluntary 
standard.
    (Response 5)--The CPSC agrees with these comments. As discussed 
above, the play yard bassinet accessory misassembly requirement 
contained in ASTM F406-13 now only applies to accessory attachment 
components (i.e., those structures that attach the bassinet accessory 
to the play yard). Misassembly issues related to mattress support rods 
are now addressed in ASTM F2194-13, the standard for bassinets and 
cradles. ASTM F2194-13 requires that if the mattress support rods are 
not permanently attached, the bassinet must be tested pursuant to the 
mattress flatness test contained in ASTM F2194-13, and the product must 
pass the mattress flatness test both with and without the mattress 
support rods in place. The CPSC is finalizing a rule for bassinets/
cradles that incorporates by reference ASTM F2194-13.

5. Clarity of ``Key Structural Element'' Definition

    (Comment 6)--One commenter asks that the definition of ``key 
structural element'' be clarified. Specifically, the commenter asks if 
the following are key structural elements: (1) clips that are sewn to 
the play yard bassinet accessory shell; and (2) metal bars that provide 
support for the bassinet mattress.
    (Response 6)--The definition of ``key structural element'' 
presented in the August 2012 NPR has been modified. The final rule 
incorporates by reference ASTM F406-13. The language published in ASTM 
F406-13 now limits the scope of the play yard bassinet misassembly 
requirement by defining ``accessory attachment components'' as ``the 
components that provide the means of attachment for a bassinet/cradle 
accessory to a play yard.''
    Thus, clips sewn to the play yard bassinet accessory shell that 
attach the bassinet accessory to the play yard are accessory attachment 
components. Metal bars that provide support to the bassinet accessory 
mattress, and that do not attach the bassinet accessory to the play 
yard, are not accessory attachment components; therefore, they are not 
subject to the play yard bassinet accessory misassembly requirement 
contained in ASTM F406-13.

6. Catastrophic Failure Test Is Confusing or Is Arbitrary and 
Capricious

    (Comment 7)--One commenter indicates that it would be easier, and 
cause less confusion, if the play yard bassinet accessory misassembly 
provision simply required that all key structural elements be 
permanently attached to the bassinet accessory instead of giving 
manufacturers the option of complying with the catastrophic failure 
test. Another commenter indicates that the permanent affixture test 
should be the only method of complying with the requirement and asserts 
that the catastrophic failure test is not the least burdensome 
requirement and violates the Administrative Procedure Act because it is 
arbitrary and capricious.
    (Response 7)--The catastrophic failure test can appear confusing 
and counterintuitive because, in order to pass the test, the product 
must fail catastrophically when one piece is missing. However, this 
test was thoroughly vetted during the ASTM process. The ASTM 
subcommittee stakeholders felt that the test is a sound alternative to 
permanently attaching all accessory attachment components. In fact, 
initially, CPSC staff suggested that the only method of compliance 
should be to require that all key structural elements be permanently 
attached. The catastrophic failure option was added at the request of 
manufacturers' representatives. However, once the requirement goes into 
effect, both ASTM and the CPSC will monitor any issues that arise in 
using the catastrophic failure test to meet the requirement and will 
address them as necessary.
    Additionally, the catastrophic failure test is an alternative to 
the permanent affixture test. Although the CPSC does not feel that the 
permanent affixture test is design restrictive, providing as many 
alternatives for compliance as possible is important, so that products 
with drastically different designs are able to meet the requirement.

[[Page 50332]]

7. Catastrophic Failure Test and the Test Mass Size, Use, and Location

    (Comment 8)--One commenter questions the use of the newborn CAMI 
dummy (weighing 7.5 pounds), as proposed in the August 2012 NPR. The 
commenter ultimately questions the use of a test mass at all, 
hypothesizing that the requirement could be more severe if no test mass 
were used. Another commenter recommends that the CPSC consider a 
lighter test mass so that a greater proportion of the newborn 
population will be covered by the play yard bassinet accessory 
misassembly requirement.
    (Response 8)--We agree that the mass of the newborn CAMI dummy is 
too large. CPSC staff developed a new four-pound test mass and 
presented the four-pound test mass proposal to the ASTM play yard 
subcommittee for review and consideration. The play yard bassinet 
accessory misassembly requirement, contained in section 5.19 of ASTM 
F406-13, contains a rationale that states that the four-pound mass 
represents the weight of the smallest newborn who would be using the 
bassinet accessory because infants smaller than four pounds are 
unlikely to be released from a hospital. Using the smallest reasonable 
mass makes the play yard bassinet accessory misassembly requirement 
more stringent than the proposal in the August 2012 NPR. Eliminating 
the test mass entirely, as one commenter suggests, is unnecessarily 
restrictive.

