The U.S. Consumer Product Safety Commission has voted to transfer regulation of risks of crib hardware failure from the Federal Hazardous Substances Act to the Consumer Product Safety Act.
The vote was 3-l in favor of the change of procedure. Chairman Nancy Harvey Steorts, Commissioners Stuart M. Statler and Saundra Brown Armstrong voted for the change; Commissioner Terrence Scanlon dissented.
The Commission staff had conducted 46 investigations of incidents involving crib hardware failures or omission since 1980. There were 19 deaths reported, and at least 15 other incidents in which the children suffered minor injuries including bruises, or no injury. In 12 other cases, the children became entrapped but were freed.
The procedural change (under section 30 (d), CPSA) will enable the Commission to act more promptly and effectively to protect the public from risks of crib hardware failure by enabling CPSC to proceed directly when they learn of a hazard. At present, no rule governing crib hardware failures exists under the FHSA. The change approved by the Commission will allow it to take action under provisions of the Consumer Product Safety Act.
Chairman Nancy Harvey Steorts
Consumer Product Safety Commission
Crib Hardware 30 (d) Rule
It is in the public interest to transfer regulation of crib hardware to the Consumer Product Safety Act (CPSC) from the Federal Hazardous Substances Act (FHSA) in order to effectively protect American consumers. Therefore, I have voted in the affirmative to issue this final 30(d) rule.
Throughout history a child's crib has been a symbol of safety and is essential that this continue. The crib producers are for renewing their effort to develop a voluntary safety standard for crib hardware in the future. The Commission's staff has been directed to assist the producers in every possible way to ensure that the risks of injury and death associated with crib hardware are thoroughly and expeditionsly addressed.
Although the voluntary safety standard will reduce -- and, I hope, eliminate -- deaths and injuries caused by crib hardware problems on cribs manufactured in the future, it is an unfortunate fact that there are some cribs already in the market and in the hands of parents which are made with inadequate hardware. Preliminary indications from the staff are that these unsafe cribs are the exception rather than the rule. Nonetheless, data provided to the Commission indicate that there has been at least 17 known deaths, 17 near-misses and 15 injuries associated with crib hardware failures or omissions during the period 1980 through 1983. This Commission must be prepared to address the continuing deaths and injuries due to hardware failures. To do less would be unconscionable.
Transferring the jurisdictional authority will enable the Commission to effectively address substantial product hazards which may exist with specific types of hardware while deferring to the industry's efforts to develop a voluntary safety standard. This is in keeping with our statutory mandate and permits the industry to develop a new safety standard.
It has been suggested that the Commission's authority to ban products under a rulemaking proceeding or as an imminent hazard under the FHSA is adequate to address the risk of injury associated with failures and omissions of crib hardware, I disagree. First, in order for the Commission to ban a product under- the rulemaking provisions, it must establish a safety standard. But, while the industi2 is developing a voluntary standard which reasonably appears as if it will address the risk, I believe the Commission should not and, perhaps, can not, enact its own mandatory standard through rulemaking. Second, the imminent hazards provisions are inappropriate on the facts before the Commission at present without further definition of the types of hardware which are presenting the risk of death and injury.
For this reason, I am extremely pleased with the 3-1 vote in favor of transferring regulation of risks of crib hardware from the FHSA to the CPSA.
Commissioner Terrence M. Scanlon, Vice Chairman
On Final 30 (d)
Transfer Rule On Crib Hardware
March 30, 1984
I dissent from the Commission's 30(d) Rule transferring the jurisdiction of the crib hardware problem from the Federal Hazardous Substance Act (FHSX) to the Consumer Product Safety Act (CPSA). Congress clearly established a statutory framework under the FHSA to regulate juvenile products, and provided certain procedural protections for manufacturers, as well as consumers, to participate in the development of these regulations. The Commission's efforts to circumvent these due process requirements, and to address a "generic" industry wide problem with crib hardware by adjudication is an unauthorized delegation of our rulemaking authority to our compliance staff.
The industry, through its trade association, has indicated a willingness to cooperate in resolving all reported problems. The Commission's contribution however, has not been cooperation, but rather an adversarial effort embodied in a 30(d) transfer. Rather than commit the resources and staff that have been devoted to this proceeding to the proper procedures, we have lost valuable time in reaching an effective solution to this consumer product safety concern, Following proper FHSA procedures would not have taken any more time.
The Commission already has safety regulations on crib hardware on the books under the Federal Hazardous Substance Act (CFR Parts 1508 and 1509). We should have proceeded by exploring any needed amendments or revisions to those rules as the most practical and workable solution to our product safety concerns.
This effort, as a shortcut approach to statutory rulemaking, appears attractive at first but in the long run neither the Commission nor consumers benefit.
