[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71888-71915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32676]



[[Page 71887]]

_______________________________________________________________________

Part III





Consumer Product Safety Commission





_______________________________________________________________________



16 CFR Parts 1213, 1500, and 1513



Safety Standard for Bunk Beds; Final Rule

  Federal Register / Vol. 64, No. 245 / Wednesday, December 22, 1999 / 
Rules and Regulations  

[[Page 71888]]



CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1213, 1500, and 1513


Safety Standard for Bunk Beds

AGENCY: Consumer Product Safety Commission.

ACTION: Final rules.

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SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) 
has determined 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 document issues the final rules mandating bunk bed performance 
requirements to reduce this hazard. The rules are 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 bunk beds 
not ``intended'' for (but often used by) children.

DATES: These rules will become effective June 19, 2000 and will apply 
to all bunk beds manufactured in the United States, or imported, on or 
after that date.

ADDRESSES: Documents relating to these rules can be obtained from the 
Office of the Secretary, Consumer Product Safety Commission, 
Washington, D.C. 20207-0001, or inspected at the Office of the 
Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West 
Highway, Bethesda, Maryland; telephone (301) 504-0800.

FOR FURTHER INFORMATION CONTACT: Pamela Major, Office of Compliance, 
Consumer Product Safety Commission, Washington, D.C. 20207; telephone 
(301) 504-0608, ext. 1373; email [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    In this document, the Commission issues rules mandating 
requirements to protect against the entrapment of children in bunk 
beds. 1 Without proper guardrails and safe dimensions for 
openings in the bed's structure, a bunk bed may allow a child to be 
entrapped, and thus strangle or suffocate. This can occur when the 
child becomes wedged between the bed and the wall, when the child slips 
his or her torso through an opening in the bed that is too small for 
its head to pass through (torso-first entrapment), or when the child 
places his or her head in an opening, then moves to a narrower area of 
the opening where the head cannot pull out, and then falls or loses 
his/her footing (head-first entrapment).
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    \1\ The Commission voted 2-1 to issue this rule. Chairman Ann 
Brown and Commissioner Thomas H. Moore voted to issue the rule. 
Commissioner Mary Sheila Gall voted against. Statements of the 
Commissioners concerning this vote are available from the Office of 
the Secretary.
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    There is a voluntary standard for bunk beds, ASTM F1427-96, that 
contains provisions to protect children from entrapment. The ASTM 
standard requires:
     Guardrails on both sides of the upper bunk, except for up 
to 15 inches at each end of the bed. The upper edge of the guardrails 
shall be no less than 5 inches 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. Guardrails shall be attached 
so that they cannot be removed without either intentionally releasing a 
fastening device or applying forces sequentially in different 
directions.
     That 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.
     That openings in the end structures within 9 inches above 
the sleeping surface of the lower bunk mattress be either small enough 
to prevent passage of the 3.5 by 6.2 inch block or large enough to 
permit passage of a 9-inch diameter sphere (the space needed to 
withdraw a child's head).
     Labels and instructions.
    Because of continued reports of deaths and other incidents 
associated with entrapment in bunk beds, and because of indications 
there might 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. 2 63 FR 3280 (January 22, 1998); 
64 FR 3456 (January 22, 1999) (extension of time to issue proposed 
rule). After considering the comments received in response to the ANPR, 
the Commission voted 2-0-1 3 to publish a notice of proposed 
rulemaking (NPR) to propose a new 16 CFR Part 1213 under the Consumer 
Product Safety Act (CPSA) and a new 16 CFR Part 1513 under the Federal 
Hazardous Substances Act (FHSA). 64 FR 10245 (March 3, 1999); 64 FR 
14158 (March 24, 1999) (notice of opportunity for presentation of oral 
comments). The entrapment provisions of these two rules are identical. 
As discussed below in Section E of this notice, the CPSA rule addresses 
hazards associated with adult bunk beds (those not specifically 
intended for use by children, although they are often used for that 
purpose), and the FHSA rule addresses hazards associated with bunk beds 
intended for use by children.
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    \2\ The ANPR was approved by a 2-1 vote of the Commission. 
Chairman Ann Brown and Commissioner Thomas H. Moore voted to approve 
the ANPR; Commissioner Mary Sheila Gall voted not to publish the 
ANPR.
    \3\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to 
publish the NPR; Commissioner Mary Sheila Gall abstained.
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    After the original proposal, discussions at ASTM meetings indicated 
that requirements in addition to those originally proposed are needed 
to adequately address fatalities due to entrapment of children's necks 
in the end structures of bunk beds. The Commission voted 2-1 to propose 
these additional requirements. 64 FR 37051 (July 9, 1999).

B. Incident Data

Deaths

    From January 1990 through August 9, 1999, CPSC received reports of 
91 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
                    [January 1990 to August 9, 1999]
------------------------------------------------------------------------
                 Year                    Total  Entrap.  Hanging   Falls
-------------------------------------------1----------------------------
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 2................................       8      6         2   ......
1998 2................................       3      1         1        1
1999 2................................       1  .......       1   ......
                                       ---------------------------------
  Total...............................      91     57        25        9
------------------------------------------------------------------------
Source: CPSC data files, January 1990-August 9, 1999.
1 These deaths are neither a complete count of all that occurred during
  this time period nor a sample of known probability of selection.
  However, they provide a minimum number of deaths occurring during this
  time period and illustrate the circumstances involved in some bunk-bed-
  related fatalities.
2 The Death Certificate files for 1997 through August 9, 1999, are not
  complete.

    Of the 91 fatalities, 57 resulted from entrapment. An additional 25 
children died when they inadvertently were hung from the bed by such 
items as belts, ropes, clothing, and bedding, and 9 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

[[Page 71889]]

all but one were younger than 5. In contrast, about 76% (19 of 24) of 
those who died in hanging incidents were age 6 and older. Fall deaths 
were split among children 4 years of age and younger and children 9 and 
older.

 Table 2.--Fatal Bunk Bed Incidents Reported to CPSC, by Victim Age and
                             Hazard Pattern
                      [January 1990-August 9, 1999]
------------------------------------------------------------------------
              Age (years)                Total  Entrap.  Hanging   Falls
------------------------------------------------------------------------
<1....................................      18     16         1        1
1.....................................      20     19         1   ......
2.....................................      16     13         2        1
3.....................................       8      7    .......       1
4.....................................       4      1         1        2
5.....................................       1  .......       1   ......
6.....................................       3  .......       3   ......
7.....................................       3  1 \1\         2   ......
8.....................................       2  .......       2   ......
9.....................................       3  .......       2        1
10+...................................      13  .......      10        3
                                       ---------------------------------
  Total...............................      91     57        25        9
------------------------------------------------------------------------
Source: CPSC data files, January 1990-August 9, 1999.
\1\ Child was blind and confined to upper bunk by removal of the ladder.

    Using statistical methodology (capture-recapture), about 10 bunk-
bed-related entrapment deaths are estimated to have occurred in the 
United States each year since 1990.

Injuries

    From hospital emergency room data reported through the National 
Electronic Injury Surveillance System (NEISS), the Commission estimates 
that about 34,300 bunk-bed-related injuries to children under the age 
of 15 were treated in U.S. hospital emergency rooms during 1998. Forty-
one percent 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 a majority of the incidents. There were a few 
reports of limb entrapment incidents, and one incident involved a 2-
year-old male who was found hanging from a bunk bed with a sheet 
wrapped around his neck; he was admitted to the hospital with a head 
injury.

Entrapment Incidents

    The Commission reviewed entrapment-related incidents, which 
accounted for the majority of deaths, in further detail to obtain 
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, the Commission 
examined ``near-miss'' incidents because they have the potential for 
death or serious injury.
    There were 122 entrapment incidents from January 1990 through 
August 9, 1999, of which 57 were fatalities and 65 were ``near-
misses.'' Table 3 illustrates the location in the bunk bed where the 
child was entrapped.

  Table 3.--Location in Bunk Bed of Fatal and ``Near-Miss'' Entrapment
                                Incidents
------------------------------------------------------------------------
                                                     Type of incident
                                                ------------------------
             Location of entrapment                                Near-
                                                  Total   Fatal    Miss
------------------------------------------------------------------------
Top Bunk.......................................      77       39      38
    Guardrail..................................      51       27      24
    Bed/Wall...................................      11        9       2
    End structure..............................      12        1      11
    Add-on rail................................       1        1       0
    Other......................................       1        0       1
    Unknown....................................       1        1       0
Bottom Bunk....................................      27       12      15
    Guardrail..................................       1        0       1
    Bed/Wall...................................       6        6       0
    End structure..............................      14        3      11
    Add-on rail................................       2        2       0
    Other......................................       4        1       3
Ladder.........................................       7        2       5
Unknown Bunk...................................      11        4       7
    Guardrail..................................       2        0       2
    Bed/Wall...................................       1        1       0
    End structure..............................       4        0       4
    ``Safety rails''...........................       1        1       0
    Other......................................       1        0       1
    Unknown....................................       2        2       0
                                                ------------------------
        Total..................................     122       57     65
------------------------------------------------------------------------
Source: CPSC data files, January 1990--August 9, 1999.

    Based on a review of the 57 bunk bed entrapment deaths, the 
Commission concludes that 39 deaths could have been prevented if the 
beds had conformed to the current ASTM standard and that 42 could have 
been prevented by the Commission's bunk bed rules. Of the three 
incidents that occurred in bunk beds conforming to the ASTM standard, 
two involved entrapment in the upper bunk. In these separate 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 end 
structure of the bed 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. The opening was between the underside of the upper bunk 
foundation

[[Page 71890]]

support and a curved structural member in the bunk bed end structure.

