[Federal Register Volume 71, Number 50 (Wednesday, March 15, 2006)]
[Rules and Regulations]
[Pages 13472-13523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2206]



[[Page 13471]]

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Part II





Consumer Product Safety Commission





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16 CFR Part 1633



Standard for the Flammability (Open Flame) of Mattress Sets; Final Rule

  Federal Register / Vol. 71, No. 50 / Wednesday, March 15, 2006 / 
Rules and Regulations  

[[Page 13472]]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1633


Final Rule: Standard for the Flammability (Open Flame) of 
Mattress Sets

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Commission (``Commission'') is 
issuing a flammability standard under the authority of the Flammable 
Fabrics Act. This new standard establishes performance requirements 
based on research conducted by the National Institute of Standards and 
Technology (``NIST''). Mattresses and mattress and foundation sets 
(``mattress sets'') that comply with the requirements will generate a 
smaller size fire with a slower growth rate, thus reducing the 
possibility of flashover occurring. These improved mattresses should 
result in significant reductions in deaths and injuries associated with 
the risk of mattress fires. The Commission estimates that the standard 
could limit the size of mattress fires to the extent that 240 to 270 
deaths and 1,150 to 1,330 injuries could potentially be eliminated 
annually. As discussed in the preamble, this means that the standard 
could yield lifetime net benefits of $23 to $50 per mattress or 
aggregate lifetime net benefits for all mattresses produced in the 
first year of the standard of $514 million to $1,132 million.

DATES: The rule will become effective on July 1, 2007 and applies to 
mattress sets manufactured, imported, or renovated on or after that 
date.

FOR FURTHER INFORMATION CONTACT: Jason Hartman, Office of Compliance, 
U.S. Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, Maryland 20814; telephone (301) 504-7591; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    The Commission is issuing this flammability standard to reduce 
deaths and injuries related to mattress fires, particularly those 
initially ignited by open flame sources such as lighters, candles and 
matches.\1\ Although the Commission has a flammability standard 
directed toward cigarette ignition of mattresses, 16 CFR Part 1632, a 
significant number of mattress fires are ignited by open flame sources 
and are not directly addressed by that standard.
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    \1\ Chairman Hal Stratton and Commissioner Nancy Nord issued a 
joint statement, and Commissioner Thomas H. Moore issued a separate 
statement. These are available from the Commission's Office of the 
Secretary (Office of the Secretary, Consumer Product Safety 
Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland 
20814; telephone 301-504-7293; or e-mail: [email protected]) or from 
the Commission's Web site, www.cpsc.gov.
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    On October 11, 2001, the Commission issued an advance notice of 
proposed rulemaking (``ANPR'') concerning the open flame ignition of 
mattresses/bedding. 66 FR 51886. CPSC, industry, and the California 
Bureau of Home Furnishings and Thermal Insulation (``CBHF'') worked 
with National Institute of Standards and Technology (``NIST''), which 
conducted research to develop a test method that could be included in a 
standard to address open flame ignition of mattresses. On January 13, 
2005, the Commission issued a notice of proposed rulemaking (``NPR'') 
proposing a flammability standard based on the NIST research. 70 FR 
2470. Comments received in response to the NPR are discussed in section 
H of this notice.
    The characteristics of mattress/bedding fires and research 
conducted to develop the standard are discussed in detail in the NPR, 
70 FR 2470, and in the staff's technical memoranda supporting this 
rulemaking. Because a mattress contains a substantial amount of 
flammable materials, if it (one that does not meet the standard) 
ignites in a bedroom fire the mattress will burn rapidly, and will 
quickly reach dangerous flashover conditions within a few minutes. 
Flashover is the point at which the entire contents of a room are 
ignited simultaneously by radiant heat, making conditions in the room 
untenable and safe exit from the room impossible. At flashover, room 
temperatures typically exceed 600-800[deg] C (approximately 1100-
1470[deg] F). About two-thirds of all mattress fatalities are 
attributed to mattress fires that lead to flashover. This accounts for 
nearly all of the fatalities that occur outside the room where the fire 
originated and about half of the fatalities that occur within the room 
of origin.
    The size of a fire can be measured by its rate of heat release. A 
heat release rate of approximately 1,000 kilowatts (``kW'') leads to 
flashover in a typical room. Tests of twin size mattresses of 
traditional constructions (complying with the existing mattress 
cigarette ignition standard in 16 CFR 1632) without bedclothes have 
measured peak heat release rates that exceeded 2,000 kW in less than 5 
minutes. In tests of traditional king size mattresses, peak rates of 
heat release were nearly double that. [2] \2\
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    \2\ Numbers in brackets refer to documents listed at the end of 
this notice. They are available from the Commission's Office of the 
Secretary, (Office of the Secretary, Consumer Product Safety 
Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland 
20814; telephone 301-504-7293; or e-mail: [email protected]) or from 
the Commission's Web site (http://www.cpsc.gov/library/foia/foia.html).
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    The goal of the standard is to minimize or delay flashover when a 
mattress is ignited in a typical bedroom fire. With certain exceptions 
explained below, the standard requires manufacturers to test specimens 
of each of their mattress prototypes (designs) before mattresses based 
on that prototype may be introduced into commerce. The standard 
prescribes a full-scale test using a pair of T-shaped gas burners 
designed to represent burning bedclothes. The mattress set must not 
exceed a peak heat release rate of 200 kW at any time during a 30 
minute test, and the total heat release for the first 10 minutes of the 
test must not exceed 15 megajoules (``MJ''). Mattresses that meet the 
standard's criteria will make only a limited contribution to a fire, 
especially in the early stages of the fire. This will allow occupants 
more time to discover the fire and escape. [1&2]
    The State of California's Bureau of Home Furnishings and Thermal 
Insulation issued an open flame fire standard for mattresses and 
mattress/box spring sets and futons, TB 603, which went into effect 
January 1, 2005. Both the Commission's standard and TB 603 are based on 
the research conducted at NIST, and they use the same basic test 
method. Both TB 603 and the Commission's standard require that 
mattresses not exceed a 200 kW peak heat release rate during the 30 
minute test. However, the standards differ in the limit they set on 
total energy release in the first ten minutes of the test (the 
Commission's standard sets a stricter limit of 15 MJ, while TB 603 sets 
the limit at 25 MJ).
    NIST has conducted extensive research on mattress/bedding fires for 
the Sleep Products Safety Council (``SPSC'') and the Commission. The 
NPR summarized the research that was conducted to develop the test 
method and other research conducted prior to publication of the NPR. 70 
FR 2470. Subsequently, CPSC contracted with NIST to conduct additional 
test work to explore technical issues raised in the comments that the 
Commission received on the NPR and to provide additional technical 
support for finalizing the

[[Page 13473]]

standard. This work included a series of tests to evaluate the heat 
flux of different burner hole sizes, effects of temperature and 
relative humidity conditions, flammability behavior of one-sided 
mattresses, and flammability performance (durability) of selected flame 
retardant barriers. This research is discussed in the CPSC Engineering 
Sciences Directorate's memorandum, ``Technical Rationale for the 
Standard for the Flammability (Open-Flame) of Mattress Sets and 
Engineering Responses to Applicable Public Comments,'' and the staff's 
briefing memorandum. [2&1]

B. Statutory Authority

    This proceeding is conducted pursuant to Section 4 of the Flammable 
Fabrics Act (``FFA''), which 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 
occurrence of fire leading to death or personal injury, or significant 
property damage.'' 15 U.S.C. 1193(a).
    Section 4 also sets forth the process by which the Commission may 
issue a flammability standard. As required in section 4(g), the 
Commission issued an ANPR. 66 FR 51886. 15 U.S.C. 1193(g). The 
Commission reviewed the comments submitted in response to the ANPR and 
issued a notice of proposed rulemaking (``NPR'') containing the text of 
the proposed rule along with alternatives the Commission has considered 
and a preliminary regulatory analysis. 70 FR 2470. 15 U.S.C. 1193(i). 
The Commission considered comments provided in response to the NPR and 
is issuing this final rule along with a final regulatory analysis. 15 
U.S.C. 1193(j). The Commission cannot issue a final rule unless it 
makes certain findings and includes these in the regulation. The 
Commission must find: (1) If an applicable voluntary standard has been 
adopted and implemented, that compliance with the voluntary standard is 
not likely to adequately reduce the risk of injury, or compliance with 
the voluntary standard is not likely to be substantial; (2) that 
benefits expected from the regulation bear a reasonable relationship to 
its costs; and (3) that the regulation imposes the least burdensome 
alternative that would adequately reduce the risk of injury. 15 U.S.C. 
1193(j)(2). In addition, the Commission must find that the standard (1) 
is needed to adequately protect the public against the risk of the 
occurrence of fire leading to death, injury or significant property 
damage, (2) is reasonable, technologically practicable, and 
appropriate, (3) is limited to fabrics, related materials or products 
which present unreasonable risks, and (4) is stated in objective terms. 
15 U.S.C. 1193(b). The Commission makes these findings in section 
1633.8 of the rule.

C. The Product

    The standard applies to mattresses and mattress and foundation sets 
(``mattress sets''). ``Mattress'' is defined as a resilient material, 
used alone or in combination with other materials, enclosed in a 
ticking and intended or promoted for sleeping upon. For further details 
on how the term is defined in the standard see section E.3. of this 
preamble.
    Throughout the standard the Commission uses the term ``mattress 
set'' to mean a mattress alone if the mattress is manufactured for sale 
without a foundation, or a mattress and a foundation together, if the 
mattress is manufactured for sale with a foundation. Under the 
standard, a mattress manufactured for sale with a foundation must be 
tested with its foundation and a mattress manufactured for sale alone 
must be tested alone.
    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 2003, there 
were 571 establishments producing mattresses in the U.S. [7]
    Mattresses and foundations are typically sold as sets. However, 
more mattresses are sold annually than foundations; some mattresses are 
sold as replacements for existing mattresses (without a new foundation) 
or are for use in platform beds or other beds that do not require a 
foundation. ISPA estimated that the total number of U.S. conventional 
mattress shipments was 22.5 million in 2004, and would be 23.0 million 
in 2005. 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 conventional mattress and foundation shipments in 2004, 
according to ISPA, was $4.10 and $1.69 billion respectively, compared 
to $3.28 and $1.51 billion respectively in 2002. [7]
    The expected useful life of mattresses can vary substantially, with 
more expensive models generally experiencing the longest useful lives. 
Industry sources recommend replacement of mattresses after 10 to 12 
years of use, but do not specifically estimate the average life 
expectancy. In the 2001 mattress ANPR, the Commission estimated the 
expected useful life of a mattress at about 14 years. To estimate the 
number of mattresses in use for analysis of the proposed rule, the 
Commission used both a 10 year and 14 year average product life. Using 
CPSC's Product Population Model, the Commission estimates the number of 
mattresses (conventional and non-conventional) in use in 2005 to be 237 
million using a ten-year average product life, and 303.9 million using 
a fourteen-year average product life. [7]
    According to industry sources, queen size mattresses are the most 
commonly used. In 2004, queen size mattresses were used by 34.9 percent 
of U.S. consumers. Twin and twin XL were used by 29.3 percent of U.S. 
consumers, followed by full and full XL (19.9 percent), king and 
California king (11.5 percent), and all other sizes (4.4 percent). The 
average manufacturing price in 2004 was $182 for a mattress and $90 for 
a foundation. Thus, the average manufacturing price of a mattress and 
foundation set was about $272 in 2004. Although there are no readily 
available data on average retail prices for mattress/foundation sets by 
size, ISPA reports that sets selling under $500 represented 34.6 
percent of the market in 2004 compared to 40.7 percent in 2002. Sets 
selling for between $500 and $1000 represented 41.1 percent of the 
market in 2004, compared to 39.2 percent in 2002. [7]
    The top four manufacturers of mattresses and foundations operate 
about one-half of the 571 U.S. establishments producing these products. 
The remainder of the establishments are operated by smaller firms. 
According to the Statistics of U.S. Businesses Census Bureau data, all 
but twelve mattress firms had fewer than 500 employees in 2002. If one 
considers a firm with fewer than 500 employees to be a small business, 
then 97.7 percent ((522-12)/522) of all mattress firms are small 
businesses. [7] The potential impact of the standard on these small 
businesses is discussed in section K of this document.

D. Risk of Injury

    Annual estimates of national fires and fire losses involving 
ignition of a mattress or bedding are based on data from the U.S. Fire 
Administration's National Fire Incident Reporting System (``NFIRS'') 
and the National Fire Protection Administration's (``NFPA'') annual 
survey of fire departments. The most recent national fire loss 
estimates indicated that mattresses and bedding were the first items to 
ignite in 15,300 residential fires attended by the fire

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service annually during 1999-2002. These fires resulted in 350 deaths, 
1,750 injuries and $295.0 million in property loss annually. Of these, 
the staff considers an estimated 14,300 fires, 330 deaths, 1,680 
injuries, and $281.5 million property loss annually to be addressable 
by the standard. Addressable means the incidents were of a type that 
would be affected by the standard solely based on the characteristics 
of the fire cause (i.e., a fire that ignited a mattress or that ignited 
bedclothes which in turn ignited the mattress). For example, an 
incident that involved burning bedclothes but occurred in a laundry 
room would not be considered addressable. [3]
    Among the addressable casualties, open flame fires accounted for 
about 110 deaths (33 percent) and 890 injuries (53 percent) annually. 
Smoking fires accounted for 180 deaths (55 percent) and about 520 
injuries (31 percent) annually. Children younger than age 15 accounted 
for an estimated 90 addressable deaths (27 percent) and 340 addressable 
injuries (20 percent) annually. Adults age 65 and older accounted for 
an estimated 80 addressable deaths (24 percent) and 180 addressable 
injuries (11 percent) annually. [3]

E. Description of the Final Standard

1. General

    The standard sets forth performance requirements that all mattress 
sets must meet before being introduced into commerce. The test method 
is a full scale test based on the NIST research discussed above and in 
the NPR. The mattress specimen (a mattress alone or mattress and 
foundation set, usually in a twin size) is exposed to a pair of T-
shaped propane burners and allowed to burn freely for a period of 30 
minutes. The burners were designed to represent burning bedclothes. 
Measurements are taken of the heat release rate from the specimen and 
energy generated from the fire. The standard establishes two test 
criteria, both of which the mattress set must meet in order to comply 
with the standard: (1) The peak rate of heat release for the mattress 
set must not exceed 200 kW at any time during the 30 minute test; and 
(2) The total heat release must not exceed 15 MJ for the first 10 
minutes of the test.

2. Imported Mattresses

    Imported mattresses must meet the same requirements as domestically 
produced mattresses. This means that mattress sets produced outside the 
United States must be tested in accordance with the procedures 
described in Sec.  1633.7 and must meet the criteria specified in Sec.  
1633.3(b), as well as the quality assurance and recordkeeping 
requirements in Sec. Sec.  1633.6 and 1633.11 before they may be 
introduced into commerce in the United States.
    As discussed below, the term ``manufacturer'' refers to the 
establishment where a mattress is produced or assembled, and it is the 
plant or factory producing or assembling the mattress set that is 
responsible for prototype testing. The importer must have records 
demonstrating compliance with the standard on an establishment specific 
basis. To ensure that foreign-made mattress sets comply with the 
standard, the final rule requires that the records specified in Sec.  
1633.11 must be in English and must be kept at a location in the United 
States.

3. Scope and Definitions (Sec. Sec.  1633.1 and 1633.2)

    The standard applies to ``mattress sets,'' defined as either (1) a 
mattress and foundation labeled by the manufacturer for sale as a set, 
or (2) a mattress that is labeled for sale alone. This definition was 
not in the proposed rule, but was added to simplify the sometimes 
cumbersome references to mattress and foundation sets. As discussed 
below, the Commission has added a requirement for manufacturers to 
label mattresses and foundations to indicate if they are to be sold 
with a corresponding mattress or foundation or if they are to be sold 
alone.
    ``Mattress'' is defined substantially as it was in the proposed 
rule and as it is in the existing mattress standard at 16 CFR 1632, as 
``a resilient material or combination of materials enclosed by a 
ticking (used alone or in combination with other products) intended or 
promoted for sleeping upon.'' The standard lists several types of 
mattresses that are included in this definition (e.g., futons, crib 
mattresses, youth mattresses). It also refers to a glossary of terms 
where these items are further defined.
    Specifically excluded from the definition of mattress are mattress 
pads, pillows and other items used on top of a mattress, upholstered 
furniture which does not contain a mattress, and juvenile or other 
product pads. Mattress pads and other top of the bed items may be 
addressed in the Commission's pending rulemaking on bedclothes, in 
which an ANPR was issued on January 13, 2005. 70 FR 2514.
    Like the Commission's existing mattress cigarette ignition 
standard, the open flame standard issued today allows an exemption for 
one-of-a-kind mattress sets if they are manufactured to fulfill a 
physician's written prescription or manufactured in accordance with 
comparable medical therapeutic specifications.
    The Commission has added a clarification that the term ``mattress'' 
includes mattresses that have undergone renovation, and it has added a 
definition of ``renovation.'' The NPR had included a policy 
clarification stating that mattresses renovated for resale would be 
covered by the standard. The definition of ``renovation'' comes from 
that policy clarification. Including mattresses renovated for resale in 
the mattress definition makes the Commission's intent to include them 
in the standard clearer.
    For clarification the Commission has added or modified some other 
definitions. The term ``subordinate prototype'' was added to refer to a 
prototype that is not required to be tested. A definition of 
``confirmed prototype'' was added to describe a prototype that is based 
on a qualified prototype in a pooling arrangement. The term ``edge 
seam'' was redefined as ``edge'' to accommodate mattress or foundation 
constructions that do not have a seam, as in a continental border. A 
definition for ``prototype developer'' was added to describe a third 
party that designs mattress prototypes for use by a manufacturer, but 
does not produce mattress sets for sale. The prototype developer does 
not necessarily conduct tests to qualify the mattress prototype. A 
barrier supplier, for example, could be a prototype developer. The term 
``prototype pooling'' was clarified to explain the responsibilities of 
the involved parties.

