[Federal Register Volume 64, Number 41 (Wednesday, March 3, 1999)]
[Proposed Rules]
[Pages 10245-10262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3304]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1213, 1500, and 1513


Bunk Beds; Notice of Proposed Rulemaking

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Consumer Product Safety Commission (``CPSC'' or 
``Commission'') has reason to believe that unreasonable risks of injury 
and death are associated with bunk beds that are constructed so that 
children can become entrapped in the beds' structure or become wedged 
between the bed and a wall.
    This notice proposes a rule mandating bunk bed performance 
requirements to reduce this hazard. This rule would be issued under 
both the Federal Hazardous Substances Act (``FHSA''), for bunk beds 
intended for use by children, and the Consumer Product Safety Act 
(``CPSA''), for beds not intended for children. The Commission solicits 
written comments and will provide an opportunity for oral comments from 
interested persons.

DATE: Written comments in response to this notice must be received by 
the Commission by May 17, 1999. The Commission will announce an 
opportunity for oral presentations of comments in a separate Federal 
Register notice to be published later.

ADDRESSES: Written comments, should be mailed, preferably in five 
copies, to the Office of the Secretary, Consumer Product Safety 
Commission, Washington, D.C. 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 telefacsimile to (301) 504-0127 or by email to 
[email protected]. Written comments should be captioned ``NPR for Bunk 
Beds.''

FOR FURTHER INFORMATION CONTACT: Concerning the substance of the 
proposed rule: John Preston, Directorate for Engineering Sciences, 
Consumer Product Safety Commission, Washington, D.C. 20207; telephone 
(301) 504-0494, ext. 1315.

SUPPLEMENTARY INFORMATION:

A. Background; History of Voluntary Standards Activities

    Bunk beds have been long recognized as a potential source of 
serious injury to children. In 1978, an Inter-Industry Bunk Bed Safety 
Task Group developed a Bunk Bed Safety Guideline for voluntary use by 
manufacturers and retailers of bunk beds intended for home use. Members 
of this group included the National Association of Bedding 
Manufacturers, the National Association of Furniture Manufacturers, the 
Southern Furniture Manufacturers Association, and the National Home 
Furnishings Association. The guideline became effective on January 1, 
1979.
    In February 1981, an American National Standard for Bedding 
Products and Components (ANSI Z357.1) was published. For the most part, 
this standard contained dimensional requirements for mattresses and 
foundations for all beds. However, it also incorporated the 
requirements of the January 1, 1979, industry safety guideline for bunk 
beds. In May 1986, the American Furniture Manufacturer's Association 
(``AFMA'') published Voluntary Bunk Bed Safety Guidelines developed by 
the Inter-Industry Bunk Bed Committee (``IIBBC'').
    On August 26, 1986, the Consumer Federation of America (``CFA'') 
filed a petition with CPSC requesting the promulgation of a mandatory 
safety regulation for bunk beds. In its petition, CFA cited three 
different risks of injury posed by bunk beds: inadequate mattress 
supports that can allow the mattress to fall to the bunk below or to 
the floor, entrapment in the space between the guardrails and the 
mattress, and entrapment between the bed and the wall. CFA alleged that 
the voluntary industry guidelines did not fully address the hazards 
posed to consumers.
    In July 1988, AFMA published Revised Voluntary Bunk Bed Safety 
Guidelines, with an effective date of April 1989. A majority of the 
revisions were made as a result of CPSC staff comments on the May 1986 
guidelines, which included comments that the requirements addressing 
entrapment in openings in guardrails were not adequate and that bunk 
beds should be required to be sold with two guardrails. To prevent 
entrapment, the 1989 revised guidelines did require two guardrails to 
accompany a bunk bed, and required that any opening in the structure of 
the upper bunk be less than 3\1/2\ inches in width.
    On July 21, 1988, the Commission voted to deny the petition filed 
by the CFA, but directed its staff to prepare a letter to AFMA urging 
that it reconsider the CPSC staff's comments that had not been included 
in the Revised Voluntary Bunk Bed Safety Guidelines. That letter was 
sent in August 1988. It also requested (a) that AFMA consider 
additional staff recommendations, (b) that AFMA submit the revised 
guidelines to a voluntary standards organization such as ANSI or ASTM 
for development as a voluntary safety standard, and (c) that AFMA 
develop, and provide to the Commission, a plan and proposed 
implementation date for a certification program to ensure that bunk 
beds comply with the guidelines. AFMA responded that a certification 
program would be established upon publication of an ASTM bunk bed 
standard.
    In October 1992, ASTM published the Standard Consumer Safety 
Specification for Bunk Beds, ASTM F1427-92, in response to the 
Commission's August 1988 request. The performance requirements in that 
standard primarily addressed falls from the upper bunk, entrapment in 
the upper bunk structure or between the upper bunk and a wall, and 
security of the foundation support system. The standard also had a 
requirement for a warning label and for instructions to accompany the 
bed. In June 1994, the ASTM bunk bed standard was republished with 
additional provisions (requested by CPSC staff) to address collapse of 
tubular metal bunk

[[Page 10246]]

beds. The most current version of the ASTM bunk bed standard was 
published in September 1996 and contains additional revisions suggested 
by CPSC staff. These address entrapment in lower-bunk end structures; 
mattress size information on the warning label and carton; and the name 
and address of the manufacturer, distributor, or seller on the bed. To 
protect children from entrapment, the ASTM standard requires that:
     There be guardrails on both sides of the upper bunk, 
except for up to 15 inches at the ends of the bed;
     Openings in the structure surrounding the upper bunk be 
small enough to prevent passage of a tapered block having a base 
measuring 3.5 inches by 6.2 inches;
     Openings in the end structures within a height of 9 inches 
above the sleeping surface of the lower bunk mattress be either small 
enough to prevent passage of a tapered block having a base measuring 
3.5 inches by 6.2 inches or large enough to permit passage of a 9-inch 
diameter sphere.
    Despite these voluntary efforts, the Commission, over the last 4 
years, has recalled over one-half million bunk beds that did not 
conform to the entrapment requirements in the ASTM F1427-96 standard 
(ASTM standard). Because of continued reports of deaths and other 
incidents associated with bunk beds, and because of indications there 
may not be adequate compliance with the voluntary ASTM standard, the 
CPSC published an advance notice of proposed rulemaking (``ANPR'') to 
begin a rulemaking proceeding that could result in performance or other 
standards to address the risk of entrapment associated with bunk beds. 
63 FR 3280 (January 22, 1998). The Commission received 418 comments in 
response to the ANPR.

B. Incident Data

Deaths

    From January 1990 through October 23, 1998, CPSC received reports 
of 89 bunk-bed-related deaths of children under age 15 (see Table 1 
below).

 Table 1--Fatal Bunk Bed Incidents Reported to CPSC, by Year and Hazard
                                 Pattern
------------------------------------------------------------------------
                                                     Hazard Pattern
                 Year                    Total -------------------------
                                                Entrap.  Hanging   Falls
------------------------------------------------------------------------
Total.................................      89       57       24       8
------------------------------------------------------------------------
1990..................................       7        5        2
1991..................................      15       10        2       3
1992..................................       4        3        1
1993..................................      19       10        7       2
1994..................................      10        6        3       1
1995..................................      12        5        5       2
1996..................................      12       11        1
1997..................................       8        6        2
1998..................................       2        1       1
------------------------------------------------------------------------
Source: CPSC data files, January 1990--October 1998.

    Of the 89 fatalities, 57 (64%) resulted from entrapment. An 
additional 24 children died when they inadvertently were hung from the 
bed by such items as belts, ropes, clothing, and bedding, and eight 
children died in falls from bunk beds.
    As shown in Table 2, over 96% (55 of 57) of those who died in 
entrapment incidents were age 3 and younger, and all but one were 
younger than 5. In contrast, almost 80% (19 of 24) of those who died in 
hanging incidents were age 6 and older. Eight fall-related deaths 
occurred during this period and involved both pre-school and older 
victims.
    Using statistical methodology, a national estimate of the total 
annual entrapment deaths was developed. About 10 bunk-bed-related 
entrapment deaths are estimated to have occurred in the United States 
each year since 1990.

 Table 2.--Fatal Bunk Bed Incidents Reported to CPSC, by Victim Age and
                             Hazard Pattern
                       [January 1990-October 1998]
------------------------------------------------------------------------
                                                     Hazard pattern
              Age (years)                Total -------------------------
                                                Entrap.  Hanging   Falls
------------------------------------------------------------------------
Total.................................      89       57       24       8
------------------------------------------------------------------------
<1....................................      18       16        1       1
1.....................................      20       19        1
2.....................................      15       13        1       1
3.....................................       8        7                1
4.....................................       4        1        1       2
5.....................................       1                 1
6.....................................       3                 3
7.....................................       3        1        2
8.....................................       2                 2
9.....................................       3                 2       1
10+...................................      12                10      2
------------------------------------------------------------------------
Source: CPSC data files, January 1990-October 1998.

Injuries

    From hospital emergency room data reported through the National 
Electronic Injury Surveillance System (NEISS), the Commission estimates 
that about 31,400 bunk-bed-related injuries to children under the age 
of 15 were treated in U.S. hospital emergency rooms during 1997. Almost 
one-half (43%) of the victims were younger than 5 years. A review of 
the descriptive comments received for each injury revealed that falls 
from the bed were involved in almost all cases in which the 
circumstances were reported. About two percent of the victims were 
hospitalized. Virtually none of the reported incidents involved 
entrapment or hanging, which generally results in either death or no 
injury. With either of these results, the victim is not likely to be 
taken to an emergency room.

Entrapment Incidents

    Entrapment-related incidents, which accounted for the majority of 
deaths, were reviewed in further detail to provide additional 
information about the circumstances involved. Both fatal and ``near-
miss'' incidents were included. The ``near-miss'' incidents, usually 
reported through consumer complaints, were those in which a child 
became entrapped in the bed, often requiring rescue by the parent or 
caregiver. In these cases, there were generally no injuries or injuries 
were minor (contusions/abrasions). However, ``near-miss'' incidents 
were examined because they were judged to have the potential for death 
or serious injury.
    CPSC received reports of at least 13 additional entrapment 
incidents (3 fatal) since the January 8, 1998 Commission briefing. This 
results in a total of 116 incidents from January 1990 through October 
23, 1998, of which 57 were fatalities and 59 were ``near-misses.'' 
Table 3 illustrates the location in the bunk bed of the entrapments.

