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Proposed Rule

Advance Notice of Proposed Rulemaking; Possible Revocation or Amendment of Standard for the Flammability of Mattresses and Mattress Pads (Cigarette Ignition)

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AGENCY:

Consumer Product Safety Commission.

ACTION:

Advance notice of proposed rulemaking.

SUMMARY:

The Consumer Product Safety Commission (“CPSC” or “Commission”) is considering revoking or amending its existing standard for the flammability of mattresses and mattress pads (16 CFR part 1632). The Commission recently proposed a new standard addressing the flammability of mattresses. Several commenters have suggested that if and when the new standard takes effect, continuing the cigarette ignition standard would be burdensome and unnecessary. With this advance notice of proposed rulemaking, the Commission begins to assess the need for continuing the existing mattress standard. The Commission invites comments concerning the risk of injury identified in this notice, the regulatory alternatives being considered, and other possible alternatives. The Commission also invites submission of any existing standard or statement of intention to modify or develop a voluntary standard to address cigarette ignition of mattresses and mattress pads.

DATES:

Comments and submissions must be received by August 22, 2005.

ADDRESSES:

Comments should be sent by e-mail to cpsc-os@cpsc.gov. Comments should be captioned “Mattress ANPR (Cigarette Ignition).” Comments may also be mailed, preferably in five copies, to the Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207-0001, or delivered to the Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland; telephone (301) 504-0800. Comments also may be filed by facsimile to (301) 504-0127.

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FOR FURTHER INFORMATION CONTACT:

Margaret Neily, Directorate for Engineering Sciences, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-7530.

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SUPPLEMENTARY INFORMATION:

A. Background

The Standard for the Flammability of Mattresses (and Mattress Pads) (16 CFR part 1632) was issued by the Department of Commerce in 1972 under the authority of the Flammable Fabrics Act (“FFA”), 15 U.S.C. 1191 et seq. When the Commission was created, the responsibility for issuing and amending flammability standards under the FFA was transferred to the Commission. 15 U.S.C. 2079(b).Start Printed Page 36358

The standard sets forth a test to determine the ignition resistance of a mattress or mattress pad when exposed to a lighted cigarette. Lighted cigarettes are placed at specified locations on the surface of a mattress (or mattress pad). The standard establishes pass/fail criteria for the tests. The standard also requires manufacturers to maintain records demonstrating compliance with the testing requirements.

As originally issued, the standard required manufacturers to perform both prototype and production testing. A prototype test is a test of a mattress design before it is introduced into commerce. In 1984, the Commission amended the standard to eliminate the production testing requirement and make certain other changes to the standard (49 FR 39790).

On January 13, 2005, the Commission issued a notice of proposed rulemaking (“NPR”) proposing a new flammability standard for mattresses and mattress and foundation sets (“mattress/set”). 70 FR 2470. The proposed standard requires, with certain exceptions, that mattress manufacturers test specimens representative of each mattress/set prototype before introducing a mattress/set into commerce. The test is a full scale test based on research conducted by the National Institute of Standards and Technology (“NIST”), in which a mattress specimen is exposed to a pair of “T” shaped propane burners and allowed to burn freely for a period of 30 minutes. Measurements are taken, and the mattress/set must meet the specified test criteria for the prototype to be acceptable. The proposed standard also contains quality assurance and recordkeeping requirements.

Also on January 13, 2005, the Commission issued an advance notice of proposed rulemaking (“ANPR”) initiating a rulemaking proceeding for bedclothes. 70 FR 2514. The Commission described “bedclothes” broadly in the ANPR, noting that the term can include a variety of products, such as sheets, blankets, mattress pads, pillows, comforters, and similar products that are used as covering on a bed. The Commission stated its intention to evaluate particular items that should be included in or excluded from a proposed bedclothes standard as it proceeds with the rulemaking. Thus, while mattress pads are not included in the proposed mattress flammability standard, they could be included in the bedclothes rulemaking.

The Commission has received comments suggesting that, considering the Commission's intention to issue a new mattress flammability standard, the Commission should revoke the existing mattress standard. More specifically, commenters assert that the cigarette ignition test will not be necessary once the open flame test is in place and that it would be burdensome for industry to conduct the testing required by both standards. In light of these comments, the Commission is issuing this ANPR to begin consideration of whether the existing mattress standard should be revoked or amended.

B. The Product

The mattress standard at 16 CFR part 1632 defines “mattress” as “a ticking filled with a resilient material used alone or in combination with other products intended or promoted for sleeping upon.” 16 CFR 1632.1(a). The definition further describes items that are included in and excluded from the term “mattress.”

According to the International Sleep Products Association (“ISPA”), the top four producers of mattresses and foundations account for almost 60 percent of total U.S. production. In 2001, there were 639 establishments producing mattresses in the United States. ISPA estimated that the total number of U.S. conventional mattress shipments was 21.5 million in 2002, and is estimated to be 22.1 million in 2003 and 22.8 million in 2004. These estimates do not include futons, crib mattresses, juvenile mattresses, sleep sofa inserts, or hybrid water mattresses. These “non-conventional” sleep surfaces are estimated to comprise about 10 percent of total annual shipments of all sleep products. The value of mattress and foundation shipments in 2002, according to ISPA, was $3.26 and $1.51 billion respectively.

The standard defines “mattress pad” as “a thin, flat mat or cushion and/or ticking filled with resilient material for use on top of a mattress.” 16 CFR 1632.1(b). Foam mattress pads may be made with a flat surface, an “egg crate” design, or with “memory foam” that contours to the body. Industry sources estimate that perhaps 4 to 5 million egg crate pads are sold annually. Memory pads, which retail for $100 or more, sell about 3 million units annually.