C. The Rule's Requirements

    The final rule defines a bunk bed as any bed in which the underside 
of any foundation is over 30 inches from the floor.
    Any bunk bed shall provide at least two upper bunk guardrails, at 
least one on each side of the bed. 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. 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. Guardrails shall be attached so that they 
cannot be removed without either intentionally releasing a fastening 
device or applying forces sequentially in different directions.
    There has been some question about how to interpret the requirement 
that the guardrail shall be ``continuous'' between the end structures. 
The Commission will tolerate a gap between the guardrail and end 
structure of up to 0.22 inches (so as to not cause a finger entrapment 
hazard for a child). Moreover, the guardrail need not necessarily be 
fastened to the end structure (as by bolting or welding).
    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. The Commission does not intend for this requirement to 
prohibit designs where the wall-side guardrail terminates in a quarter-
circle bend and attaches to the side rail of the upper bunk foundation.
    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 (representing a child's torso) shown 
in Figure 1 of Parts 1213 and 1513.
    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.
    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 Figure 1 of Parts 1213 and 
1513.
    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 Figure
1, unless the openings are also large enough to permit the free passage 
of a 9-inch (230-mm) diameter rigid sphere (representing a child's 
head).
    In order to protect against head-first entrapment in a bed's end 
structure, the Commission's staff developed a test procedure using the 
template shown in Figure 2 of Parts 1213 and 1513. This template and 
procedure are similar to those that were developed to address neck 
entrapment hazards in playground equipment structures and that are 
specified in ASTM F 1487-98, ``Standard Specification for Playground 
Equipment for Public Use.'' The ASTM standard for bunk beds does not 
contain a comparable provision.
    Any portion of an opening in the bed's end structure below the 
foundation of the upper bunk that is required to be probed by the 
wedge-block probe shown in Figure 1 of Parts 1213 and 1513, and that 
will allow free passage of a 9-inch diameter sphere, must satisfy the 
new neck entrapment provisions in the rules.
    The template of Figure 2 embodies the following principles. First, 
a child will not be able to insert his or her neck sideways into an 
opening of less than 1.88 inches. (This dimension represents the neck 
breadth of 2.5 inches for a 5th percentile 2-year-old child, minus an 
allowance of 0.62 inches for tissue compression.)
    Second, there is a minimal likelihood of entrapment when the 
boundaries of an opening converge on the neck at an included angle of 
greater than 75 deg.. See CPSC memorandum from Shelley Waters Deppa to 
John Preston, ``Voluntary Standards for Gates and Enclosures,'' January 
15, 1985. This angle was chosen because it is slightly larger than the 
angles involved in neck entrapment accidents with baby gates and 
expandable enclosures.
    In addition, in some boundary configurations, a child who slips 
while his/her head is in the opening will be removed from the opening 
by the force of gravity. In the final rule, an opening that indicates a 
neck entrapment potential when tested with the template of Figure 2 is 
nevertheless allowed if its lower boundary slopes downward at 45 deg. 
or more for the whole distance from the narrowest part of the opening 
the neck can reach to the part of the opening that will freely pass a 
9-inch diameter sphere.
    The template is used to protect against head-first entrapment as 
follows. First, all portions of the boundary of the opening are probed 
with the ``A'' section of the test template of Figure 2. The template 
is inserted into the opening, with the plane of the template in the 
plane of the opening and with the ``top'' of the template perpendicular 
to the centerline of the portion of the boundary being probed. (It may 
be necessary to detach the ``B'' section of the template to fit the 
``A'' section into the opening.) The ``A'' section of the template is 
then moved along the centerline of the portion of the boundary being 
probed until it is stopped by contact with the boundaries of the 
opening (see Figure 3 of Parts 1213 and 1513).
    If there is simultaneous contact between the boundary of the 
opening and both sides of the ``A'' section of the template, the 
boundary is converging on a potential neck entrapment point at an angle 
of less than 75 deg., and further investigation is required. (Contact 
at an upper corner of the template, as shown in Figure 2, is not 
considered to be contact with a ``side.'')
    To check further for the potential for neck entrapment, place the 
neck portion of the ``B'' section of the template into the opening, 
with the template's plane perpendicular to both the plane of the 
opening and the centerline of the opening (see Figure 4 of Parts 1213 
and 1513). If the neck portion can completely enter the opening (pass 
0.75 inch or more beyond the points where contact with the sides of the 
``A'' section of the template occurred), the opening may present a neck 
entrapment hazard. Such an opening is not allowed unless the lower 
boundary of the opening slopes downward at 45'' or more for the whole 
distance from the narrowest part of the opening the neck can reach to 
the larger (greater than 9-inch) part of the opening.
    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.
    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

[[Page 71891]]

[GRAPHIC] [TIFF OMITTED] TR22DE99.000


BILLING CODE 6355-01-C
    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) 
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.

D. The ASTM Standard

    The entrapment requirements in the final rules being issued are 
identical to those in the ASTM standard, with the following exceptions.
    1. Definition of bunkbed: In the ASTM standard, a bunk bed is 
defined as a bed in which the underside of the foundation is over 35 
inches from the floor, rather than the 30 inches in the final rule. 
Neither of these definitions requires that there be two separate 
sleeping surfaces.
    2. Guardrails: The final rule provides that one guardrail (the wall 
side) shall be continuous between 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 between either end of the 
guardrail and the nearest bed end structure. The current ASTM standard 
permits both guardrails to end 15 inches from the nearest bed end 
structure. Compared to the final rule, this permits two areas where a 
child could become entrapped between the bed and the wall.
    3. Bunk end structures: (a) The final rule provides that there 
shall be no openings in the end structures between the underside of the 
foundation of the upper bunk and the upper side of the foundation of 
the lower bunk that will permit the free passage of the wedge block 
shown in Figure 1 (representing a child's torso) unless the openings 
are also large enough to permit the free passage of a 9-inch diameter 
sphere (to ensure the head can also pass through). In the ASTM 
standard, these passage requirements apply only to that portion of the 
end structure that is between the level of the lower bunk foundation 
support system and 9.0 inches (230 mm) above the sleeping surface of 
the maximum thickness mattress and foundation combined as recommended 
by the manufacturer.
    During 1999, there were three meetings of the ASTM subcommittee at 
which changes to the ASTM standard were voted upon or discussed. The 
following discussion describes how these potential changes relate to 
how close the voluntary standard might have ultimately resembled the 
final rules if they were not now being issued by the Commission.
    The ASTM subcommittee approved a motion to define a bunk bed as a 
bed in which the underside of the foundation is over 30 inches from the 
floor, as in the mandatory rule. After discussing the meaning of the 
term ``continuous guardrail,'' the subcommittee approved a revision 
that would require one guardrail on the upper bunk to terminate no 
greater than 1.5 inches from the end structures, as opposed to the 
proposed requirement that the guardrail be continuous between the end 
structures. As noted above, the 1.5 inch space approved by the 
subcommittee would not comply with the final rule's requirement that 
the wall-side guardrail be continuous between the end structures.
    The revision approved by the ASTM subcommittee also clarified that 
the 15-inch space between the ends of the other upper bunk guardrail 
must be measured 5 inches above the sleeping surface of the maximum 
thickness mattress specified. This clarification agrees with the final 
rule.
    In addition, the subcommittee approved a change to the instructions 
that must accompany a bunk bed to inform consumers that a bunk bed 
placed adjacent to a wall must have the continuous guardrail on the 
wall-side of the bed. This requirement agrees with the final rule.
    The ASTM subcommittee voted to expand the current entrapment 
requirements to include the entire end structure between the level of 
the upper and lower bunk foundation support systems, as provided in the 
final rule. Further, it did not oppose adding a neck entrapment 
requirement to the ASTM standard. However, the members present 
questioned the need for a 75 deg. angle on the test probe, when a 
55 deg. angle on a similar probe in the ASTM public playground 
equipment standard appeared to have been effective in addressing neck 
entrapment incidents in openings. A working group was established to 
draft a recommendation

[[Page 71892]]

for the subcommittee on whether the probe to be used in the ASTM bunk 
bed standard should have a 75 deg. angle as in the proposed rule or a 
55 deg. angle as in the playground equipment standard. A motion was 
approved to accept the recommendation of the working group and to 
forward it, together with the other previously approved revisions, to 
ASTM for a ballot by the full subcommittee. At the request of ASTM, 
CPSC staff searched CPSC playground incident data and verified that no 
neck entrapments were reported in structures conforming to the 
requirements in the voluntary playground standards.
    A September 9, 1999 letter from the ASTM working group was 
submitted as a comment on the July 9, 1999 NPR. The letter stated that 
the working group had recommended to the ASTM subcommittee that the 
neck entrapment requirement to be added to the ASTM standard for bunk 
beds will specify the probe in the ASTM public playground equipment 
standard, which uses a 55 deg. angle.
    After the ASTM working group's decision to use the 55 deg. 
playground equipment probe, manufacturers discussed limiting the 
revision of the requirements for lower bunk end structures in the ASTM 
standard to metal bunk beds only. Their rationale for such a limitation 
is that there have been no known neck entrapment incidents in wooden 
bunk beds and that it is not likely that a wooden bunk bed would be 
manufactured with openings of a shape that would present neck 
entrapment. At the present time, the Commission does not know whether 
the lower bed end structure requirements in the ASTM standard will 
apply only to metal beds.
    The revisions to the voluntary standard that were approved during 
the meetings of the ASTM bunk bed subcommittee have not been sent for 
balloting by the entire subcommittee. The Commission does not know when 
the ballot will be mailed or what new requirements will be approved.

E. Statutory Authorities for This Proceeding

    The 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 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. The 
Commission considers a bunk bed to be intended for use by children if 
it has smaller than twin-size mattresses or incorporates styling or 
other features especially intended for use by children. The available 
data 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 were 
proposed, and are issued, 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.