4. General Requirements of the Standard (Sec.  1633.3)

    The test method in the standard is essentially unchanged from the 
method described in the NPR. It uses the full scale test method 
developed by NIST. As explained in the NPR, the complexities of 
mattress construction make a full scale test necessary to evaluate the 
fire performance of a mattress.
    The specimen (a mattress and foundation or mattress alone) is 
exposed to a pair of T-shaped gas burners. The specimen is to be no 
smaller than twin size, unless the largest size mattress or set 
produced of that type is smaller than twin size, in which case the 
largest size must be tested.
    The burners impose a specified local heat flux simultaneously to 
the top and side of the mattress set for a specified period of time (70 
seconds for the top burner and 50 seconds for the side

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burner). The burners were designed to represent the local heat flux 
imposed on a mattress by burning bedclothes based on research conducted 
by NIST. Details of the test method are discussed in section E.9. 
below.

5. Test Criteria (Sec.  1633.3)

    The standard establishes two test criteria that the specimen must 
meet to pass the test. These criteria are the same as those proposed in 
the NPR. The peak rate of heat release must not exceed 200 kW at any 
time during the 30 minute test, and the total heat release must not 
exceed 15 MJ during the first 10 minutes of the test.
    Limiting the peak rate of heat release to 200 kW (during the 30 
minute test) ensures a less flammable design. It represents a 
significant improvement in performance compared to traditional mattress 
designs. The peak rate of heat release limit accounts for the 
contribution of bedclothes and other room contents to the fire hazard, 
ensures that the mattress does not cause flashover on its own, is 
technically feasible, and considers many factors related to the fire 
scenario (such as room effects). [2]
    The test duration of 30 minutes is related to, but not equivalent 
to, the estimated time required to permit discovery of the fire and 
allow escape under typical fire scenarios. A 30 minute test is based on 
an analysis of the hazard and the technological feasibility of 
producing complying mattresses. It is intended to provide a substantial 
increase in time for an occupant to discover and escape the fire. The 
number of failures, test variability, performance unreliability, and 
associated costs increase significantly with longer test periods. 
Usually, staying at or below the 200kW limit for a 30 minute test is 
estimated to provide an adequate time for fire discovery and escape by 
occupants in the bed or otherwise in the room of fire origin. [2]
    The effectiveness of the standard depends on the need for early 
discovery and escape from the fire without delay. Limiting the early 
contribution of the mattress will have the greatest impact on reducing 
the risk as the mattress will have little involvement in the fire for 
the specified period of time. The early limit of 15 MJ for the first 10 
minutes of the test partially compensates for burning bedclothes and 
ticking by preventing early involvement of the mattress as the 
bedclothes burn and compensates for other items that might be involved 
early in a fire. [2]
    California's TB 603 prescribes a 25 MJ limit in the first 10 
minutes of the test. However, NIST research and fire modeling indicate 
that a fire that reaches a size of 25 MJ within 10 minutes could limit 
a person's ability to escape the room. According to several producers, 
mattress sets that use available barrier technology release total heat 
that is far below the 25 MJ limit of TB 603. [7]

6. Prototype Testing (Sec.  1633.4)

    The standard requires, with certain exceptions, that mattress 
manufacturers have three specimens of each prototype tested before 
introducing a mattress set into commerce. A prototype is a specific 
design of a mattress set that serves as a model for the production 
units that will be introduced into commerce. Mattress sets then 
produced based on the prototype mattress set must be the same as the 
prototype with respect to materials, components, design, and methods of 
assembly. The definition of ``manufacturer'' refers to the 
establishment where the mattress is produced or assembled, not the 
company. Thus, the plant or factory producing or assembling the 
mattress set is responsible for prototype testing.
    However, there are three exceptions to the requirement for 
prototype testing. A manufacturer is allowed to sell a mattress set 
based on a prototype that has not been tested if the prototype differs 
from a qualified prototype (one that has been tested and meets the 
criteria) only with respect to: (1) The mattress/foundation length and 
width, not depth (e.g., twin, queen, king, etc.); (2) the ticking, 
unless the ticking of the qualified prototype has characteristics that 
are designed to improve the mattress set's test performance; and/or (3) 
any component, material or method of assembly, provided that the 
manufacturer can show, on an objectively reasonable basis, that such 
difference(s) will not cause the mattress set to exceed the specified 
test criteria. The third exception allows the manufacturer to change 
the depth of the mattress if he can make the required showing 
concerning the test criteria. If a manufacturer chooses to make use of 
the third exception, he/she can minimize testing, but must maintain 
records documenting that the change(s) will not cause the prototype to 
exceed the test criteria (see Sec.  1633.11(b)(4) of the rule).
    When conducting prototype qualification testing, the manufacturer 
must test a minimum of three specimens of the prototype in accordance 
with the test method described, and all of the mattress sets must meet 
both of the test criteria discussed above. If any one prototype 
specimen that the manufacturer tests fails the specified criteria, the 
prototype is not qualified (even if the manufacturer chooses to test 
more than three specimens).
    As explained in the NPR preamble, the Commission believes that 
three specimens is the appropriate minimum number for testing at this 
time (as this is the number typically used and the inter-laboratory 
study indicates that three replicates are appropriate to adequately 
characterize mattress performance).
    As was proposed, the standard allows a manufacturer to produce a 
mattress set in reliance on testing that was conducted before the 
effective date of the standard. The final rule explains the parameters 
for relying on such tests. The manufacturer must have documentation 
demonstrating that the tests were conducted according to the required 
test method and the specified criteria were met. Tests conducted 30 
days or more after this standard is published in the Federal Register 
must comply with the recordkeeping requirements of Sec.  1633.11. The 
manufacturer must also comply with applicable recordkeeping 
requirements in order to use the prototype pooling and subordinate 
prototype provisions.

7. Pooling (Sec.  1633.5)

    This section is substantively the same as proposed, but some of the 
language has been revised for clarification. The standard allows one or 
more manufacturers to rely on a given prototype that has been developed 
by a manufacturer or a prototype developer (e.g., a component 
manufacturer). Under this approach, one manufacturer or prototype 
developer would conduct (or cause to be conducted) the full prototype 
testing required (testing three prototype specimens), obtaining passing 
results, and the other manufacturer(s) may then produce mattress sets 
represented by that qualified prototype so long as they conduct one 
successful confirmation test on a specimen they produce. If the 
mattress set fails the confirmation test, the manufacturer must take 
corrective measures, and then perform a new confirmation test that must 
meet the test criteria. If a confirmation test specimen fails to meet 
the test criteria, the manufacturer of that specimen must also notify 
the manufacturer that developed the prototype about the test failure.
    Pooling may be used by two or more plants within the same firm or 
by two or more independent firms. The final rule also recognizes that 
pooling can occur between a manufacturer and a prototype developer. 
This could be a company that manufactures mattress

[[Page 13476]]

components and conducts testing for the manufacturer. As discussed in 
the regulatory flexibility analysis, pooling should reduce testing 
costs for smaller companies. Once they have conducted a successful 
confirmation test, pooling firms can produce mattresses based on a 
pooled prototype and may continue to do so as long as any changes to 
the mattress set based on the pooled prototype are limited to the three 
discussed above: (1) Width or length of the mattress set; (2) the 
ticking, unless the qualified ticking has characteristics that are 
designed to improve the mattress's test performance; and/or (3) any 
component, material or method of assembly that the manufacturer can 
show (on an objectively reasonable basis) will not cause the prototype 
to exceed the specified test criteria.

8. Quality Assurance Requirements (Sec.  1633.6)

    The standard contains the same strict requirements for quality 
assurance as the proposal did. This is necessary because research and 
testing indicate that small variations in construction (e.g., missed 
stitching around the side of the mattress) can affect the fire 
performance of a mattress. Testing conducted at NIST after the NPR was 
published reinforced the importance of quality assurance. The language 
in this section has been changed somewhat to better indicate the 
Commission's intent that production mattresses should be the same as 
the prototypes on which they are based.
    Each manufacturer must implement a quality assurance program to 
ensure that the mattress sets it produces are the same as the 
qualified, subordinate or confirmed prototype on which they are based 
with respect to materials, components, design and methods of assembly. 
This means that at a minimum, manufacturers must: (1) Have controls in 
place on components, materials and methods of assembly to ensure that 
they are the same as those used in the prototype; (2) designate a 
production lot that is represented by the prototype; and (3) inspect 
mattress sets produced for sale.
    The standard does not require manufacturers to conduct testing of 
production mattresses. However, the Commission recognizes the value of 
such testing as part of a quality assurance program. Therefore, the 
Commission encourages manufacturers to conduct random testing of 
mattress sets that are produced for sale.
    If a manufacturer obtains any test results or any other evidence 
indicating that a mattress set does not meet the specified criteria (or 
that a component, material or assembly process could negatively affect 
the test performance of the mattress set), the manufacturer must cease 
production and distribution in commerce of the affected mattress sets 
until corrective action is taken.

9. Test Procedure (Sec.  1633.7)

    The test procedure in the standard is based on the test protocol 
developed by NIST. The procedure in the final standard is essentially 
the same as what was proposed with some minor changes and a few 
substantive modifications described below.
    Requirements for sample conditioning have been tightened to require 
a conditioning temperature greater than 18[deg] C (65[deg] F) and less 
than 25[deg] C (77[deg] F) and a relative humidity less than 55 
percent. Requirements for the test area conditions have been added, 
stating that the area must be maintained at a temperature greater than 
15[deg] C (59[deg] F) and less than 27[deg] C (80.6[deg] F) and at a 
relative humidity less than 75 percent. Initiation of flammability 
testing is required to begin within 20 minutes after removal of the 
mattress sample from environmentally controlled storage conditions.
    Specifications for the bed frame supporting the test specimen have 
been clarified to address dimensions for specimens other than twin-
size, frame height to accommodate the side burner in tests of thin 
mattresses without foundations, and support for more flexible mattress 
products.
    The specification for the gas burner hole size has been changed. In 
2000, NIST developed a pair of propane gas burners to consistently 
simulate the typical heat impact imposed on a mattress by burning 
bedding items. These burners were incorporated as the ignition source 
in the full-scale fire test for mattresses. Subsequently, a commercial 
supplier manufactured a commercial version of the NIST burner apparatus 
that was used by various test laboratories to conduct full-scale 
mattress testing in accordance with TB 603 and CPSC's proposed 
standard. Inadvertently, the commercial version incorporated larger 
diameter holes in both of the burner heads (1.50 mm vs. 1.17 mm). The 
proposed standard specified the original NIST burner holes. After this 
difference was discovered, NIST conducted studies to determine the 
effects of the larger diameter burner holes on peak burner heat flux. 
The results of the comparison show that the burners with the larger 
holes do a better job of meeting the target peak flux levels of 
bedclothes than do the original burners with the smaller holes, 
supporting continued use of the commercial version of the burner 
apparatus rather than the NIST original. The final standard has been 
revised to provide for the burner holes used in the commercial 
versions. [1&2]
    A provision has been added to the standard at Sec.  1633.7(k) that 
allows the use of alternate test apparatus with the approval of the 
Office of Compliance.
    Other minor changes in the test procedure, equipment and set up 
include clarifications of gas specifications, draft control, and burner 
orientation. These are discussed in the Engineering Sciences and 
Laboratory memoranda. [1,4&5]

10. Recordkeeping (Sec.  1633.11)

    The Commission made several changes to the recordkeeping 
requirements. The standard now requires that records must be kept in 
English at a location in the United States and requires the complete 
physical addresses of suppliers, manufacturing facilities (foreign and 
domestic), and test laboratories in records. The standard no longer 
requires the manufacturer to maintain a physical sample of the 
materials and components of a prototype. The required records should be 
sufficient to determine compliance without the burden of maintaining 
physical samples.
    The standard requires manufacturers to maintain certain records to 
document compliance with the standard. This includes records concerning 
prototype testing, pooling and confirmation testing, and quality 
assurance procedures and any associated testing. The required records 
must be maintained for as long as mattress sets based on the prototype 
are in production and must be retained for three years thereafter.

11. Labeling (Sec.  1633.12)

    The labeling required by the standard has been modified from the 
proposed rule. These changes were made to provide more complete 
information about the manufacturer/importer and to enable consumers to 
choose the correct foundation (if any) to use with the mattress they 
purchase.
    Each mattress set must bear a permanent label stating (1) the name 
of the manufacturer, or for imported mattress sets, the name of the 
foreign manufacturer and the importer; (2) the complete physical 
address of the manufacturer, and if the mattress is imported, the 
complete physical address of the importer or U.S. location where 
records are maintained; (3) the month and year of manufacture; (4) the 
model identification; (5) prototype identification number; and (6) a

[[Page 13477]]

certification that the mattress complies with the standard.
    The final rule specifies the wording and format to be used in the 
compliance certification label, and requires that this information 
appear on a single label dedicated to this purpose. This will ensure 
that the information is not detracted from or minimized, and it will 
prevent potential confusion with state labeling requirements. The label 
information may be printed on the reverse side of the label in another 
language.
    Included on the label must be a statement indicating whether the 
mattress meets the standard when used without a foundation, with a 
corresponding foundation or both alone and with a foundation. A 
mattress that is tested with a foundation may perform differently when 
used with a different foundation or without any foundation. Thus, it is 
important for consumers to know what foundation (if any) the mattress 
they are purchasing is intended to be sold with.

12. One of a Kind Exemption (Sec.  1633.13)

    The standard allows an exemption for a one-of-a-kind mattress set 
if it is manufactured in response to a physician's written prescription 
or manufactured in accordance with comparable medical therapeutic 
specifications. This provision is unchanged from the proposal and is 
also present in the 16 CFR 1632 mattress standard.

F. Effectiveness Evaluation

    As discussed in the NPR, CPSC staff conducted an effectiveness 
evaluation to assess the potential effectiveness of the proposed 
standard in addressing deaths and injuries resulting from mattress/
bedding fires. The evaluation was based primarily on review of CPSC 
investigation reports that provided details of the occupants' 
situations and actions during the fire. Staff reviewers identified 
criteria that affected the occupants' ability to escape the fires they 
had experienced. The staff used these criteria to estimate percentage 
reductions in deaths and injuries expected to occur under the much less 
severe fire conditions anticipated with improved designs of mattresses 
that would comply with the standard. The staff then applied these 
estimated reductions to national estimates of mattress/bedding fire 
deaths and injuries to estimate numbers of deaths and injuries that 
could be prevented with the standard. [3]
    The staff's effectiveness estimates in the NPR were based on full-
scale tests of early experimental mattress designs incorporating 
strong, but not necessarily cost-effective barrier systems. These 
mattress tests were conducted with burning bedclothes so that the fires 
produced could be used to estimate changes in deaths and injuries 
expected to result from the standard. In the past few years, mattress 
designs and materials have evolved with manufacturers now producing 
mattresses to meet California TB 603. New fire barrier products have 
been introduced, mattress designs have been more closely engineered to 
achieve the required performance, and single-sided mattresses have 
become an increasingly larger and more significant portion of the 
residential market. [1]
    In evaluations that the staff conducted after publication of the 
NPR, the staff found that when mattresses are closely designed to the 
performance requirements in the final standard, as is expected as the 
industry develops their new products, flashover conditions could occur 
earlier than previously measured with experimental and initially over-
engineered designs. Staff accounted for this observed behavior by 
reducing the effectiveness estimates for the final standard adjusting 
for the effect on some occupants. The standard's limit on the early 
contribution of the mattress to the fire (15 MJ in the first 10 
minutes) will help to maintain tenable conditions early in the fire and 
allow for timely discovery and escape from growing fire conditions. 
[1&2]
    The most recent national fire loss estimates indicated that 
mattresses and bedding were the first items to ignite in 15,300 
residential fires attended by the fire service annually during 1999-
2002. These fires resulted in 350 deaths, 1,750 injuries and $295.0 
million in property loss each year. Of these, the staff considers an 
estimated 14,300 fires, 330 deaths, 1,680 injuries, and $281.5 million 
property loss annually to be addressable by the standard (i.e., of the 
type that the standard could affect based on the characteristics of the 
fire). [3]
    For the final rule, the staff has reviewed the fire loss data and 
updated its effectiveness evaluation to account for the observations 
discussed above. The staff's analysis is explained in detail in the 
memorandum ``Updated Estimates of Residential Fire Losses Involving 
Mattresses and Bedding.'' [3]
    CPSC staff estimates that, overall, the standard may be expected to 
prevent 69 to 78 percent of the deaths and 73 to 84 percent of the 
injuries presently occurring in addressable mattress/bedding fires 
attended by the fire service. Applying these percentage reductions to 
estimates of addressable mattress/bedding fire losses noted above, 
staff estimates potential reductions of 240 to 270 deaths and 1,150 to 
1,330 injuries annually in fires attended by the fire service when all 
existing mattress sets have been replaced with mattress sets meeting 
the new standard. There may also be reductions in property damage 
resulting from the standard, but data are not sufficient for the staff 
to quantify this impact. [3]

G. Inter-Laboratory Study

    Before publication of the NPR, an inter-laboratory study was 
conducted with the support of the SPSC, NIST, and participating 
laboratories to explore the sensitivity, repeatability, and 
reproducibility of the NIST test method. However, only a preliminary 
analysis of the results of the study was available prior to the NPR. A 
more detailed analysis is now available. See Damant, G./Inter-City 
Testing and Consulting Corporation & Sleep Products Safety Council 
(2005). Developing an Open-Flame Ignition Standard for Mattresses and 
Bed Sets (Report on a Precision and Bias Evaluation of the Technical 
Bulletin 603 Test Method). Alexandria, VA: Sleep Products Safety 
Council. The analysis is summarized below.
    All of the participating labs conducted multiple tests of eight 
different mattress designs. The mattress designs varied critical 
elements (e.g., the barrier--sheet or high-loft, the type of mattress--
single or double-sided) and the style of mattress (e.g., tight or 
pillow top). [2]
    A detailed statistical analysis of the test data suggests neither 
unreasonable sensitivities nor practical limitations of the NIST test 
protocol. The results were not affected by substantially varying the 
parameters (primarily associated with possible test facility and 
operator errors) selected for the sensitivity study. The data indicate 
that the specified ignition source is severe enough and the test 
duration long enough to allow a valid/realistic evaluation of mattress 
set performance. [2]
    The data showed some significant differences in the test results 
reported by the participating laboratories, and a variety of factors 
possibly influenced these differences. However, the study suggests 
that, when the test procedures are correctly followed, it is the 
combined characteristics and resulting behavior of the mattress 
components chosen, mattress design, and consistency of the 
manufacturing processes that determines the test outcome. Observations 
from the study emphasize the importance of controlling components, 
materials, and methods of assembly. Quality assurance procedures,

[[Page 13478]]

standardized testing, written records, and visual inspections are all 
means for assuring, verifying, and controlling consistency of 
production. Environmental conditions required for tests have also been 
tightened in the standard. [2]

H. Response to Comments on the NPR

    As discussed above, the Commission published an NPR in the Federal 
Register on January 13, 2005, proposing a flammability standard 
addressing open flame ignition of mattresses. 70 FR 2470. During the 
comment period, the Commission received over 540 comments from 
consumers, businesses, associations and interested parties representing 
various segments of the mattress industry and consumers. In addition, 
comments were presented by interested parties at a public hearing 
concerning the mattress NPR that the Commission held on March 3, 2005. 
Additional comments have also been submitted since the close of the 
comment period.
    Commenters who generally supported the proposed rule provided 
comments regarding definitions, testing procedures, recordkeeping 
requirements, importer/renovator responsibilities, and other related 
issues. Those opposed to the standard expressed concerns about the 
health effects of flame retardant chemicals needed to help mattress 
sets comply with the performance requirements. [18 & 19] Significant 
issues and the Commission's responses are summarized below. More 
detailed responses and responses to minor comments are discussed in the 
staff's briefing memoranda.