8. Catastrophic Failure Test and the Basis for the 30[deg] Mattress 
Angle Requirement

    (Comment 9)--Several commenters object to the 30[deg] tilt 
requirement in the catastrophic failure test. Many commenters feel that 
the requirement is not adequately supported by scientific data.
    (Response 9)--The angle of 30[deg] represents a safety factor of 
three times the 10[deg] maximum safe sleep surface angle of incline. 
CPSC Human Factors staff concluded that an angle of 30[deg] would be 
sufficiently visually obvious to a consumer, such that the consumer 
would be discouraged from continuing to use the bassinet. Staff then 
recommended that the ASTM play yard subcommittee review and critique 
the 30[deg] angle. ASTM stakeholders agreed with CPSC staff that 
30[deg] was reasonable and would be considered by caregivers to be 
obviously hazardous. CPSC staff, as well as ASTM members, can 
reconsider the tilt angle requirement should evidence be presented 
indicating that the angle is too small or large.

9. Redundant Product Safety Features

    (Comment 10)--One commenter states that the play yard bassinet 
accessory misassembly requirement, as contained in the August 2012 NPR, 
may result in manufacturers eliminating ``redundant safety features 
that are already a component of the product.'' The commenter mentions 
mattress support rods as an example of a structure that is not 
necessary to comply with the voluntary standard but does improve 
product safety, by helping to create a ``flatter and more stable 
sleeping position.'' The commenter concludes that the added cost of 
being required to permanently affix redundant structures would lead to 
the elimination of the structures to avoid this cost, resulting in 
compliant but less safe products being sold.
    (Response 10)--Like many members of the ASTM play yard 
subcommittee, this commenter is concerned that regulating mattress 
support rods in the play yard rule through the bassinet accessory 
misassembly requirement is inappropriate. Members of the play yard and 
bassinet subcommittees resolved this issue by agreeing to regulate 
bassinet accessory attachment components in the play yard standard, and 
by agreeing to regulate bassinet accessory mattress support rods in the 
bassinet/cradle standard. As a result, the play yard bassinet accessory 
misassembly requirement in F406-13 now only applies to accessory 
attachment components. Misassembly issues related to mattress support 
rods are now addressed in ASTM F2194-13, the voluntary standard for 
bassinets and cradles. ASTM F2194-13 requires that bassinets with 
removable mattress support rods be tested both with and without the 
mattress support rods. The bassinet must pass the segmented mattress 
flatness test contained in ASTM F2194-13 with and without the mattress 
support rods. In this way, all misassembly issues known to CPSC staff 
related to play yard bassinet accessories are addressed in either the 
play yard or the bassinet standard.

10. Other Options for Compliance

    (Comment 11)--One commenter asks that a third option for compliance 
be considered in addition to the two already proposed in the August 
2012 NPR. The commenter suggests that a product be considered to be in 
compliance if the product continues to meet the standard's requirements 
after all of the key structural elements are removed.
    (Response 11)--This approach has been adopted in the bassinet 
standard contained in ASTM F2194-13. ASTM F2194-13 requires that 
removable mattress support rods be tested pursuant to the segmented 
mattress flatness tests contained in ASTM F2194-13 without the rods in 
place. If the product passes the mattress flatness test, even without 
the mattress support rods in place, the product meets the requirements.
    We do not agree, however, that this commenter's proposal should be 
an option for accessory attachment components meant to attach the 
bassinet accessory to the play yard rails. In the fatal incident, one 
of the accessory attachment components, the end support rods, was 
omitted and only the plastic clips were used. The fatality resulted 
when the caregiver assumed that the product was safe because no 
visually obvious cues suggested that the product was unsafe. Therefore, 
for accessory attachment components, we believe that the standard 
should require that the accessory attachment components be either 
permanently attached or pass the catastrophic failure test by obviously 
failing when an accessory attachment component is missing.