F. Statutory Findings Relating to the Voluntary Standard

    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 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. Third, the 
mandatory standard contains protection against neck entrapment that the 
voluntary standard lacks. Finally, the mandatory rule applies to bunk 
beds having a foundation over 30 inches from the floor, rather than the 
35 inches in the ASTM standard. These provisions, which are in the rule 
but not in the voluntary standard, address fatalities and, as noted 
below, have benefits that bear a reasonable relationship to their 
costs.
    Therefore, the Commission finds that compliance with the voluntary 
standard is unlikely to eliminate or adequately reduce the risk of 
entrapment injury or death. For this reason, the voluntary standard 
does not bar issuance of a rule.
    Even if the voluntary and mandatory standards were identical, 
however, there is the issue of whether there will be substantial 
compliance with the voluntary standard. Neither the CPSA nor the FHSA 
define ``substantial compliance.'' The March 3, 1999 Notice of Proposed 
Rulemaking summarized an interpretation of ``substantial compliance'' 
that the Office of General Counsel provided to the Commission. 64 Fed. 
Reg. 10245, 10248-49 (March 3, 1999). The Commission specifically 
invited public comment on that interpretation from ``all persons who 
would be affected by such an interpretation.'' Id. at 10249. The 
Commission received more than 20 comments on the interpretation.
    Having now considered all the evidence that the staff has 
presented, the comments from the public, and the legal advice from the 
Office of General Counsel, the Commission concludes that there is not 
``substantial compliance'' with the ASTM voluntary standard for bunk 
beds within the meaning of the Consumer Product Safety Act and the 
Federal Hazardous Substances Act. See, e.g., 15 U.S.C. 
2058(f)(3)(D)(ii); 15 U.S.C. 1262(i)(2)(A)(ii). However, the Commission 
does not adopt a general interpretation of ``substantial compliance'' 
focusing on whether the level of compliance with a voluntary standard 
could be improved under a mandatory standard. Rather, the grounds for 
the Commission's decision

[[Page 71893]]

focus on the specific facts of this rulemaking and are stated below.
    The legislative history regarding the meaning of ``substantial 
compliance'' indicates that the Commission should consider whether 
compliance is sufficient to eliminate or adequately reduce the risk of 
injury in a timely fashion and that, generally, compliance should be 
measured in terms of the number of complying products, rather than the 
number of manufacturers who are in compliance. E.g., Senate Report No. 
97-102, p. 14 (May 15, 1981); House Report No. 97-158, p. 11 (June 19, 
1981); H. Conf. Rep. No. 97-208, 97th Cong., 1st Sess. 871, reprinted 
in 1981 U.S. Code Cong. & Admin. News 1010, 1233.
    Given this Congressional guidance, the Commission believes it 
appropriate to examine the number of conforming products as the 
starting point for analysis. However, the Commission does not believe 
that there is any single percentage of conforming products that can be 
used in all cases to define ``substantial compliance.'' Instead, the 
percentage must be viewed in the context of the hazard the product 
presents. Thus, the Commission must examine what constitutes 
substantial compliance with a voluntary standard in light of its 
obligation to safeguard the American consumer.
    There are certain factors the agency considers before it initiates 
regulatory action, such as the severity of the potential injury, 
whether there is a vulnerable population at risk, and the risk of 
injury. See 16 CFR 1009.8. These and other factors also appropriately 
inform the Commission's decision regarding whether a certain level of 
conformance with a voluntary standard is substantial. In the light of 
these factors, industry's compliance rate with the voluntary standard 
for bunk beds is not substantial.
    In this case, the Commission deals with the most severe risk--
death--to one of the most vulnerable segments of our population--
infants and young children. While the risk of death is not high, it 
exists whenever a young child is in a residence with a nonconforming 
bunk bed.
    Additionally, some products, such as hairdryers without shock 
protection devices, require some intervening action (dropping the hair 
dryer into water) to create the hazard. By contrast, deaths in bunk 
beds occur during the intended use of the product--a child rolling over 
in bed or climbing in or out of it--without any intervening action.
    The Commission must also consider that bunk beds have a very long 
product life, frequently being passed on to several families before 
being discarded. Thus, a number of children may be exposed to a bed 
during its useful life. Every noncomplying bed that poses an entrapment 
hazard presents the potential risk of death to any young child in the 
house. It is a risk that is hard for a parent to protect against, as 
children find their way onto these beds even if they are not put to 
sleep in them.
    Bunk beds are products that can be made relatively easily by very 
small companies, or even by a single individual. The Office of 
Compliance believes smaller entities will always present a compliance 
problem, because new manufacturers can enter the marketplace relatively 
easily and need little expertise to make a wooden bunk bed. The 
evidence seems to support the view that there will always be an 
irreducible number of new, smaller bunk bed manufacturers who will not 
follow the voluntary standard.
    What constitutes substantial compliance is also a function of what 
point in time the issue is examined. In 1989, the Commission denied a 
petition for a mandatory bunk bed rule. At that time, industry was 
predicting that by April of 1989, 90% of all beds being manufactured 
would comply with the voluntary guidelines. But that was in the context 
of years of steadily increasing conformance and the hope that 
conformance would continue to grow and that deaths and near-misses 
would begin to decline. But the conformance level never grew beyond the 
projection for 1989 and deaths and near-misses have not dropped.
    Even with the existing compliance rate, the Commission is 
contemplating the prospect of perhaps 50,000 nonconforming beds a year 
(or more) entering the marketplace, with many beds remaining in use for 
perhaps 20 years or longer. Under these circumstances, a 10% rate of 
noncompliance is too high.
    It is now clear that the bunk bed voluntary standard has not 
achieved an adequate reduction of the unreasonable risk of death to 
infants and children in a timely fashion, and it is unlikely to do so. 
Accordingly, the Commission finds that substantial compliance with the 
voluntary standard for bunk beds is unlikely.
    Products that present some or all of the following factors might 
not be held to as strict a substantial compliance analysis. Those 
which:
--Rarely or never cause death;
--Cause only less severe injuries;
--Do not cause deaths or injuries principally to a vulnerable segment 
of the population;
--Are not intended for children and which have no special attraction 
for children;
--Have a relatively short life span;
--Are made by a few stable manufacturers or which can only be made by 
specialized manufacturers needing a significant manufacturing 
investment to produce the product;
--Are covered by a voluntary standard which continues to capture an 
increasing amount of noncomplying products; or
--Require some additional intervening action to be hazardous.

    And, in analyzing some other product, there could be other factors 
that would have to be taken into consideration in determining what 
level of compliance is adequate to protect the public. The tolerance 
for nonconformance levels has to bear some relationship to the 
magnitude and manageability of the hazard addressed.
    The Commission emphasizes that its decision is not based on the 
argument that a mandatory rule provides more powerful enforcement 
tools. If this were sufficient rationale, mandatory rules could always 
displace voluntary standards, and this clearly was not Congress's 
intent. But, with a mandatory standard, the necessity of complying with 
a mandatory federal regulation will be understandable to small 
manufacturers. State and local governments will have no doubt about 
their ability to help us in our efforts to locate these manufacturers.

G. Response to Comments

    The Commission received 21 written comments in response to the NPR 
published in the Federal Register on March 3, 1999. In addition, six 
people gave oral testimony in a public hearing held on May 6, 1999. 
Also, five comments were received in response to the revised entrapment 
requirements published in the July 9, 1999, Federal Register. The 
Commission's responses to these comments are given below:

1. Comments on the March 3, 1999, NPR

    a. Favoring a mandatory rule: Seven commenters responding in 
writing to the March 3, 1999, NPR, and three persons at the May 6, 
1999, public hearing, favored a mandatory rule addressing entrapment in 
bunk beds. Their reasons were varied and included:
     Reports of deaths show there is an unreasonable risk;
     A mandatory standard will improve compliance;
     The benefits show a reasonable relationship to costs;

[[Page 71894]]

     A mandatory rule permits the Commission to seek penalties 
from violators;
     There is increased awareness of mandatory standards; and
     A mandatory standard removes the cost advantage of 
producing nonconforming beds.
    b. Reference the ASTM standard: Two comments on the NPR neither 
opposed nor favored a mandatory rule. The President of ASTM and the 
chairman of the ASTM F15.30 subcommittee for bunk beds requested that, 
if the Commission elects to proceed with a mandatory standard, it 
should reference the ASTM F1427 voluntary standard. At the present 
time, there are some significant differences in the entrapment 
requirements in the ASTM standard and those in the mandatory rule. 
Although the ASTM subcommittee for bunk beds has agreed to make certain 
revisions to the voluntary standard, these revisions would not make the 
entrapment requirements in the ASTM standard identical to those in the 
rule (see additional discussion below in the response to comments on 
the July 9, 1999 NPR). Further, the Commission does not know that these 
revisions will be approved by the formal ASTM ballot process. 
Therefore, the mandatory rule does not reference the ASTM standard, but 
instead contains specific requirements addressing entrapment.
    c. Substantial compliance: As noted, where there is a voluntary 
standard in place, both the CPSA and the FHSA prohibit the Commission 
from issuing a mandatory standard unless the Commission finds either 
that the voluntary standard is not likely to eliminate or adequately 
reduce the risk or that it is unlikely that there will be ``substantial 
compliance'' with the voluntary standard.
    For the reasons stated in Section F of this notice, the Commission 
has found both that the voluntary standard will not adequately reduce 
the risk of injury from bunk beds and that it is unlikely that there 
will be substantial compliance with the voluntary standard. Therefore, 
the voluntary standard is not a bar to issuance of a rule.
    d. OMB Circular No. A-119: One commenter noted that OMB Circular 
No. A-119 directs agencies to use voluntary standards in lieu of 
government-unique standards except where they are inconsistent with law 
or otherwise impractical. However, Circular No. A-119 states that it 
should not ``be construed to commit any agency to the use of a 
voluntary standard which * * * is, in its opinion, inadequate * * * or 
is otherwise inappropriate.'' The Commission determines that, in this 
case, reliance on the voluntary standard is ``inappropriate'' for the 
reasons stated in Section H of this notice. Thus, Circular No. A-119 
does not prevent issuance of a final rule.
    e. Entrapment incidents: A bunk bed manufacturer claimed that the 
extra cost and major design changes required to comply with the 
proposed rule's provisions for a continuous guardrail do not reduce or 
eliminate the potential hazards. The manufacturer also claimed that 
there were no incidents of entrapment between a bunk bed and a wall 
prior to the inception of the 1996 ASTM standard.
    However, CPSC is aware of 9 fatalities resulting from entrapment 
between a top bunk and a wall from 1990 through August 9, 1999. Two of 
these fatalities occurred in beds conforming to the ASTM standard's 
requirement for a wall-side guardrail that permits gaps up to 15 inches 
in width between each end of the guardrail and the bed's end 
structures. One of these deaths occurred in 1994 and the other in 1996. 
In both, the victims slipped through the unprotected area between the 
end of the guardrail and bed end structure. The requirement in the rule 
for a continuous wall-side guardrail will prevent future incidents of 
this type.
    f. Hazards in other types of beds: It was noted by one commenter 
that other types of beds, such as small single beds and trundle beds, 
could have the same entrapment hazards as bunk beds if they are used by 
preschool age children. The commenter, therefore, suggested that any 
bed intended for preschool age children, and adult beds (since it is 
predictable that young children will be placed in these beds), should 
be subject to a mandatory standard.
    The Commission did not extend the scope of the standard to cover 
beds other than bunk beds, because this would involve different 
considerations of risk, cost, and benefits, and is outside the scope of 
the present proceeding.
    This commenter also recommended that both adult and children's bunk 
beds should be covered by a single standard, and that the standard 
should be issued under the CPSA.
    As explained in the proposal and in Section E of this notice, the 
CPSA provides that a risk that can be adequately regulated under the 
FHSA can be regulated under the CPSA only if the Commission determines, 
by rule, that regulating the risk under the CPSA is in the public 
interest. Bunk beds intended for use by children, but not other bunk 
beds, could adequately be regulated under the FHSA, and the Commission 
did not find reasons why it would be in the public interest to regulate 
the risk from children's bunk beds under the CPSA. Accordingly, the 
Commission proposed to regulate bunk beds intended for use by children 
under the FHSA and to regulate other (adult) bunk beds under the CPSA. 
Although this does not comply with the commenter's recommendation that 
both categories of bunk beds be regulated under the CPSA, it does 
comply with the recommendation that the standard's requirements apply 
to both adults' and children's beds.
    g. Bunk beds for institutional use: Two comments addressed the 
issue of whether the rule should apply to bunk beds sold for 
institutional use, such as school or college dormitories, prisons, and 
military facilities. One comment, from a trade association representing 
a number of major producers of bunk beds, states that to include 
institutional beds in the scope of the rule would be a departure from 
past CPSC practice. The association asserts that the regulation of 
public accommodations has traditionally been accomplished through state 
and municipal building codes. The other comment, from a manufacturer of 
college dormitory furniture, strongly objects to a regulation that is 
unsupported by any data to show that there is a high risk for adults or 
college students. Institutional bunk beds are generally not provided 
with guardrails, and the manufacturer claims that to add such rails, 
and comply with other provisions in the proposed rule, would add $225 
to the cost of each of his beds and be of no benefit to an adult user.
    Although the Commission cannot confirm the commenter's cost 
estimate, it agrees that the cost of compliance with the rule would be 
substantially higher for institutional bunk beds than for residential 
beds, in part because institutional beds typically do not have any 
guardrails (since they are intended for teenagers or adults). 
Furthermore, of the two known fatalities of children that occurred in 
beds that were originally sold for institutional use, one was an 
entrapment between the lower bunk mattress and a wall, a scenario not 
addressed by the rule. The other incident was an entrapment in a gap 
between the end structure and a mattress that was too short to fit 
properly on the lower bunk. This incident would be addressed by a label 
and the instructions for proper mattress size if institutional beds 
were included in the scope of the rule.
    According to information supplied by industry, there are about 
200,000 bunk beds sold for the institutional market each year for use 
by colleges and