[[Page 10247]]



   Table 3--Location in Bunk Bed of Fatal and ``Near-Miss'' Entrapment
                                Incidents
------------------------------------------------------------------------
                                              Type of incident
      Location of entrapment      --------------------------------------
                                      Total        Fatal      Near-miss
------------------------------------------------------------------------
    Total........................          116           57           59
                                  --------------------------------------
Top Bunk.........................           74           39           35
                                  --------------------------------------
    Guardrail....................           48           27           21
    Bed/Wall.....................           11            9            2
    End Structure................           12            1           11
    Add-On Rail..................            1            1
    Other........................            1                         1
    Unk..........................            1            1
Bottom Bunk......................           26           12           14
                                  --------------------------------------
    Guardrail....................            1                         1
    Bed/Wall.....................            6            6
    End Structure................           13            3           10
    Add-On Rail..................            2            2
    Other........................            4            1            3
Ladder...........................            5            2            3
                                  --------------------------------------
Unknown Bunk.....................           11            4            7
                                  --------------------------------------
    Guardrail....................            2                         2
    Bed/Wall.....................            1            1
    End Structure................            4                         4
    ``Safety Rails''.............            1            1
    Other........................            1                         1
    Unk..........................            2           2
------------------------------------------------------------------------
Source: CPSC data files, January 1990--October 1998.

    As shown in Table 3, 74 of the entrapment incidents involved the 
upper bunk, 26 involved the lower bunk, and 5 involved the ladder. In 
the incidents where the information was available, it appeared that all 
but three of the incidents involving fatal entrapment in the structure 
of bunk beds occurred on beds not meeting the entrapment requirements 
in the ASTM standard. Of the three incidents involving beds that 
appeared to conform to the entrapment requirements, two involved 
entrapment in the upper bunk. In these incidents, an 18-month-old 
infant and a child who was almost 5 years old slipped through the space 
between the end of the guardrail and the bed end structure and became 
wedged between the bed and a wall. In the third incident, a 22-month-
old child became entrapped by the head in an opening between the 
underside of the upper bunk foundation support and a curved structural 
member in the bunk-bed end structure.

C. Conformance to Entrapment Requirements in ASTM Standard

    The CPSC's Compliance staff continues to identify bunk beds that do 
not comply with the entrapment requirements in the ASTM standard. On 
every occasion in the past 4 years when the staff has focused on bunk 
bed conformance, it has located nonconforming beds.
    Between November 1994 and September 1997, CPSC's staff worked with 
41 manufacturers to recall bunk beds that did not conform to the 
entrapment requirements in the ASTM standard. The recalls were the 
result of intensive inspections of bunk bed retailers by the CPSC Field 
staff and involved over 531,000 bunk beds.
    During February and April 1998, CPSC's Field staff visited 55 
retail stores in 39 cities and examined 145 bunk bed models from 58 
manufacturers. Of these, 23 firms had at least one model of bunk bed 
that did not conform to the ASTM standard, and 7 of those firms were 
repeat violators. The staff preliminarily determined that bunk beds 
made by 7 of the 23 firms presented a substantial product hazard. Two 
of these firms were out of business, and the other five firms were 
requested to recall/retrofit their nonconforming bunk beds. A CPSC News 
Release announcing this recall was issued on November 10, 1998. Sixteen 
of the 23 firms had nonconforming bunk beds that the staff believed 
would not present a substantial risk of entrapment. For example, the 
openings in the structure of the upper bunk bed were only slightly 
larger than the spacing requirements of the ASTM standard, and a 
child's torso would not be likely to slip into these openings. However, 
letters were sent to these firms notifying them of their nonconformance 
and asking them to correct future production.
    Table 4, below, lists the number of beds produced by the five 
manufacturers whose beds were found to have serious violations of the 
entrapment requirements in the ASTM standard.

                                 Table 4.--Number of Bunk Beds Subject to Recall
----------------------------------------------------------------------------------------------------------------
                                                                       Total sales
                Mfr.                 No. of models/   Annual sales     since start    Knowledge of ASTM standard
                                       start date                         date
----------------------------------------------------------------------------------------------------------------
A*.................................          5/1995           8,000          14,477  Yes.\1\
B*.................................          2/1997           2,000           2,463  Yes.\2\

[[Page 10248]]

 
C..................................          1/1994             150             600  Yes.\3\
D..................................          1/1986           1,500          18,000  No.\4\
E..................................          1/1997             514           1,028  No.\5\
    Total..........................  ..............          12,164         36,568
----------------------------------------------------------------------------------------------------------------
*Repeat Violators
\1\ Company recalled several bunk beds in 1995. President of company said he thought the beds conformed.
\2\ Company is an importer of beds from Brazil and claimed to have knowledge of the ASTM standard but not with
  respect to the guardrail issue.
\3\ Company was aware of the ASTM standard but claimed to have misinterpreted certain requirements.
\4\ Company claimed to have no knowledge of the ASTM standard.
\5\ During a 1998 inspection, the plant manager claimed to have no knowledge of the ASTM standard.

    Table 4 shows that the 1998 limited retail inspections resulted in 
the recall of over 36,000 bunk beds. The total annual sales of beds 
produced by the 58 manufacturers whose beds were examined during the 
inspections is not known. The table also shows that three of the five 
manufacturers whose beds were found to have serious entrapment hazards 
were aware of the existence of the ASTM standard and that two had been 
previously notified by CPSC that their beds did not conform to the 
standard.
    Since April 1998, the staff has identified 15 more bunk bed makers, 
and is investigating their products.
    At the time the ANPR was issued, the Commission knew of 106 bunk 
bed manufacturers. As a result of the recent retail inspections of 
furniture retailers and a search of the Internet, CPSC is now aware of 
about 160 manufacturers and importers of bunk beds. It is evident from 
the history of the Commission's efforts to identify nonconforming bunk 
beds that there are many small firms that enter this market and do not 
conform to the ASTM standard, either because they are unaware of it or 
because they do not believe they need to conform because the standard 
is voluntary.
    Based on this extensive experience, the Commission staff believes 
that it would be able to identify significant numbers of nonconforming 
beds each year into the foreseeable future. Therefore, the staff 
believes it is reasonable to conclude that the current degree of 
conformance with the voluntary standard would begin to fall if CPSC's 
extraordinary enforcement efforts in this area were cut back and a 
mandatory standard were not in place.

D. Statutory Authorities for This Proceeding

What Statute is Appropriate for Regulating Bunk Beds?

    The Federal Hazardous Substances Act (``FHSA'') authorizes the 
regulation of unreasonable risks of injury associated with articles 
intended for use by children that present mechanical (or electrical or 
thermal) hazards. FHSA Sec. 2(f)(D), 15 U.S.C. 1261(f)(D). The hazards 
associated with bunk beds that are described above are mechanical. See 
FHSA Sec. 2(s), 15 U.S.C. 1261(s). The Consumer Product Safety Act 
(``CPSA'') authorizes the regulation of unreasonable risks of injury 
associated with ``consumer products,'' which include bunk beds--whether 
intended for the use of children or adults. CPSA Sec. 3(a)(1), 15 
U.S.C. Sec. 2052(a)(1).
    Thus, bunk beds intended for the use of adults can be regulated 
only under the CPSA, while bunk beds intended for the use of children 
potentially could be regulated under either the FHSA or the CPSA. Bunk 
beds probably would be considered as intended for use by children only 
if they have smaller than twin-size mattresses or incorporate styling 
or other features especially intended for use by children. The data 
available to the Commission's staff do not indicate whether the known 
deaths and injuries are occurring on beds intended for use by children. 
Nevertheless, any regulation for bunk beds should include beds intended 
for children, since there is no reason why such beds, to the extent 
they exist, do not present the same risks to children as do adults' 
bunk beds.
    Section 30(d) of the CPSA, however, provides that a risk associated 
with a consumer product that can be reduced to a sufficient extent by 
action under the FHSA can be regulated under the CPSA only if the 
Commission, by rule, finds that it is in the public interest to do so. 
15 U.S.C. 2079(d). Because the risks of bunk beds can be addressed with 
the two-pronged approach (i.e., by both statutes), there appears to be 
no strong reason why it would be in the public interest to regulate 
bunk beds only under the CPSA. Accordingly, the requirements are 
proposed as two separate rules, one under the CPSA for ``adult'' bunk 
beds and the other under the FHSA for beds intended for use by 
children. The Commission seeks comment on whether there are categories 
of bunk bed use where the beds will always be used by adults, even 
after any sale by the original purchaser. If such uses can be 
identified, the Commission would consider whether bunk beds sold solely 
for such uses should be exempt from these rules.

What Effect Will the Existence of the Voluntary Standard Have on the 
Rulemaking?

    The Commission may not issue a standard under either the CPSA or 
the FHSA if an industry has adopted and implemented a voluntary 
standard to address the risk, unless the Commission finds that ``(i) 
compliance with such voluntary . . . standard is not likely to result 
in the elimination or adequate reduction of such risk of injury; or 
(ii) it is unlikely that there will be substantial compliance with such 
voluntary . . . standard.'' See 9(f)(3)(D) of the CPSA, 15 U.S.C. 
2058(f)(3)(D), and 3(i)2) of the FHSA, 15 U.S.C. 1262(i)(2). The 
percentage of currently produced bunk beds that conform to the ASTM 
standard could be as high as 90% or more. This raises the questions of 
whether the ASTM standard is substantively adequate and, if so, whether 
it will command ``substantial compliance.''
    The proposed rule goes beyond the provisions of the ASTM voluntary 
standard. First, it eliminates the voluntary standard's option to have 
an opening of up to 15 inches at each end of the wall-side guardrail. 
Second, the voluntary standard protects against entrapment only within 
the 9-inch space immediately above the upper surface of the lower 
bunk's mattress. The mandatory standard extends this area of protection 
upward to the level of the underside of the upper bunk foundation. Both 
of these provisions, which are in the proposed rule but not

[[Page 10249]]

in the voluntary standard, address fatalities and, as noted below, have 
benefits that bear a reasonable relationship to their costs. 
Furthermore, the absence of any identification of the manufacturer on 
many beds has resulted in extremely low recall effectiveness rates. The 
proposed mandatory standard requires that the name and address of the 
manufacturer, distributor, or retailer be on the beds.
    Therefore, the Commission preliminarily finds that compliance with 
the voluntary standard would not be likely to result in the elimination 
or adequate reduction of the risk of entrapment injury or death. For 
this reason, the voluntary standard would not bar the proposed rule. If 
the ASTM standard were substantively adequate, the Commission would be 
required to make a finding on substantial compliance.
    Neither the CPSA nor the FHSA define ``substantial compliance.'' In 
dealing with this issue as it applies to bunk beds, the Office of 
General Counsel reviewed the Commission's past actions and statements 
dealing with the meaning of ``substantial compliance,'' and reviewed 
the appropriate legislative history. The Office of General Counsel has 
proffered the opinion that substantial compliance does not exist where 
there is a reasonable basis for concluding that a mandatory rule would 
achieve a higher degree of compliance. The Office of General Counsel 
maintains that two key, although not necessarily exclusive, 
considerations in making this determination are (1) whether, as 
complied with, the voluntary standard would achieve virtually the same 
degree of injury reduction that a mandatory standard would achieve and 
(2) that the injury reduction will be achieved in a timely manner.
    For the reasons explained in Section E of this notice, the 
Commission staff believes that a mandatory standard will be more 
effective in reducing entrapment deaths from bunk beds than will the 
voluntary standard. Therefore, the staff believes there is not 
substantial compliance with the voluntary standard, which consequently 
does not bar issuing the proposed rule.
    The Office of General Counsel further states that this finding here 
does not mean that the Commission would conclude that a mandatory 
standard will always be more effective than a voluntary standard. Each 
case must be considered on its own facts. Moreover, even if there is 
insufficient compliance with a voluntary standard, neither the CPSA nor 
the FHSA would compel the Commission to regulate.
    The Commission takes no position on this interpretation of 
substantial compliance at this time. The Commission encourages all 
persons who would be affected by such an interpretation to submit 
comments for the record.
    The Office of Compliance has also enumerated certain other factors 
which it feels impact the level of conformance with the voluntary 
standard. These are addressed in Section E below. The Commission 
reserves judgment on the propriety of considering these factors in 
measuring substantial compliance and seeks public comments on them. 
Also note the draft findings with regard to substantial compliance in 
the text of the proposed rules themselves, which the Commission 
includes in order to elicit the most effective public comment.