11. Cost of Play Yard Bassinet Accessory Misassembly Requirement

    (Comment 12)--One commenter indicates that cost of ``re-
engineering'' and ``retooling'' would be significant. The commenter 
also mentions that the requirement would necessitate a change to the 
packaging. The commenter believes that the issue merits additional 
research.
    (Response 12)--Although the new requirement might impose additional 
costs on manufacturers and importers, staff consulted and worked 
closely with members of the industry to devise an acceptable solution 
that would address the safety hazard but not impose unnecessary costs.

12. Ability To Launder

    (Comment 13)--One commenter indicates that permanently affixing key 
structural elements to the product may interfere with the ability to 
launder the product. The commenter is specifically concerned about the 
metal rods that support a bassinet accessory shell or liner. If the 
metal rods were required to be affixed permanently to the liner, the 
bassinet accessory shell would be difficult to clean.
    (Response 13)--Although the CPSC's primary concern is that play 
yards and bassinet accessories are safe, the CPSC does consider 
practical issues, such as the ability to launder, in connection with 
new standards and requirements. The commenter's specific concern

[[Page 50333]]

regarding the ability to launder a bassinet accessory shell that is 
supported by metal support rods is no longer an issue addressable by 
the play yard bassinet accessory misassembly requirement because ASTM 
F406 no longer applies to mattress support rods. Instead, ASTM F406-13 
focuses only on accessory attachment components that attach the 
bassinet accessory to the play yard.
    The bassinet standard applies to mattress support rods. However, 
the bassinet standard does not require the metal rods to be attached 
permanently to the liner. If the product passes the segmented mattress 
flatness test contained in the bassinet standard with the mattress 
support rods removed, the mattress support rods do not need to be 
permanently attached.

13. Concern That Patent-Only Technology May Be Required

    (Comment 14)--One commenter indicates that there is a patent 
application pending detailing 10 different methods to ``stiffen a play 
yard mattress pad before it is used in a play yard bassinet 
accessory.'' The commenter acknowledges that ``there may not be any 
products on the market today that would be impacted by this patent 
application'' but that the CPSC should ``evaluate this issue and avoid 
design restrictions that limit marketplace competition.''
    (Response 14)--The concern regarding the means of stiffening a 
mattress pad is no longer an issue for the play yard rule because the 
play yard bassinet accessory misassembly requirement no longer applies 
to mattress support rods or any other methods that might be used to 
stiffen a mattress pad. Instead, the play yard rule only focuses on 
accessory attachment components that attach the bassinet accessory to 
the play yard.
    Likewise, the bassinet rule, which does address mattress flatness, 
does not require that a specific design be used to pass the standard. 
As a result, the bassinet mattress flatness test can be met in a 
variety of ways without necessarily implicating patented technology.

14. International Harmonization/Impact on Trade

    (Comment 15)--One commenter expresses concerns that the requirement 
could impact trade agreements and emphasizes the importance of 
international standard harmonization.
    (Response 15)--When drafting the NPR for the play yard mandatory 
standard, published in September 2011, CPSC staff reviewed, compared, 
and considered a variety of play yard standards, including the Canadian 
standard, the European standard, and the Australian/New Zealand 
standard. These international standards vary in a variety of respects. 
Thus, even if we adopt all or part of an international standard, we 
still would not achieve complete international harmonization. We are 
aware of the utility of having harmonized standards in a global 
marketplace, and we continue to strive to achieve this harmonization 
whenever practicable. Notably, no other standard addresses the risks 
associated with play yard bassinet accessory misassembly. However, we 
will continue to monitor the effects that our standards have on 
international standards.

15. Deference to ASTM Standard

    (Comment 16)--One commenter requests that staff defer to the ASTM 
standard.
    (Response 16)--Under section 104 of the CPSIA, the Commission must 
establish a mandatory standard for play yards and cannot defer to a 
voluntary standard. However, the CPSC is incorporating the current ASTM 
standard, ASTM F406-13, by reference.