1. Scope and Definitions of the Standard

    a. Comment. One commenter noted inconsistency in use of the terms 
``mattress'' and ``mattress set,'' which could lead to confusion. The 
commenter suggested using and defining ``mattress set'' to refer to 
mattresses to be tested both with and without a foundation.
    Response. CPSC has now defined ``mattress set'' to include 
mattresses labeled for sale alone and mattresses labeled for sale with 
a foundation, depending upon the manufacturer's intentions, to resolve 
the problem of inconsistency, as well as reduce wordiness. The revised 
definition also makes clear that foundations need not meet the test 
requirements by themselves. The term is used throughout the final 
standard.
    b. Comment. Two commenters stated that the distinction between 
prototypes that need to be tested and those that do not is unclear. 
They suggest using a different term, such as ``Model,'' for prototypes 
that do not need to be tested.
    Response. CPSC agrees that using a different term to refer to 
prototypes that are not required to be tested would prevent confusion. 
``Subordinate prototype,'' defined at Sec.  1633.2(p), is used for an 
untested prototype based on either a qualified or confirmed prototype.
    c. Comment. One commenter recommended that the term ``prototype 
developer'' be defined to permit third parties, such as component 
suppliers, to design and test prototypes that can be used by mattress 
manufacturers.
    Response. The standard does not prohibit entities other than 
mattress manufacturers from designing and testing mattresses for 
pooling purposes. For purposes of clarity a definition for ``prototype 
developer'' has been added to the standard to describe a third party 
providing this service to the industry. If such an entity designs a 
prototype for a mattress manufacturer, the manufacturer would still be 
responsible for causing qualification testing of and maintaining all 
records required for that prototype, including those documenting the 
prototype qualification. If the prototype developer designs and 
qualifies the prototype, the manufacturer would have to do the required 
confirmation test.
    d. Comment. Commenters questioned the applicability of the proposed 
standard to mattresses used in recreational vehicles and the lodging 
industry.
    Response. The Commission intends for this standard to apply to 
essentially the same mattresses as are currently regulated under Part 
1632. Mattresses are ``products'' under the Flammable Fabrics Act. 
However, motorized RVs that are subject to the National Highway Traffic 
Safety Administration's FMVSS No. 302 would not be subject to the 
Commission's mattress standard.
    Interpreting the 1632 mattress standard, the Commission's staff and 
Office of General Counsel have expressed the view that the flammability 
standards issued under the FFA (including 1632) are applicable to 
mattresses, carpets and rugs when installed in travel trailers, 5th 
wheelers and slide-in campers, but travel trailer cushions that have 
dual purposes as mattresses and seat cushions would not be considered 
mattresses.
    Mattresses used in the lodging industry are subject to the 1632 
mattress standard. Commenters have not presented any reasons why these 
mattresses should be treated differently under the new Part 1633 
regulation addressing open flame ignition. In the absence of such 
information, the Commission believes it is appropriate to continue to 
include mattresses used in the lodging industry as subject to 
Commission mattress flammability rules.

2. Technical Requirements/Specifications

    a. Comment. Several commenters recommended changing the specified 
burner hole size to the 53 drill size (1.50 mm) used on 
production burners and limit the time between removal of the sample 
from conditioning and the start of the test.
    Response. As discussed earlier in this preamble, NIST recently 
evaluated peak heat fluxes from two versions of gas burner designs, the 
original and the commercial burners with larger holes. The study showed 
that the burners with the larger holes do a better job of meeting the 
target peak flux levels of bedclothes than do the original burners with 
the smaller holes. Accordingly, the Commission has revised the standard 
to specify a nominal burner hole size of 1.50 mm, which corresponds to 
Grade 10 machining practice with a well formed 53 drill bit.
    b. Comment. Several commenters recommended tightening sample 
conditioning and test area conditioning requirements.
    Response. CPSC agrees that exposure of a mattress sample to the 
fire test room environmental conditions could likely have an impact on 
test results. Some laboratories have observed seasonal variations in 
test performance. It is reasonable, therefore, to require that testing 
of a specific conditioned sample should begin within a certain amount 
of time after removal from the storage conditions.
    Based on NIST's evaluation of the effects of laboratory humidity in 
fire test performance, the Commission has revised the standard to 
require that testing must begin within 20 minutes after removal from 
the conditioning room. The sample conditioning requirements in Sec.  
1633.7(b) of the standard have been revised to specify an upper limit 
on the temperature. The temperature range must be greater than 18[deg] 
C (65[deg] F) and less than 25[deg] C (77[deg] F). The test area 
conditions must now be maintained at a temperature greater than 15[deg] 
C (59[deg] F) and less than 27[deg] C (80.6[deg] F) and a relative 
humidity less than 75 percent. These specifications will minimize 
environmental influences on test results.
    c. Comment. Several comments requested the use of slightly modified 
test equipment. For example, one

[[Page 13479]]

commenter requested to use a modified technique to obtain the required 
burner offset from the specimen instead of the foot. Another comment 
pertained to using an alternate method of measuring the gas flow, 
rather than using a rotameter type of flowmeter.
    Response. To address such issues that would not be expected to 
influence the test, the proposed standard has been revised to include a 
provision for the use of alternate apparatus in Sec.  1633.7(k): 
Mattress sets may be tested using test apparatus that differs from that 
described in this section if the manufacturer obtains and provides to 
the Commission data demonstrating that tests using the alternate 
apparatus for the procedures specified in this section yield failing 
results as often as, or more often than, tests using the apparatus 
specified in the standard. The manufacturer shall provide the 
supporting data to the Office of Compliance, and staff will review the 
data and determine whether the alternate apparatus may be used.

3. Exposure to Flame Retardant Chemicals--Health Concerns

    a. Comment. Numerous commenters stated that they were concerned 
about the possible toxicity of flame retardant (FR) chemicals in 
general. Other commenters, including manufacturers of mattresses or 
mattress components, stated that there are FR chemicals that can be 
used without presenting a hazard to consumers, workers, or the 
environment.
    Response. In the view of the CPSC staff, there are inherently flame 
resistant materials and FR chemicals available that can be used to meet 
the standard and that are not likely to present a hazard to consumers, 
workers, or the environment. The CPSC and Environmental Protection 
Agency (EPA) staffs will continue to evaluate the potential effects of 
FR treatments to ensure that they do not present a hazard to consumers, 
workers, or the environment.
    Mattress manufacturers would be free to choose the means of 
complying with the standard. Options available to manufacturers include 
the use of inherently flame resistant materials, FR barriers, and FR 
chemicals. To meet the standard, FR chemicals would most likely be 
applied to components inside the mattress, such as batting or barriers. 
However, FR chemicals might be applied to mattress ticking (cover 
fabric) in some cases. The potential risk presented by any chemical, 
including FR chemicals, depends on both toxicity and exposure. To the 
extent that FR chemical treatments remain bound to or within the 
mattress, exposure and its attendant risk would be minimized.
    The CPSC staff has considered the potential chronic health risks 
associated with FR chemicals that may be used in mattresses to comply 
with the standard and continues to study the potential exposures to FR 
chemicals that may occur over the lifetime of a mattress. The 
Commission concludes that there are inherently flame resistant 
materials, FR barriers, and FR chemical treatments that can be used 
without presenting any appreciable risks of health effects to 
consumers.
    The CPSC staff is also working with the EPA to ensure that the use 
of FR chemicals does not endanger consumers, workers, or the 
environment. EPA has broad statutory authority over chemical substances 
that address potential risks to consumers, workers, and the 
environment. EPA has several programs such as the Design for the 
Environment (DfE), High Production Volume (HPV) Chemical Challenge, and 
Voluntary Children's Chemical Exposure Program (VCCEP) to evaluate the 
potential hazards of chemicals, including flame retardants, to 
consumers, workers, and the environment. In addition, the CPSC staff is 
cooperating with EPA in developing a significant new use rule (SNUR) 
for FR chemicals that could be used to comply with CPSC or state 
flammability requirements for upholstered furniture and possibly 
mattresses. EPA's programs and statutory authority can be used to 
obtain additional toxicity or exposure data where needed, and 
complement the activities of the CPSC and the statutory authority of 
the Commission.
    b. Comment. A number of commenters were specifically concerned 
about the toxicity of boric acid, which is used to treat cotton 
batting.
    Other commenters, including manufacturers of mattresses, mattress 
components, and chemicals, noted that boric acid has been used in 
mattresses for many years and that their employees have not suffered 
any ill effects. They noted that the EPA also recently increased its 
reference dose (RfD) for boric acid. (This means that a greater daily 
exposure to boric acid is considered acceptable by EPA.)
    Response. After publication of the NPR, the CPSC staff performed 
studies to estimate the potential for exposure as well as the potential 
health risk associated with the use of boric acid as a flame retardant. 
[4&11] The staff's studies and analysis applied conservative 
assumptions in areas of scientific uncertainty, that is, assumptions 
that may overestimate, rather than underestimate, exposure and risk. 
The staff concluded that the estimated exposure to boric acid was below 
both the EPA's revised RfD and the updated CPSC staff's Acceptable 
Daily Intake (ADI). Thus, boric acid is not expected to pose any 
appreciable risks of health effects to consumers who sleep on treated 
mattresses.
    c. Comment. One commenter specifically mentioned fiberglass as a 
potentially hazardous FR treatment due to inhalation of glass fibers.
    Response. The type of fiberglass used in textiles and FR barriers, 
``continuous filament,'' is not considered hazardous.
    d. Comment. Some commenters argued that the risk of dying in a fire 
is lower than the risk of adverse health effects from exposure to FR 
chemicals in mattresses.
    Response. The commenter provided no data on mattress exposures to 
support this assertion. There are approximately 15,000 fires per year 
in the U.S. in which mattresses or bedding are the first item ignited, 
resulting in about 1,750 injuries and 350 deaths per year. The 
Commission has concluded that the risk of injury or death in a fire 
involving mattresses or bedding is substantial.
    The CPSC has studied the potential exposures and chronic health 
risks associated with FR chemicals that may be used in mattresses to 
comply with the standard. The results of these studies indicate that 
there are a number of commercially available FR-treated barriers that 
can be used to meet the standard without presenting any appreciable 
risks of health effects to consumers.
    e. Comment. Numerous commenters stated that they have multiple 
chemical sensitivity (MCS), allergies, or other health conditions that 
could be exacerbated by exposure to FR chemicals.
    Response. The CPSC concludes that there is no evidence to suggest 
that FR chemical exposures from mattresses would contribute to the 
causation or exacerbation of allergies, asthma, or multiple chemical 
sensitivity (MCS). For the most part, the materials and FR chemicals 
that will be used to comply with the standard do not share the 
characteristics of the types of exposures associated with the 
conditions noted by the commenters.
    MCS is a ``condition in which a person reports sensitivity or 
intolerance (as distinct from an allergy) to a number of chemicals and 
other irritants at very low concentrations.'' The chemicals include 
both recognized pollutants--for example, formaldehyde, volatile organic

[[Page 13480]]

compounds, and environmental tobacco smoke--as well as agents generally 
considered to be innocuous, such as fragrances. Health professionals 
and biomedical scientists differ in their views regarding the 
underlying causes and physiological processes of this condition. Non-
allergic asthma and rhinitis are generally associated with exposure to 
respiratory irritants such as combustion products, environmental 
tobacco smoke, dusts, and solvents, while allergic asthma and rhinitis 
symptoms are most often associated with exposures to airborne 
biological substances, such as animal dander, insect wastes, molds, and 
pollen. The FR materials or chemicals under consideration are generally 
non-volatile, are not associated with fragrances or odors, and are not 
derived from biological materials.
    Furthermore, the potential risks presented by FR chemicals depend 
on both toxicity and exposure. In most cases, FR chemicals would be 
applied to components inside the mattress, such as batting or barriers. 
To the extent that FR chemical treatments remain bound to or within the 
mattress, exposure and its attendant risk would be minimized.
    f. Comment. Some commenters claimed that FR chemicals may cause 
sudden infant death syndrome (SIDS).
    Response. The CPSC disagrees with the claim that antimony compounds 
or other FR chemicals may cause sudden infant death syndrome (SIDS). 
Following a four-year study in the United Kingdom and reviews by a 
number of expert panels in the UK and the U.S., the expert panels 
concluded that there is no credible evidence that antimony compounds or 
any other FR chemicals contribute to SIDS.
    g. Comment. Some commenters were specifically concerned about the 
toxicity of polybrominated diphenyl ethers (PBDE's), including 
decabromodiphenyl oxide (DBDPO).
    Response. PBDE's are a family of FR chemicals that have been used 
in some components of consumer products. Octabromodiphenyl ether (octa-
BDE) was a relatively minor product that was never used in mattresses 
or upholstered furniture. Pentabromodiphenyl ether (penta-BDE) is no 
longer in use. It was one of the primary FR treatments for flexible 
polyurethane foam (PUF), which is used in mattresses, upholstered 
furniture, and other applications. However, most non-California 
residential mattresses and upholstered furniture do not require FR-
treated PUF to pass current flammability requirements. The European 
Chemicals Bureau concluded that there is no reason to ban DBDPO. The 
U.S. EPA and the European Chemicals Bureau continue to review the 
potential environmental effects of DBDPO. The CPSC staff evaluated 
risks associated with mattress barriers containing DBDPO and concluded 
that DBDPO used in barriers for mattresses is not expected to pose any 
appreciable risk of health effects in consumers. [1&13]
    h. Comment. Some individuals commented that there is no guidance 
for manufacturers to consider toxicity and exposure when selecting FR 
chemicals.
    Response. Under the FHSA, manufacturers are responsible for 
ensuring that their products either do not present a hazard to 
consumers or, if they are hazardous, that they are properly labeled 
according to the requirements of the FHSA. In 1992, the Commission 
issued chronic hazard guidelines to assist manufacturers in complying 
with the FHSA (16 CFR 1500.3(c)(2). The guidelines address 
carcinogenicity, neurotoxicity, reproductive and developmental 
toxicity, exposure, bioavailability, and risk assessment.
    i. Comment. One manufacturer commented that the CPSC staff should 
use realistic exposure scenarios, rather than overly conservative ones.
    Response. In assessing chronic health hazards, the goal of the CPSC 
staff is to determine whether ``reasonably foreseeable handling and 
use'' may be hazardous to consumers. Therefore, the staff generally 
attempts to make best estimates of exposure under realistic conditions. 
However, in the absence of adequate data, the staff applies 
``conservative'' assumptions, that is, assumptions that might 
overestimate, rather than underestimate risk.
    The CPSC chronic hazard guidelines describe various approaches to 
exposure assessment. Direct measures of exposure such as field studies 
are generally preferred over laboratory studies and mathematical 
modeling. However, field studies are not always practical for technical 
or economic reasons. Thus, the staff frequently relies on a combination 
of laboratory data and mathematical models.
    The CPSC staff developed laboratory methods and exposure scenarios 
to assess the potential exposure to FR chemicals in mattresses. These 
methods are conservative in that they may overestimate, rather than 
underestimate, the potential risk.