E. The Potential Need for a Mandatory Standard

    In deciding to propose this rule, the Commission considered 
carefully the particular characteristics of the bunk bed industry. This 
industry is highly diverse and fragmented, with differing levels of 
sophistication relating to product safety. Firms can easily enter and 
leave the bunk bed manufacturing business. The Commission has 
identified about 160 manufacturers of bunk beds--a 50% increase since 
the Commission considered the ANPR. The Office of Compliance maintains 
that this fragmentation and diversity contributes to difficulties in 
achieving more complete compliance with the voluntary standard. Because 
it is difficult to identify all firms in the industry, Compliance 
indicates it is difficult for voluntary standards organizations and 
trade associations to conduct outreach and education efforts regarding 
the voluntary standard. By contrast, in industries with a small number 
of firms, it is easier to find the firms and educate them about the 
existence and importance of voluntary standards. Mandatory standards--
codified in the accessible Code of Federal Regulations--are easier to 
locate, and their significance is more obvious.
    These generalizations about the industry found support in the 
staff's enforcement experience. Some manufacturers contacted by 
Compliance did not see an urgency to comply with a ``voluntary'' 
standard, and they did not recognize the hazards associated with 
noncompliance. Other manufacturers were not even aware of the standard. 
As a result, entrapment hazards will continue to exist on beds in use 
and for sale.
    Compliance maintains that a mandatory standard would also reduce 
the staff's workload in ensuring that children are not exposed to bunk 
beds presenting entrapment hazards. In the past several years, the 
staff has expended significant resources to obtain the current level of 
conformance to the ASTM standard. If the Commission issues a mandatory 
standard, Compliance expects that fewer resources would be required to 
enforce the standard than are currently being used to identify 
defective bunk beds.
    For the foregoing reasons, Compliance believes that a mandatory 
bunk bed entrapment standard may be needed and could bring the 
following benefits:
    1. A mandatory standard could increase the awareness and sense of 
urgency of manufacturers in this industry regarding compliance with the 
entrapment provisions, thereby increasing the degree of conformance to 
those provisions.
    2. A mandatory standard would allow the Commission to seek 
penalties for violations. Publicizing fines for noncompliance with a 
mandatory standard would deter other manufacturers from making 
noncomplying beds.
    3. A mandatory standard would allow state and local officials to 
assist CPSC staff in identifying noncomplying bunk beds and take action 
to prevent the sale of these beds.
    4. Under a mandatory standard, retailers and distributors would 
violate the law if they sold noncomplying bunk beds. Retailers and 
retail associations would then insist that manufacturers and importers 
provide complying bunk beds.
    5. The bunk bed industry is extremely competitive. Manufacturers 
who now conform to the ASTM standard have expressed concern about those 
firms that do not. Nonconforming beds can undercut the cost of 
conforming beds. A mandatory standard would take away any competitive 
cost advantage for unsafe beds.
    6. A mandatory standard would help prevent noncomplying beds made 
by foreign manufacturers from entering the United States. CPSC could 
use the resources of the U.S. Customs Service to assist in stopping 
hazardous beds at the docks.
    7. The absence of manufacturer identification on many beds has 
resulted in extremely low recall effectiveness rates. The proposed 
standard would require companies to include their identity on the beds.
    8. Although the Commission currently believes that the ASTM 
voluntary standard for bunk beds adequately addresses the most common 
entrapment hazards associated with these products,

[[Page 10250]]

the Commission is aware of three entrapment fatalities that occurred in 
conforming beds. A mandatory standard could modify the provisions in 
the voluntary standard so as to address the entrapment deaths that can 
occur on beds that comply with the voluntary standard.
    Therefore, the Commission decided to issue an NPR to seek public 
comment on the proposed rule.
    However, the available information does not support a conclusion 
that changes to currently produced bunk beds would significantly reduce 
the number of fatalities due to falls and hangings. Thus, the 
Commission is not proposing performance requirements to address falls 
or hangings from bunk beds at this time.

F. Rulemaking Procedure

    The Commission intends to issue the requirements they would apply 
to bunk beds not intended for use by children as a consumer product 
safety standard under the CPSA. This requires a finding that the 
requirements are reasonably necessary to eliminate or adequately reduce 
an unreasonable risk of injury presented by bunk beds. This and other 
required findings are discussed in the proposed rule.
    Bunk beds intended for the use of children will be regulated by a 
determination under FHSA Section 3(a)(1) that bunk beds that do not 
comply with the proposed rule present mechanical hazards, as provided 
in FHSA Section 3(a)(1), and are thus hazardous substances. See FHSA 
Sections 2(f)(1)(D) and 2(s). Under the FHSA, a product that is a 
hazardous substance and intended for use by children is banned. FHSA 
Section 2(q)(1). Other required finding are discussed in the proposed 
FHSA rule.
    Before adopting a CPSA standard or FHSA rule, the Commission first 
must issue an ANPR as provided in section 3(f) of the FHSA or section 
9(a) of the CPSA. 15 U.S.C. 1262(f), 2058(a). For bunk beds, the 
Commission issued an ANPR on January 22, 1998. 63 FR 3280. If the 
Commission continues with a proposed rule, the Commission must publish 
the text of the proposed rule, along with a preliminary regulatory 
analysis, in accordance with section 3(h) of the FHSA or section 9(c) 
of the CPSA. 15 U.S.C. 1262(h), 2058(c). If the Commission then issues 
a final rule, it must publish the text of the final rule and a final 
regulatory analysis that includes the elements stated in 3(i)(1) of the 
FHSA or section 9(f)(2) of the CPSA. 15 U.S.C. 1262(i)(1), 2058(f)(2). 
Before issuing a final regulation, the Commission must make certain 
statutory findings concerning voluntary standards, the relationship of 
the costs and benefits of the rule, and the burden imposed by the 
regulation. FHSA Sec. 3(i)(2), 15 U.S.C. 1262(i)(2); CPSC Sec. 9(f)(3), 
15 U.S.C. 2058(f)(3).

G. Response to Comments on the ANPR

    The Commission received 418 comments in response to the ANPR for 
bunk beds. Of these, 396 commenters favored a mandatory rule, 19 
opposed such a rule, and three expressed no opinion on whether they 
favored a mandatory rule.
    Of the 396 commenters who favored a mandatory rule, 355 submitted a 
form letter stating:

    If one child dies due to unsafe bunk bed design and manufacture 
this questions whether voluntary standards in the industry are 
sufficient to protect our children. Due to the fact that there were 
more than 45 fatalities and over 100,000 injuries from 1990 to 1995, 
I feel that is overwhelming evidence that mandatory standards must 
be passed to insure that this tragedy does not strike another 
American family.

    Forty-four comments were received from students at the University 
of Tennessee School of Law. Twenty-eight of the students favored a 
mandatory rule, 15 opposed such a rule, and one expressed no opinion on 
this issue.
    1. Issue: Guardrails. Thirteen commenters suggested eliminating the 
allowable 15-inch openings in the guardrail on the wall side of an 
upper bunk, to address the two entrapment deaths that occurred on 
conforming beds. In those instances, a child age 18 months and another 
almost 5 years old slipped through openings at the end of the guardrail 
and became entrapped between the bed and a wall. Six comments from 
proponents of a mandatory rule suggested that it should address falls 
from the upper bunk with more stringent requirements than are in the 
current ASTM standard. Although most commenters expressing this view 
did not suggest specific provisions to address falls, some felt that 
eliminating the 15-inch openings between the ends of the upper bunk 
guardrails and the bed end structures that are permitted by the current 
ASTM standard may reduce the likelihood of falls.
    Response. CPSC agrees with the 13 commenters who suggested 
eliminating the 15-inch-wide openings between ends of guardrails and 
bed end structures on the wall side of the upper bunk to minimize the 
likelihood of entrapment between the upper bunk of the bed and a wall. 
Accordingly, the proposed rule requires a side guardrail on one side of 
the upper bunk to extend continuously between the end structures.
    In most cases, incident data do not reveal the precise cause of 
falls from the upper bunk. Some reports stated that the fall was 
associated with the use of the bunk's ladder but did not state whether 
the ladder could be accessed through an opening in the guardrail or 
whether it could only be reached by climbing over a continuous 
guardrail or over the end structure of the upper bunk. It is possible 
that having to climb over the guardrail or end structure to get on or 
off the ladder could increase the incidence of falls. Since the CPSC 
cannot determine whether continuous guardrails on both sides of the 
upper bunk would significantly affect the likelihood of a fall, such a 
requirement is not included in the proposed rule.
    2. Issue: Lower bunk end structures. Seven commenters suggested 
that a mandatory rule should include the lower bunk entrapment criteria 
that are in the ASTM standard but should apply them to the entire end 
structure below the level of the upper bunk mattress support system. 
Such a requirement would address a fatal incident that occurred on a 
bed conforming to the current ASTM standard. That incident involved a 
22-month-old child who was entrapped by the head in an opening between 
the underside of the upper bunk foundation support and a curved 
structural member in the bed end structure. The current ASTM standard 
has lower-bunk entrapment requirements that apply only to the portion 
of the end structure that is between the level of the lower bunk 
mattress support system and a level that is 9 inches above the sleeping 
surface of the lower bunk (when it is equipped with a mattress having 
the maximum thickness recommended by the manufacturer).
    Response: The Commission agrees with these commenters, and the 
proposed rule contains a requirement addressing entrapment in lower 
bunk bed end structures that is similar to that in the ASTM standard 
but applies to the entire portion of the bed's end structures that 
extends between the upper side of the foundation of the lower bunk and 
the underside of the foundation of the upper bunk. While this may 
require a change in the design of the end structures of some bunk beds, 
the Commission believes that the cost would be small.
    3. Issue: Young children and public awareness: Sixteen commenters 
noted that a majority of the entrapment deaths involved very young 
children, who should not be placed on an upper bunk. These commenters 
were about equally

