[Federal Register Volume 70, Number 120 (Thursday, June 23, 2005)]
[Proposed Rules]
[Pages 36357-36359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12387]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1632


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

AGENCY: Consumer Product Safety Commission.

ACTION: Advance notice of proposed rulemaking.

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

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

ADDRESSES: Comments should be sent by e-mail to [email protected]. 
Comments should be captioned ``Mattress ANPR (Cigarette Ignition).'' 
Comments may also be mailed, preferably in five copies, to the Office 
of the Secretary, Consumer Product Safety Commission, Washington, DC 
20207-0001, or delivered to the Office of the Secretary, Consumer 
Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda, 
Maryland; telephone (301) 504-0800. Comments also may be filed by 
facsimile to (301) 504-0127.

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

SUPPLEMENTARY INFORMATION:

A. Background

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

[[Page 36358]]

    The standard sets forth a test to determine the ignition resistance 
of a mattress or mattress pad when exposed to a lighted cigarette. 
Lighted cigarettes are placed at specified locations on the surface of 
a mattress (or mattress pad). The standard establishes pass/fail 
criteria for the tests. The standard also requires manufacturers to 
maintain records demonstrating compliance with the testing 
requirements.
    As originally issued, the standard required manufacturers to 
perform both prototype and production testing. A prototype test is a 
test of a mattress design before it is introduced into commerce. In 
1984, the Commission amended the standard to eliminate the production 
testing requirement and make certain other changes to the standard (49 
FR 39790).
    On January 13, 2005, the Commission issued a notice of proposed 
rulemaking (``NPR'') proposing a new flammability standard for 
mattresses and mattress and foundation sets (``mattress/set''). 70 FR 
2470. The proposed standard requires, with certain exceptions, that 
mattress manufacturers test specimens representative of each mattress/
set prototype before introducing a mattress/set into commerce. The test 
is a full scale test based on research conducted by the National 
Institute of Standards and Technology (``NIST''), in which a mattress 
specimen is exposed to a pair of ``T'' shaped propane burners and 
allowed to burn freely for a period of 30 minutes. Measurements are 
taken, and the mattress/set must meet the specified test criteria for 
the prototype to be acceptable. The proposed standard also contains 
quality assurance and recordkeeping requirements.
    Also on January 13, 2005, the Commission issued an advance notice 
of proposed rulemaking (``ANPR'') initiating a rulemaking proceeding 
for bedclothes. 70 FR 2514. The Commission described ``bedclothes'' 
broadly in the ANPR, noting that the term can include a variety of 
products, such as sheets, blankets, mattress pads, pillows, comforters, 
and similar products that are used as covering on a bed. The Commission 
stated its intention to evaluate particular items that should be 
included in or excluded from a proposed bedclothes standard as it 
proceeds with the rulemaking. Thus, while mattress pads are not 
included in the proposed mattress flammability standard, they could be 
included in the bedclothes rulemaking.
    The Commission has received comments suggesting that, considering 
the Commission's intention to issue a new mattress flammability 
standard, the Commission should revoke the existing mattress standard. 
More specifically, commenters assert that the cigarette ignition test 
will not be necessary once the open flame test is in place and that it 
would be burdensome for industry to conduct the testing required by 
both standards. In light of these comments, the Commission is issuing 
this ANPR to begin consideration of whether the existing mattress 
standard should be revoked or amended.

B. The Product

    The mattress standard at 16 CFR part 1632 defines ``mattress'' as 
``a ticking filled with a resilient material used alone or in 
combination with other products intended or promoted for sleeping 
upon.'' 16 CFR 1632.1(a). The definition further describes items that 
are included in and excluded from the term ``mattress.''
    According to the International Sleep Products Association 
(``ISPA''), the top four producers of mattresses and foundations 
account for almost 60 percent of total U.S. production. In 2001, there 
were 639 establishments producing mattresses in the United States. ISPA 
estimated that the total number of U.S. conventional mattress shipments 
was 21.5 million in 2002, and is estimated to be 22.1 million in 2003 
and 22.8 million in 2004. These estimates do not include futons, crib 
mattresses, juvenile mattresses, sleep sofa inserts, or hybrid water 
mattresses. These ``non-conventional'' sleep surfaces are estimated to 
comprise about 10 percent of total annual shipments of all sleep 
products. The value of mattress and foundation shipments in 2002, 
according to ISPA, was $3.26 and $1.51 billion respectively.
    The standard defines ``mattress pad'' as ``a thin, flat mat or 
cushion and/or ticking filled with resilient material for use on top of 
a mattress.'' 16 CFR 1632.1(b). Foam mattress pads may be made with a 
flat surface, an ``egg crate'' design, or with ``memory foam'' that 
contours to the body. Industry sources estimate that perhaps 4 to 5 
million egg crate pads are sold annually. Memory pads, which retail for 
$100 or more, sell about 3 million units annually.