4. Durability of Flame Retardant Chemicals--Fire Performance

    Comment. Several commenters recommended requiring performance tests 
to assure the durability of flame retardant chemicals and barrier 
performance after exposure to moisture. Some provided test data to 
support their concerns. Other commenters provided data from tests of 
used mattresses taken out of service, indicating they still met 
applicable standards.
    Response. The data provided by commenters were either not relevant 
(tests using smoldering cigarettes) or based upon severe exposure of 
barrier materials, apart from the mattress, before testing. The staff 
sought and obtained new test data, supplied by manufacturers of barrier 
products and by NIST, to provide a limited evaluation of effects of 
moisture on flammability behavior. This evaluation does not support 
requiring specific durability tests for barrier components. NIST 
examined the fire performance of two mattress designs that used 
different barrier materials/systems made with water soluble flame 
retardants. NIST fire tests were conducted after the mattress sets were 
exposed to 10 localized, wetting and drying cycles. The effects of this 
severe wetting exposure scenario did not change the overall 
flammability performance of the mattress sets. In addition, even if 
exposed areas have decreased fire resistance, the tests suggest that 
the remainder of the mattress should retain its improved flammability 
performance, especially the performance expected early in the fire. 
Since localized wetting, as in bedwetting, is anticipated to be the 
most likely exposure of a mattress to water in real-world applications, 
it appears unnecessary to add durability test requirements to the 
standard to account for mattress designs that incorporate barrier 
systems that use water-soluble flame retardants.

5. Effective Date

    Comment. Commenters suggested a variety of effective dates for the 
final rule ranging from immediate implementation to coinciding with 
regular model changes (January and July) and 18 months from final 
publication.
    Response. The standard provides an effective date of July 1, 2007, 
which is the earlier of January or July that follows twelve months 
after publication of the Federal Register notice. This date would 
coincide with regular model/style changes and thus make it easier for 
all producers, especially small producers outside of California who are 
not producing complying mattress sets, to update their styles and 
produce complying mattress sets.
    All national producers that sell mattresses in California already 
have developed the production technology and conducted the testing 
required to

[[Page 13481]]

meet California TB 603, which is very similar to the Commission's 
standard. One of them is already selling mattresses complying with 
performance requirements of the Commission's standard nationwide. Three 
of the top four producers are selling complying mattress sets 
representing between 15 to 20 percent of their total output. Smaller 
companies not based in California may be behind in their design, 
production, and testing efforts. However, the Commission believes that 
an effective date of one year plus time to the next model introductions 
provides enough time for all manufacturers to transition to producing 
and selling compliant mattresses.

6. Labeling

    a. Comment. One commenter urged the Commission to require the 
labels of imported mattresses to bear the foreign manufacturer's name 
and full address, including country, as well as the importer's name and 
full address.
    Response. CPSC agrees that such information should be present on 
the mattress set label and has revised Sec.  1633.12 (a) of the 
standard accordingly.
    b. Comment. One commenter referred to the Textile Fiber Products 
Identification Act, which is administered by the Federal Trade 
Commission (FTC) and requires, among other things, that mattresses made 
with ``reused stuffing'' be labeled so, and suggested that CPSC 
coordinate with FTC to allow the disclosure to appear on the label with 
the other information required by the standard.
    Response. Labeling of mattresses is governed by several 
organizations, including CPSC, FTC, and individual states. Because of 
the informative nature and quantity of information needed, the standard 
has been revised to require the information specified in Sec.  1633.12 
to be displayed on a permanent, dedicated label in a prescribed format. 
Therefore, no other information apart from that required by the 
standard may appear on this label. This helps to insure prominence of 
consumer safety information and to prevent potential confusion with 
other labeling requirements.
    c. Comment. One commenter suggested requiring renovated mattresses 
to bear a yellow label that would distinguish them from new mattresses, 
which traditionally bear white labels. In addition, the commenter 
recommended that renovated mattress labels be required to contain a 
statement indicating that compliance with the standard does not imply 
that the renovated mattress is sanitary or hygienic.
    Response. The standard seeks to reduce injuries and deaths due to 
fires. It is not intended to address the sanitary condition of 
mattresses.
    d. Comment. One commenter expressed concern that requiring a 
dedicated label might detract from the Sleep Product Safety Council's 
safety hangtag program, conflict with the state law labeling program, 
and negatively affect the aesthetics of the finished product. The 
commenter suggested allowing manufacturers to display the required 
information on the Sleep Products Safety Council's safety hangtag.
    Response. CPSC has revised the labeling provision in the standard 
to (1) include intended usage information for the safety of the 
consumer, (2) require all information specified in Sec.  1633.12 to 
appear on a dedicated label, and (3) permit the display of the consumer 
usage information in any other language on the reverse (blank) side of 
the label. Consumers must be able to identify the correct foundation, 
if any, to use with the mattress they purchase. With this intended 
usage information, consumers will understand that the mattress they 
purchase meets the requirements of the standard when used alone, with 
one or more specific foundation(s), or both.
    Requiring the specified information to appear on a dedicated label 
has the benefit of (1) ensuring that such information is not detracted 
from or minimized, (2) avoiding potential conflict or confusion with 
state labeling requirements, (3) guaranteeing that the intended usage 
information is highlighted and presented in a consistent manner, and 
(4) allowing manufacturers the option of providing the intended usage 
information in another language on the back of the label. CPSC staff 
designed the required label to be as small as possible without 
compromising the clarity and effectiveness of the specified 
information.
    e. Comment. Ten commenters recommended including in the standard a 
requirement that mattresses provide a label listing FR chemicals used 
or a statement warning of health risks.
    Response. The staff has found that numerous FR materials are 
available that will enable mattresses to meet the standard without 
posing any appreciable health risks. Moreover, the FHSA itself would 
require a hazard warning label if a mattress did contain a hazardous 
substance as that term is defined in the FHSA. The potential health 
hazard associated with any chemical depends on both toxicity and 
exposure. A label stating the names of any FR chemicals used in the 
mattress would thus not in fact provide any useful information to the 
consumer because the mere presence of an FR chemical is not an 
indication that the mattress containing that chemical poses any health 
risk.

7. Preemption

    Comment. The Commission received several comments concerning 
preemption. One commenter asked that the Commission explicitly state in 
the standard that the mattress standard would preempt both codified 
state rules and State common law claims that address the same risk of 
injury as the federal mattress standard. Other commenters asked that 
the Commission indicate that the standard would not preempt stricter 
state standards.
    Response. The Commission's position on the preemptive effect of 
this final rule is stated in Section N. of this preamble.

8. Domestic Manufacturer/Renovator vs. Importer Responsibilities

    a. Comment. Two commenters suggested making importer testing/
recordkeeping responsibilities explicit. They suggested including 
language specifying that testing needs to be conducted (either 
qualification or confirmation) and records maintained for each foreign 
manufacturer if the importer is importing from more than one 
manufacturer.
    Response. CPSC intends for the requirements of the standard to be 
the same for domestic manufacturers/renovators and importers: each is 
responsible for maintaining the appropriate qualification and 
confirmation test records for mattress sets they produce and/or import. 
These requirements have been clarified in the standard.
    b. Comment. One commenter expressed concern that foreign 
manufacturers may circumvent testing requirements by drop-shipping 
directly to consumers. The commenter recommended adding a definition of 
``importer'' that identifies domestic agents involved with selling or 
marketing the product to be drop-shipped as the responsible party.
    Response. The CPSC does not believe that adding a definition of 
importer will suitably address the issue. Section 3(a) of the Flammable 
Fabrics Act already prohibits ``[t]he manufacture for sale, or the 
offering for sale, in commerce, or the importation into the United 
States, or the introduction, delivery for introduction, transportation 
or causing to be transported in commerce or for the

[[Page 13482]]

purpose of sale or delivery after sale in commerce * * *'' of any 
product violating a standard issued under its authority. This means 
that any party--including importers and other agents initially 
introducing goods regulated under the FFA into commerce--engaged in the 
foregoing actions with respect to non-complying products would be 
liable under the FFA.
    In response to the commenter's concern, CPSC revised the standard 
to require each manufacturer to maintain a copy of the records 
demonstrating compliance at a U.S. location. Additionally, this 
location would be required to appear on the mattress label. Section 
1633.11(e) of the standard has been revised to reflect these 
requirements.

9. Quality Assurance Requirements

    Comment. One commenter suggested limiting the scope of the 
components and materials required to be controlled for quality 
assurance to only those that are critical to the flammability 
performance of the finished product.
    Response. The Commission believes that it is premature to limit the 
scope of the quality control on incoming components and materials. The 
Commission could revisit this issue once significant experience with 
the standard is gained and the industry and CPSC have more confidence 
in the contributions of various components to the full-scale fire 
performance of mattress sets.

10. Recordkeeping and Sample Retention

    a. Comment. One commenter recommended that the test and 
manufacturing records require the ``name and full address'' of the 
testing laboratory, as opposed to just the ``location.'' The same 
commenter likewise suggested substituting ``full address'' for 
``location'' for both the manufacturer of the qualified prototype in 
the pooling confirmation test records and the suppliers in the 
prototype records.
    Response. CPSC agrees that the name and complete address of the 
testing laboratory, as well as the complete addresses of the qualified 
prototype manufacturer and each material and component supplier, should 
appear in the respective records. This will provide more complete and 
accurate information for compliance purposes. Changes in Sec.  1633.11 
of the standard have been made accordingly.
    b. Comment. One commenter urged the Commission to limit the records 
required under Sec.  1633.11(d)(5) of the standard to only those 
relating to the testing and evaluations of components, materials, and 
assembly methods critical to flammability performance of the qualified 
prototype.
    Response. Since it is too early to know exactly what components, 
materials, and assembly methods will influence the flammability 
performance of a mattress, CPSC does not believe it is appropriate to 
limit the types of records required under Sec.  1633.11(d)(5) at this 
time. Moreover, these records will likely be used by manufacturers to 
demonstrate that a change in component, material, and/or assembly 
method will not degrade the flammability performance of a prototype, 
thus allowing the manufacturer to forgo testing and qualifying a new 
prototype. To that end, it is in the interest of the manufacturer to 
maintain a broader scope of such records.
    c. Comment. Two commenters remarked that the requirement to keep 
physical samples of all materials used in each prototype is overly 
burdensome and impractical. The large numbers of samples would require 
significant storage space while the objective could be accomplished 
through test and quality certificates and other documentation already 
required in the quality assurance records.
    Response. The requirement to maintain physical samples of prototype 
materials and components was included in the proposed standard as an 
added measure for manufacturers to verify that production mattresses 
match their representative prototype. Given that the prototype 
recordkeeping requirements already call for manufacturers to provide a 
detailed description of and specifications for each material and 
component used in every prototype, and given that this information may 
be used to reliably verify material and component consistency, the 
requirement to keep physical samples has been eliminated in the 
standard.

11. Consider Revoking Existing Cigarette Standard for Mattresses, 16 
CFR Part 1632

    Comment. Some commenters supported revoking the existing standard 
for cigarette ignition of mattresses and mattress pads. Others 
recommended careful review of risks, incident data, and benefits of the 
current standard before revocation is considered.
    Response. On June 23, 2005, the Commission published an advance 
notice of proposed rulemaking for the possible revocation or amendment 
of the Standard for the Flammability of Mattresses and Mattress Pads 
(Cigarette Ignition). 70 FR 36357. That rulemaking will allow for a 
full evaluation of options to reduce unnecessary burdens while 
maintaining the safety afforded by the cigarette ignition standard. The 
Commission staff is also considering measures to reduce the short term 
testing burden created by the addition of a new mattress standard to an 
existing one.

12. Costs Associated With the Standard

    Comment. Commenters expressed concerns about the increased costs of 
barrier materials needed to produce complying mattresses and increased 
costs to consumers (as much as $100 per mattress).
    Response. Estimates of barrier and other resource costs for 
mattress producers are lower in the final regulatory analysis than 
those in the initial regulatory analysis and are expected to drop 
further as a result of technological developments and increased 
competition among barrier producers. Total costs are not expected to 
exceed $23.00 per mattress set.
    The expected price increase for consumers was initially estimated 
to range from $23.00 to slightly less than $80.00. However, the final 
regulatory analysis updated the costs, which have declined because of 
technological advances and market competition. This means that the 
consumer price will increase by a mid-point estimate of $24.21 per 
mattress.
    One national producer currently makes mattresses that would comply 
with the standard without increasing the price of its mattress sets. 
Competition for market share among producers will likely drive the 
price closer to the one charged by this national producer, which would 
make the likely increase even lower than that suggested by the $24.21 
above.

13. Bedclothes Rulemaking

    Comment. Some commenters expressed support for an additional 
rulemaking for bedclothes because of the significant role those 
products play in mattress/bedding fire losses. Other commenters shared 
concerns about the potential use of FR chemicals in such a rulemaking 
as well.
    Response. On January 13, 2005, the Commission published an advance 
notice of proposed rulemaking for a standard to address open flame 
ignition of bedclothes. 70 FR 2514. Recent research has shown that 
bedclothes are a significant ignition source for mattress fires and can 
also generate a fire large enough to pose a hazard on their own. 
Laboratory tests also showed that fire performance of these products 
could be

[[Page 13483]]

improved. The environmental and health implications of compliance 
strategies, including FR chemicals, will be evaluated in the course of 
that rulemaking.

I. Final Regulatory Analysis

    The Commission is issuing a rule establishing a flammability 
standard addressing the open flame ignition of mattresses. Section 4(j) 
of the FFA requires that the Commission prepare a final regulatory 
analysis for this action and that it be published with the final rule. 
15 U.S.C. 1193(j). The Commission previously prepared, and published 
with the proposed rule, a preliminary regulatory analysis. The staff 
reviewed the preliminary regulatory analysis and updated it to prepare 
a final regulatory analysis. The following discussion was extracted 
from the staff's memorandum titled ``Final Regulatory Analysis of 
Staff's Draft Standard Final to Address Open-Flame Ignitions of 
Mattress Sets.'' [7]

1. Introduction

    For 1999 to 2002, there were an estimated annual average of 15,300 
fires where the first item ignited was mattress/bedding. These fires 
resulted in an annual average of 350 deaths, 1,750 injuries, and $295 
million of property loss. As discussed elsewhere in this document, NIST 
conducted extensive research and developed a test methodology to test 
open flame ignition of mattresses. The Commission issued an NPR 
proposing a standard that incorporates the NIST test method.
    California Technical Bulletin (TB) 603, which is based on the use 
of NIST test burners designed to mimic the local thermal insult (heat 
flux levels and duration) imposed by burning bedclothes, became 
effective in California on January 1, 2005. The California share of the 
market is estimated, by industry representatives, to be around 11 
percent of the U.S. market. TB 603 requires all mattress/foundation 
sets, mattresses intended to be used without a foundation, and futons 
to meet the following pass/fail criteria: (1) The peak heat release 
rate (``PHRR'') does not exceed 200 kW during the 30 minute test, and 
(2) the total heat release does not exceed 25 mega joules (MJ) in the 
first 10 minutes of the test.
    As of October 2005, one of the top four producers is selling 
mattress sets that comply with both TB 603 and the CPSC standard. The 
other three (of the top four) are producing complying mattress sets 
representing between 15 and 20 percent of their total output. This 
includes all mattress sets sold in California, plus other special 
orders, institutional mattresses and mattress sets sold in other 
states. Smaller manufacturers, however, may not produce mattress sets 
intended for sale outside California to meet TB 603 performance 
requirements. They are more likely to wait until a federal standard is 
adopted. The mattress industry and the International Sleep Products 
Association (ISPA) support the development of a mandatory federal 
standard (Furniture Today, May 10, 2004). A Federal standard would 
eliminate the uncertainty that may result from having different 
flammability standards for different states.

2. The Standard: Scope and Testing Provisions

    The standard will apply to all mattress sets, where the term 
mattress set means either a mattress and foundation labeled by the 
manufacturer for sale as a set, or a mattress labeled by the 
manufacturer without any foundation. The term mattress means a ticking 
(i.e., an outer layer of fabric) filled with a resilient material used 
alone or in combination with other products intended or promoted for 
sleeping upon. This definition is discussed further in section E.3. 
above.
    A typical innerspring mattress construction might include ticking; 
binding tape fabric; quilt cushioning with one or more separate layers; 
quilt backing fabric; thread; cushioning with one or more separate 
layers; flanging; spring insulator pad; spring unit; and side (border) 
panels. Options for meeting the standard include the use of one or a 
combination of the following: fire resistant ticking; chemically 
treated or otherwise fire resistant filling products; or a fire 
blocking barrier (either a sheet style barrier, sometimes called a 
fabric barrier, or a high-loft barrier, sometimes called a fiber 
barrier). The fire blocking barrier is placed either directly between 
the exterior cover fabric of the product and the first layer of 
cushioning materials, or beneath one or more ``sacrificial'' layers 
that can burn without reaching the heat release constraints of the 
standard.
    While the technology exists for producing a sheet-style fire 
blocking barrier, few, if any, producers are choosing it for protecting 
the mattress. The cost of using sheet barriers is higher than using 
high-loft barriers, since sheet barriers are thin and therefore could 
not be substituted for an existing foam or cushioning layer. There is 
also concern that some sheet barriers, unlike high-loft barriers, may 
reduce the comfort of the sleeping surface. There are already over 
twenty different vendors of fire resistant materials associated with 
the production of mattress sets, including barriers, ticking, foam, 
tape, and thread. These materials include chemically treated cotton, 
rayon, and/or polyester, melamine, modacrylic, fiberglass, aramid 
(Kevlar[reg]), or some combination of them.
    For each qualified prototype, three mattress sets must be tested 
and must pass the test requirements. To obtain a passing result, each 
mattress/set must pass a 30 minute test, where the PHRR does not exceed 
200 kW and the total heat release does not exceed 15 MJ in the first 10 
minutes of the test. If any of the sets fail, the problem must be 
corrected, the prototype must be retested and pass the test (in 
triplicate). Manufacturers may sell any mattress set based on a 
qualified prototype. Manufacturers may also sell a mattress set based 
on a subordinate prototype that has not been tested if that prototype 
differs from a qualified prototype only with respect to (1) mattress/
foundation size (length and width); (2) ticking, unless the ticking of 
the qualified prototype has characteristics designed to improve 
performance on the burn test; and/or (3) the manufacturer can 
demonstrate, on an objectively reasonable basis, that a change in any 
component, material, or method of assembly will not cause the prototype 
to exceed the test criteria specified above.
    Once a prototype has been qualified, other establishments (plants 
within the same firm) or independent firms may rely on it through a 
pooling arrangement. The pooling plant or firm is required to test one 
mattress set for confirmation testing. If that set fails, then the 
plant or firm will need to test another mattress set after correcting 
its production to make sure that it is identical to the original 
prototype. A pooling firm may sell other mattress sets that have not 
been tested by the pooling firm if they are based on a confirmed 
prototype and differ from the confirmed prototype only with respect to 
the three situations stated above.