[[Page 10251]]

divided between proponents and opponents of a mandatory rule. Voicing 
concern that the parents of the victims were probably unaware of the 
hazard of placing these young children on the upper bunk, they 
suggested that the Commission could join with the American Furniture 
Manufacturers Association (AFMA) in mounting a public awareness 
campaign. AFMA represents manufacturers of bunk beds.
    Response: The first bunk bed safety guideline became effective in 
1979 and required a label which, among other warnings, stated 
``Prohibit children under 6 years on upper bunk.'' The current (1996) 
ASTM standard also bears a similar statement. For almost 20 years, bunk 
beds conforming to the applicable safety guideline or voluntary 
standard have warned against placing children under 6 years old on the 
upper bunk, yet consumers continue this practice. The proposed rule 
also contains a requirement for a warning label. However, the 
Commission believes that the most effective way to address entrapment 
is to design the bed so that it does not present this hazard to 
children under 6 years of age because some parents would continue to 
place their young children on the upper bunk.
    4. Issue: Retailer tests. A furniture retailer submitted comments 
opposing a mandatory rule on the grounds that:
     The number of injuries associated with bunk bed entrapment 
are minimal [, and,]
     For [its own] protection, a retailer would be required to 
engage in [its] own testing, thereby dramatically increasing the price 
[of a bunk bed] to the customer.
    Response: While entrapment generally does not result in an injury 
requiring medical attention, it is the leading cause of death 
associated with bunk beds, and the proposed rule is primarily intended 
to address entrapment fatalities. The Commission does not agree that a 
mandatory rule would force retailers to incur the cost of having bunk 
beds tested. If retailers are concerned that manufacturers may claim 
conformance when in fact their products do not conform, the tests in 
the proposed rule are simple enough that retailers easily could check 
for conformance themselves.
    5. Issue: Installation and bedding choice. The same furniture 
retailer argues that a mandatory standard ignores major contributing 
factors to bunk bed accidents, i.e., consumer installation and consumer 
bedding choice.
    Response: CPSC is not aware of any incidents resulting from 
improper consumer assembly or from an incorrect choice of bedding.
    6. Issue: Degree of voluntary conformance. A trade association and 
the organization ``Consumer Alert'' question the legality of a 
rulemaking proceeding in light of the Commission's estimate of the 
current conformance to the ASTM standard.
    Response: See Section D of this notice.
    7. Third-party certification as an alternative. An independent 
testing laboratory that currently operates a third-party certification 
program stated that they believe that such a certification program 
indicating conformance to the ASTM standard would be more productive 
than a mandatory rule. The laboratory suggested that CPSC could 
recognize the certification program and encourage manufacturers to join 
it as CPSC presently does for seven juvenile products' certification 
programs.
    Response. The Commission does not believe that recognition of a 
third-party certification program would have a significant effect on 
the degree of conformance to the ASTM standard, because the firms that 
have been found to be in violation of the entrapment provision in the 
standard are small and are not likely to participate.

H. Preliminary Regulatory Analysis

Introduction

    The CPSA and FHSA require the Commission to publish a preliminary 
regulatory analysis of the proposed rule and reasonable alternatives. 
This includes a discussion of the likely benefits and costs of the 
proposed rule and its reasonable alternatives. The Commission's 
preliminary regulatory analysis is set forth below.

Product and Market Information

    Bunk beds are essentially stackable twin beds, with wood or metal 
frames. Some models now incorporate a lower double bed with a twin 
upper. The Commission notes that the definition of bunk bed in the 
proposed rule is based on the definition in the ASTM standard. That 
definition states that a bunk bed is a bed in which the underside of 
the foundation is over 30 inches from the floor. This does not require 
that there be a second stackable mattress and foundation. The 
Commission requests comments on whether the rule should be limited to 
beds with more than one foundation.
    The retail prices of these products range from $100 to $700; 
manufacturers estimate the average retail price of a bunk bed at $300. 
According to AFMA, which represents manufacturers of bunk beds, forty 
firms, which are either AFMA members or members of the existing ASTM 
bunk bed subcommittee, account for about 75-80% of total annual sales 
of bunk beds. At the time the ANPR was issued, the Commission knew of 
106 manufacturers of bunk beds, including the 40 AFMA or ASTM members. 
Staff is now aware of about 160 firms manufacturing bunk beds. The 
share of the market accounted for by the other non-AFMA/ASTM firms is 
not known, but is believed to account for a large portion of the 
remaining 20-25% of the market. Additionally, there are likely other 
firms unknown to CPSC that are producing bunk beds.
    Industry sources estimate that about 500,000 bunk beds are sold 
annually, and that the expected useful life of bunk beds is 13 to 17 
years. Based on the CPSC's Product Population Model (a computer model 
which estimates how many of a particular product are in use at a given 
time), there may be some 7-9 million bunk beds available for use; this 
includes beds to which children are not exposed and beds which are not 
stacked.
    Historically, imports have accounted for only a small part of the 
U.S. market for bunk beds. This is due in large part to the shipping 
cost relative to price. Since bunk beds can be shipped unassembled and 
mated to U.S.-made mattresses, there is a small number of imported bunk 
beds sold in the United States. AFMA spokesmen report that there are no 
data on the extent of such imports. However, AFMA indicated that 
imports of bunk beds by its members appear to be increasing.

Conformance With the Existing Voluntary Standard

    The Commission's Compliance staff has reported that all 40 firms 
that either are members of AFMA or have ASTM standing produce bunk beds 
that are in conformance with the existing voluntary standard. The staff 
has examined the products of and/or contacted the remaining firms known 
to be producing bunk beds. Subsequently, the staff worked with the 
manufacturers of beds that did not comply with the voluntary standard 
to implement a number of corrective actions, including recalls. Since 
then, all of the beds produced by these firms have been in conformance.
    The extent of conformance to the voluntary bunk-bed standard since 
1979 (the initial year industry guidelines were available) is not known 
with precision. However, based on its knowledge of industry practices, 
CPSC's Engineering Sciences staff estimates that roughly 50% of 
production from 1979 to

[[Page 10252]]

1986 conformed to the voluntary standard's upper-bunk entrapment 
requirements. This rough estimate is based in part on the fact that, 
although the guidelines were available during this period, even some 
firms represented on the ASTM standards committee did not follow them.
    The industry publicized the availability of guidelines in 1986, and 
CPSC staff became more heavily involved in the standards process. The 
CPSC believes that the publication of these guidelines and CPSC staff 
involvement raised industry awareness of the existence and importance 
of the voluntary standard. Accordingly, conformance may have increased 
to perhaps 75% of production from 1986 to 1992. In 1992, ASTM published 
its bunk bed standard, and CPSC began to monitor products for 
conformance to that standard. Therefore, for purposes of the cost/
benefit analysis, we assume that 90% of production since 1992 may 
conform to the ASTM standard.
    Many of the bunk beds produced in the early to mid-1980's, which 
may not have been in conformance to the standard, have reached the end 
of their average expected useful lives and are probably no longer in 
use. Therefore, although the Commission cannot precisely estimate what 
proportion of bunk beds in current use conforms to the voluntary 
standard, the percentage likely falls between 50 and 90%. Assuming a 
``conforming'' range between these extremes, on the order of from 70 to 
85%, some 15 to 30% of bunk beds in use since the early 1990's do not 
conform to the ASTM voluntary standard for upper bunk entrapment.

Potential Costs of Proposed Rule

(1) Introduction
    The costs associated with the proposed rule would include the cost 
of compliance for any firms not now conforming to the voluntary 
standard, and the cost of any Commission-added requirements in the 
final mandatory rule.
(2) Costs of Mandating ASTM's Requirements
    In order to provide some preliminary information regarding these 
costs, CPSC Economics staff contacted four manufacturers that had 
modified their production to conform to the standard. Two of these 
manufacturers stated that the cost of additional materials needed to 
provide ASTM entrapment protection was nominal compared to the overall 
materials costs, and that redesign costs would not be significant on a 
per-unit basis. They estimated that the addition of a second guardrail 
to the upper bunk added $15-20 to the retail price of a bed. The two 
other manufacturers, marketing bunk beds in the ``mid to upper'' price 
range, estimated that the addition of the second guardrail resulted in 
a $30-40 per bed increase in the retail price. Thus, the overall retail 
price increase range is estimated to be from $15 to $40 per bed. Only 
those firms that do not conform to the voluntary standard would be 
affected.

Potential Benefits of Mandating ASTM's Requirements

    The proposed rule is intended to address the risk of entrapment 
deaths of children from bunk beds. The potential benefits would be the 
decrease in these entrapment deaths. Avoidance of other incidents (such 
as near-entrapments) do not contribute significantly to the monetized 
benefits, because they generally produce no or only minor injuries. All 
of the known deaths involved children age 7 or younger.
    The expected societal costs of bunk bed entrapment deaths represent 
the potential benefits of preventing them. There were 39 entrapment 
deaths associated with the upper bunk that were reported to the CPSC 
from January 1990 through mid-October 1998. Based on a review of the 
circumstances of the reports by the CPSC's Engineering and Epidemiology 
staff, the Commission concludes that the voluntary standard would have 
addressed at least 37 of the 39 upper-bunk entrapment deaths. 
Additionally, the standard would have addressed two of the three lower-
bunk entrapment deaths that occurred in the bed end structures. 
Nationally, CPSC staff projected that about 10 (95% confidence 
interval, 6.0 to 14.4) bunk bed entrapment fatalities occurred annually 
since 1990. Altogether, the Commission believes that the voluntary 
standard would have addressed 68% of the reported fatalities due to 
entrapment in all locations (39  57). Therefore, the voluntary 
standard could have addressed an estimated 7 deaths (10  x  .68) per 
year.
    In order to determine the expected benefits of the proposed rule, 
it is necessary to know the risk of death through bunk bed entrapment, 
defined as ``deaths per nonconforming bunk bed,'' and the expected 
reduction in risk. The risk level computation requires information on 
the number of bunk beds that were in use over the period of reported 
fatalities. The risk reduction factor depends on the effectiveness 
level of the standard.
    The midpoint of the estimated number of bunk beds in use is 8 
million units. If 15-30% of bunk beds that were in use did not conform 
to the standard, as estimated above, then fatalities may be assumed to 
have been spread over an estimated 1.2 to 2.4 million nonconforming 
beds (0.15 to 0.30, x 8 million). Therefore, the risk of a fatal 
entrapment that the voluntary standard's provisions could address is 
from 2.9 to 5.8 deaths per million nonconforming beds (72.4 to 
71.2). At an assumed societal cost of $5 million per death, the 
annual societal value of averting all such fatalities is from about $15 
to $30 per bed per year (3 deaths per million nonconforming beds x $5 
million, at the lower end of the range, to 6 deaths per million 
beds x $5 million, at the upper end).
    If we assume a useful life of 15 years for a bunk bed and a 
discount rate of 3%, the estimated present value of averting the 
entrapment fatalities addressed by the voluntary standard ranges from 
about $175 to $350 per bed. This is the total potential benefit of 
averting the risk of death from a nonconforming bed over its useful 
life.