F. Effective Date

    The Administrative Procedure Act (APA) generally requires that the 
effective date of a rule be at least 30 days after publication of the 
final rule. 5 U.S.C. 553(d). We are providing a six-month effective 
date, as proposed in the NPR. The CPSC has generally recommended a six-
month effective date for rules issued under section 104 of the CPSIA 
and we find no reason to deviate from this practice for this rule.

G. Regulatory Flexibility Act

1. Introduction

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-605, requires 
that final rules be reviewed for their potential economic impact on 
small entities, including small businesses. Section 604 of the RFA 
requires that we prepare a final regulatory flexibility analysis when 
promulgating final rules, unless the head of the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. As explained in this section, we certify that 
the rule will not have a significant impact on a substantial number of 
small entities.

2. The Market

    There are 26 firms known to be supplying play yards to the U.S. 
market. However, not all 26 firms supply bassinet accessories with the 
play yard. Of the 26 firms, 11 do not supply bassinet accessories. The 
remaining 15 firms supply at least one model of a play yard that is 
accompanied by a bassinet accessory: 13 are domestic manufacturers or 
importers; one is a foreign manufacturer; and one is a foreign importer 
who imports from a foreign country and distributes the products from 
outside the United States. Under U.S. Small Business Administration 
Guidelines, eight of the 15 firms are small firms (five domestic 
manufacturers and three domestic importers).

3. Impact of the Standard on Small Businesses

    Currently, all but one of the 15 firms supplying play yards to the 
U.S. market that are accompanied by bassinet accessories have their 
accessory attachment components permanently attached to the bassinet 
accessory. The remaining firm has started developing a design that 
permanently attaches all of the accessory attachment components to the 
bassinet accessory. Therefore, the CPSC believes that this requirement 
is not likely to have a significant impact on a substantial number of 
small entities.

H. Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521

    ASTM F406-12a, which is incorporated by reference into the play 
yard standard codified at 16 CFR Part 1221, requires labels and 
instructions to be supplied with the product. The PRA requirements for 
the play yard standard codified at 16 CFR Part 1221 have been submitted 
to the Office of Management and Budget (OMB), and OMB has assigned 
control number 3041-0152 to the information collection. We estimate 
that there are no additional burden hours associated with incorporating 
by reference ASTM F406-13.

I. Environmental Considerations

    The Commission's regulations address whether we are required to 
prepare an environmental assessment or an environmental impact 
statement. Our rules generally have ``little or no potential for 
affecting the human environment,'' and therefore, our rules are 
generally exempt from any requirement to prepare an environmental 
assessment or impact statement. 16 CFR 1021.5(c)(1). This rule falls 
within the categorical exclusion.

J. Preemption

    Section 26(a) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 
2075(a), provides that where a consumer product safety standard is in 
effect and

[[Page 50334]]

applies to a product, no state or political subdivision of a state may 
establish or continue in effect a requirement dealing with the same 
risk of injury, unless the state's requirement is identical to the 
federal standard. Section 26(c) of the CPSA also provides that states 
or political subdivisions of states may apply to the Commission for an 
exemption from this preemption under certain circumstances. Section 
104(b) of the CPSIA refers to the rules to be issued under that section 
as ``consumer product safety rules,'' thus implying that the preemptive 
effect of section 26(a) of the CPSA would apply. Therefore, a rule 
issued under section 104 of the CPSIA will invoke the preemptive effect 
of section 26(a) of the CPSA when the rule becomes effective.