[[Page 71895]]

boarding schools, the military, mental health facilities, and 
correctional facilities. The expected useful life of these 
institutional products is estimated by industry at 7 to 10 years. 
Therefore, there may be about 1.7 million institutional beds in use. 
Manufacturers projected that the cost of compliance for institutional 
bunk beds would be considerably higher than that of residential bunk 
beds, due to the addition of two guard rails (rather than one for 
residential) and the heavier-duty materials used in institutional bunk 
beds. For comparison purposes, if the only significant cost was the 
addition of two guardrails (equivalent to rails used in residential 
beds), the cost of compliance for institutional bunk beds would be 
twice that of residential units, or $30 to $80 per bed.
    Given that one death would have been addressed during the last 9.5 
years, and that an average of about 1.7 million institutional bunk beds 
may have been in use during those years, the risk addressed by 
inclusion of institutional beds in the mandatory standard would be 
about 0.06 deaths per million beds in use per year ((1 death/9.5 
years)/1.7 million beds). Assuming a societal cost of $5 million per 
death, the annual societal value of averting this risk is about $0.30 
per bed per year. If we assume a useful life of 10 years, and a 
discount rate of 3%, the estimated present value of averting this risk 
would be about $2.55 per bed over its entire useful life. Thus, based 
on available information, the benefits of the rule, if applied to 
institutional bunk beds, would likely be substantially less than the 
costs. Because of this, and because the likelihood that consumers will 
purchase institutional beds in the future is not known, the Commission 
decided not to include institutional bunk beds within the scope of the 
rule. For the purposes of this rule, facilities intended for use by 
children under age 6 are not considered to be institutions.
    h. Effective date: The Commission proposed an effective date of 180 
days (6 months) after the final rule is published. A trade association 
representing a number of major bunk bed producers commented that there 
should be an 18-month lead time before the rule becomes effective; the 
association reiterated this in its comments on the July 9, 1999, NPR. A 
time line showing the tasks needed to comply with the proposed rule was 
included in the association's comments. The trade association stated 
that between 5 and 10 months of time were needed to allow 
manufacturers, distributors, and retailers to sell their inventories.
    An allowance of lead time to deplete inventory is not necessary, 
because the rule will apply only to bunk beds manufactured or imported 
after the rule's effective date. Deletion of the time allotted for 
inventory depletion from the trade association's time line would result 
in an effective date of 8 to 13 months after publication.
    The CPSA provides that an effective date shall not exceed 180 days 
unless the Commission finds that a longer period is in the public 
interest. Although the schedule provided by the association might be 
reasonable for a high-volume manufacturer with numerous models affected 
by the rule, the Commission considers the schedule to be unnecessarily 
long for the minor changes imposed by the rule on the small 
manufacturers likely to be affected. Thus, the Commission cannot 
conclude it is in the public interest to extend the effective date past 
the proposed 180-day period. The Commission concludes that the 180-day 
period between publication of the final rule and its effective date is 
reasonable and adequate to allow manufacturers time to make any 
necessary product changes.

2. Comments on the July 9, 1999, NPR

    a. Support for the rule: One commenter, who had previously 
submitted a comment supporting the rule in the March 3, 1999, NPR, also 
supports the revised rule on the grounds that ``these requirements are 
necessary to address fatalities due to entrapment of children's necks 
in end structures of bunk beds.'' The commenter also believes ``that 
the Commission should not defer to the ASTM voluntary standard because 
of widespread lack of compliance and because the current voluntary 
standard is inadequate.'' As previously stated, the Commission is not 
relying on the voluntary standard.
    b. Neck entrapment probe: Two comments from bunk bed manufacturers 
that are members of the ASTM F15.30 subcommittee addressed the angle 
incorporated into the probe in the revised proposed rule. One of the 
comments, submitted on behalf of the entire subcommittee, stated that 
the lower bunk end-structure requirements in the ASTM standard would be 
revised in accordance with the requirements in the proposed rule 
(Secs. 1213.3(b)(3) & (4), 1213.4, 1513.3(b)(3) & (4), and 1513.4)), 
except that the sides of the probe (see Figure 2) would have a 55 deg. 
angle relative to the centerline of the probe instead of the 75 deg. 
angle of the probe in the revised proposed rule. The comment from the 
other manufacturer, a member of the ASTM bunk bed subcommittee, also 
addressed the angle on the end-structure probe and stated that, while 
he could accept a probe with either angle, it was his opinion that the 
55 deg. angle should be adopted. Both of these comments supported a 
55 deg. angle based on its apparent success in preventing neck 
entrapment incidents in playground equipment.
    Another comment, from a trade association representing major 
manufacturers of bunk beds, reiterated the association's comment on the 
March 3, 1999 NPR that it was not opposed to a mandatory rule for bunk 
beds, and supported a provision to address neck entrapment in lower 
bunk end structures. It also takes no position on the appropriate probe 
for this purpose, but recommends ``a probe which eliminates or 
adequately reduces the risk of neck entrapment.''
    In drafting the neck entrapment requirements, the CPSC staff 
initially considered using a probe identical to that in the ASTM F1487 
standard for public playground equipment (with a 55 deg. angle). The 
rationale for the 55 deg. angle stems from a recommendation by a 
committee, convened in 1976 by the National Recreation and Park 
Association (NRPA), that developed requirements for a possible CPSC 
mandatory standard for playground equipment. The angle requirement was 
``intended to eliminate dangerous angles that could form openings 
tending to entrap or strangle the user.'' The rationale for the 
committee's recommendation stated: ``[I]t is best engineering judgement 
at this point, and takes into consideration the fact that most angles 
present in current equipment are 60 deg. or greater.'' Based on this 
NRPA committee recommendation, the CPSC Handbook for Public Playground 
Safety, first published in 1981, also addresses neck entrapment in 
angles on public playground equipment by recommending that angles be 
greater than 55 deg..
    The Commission decided that the angle on the neck entrapment probe 
in the bunk bed standard should be 75 deg., instead of 55 deg., for a 
number of reasons. First, in 1985, following a number of deaths 
resulting from neck entrapment in accordion-style baby gates and 
enclosures, the staff worked with industry to draft requirements for a 
voluntary standard for these products. The staff developed a probe that 
had an angle of 75 deg. at its base, because an 11-month-old child had 
become fatally entrapped in a diamond-shaped opening in a baby gate 
having a 71 deg. angle at its base. The probe was designed to protect 
children two years of age and younger. It was accepted by the ASTM gate 
and

[[Page 71896]]

enclosure subcommittee and eliminated V-shaped openings with angles 
less than 75 deg..
    Second, the lack of injury data involving public playground 
equipment having angles greater than 55 deg. does not convince the 
Commission that a 55 deg. probe would adequately protect children. The 
potential for children to become entrapped in an angle between 55 deg. 
and 75 deg. depends on the type of equipment. The pieces of public 
playground equipment most likely to have angles between 55 and 75 deg. 
that could cause neck entrapment are dome climbers and handrails on 
ladders. Public playground equipment is generally intended for children 
from 2 through 12 years of age. Dome climbers are not appropriate for 
children under 5 years of age. Children 5 years of age and older who 
use dome climbers are more likely to be able to call out for assistance 
or pull themselves up and out if they become entrapped. As for ladder 
handrails, the angles that potentially could be an entrapment hazard 
are generally located at the bottom of the ladder below the neck level 
of even small children.
    Finally, children under 2 years of age are almost always supervised 
when playing in public playgrounds, and adult assistance would be 
readily available if needed. This is not the case with bunk beds, where 
children are left to sleep unattended.
    For the above reasons, the Commission concludes that a 75 deg. 
angle on the neck entrapment probe is necessary to adequately address 
the risk of entrapment in bunk bed end structures to protect children 
under 2 years of age.