3. Products and Industries Potentially Affected

    According to ISPA, the mattress producers' trade organization, the 
top four producers of mattresses account for almost sixty percent of 
total U.S. production. In total, there are 571 establishments (as of 
2003) that produce mattresses in the U.S., using the U.S. Department of 
Commerce NAICS (North American Industry Classification System) Code 
33791 for mattresses. The top four producers account for about half of 
the number of all these

[[Page 13484]]

establishments. The number of establishments has been declining over 
time due to mergers and buy-outs. Total employment in the industry, 
using the NAICS Code 33791, was 24,545 workers in 2003.
    The mattress manufacturing industry has three key supplying 
industries: spring and wire product manufacturing, broad-woven fabric 
mills, and foam products manufacturing. Depending on the type of fire 
resistant barrier chosen by different manufacturers, the demand for 
foam padding or non-skid fabric for mattresses might decline if it were 
replaced by the high-loft or sheet barrier in the construction of the 
mattress and foundation. This would be offset by an increase in the 
demand for the barrier. Fiberglass, melamine, and aramid producers may 
also be affected to the extent that they are used to produce fire 
resistant materials used in mattress production.
    Manufacturers of bedclothes may also be affected by the standard. 
Sales of bedclothes may increase or decrease based on whether consumers 
view bedclothes as complements or substitutes for a new mattress set 
(complements are goods generally consumed together, substitutes 
generally substitute for each other). For example, if people tend to 
buy all parts of a new bed (mattress, foundation, and bedclothes 
consisting of a comforter, pillows, and sheets) at the same time, then 
an increase in the quantity of mattresses sold would cause an increase 
in sales of bedclothes. If, alternatively, people tend to have a fixed 
budget from which to buy all mattresses and bedding items, then an 
increase in the quantity of mattresses sold would lead to a decrease in 
sales of bedclothes. Also, if the decision to buy a new mattress (or 
mattress set) involves buying a mattress that is much thicker than the 
one currently in use, then consumers will most likely buy new sheets 
(and possibly matching pillowcases and other bedclothes items) to fit 
the new thicker mattress.
    If the cost increase is relatively small or there is no resulting 
increase in the price of a mattress set, then the demand for bedclothes 
will only be affected if consumers place a higher value on the safer 
mattress and replace their current mattress sooner than they would have 
with no standard in place. An increased demand for the safer (and 
thicker, if the current mattress is relatively old) mattress will 
likely result in an increased demand for sheets that fit the newer 
mattresses. This effect, however, is not directly resulting from the 
adoption of the standard since the thickness of the mattress need not 
be increased by the presence of either type of barrier. It is the 
result of the increased utility some consumers may derive from the 
safer mattress and the consequent increase in demand for bedclothes. 
The increased demand for safer mattresses would most probably lead to 
an increase in sales and employment in the spring and wire products, 
broad-woven fabric, and foam products industries, as well as in the 
mattress and bedclothes industries.
    Other producers that could potentially be affected, if the price 
change associated with producing compliant mattresses is significant, 
are those of other substitute products, like airbeds, waterbeds, * * * 
etc. that contain no upholstered material and would, therefore, not be 
covered by the standard. Their sales may increase as a proportion of 
total bedding products.

4. Characteristics of Mattresses Used in U.S. Households

    The total number of U.S. conventional mattress shipments was 22.5 
million in 2004 and is estimated to be 23.0 in 2005. Mattress shipments 
have grown at an average rate of three percent over the period 1981 to 
2005. Unconventional mattresses (including futons; crib mattresses; 
juvenile mattresses; sleep sofa inserts; and hybrid water mattresses) 
are estimated to be about ten percent of the total market. This yields 
an estimated total number of mattresses produced domestically of 25.6 
million in 2005. The value of mattress and foundation shipments in 
2004, according to ISPA, was $4.10 and $1.68 billion, compared to $3.26 
and $1.51 billion respectively in 2002.
    The CPSC Product Population Model (PPM) estimate of the number of 
mattresses in use in different years is based on available annual sales 
data and an estimate of the average product life of a mattress. 
Industry representatives assert that the average consumer replaces a 
mattress set after ten years. A 1996 CPSC market study estimated the 
average expected life of a mattress to be 14 years. The PPM estimates 
the number of (conventional and non-conventional) mattresses in use in 
2005 to be 237.0 million, using a 10-year average product life and 
303.9 million, using a 14-year average product life. These two numbers 
are later used to estimate the pre-standard baseline risk and the 
expected benefits of the standard.
    This analysis focuses principally on queen-size mattresses because 
they are the most commonly used. In 2004 queen-size mattresses were 
used by 34.9 percent of U.S. consumers. Following the queen-size are 
the sizes: Twin and Twin XL (29.3 percent), Full and Full XL (19.9 
percent), King and California King (11.5 percent), and all other (4.4 
percent). ISPA data reflect that the average size of a mattress is 
increasing. The average manufacturing price in 2004 was $182 for a 
mattress of average size and $90 for a foundation of average size. 
Hence the average manufacturing price of a mattress set was about $272 
in 2004.
    There are no readily available data on average retail prices for 
mattress sets by size. ISPA, however, reports that mattress sets 
selling for under $500 represented 34.6 percent of the marketing 2004. 
Mattress sets selling for between $500 and $1000 represented 41.1 
percent of the market in 2004, compared to 39.2 percent in 2002.

5. Mattress/Bedding Residential Fires, Deaths, Injuries, and Property 
Losses: 1999-2002

    The staff estimates that there were 15,300 average annual mattress/
bedding fires for 1999-2002. Of these, 14,300 (or 93 percent) are 
potentially addressable by the standard. Average annual mattress/
bedding deaths for 1999 to 2002 are 350. Of these, 330 (or 94 percent) 
are potentially addressable by the standard. Average annual mattress/
bedding injuries for 1999 to 2002 are 1,750. Of these, 1,680 (or 96 
percent) are potentially addressable by the standard. Average annual 
mattress/bedding property losses for 1999 to 2002 are 295 million 
dollars. Of these, 281.5 million dollars (or 95 percent) are 
potentially addressable by the standard.

6. Expected Benefits of the Standard

    The expected benefits of the standard are estimated as reductions 
in the baseline risk of death and injury from all mattress fires, based 
on a CPSC staff study of fire investigations from 1999-2004. Risk 
reductions are then calculated on a per-mattress-in-use basis based on 
estimates of the number of mattresses in use. The monetary value of 
expected benefits per mattress is derived using estimates for the value 
of a statistical life and the current (i.e., 2005) average cost of a 
mattress fire injury. To derive the monetary value of expected benefits 
over the life of a mattress, the expected annual benefits are 
discounted (using a three percent discount rate), and then summed over 
the expected life of the mattress. The analysis considers mattress 
lives of 10 and 14 years.
    The potential benefits of the standard consist of the reduction in 
deaths, injuries, and property damage that would result. Since the 
prime objective of the standard is to reduce the likelihood of 
flashover or increase the

[[Page 13485]]

time before flashover occurs, and not to reduce fires, changes in 
property losses associated with the standard are hard to quantify. 
Property losses are expected to decline but the extent of the decline 
cannot be quantified. Consequently, for purposes of this analysis, no 
reduction in property losses is assumed. That is, all expected benefits 
from the standard are in the form of prevented deaths and injuries. 
This underestimates net benefits, since there will likely be some 
benefits from reduced property losses.
    The standard is expected to reduce the likelihood of flashover 
resulting from fires started by smoking materials or other ignition 
sources, as well as those started by open-flame ignition. Reductions in 
fires, injuries, and deaths will translate into societal benefits, as 
will be discussed in the benefit-cost analysis (Section 8 of this 
analysis).
    Estimates of the effectiveness of the standard are based on a CPSC 
staff evaluation of in-depth investigation reports of fires (including 
details of the occupants' situations and actions during the fire) 
occurring in 1999-2004 in which a mattress or bedding was the first 
item to ignite, the fire was of the type considered addressable by the 
standard, and a civilian death or injury resulted. Most of the 
investigations also included documentation from the fire department 
that attended the fire. Some incident reports were initiated from death 
certificates with follow-up documentation from the fire department. 
This resulted in a total of 195 deaths and 205 injuries in the 
investigations to be evaluated. The distribution of mattress ignition 
sources was not representative of all fires involving mattresses and 
thus the data were weighted to match the NFIRS-based national fire data 
distributions.
    Evaluations of the fire incidents by CPSC staff reviewers used the 
results of NIST testing (Ohlemiller, 2004; Ohlemiller and Gann, 2003; 
Ohlemiller and Gann, 2002) conducted to assess the hazard produced from 
burning mattresses and bedclothes. Specifically, the evaluations were 
based on the expectation that occupants in bed when the fire ignited 
but able to escape the burning bedclothes in the first three to five 
minutes faced a minimal hazard. Occupants in direct contact with 
burning bedclothes for a longer period (5 to 10 minutes) would be 
subject to potentially hazardous levels of heat release. If the burning 
bedclothes did not ignite other non-bedding items or produce flashover 
at this time, heat release would subside temporarily and then begin to 
increase as the involvement of the mattress increased.
    These conditions would allow occupants 10 to 15 minutes to escape 
the room of origin before the situation in the room would become 
untenable. Since the standard is expected to slow the rate of fire 
spread and hence increase escape time, assuming that bedclothes do not 
contribute enough heat to pose a hazardous condition, it was assumed 
that people who were outside the room of origin at the time of ignition 
were unlikely to die in the fire, unless they entered the room later or 
were incapable of exiting on their own. The analysis focused on 
reduction of deaths and injuries because the standard is designed to 
limit fire intensity and spread rather than prevent ignition.
    Each investigation was evaluated by CPSC staff reviewers to 
identify the features related to the occurrence of a death or injury 
once the fire was ignited. These included casualty age, casualty 
location when the fire started (at the point of ignition, in the room 
of origin but not at the point of ignition, or outside the room of 
origin), whether the casualty was asleep, or suffered from additional 
conditions likely to increase the time needed to escape, whether the 
casualty engaged in fighting the fire, and whether a rescuer was 
present. All of these conditions were used to determine a range for the 
likelihood that each individual death or injury would have been 
prevented had the standard been in effect. Percentage reductions of 
deaths (injuries) within subcategories of heat source and age group 
were applied to equivalent subcategories of the national estimates 
based on the NFIRS and NFPA data for 1999-2002. The estimated 
reductions per category were summed and the overall percentage 
reductions were calculated as the percent of addressable deaths (or 
injuries) that would have been prevented if the likelihood of flashover 
were reduced in the first 30 minutes and victims had 10 to 15 minutes 
of escape time.
    The staff indicates that the standard is expected to reduce all 
addressable deaths from mattress/bedding fires by 69 to 78 percent and 
reduce all addressable injuries from mattress/bedding fires by 73 to 84 
percent. Assuming that addressable mattress/bedding fire deaths and 
injuries account for the same percentage of residential casualties in 
2003 and 2004 as in 1999 to 2002, the staff estimates that 240 to 270 
deaths and 1150 to 1330 injuries in mattress/bedding fires attended by 
the fire service could have been prevented annually during the period 
2000 to 2004.
    The staff's analysis presents the estimated benefits of the 
standard, based on the expected annual deaths and injuries that are 
expected to be prevented by the standard. The analysis is conducted as 
if the standard had gone into effect in 2005. All dollar estimates are 
based on constant 2005 dollars. A discount rate of 3 percent and 
average expected lives of a mattress of 10 and 14 years are also 
assumed.
    Based on the estimated number of mattresses in use for an average 
mattress life of 10 years (described in Section 4), the reduction in 
the risk of death during the first year the standard becomes effective 
equals 1.01 deaths per million mattresses (240 deaths divided by the 
estimated 237 million mattresses in use in 2005) to 1.14 per million 
mattresses (270 deaths/237 million mattresses). The mid-point estimate 
of the reduction in the risk of death the first year the standard 
becomes effective is, therefore, 1.08. The mid-point estimate of the 
reduction in the risk of injury, similarly calculated, equals 5.23, 
with a range from 4.85 to 5.61, injuries per million mattresses for an 
estimated 10-year life of a mattress. The mid-point estimates of the 
risk reductions for an estimated 14-year average life of a mattress are 
0.84 deaths, with a range from 0.79 to 0.89, and 4.08 injuries, with a 
range of 3.78 to 4.38, per million mattresses.
    Annual risk reductions resulting from the standard are used to 
derive the monetary benefits from reduced deaths and injuries. The 
estimated reduction in the risk of death is multiplied by the value of 
a statistical life (and divided by a million) to derive a first-year 
monetary estimate for the range of benefits from lives saved per 
mattress. Based on the existing literature, a value of a statistical 
life of five million dollars is assumed (Viscusi, 1993). The estimated 
reduction in the risk of injury is similarly used to derive the range 
of first-year monetary benefits from injuries prevented. The benefits 
from preventing an injury (the cost of an injury) in 2005 are estimated 
to average about $150,000, based on Zamula (2005) and Miller et al. 
(1993). The mid-point estimate of the first-year benefits associated 
with preventing deaths and injuries equals $6.17, with a range from 
$5.79 to $6.54 for an estimated mattress life of 10 years and $4.81, 
with a range from $4.52 to $5.10 for an estimated mattress life of 14 
years.
    Lifetime benefits are derived by projecting annual benefits for the 
life of the mattress and summing the discounted (at a rate of 3 
percent) stream of annual benefits (measured in constant dollars). The 
number of mattresses in use is projected to grow at a rate of zero to 
three percent, based on the average growth rate for the 1981-

[[Page 13486]]

2004 period. Since the number of deaths and injuries are implicitly 
assumed to remain constant over time, a positive growth rate of 
mattresses in use implies a declining risk over time. The lower end of 
the ranges for estimated (10 and 14 years) lifetime benefits correspond 
to a 3 percent projected growth rate and the lower end of the 
effectiveness ranges. The upper end of the ranges for estimated (10 and 
14 years) lifetime benefits correspond to a zero percent projected 
growth rate and the upper end of the effectiveness ranges.
    For an expected mattress life of 10 years, the resulting mid-point 
estimate of expected lifetime benefits of saved lives associated with 
the standard equals $44.71, with a range of $39.37 to $50.05 per 
mattress. The corresponding mid-point estimate of benefits of prevented 
injuries equals $6.54, with a range of $5.67 to $7.41 per mattress. 
Hence, for an expected mattress life of 10 years, the mid-point 
estimate of the expected total lifetime benefits of a compliant 
mattress equals $51.25, with a range of $45.04 to $57.46 per mattress. 
For an expected mattress life of 14 years, the mid-point estimate of 
the total benefits equals $51.82, with a range of $44.30 to $59.34 per 
mattress. The sensitivity analysis section below examines how the 
results might change when a discount rate of seven percent is used.