C. Statutory Provisions

    Section 4 of the FFA authorizes the Commission to initiate 
proceedings for a flammability standard when it finds that such a 
standard is ``needed to protect the public against unreasonable risk of 
the occurrence of fire leading to death or personal injury, or 
significant property damage.'' 15 U.S.C. 1193(a). That section also 
sets forth the process by which the Commission can issue or amend a 
flammability standard. The Commission first must issue an advance 
notice of proposed rulemaking (``ANPR'') which: (1) Identifies the 
fabric or product and the nature of the risk associated with the fabric 
or product; (2) summarizes the regulatory alternatives under 
consideration; (3) provides information about existing relevant 
standards and reasons why the Commission does not preliminarily believe 
that these standards are adequate; (4) invites interested persons to 
submit comments concerning the identified risk of injury, regulatory 
alternatives being considered, and other possible alternatives; (5) 
invites submission of an existing standard or portion of a standard as 
a proposed regulation; and (6) invites submission of a statement of 
intention to modify or develop a voluntary standard to address the risk 
of injury. 15 U.S.C. 1193(g).
    If, after reviewing comments and submissions responding to the 
ANPR, the Commission determines to continue the rulemaking proceeding, 
it will issue a notice of proposed rulemaking. This notice must contain 
the text of the proposed rule along with alternatives the Commission 
has considered and a preliminary regulatory analysis. 15 U.S.C. 
1193(i). Before issuing a final rule, the Commission must prepare a 
final regulatory analysis, and it must make certain findings concerning 
any relevant voluntary standard, the relationship of costs and benefits 
of the rule, and the burden imposed by the regulation. Id. 1193(j). The 
Commission also must provide an opportunity for interested persons to 
make an oral presentation before the Commission issues a final rule. 
Id. 1193(d).
    The FFA does not explicitly address requirements or findings for 
revoking a flammability standard or amending a standard to eliminate 
requirements. To issue a standard the Commission must find that the 
standard is needed to protect the public against an unreasonable risk 
of death, personal injury or significant property damage due to the 
occurrence of fire. Id. 1193(a). Thus, it appears reasonable for the 
Commission, when revoking an FFA standard or eliminating certain 
requirements, to make findings that the standard (or particular 
requirement) is not necessary to protect against an unreasonable risk 
of death or injury. In other words, elimination of the standard (or 
certain requirements) would not result in an unreasonable risk.

D. Risk of Injury

    As reported in the recent mattress NPR (70 FR 2472), the most 
recent national fire loss estimates indicated that mattresses and 
bedding were the

[[Page 36359]]

first items to ignite in 19,400 residential fires attended by the fire 
service annually during 1995-1999 (based on data from the U.S. Fire 
Administration's National Fire Incident Reporting System data and the 
National Fire Protection Association's annual survey). These fires 
resulted in 440 deaths, 2,230 injuries and $273.9 million in property 
loss each year. Open flame ignition sources accounted for 35 percent of 
these fires and smoking material sources accounted for 30 percent of 
the fires. The remaining fires included a variety of ignition sources 
including heat sources too close to the bed.
    The cigarette ignition test has been in effect since June of 1973. 
Thus, the incident data discussed above reflect the circumstances 
prevailing when a standard emphasizing cigarette ignition of mattresses 
has been in place. This is not necessarily an accurate indication of 
the risk of injury that would be present if there were no cigarette 
ignition test in the mattress standard.
    The essential question for the Commission in considering whether to 
proceed with rulemaking to revoke the standard (or amend it by 
eliminating some requirements) is what effect such revocation or 
modification would have on the risk of death or injury from fire due to 
cigarette ignition of mattresses. The recently proposed mattress 
flammability standard with its open flame test would likely address 
some of the risk of death and injury that is currently prevented by the 
existing mattress standard with its cigarette ignition test. The 
question is how much of the risk from cigarette ignition would remain 
or recur once an open flame test standard is in effect if there were no 
cigarette ignition test standard.

E. Regulatory Alternatives

    The Commission is issuing this ANPR as it considers alternatives 
for the current part 1632 standard. One possible result could be (after 
notice of proposed rulemaking) a final rule revoking the existing 
mattress standard in whole or in part (for example, leaving in place 
the portion of the standard applicable to mattress pads). Another 
possible result (also after notice of proposed rulemaking) could be a 
final rule amending the existing mattress standard to eliminate or 
modify some requirements. A third alternative would be to maintain the 
standard as it is.
    With the issuance of this ANPR, the Commission staff begins to 
evaluate the continued need for the part 1632 standard and to assess 
the possibility of modifying the standard to eliminate unnecessary and 
burdensome requirements in light of the proposed open flame test 
mattress standard. The Commission asks for the public's input on issues 
relevant to this evaluation.

F. Invitation To Comment

    In accordance with section 4(g) of the FFA, the Commission invites 
comments on this notice. Specifically, the Commission invites the 
following types of comments.
    1. Comments concerning the risk of injury identified in this 
notice, the regulatory alternatives discussed above, and other 
alternatives to address the risk of injury;
    2. The submission of an existing standard or portion of a standard 
as a proposed rule;
    3. The submission of a statement of intention to modify or develop 
a voluntary standard to address the risk of injury identified in the 
notice along with a description of a plan to modify or develop the 
standard.
    In addition, the Commission is interested in obtaining further 
information about the following issues:
    1. The likelihood that a mattress conforming to the open flame test 
standard proposed at 70 FR 2470 would without further treatment or 
modification automatically conform to the existing requirements of 16 
CFR part 1632, and the technical basis for such assertion.
    2. Methods that could be used to identify smolder-prone materials/
constructions.
    3. Measurements of room conditions that could be produced by 
smoldering ignition of materials used in mattresses conforming to the 
proposed open flame test standard (e.g., a very heavy cellulosic 
ticking or layer of ``untreated'' cotton batting).
    4. The necessity of retaining cigarette ignition resistance 
requirements for mattress pads (since there is no open flame test 
standard proposed for them) and the technical basis for such assertion.
    5. Any information on the material and record-keeping costs that 
firms (especially small firms) incur in meeting the cigarette test 
standard.

    Dated: June 17, 2005.
Todd Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 05-12387 Filed 6-22-05; 8:45 am]
BILLING CODE 6355-01-P