Comparison of Costs and Benefits of Compliance With ASTM's Requirements

    The expected net benefits of a mandatory standard containing only 
the entrapment provisions of the ASTM standard depend upon the costs of 
the standard for each otherwise noncomplying bed ($15 to $40), the 
societal costs of the deaths addressed by the standard for each 
noncomplying bed ($175 to $350), and the effectiveness of the standard 
in reducing deaths. If the standard were fully effective (i.e., if it 
prevents all of the deaths addressed), the benefits would be much 
higher than the costs of implementing the standard. In fact, the net 
benefits per otherwise noncomplying bed, over its expected product 
life, would range from a low of $135 ($175-$40) to a high of $335 
($350-$15). Thus, the benefits of these provisions are about 4-23 times 
their costs. CPSC's Engineering staff has concluded that all of the 
entrapment incidents addressed by the requirements of the proposed 
standard would have been averted had those beds been in conformance. 
Thus, a mandatory standard is expected to be highly effective.
    The number of nonconforming bunk beds produced annually is not 
known with precision. Industry sources estimated that there may be as 
many as 50,000 nonconforming units produced each year. If this estimate 
is used, the net benefits to society of the proposed rule (if fully 
effective and all non-conforming beds were made to comply) would be 
about $6.75 to $16.75 million per year (50,000 x $135 to 
50,000 x $335).

[[Page 10253]]

If the standard were less than 100% effective, or if all nonconforming 
beds were not made to comply, the aggregate expected benefits would be 
proportionately less.

Costs and Benefits of Additional Requirements

    As discussed below, the Commission is also aware of entrapment 
deaths on the upper bunk and lower bunk, in scenarios not addressed by 
the voluntary standard. To address these deaths, the proposed mandatory 
standard includes requirements for a continuous guardrail for the 
entire wall side of the upper bunk, and modifications of the lower bunk 
structure. CPSC staff concluded that these modifications would have 
averted these remaining entrapment deaths.
    (a) Continuous guardrail. The Commission is proposing a requirement 
for a continuous guardrail along the entire wall side of the bed; the 
current voluntary standard allows a 15-inch gap at either end of the 
wall side guardrail. The continuous guardrail would address two 
entrapment deaths that occurred between the bed and the wall in the 
area of a gap in the guardrail during the 105-month study period of 
January 1990 through mid-October 1998. This should prevent about 0.23 
deaths per year (28.75 years).
    Trade sources indicated that perhaps 50-75% of all bunk beds in use 
during the January 1990-May 1998 period contained this gap; if this 
percentage range is used, then some 4-6 million beds with the gap would 
have been in use for each of the years in the study period. 
Consequently, over that period of time, there were from 0.04 deaths per 
million nonconforming beds per year (0.236) to 0.06 deaths per 
million nonconforming beds per year (0.234). Assuming a cost of 
$5 million per death, the staff estimated the present value of 
eliminating these gaps at $2.40 to $3.50 over the life of each bed that 
otherwise would have had a gap in the wall-side guardrail.
    The precise cost of eliminating the allowance of a 15-inch gap in 
the guardrail for the wall side of the upper bunk is unknown. However, 
the Commission estimates that the cost of materials to extend one 
guardrail an additional 30 inches (for those bunk beds which 
incorporated up to a 15-inch gap on both ends of the wall-side 
guardrail) would be less than the estimated benefits ($2.40 to $3.50 
per noncomplying bed).
    (b) Lower bunk end structures. The Commission is aware of one death 
over the past 8 years involving entrapment in the end structures of the 
lower bunk, occurring in a scenario not currently addressed by the 
voluntary standard. Addressing this death would result in costs 
associated with redesigning the bed so that the end structures will not 
allow the free passage of a wedge block (approximating the size of a 
child's body) unless it also allows the free passage of a 9-inch sphere 
(approximating the child's head). The precise potential cost of 
reconfiguring the bunk end structures is unknown, since the Commission 
does not know how many models would require such rework. Based on some 
known noncomplying beds, however, the Commission believes that, for 
some bunk beds, materials costs may decrease since less material may be 
required to comply with these requirements than are currently being 
used. Thus, the Commission expects the costs of this requirement to be 
design-related. Costs to redesign the end structures, where necessary, 
will be modest and, in any event, can be amortized over the total 
subsequent production of the beds. If these one-time design costs are 
amortized over the entire production run for these bunks, the estimated 
costs are likely to be small. Therefore, the major portion of the costs 
imposed by the rule will fall only on those firms that do not currently 
comply with the voluntary standard.
    (c) Effect on market. The small additional costs from any required 
wall guardrail and end structure modifications are not expected to 
affect the market for bunk beds, either alone or added to the costs of 
compliance to ASTM's provision.
    Alternatives. The Commission considered two alternatives to the 
proposed rule.
    (a) Defer to the voluntary standard. One alternative to a mandatory 
rule would be to decide that a mandatory regulation is not necessary, 
because the current standard addresses about 70% of reported entrapment 
hazards over the past 8 years. If there is no mandatory action, then no 
costs would be imposed and no deaths would be averted involving future 
nonconforming bunk beds.
    A variation on this alternative was raised by a commenter, who 
suggested that bunk beds which conform to the voluntary standard should 
be so labeled. Consumers could then compare conforming and 
nonconforming beds at the point of purchase and make their purchase 
decisions with this safety information in mind. This, however, would 
not necessarily reduce injuries, because consumers likely do not know 
there is a voluntary standard and thus would not see any risk in 
purchasing a bed that was not labeled as conforming to the standard.
    (b) Third-party certification. The Commission could have decided to 
defer to the voluntary standard and, in addition, to encourage third-
party testing to the ASTM standard.
    This alternative also would not likely prevent the deaths from 
entrapment that could be prevented by a mandatory rule. Firms that are 
too small and regional to appreciate the importance of complying with 
the voluntary standard are unlikely to volunteer to obtain third-party 
certification that their products comply with that standard. In 
addition, the costs of third-party certification would deter many small 
firms from using this alternative. Furthermore, small firms especially 
might be reluctant to pay for third-party certification when compliance 
with the entrapment provisions of the voluntary standard can easily be 
determined by the manufacturer.

I. Regulatory Flexibility Act

    The Commission is required by the Regulatory Flexibility Act of 
1980 (``RFA'') to address and give particular attention to the economic 
effects of the proposed rule on small businesses.
    The precise number of firms manufacturing bunk beds is not now 
known. The Commission staff has identified about 160 firms that have 
produced bunk beds: these were identified through the trade 
association, national and regional trade shows, industry contacts, the 
Internet, and retail inspections. Small Business Administration 
(``SBA'') guidelines classify firms in the furniture production 
industry as small if they have less than 500 employees, are 
independently owned, and are not dominant in the field. Most of these 
firms would be classified as small businesses under SBA's criteria. It 
is likely that there are additional firms which produce relatively 
small numbers of bunk beds annually. These remaining producers are also 
likely to be small businesses.
    Even though there is a substantial number of small firms, the 
Commission does not expect that there will be a significant effect on 
these firms. As noted earlier, all of the 160 firms identified by the 
Commission already conform to the existing voluntary standard (some 
only after CPSC recall activity). Moreover, it is unlikely that the 
effects on any firms that have not been identified and that do not 
currently conform would be significant. For firms not conforming, the 
requirements are expected to increase

[[Page 10254]]

retail prices by about 5 to 15%, which likely would be passed on to 
consumers.
    The mandatory standard would not require third-party testing. It is 
anticipated that the firms would self-certify that their products were 
in compliance with the mandatory standard. There would be no reporting 
or recordkeeping requirements under the proposed standard. The 
Commission is unaware of any Federal rules that would duplicate, or 
overlap or conflict with, the proposed rule.

J. Preliminary Environmental Assessment

    The proposed rule is not expected to have a significant effect on 
the materials used in the production and packaging of bunk beds, or in 
the number of units discarded after the rule becomes effective. 
Therefore, no significant environmental effects would result from the 
proposed mandatory rule for bunk beds.

K. Executive Orders

    This proposed rule has been evaluated in accordance with Executive 
Order No. 13,083, and the rule raises no substantial federalism 
concerns.
    Executive Order No. 12,988 requires agencies to state the 
preemptive effect, if any, to be given the regulation. The preemptive 
effects of these rules is established by Section 26 of the CPSA, 15 
U.S.C. 2075, and Section 18 of the FHSA. Section 26(a) of the CPSA 
states:

    (a) Whenever a consumer product safety standard under [the CPSA] 
applies to a risk of injury associated with a consumer product, no 
State or political subdivision of a State shall have any authority 
either to establish or continue in effect any provision of a safety 
standard or regulation which prescribed any requirements as to the 
performance, composition, contents, design, finish, construction, 
packaging, or labeling of such products which are designed to deal 
with the same risk of injury associated with such consumer product, 
unless such requirements are identical to the requirements of the 
Federal standard.

    Subsection (b) of 15 U.S.C. 2075 provides a circumstance under 
which subsection (a) does not prevent the Federal Government or the 
government of any State or political subdivision of a State from 
establishing or continuing in effect a safety standard applicable to a 
consumer product for its own [governmental] use, and which is not 
identical to the consumer product safety standard applicable to the 
product under the CPSA. This occurs if the Federal, State, or political 
subdivision requirement provides a higher degree of protection from 
such risk of injury than the consumer product safety standard.
    Subsection (c) of 15 U.S.C. 2075 authorizes a State or a political 
subdivision of a State to request an exemption from the preemptive 
effect of a consumer product safety standard. The Commission may grant 
such a request, by rule, where the State or political subdivision 
standard or regulation (1) provides a significantly higher degree of 
protection from such risk of injury than does the consumer product 
safety standard and (2) does not unduly burden interstate commerce.
    Similar preemption provisions are in the FHSA. See FHSA Section 
18(b), 15 U.S.C. 1261 note.

L. Extension of Time To Issue Final Rule Under the CPSA

    Section 9(d)(1) of the CPSA, 15 U.S.C. 2058(d)(1), provides that a 
final consumer product safety rule must be published within 60 days of 
publication of the proposed rule unless the Commission extends the 60-
day period for good cause and publishes its reasons for the extension 
in the Federal Register.
    Executive Order No. 12,662, which implements the United States-
Canada Free-Trade Implementation Act, provides that publication of 
standards-related measures shall ordinarily be at least 75 days before 
the comment due date. Accordingly, the Commission provided a comment 
period of 75 days for this proposal.
    After the comment period ends, the CPSC's staff will need to 
prepare draft responses to the comments, along with a draft regulatory 
analysis and either a draft regulatory flexibility analysis or a draft 
finding of no substantial impact on a significant number of small 
entities. Then the staff will prepare a briefing package for the 
Commission. The Commission is likely to then be briefed, and will later 
vote on whether to issue a final rule. The Commission expects that this 
additional work will take about 12 months. Accordingly, the Commission 
extends the time by which it must either issue a final CPSA rule or 
withdraw the NPR until March 3, 2000. If necessary, this date may be 
further extended.

List of Subjects in 16 CFR Parts 1213, 1500 and 1513.

    Consumer protection, Infants and children.