7. Expected Costs of the Standard

    This section presents the expected resource costs associated with 
the standard. Resource costs are costs that reflect the use of a 
resource that would have been available for other uses had it not been 
used in conjunction with the production of mattresses compliant with 
the standard. These costs include material and labor costs; testing 
costs; costs to wholesalers, distributors, and retailers; costs of 
producers' information collection and record keeping; costs of quality 
control/quality assurance programs; and compliance and enforcement 
costs. The effect on retail prices will be discussed in Section 8 of 
this Regulatory Analysis.
    Material and Labor Costs. To comply with the standard, the 
construction of most mattress sets will include a barrier technology 
with improved fire performance. This barrier may be thick (high-loft) 
or thin (sheet). High-loft barriers are generally used to replace some 
of the existing non-woven fiber, foam, and/or batting material, leading 
to a smaller increase in costs than sheet barriers, which constitute an 
addition to production materials (and costs). Producers, therefore, are 
generally using the high-loft barrier for the panel (top of the 
mattress) and mattress and foundation borders. If they are using sheet 
barriers, they limit their use to the bottom of the mattress, replacing 
the no-skid non-FR (fire resistant) sheet used previously.
    According to several barrier producers and mattress manufacturers, 
the price of a high-loft barrier that would make a mattress comply with 
the standard, is around $2.65 per linear yard, defined to have a width 
of 88 to 92 inches. Barrier costs range from $2.00 to $3.30, per linear 
yard. The high-loft barrier replaces the currently-used polyester 
batting, which costs an average of $ 1.15, with a range from $0.55 to 
$1.75, per linear yard. Hence, the net increase in the average cost 
attributed to the use of the high-loft barrier, referred to by the 
industry as the application cost, is $1.50, with a range from $0.25 to 
$2.75 per linear yard, which translates to a net increase in barrier-
related manufacturing costs of $7.95, with a range from $1.33 to 
$14.58, for a queen-size mattress set.\3\ The queen-size is used for 
all the cost estimates, because it is the mode size, used by 34.9 
percent of consumers in 2004.
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    \3\ This calculation is based on the assumption that a queen-
size mattress set requires 5.3 linear yards of the barrier material 
to be used in the two (top and bottom) panels of the mattress and 
the borders of both the mattress and foundation. Some producers are 
able to use less than 5.3 linear yards, which reduces their cost per 
queen mattress set.
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    In addition to the increase in material costs due to the use of a 
barrier, costs will increase due to the use of fire-resistant (FR) 
thread for tape stitching. According to several thread producers, the 
cost of FR thread is $0.51 per queen-size mattress set, with a range 
from $0.41 to $0.60. Given that the cost of nylon (non-FR) thread is 
about $0.10 per queen-size mattress set, the average application cost 
of FR thread (net increase in costs due to the use of FR thread) per 
queen-size mattress set is $0.41, with a range from $0.31 to $0.50.
    Costs may also increase due to slightly reduced labor productivity. 
Based on industry estimates of an average of two labor hours for the 
production of a queen-size mattress set, and a 10 percent reduction in 
labor productivity and an industry average hourly total compensation of 
$22.00, the cost increase due to reduced labor productivity is about 
$4.40. The reduced labor productivity results from the inexperience of 
the workers with the new production methods and should disappear when 
they become familiar with the products and techniques being used.
    The standard requires producers to add a new label to both 
mattresses and foundations that identifies the prototype and the 
possible choice of foundations to be used with a specific mattress. 
This requirement is to ensure that consumers are buying a mattress set 
that was tested as a set, and would thus meet the requirements of the 
standard. This label is required to be separate from any other labels 
already being used and is estimated by industry representatives to 
result in an additional cost of $0.01 for both the mattress and 
foundation. This estimate includes both the material and labor needed 
to add the label.
    The increase in the average materials and labor costs of a mattress 
set is thus equal to the sum of the barrier application cost per 
mattress set, thread application cost, labeling cost, and costs due to 
reduced labor productivity. This sum equals $12.77 ($7.95 barrier cost 
+ $0.41 thread cost + $4.40 labor cost + $0.01 label cost). The 
estimated range for the materials and labor costs is $6.05 to $19.49.
    Costs of Prototype and Confirmation Testing. The standard requires 
each mattress set qualified prototype to be tested in triplicate for 
prototype qualification. According to industry representatives, the 
cost of testing per twin-size mattress set may be about $500: the sum 
of the average cost of the materials and shipping ($100) and the cost 
of the use of the lab ($400). Hence, the cost of testing three mattress 
sets for prototype qualification equals $1500. Additionally, if some 
mattress set prototypes do not pass the first time, then the cost will 
be higher, because additional tests will be done after action is taken 
to improve the resistance of the prototype. If 10 percent of mattresses 
are retested, then the average cost of testing a prototype would be 10 
percent higher, or $1650. This cost is assumed to be incurred no more 
than once per establishment for each prototype. It is expected that a 
qualified prototype will be used to represent a mattress construction 
(e.g., single-sided pillow top) with all subordinate prototypes using 
the same construction (with different sizes (lengths and widths) and 
different ticking materials) being based on the qualified prototype.
    If companies pool their prototypes across different establishments 
or different companies, testing costs would be smaller as all but one 
of the firms/establishments producing to the specification of a pooled 
prototype may just burn one mattress (for the confirmation test) 
instead of three (for the qualified prototype test). Therefore, it is 
expected that the average cost of testing per mattress will be lower 
for firms and/or establishments that pool their results than for those 
that do not.

[[Page 13487]]

    If manufacturers test every mattress construction (e.g., single-
sided pillow top, double-sided pillow-top, tight-top, euro-top, * * * 
etc.), which is estimated, based on conversations with manufacturers, 
to average about twenty per manufacturer, for every establishment in a 
given year, then their average testing cost per mattress would 
approximately equal 82 cents ($1650* 20 styles * 571 establishments/
23.0 million conventional mattresses) per mattress set for the first 
year of production. The standard would allow selling mattress sets 
whose (subordinate) prototypes differ from a qualified (or confirmed) 
prototype only with respect to size (length and width), and/or ticking 
material or other components that do not impact the fire performance of 
the prototype without testing the prototypes, to minimize testing costs 
to all manufacturers, especially those whose volume of output is small. 
Pooling testing results across establishments and/or firms will further 
reduce the average cost of testing per mattress set. On an annual 
basis, testing costs will be further reduced because qualified, 
confirmed, and subordinate prototypes need not be tested every year.
    Cost of Information Collection and Record Keeping. In addition to 
prototype testing, the standard requires detailed documentation of all 
tests performed and their results including video or pictures; 
prototype or production identification number; date and time of test; 
and name and location of testing facility; test room conditions; and 
test data for as long as the prototype is in production and for three 
years after its production ceases. Manufacturers are also required to 
keep records of a unique identification number for the qualified 
prototype and a list of the unique identification numbers of each 
prototype based on the qualified prototype and a description of the 
materials substituted. Moreover, they are required to document the name 
and supplier of each material used in construction of a prototype. 
Additionally, they are required to identify the details of the 
application of any fire retardant treatments and/or inherently fire 
resistant fibers employed relative to mattress components.
    This documentation is in addition to documentation already 
conducted by mattress manufacturers in their efforts to meet the 
cigarette standard. Detailed testing documentation will be done by the 
test lab and is included in the estimated cost of testing. Based on 
CPSC Office of Compliance staff estimates, all requirements of the 
standard are expected to cost an establishment about one hour per 
qualified prototype. Assuming that every establishment will produce 20 
different qualified prototypes, the increase in record keeping costs is 
about $412.20 (1 hour x 20 qualified prototypes x $20.61 average total 
compensation per hour for office and administrative support workers) 
per establishment per year. (Note that pooling among establishments or 
using a qualified prototype for longer than one year will reduce this 
estimate.) This translates to an average cost of 1 cent per mattress 
set for an average establishment, with average output of 40,280 
conventional mattresses.
    Cost of Quality Control/Quality Assurance Programs. To ensure that 
all mattresses are produced to the prototype specification across all 
factories and over the years for which a production line exists, 
mattress manufacturers will need a thorough well-documented quality 
control/assurance program. The top 15 mattress producers (with a market 
share of 83 percent) have existing quality control programs which could 
be modified to fit the new standard with minimal additional costs. 
Smaller producers, whose quality control programs are less detailed or 
non-existent, will incur some incremental costs as a result of the 
standard. These incremental costs will be small for each manufacturer 
and less when measured per mattress set. (See the section on impact of 
the standard on small businesses for a description of their cost of 
quality control and quality assurance programs to them.)
    Additionally, the standard encourages random production testing to 
assure manufacturers that their mattresses continue to meet the 
requirements of the rule, as a possible component of the quality 
control/quality assurance program. Assuming that an average of 3 
mattress set constructions will be tested per establishment per year 
yields an estimated cost of production testing of about $1500. Based on 
this assumption, the estimated cost of testing mattress sets for 
quality assurance purposes, therefore, equals 3.7 cents per mattress 
($1500/40,280) for an average establishment.
    The labor needed to meet the quality assurance measures required by 
the standard is estimated by CPSC Office of Compliance staff to be 224 
minutes per establishment per prototype per year. Assuming that every 
establishment will produce 20 qualified prototypes, the increase in 
labor costs associated with quality assurance requirements of the 
standard is about $1539 (224 minutes x 20 qualified prototypes x $20.61 
average total compensation per hour for office and administrative 
support workers) per establishment per year. (Note that pooling among 
establishments or using a qualified, confirmed, or subordinate 
prototype for longer than one year will reduce this estimate.) This 
yields an average cost of 3.8 cents per mattress set for an average 
establishment, with average output of 40,280 mattresses per year. Hence 
expected total costs of quality assurance/quality control programs may 
average about 7.5 cents (3.7 + 3.8) per conventional mattress set per 
year.
    Costs to Wholesalers, Distributors, and Retailers. An added cost of 
the standard is the increase in costs to wholesalers, distributors, and 
retailers in the form of additional storage, transportation, and 
inventory financing costs. Since a mattress complying with the standard 
will not be bigger than a similar mattress produced before the standard 
becomes effective, storage and transportation costs are not expected to 
increase. Inventory financing costs will increase by the average cost 
of borrowing money, applied to the wholesale price of a mattress over 
the average inventory holding time period. Since most mattress 
producers use just-in-time production and have small inventories, this 
additional cost will probably not exceed ten percent of the increase in 
production cost (which is the sum of material, labor, testing, record 
keeping, and quality assurance costs). A ten percent mark-up is, 
therefore, being used to measure the cost to wholesalers, distributors, 
and retailers. This yields a resource cost to wholesalers, 
distributors, and retailers equal to $1.37, with a range from $0.69 to 
$2.04, per mattress set. Retail prices may increase by more than the 10 
percent mark-up. Section 8 discusses the impact of the standard on 
retail prices of mattress sets.
    Costs of Compliance and Enforcement. Compliance and enforcement 
costs refer to the costs incurred by CPSC to ensure that manufacturers 
are complying with the standard. Based on past experience with the 
existing mattress standard, the estimated CPSC inspection time spent 
per location (establishment) equals 33 hours for inspection and 6 hours 
for sample collection. This yields a cost per inspection of about 
$1,722.63 (39 hours * $44.17, the average wage rate for CPSC 
inspectors). Additionally, compliance officers spend an average of 20 
hours per case, making their cost equal to $1,071.20 (20 hours * 
$53.56, the average hourly wage rate for compliance officers). This 
yields an average compliance and enforcement total labor

[[Page 13488]]

cost of $2,793.83 per inspected establishment per year.
    It should be noted that the expected cost per establishment, if 
less than one hundred percent of establishments are inspected every 
year, equals the cost per inspected establishment times the probability 
that a given establishment will be inspected. Though the probability 
that a given establishment will be inspected in a given year is not 
known, assuming that a third of all establishments will be inspected 
(i.e., about 190 establishments) yields a compliance and enforcement 
total expected labor cost of $931.28 ($2,793.83 * (\1/3\)) per 
establishment per year.
    In addition to labor costs, CPSC will incur testing costs. It 
should be noted that the decision to collect samples after an 
inspection visit is made at the discretion of the investigator and, 
therefore an accurate assumption about the number of samples collected 
and sent for a burn test cannot be made. If, based on inspection, 
samples from 10 percent of all inspected establishments were to be 
collected and sent to a lab for a burn test, and if samples 
representing 5 (qualified, confirmed, or subordinate) prototypes are 
taken from each of these establishments, then the total cost of CPSC 
testing will be $142,750 (5 prototypes * $1,500 (the cost of testing 3 
mattress sets for each qualified prototype) * 19 (10 percent of 
inspected establishments, equal to a third of 571)). These assumptions 
about frequency of testing yield an expected cost of testing per 
establishment of $250 ($142,750/571).
    Therefore the expected total CPSC wage and testing costs associated 
with the standard per establishment per year equal $1,181.28 ($931.28 + 
$250.00). With an average production of 40,280 mattresses per 
establishment (23 million mattresses divided by 571 establishments), 
the average CPSC wage and testing costs equal 2.9 cents per mattress 
set ($1,181.28/40,280). These costs are expected to decrease over time 
as manufacturers learn the requirements of the standard.
    Total Resource Costs. Therefore total resource costs (including 
material costs, labor costs, costs of prototype and confirmation 
testing, paperwork collection and record keeping costs, costs of 
quality control/quality assurance programs, production testing costs, 
costs to wholesalers, distributors, and retailers, and costs of 
compliance and enforcement) are estimated to be $15.07, with a range 
from $7.67 to $22.46, per mattress set. The section on the impact of 
the standard on small businesses and other small entities discusses how 
costs of testing and quality control/quality assurance programs may 
differ for small businesses and strategies that small manufacturers 
might adopt to reduce these costs.
    Projected Future Costs. It is possible that costs associated with 
the standard will decline over time. A supplier of fire resistant 
barriers predicts that the price of the barriers will decline by 40 
percent in the next two years, due to decreased uncertainty and 
increased competition. (They have already dropped significantly since 
TB603 was proposed.) The increase in labor costs due to decreased 
productivity is expected to be temporary and be reduced when workers 
get more training and/or the older machines get replaced with newer 
machines that are more capable of handling the FR thread and material 
used in fire resistant barriers. Moreover, as noted above, prototype 
testing costs are expected to decline after the first year of the 
standard.
    The standard includes an effective date of July 1, 2007. The costs 
reported here are based on the assumption that supplier companies will 
be able to maintain existing capacity. If federal standards for 
bedclothes and upholstered furniture were mandated at the same time and 
input producers were not given enough time to increase their capacity, 
input prices would rise in the short-run because of increased demand 
for the FR material used by all three industries.
    Unquantifiable Costs. A mattress manufacturer indicated that in 
response to an open-flame mattress standard, the number of models/
styles produced may be cut by half. If this response is typical, then 
there may be a reduction in consumers' utility, because of the 
reduction in mattress types that they would have to choose from. Others 
indicate that there will be an aversion to producing double-sided 
mattresses, because it would be harder for them to pass the burn test. 
Double-sided mattresses possibly have a longer expected life than 
single-sided ones. To the extent that consumers prefer double-sided 
mattresses to single-sided mattresses, the shift away from producing 
double-sided mattresses imposes a non-monetary cost. Though 
unquantifiable, this reduction in choices of construction type and 
design is an added cost to consumers of the standard.

8. Benefits and Costs of the Standard

    This section compares benefits and costs of the standard, presents 
a sensitivity analysis, and highlights the impact of the standard on 
retail prices, small businesses, children, and the environment. The 
sensitivity analysis examines the effect of changing some of the 
assumptions used earlier. The analysis shows that net benefits continue 
to be positive under a reasonable range of assumptions about the death 
and injury effectiveness of the standard, the reduction in injuries 
resulting from the standard, the value of a statistical life estimate, 
the discount rate, or the expected mattress life.
    Using an expected mattress life of 10 years and a discount rate of 
3 percent, the mid-point estimates for total benefits, costs, and net 
benefits per mattress set associated with the standard equal $51.25, 
$15.07, and $36.18 respectively per mattress set. The ranges for these 
estimates are $45.04 to $57.46, $7.67 to $22.46, and $22.58 to $49.78 
respectively per mattress set. The lower end of the range for net 
benefits is derived by subtracting the upper end of the range for costs 
from the lower end of the range for total benefits. The upper end of 
the range for net benefits is derived by subtracting the lower end of 
the range for costs from the upper end of the range for total benefits. 
The whole range for net benefits is positive, which means that the 
expected benefits of the standard will exceed the expected costs. The 
sensitivity analysis, which allows the discount rate and the expected 
product life to vary, shows that net benefits remain positive when 
varying assumptions are made.
    Assuming that all mattress sets in California would have complied 
with a standard that is very similar to CPSC's standard, expected 
aggregate lifetime costs, benefits, and net benefits associated with 
one year's production of mattresses are derived by applying the per 
unit cost and benefit of the standard to 89 percent of the estimated 
U.S. market for mattresses (equal to 25.6 million units). The 
sensitivity analysis section below shows aggregate costs, benefits, and 
net benefits of the standard assuming that current production shares 
would continue into the future without the anticipation of a federal 
standard.
    Using a discount rate of three percent and an expected 10-year 
mattress life, aggregate benefits of the standard are expected to be 
$1,024 to $1,307 million ($45.04 to $57.46 per mattress times 89 
percent times 25.6 million mattresses). The mid-point estimate for 
aggregate benefits is $1,166 million. The corresponding expected 
aggregate resource costs of the standard are $175 to $511 million 
($7.67 to $22.46 times 89 percent times 25.6 million). The mid-point 
estimate for aggregate costs is $343 million. The resulting aggregate 
net benefits equal $514 to $1,132

[[Page 13489]]

million ($22.58 to $49.78 times 89 percent times 25.6 million). The 
mid-point estimate for aggregate net benefits is $823 million. For a 
mattress life of 14 years (and a 3 percent discount rate), the mid-
point estimates for aggregate lifetime benefits, costs, and net 
benefits of the standard associated with one year of production are 
$1,179, $343, and $836 million respectively. The expected benefits of 
the standard will accrue for a long period of time and discounted net 
benefits will, therefore, be much greater than net benefits associated 
with only the mattress production in the first year the standard 
becomes effective.
    Sensitivity Analysis. The previous analysis compares benefits and 
costs of the standard using expected mattress lives of 10 and 14 years, 
a discount rate of 3 percent, an expected effectiveness rate of the 
standard of 69 to 78 percent of deaths and 73 to 84 percent of 
injuries, an estimated value of a statistical life of 5 million 
dollars, and an estimated cost of injury of $150,000. It also assumes 
that only mattresses sold in California would have to, and therefore 
will, comply with TB 603, if producers are not anticipating a federal 
standard to be issued in the near future. This section examines the 
effect of changing any of these assumptions on the expected net 
benefits of the standard.
    Comparing expected benefits and costs of the standard, it is clear 
that net benefits are expected to be positive (i.e., expected total 
benefits exceed expected costs) for an average mattress life of 10 or 
14 years. Though increasing the expected mattress life from 10 to 14 
years, while using the 3 percent discount rate, expands the positive 
range of net benefits, it does not affect the conclusion regarding net 
benefits per mattress set. A further increase of the expected life of a 
mattress similarly would not affect the estimate of net benefits. For 
example, using the Product Population Model estimate of the number of 
mattresses in use based on an expected mattress life of 18 years (equal 
to 354.2 million mattresses) yields net benefits of $21.76 to $54.31, 
with a mid-point estimate of $38.04, per mattress set using a discount 
rate of 3 percent.
    Net benefits per mattress set are also positive using discount 
rates of 3 and 7 percent. Using a 3 percent discount rate, the mid-
point estimate of net benefits per mattress set equals $36.18 for an 
average life of 10 years and $36.75 for an average life of 14 years. 
Using a 7 percent discount rate, the mid-point estimate of net benefits 
per mattress set equals $28.95 for an average life of 10 years and 
$26.93 for an average life of 14 years. Assuming a larger discount rate 
reduces net benefits, because future benefits reaped over the life of 
the mattress set contribute less to total discounted benefits.
    Net benefits are based on an estimated value of a statistical life 
equal to $5 million. Changing the estimate used for the value of a 
statistical life does not have a major impact on the results. For 
example, if $3 million, the lower bound estimate in Viscusi (1993), is 
used as an estimate of the value of a statistical life, the mid-point 
estimate of net benefits becomes $18.30 per mattress set (using a 3 
percent discount rate and an estimated mattress life of 10 years).\4\ 
Alternatively, a $7 million estimate, the higher bound estimate in 
Viscusi (1993), yields a mid-point estimate of net benefits equal to 
$54.06 per mattress set (using a 3 percent discount rate and an 
estimated mattress life of 10 years).
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    \4\ The range for net benefits was derived by subtracting the 
upper end of the cost range from the lower end of the benefits range 
to get the lower end of the range of benefits and subtracting the 
lower end of the cost range from the higher end of the benefits 
range to get the higher end of the range for net benefits. Because 
of this method, both ends of the range for net benefits are a very 
unlikely occurrence.
---------------------------------------------------------------------------