H. The Need for a Mandatory Standard

    As noted in Section F of this notice, a mandatory standard is 
needed to provide requirements that are not now in the voluntary 
standard. In deciding to issue this rule, the Commission also 
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 smaller number of 
firms (and particularly large 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 are supported by the 
staff's enforcement experience. The CPSC's Office of Compliance (EXC) 
is aware of 167 firms who currently either manufacture or import bunk 
beds. Between November 1994 and October 1997, CPSC staff participated 
in eight recalls of bunk beds that did not comply with the voluntary 
standard. The recalls involved 41 manufacturers and importers, and 
affected approximately 531,000 bunk beds. In early 1998, CPSC 
Compliance staff conducted limited retail surveillance of bunk beds for 
compliance with the voluntary standard. Twenty-three firms had at least 
one model of bunk bed that did not conform, and six of these firms were 
repeat violators. This surveillance resulted in five recalls, involving 
approximately 37,000 beds.
    Later in 1998, a consumer complaint and a report under Section 15 
of the CPSA sparked investigations that resulted in recalls of 58,000 
bunk beds and 5,400 bunk bed kits. To date, the total number of bunk 
beds and kits recalled since 1994 has risen to more than 630,000, 
involving 48 firms.
    Since 1994, at the completion of each round of surveillance and 
follow-up action, CPSC staff believed that the known bunk bed 
manufacturers complied with the voluntary standard. This is the case 
today. Yet, each time, the staff later discovered more manufacturers, 
and some of their beds had to be recalled because they presented a risk 
of entrapment. The Commission believes that, in the absence of a 
mandatory rule, this pattern would continue.
    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, in the absence of a mandatory 
standard, entrapment hazards would continue to exist on beds in use and 
for sale.
    For the foregoing reasons, the Commission believes that a mandatory 
bunk bed entrapment standard is needed and has, therefore, decided to 
issue the mandatory rule.
    A mandatory bunk bed entrapment standard will bring the following 
benefits:
    1. A mandatory standard will 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 will allow the Commission to seek penalties 
for violations. Publicizing fines for noncompliance with a mandatory 
standard will deter other manufacturers from making noncomplying beds.
    3. A mandatory standard will allow state and local officials to 
assist CPSC staff in identifying noncomplying bunk beds and taking 
action to prevent the sale of these beds.
    4. Under a mandatory standard, retailers and distributors will 
violate the law if they sell noncomplying bunk beds. Retailers and 
retail associations will 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 will take away any competitive 
cost advantage for unsafe beds.
    6. A mandatory standard will 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.

I. Other Statutory Requirements and Findings

    The Commission is issuing the requirements for 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 finding is made in the 
appendix to Part 1213.
    Section 9(e) of the CPSA requires that, in promulgating a consumer 
product safety rule, ``the Commission shall also consider and take into 
account the special needs of elderly and handicapped persons to 
determine the extent to which such persons may be adversely affected by 
such rule.'' 15 U.S.C. 2058(e).
    The requirements for end-structure openings and, except as noted 
below, for a continuous guardrail on the wall side of bunk beds do not 
entail any inconvenience for the user. The requirement that guardrails 
cannot be

[[Page 71897]]

removed without either intentionally releasing a fastening device or 
applying forces sequentially in different directions also is expected 
to not have a significant adverse effect on the elderly or handicapped. 
First, the voluntary standard has required this safety feature for many 
years, and many currently manufactured bunk beds already have this 
feature. Second, handicapped or elderly persons rarely use the top 
bunk. Third, once installed, guardrails are likely to be left in place. 
Finally, the actions needed to use guardrails with these features would 
present little or no additional difficulty for elderly or handicapped 
persons who can remove guardrails without these features. Therefore, 
after considering the effects of the rule on elderly and handicapped 
persons, the Commission concludes that the life saving benefits of the 
rule clearly warrant whatever small adverse effect it may cause on the 
use of bunk beds by the elderly or handicapped, if any.
    The regulation for bunk beds intended for the use of children 
requires a determination under FHSA Section 3(a)(1) that bunk beds that 
do not comply with the 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). This finding is made in the appendix to Part 1513.
    To issue a final rule under either the CPSA or the FHSA, the 
Commission 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). 
The required final regulatory analysis is in Section J of this notice.
    Before issuing a final regulation under either the CPSA or the 
FHSA, the Commission must make other statutory findings. These concern 
voluntary standards, the relationship of the costs and benefits of the 
rule, and the burden imposed by the regulation. CPSA Sec. 9(f)(3), 15 
U.S.C. 2058(f)(3); FHSA Sec. 3(i)(2), 15 U.S.C. 1262(i)(2). These 
findings are made in the appendices to Parts 1213 and 1513, 
respectively.

J. Final Regulatory Analysis

    Introduction: The rules issued in this notice are under the 
authority of both the CPSA and the FHSA. Both statutes require that the 
Commission publish a final regulatory analysis of the rule. The 
Commission's final regulatory analysis is published below. (Since the 
technical requirements of the rule under the CPSA and the rule under 
the FHSA are identical, this analysis will refer to ``the rule.'')
    Product and market information: The retail prices of bunk beds 
range from about $100 to over $700; manufacturers estimate the average 
retail price to be about $300. Some models now have a lower double bed 
with a twin upper bunk.
    The American Furniture Manufacturers Association (AFMA) represents 
manufacturers of bunk beds. According to AFMA, 40 firms, either AFMA 
members or members of the existing ASTM bunk bed subcommittee, account 
for 75-80% of total known annual sales of bunk beds. Through Compliance 
staff activities, the Commission is now aware of 167 manufacturers of 
bunk beds. The share of the market accounted for by the 127 
manufacturers or distributors who are not AFMA members or members of 
the ASTM subcommittee is not known, but is believed to account for a 
majority of the remaining 20-25% of annual sales.
    Bunk beds are a category of bedroom furniture, and every 
manufacturer of bedroom furniture is a potential producer of bunk beds. 
Further, because of their straightforward design, other types of 
businesses (and individuals) can also produce these products. Thus, it 
is likely that there are other unidentified manufacturers, each 
producing small numbers of bunk beds.
    Industry sources estimate that about 500,000 bunk beds are sold 
annually for household use, and that the expected useful life of these 
products is 13-17 years. Based on this information, the CPSC's Product 
Population Model (a computer-generated statistical program) estimates 
that there may be about 8 million bunk beds in household use.
    AFMA sources indicate that imports of bunk beds by its members 
appear to be increasing. Industry sources indicate that most, if not 
all, metal bunk beds sold are imported. Metal bunk beds are estimated 
to account for about 20% of the sales of bunk beds.
    Conformance with the existing voluntary standard: There is an 
existing voluntary standard for bunk beds, ASTM F1427. There are no 
known government or industry data describing the extent of conformance 
to this standard. However, based on its knowledge of industry 
practices, the Commission's Engineering Sciences staff (ES) estimated 
that roughly 50% of production from 1979 to 1986 conformed to the 
standard's upper bunk entrapment requirements. Staff estimates that, as 
the industry publicized the guidelines and CPSC staff became involved 
in the standards process, conformance increased to roughly 75% of 
production during the period 1986 to 1992. The conformance was 
estimated to have increased further after 1992, when ASTM published its 
bunk bed standard and the staff (EXC) became active in monitoring for 
conformance to the standard. Staff estimates that up to 90% or more of 
production since 1992 conforms to the ASTM standard.
    EXC reported that the bunk beds produced by the 40 firms that are 
either members of AFMA or the ASTM subcommittee all conform to the 
existing voluntary standard. EXC staff also examined the product lines 
of the remaining 127 identified firms, and believes that, after a 
number of recall activities, all of the beds produced by these firms 
were in conformance with the standard.

Costs and Benefits

    Potential Costs. The costs associated with the mandatory rule 
include the cost of adapting to the provisions of the rule for any 
firms not now meeting those requirements. The cost factors affected by 
these requirements are any increases in the cost of materials, and any 
redesign costs necessary to comply with the mandatory rule.
    Four manufacturers that previously had modified their production 
stated that the additional materials needed to address entrapment were 
nominal compared to overall materials costs in bunk bed production. 
They also stated that any redesign costs would not be significant on a 
per-unit basis. The most significant cost was the addition of a 
continuous guardrail to the top bunk, which might add $15 to $40 to the 
average retail price of bunk beds (or 5% to 13% of the average retail 
price). This cost will apply only to bunk beds in current production 
that do not now meet the voluntary standard.
    There are also costs to some of the firms that now conform to the 
voluntary standard requirement for a wall-side guardrail, because the 
current voluntary standard allows for a 15-inch gap at either or both 
ends of this guardrail. A spokesman for a major independent bunk bed 
testing lab estimated that bunk bed models conforming to the voluntary 
standard are split about equally between those having a continuous 
wall-side rail (about 72 inches in length) and those having a 15-inch 
gap on one or both ends of the wall-side rail.
    Thus, about 50% of all models that meet the current voluntary 
standard may require some change in design, as well as additional 
materials, to meet the requirements in the mandatory

[[Page 71898]]