K. Certification and Notice of Requirements (NOR)

1. Background

    Section 14(a) of the CPSA requires that 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) 
must be certified as complying with all applicable CPSC-enforced 
requirements. 15 U.S.C. 2063(a). Section 14(a)(2) of the CPSA requires 
that certification of children's products subject to a children's 
product safety rule be based on testing conducted by a CPSC-accepted 
third party conformity assessment body (or laboratory). Section 
14(a)(3) of the CPSA requires the Commission to publish a notice of 
requirements (NOR) for laboratories to assess conformity with a 
children's product safety rule to which a children's product is 
subject. The rule for 16 CFR Part 1221, ``Safety Standard for Play 
Yards,'' is a children's product safety rule that requires the 
Commission to issue an NOR.
    The Commission recently published a final rule, ``Requirements 
Pertaining to Third Party Conformity Assessment Bodies,'' 78 FR 15836 
(March 12, 2013), which is codified at 16 CFR Part 1112 (referred to 
here as part 1112), and became effective on June 10, 2013. Part 1112 
establishes requirements for accreditation for third party conformity 
assessment bodies to test for conformance with a children's product 
safety rule in accordance with section 14(a)(2) of the CPSA. The final 
rule also codifies a list of all the NORs that the CPSC had published, 
to date, at the time part 1112 was issued. The Commission published an 
NOR for the play yard rule in the final rule for part 1112. The play 
yard standard is listed along with all the other children's product 
safety rules for which the CPSC has issued NORs.

2. Play Yards

    Testing laboratories applying to be a CPSC-accepted third party 
conformity assessment body to test to the standard for play yards are 
required to meet the accreditation requirements in part 1112. When a 
laboratory meets the requirements as a CPSC-accepted third party 
conformity assessment body, the laboratory can apply to the CPSC to 
have 16 CFR Part 1221, ``Safety Standard for Play Yards,'' included in 
the laboratory's scope of accreditation. All of the CPSC safety rules 
included in a laboratory's scope of accreditation are listed on the 
CPSC Web site at: www.cpsc.gov/labsearch.
Testing to Functionally Equivalent Provisions of ASTM F406-12a and ASTM 
406-13
    For purposes of testing, the provisions of revised ASTM F406-13 are 
equivalent or functionally equivalent to ASTM F406-12a, with one 
significant exception discussed below. (By ``functionally equivalent,'' 
we mean that the standards organization made certain changes in the 
revised standard compared to the earlier standard, but the changes are 
not substantial and do not affect the associated conformance testing.)
    Consequently, the Commission is continuing to recognize acceptance 
of accreditation of laboratories currently accredited under ASTM F406-
12a for the provisions in ASTM F406-13 that are equivalent or 
functionally equivalent to their corresponding provisions in ASTM F406-
12a. The laboratories should test play yards for compliance with ASTM 
F406-13, and based on such testing, manufacturers should issue 
certificates under section 14(a)(2) of the CPSA. Laboratories that are 
accredited to test to provisions of ASTM F406-12a that are equivalent 
or functionally equivalent for children's product certification 
purposes do not need to become accredited to ASTM F406-13 before the 
next time their accreditation body reassesses that laboratory and 
recognizes that the scope of the laboratory's accreditation includes 
ASTM F406-13. In the course of applying to the CPSC for acceptance of 
their accreditation, the laboratory must submit CPSC Form 223 with the 
applicable accompanying documents to continue to have their 
accreditation to 16 CFR Part 1221 (incorporating by reference ASTM 
F406-13) accepted. We will revise our listing for the laboratory when 
the laboratory becomes accredited to 16 CFR Part 1221 (incorporating by 
reference ASTM F406-13) and the CPSC accepts the laboratory's 
application for accreditation.
Testing to the New Bassinet Misassembly Provisions
    ASTM F406-13 added one new testing requirement that is not present 
in ASTM F406-12a. Section 8.31 of ASTM F406-13 adds a new test to 
evaluate conformity with a new substantive requirement found in section 
5.19 regarding missing accessory attachment components for play yard 
bassinet/cradle accessories. Neither of these provisions existed in 
ASTM F406-12a. Third party testing for section 8.31, as required by the 
new performance requirement contained in section 5.19, is required only 
for play yards with bassinet/cradle accessories and applies to products 
manufactured or imported after this final rule becomes effective.
    If a laboratory wishes to test play yards for compliance with the 
play yard bassinet accessory misassembly requirement, the laboratory 
will need to become accredited under ASTM F406-13 first. This may mean 
that the laboratory will need to become accredited to ASTM F406-13 
before the regularly scheduled reassessment by their accreditation 
body.
New Applicants
    New third party conformity assessment body applicants that apply 
for CPSC acceptance on or after February 19, 2014, must be accredited 
to 16 CFR Part 1221 (incorporating by reference ASTM F406-13), when 
applying for CPSC acceptance of their accreditation to test play yards