    Changing the estimate used for the cost of injury will have minimal 
impact on the results, because the share of benefits from reduced 
injuries is only 13 percent of total benefits. Hence, even if there 
were no reduction in injuries from the standard, the net benefits would 
be $29.64, with a range of $16.91 to $42.37 per mattress set (using a 
mattress life of 10 years and a 3 percent discount rate).
    The analysis assumes that the effectiveness of the standard ranges 
from 69 to 78 percent for deaths and 73 to 84 percent for injuries. 
Even with a lower effectiveness rate, net benefits will remain 
positive. For example, assuming an effectiveness rate of 50 percent for 
deaths and injuries yields net benefits of $9.32 to $28.24 per mattress 
set, with a mid-point estimate of $18.78, and aggregate net benefits of 
$212 to $642 million, with a mid-point estimate of $427 million, from 
all mattress sets produced the first year the standard is mandated and 
sold outside California (using a mattress life of 10 years, a 3 percent 
discount rate, and the same effectiveness for injuries as used in the 
baseline analysis). Also, assuming a smaller number of deaths and 
injuries before the standard is mandated (a smaller baseline risk) 
would still result in positive net benefits. A 50 percent reduction in 
baseline death and injury risks yields net benefits of $0.09 to $20.16 
per mattress set, with a mid-point estimate of $10.12, and aggregate 
net benefits of $2 to $515 million, with a mid-point estimate of $259 
million, from all mattress sets produced the first year the mattress 
standard is mandated (using a mattress life of 10 years, a 3 percent 
discount rate, and the estimated effectiveness measures used in the 
baseline analysis).
    The estimates of aggregate benefits, costs, and net benefits are 
based on the assumption that compliance before the promulgation of the 
standard was limited to California, which represents a market share of 
11 percent. If, instead, we assume that current (October 2005) 
production shares would continue in the absence of the CPSC standard, 
the expected aggregate benefits, costs, and net benefits associated 
with the CPSC standard will decline. Assuming that the top four 
producers continue to produce the same percent of TB 603-complying 
mattress sets that they are now (one producing complying mattress sets 
nationwide, the other three producing 15 percent to 20 percent 
complying mattress sets), while all others produce complying mattress 
sets only in California, then the ranges for the mid-point estimates 
for aggregate benefits, costs, and net benefits are $952 million to 
$981 million, $280 million to $288 million, and $672 million to $692 
million respectively.\5\ These aggregate benefits are associated with 
one year's worth of mattress output. Summing all benefits over all 
mattress output over the time period during which the CPSC standard 
remains effective would result in much more positive benefits than 
indicated here.
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    \5\ These ranges are based on the estimated market share of 
complying mattresses produced by the one producer selling complying 
mattresses nationwide (13.9 percent), the estimated market share of 
the remaining three of the top four producers who are selling some 
complying outside California (43.4 percent), and the estimated 
market share of all remaining producers (42.7 percent). With these 
three groups producing complying mattresses representing all output, 
15 to 20 percent of output, and 11 percent of output (for 
California) respectively, the resulting U.S. market share of 
complying mattresses is 25.1 to 27.3 percent. (Estimated market 
shares are derived from Furniture/Today, May 30, 2005.)
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    Impact on Retail Prices. One of the top four mattress manufacturers 
in the industry has re-merchandised its product lines to lower the 
costs of other materials so that total costs (and prices) are the same 
as they were before the production of mattresses that comply with 
TB603. Other manufacturers have indicated that they will have to 
increase their price which, according to some manufacturers and based 
on reported traditional industry mark-ups, might translate to an 
increase in the retail price to consumers that could reach 
approximately four-fold the increase in manufacturer's costs. Hence the 
average

[[Page 13490]]

increase in the price at which mattress manufacturers are willing to 
sell their products (supply price) will be anywhere between the price 
of a similar mattress without FR material and that price plus four 
times the increase in the costs of production. Given the presence of at 
least one company that will not increase the price, it is unlikely that 
the new average price will be close to the higher end of the range 
because of competition for market share among manufacturers.
    The market (equilibrium) price is determined by the intersection of 
consumers' willingness to buy and producers' willingness to sell the 
product at different prices. The value the equilibrium price will take 
(relative to the price before the introduction of fire resistant 
mattress sets) will be affected by the change in the demand and supply 
curves for fire resistant mattress sets and their relative 
elasticities. Assuming that the demand curve is unaffected, the 
equilibrium price will reflect the price elasticity of demand (i.e. the 
sensitivity of the change in the quantity demanded to the change in 
price) as well as the shift in supply. In the short-run, consumers have 
a relatively elastic demand curve, because they can always postpone the 
purchase of a durable good, and therefore the increase in the 
equilibrium price is expected to be much lower than the increase in the 
supply price (what producers would want to sell the same number of 
mattress sets for). Because of the relatively high elasticity of 
demand, sales are likely to decrease in the short-run. In the long-run, 
the demand curve is less elastic, and therefore the equilibrium price 
and quantity (sales) will be higher than the short-run price and 
quantity.
    Given the availability of mattresses whose retail prices will not 
increase and the competitive nature of the industry, it is possible 
that, on average, prices will rise by about twice the costs associated 
with the standard (i.e., retail price mark-up will average about twice 
the increase in manufacturing costs). Under this assumption, consumers 
would pay an additional mark-up of 10 percent (the cost to wholesalers, 
distributors, and retailers) to 100 percent of total production costs, 
applied to the total production cost per mattress set. Hence the range 
for the price increase is $7.64 ($6.95*1.1) to 40.78(20.39*2), with a 
mid-point estimate of $24.21, per mattress set (compared to the price 
they would have paid for a current mattress set that does not comply 
with the standard). Assuming that the demand curve for mattresses is 
unaffected by the standard, some consumers will choose not to purchase 
(or at least delay the purchase of) a new mattress set. These consumers 
who delay or choose not to purchase a new set will not be getting the 
value (or benefits) that they would have gained from purchasing a new 
set. This loss, though difficult to quantify, is sometimes measured as 
a loss in consumer surplus (McCloskey, 1982).
    It is unlikely, however, that the post-standard demand curve for 
mattresses will be the same as the current demand. Early 2004 market 
observations indicate consumer and retail enthusiasm about the fire 
resistant mattresses already available for sale (Furniture Today, April 
26th, 2004). If this enthusiasm generally reflects consumers' 
preferences, then the demand for mattresses may increase. This would 
tend to offset any reduction in mattress sales and possible losses in 
consumer surplus.
    Impact on Small Businesses and Other Small Entities. The increase 
in material and labor costs to meet the standard is not likely to be 
dependent on a firm's size and will therefore not disproportionately 
affect small businesses. The cost imposed disproportionately (per unit 
produced) on small businesses will be the cost of testing, information 
collection and record keeping and quality control/quality assurance 
programs. While these costs are estimated to be a little less than one 
dollar per mattress set per year for average-sized establishments, they 
could be substantially higher for small mattress manufacturers.
    The rule allows two or more establishments (plants within the same 
firm) or independent firms to ``pool'' prototypes. This reduces the 
cost of testing because only one of the pooling firms is required to 
test three sets (for a qualified prototype) with all remaining firms 
testing one set (for a confirmation test). The standard would also 
allow selling mattress sets based on subordinate prototypes and 
differing from a qualified prototype only with respect to size (length 
and width), and/or ticking material or other components that do not 
impact the fire performance of the prototype without testing the 
prototypes, to minimize testing costs to all manufacturers, especially 
those whose volume of output is small. Moreover, costs could be reduced 
if a qualified, confirmed, or subordinate prototype is used to produce 
mattress set styles for longer than a year. Furthermore, firms with 
more than one establishment (or different firms) may be able to reduce 
costs by pooling their quality control programs over all 
establishments.
    Use of prototype pooling across establishments and firms would 
ameliorate the impact of the standard on small businesses. By getting 
together across different states and regions, small manufacturers who 
do not share a common market (and therefore do not compete with each 
other) can resemble a large producer in their testing and quality 
control/quality assurance efforts and therefore reduce their costs per 
mattress set. It is also expected that some barrier suppliers would be 
willing to do the testing and quality control/assurance programs for 
small manufacturers in exchange for a small charge, which will be 
similar to the average cost per mattress for large businesses, because 
the volume of output will be large.
    To reduce the impact of the standard on small businesses, CPSC 
eliminated the requirement of keeping physical samples. This reduced 
the average annual record keeping cost per establishment (assuming that 
they produce 20 different prototypes) from $767 to $412.
    Impact on the Environment. The extraction, processing, refinement, 
and conversion of raw materials to meet the standard involve energy 
consumption, labor, and the use of potentially toxic chemicals. Most 
manufacturing has some impact on the environment, and manufacturing 
fire resistant mattresses is no exception. Because the standard is a 
performance standard, it does not restrict manufacturers' choice of 
fire resistant materials and methods that could be used in the 
production of mattresses. There appear to be several economically 
viable options to meet the standard that, based on available 
information, do not impose health risks to consumers or significantly 
affect the environment. (See discussion at Section M of this preamble.)
    Impact on Children. Deaths and injuries among children constitute a 
substantial proportion of mattress-related fire losses, and of the 
potential benefits of the standard. A CPSC staff report, based on a 
field investigation study in 1995 to learn more about cigarette-ignited 
fires and open-flame fires, found that 70 percent of open-flame fires 
involved child play and that child play was involved in 83 percent of 
the 150 deaths of children less than five years of age. A National 
Association of State Fire Marshals 1997 study also indicated that 66 
percent of the small open-flame ignitions were reportedly started by 
children under the age of 15 (21 percent by children under 5).
    For virtually all of the fires started by children less than 15 
years of age, the ignition was not witnessed by an adult

[[Page 13491]]

(Boudreault and Smith, 1997). Reducing the likelihood of flashover in 
the first 30 minutes of the fire may therefore benefit children 
disproportionately, as it allows enough time for adults to detect the 
fire and save young children in close proximity to the fire. Also 
children between 5 and 9 who sometimes do not cooperate with adults and 
run away from adults to other parts of the occupancy will have enough 
time to be found and rescued by an adult.
    The Epidemiology staff's memorandum shows that, based on national 
fire estimates for the years 1999-2002, the standard would reduce 
deaths and injuries to children ages 5 and younger by 77 to 87 percent 
and 59 to 73 percent respectively. Deaths and injuries to children ages 
5 to 14 were estimated to be reduced by 83 to 92 percent and 80 to 89 
percent respectively. This represents a total of 70 deaths of children 
less than 15 years of age per year for the 1999 to 2002 period. It also 
represents 240 to 280 injuries to children less than 15 years of age 
for the same period.

9. Alternatives to the Standard

    Alternative Maximum Peak Heat Release Rate (PHRR) and Test 
Duration. The initial California TB 603 proposal required the duration 
of the test to be 60 minutes with a maximum peak heat release rate 
(PHRR) of 150 kW. Following industry opposition to this proposal, the 
California Bureau of Home Furnishings and Thermal Insulation changed 
the criterion to a maximum of 200 kW PHRR in the first 30 minutes, the 
requirement for both the CPSC standard and the current TB 603.
    Increasing the duration of the test and reducing the PHRR would, 
according to several input suppliers, increase the production costs to 
manufacturers of a queen mattress set by $15.42 to $46.88, with a mid-
point estimate of $31.15, compared to non-complying products (i.e., 
those not conforming to the standard.) Adding the costs to wholesalers, 
distributors, and retailers, and of CPSC compliance efforts, yields a 
total resource cost of the stricter standard (150 kW and 60 minutes) of 
$17.00 to $51.61, with a mid-point estimate of $34.30. (The resource 
cost is the sum of the production cost, cost to wholesalers, 
distributors, and retailers, and CPSC compliance cost). This represents 
a marginal increase in average resource costs of $19.24 over the mid-
point estimate of the costs associated with the final standard.
    Potential benefits of the stricter standard could be higher than 
the standard, but the extent is uncertain. Given an effectiveness rate 
of the standard of 69 to 78 percent for deaths and 73 to 84 percent of 
injuries, the additional benefits of stricter test requirements are 
limited. Using the mid-point estimate of these effectiveness ranges 
(73.5 percent for deaths and 78.5 percent for injuries) and assuming 
that the stricter standard eliminates 50 percent of the remaining 
addressable deaths and injuries (i.e., it saves 46 additional lives and 
prevents 167 additional injuries), then an additional benefit of about 
$8.34 per mattress set is expected. This additional benefit may be 
lower than the expected associated costs of $19.24 and thus reduce net 
benefits.\6\ Moreover, a small increase in net benefits may not justify 
the large increase in retail price that would result from a stricter 
standard.
---------------------------------------------------------------------------

    \6\ These cost estimates (and the resulting marginal increase) 
should be viewed as approximate since no extensive tests of the 
barriers have been conducted for 60 minutes, as most manufacturers 
are focused on meeting the California requirements, which are less 
strict. Input suppliers generally do not assemble and test large 
numbers of mattresses, and may therefore underestimate reduced labor 
productivity and/or reduced output per machine (compared to a 
maximum PHRR of 200kW for a 30-minute test) due to handling the 
thicker, denser barrier. A number of mattress producers estimate 
that to meet the stricter standard, manufacturing costs would 
increase $50 to $70 for a queen-sized set (Furniture/Today, July 21, 
2004).
---------------------------------------------------------------------------

    Such increase in costs would likely result in consumers facing 
higher mattress set prices. Based on traditional industry mark-ups, the 
new price may reflect a two-to four-fold increase over the increase in 
production costs, depending on the relative elasticity of demand and 
supply for mattress sets. This yields a total increase in the average 
price of a queen mattress set of $30.84 (2 times the lower end of the 
range for the increase in production costs, equal to $15.42) to $187.52 
(4 times the upper end of the range for the increase in production 
costs, equal to $46.88), with a mid-point estimate of $109.18. A 
bedding official estimated that the price increase resulting from the 
stricter standard may reduce sales by 25 percent or more (Furniture/
Today, July 21, 2004).
    The larger increase in prices (compared to the less strict test) 
and the resulting reduction in sales could drive some of the smaller 
producers out of business. (The stricter standard is more likely to 
require replacing some existing machines to accommodate the denser 
barrier material, which would be disproportionately more costly for 
smaller firms whose machinery is older and less sophisticated.) Since 
mattress sets are durable goods, one would expect a larger drop in 
sales in the short-run than in the long-run, as consumers choose to 
keep their old mattress sets longer than before. This would make the 
reduction in sales more pronounced in the short-run, increasing the 
likelihood that some firms may exit the market. Moreover, if a large 
number of consumers choose to extend the life of their mattress sets 
for a longer time period, it will take longer to achieve the benefits 
expected to be associated with the safer mattress sets.
    Alternative Total Heat Released in the First Part of the Test. TB 
603 requires the total heat released during the first 10 minutes of the 
test to not exceed 25 MJ. The stricter criterion of the standard (15 MJ 
in the first 10 minutes) reduces the expected size of the initial fire 
and hence allows consumers a greater chance to escape the fire and get 
out of the room, even if the room never reaches flashover. The 
effectiveness rates presented in the analysis are based on the stricter 
criterion. Using the TB 603 criterion (25 MJ in the first 10 minutes) 
would likely reduce estimated benefits (the estimated reductions in 
deaths and injuries), without having any significant effect on costs. 
According to several producers, mattress sets that use existing barrier 
technology release total heat that is far below the 25 MJ requirement 
of TB 603. Therefore, using the TB 603 criterion for the total heat 
released would not change costs but could potentially reduce the 
benefits and, hence, the net benefits of the standard.
    Moreover, because of the small fuel load of ticking materials 
currently being used, the lower total heat release requirement allows 
the production of mattress sets based on a prototype that has not been 
tested as long as it differs from a qualified prototype only with 
respect to ticking and the ticking material is not part of the fire 
resistance solution. Requiring a test for every prototype with a 
different ticking was rejected by the CPSC because of the magnitude of 
the burden it would impose on small producers who do not produce large 
numbers of any one prototype and who would have been adversely affected 
by these requirements.
    Alternative Testing Requirements. With certain exceptions discussed 
above, the standard requires prototype testing (of three mattress sets) 
before a manufacturer starts production of a given mattress design and 
a confirmatory test of one mattress for any other establishment or firm 
relying on that qualified prototype through a pooling arrangement. 
Though production testing is encouraged by the standard, it is not 
required as a possible component of the quality assurance