standard. The incremental cost of closing the gap (or gaps) in the 
wall-side top rail is unknown. However, because a continuous rail is 
merely an extension of the existing rail already in place, the increase 
in the retail price is probably less than proportional to the increase 
in length. Thus, if a continuous rail adds $15 to $40 to the price of a 
bunk bed, closing the gap on the wall-side rail may cost consumers no 
more than about $5 to $10.
    For a small number of firms, the rule may also result in costs 
associated with modifications of some bottom bunk end structures. Such 
modifications to openings may be required to prevent the free passage 
of a wedge block (simulating a child's torso) if they do not allow the 
free passage of a sphere (simulating a child's head). The requirement 
also addresses the shape of openings that could admit a child's neck, 
and entrap the head in the end structure. The Commission is aware of 
few current designs that will be affected by this latter requirement. 
However, if these one-time redesign costs are amortized over the entire 
production runs for these firms, the per-unit costs are expected to be 
small.
    Potential benefits. The expected societal costs of bunk bed 
entrapment deaths represent the potential benefits of preventing these 
deaths. Epidemiology staff reported that there were 57 entrapment 
deaths associated with bunk beds from 1990 through August 9, 1999. 
Based on a review of the circumstances of the reports, staff concluded 
that the voluntary standard would have addressed 37 of the 39 top bunk 
entrapment deaths and 2 of the 3 bottom bunk end structure entrapment 
deaths. Altogether, the Commission concludes that the voluntary 
standard would have addressed 68% (39/57) of the reported fatalities 
due to entrapment in both the top and bottom bunk locations. 
Additionally, conformance to the final rule (as opposed to the 
voluntary standard) will address another 3 of the 57 (about 5%) 
entrapment deaths, including the 2 top-bunk deaths that would not have 
been addressed by the voluntary standard, and 1 bottom bunk end-
structure death.
    The Commission projects that about 10 bunk bed entrapment 
fatalities have occurred annually since 1990. Thus, for the segment of 
bunk beds that do not conform to the voluntary standard, the rule will 
address about 7 deaths per year. For the segment of bunk beds that 
conform to the requirements of the voluntary standard but not the rule, 
the rule will address an additional death every other year, or about 
0.5 deaths per year.
    To determine the expected benefits of the rule, it is necessary to 
estimate the risk of entrapment death associated with bunk beds not 
conforming to the requirements of the mandatory rule. In this case, the 
risk computation requires information on the number of bunk beds that 
did not conform to the voluntary standard and on the number of bunk 
beds that conformed to the voluntary standard but not the mandatory 
rule.
    Since an estimated 1.2 to 2.4 million bunk beds in use since 1990 
did not conform to the voluntary standard, the risk of entrapment 
addressed by the rule for this group of beds ranges from about 2.9 to 
5.8 deaths per million nonconforming beds (7 deaths per 2.4 million 
beds to 7 deaths per 1.2 million beds). At an assumed societal cost of 
$5 million per death, a useful life of about 15 years for a bunk bed, 
and a discount rate of 3%, the estimated present value of averting 
entrapment fatalities on beds that did not conform to the voluntary 
standard ranges from about $175 to $350 per noncomplying bed.
    The rule will also address another 0.5 entrapment deaths annually 
that would not have been addressed by the voluntary standard. Assuming 
that about one-half of the 5.6 to 6.8 million bunk beds would have 
conformed to the voluntary standard but not the mandatory rule, the 
risk of entrapment for these beds would have ranged from about 0.15 to 
0.18 deaths per million beds (0.5 deaths per 3.4 million beds to 0.5 
deaths per 2.8 million beds). Using the assumptions stated above, the 
estimated present value of averting entrapment fatalities not addressed 
by the voluntary standard ranges from $9 to $11 per noncomplying bed.
    Comparison of costs and benefits. The above analysis evaluated the 
costs and benefits of the rule for two market segments: bunk beds that 
do not conform to the voluntary standard, and bunk beds that conform to 
the requirements of the voluntary standard but not to the requirements 
of the mandatory rule. For the segment of bunk beds that does not 
conform to the voluntary standard, the expected benefits of the rule 
(about $175 to $350 per bed) are substantially greater than the 
expected costs of the rule (about $15 to $40 per bed). Thus, if the 
standard prevents all of the deaths addressed on bunk beds not 
conforming to the voluntary standard, the expected net benefits per bed 
sold will range from a low of about $135 ($175-$40) to about $335 
($350-$40), and will average about $235 per bed. The effectiveness of 
the standard is preventing the injuries and deaths it addresses is 
expected to be very high.
    For the second segment, those beds that meet the requirements of 
the voluntary standard but not those of the rule, the expected benefits 
range from about $9 to $11 per bed and the costs range from about $5 to 
$10.
    Institutional bunk beds. The Commission also considered applying 
the rule to bunk beds produced for the institutional market (such as 
for colleges, the military, etc.). As described in Section G of this 
notice, the Commission excluded institutional bunk beds from the rule.

K. Final Regulatory Flexibility Act Certification

    The Commission is required by the Regulatory Flexibility Act of 
1980 (RFA) to address and give particular consideration to the economic 
effects of the rule on small entities.
    The precise number of firms manufacturing bunk beds is not known. 
Commission staff has identified 167 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 guidelines classify firms in 
the furniture industry as small if they have less than 500 employees, 
are independently owned, and are not dominant in the field; thus, most 
of the identified firms would be classified as small businesses. It is 
likely that there are additional unidentified firms that produce 
relatively small numbers of bunk beds. 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, after the extensive recall activities 
conducted by the Commission's staff, the 167 firms identified by the 
staff apparently conform to the existing voluntary standard, and will 
require only slight modifications to comply with the mandatory rule. 
For firms not conforming to the voluntary standard, the requirements 
are expected to result in cost increases that are small and likely to 
be passed on to consumers.
    The mandatory rule will not require third-party testing, and it is 
anticipated that firms themselves will do the testing required to 
certify that their products comply with the mandatory standard.
    There are no reporting or recordkeeping requirements under the 
rule. There are no Federal rules that the rule will duplicate, or with 
which it will overlap or conflict.
    Accordingly, the Commission certifies that the rule will not have a 
significant

[[Page 71899]]

economic impact on a substantial number of small entities.

L. Environmental Assessment

    The rule will not cause manufacturers to dispose of existing 
construction materials or packaging. Sale of inventories of finished 
noncomplying products (including those at retail) will not be 
prohibited, since the rule will apply only to units produced or 
imported after the effective date.
    The rule is not expected to have a significant effect on the 
materials used in the production and packaging of subject bunk beds, or 
in the number of units discarded after the rule.
    Therefore, no significant environmental effects are expected to be 
caused by the rule for bunk beds.

M. Executive Orders

    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 are 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.
    This rule has been evaluated in light of the principles stated in 
Executive Order No. 13,132 concerning federalism, even though that 
Order does not apply to independent regulatory agencies, such as CPSC. 
The only substantial federalism concern associated with this rule is 
preemption of non-identical state standards. The Commission is aware of 
standards in California and Oklahoma that differ from the final rule in 
minor ways. In fact, the Commission understands that the intent of the 
California standard was to duplicate the anticipated Federal rule.
    By establishing findings the Commission must make to issue these 
types of rules and expressly providing for preemption of non-identical 
state standards, Congress clearly intended preemption of state law in 
these circumstances. Further, the preemption is the minimum required to 
carry out the purposes of the CPSA and the FHSA. In view of the minor 
differences between these two state rules and the Federal rule, the 
Commission concludes that the Federal rule will have no adverse effect 
on the safety of the citizens of these two states.
    Further, to the extent that these state rules differ from each 
other and from the voluntary standard, manufacturers who would like to 
provide bunk beds to either of these states and to another state may 
have to sell different versions of their beds to satisfy the 
conflicting standards. Thus, these state rules, if not preempted, could 
have an adverse economic effect on manufacturers and distributors.

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

    Bunk beds, Consumer protection, Infants and children, Reporting and 
recordkeeping requirements.

    Effective date. These rules will become effective June 19, 2000.
    For the reasons set out in the preamble, the Commission amends 
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.
Figures 1-4

Appendix to Part 1213--Findings Under the Consumer Product Safety Act

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


Sec. 1213.1  Scope, application, and effective date.

    (a) Scope, basis, and purpose. 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.
    (b) Application and effective date. The standard in this part 
applies to all bunk beds, except those manufactured only for 
institutional use, that are manufactured in the United States, or 
imported, on or after June 19, 2000. (Facilities intended for use by 
children under age 6 are not considered to be institutions.) 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:
    Bed. See Bunk bed.
    Bed end structure means an upright unit at the head and foot of the 
bed to which the side rails attach.
    Bunk bed means a bed in which the underside of any foundation is 
over 30 inches (760 mm) from the floor.
    Foundation means the base or support on which a mattress rests.
    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, for each bed having 
the underside of its foundation more than 30 inches (760 mm) from the 
floor.
    (2) One guardrail shall be continuous between each of the bed's end

[[Page 71900]]

structures. ``Continuous'' means that any gap between the guardrail and 
end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause 
a finger entrapment hazard for a child).
    (3) 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.
    (4) 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.
    (5) Guardrails shall be attached so that they cannot be removed 
without either intentionally releasing a fastening device or applying 
forces sequentially in different directions.
    (6) 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. This requirement does not prohibit a wall-side guardrail 
that terminates in a quarter-circle bend and attaches to the side rail 
of the upper bunk foundation.
    (7) 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 Figure 1 of this part 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 Figure 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 Figure 1, unless the openings are also large enough to permit the 
free passage of a 9-inch (230-mm) diameter rigid sphere.
    (4) All portions of the boundary of any opening required by 
Secs. 1213.4(c)(1) and (2) to be probed by the wedge block of Figure 1, 
and that permits free passage of a 9-inch diameter sphere, must conform 
to the neck entrapment requirements of Sec. 1213.4(c)(3).


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 Figure 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 Figure 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 Figure 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.
    (3) All portions of the boundary of any opening that is required to 
be probed by the wedge block of Figure 1 by paragraphs (c)(1) and 
(c)(2) of this section, and that permits free passage of a 9-inch 
diameter sphere, must satisfy the requirements of paragraphs (c)(3)(i) 
and (c)(3)(ii) of this section addressing neck entrapment.
    (i) Insert the ``A'' section of the test template shown in Figure 2 
of this part into the portion of the boundary of the opening to be 
tested, with the plane of the template in the plane of the opening and 
with the centerline of the top of the template (as shown in Figure 2) 
aligned parallel to the centerline of the opening, until motion is 
stopped by contact between the test template and the boundaries of the 
opening (see Figure 3 of this part). By visual inspection, determine if 
there is simultaneous contact between the boundary of the opening and 
both sides of the ``A'' section of the template. If simultaneous 
contact occurs, mark the contact points on the boundary of the opening 
and conduct the additional test described in paragraph (c)(3)(ii) of 
this section.
    (ii) To check the potential for neck entrapment, place the neck 
portion of the ``B'' section of the template into the opening, with its 
plane perpendicular to both the plane of the opening and the centerline 
of the opening (see Figure 4 of this part). If the neck portion of the 
``B'' section of the template completely enters the opening (passes 
0.75 inch or more beyond the points previously contacted by the ``A'' 
section of the template), the opening is considered to present a neck 
entrapment hazard and fails the test, unless its lower boundary slopes 
downward at 45 deg. or more for the whole distance from the narrowest 
part of the opening the neck can reach to the part of the opening that 
will freely pass a 9-inch diameter sphere.


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

[[Page 71901]]

[GRAPHIC] [TIFF OMITTED] TR22DE99.001


BILLING CODE 6355-01-C


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) 
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.
    (6) If the bunk bed will be placed next to a wall, the guardrail 
that runs the full length of the bed should be placed against the wall 
to prevent entrapment between the bed and the wall. (This applies only 
to bunk beds without two full-length guardrails.)


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). These findings are contained in the 
Appendix to this Part 1213.
    (a) The rule in this part (including its effective date of June 19, 
2000 is reasonably necessary to eliminate or reduce an unreasonable 
risk of injury associated with the product.
    [These findings are contained in the Appendix to this part 1213.]
    (b) 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.
    (d) The benefits expected from the rule 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.