3. Retrospective Testing

    Some laboratories may want to start testing play yards to assess 
conformity with the play yard bassinet accessory misassembly 
requirement before the Commission is able to accept their accreditation 
to 16 CFR Part 1221 (incorporating by reference ASTM F406-13.) 
Laboratories may begin testing for conformance with the play yard 
bassinet accessory misassembly requirement before the CPSC accepts 
their accreditation, and their test results will be valid 
retrospectively, if the following conditions are met:
     At the time of testing, the product was tested by a 
laboratory that was ISO/IEC 17025:2005(E) accredited by an ILAC-MRA 
member at the time of the test. At the time of testing, the scope of 
the third party conformity body accreditation, as reported by the 
accreditation body, must include testing in accordance with ASTM F406-
13 or 16 CFR Part 1221 (incorporating by

[[Page 50335]]

reference ASTM F406-13). In addition, for firewalled third party 
conformity assessment bodies, the firewalled third party conformity 
assessment body must be one that the Commission, by order, has 
accredited on or before the time that the children's product was 
tested, even if the order did not include ASTM F406-13 or 16 CFR Part 
1221 (incorporating by reference ASTM F406-13) at the time of initial 
Commission acceptance. For governmental third party conformity 
assessment bodies, accreditation of the body must be accepted by the 
Commission on or before the time that the children's product was 
tested, even if the scope of accreditation did not include ASTM F406-13 
or 16 CFR Part 1221 (incorporating by reference ASTM F406-13) at the 
time of initial CPSC acceptance.
     The test results show compliance with ASTM F406-13 or 16 
CFR Part 1221 (incorporating by reference ASTM F406-13).
     The play yard was tested on or after May 1, 2013, the date 
that ASTM approved ASTM F406-13, and before February 19, 2014.
     The laboratory's accreditation remains in effect through 
February 19, 2014.

List of Subjects in 16 CFR Part 1221

    Consumer Protection, Imports, Incorporation by reference, Infants 
and children, Labeling, Law enforcement, Safety and toys.

    Therefore, the Commission amends Title 16 of the Code of Federal 
Regulations as follows:

PART 1221--SAFETY STANDARD FOR PLAY YARDS

0
1. The authority citation for part 1221 continues to read as follows:

    Authority: The Consumer Product Safety Improvement Act of 2008, 
Pub. L. 110-314, section 104, 122 Stat. 3016 (August 14, 2008).

0
2. Revise Sec.  1221.1 to read as follows:

Sec.  1221.1  Scope.

    This part establishes a consumer product safety standard for play 
yards manufactured or imported on or after February 19, 2014.

0
3. Revise Sec.  1221.2 to read as follows:

Sec.  1221.2  Requirements for play yards.

    (a) Except as provided in paragraph (b) of this section, each play 
yard must comply with all applicable provisions of ASTM F406-13, 
Standard Consumer Safety Specification for Non-Full-Size Baby Cribs/
Play Yards, approved on May 1, 2013. 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. You may obtain a copy from ASTM 
International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, 
PA 19428; http://www.astm.org. You may inspect a copy at the Office of 
the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 
East West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at 
the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal regulations/ibr_locations.html.
    (b) Comply with the ASTM F406-13 standard with the following 
exclusions:
    (1) Do not comply with section 5.17 of ASTM F406-13.
    (2) Do not comply with section 5.20 of ASTM F406-13.
    (3) Do not comply with section 6, Performance Requirements for 
Rigid-Sided Products, of ASTM F406-13, in its entirety.
    (4) Do not comply with sections 8.1 through 8.10.5 of ASTM F406-13.
    (5) Instead of complying with section 9.4.2.10 of ASTM F406-13, 
comply only with the following:
    (i) 9.4.2.10 For products that have a separate mattress that is not 
permanently fixed in place: Use ONLY mattress/pad provided by 
manufacturer.
    (ii) [Reserved]
    (6) Do not comply with section 10.1.1.1 of ASTM F406-13.

    Dated: August 13, 2013.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission
[FR Doc. 2013-19964 Filed 8-16-13; 8:45 am]
BILLING CODE 6355-01-P
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