Effective Date

    The Commission proposes that the rule become effective 180 days 
after publication of the final rule. This period will allow 
manufacturers to make any changes in their production needed to comply 
with the standard without unduly delaying the safety benefits expected 
from the rule.
    For the reasons set out in the preamble, the Commission proposes to 
amend Title 16, Chapter II, Subchapters B and C, of the Code of Federal 
Regulations as set forth below.
    1. A new Part 1213 is added to Subchapter B, to read as follows:

PART 1213--SAFETY STANDARD FOR ENTRAPMENT HAZARDS IN BUNK BEDS

Sec.
1213.1  Scope, application, and effective date.
1213.2  Definitions.
1213.3  Requirements.
1213.4  Test methods.
1213.5  Marking and labeling.
1213.6  Instructions.
1213.7  Findings.

Figure 1 to Part 1213--Wedge Block for Tests

    Authority: 15 U.S.C. 2056, 2058.


Sec. 1213.1  Scope, application, and effective date.

    This part 1213, a consumer product safety standard, prescribes 
requirements for bunk beds to reduce or eliminate the risk that 
children will die or be injured from being trapped between the upper 
bunk and the wall, in openings below guardrails, or in other structures 
in the bed. The standard in this part applies to all bunk beds sold for 
residential use that are manufactured in the United States, or 
imported, after [the effective date of the final rule]. Bunk beds 
intended for use by children are subject to the requirements in 16 CFR 
1500.18(a)(18) and 16 CFR part 1513, and not to this part 1213. 
However, those regulations are substantively identical to the 
requirements in this part 1213.


Sec. 1213.2  Definitions.

    As used in this part 1213:
    (a) Bed. See Bunk bed.
    (b) Bed end structure means an upright unit at the head and foot of 
the bed to which the side rails attach.
    (c) Bunk bed means a bed in which the underside of any foundation 
is over 30 inches (760 mm) from the floor.
    (d) Foundation means the base or support on which a mattress rests.
    (e) Guardrail means a rail or guard on a side of the upper bunk to 
prevent a sleeping occupant from falling or rolling out.


Sec. 1213.3  Requirements.

    (a) Guardrails. (1) Any bunk bed shall provide at least two 
guardrails, at least one on each side of the bed.
    (2) One guardrail shall be continuous between each of the bed's end

[[Page 10255]]

structures. The other guardrail may terminate before reaching the bed's 
end structures, providing there is no more than 15 inches (380 mm) 
between either end of the guardrail and the nearest bed end structures.
    (3) For bunk beds designed to have a ladder attached to one side of 
the bed, the continuous guardrail shall be on the other side of the 
bed.
    (4) Guardrails shall be attached so that they cannot be removed 
without either intentionally releasing a fastening device or applying 
forces sequentially in different directions.
    (5) The upper edge of the guardrails shall be no less than 5 inches 
(130 mm) above the top surface of the mattress when a mattress of the 
maximum thickness specified by the bed manufacturer's instructions is 
on the bed.
    (6) With no mattress on the bed, there shall be no openings in the 
structure between the lower edge of the uppermost member of the 
guardrail and the underside of the upper bunk's foundation that would 
permit passage of the wedge block shown in Fig. 1 when tested in 
accordance with the procedure at Sec. 1213.4(a).
    (b) Bed end structures. (1) The upper edge of the upper bunk end 
structures shall be at least 5 inches (130 mm) above the top surface of 
the mattress for at least 50 percent of the distance between the two 
posts at the head and foot of the upper bunk when a mattress and 
foundation of the maximum thickness specified by the manufacturer's 
instructions is on the bed.
    (2) With no mattress on the bed, there shall be no openings in the 
end structures above the foundation of the upper bunk that will permit 
the free passage of the wedge block shown in Fig. 1 when tested in 
accordance with the procedure at Sec. 1213.4(b).
    (3) When tested in accordance with Sec. 1213.4(c), there shall be 
no openings in the end structures between the underside of the 
foundation of the upper bunk and upper side of the foundation of the 
lower bunk that will permit the free passage of the wedge block shown 
in Fig. 1, unless the openings are also large enough to permit the free 
passage of a 9-inch (230-mm) diameter rigid sphere.


Sec. 1213.4  Test methods.

    (a) Guardrails (see Sec. 1213.3(a)(6)). With no mattress on the 
bed, place the wedge block shown in Fig. 1, tapered side first, into 
each opening in the bed structure below the lower edge of the uppermost 
member of the guardrail and above the underside of the upper bunk's 
foundation. Orient the block so that it is most likely to pass through 
the opening (e.g., the major axis of the block parallel to the major 
axis of the opening) (``most adverse orientation''). Then gradually 
apply a 33-lbf (147-N) force in a direction perpendicular to the plane 
of the large end of the block. Sustain the force for 1 minute.
    (b) Upper bunk end structure (see Sec. 1213.3(b)(2)). Without a 
mattress or foundation on the upper bunk, place the wedge block shown 
in Fig. 1 into each opening, tapered side first, and in the most 
adverse orientation. Determine if the wedge block can pass freely 
through the opening.
    (c) Lower bunk end structure (see Sec. 1213.3(b)(3)). (1) Without a 
mattress or foundation on the lower bunk, place the wedge block shown 
in Fig. 1, tapered side first, into each opening in the lower bunk end 
structure in the most adverse orientation. Determine whether the wedge 
block can pass freely through the opening. If the wedge block passes 
freely through the opening, determine whether a 9-inch (230-mm) 
diameter rigid sphere can pass freely through the opening.
    (2) With the manufacturer's recommended maximum thickness mattress 
and foundation in place, repeat the test in paragraph (c)(1) of this 
section.


Sec. 1213.5  Marking and labeling.

    (a) There shall be a permanent label or marking on each bed stating 
the name and address (city, state, and zip code) of the manufacturer, 
distributor, or retailer; the model number; and the month and year of 
manufacture.
    (b) The following warning label shall be permanently attached to 
the inside of an upper bunk bed end structure in a location that cannot 
be covered by the bedding but that may be covered by the placement of a 
pillow.

BILLING CODE 6355-01-P
[GRAPHIC] [TIFF OMITTED] TP03MR99.000


BILLING CODE 6355-01-C

[[Page 10256]]

Sec. 1213.6  Instructions

    Instructions shall accompany each bunk bed set, and shall include 
the following information.
    (a) Size of mattress and foundation. The length and width of the 
intended mattress and foundation shall be clearly stated, either 
numerically or in conventional terms such as twin size, twin extra-
long, etc. In addition, the maximum thickness of the mattress and 
foundation required for compliance with Sec. 1213.3(a)(5) and (b)(1) of 
this standard shall be stated.
    (b) Safety warnings. The instructions shall provide the following 
safety warnings:
    (1) Do not allow children under 6 years of age to use the upper 
bunk.
    (2) Use guardrails on both sides of the upper bunk.
    (3) Prohibit horseplay on or under beds.
    (4) Prohibit more than one person on upper bunk.
    (5) Use ladder for entering or leaving upper bunk.


Sec. 1213.7  Findings.

    The Consumer Product Safety Act requires that the Commission, in 
order to issue a standard, make the following findings and include them 
in the rule. 15 U.S.C. 2058(f)(3).
    (a) The rule in this part (including its effective date of 
[effective date of final rule]) is reasonably necessary to eliminate or 
reduce an unreasonable risk of injury associated with the product. (1) 
For a recent 8.75-year period, the CPSC received reports of 57 deaths 
of children under age 15 who died when they were trapped between the 
upper bunk of a bunk bed and the wall or when they were trapped in 
openings in the bed's end structure. Over 96% of those who died in 
entrapment incidents were age 3 or younger. On average, averting these 
deaths is expected to produce a benefit to society with a present value 
of about $175 to $350 for each bed that otherwise would not have 
complied with one or more of the rule's requirements.
    (2) This increased safety will be achieved in two ways. First, all 
bunk beds will be required to have a guardrail on both sides of the 
bed. If the bed is placed against a wall, the guardrail on that side is 
expected to prevent a child from being entrapped between the bed and 
the wall. The guardrail on the wall side of the bed must extend 
continuously from one end to the other. Second, the end structures of 
the bed must be constructed so that, if an opening in the end structure 
is large enough so a child can slip his or her body through it, it must 
be large enough that the child's head also can pass through.
    (3) For the reasons discussed in paragraph (d) of this section, the 
benefits of the changes to bunk beds caused by this rule will have a 
reasonable relationship to the changes' costs. The rule addresses a 
risk of death, and applies primarily to a vulnerable population, 
children under age 3. The life-saving features required by the rule are 
cost-effective and can be implemented without adversely affecting the 
performance and availability of the product. The effective date 
provides enough time so that production of bunk beds that do not 
already comply with the standard can easily be changed so that the beds 
comply. Accordingly, the Commission finds that the rule (including its 
effective date) is reasonably necessary to eliminate or reduce an 
unreasonable risk of injury associated with the product.
    (b) Promulgation of the rule is in the public interest. For the 
reasons given in paragraph (a) of this section, the Commission finds 
that promulgation of the rule is in the public interest.
    (c) Where a voluntary standard has been adopted and implemented by 
the affected industry, that compliance with such voluntary standard is 
not likely to result in the elimination or adequate reduction of the 
risk of injury; or it is unlikely that there will be substantial 
compliance with such voluntary standard.
    (1) Adequacy of the voluntary standard. (i) In this instance, there 
is a voluntary standard addressing the risk of entrapment in bunk beds. 
However, the rule goes beyond the provisions of the voluntary standard. 
First, it eliminates the voluntary standard's option to have an opening 
of up to 15 inches at each end of the wall-side guardrail. Second, it 
requires more of the lower bunk end structures to have entrapment 
protection. The voluntary standard protects against entrapment only 
within the 9-inch space immediately above the upper surface of the 
lower bunk's mattress. The mandatory standard extends this area of 
protection upward to the level of the underside of the upper bunk 
foundation. Both of these provisions, which are in the rule but not in 
the voluntary standard, address fatalities and, as noted in this 
section, have benefits that bear a reasonable relationship to their 
costs. Furthermore, the absence of any identification of the 
manufacturer on many beds has resulted in extremely low recall 
effectiveness rates. The standard requires that the name and address of 
the manufacturer, distributor, or retailer be on the beds.
    (ii) Therefore, the Commission finds that compliance with the 
voluntary standard is not likely to result in the elimination or 
adequate reduction of the risk of entrapment injury or death.
    (2) Substantial compliance. (i) Neither the CPSA nor the FHSA 
define ``substantial compliance.'' In dealing with this issue as it 
applies to bunk beds, the Commission concludes that substantial 
compliance does not exist where a mandatory rule would achieve a higher 
degree of compliance. Two key, although not necessarily exclusive, 
considerations in making this determination are whether, as complied 
with, the voluntary standard would achieve virtually the same degree of 
injury reduction that a mandatory standard would achieve and whether 
the injury reduction will be achieved in a timely manner.
    (ii) The Commission has considered carefully the particular 
characteristics of the bunk bed industry. This industry is highly 
diverse and fragmented, with differing levels of sophistication 
relating to product safety. Firms can easily enter and leave the bunk 
bed manufacturing business. This fragmentation and diversity 
contributes to difficulties in achieving more complete compliance with 
the voluntary standard. Because it is difficult to identify all firms 
in the industry, it is difficult for voluntary standards organizations 
and trade associations to conduct outreach and education efforts 
regarding the voluntary standard. By contrast, in industries with a 
small number of firms, it is easier to find the firms and educate them 
about the existence and importance of voluntary standards. Mandatory 
standards--codified in the accessible Code of Federal Regulations--are 
easier to locate, and their significance is more obvious.
    (iii) These generalizations about the industry are supported by the 
CPSC's staff's enforcement experience. Some manufacturers contacted by 
CPSC's Compliance staff did not see an urgency to comply with a 
``voluntary'' standard, and they did not recognize the hazards 
associated with noncompliance. Other manufacturers were not even aware 
of the standard. As a result, entrapment hazards would continue to 
exist on beds, in use and for sale, in the absence of a mandatory 
standard.
    (iv) A mandatory standard will also reduce the staff's workload in 
ensuring that children are not exposed to bunk beds presenting 
entrapment hazards. In the several years before issuance of this rule, 
the staff expended significant