Accordingly, I have filed a detailed dissent available in the Office of the Secretary of the Commission.
|Statement Of Commissioner Stuart M. Statler|
On Need For Regulating Unsafe Crib Hardware
Under The Consumer Product Safety Act
This issue involves a simple question and the question is this: Will we make it possible to get certain unsafe cribs off of retail shelves and out of consumers hands? Will we make it possible to do that in short order?
Without the proposed Section 30(d) rule in place -- switching jurisdiction over crib hardware hazards to the Consumer Product Safety Act -- the problem may be addressed prospectively, that is, for the future. For future production, these cribs may be trade safer. But without this 30(d) Rule, there will be no impact, certainly not in the short-term, on what's on retail shelves and what's in consumers' homes. The 30(d) transfer gives this agency the opportunity not only to eliminate hazards from future production of cribs, but to remove from the market, to recall from homes, those cribs already out there that demonstrate certain egregious defects -- defects that rise to the level of being substantial product hazards.
That's really what this issue is about. In just the three years from January 1980 thru March 1983, our staff knows of 67 incidents involving crib hardware problems, which include 27 infant deaths. One can argue that we might conceivably get these products off the market three or four years hence without this transfer of jurisdiction. But I'm not prepared to invite still more tragedy, more death and grievous injury to infants, over the next several years. That's about what it would take under the Federal Hazardous Substances Act, with all the litigation one should expect from an industry that's been dragging its feet for far too long. The industry has shown no inclination, to date, to get these unsafe cribs off the market and out of consumers homes. It's demonstrated no real concern about the need for a possible recall of defective units already sold. So far, just the mere proposing of this transfer .rule has had a salutary effect on at least one manufacturer who, previously, refused even to sit down with our staff and discuss the problem; now, it looks like a recall is in the offing, with appropriate notice to families which may still have these cribs.
To paraphrase the words of a memorable folk song of the '60s -- 'How many deaths does it take, before too many children have died'...from unsafe cribs. These are cribs that have serious defects associated with their hardware that we, as a federal regulatory agency, simply won't be able to get at, and recall promptly, unless this rule is passed.
March 28, 1984
Commissioner Saundra Brown Armstrong
On CPSC Issuance Of Final 30(d) Transfer Rule
Regarding Unsafe Crib Hardware
March 30, 1984
Because I have concluded that the "public interest" requires expeditious Commission action to remedy hazards associated with crib hardware that fails to perform the intended function of providing a secure sleeping place for young children, I am voting for this rule to transfer regulation of such hazards from the Federal Hazardous Substances Act to the Consumer Product Safety Act, as provided under Section 30(d) of the Consumer Product Safety Act. My review of this rule was exhaustive in view of the fact that I did not have the opportunity to participate in the discussions of the Commission which led to the decision of December 15, 1983 to propose the rule.
In the recent past, the Commission has issued Section 30(d) rules for children's products as follows: mesh-sided cribs; expandable enclosures; certain squeeze toys; and has proposed a 30(d) transfer rule for baby bassinets. With the exception of the rule for mesh-sided cribs (consideration of which preceded my tenure as a Commissioner), I have voted as I do today, in favor of the transfer.
It would indeed be unfortunate if these recent 30(d) actions were to be perceived as indicating that the Commission intends to use this section in a routine fashion. In my view, Section 30(d) is in the nature of an extraordinary remedy, to be sparingly used. While my colleagues and I have concluded that utilization of this extraordinary procedure is appropriate in addressing the hazards associated with these children's products, it should not create the perception that other products subject to the Federal Hazardous Substances Act will routinely be viewed as necessarily suitable for similar treatment. Although the "public interest" finding required for transfer under Section 30(d) admits assessment of many additional factors, factual and legal, the finding must include appreciation of the nature of the consumer product, the hazard presented, the characteristics of the population thereby imperiled, and the viability of the existing options in effectively addressing the risks.
While I intend to continue to evaluate each 30(d) recommendation individually, I am concerned that there be no perception that any other products subject to the Federal Hazardous Substances Act would so readily be considered appropriate for transfer. I, for one, still consider transfer under the authority of this statute the exception and, consistent with the requisites thereof, intend to remain absolutely certain that it is not used, or reasonably perceived, as a routine remedy.
The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of injury or death associated with the use of thousands of types of consumer products under the agency’s jurisdiction. Deaths, injuries, and property damage from consumer product incidents cost the nation more than $1 trillion annually. CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical or mechanical hazard. CPSC's work to help ensure the safety of consumer products - such as toys, cribs, power tools, cigarette lighters and household chemicals -– contributed to a decline in the rate of deaths and injuries associated with consumer products over the past 40 years.
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