BILLING CODE 6355-01-P

[[Page 71902]]

Figure 1 to Part 1213--Wedge Block for Tests in Sec. 1213.4(a), 
(b), and (c)
[GRAPHIC] [TIFF OMITTED] TR22DE99.007


[[Page 71903]]



Figure 2 to Part 1213--Test Template for Neck Entrapment
[GRAPHIC] [TIFF OMITTED] TR22DE99.003


[[Page 71904]]



Figure 3 to Part 1213--Motion of Test Template Arrested by 
Simultaneous Contact With Both Sides of ``A'' Section and 
Boundaries of Opening
[GRAPHIC] [TIFF OMITTED] TR22DE99.004


[[Page 71905]]



Figure 4 to Part 1213--Neck Portion of ``B'' Section of Template 
Enters Completely Into Opening
[GRAPHIC] [TIFF OMITTED] TR22DE99.005

BILLING CODE 6355-01-C

[[Page 71906]]

Appendix to Part 1213--Findings Under the Consumer Product Safety 
Act

    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). Because of this, the facts 
and determinations in these findings apply as of the date the rule 
was issued, December 22, 1999.
    A. The rule in this part (including its effective date of June 
19, 2000) is reasonably necessary to eliminate or reduce an 
unreasonable risk of injury associated with the product.
    1. For a recent 9.6-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 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 Appendix, 
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 Appendix, 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 paragraph D of this Appendix, have 
benefits that bear a reasonable relationship to their costs.
    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.'' The March 3, 1999 Notice of 
Proposed Rulemaking summarized an interpretation of ``substantial 
compliance'' that the Office of General Counsel provided to the 
Commission. 64 Fed. Reg. 10245, 10248-49 (March 3, 1999). The 
Commission specifically invited public comment on that 
interpretation from ``all persons who would be affected by such an 
interpretation.'' Id. at 10249. The Commission received more than 20 
comments on the interpretation.
    ii. Having now considered all the evidence that the staff has 
presented, the comments from the public, and the legal advice from 
the Office of General Counsel, the Commission concludes that there 
is not ``substantial compliance'' with the ASTM voluntary standard 
for bunk beds within the meaning of the Consumer Product Safety Act 
and the Federal Hazardous Substances Act. See, e.g., 15 U.S.C. 
2058(f)(3)(D)(ii); 15 U.S.C. 1262(i)(2)(A)(ii). However, the 
Commission does not adopt a general interpretation of ``substantial 
compliance'' focusing on whether the level of compliance with a 
voluntary standard could be improved under a mandatory standard. 
Rather, the grounds for the Commission's decision focus on the 
specific facts of this rulemaking and are stated below.
    iii. The legislative history regarding the meaning of 
``substantial compliance'' indicates that the Commission should 
consider whether compliance is sufficient to eliminate or adequately 
reduce the risk of injury in a timely fashion and that, generally, 
compliance should be measured in terms of the number of complying 
products, rather than the number of manufacturers who are in 
compliance. E.g., Senate Report No. 97-102, p. 14 (May 15, 1981); 
House Report No. 97-158, p. 11 (June 19, 1981); H. Conf. Rep. No. 
97-208, 97th Cong., 1st Sess. 871, reprinted in 1981 U.S. Code Cong. 
& Admin. News 1010, 1233.
    iv. Given this Congressional guidance, the Commission believes 
it appropriate to examine the number of conforming products as the 
starting point for analysis. However, the Commission does not 
believe that there is any single percentage of conforming products 
that can be used in all cases to define ``substantial compliance.'' 
Instead, the percentage must be viewed in the context of the hazard 
the product presents. Thus, the Commission must examine what 
constitutes substantial compliance with a voluntary standard in 
light of its obligation to safeguard the American consumer.
    v. There are certain factors the agency considers before it 
initiates regulatory action, such as the severity of the potential 
injury, whether there is a vulnerable population at risk, and the 
risk of injury. See 16 CFR 1009.8. These and other factors also 
appropriately inform the Commission's decision regarding whether a 
certain level of conformance with a voluntary standard is 
substantial. In the light of these factors, industry's compliance 
rate with the voluntary standard for bunk beds is not substantial.
    vi. In this case, the Commission deals with the most severe 
risk--death--to one of the most vulnerable segments of our 
population--infants and young children. While the risk of death is 
not high, it exists whenever a young child is in a residence with a 
nonconforming bunk bed.
    vii. Additionally, some products, such as hairdryers without 
shock protection devices, require some intervening action (dropping 
the hair dryer into water) to create the hazard. By contrast, deaths 
in bunk beds occur during the intended use of the product--a child 
rolling over in bed or climbing in or out of it--without any 
intervening action.
    viii. The Commission must also consider that bunk beds have a 
very long product life, frequently being passed on to several 
families before being discarded. Thus, a number of children may be 
exposed to a bed during its useful life. Every noncomplying bed that 
poses an entrapment hazard presents the potential risk of death to 
any young child in the house. It is a risk that is hard for a parent 
to protect against, as children find their way onto these beds even 
if they are not put to sleep in them.
    ix. Bunk beds are products that can be made relatively easily by 
very small companies, or even by a single individual. The Office of 
Compliance believes smaller entities will always present a 
compliance problem, because new manufacturers can enter the 
marketplace relatively easily and need little expertise to make a 
wooden bunk bed. The evidence seems to support the view that there 
will always be an irreducible number of new, smaller bunk bed 
manufacturers who will not follow the voluntary standard.
    x. What constitutes substantial compliance is also a function of 
what point in time the issue is examined. In 1989, the Commission 
denied a petition for a mandatory bunk bed rule. At that time, 
industry was predicting that by April of 1989, 90% of all beds being 
manufactured would comply with the voluntary guidelines. But that 
was in the context of years of steadily increasing conformance and 
the hope that conformance would continue to grow and that deaths and 
near-misses would begin to decline. But the

[[Page 71907]]

conformance level never grew beyond the projection for 1989 and 
deaths and near-misses have not dropped.
    xi. Even with the existing compliance rate, the Commission is 
contemplating the prospect of perhaps 50,000 nonconforming beds a 
year (or more) entering the marketplace, with many beds remaining in 
use for perhaps 20 years or longer. Under these circumstances, a 10% 
rate of noncompliance is too high.
    xii. It is now clear that the bunk bed voluntary standard has 
not achieved an adequate reduction of the unreasonable risk of death 
to infants and children in a timely fashion, and it is unlikely to 
do so. Accordingly, the Commission finds that substantial compliance 
with the voluntary standard for bunk beds is unlikely.
    xiii. Products that present some or all of the following factors 
might not be held to as strict a substantial compliance analysis. 
Those which:

--Rarely or never cause death;
--Cause only less severe injuries;
--Do not cause deaths or injuries principally to a vulnerable 
segment of the population;
--Are not intended for children and which have no special attraction 
for children;
--Have a relatively short life span;
--Are made by a few stable manufacturers or which can only be made 
by specialized manufacturers needing a significant manufacturing 
investment to produce the product;
--Are covered by a voluntary standard which continues to capture an 
increasing amount of noncomplying products; or
--Require some additional intervening action to be hazardous.
    xiv. And, in analyzing some other product, there could be other 
factors that would have to be taken into consideration in 
determining what level of compliance is adequate to protect the 
public. The tolerance for nonconformance levels has to bear some 
relationship to the magnitude and manageability of the hazard 
addressed.
    xv. The Commission emphasizes that its decision is not based on 
the argument that a mandatory rule provides more powerful 
enforcement tools. If this were sufficient rationale, mandatory 
rules could always displace voluntary standards, and this clearly 
was not Congress's intent. But, with a mandatory standard, the 
necessity of complying with a mandatory federal regulation will be 
understandable to small manufacturers. State and local governments 
will have no doubt about their ability to help us in our efforts to 
locate these manufacturers.
    D. The benefits expected from the rule bear a reasonable 
relationship to its costs.
    1. Bunk beds that do not comply with ASTM's requirements for 
guardrails. 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. Bunk beds that comply with ASTM's requirements for 
guardrails. 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 (760 mm) 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 and by also including a test for neck entrapment in this 
area. 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 these modifications 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-
side guardrails 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 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, 
each of which is caused by an unreasonable risk of entrapment. 
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 Appendix, no alternatives to a 
mandatory rule have been 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.

    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. 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 
the following findings and to include these findings in the regulation: 
Bunk beds present a mechanical hazard; 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; The 
benefits expected from the rule bear a reasonable relationship to its 
costs; and The rule imposes the least burdensome requirement that 
prevents or adequately reduces the risk of injury for which the rule is 
being promulgated. These findings are made in the Appendix to Part 
1513.
    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.
1513.6  Instructions.

[[Page 71908]]

Figures 1-4

Appendix to Part 1513--Findings Under the Federal Hazardous Substances 
Act

    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.

    (a) Scope, basis, and purpose. 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).
    (b) Application and effective date. This part applies to all bunk 
beds, except those manufactured only for institutional use, that are 
manufactured in the United States, or imported, on or after June 19, 
2000. (Facilities intended for use by children under age 6 are not 
considered to be institutions.) 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:
    Bed. See Bunk bed.
    Bed end structure means an upright unit at the head and foot of the 
bed to which the side rails attach.
    Bunk bed means a bed in which the underside of any foundation is 
over 30 inches (760 mm) from the floor.
    Foundation means the base or support on which a mattress rests.
    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, for each bed having 
the underside of its foundation more than 30 inches (760 mm) from the 
floor.
    (2) One guardrail shall be continuous between each of the bed's end 
structures. ``Continuous'' means that any gap between the guardrail and 
end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause 
a finger entrapment hazard for a child).
    (3) 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.
    (4) 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.
    (5) Guardrails shall be attached so that they cannot be removed 
without either intentionally releasing a fastening device or applying 
forces sequentially in different directions.
    (6) 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. This requirement does not prohibit a wall-side guardrail that 
terminates in a quarter-circle bend and attaches to the side rail of 
the upper bunk foundation.
    (7) 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 Figure 1 of this part 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 Figure 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 Figure 1, unless the openings are also large enough to permit the 
free passage of a 9-inch (230-mm) diameter rigid sphere.
    (4) All portions of the boundary of any opening required by 
Secs. 1513.4(c)(1) and (2) to be probed by the wedge block of Figure 1, 
and that permits free passage of a 9-inch diameter sphere, must conform 
to the neck entrapment requirements of Sec. 1513.4(c)(3).