[[Page 10257]]

resources to obtain the then-current level of conformance to the 
voluntary standard. The Commission believes that fewer resources will 
be required to enforce the mandatory standard than were previously used 
to identify defective bunk beds.
    (v) For these reasons, the Commission believes that a mandatory 
bunk bed entrapment standard is needed. This mandatory standard is 
expected to bring the following benefits:
    (A) A mandatory standard should increase the awareness and sense of 
urgency of manufacturers in this industry regarding compliance with the 
entrapment provisions, thereby increasing the degree of conformance to 
those provisions.
    (B) A mandatory standard allows the Commission to seek penalties 
for violations. Publicizing fines for noncompliance with a mandatory 
standard would deter other manufacturers from making noncomplying beds.
    (C) A mandatory standard allows state and local officials to assist 
CPSC staff in identifying noncomplying bunk beds and to take action to 
prevent the sale of these beds.
    (D) Under a mandatory standard, retailers and distributors violate 
the law if they sell noncomplying bunk beds. For that reason, retailers 
and retail associations will insist that manufacturers and importers 
provide complying bunk beds.
    (E) The bunk bed industry is extremely competitive. Manufacturers 
who now conform to the voluntary standard have expressed concern about 
those firms that do not. Nonconforming beds can undercut the cost of 
conforming beds. A mandatory standard will take away any competitive 
cost advantage for unsafe beds.
    (F) A mandatory standard will help prevent noncomplying beds made 
by foreign manufacturers from entering the United States. CPSC could 
use the resources of U.S. Customs to assist in stopping hazardous beds 
at the docks.
    (3) Therefore, there is not substantial compliance with the 
voluntary standard. (This does not mean that the Commission would 
conclude that a mandatory standard will always be more effective than a 
voluntary standard. Each case must be considered on its own facts.)
    (d) The benefits expected from the rule bear a reasonable 
relationship to its costs. (1) Compliance with ASTM's requirements. The 
cost of providing a second guardrail for bunk beds that do not have one 
is expected to be from $15-40 per otherwise noncomplying bed. If, as 
expected, the standard prevents virtually all of the deaths it 
addresses, the present value of the benefits of this modification are 
estimated to be from $175-350 per otherwise noncomplying bed. Thus, the 
benefit of this provision is about 4-23 times its cost.
    (2) Providing a continuous guardrail. The voluntary standard allows 
up to a 15-inch gap in the coverage of the guardrail on the wall side 
of the upper bunk. Additional entrapment deaths are addressed by 
requiring that the wall-side guardrail be continuous from one end of 
the bed to the other. The estimated present value of the benefits of 
this requirement is $2.40 to $3.50 per otherwise noncomplying bed. The 
Commission estimates that the materials cost to extend one guardrail an 
additional 30 inches will be less than the present value of the 
benefits of making the change. Further, the costs of any design changes 
can be amortized over the number the bunk beds manufactured after the 
design change is made. Thus, the costs of any design change will be 
nominal.
    (3) Lower bunk end structures. The Commission is aware of a death, 
involving entrapment in the end structures of the lower bunk, occurring 
in a scenario not currently addressed by the voluntary standard. This 
death would be addressed by extending the voluntary standard's lower 
bunk end structures entrapment provisions from 9 inches above the lower 
bunk's sleeping surface to the bottom of the upper bunk. The Commission 
expects the costs of this requirement to be design-related only, and 
small. Indeed, for some bunk beds, materials costs may decrease since 
less material may be required to comply with these requirements than is 
currently being used. Again, the design costs for this modification to 
the end structures can be amortized over the subsequent production run 
of the bed.
    (4) Effect on market. The small additional costs from any wall 
guardrail and end structure modifications are not expected to affect 
the market for bunk beds, either alone or added to the costs of 
compliance to ASTM's provisions.
    (5) Conclusion. The Commission has no reason to conclude that any 
of the standard's requirements will have costs that exceed the 
requirement's expected benefits. Further, the total effect of the rule 
is that the benefits of the rule will exceed its costs by about 4-23 
times. Accordingly, the Commission concludes that the benefits expected 
from the rule will bear a reasonable relationship to its costs.
    (e) The rule imposes the least burdensome requirement that prevents 
or adequately reduces the risk of injury for which the rule is being 
promulgated. (1) The Commission considered relying on the voluntary 
standard, either alone or combined with a third-party certification 
program. However, the Commission concluded that a mandatory program 
will be more effective in reducing these deaths. Accordingly, these 
alternatives would not prevent or adequately reduce the risk of injury 
for which the rule is being promulgated.
    (2) The Commission also considered a suggestion that bunk beds that 
conformed to the voluntary standard be so labeled. Consumers could then 
compare conforming and nonconforming beds at the point of purchase and 
make their purchase decisions with this safety information in mind. 
This, however, would not necessarily reduce injuries, because consumers 
likely would not know there is a voluntary standard and thus would not 
see any risk in purchasing a bed that was not labeled as conforming to 
the standard.
    (3) For the reasons stated in this section, no alternatives to a 
mandatory rule were suggested that would adequately reduce the deaths 
caused by entrapment of children in bunk beds. Accordingly, the 
Commission finds that this rule imposes the least burdensome 
requirement that prevents or adequately reduces the risk of injury for 
which the rule is being promulgated.

Figure 1 to Part 1213--Wedge Block for Tests in Sec. 1213.4(a), (b) and 
(c).

BILLING CODE 6355-01-P

[[Page 10258]]

[GRAPHIC] [TIFF OMITTED] TP03MR99.001



BILLING CODE 6355-01-C
    2. The authority citation for part 1500 continues to read as 
follows:

    Authority: 15 U.S.C. 1261-1278.

    3. Section 1500.18 is amended by adding paragraph (a)(18) to read 
as follows:


Sec. 1500.18  Banned toys and other banned articles intended for use by 
children.

    (a) *  *  *
    (18) (i) Any bunk bed (as defined in Sec. 1513.2(c) of this 
chapter) that does not comply with the requirements of part 1513 of 
this chapter.
    (ii) Findings--(A) General. In order to issue a rule under Section 
3(e) of the Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1262(e), 
classifying a toy or other article intended for use by children as a 
hazardous substance on the basis that it presents a mechanical hazard 
(as defined in Section 2(s) of the FHSA), the FHSA requires the 
Commission to make certain findings and to include these findings in 
the regulation. These findings are discussed in paragraphs (a)(18)(B) 
through (D) of this section.
    (B) Where a voluntary standard has been adopted and implemented by 
the affected industry, that compliance with such voluntary standard is 
not likely to result in the elimination or adequate reduction of the 
risk of injury, or it is unlikely that there will be substantial 
compliance with such voluntary standard.
    (1) Adequacy of the voluntary standard. (i) In this instance, there 
is a voluntary standard addressing the risk of entrapment in bunk beds. 
However, the rule goes beyond the provisions of the voluntary standard. 
First, it eliminates the voluntary standard's option to have an opening 
of up to 15 inches at each end of the wall-side guardrail. Second, it 
requires more of the lower bunk end structures to have entrapment 
protection. The voluntary standard protects against entrapment only 
within the 9-inch space immediately above the upper surface of the 
lower bunk's mattress. The mandatory standard extends this area of 
protection upward to the level of the underside of the upper bunk 
foundation. Both of these provisions, which are in the rule but not in 
the voluntary standard, address fatalities and, as noted in this 
paragraph (a)(18), have benefits that bear a reasonable relationship to 
their costs. Furthermore, the absence of any identification of the 
manufacturer on many beds has resulted in extremely low recall 
effectiveness rates. The standard requires that the name and address of 
the manufacturer, distributor, or retailer be on the beds.
    (ii) Therefore, the Commission finds that compliance with the 
voluntary standard is not likely to result in the elimination or 
adequate reduction of the risk of entrapment injury or death.
    (2) Substantial compliance. (i) Neither the CPSA nor the FHSA 
define ``substantial compliance.'' In dealing with this issue as it 
applies to bunk beds, the Commission concludes that substantial 
compliance does not exist where a mandatory rule would achieve a higher 
degree of compliance. Two key, although not necessarily exclusive, 
considerations in making this determination are whether, as complied 
with, the voluntary standard would achieve virtually the same degree of 
injury reduction that a mandatory standard would achieve and whether 
the injury reduction will be achieved in a timely manner.
    (ii) The Commission has considered carefully the particular 
characteristics of the bunk bed industry. This industry is highly 
diverse and fragmented, with differing levels of sophistication 
relating to product safety. Firms can easily enter and leave the bunk 
bed manufacturing business. This fragmentation and