C. Statutory Provisions

Section 4 of the FFA authorizes the Commission to initiate proceedings for a flammability standard when it finds that such a standard is “needed to protect the public against unreasonable risk of the occurrence of fire leading to death or personal injury, or significant property damage.” 15 U.S.C. 1193(a). That section also sets forth the process by which the Commission can issue or amend a flammability standard. The Commission first must issue an advance notice of proposed rulemaking (“ANPR”) which: (1) Identifies the fabric or product and the nature of the risk associated with the fabric or product; (2) summarizes the regulatory alternatives under consideration; (3) provides information about existing relevant standards and reasons why the Commission does not preliminarily believe that these standards are adequate; (4) invites interested persons to submit comments concerning the identified risk of injury, regulatory alternatives being considered, and other possible alternatives; (5) invites submission of an existing standard or portion of a standard as a proposed regulation; and (6) invites submission of a statement of intention to modify or develop a voluntary standard to address the risk of injury. 15 U.S.C. 1193(g).

If, after reviewing comments and submissions responding to the ANPR, the Commission determines to continue the rulemaking proceeding, it will issue a notice of proposed rulemaking. This notice must contain the text of the proposed rule along with alternatives the Commission has considered and a preliminary regulatory analysis. 15 U.S.C. 1193(i). Before issuing a final rule, the Commission must prepare a final regulatory analysis, and it must make certain findings concerning any relevant voluntary standard, the relationship of costs and benefits of the rule, and the burden imposed by the regulation. Id. 1193(j). The Commission also must provide an opportunity for interested persons to make an oral presentation before the Commission issues a final rule. Id. 1193(d).

The FFA does not explicitly address requirements or findings for revoking a flammability standard or amending a standard to eliminate requirements. To issue a standard the Commission must find that the standard is needed to protect the public against an unreasonable risk of death, personal injury or significant property damage due to the occurrence of fire. Id. 1193(a). Thus, it appears reasonable for the Commission, when revoking an FFA standard or eliminating certain requirements, to make findings that the standard (or particular requirement) is not necessary to protect against an unreasonable risk of death or injury. In other words, elimination of the standard (or certain requirements) would not result in an unreasonable risk.

D. Risk of Injury

As reported in the recent mattress NPR (70 FR 2472), the most recent national fire loss estimates indicated that mattresses and bedding were the Start Printed Page 36359first items to ignite in 19,400 residential fires attended by the fire service annually during 1995-1999 (based on data from the U.S. Fire Administration's National Fire Incident Reporting System data and the National Fire Protection Association's annual survey). These fires resulted in 440 deaths, 2,230 injuries and $273.9 million in property loss each year. Open flame ignition sources accounted for 35 percent of these fires and smoking material sources accounted for 30 percent of the fires. The remaining fires included a variety of ignition sources including heat sources too close to the bed.

The cigarette ignition test has been in effect since June of 1973. Thus, the incident data discussed above reflect the circumstances prevailing when a standard emphasizing cigarette ignition of mattresses has been in place. This is not necessarily an accurate indication of the risk of injury that would be present if there were no cigarette ignition test in the mattress standard.

The essential question for the Commission in considering whether to proceed with rulemaking to revoke the standard (or amend it by eliminating some requirements) is what effect such revocation or modification would have on the risk of death or injury from fire due to cigarette ignition of mattresses. The recently proposed mattress flammability standard with its open flame test would likely address some of the risk of death and injury that is currently prevented by the existing mattress standard with its cigarette ignition test. The question is how much of the risk from cigarette ignition would remain or recur once an open flame test standard is in effect if there were no cigarette ignition test standard.

E. Regulatory Alternatives

The Commission is issuing this ANPR as it considers alternatives for the current part 1632 standard. One possible result could be (after notice of proposed rulemaking) a final rule revoking the existing mattress standard in whole or in part (for example, leaving in place the portion of the standard applicable to mattress pads). Another possible result (also after notice of proposed rulemaking) could be a final rule amending the existing mattress standard to eliminate or modify some requirements. A third alternative would be to maintain the standard as it is.

With the issuance of this ANPR, the Commission staff begins to evaluate the continued need for the part 1632 standard and to assess the possibility of modifying the standard to eliminate unnecessary and burdensome requirements in light of the proposed open flame test mattress standard. The Commission asks for the public's input on issues relevant to this evaluation.

F. Invitation To Comment

In accordance with section 4(g) of the FFA, the Commission invites comments on this notice. Specifically, the Commission invites the following types of comments.

1. Comments concerning the risk of injury identified in this notice, the regulatory alternatives discussed above, and other alternatives to address the risk of injury;

2. The submission of an existing standard or portion of a standard as a proposed rule;

3. The submission of a statement of intention to modify or develop a voluntary standard to address the risk of injury identified in the notice along with a description of a plan to modify or develop the standard.

In addition, the Commission is interested in obtaining further information about the following issues:

1. The likelihood that a mattress conforming to the open flame test standard proposed at 70 FR 2470 would without further treatment or modification automatically conform to the existing requirements of 16 CFR part 1632, and the technical basis for such assertion.

2. Methods that could be used to identify smolder-prone materials/constructions.

3. Measurements of room conditions that could be produced by smoldering ignition of materials used in mattresses conforming to the proposed open flame test standard (e.g., a very heavy cellulosic ticking or layer of “untreated” cotton batting).

4. The necessity of retaining cigarette ignition resistance requirements for mattress pads (since there is no open flame test standard proposed for them) and the technical basis for such assertion.

5. Any information on the material and record-keeping costs that firms (especially small firms) incur in meeting the cigarette test standard.

Start Signature

Dated: June 17, 2005.

Todd Stevenson,

Secretary, U.S. Consumer Product Safety Commission.

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[FR Doc. 05-12387 Filed 6-22-05; 8:45 am]

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