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 Figure 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 Figure 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 Figure 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.
    (3) All portions of the boundary of any opening that is required to 
be probed by the wedge block of Figure 1 by paragraphs (c)(1) and 
(c)(2) of this section, and that permits free passage of a 9-inch 
diameter sphere, must satisfy the requirements of paragraphs (c)(3)(i) 
and (c)(3)(ii) of this section addressing neck entrapment:
    (i) Insert the ``A'' section of the test template shown in Figure 2 
of this part into the portion of the boundary to be tested, with the 
plane of the template in the plane of the opening and with the 
centerline of the top of the template (as shown in Figure 2) aligned 
parallel to the centerline of the opening, until motion is stopped by 
contact between the test template and the boundaries of the opening 
(see Figure 3 of this part). By visual inspection, determine if there 
is simultaneous contact between the boundary of the opening and both 
sides of the ``A'' section of the template. If simultaneous contact 
occurs, mark the contact points on the boundary of the

[[Page 71909]]

opening and conduct the additional test described in paragraph 
(c)(3)(ii) of this section.
    (ii) To check the potential for neck entrapment, place the neck 
portion of the ``B'' section of the template into the opening, with its 
plane perpendicular to both the plane of the opening and the centerline 
of the opening (see Figure 4 of this part). If the neck portion of the 
``B'' section of the template can completely enter the opening (passes 
0.75 inch or more beyond the points previously contacted by the ``A'' 
section of the template), the opening is considered to present a neck 
entrapment hazard and fails the test, unless its lower boundary slopes 
downward at 45'' or more for the whole distance from the narrowest part 
of the opening the neck can reach to the part of the opening that will 
freely pass a 9-inch diameter sphere.


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.
BILLING CODE 6358-01-P
[GRAPHIC] [TIFF OMITTED] TR22DE99.006

BILLING CODE 6355-01-C


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) 
of this part 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.
    (6) If the bunk bed will be placed next to a wall, the guardrail 
that runs the full length of the bed should be placed against the wall 
to prevent entrapment between the bed and the wall. (This applies only 
to bunk beds without two full-length guardrails.)

BILLING CODE 6355-01-P

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BILLING CODE 6355-01-C

[[Page 71914]]

Appendix to Part 1513--Findings Under the Federal Hazardous 
Substances Act

    The Federal Hazardous Substances Act (FHSA) requires that the 
Commission, in order to issue Part 1513, make the following findings 
and include them in the rule. 15 U.S.C. 1261(s), 1262(i). Because of 
this, the facts and determinations in these findings apply as of the 
date the rule was issued, December 22, 1999.
    A. Bunk beds present a mechanical hazard. Section 2(s) of the 
FHSA states that an ``article may be determined to present a 
mechanical hazard if, in normal use or when subjected to reasonably 
foreseeable damage or abuse, its design or manufacture presents an 
unreasonable risk of personal injury or illness * * * (3 from * * * 
surfaces, edges, openings, or closures * * * , or (9) because of any 
other aspect of the articles design or manufacture.'' 15 U.S.C. 
1261(s).
    2. For a recent 9.6-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 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.
    3. This increased safety will be achieved in three main 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. Third, this area must also be constructed so that 
a child cannot insert his or her head into an opening and move to 
another part of the opening where the head cannot be pulled out and 
the neck can become entrapped.
    4. For the reasons discussed in paragraph C of this Appendix, 
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 there is an unreasonable risk of entrapment injury associated 
with bunk beds that do not comply with Part 1513.
    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. 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.
    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. The FHSA does not define 
``substantial compliance.'' The March 3, 1999 Notice of Proposed 
Rulemaking summarized an interpretation of ``substantial 
compliance'' that the Office of General Counsel provided to the 
Commission. 64 FR 10245, 10248-49 (March 3, 1999). The Commission 
specifically invited public comment on that interpretation from 
``all persons who would be affected by such an interpretation.'' Id. 
at 10249. The Commission received more than 20 comments on the 
interpretation.
    ii. Having now considered all the evidence that the staff has 
presented, the comments from the public, and the legal advice from 
the Office of General Counsel, the Commission concludes that there 
is not ``substantial compliance'' with the ASTM voluntary standard 
for bunk beds within the meaning of the Consumer Product Safety Act 
and the Federal Hazardous Substances Act. See, e.g., 15 U.S.C. 
2058(f)(3)(D)(ii); 15 U.S.C. 1262(i)(2)(A)(ii). However, the 
Commission does not adopt a general interpretation of ``substantial 
compliance'' focusing on whether the level of compliance with a 
voluntary standard could be improved under a mandatory standard. 
Rather, the grounds for the Commission's decision focus on the 
specific facts of this rulemaking and are stated below.
    iii. The legislative history regarding the meaning of 
``substantial compliance'' indicates that the Commission should 
consider whether compliance is sufficient to eliminate or adequately 
reduce the risk of injury in a timely fashion and that, generally, 
compliance should be measured in terms of the number of complying 
products, rather than the number of manufacturers who are in 
compliance. E.g., Senate Report No. 97-102, p. 14 (May 15, 1981); 
House Report No. 97-158, p. 11 (June 19, 1981); H. Conf. Rep. No. 
97-208, 97th Cong., 1st Sess. 871, reprinted in 1981 U.S. Code Cong. 
& Admin. News 1010, 1233.
    iv. Given this Congressional guidance, the Commission believes 
it appropriate to examine the number of conforming products as the 
starting point for analysis. However, the Commission does not 
believe that there is any single percentage of conforming products 
that can be used in all cases to define ``substantial compliance.'' 
Instead, the percentage must be viewed in the context of the hazard 
the product presents. Thus, the Commission must examine what 
constitutes substantial compliance with a voluntary standard in 
light of its obligation to safeguard the American consumer.
    v. There are certain factors the agency considers before it 
initiates regulatory action, such as the severity of the potential 
injury, whether there is a vulnerable population at risk, and the 
risk of injury. See 16 CFR 1009.8. These and other factors also 
appropriately inform the Commission's decision regarding whether a 
certain level of conformance with a voluntary standard is 
substantial. In the light of these factors, industry's compliance 
rate with the voluntary standard for bunk beds is not substantial.
    vi. In this case, the Commission deals with the most severe 
risk--death--to one of the most vulnerable segments of our 
population--infants and young children. While the risk of death is 
not high, it exists whenever a young child is in a residence with a 
nonconforming bunk bed.
    vii. Additionally, some products, such as hairdryers without 
shock protection devices, require some intervening action (dropping 
the hair dryer into water) to create the hazard. By contrast, deaths 
in bunk beds occur during the intended use of the product--a child 
rolling over in bed or climbing in or out of it--without any 
intervening action.
    viii. The Commission must also consider that bunk beds have a 
very long product life, frequently being passed on to several 
families before being discarded. Thus, a number of children may be 
exposed to a bed during its useful life. Every noncomplying bed that 
poses an entrapment hazard presents the potential risk of death to 
any young child in the house. It is a risk that is hard for a parent 
to protect against, as children find their way onto these beds even 
if they are not put to sleep in them.
    ix. Bunk beds are products that can be made relatively easily by 
very small companies, or even by a single individual. The Office of 
Compliance believes smaller entities will always present a 
compliance problem, because new manufacturers can enter the 
marketplace relatively easily and need little expertise to make a 
wooden bunk bed. The evidence seems to support the view that there 
will always be an irreducible number of new, smaller bunk bed 
manufacturers who will not follow the voluntary standard.
    x. What constitutes substantial compliance is also a function of 
what point in time the issue is examined. In 1989, the Commission 
denied a petition for a mandatory bunk bed

[[Page 71915]]

rule. At that time, industry was predicting that by April of 1989, 
90% of all beds being manufactured would comply with the voluntary 
guidelines. But that was in the context of years of steadily 
increasing conformance and the hope that conformance would continue 
to grow and that deaths and near-misses would begin to decline. But 
the conformance level never grew beyond the projection for 1989 and 
deaths and near-misses have not dropped.
    xi. Even with the existing compliance rate, the Commission is 
contemplating the prospect of perhaps 50,000 nonconforming beds a 
year (or more) entering the marketplace, with many beds remaining in 
use for perhaps 20 years or longer. Under these circumstances, a 10% 
rate of noncompliance is too high.
    xii. It is now clear that the bunk bed voluntary standard has 
not achieved an adequate reduction of the unreasonable risk of death 
to infants and children in a timely fashion, and it is unlikely to 
do so. Accordingly, the Commission finds that substantial compliance 
with the voluntary standard for bunk beds is unlikely.

    xiii. Products that present some or all of the following factors 
might not be held to as strict a substantial compliance analysis. 
Those which:
--Rarely or never cause death;
--Cause only less severe injuries;
--Do not cause deaths or injuries principally to a vulnerable 
segment of the population;
--Are not intended for children and which have no special attraction 
for children;
--Have a relatively short life span;
--Are made by a few stable manufacturers or which can only be made 
by specialized manufacturers needing a significant manufacturing 
investment to produce the product;
--Are covered by a voluntary standard which continues to capture an 
increasing amount of noncomplying products; or
--Require some additional intervening action to be hazardous.

    xiv. And, in analyzing some other product, there could be other 
factors that would have to be taken into consideration in 
determining what level of compliance is adequate to protect the 
public. The tolerance for nonconformance levels has to bear some 
relationship to the magnitude and manageability of the hazard 
addressed.
    xv. The Commission emphasizes that its decision is not based on 
the argument that a mandatory rule provides more powerful 
enforcement tools. If this were sufficient rationale, mandatory 
rules could always displace voluntary standards, and this clearly 
was not Congress's intent. But, with a mandatory standard, the 
necessity of complying with a mandatory federal regulation will be 
understandable to small manufacturers. State and local governments 
will have no doubt about their ability to help us in our efforts to 
locate these manufacturers.
    C. The benefits expected from the rule bear a reasonable 
relationship to its costs.
    1. Bunk beds that do not comply with ASTM's requirements for 
guardrails. 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. Bunk beds that comply with ASTM's requirements for 
guardrails. 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 (760 mm) 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 and by also including a test for neck 
entrapment in this area. 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 these modifications 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-
side 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 will 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, 
each of which is caused by an unreasonable risk of entrapment. 
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.

    Dated: December 13, 1999.
Sayde E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 99-32676 Filed 12-21-99; 8:45 am]
BILLING CODE 6355-01-P