[[Page 10259]]

diversity contributes to difficulties in achieving more complete 
compliance with the voluntary standard. Because it is difficult to 
identify all firms in the industry, it is difficult for voluntary 
standards organizations and trade associations to conduct outreach and 
education efforts regarding the voluntary standard. By contrast, in 
industries with a small number of firms, it is easier to find the firms 
and educate them about the existence and importance of voluntary 
standards. Mandatory standards--codified in the accessible Code of 
Federal Regulations--are easier to locate, and their significance is 
more obvious.
    (iii) These generalizations about the industry are supported by the 
CPSC staff's enforcement experience. Some manufacturers contacted by 
CPSC's Compliance staff did not see an urgency to comply with a 
``voluntary'' standard, and they did not recognize the hazards 
associated with noncompliance. Other manufacturers were not even aware 
of the standard. As a result, entrapment hazards would continue to 
exist on beds, in use and for sale, in the absence of a mandatory 
standard.
    (iv) A mandatory standard will also reduce the staff's workload in 
ensuring that children are not exposed to bunk beds presenting 
entrapment hazards. In the past several years, the staff has expended 
significant resources to obtain the current level of conformance to the 
voluntary standard. The Commission expects that fewer resources will be 
required to enforce the mandatory standard than are currently being 
used to identify defective bunk beds.
    (v) For these reasons, the Commission believes that a mandatory 
bunk bed entrapment standard is needed. This mandatory standard will 
bring the following benefits: A mandatory standard should increase the 
awareness and sense of urgency of manufacturers in this industry 
regarding compliance with the entrapment provisions, thereby increasing 
the degree of conformance to those provisions. A mandatory standard 
allows the Commission to seek penalties for violations. Publicizing 
fines for noncompliance with a mandatory standard would deter other 
manufacturers from making noncomplying beds. A mandatory standard 
allows state and local officials to assist CPSC staff in identifying 
noncomplying bunk beds and to take action to prevent the sale of these 
beds. Under a mandatory standard, retailers and distributors violate 
the law if they sell noncomplying bunk beds. For that reason, retailers 
and retail associations will insist that manufacturers and importers 
provide complying bunk beds. The bunk bed industry is extremely 
competitive. Manufacturers who conform to the voluntary standard have 
expressed concern about those firms that do not. Nonconforming beds can 
undercut the cost of conforming beds. A mandatory standard will take 
away any competitive cost advantage for unsafe beds. A mandatory 
standard will help prevent noncomplying beds made by foreign 
manufacturers from entering the United States. CPSC could use the 
resources of U.S. Customs to assist in stopping hazardous beds at the 
docks.
    (vi) Therefore, there is not substantial compliance with the 
voluntary standard. (This does not mean that the Commission would 
conclude that a mandatory standard will always be more effective than a 
voluntary standard. Each case must be considered on its own facts.)
    (C) The benefits expected from the rule bear a reasonable 
relationship to its costs. (1) Compliance with ASTM's requirements. The 
cost of providing a second guardrail for bunk beds that do not have one 
is expected to be from $15-40 per otherwise noncomplying bed. If, as 
expected, the standard prevents virtually all of the deaths it 
addresses, the present value of the benefits of this modification are 
estimated to be from $175-350 per otherwise noncomplying bed. Thus, the 
benefit of this provision is about 4-23 times its cost.
    (2) Providing a continuous guardrail. The voluntary standard allows 
up to a 15-inch gap in the coverage of the guardrail on the wall side 
of the upper bunk. Additional entrapment deaths are addressed by 
requiring that the wall-side guardrail be continuous from one end of 
the bed to the other. The estimated present value of the benefits of 
this requirement will be $2.40 to $3.50 per otherwise noncomplying bed. 
The Commission estimates that the materials cost to extend one 
guardrail an additional 30 inches will be less than the present value 
of the benefits of making the change. Further, the costs of any design 
changes can be amortized over the number of bunk beds produced after 
the design change is made. Thus, any design costs are nominal.
    (3) Lower bunk end structures. The Commission is aware of a death, 
involving entrapment in the end structures of the lower bunk, occurring 
in a scenario not currently addressed by the voluntary standard. This 
death is addressed by extending the upper limit of the voluntary 
standard's lower bunk end structures entrapment provisions from 9 
inches above the lower bunk's sleeping surface to the bottom of the 
upper bunk. The Commission expects the costs of this requirement to be 
design-related only, and small. Indeed, for some bunk beds, material 
costs may decrease since less material may be required to comply with 
these requirements than are currently being used. Again, the design 
costs for this modification to the end structures can be amortized over 
the subsequent production run of the bed.
    (4) Effect on market. The small additional costs from any wall 
guardrail and end structure modifications are not expected to affect 
the market for bunk beds, either alone or added to the costs of 
compliance to ASTM's provisions.
    (5) Conclusion. The Commission has no reason to conclude that any 
of the standard's requirements have costs that exceed the requirement's 
expected benefits. Further, the total effect of the rule is that the 
benefits of the rule will exceed its costs by about 4-23 times. 
Accordingly, the Commission concludes that the benefits expected from 
the rule bear a reasonable relationship to its costs.
    (D) The rule imposes the least burdensome requirement that prevents 
or adequately reduces the risk of injury for which the rule is being 
promulgated. (1) The Commission considered relying on the voluntary 
standard, either alone or combined with a third-party certification 
program. However, the Commission concludes that a mandatory program 
will be more effective in reducing these deaths. Accordingly, these 
alternatives could not prevent or adequately reduce the risk of injury 
for which the rule is being promulgated.
    (2) The Commission also considered a suggestion that bunk beds that 
conformed to the voluntary standard be so labeled. Consumers could then 
compare conforming and nonconforming beds at the point of purchase and 
make their purchase decisions with this safety information in mind. 
This, however, would not necessarily reduce injuries, because consumers 
likely would not know there is a voluntary standard and thus would not 
see any risk in purchasing a bed that was not labeled as conforming to 
the standard.
    4. A new part 1513 is added to Subchapter C to read as follows:

PART 1513--REQUIREMENTS FOR BUNK BEDS

Sec.
1513.1  Scope, application, and effective date.
1513.2  Definitions.
1513.3  Requirements.
1513.4  Test methods.
1513.5  Marking and labeling.

[[Page 10260]]

1513.6  Instructions.

Figure 1 to Part 1513--Wedge Block for Tests

    Authority: 15 U.S.C. 1261(f)(1)(D), 1261(s), 1262(e)(1), 
1262(f)-(i).


Sec. 1513.1  Scope, application, and effective date.

    This part 1513 prescribes requirements for bunk beds to reduce or 
eliminate the risk that children will die or be injured from being 
trapped between the upper bunk and the wall or in openings below 
guardrails or in other structures in the bed. Bunk beds meeting these 
requirements are exempted from 16 CFR 1500.18(a)(18). This part applies 
to all bunk beds intended for use by children that are sold for 
residential use and manufactured in the United States, or imported, 
after [the effective date of the final rule]. Bunk beds as described in 
this section that are not intended for use by children are subject to 
the requirements in 16 CFR part 1213, and not to 16 CFR 1500.18(a)(18). 
However, the provisions of 16 CFR 1213 are substantively identical to 
the requirements in this part 1513.


Sec. 1513.2  Definitions.

    As used in this part 1513:
    (a) Bed. See Bunk bed.
    (b) Bed end structure means an upright unit at the head and foot of 
the bed to which the side rails attach.
    (c) Bunk bed means a bed in which the underside of any foundation 
is over 30 inches (760 mm) from the floor.
    (d) Foundation means the base or support on which a mattress rests.
    (e) Guardrail means a rail or guard on a side of the upper bunk to 
prevent a sleeping occupant from falling or rolling out.


Sec. 1513.3  Requirements.

    (a) Guardrails. (1) Any bunk bed shall provide at least two 
guardrails, at least one on each side of the bed.
    (2) One guardrail shall be continuous between each of the bed's end 
structures. The other guardrail may terminate before reaching the bed's 
end structures, providing there is no more than 15 inches (380 mm) 
between either end of the guardrail and the nearest bed end structure.
    (3) For bunk beds designed to have a ladder attached to one side of 
the bed, the continuous guardrail shall be on the other side of the 
bed.
    (4) Guardrails shall be attached so that they cannot be removed 
without either intentionally releasing a fastening device or applying 
forces sequentially in different directions.
    (5) The upper edge of the guardrails shall be no less than 5 inches 
(130 mm) above the top surface of the mattress when a mattress of the 
maximum thickness specified by the manufacturer's instructions is on 
the bed.
    (6) With no mattress on the bed, there shall be no openings in the 
structure between the lower edge of the uppermost member of the 
guardrail and the underside of the upper bunk's foundation that would 
permit passage of the wedge block shown in Fig. 1 when tested in 
accordance with the procedure at Sec. 1513.4(a).
    (b) Bed end structures. (1) The upper edge of the upper bunk end 
structures shall be at least 5 inches (130 mm) above the top surface of 
the mattress for at least 50 percent of the distance between the two 
posts at the head and foot of the upper bunk when a mattress and 
foundation of the maximum thickness specified by the manufacturer's 
instructions is on the bed.
    (2) With no mattress on the bed, there shall be no openings in the 
rigid end structures above the foundation of the upper bunk that will 
permit the free passage of the wedge block shown in Fig. 1 when tested 
in accordance with the procedure at Sec. 1513.4(b).
    (3) When tested in accordance with Sec. 1513.4(c), there shall be 
no openings in the end structures between the underside of the 
foundation of the upper bunk and upper side of the foundation of the 
lower bunk that will permit the free passage of the wedge block shown 
in Fig. 1, unless the openings are also large enough to permit the free 
passage of a 9-inch (230-mm) diameter rigid sphere.


Sec. 1513.4  Test methods.

    (a) Guardrails (see Sec. 1513.3(a)(6)). With no mattress on the 
bed, place the wedge block shown in Fig. 1, tapered side first, into 
each opening in the rigid bed structure below the lower edge of the 
uppermost member of the guardrail and above the underside of the upper 
bunk's foundation. Orient the block so that it is most likely to pass 
through the opening (e.g., the major axis of the block parallel to the 
major axis of the opening) (``most adverse orientation''). Then, 
gradually apply a 33-lbf (147-N) force in a direction perpendicular to 
the plane of the large end of the block. Sustain the force for 1 
minute.
    (b) Upper bunk end structure (see Sec. 1513.3(b)(2)). Without a 
mattress or foundation on the upper bunk, place the wedge block shown 
in Fig. 1 into any opening, tapered side first, and in the most adverse 
orientation. Determine if the wedge block can pass freely through the 
opening.
    (c) Lower bunk end structure (see Sec. 1513.3(b)(3)). (1) Without a 
mattress or foundation on the lower bunk, place the wedge block shown 
in Fig. 1, tapered side first, into each opening in the lower bunk end 
structure in the most adverse orientation. Determine whether the wedge 
block can pass freely through the opening. If the wedge block passes 
freely through the opening, determine whether a 9-inch (230-mm) 
diameter rigid sphere can pass freely through the opening.
    (2) With the manufacturer's recommended maximum thickness mattress 
and foundation in place, repeat the test in paragraph (c)(1) of this 
section.


Sec. 1513.5  Marking and labeling.

    (a) There shall be a permanent label or marking on each bed stating 
the name and address (city, state, and zip code) of the manufacturer, 
distributor, or retailer; the model number; and the month and year of 
manufacture.
    (b) The following warning label shall be permanently attached to 
the inside of an upper bunk bed end structure in a location that cannot 
be covered by the bedding but that may be covered by the placement of a 
pillow.

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Sec. 1513.6  Instructions

    Instructions shall accompany each bunk bed set, and shall include 
the following information.
    (a) Size of mattress and foundation. The length and width of the 
intended mattress and foundation shall be clearly stated, either 
numerically or in conventional terms such as twin size, twin extra-
long, etc. In addition, the maximum thickness of the mattress and 
foundation required for compliance with Sec. 1513.3(a)(5) and (b)(1) 
shall be stated.
    (b) Safety warnings. The instructions shall provide the following 
safety warnings:
    (1) Do not allow children under 6 years of age to use the upper 
bunk.
    (2) Use guardrails on both sides of the upper bunk.
    (3) Prohibit horseplay on or under beds.
    (4) Prohibit more than one person on upper bunk.
    (5) Use ladder for entering or leaving upper bunk.

Figure 1 to Part 1513--Wedge Block for Tests in Sec. 1531.4(a), (b) and 
(c).

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BILLNG CODE 6355-01-C
    Dated: February 5, 1999.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 99-3304 Filed 3-2-99; 8:45 am]
BILLING CODE 6355-01-P