[[Page 13492]]

program, and no specific frequency is set.
    As an alternative, the Federal standard could, like TB 603, omit 
testing or prototype definition requirements. Without testing, however, 
it might be difficult for manufacturers to know whether their 
mattresses will comply with the standard. Alternatively, the standard 
could require production testing with a specified frequency. This 
specification, however, could result in unnecessary costs if they are 
not justified given the quality control measures generally undertaken 
by manufacturers in the absence of the standard. Requiring more tests 
per establishment, prototype, or enterprise would increase the 
estimated costs per mattress and could reduce net benefits.
    Alternative Effective Date. The effective date in the standard is 
July 1, 2007. Given the length of time needed to ensure the 
availability of inputs for the production of barrier materials, 
availability of barriers for mattress producers, and a sufficient 
volume of inventories at retailers' showrooms, an earlier effective 
date may result in higher input costs to manufacturers. More 
importantly, it is expected that smaller manufacturers will be 
disproportionately affected, as they are more likely to wait to invest 
in development efforts until the technology is developed by larger 
firms, or until the standard becomes effective. The Commission chose 
the July date to coincide with the cycle for introduction of new 
mattress models, as suggested by the public comments.
    A later effective date (longer than 18 months) could reduce 
expected net benefits as more fires, deaths, and injuries associated 
with mattresses would occur between the date of publication in the 
Federal Register and the date the standard becomes effective. The 
Commission is unaware of evidence that small manufacturers would 
benefit from extending the effective date further into the future. The 
staff requested comments from small businesses on the expected economic 
impact of the effective date and received one comment from a small 
business owner indicating that his firm would need more than twelve 
months to meet the standard. By the time the final standard takes 
effect, it would be nearly 18 months after publication of the Federal 
Register notice of the final rule. This should provide enough time for 
the commenter to transition to producing compliant mattress sets.
    Taking No Action or Relying on a Voluntary Standard. If the 
Commission chose to take no action, only 11 percent of all mattress 
sets produced in the United States would have to comply with a standard 
that is very similar to the CPSC standard (California's TB 603). It is 
uncertain whether there will be any incentive for producers outside 
California to incur additional costs to produce mattress sets that 
would comply with California's TB 603. Consequently, how much, if any, 
of the remaining 89 percent of production would comply is uncertain. 
One of the largest four producers is currently producing mattress sets 
that comply with the CPSC standard. The other three top producers were 
selling complying mattress sets that represent between 15 to 20 percent 
of their total output in October, 2005. It is not clear, however, that 
any of these producers would continue to sell complying mattress sets 
outside California if they were not anticipating a future promulgation 
of a federal standard. Moreover, the absence of a federal standard may 
lead other states to develop their own standard, which would result in 
unnecessary burden (in terms of higher production costs) on 
manufacturers selling mattress sets in different states with different 
flammability requirements. Hence, expected aggregate net benefits 
associated with CPSC's standard are higher than the net benefits that 
result from taking no action and only relying on the California 
standard.
    No effort has been undertaken to develop a voluntary standard. 
Furthermore, industry representatives support a mandatory standard to 
level the playing field among domestic producers (large and small) and 
importers. If a voluntary standard were developed, the economic burden 
would fall primarily on the larger firms (who would likely be the first 
to comply), their market shares could be reduced and benefits to 
consumers (in terms of reduced deaths and injuries) would likely 
decline accordingly.
    Labeling Requirements Instead of Performance Standard. The 
Commission could require labeling on mattresses to warn consumers in 
lieu of a standard. Requiring warning labels is not considered an 
effective option for reducing the risk of fires. Since mattress labels 
are usually covered by bedclothes and may not be seen by the mattress 
users, mandating warning labels on mattress sets is unlikely to be an 
effective alternative to a performance standard. Moreover, fires 
started by children who cannot read or do not change the bed sheets 
will not be reduced by a labeling requirement. Hence, while labeling 
costs are probably negligible, labels alone are unlikely to reduce 
mattress fires significantly.

J. Paperwork Reduction Act

    The standard will require manufacturers (including importers) of 
mattress sets to perform testing and maintain records of their testing 
and quality assurance efforts. For this reason, the rule contains 
``collection of information requirements,'' as that term is used in the 
Paperwork Reduction Act, 44 U.S.C. 3501-3520. Therefore, the NPR 
discussed the paperwork burden of the proposed rule and specifically 
requested comments on the paperwork burden of the proposal. As 
discussed in section H above, the Commission received comments 
concerning testing costs (particularly for small producers) and 
generally on the costs of meeting the standard. As noted above, the 
Commission accepted several of the suggestions of commenters and has 
made some changes that should reduce the testing, quality assurance and 
recordkeeping burden for manufacturers (eliminated requirement for 
physical samples and timed the effective date to coincide with 
development of new models). The agency has applied to OMB for a control 
number for this information collection, and it will publish a notice in 
the Federal Register providing the number when the agency receives 
approval from OMB.

K. Final Regulatory Flexibility Analysis

1. Introduction

    The Regulatory Flexibility Act (``RFA'') generally requires that 
agencies review proposed rules for their potential economic impact on 
small entities, including small businesses. 5 U.S.C. 603. Section 603 
of the RFA calls for agencies to prepare and make available for public 
comment an initial regulatory flexibility analysis describing the 
impact of the proposed rule on small entities and identifying impact-
reducing alternatives. Accordingly, the Commission published in the NPR 
a summary of an initial regulatory flexibility analysis that was 
prepared by the staff for the mattress proposed rule. The staff 
reviewed the initial regulatory flexibility analysis and prepared a 
final regulatory flexibility analysis as required by the RFA, which is 
summarized below. [8]

2. Need for and Objectives of the Rule

    As discussed above, the standard is intended to reduce deaths and 
injuries resulting from residential fires involving mattresses ignited 
by open flame sources. The Commission estimates that the standard will 
substantially reduce the incidence and cost of these fires by 
minimizing the possibility of or

[[Page 13493]]

delaying the time for flashover conditions to occur.

3. Significant Issues Related to Small Business Raised by Comments on 
the NPR

    Significant comments and the Commission's responses to them are 
discussed in section H of this preamble. Three issues in particular 
could be of concern to small business.
    Effective date. One commenter suggested that the effective date 
should coincide with the time when manufacturers make regular model 
changes (January or July). The Commission is accepting this suggestion, 
and the standard provides for an effective date of July 1, 2007. This 
will make it easier for all producers, but especially small producers 
outside of California who are not producing complying mattresses, to 
update their styles and produce complying mattresses.
    Expected cost of meeting the standard. The Commission received 
comments from companies concerned about the cost of complying with the 
standard, some from small businesses. As discussed in the regulatory 
analysis above, adding all other resource costs (including reduced 
productivity, cost of testing, record keeping, quality assurance costs 
and compliance costs) results in costs ranging from $7.67 to $22.46, 
with a mid-point estimate of $15.07, per (queen) mattress set. These 
cost estimates are expected to drop as a result of technological 
developments and increased competition among barrier producers.
    Impact on small business. Six commenters addressed the impact on 
small businesses. The small producers expressed concern over the burden 
of testing costs and the feasibility of producing complying mattress 
sets in twelve months. The standard's testing, recordkeeping, and 
quality control/assurance requirements may have a disproportionate 
impact on small manufacturers because they are generally required per 
firm or per prototype and therefore would constitute a larger percent 
of total revenues, sales, and value added for the smaller firms. The 
standard's provisions for prototype pooling and selling variations of 
mattress sets without additional testing in certain situations should 
minimize the adverse impact on small manufacturers. Moreover, if a 
particular qualified, confirmed, or subordinate prototype was used to 
produce mattress sets for more than one year, then the testing cost 
would be reduced. The increase in time needed to produce a mattress set 
is expected to decline as workers get more experienced in producing the 
new models. Staff currently estimates the additional time (and wages) 
to average 10 percent, with the expectation that it will decline over 
time.
    One small producer suggested that producers under a certain dollar 
volume be permitted to continue testing under 16 CFR 1632. However, 
this is not feasible because it would not protect consumers from the 
risk of fires, deaths, and injuries associated with open flame 
ignitions; it would also give small producers an unfair advantage over 
medium-sized producers.
    The two barrier producers who commented on the NPR asserted that 
the costs of meeting the proposed standard are low, with one stating 
that there is ``zero economic impact on small business due to the wide 
breadth and variety of FR barrier products being offered to the 
market.'' A barrier producer suggested only testing one mattress set if 
the peak heat release rate (PHRR) does not exceed 50 megajoules (MJ) in 
the first 30 minutes. This suggestion would reduce the cost of testing 
to all producers, but might not provide an adequate measure of 
compliance with the standard.

4. Firms Subject to the Standard

    The standard covers producers and importers of mattresses. There 
were 522 mattress firms and 607 mattress establishments in 2002, 
according to the Statistics of U.S. Businesses, Census Bureau data. 
(According to the Economic Census data, the number of mattress 
establishments was 571 for 2003.) All but the largest twelve firms had 
fewer than 500 employees. The U.S. Small Business Administration's 
Office of Advocacy defines a small business as one that is 
independently owned and operated and not dominant in its fields. A 
definition for the mattress manufacturing industry that is used by the 
Small Business Administration and is less subject to interpretation is 
a firm with fewer than 500 employees. The latter definition classifies 
97.7 percent ((522-12)/522) of all mattress firms as small businesses.
    Average employment per firm for the whole industry is 46.2 
employees. Average employment for the 1 to 4 employees per enterprise 
group, which represents 22.41 percent of all firms, is 2.1 employees. 
Average employment for the less than 20 employees per enterprise group, 
which represents 60.54 percent of all firms, is 6.9 employees. Hence 
more than half of mattress firms have less than 20 employees.

5. Reporting, Recordkeeping and Other Compliance Requirements of the 
Standard and Possible Impacts on Small Businesses

    The standard is a performance standard, not a design standard, and 
hence allows producers to choose the technology to meet the mattress 
set test requirements. With the exceptions discussed in the preamble 
above, all mattress sets subject to the standard must be tested in 
prototype and meet the specified performance requirements before 
production. Manufacturers are required to keep records of all tests 
performed and their results. The recordkeeping requirements are 
described in detail in the Regulatory Analysis in section I above.
    The increase in the average materials and labor costs of a mattress 
set that meets the standard (estimated in the regulatory analysis to be 
$12.77, with a range of $6.05 to $19.49 per mattress set) is not likely 
to be dependent on a firm's size and will therefore not 
disproportionately affect small businesses. Larger firms are bearing 
all the capital investment costs of research and development, sharing 
some of these costs with input suppliers. Most smaller firms will 
simply buy from the suppliers a barrier solution, which has been tested 
extensively and is known to meet the standard. The price these smaller 
firms pay to cover the development and testing costs are borne by the 
supplier but will not have a disproportionate adverse impact on the 
small firms, because the price is not measured relative to their small 
output, but relative to the supplier's output. Other smaller firms may 
combine their development efforts to be able to benefit from dividing 
the costs over a larger number of firms. Finally, small mattress 
producers that do not assemble the mattress panels (the quilted 
assembly, including ticking, batting material, and barrier, used to 
cover the contents of the mattress construction), but buy them from a 
panel supplier are effectively combining all their output in a 
``pooling'' arrangement. This is because the panel supplier will be 
responsible for including a barrier in the panel assembly and will pass 
that cost on to the mattress producers, again not disproportionately 
impacting the small producers who buy the already assembled panels.
    The costs more likely to be imposed disproportionately (per unit 
produced) on small businesses will be the costs of testing, information 
collection and record keeping, and quality control/quality assurance 
programs. While the regulatory analysis estimates these costs

[[Page 13494]]

(including the cost of compensating office and administrative support 
workers for record-keeping and quality control/quality assurance 
requirements) to be less than one dollar per mattress set per year for 
average-sized establishments, they could be substantially higher for 
some small mattress producers. To reduce the impact on small 
businesses, the Commission eliminated the requirement of keeping 
physical samples, included in the proposed standard. This reduced the 
average record keeping cost per establishment (assuming that they 
produce 20 different prototypes) from $767 to $412.

6. Steps Taken To Minimize the Economic Impact of the Standard on Small 
Entities

    As discussed above, the standard allows pooling of prototypes, 
which reduces the cost of testing because only one of the pooling firms 
is required to test three sets (for a qualified prototype) with all 
remaining firms testing one set (for a confirmation test). The standard 
also allows certain changes to be made without additional testing, 
which will minimize testing costs. Costs could also be reduced if a 
qualified, confirmed, or subordinate prototype is used to produce 
mattress set styles for longer than a year. Furthermore, firms with 
more than one establishment (or different firms) may be able to reduce 
costs by pooling their quality control programs over all 
establishments. Thus, pooling across establishments and firms will 
ameliorate the standard's impact on small businesses.
    In response to a comment from the mattress producers' association, 
ISPA, the standard now provides an effective date of July 1, 2007. 
Providing an effective date that coincides with regular model/style 
changes will also minimize the impact on small producers because it 
will make it easier for all producers (but especially small producers 
outside of California who are not producing complying mattress sets) to 
update their styles and produce complying mattress sets.
    Finally, elimination of the requirement for keeping physical 
samples will also reduce the impact of the standard on small businesses 
(it reduced the average record keeping cost per establishment (assuming 
that they produce 20 different prototypes) from $767 to $412).
    Compared to all other alternatives considered, the standard 
minimizes the impact on small businesses.

7. Alternatives to the Standard

    Alternative Maximum Peak Heat Release Rate (PHRR) and Test 
Duration. One alternative would be to issue a standard with criteria 
like those initially proposed in the California TB 603 proposal (a 
maximum PHRR of 150kW and test duration of 60 minutes). As discussed in 
the regulatory analysis, this would increase the resource costs to 
manufacturers (the total resource cost of a stricter standard (150 kW 
and 60 minutes) would result in a marginal increase in costs averaging 
$19.24 over the mid-point estimate of costs associated with the 
standard).
    Potential benefits of a stricter standard could be higher than the 
standard, but the extent is uncertain and a stricter standard would 
likely reduce net benefits. Moreover, a small increase in net benefits 
may not justify the large increase in retail price that would result 
from a stricter standard. Also, the larger increase in prices could 
reduce sales and drive some of the smaller manufacturers out of 
business.
    Alternative Total Heat Released in the First Part of the Test. 
CPSC's standard sets a limit of 15 MJ in the first 10 minutes while TB 
603 limits the total heat released during the first 10 minutes of the 
test to 25 MJ. The Commission could adopt the criterion of TB 603. 
However, this would likely reduce estimated benefits without having any 
significant effect on costs. According to several producers, mattresses 
that use existing barrier technology release total heat that is far 
below the 25 MJ requirement of TB 603. Therefore, using the TB 603 
criterion for the total heat released would not change costs but could 
potentially reduce the benefits and, hence, the net benefits of the 
standard.
    Moreover, it would limit manufacturers' ability to change tickings 
without additional testing, thus increasing testing costs which would 
be particularly burdensome for small manufacturers who do not produce 
large numbers of any one prototype.
    Alternative Testing Requirements. With certain exceptions discussed 
above, the standard requires prototype testing (of three mattress sets) 
before a manufacturer starts production of a given mattress design and 
a confirmatory test of one mattress if more than one establishment or 
firm are pooling their results. Though production testing is encouraged 
by the standard, it is not required. As an alternative, the Federal 
standard could, like TB 603, omit testing or prototype definition 
requirements. Without testing, however, it might be difficult for 
manufacturers to know whether their mattresses will comply with the 
standard. Alternatively, the standard could require production testing 
with a specified frequency. This specification, however, could result 
in unnecessary costs if they are not justified given the quality 
control measures generally undertaken by manufacturers in the absence 
of the standard. Requiring more tests per establishment, prototype, or 
enterprise would increase the estimated costs per mattress and could 
reduce net benefits.
    Alternative Effective Date. The effective date in the standard is 
July 1, 2007. An earlier effective date could result in higher input 
costs to manufacturers. Moreover, it is expected that smaller 
manufacturers will be disproportionately affected, as they are more 
likely to wait to invest in development efforts until the technology is 
developed by larger firms, or until the standard becomes effective. The 
Commission chose the July date to coincide with the cycle for 
introduction of new mattress models, as suggested by the public 
comments.
    A later effective date (longer than 18 months) could reduce 
expected net benefits. The Commission is unaware of evidence that small 
manufacturers would benefit from extending the effective date further 
into the future. The Commission received one comment from a small 
business owner indicating that his firm would need more than twelve 
months to meet the standard. By the time the final standard takes 
effect, it would be nearly 18 months after publication of the final 
rule in the Federal Register. This should be enough time for the all 
manufacturers to transition to producing compliant mattress sets.
    Taking No Action or Relying on a Voluntary Standard. If the 
Commission chose to take no action, only 11 percent of all mattress 
sets produced in the United States would have to comply with a standard 
that is very similar to the CPSC standard (California's TB 603). How 
much, if any, of the remaining 89 percent of production would comply is 
uncertain, and without a federal standard other states may develop 
their own standards, which would result in unnecessary burden (in terms 
of higher production costs) on manufacturers selling mattress sets in 
different states with different flammability requirements. Hence, 
expected aggregate net benefits associated with CPSC's standard are 
higher than the net benefits that result from taking no action and only 
relying on the California standard.
    No effort has been undertaken to develop a voluntary standard, and

[[Page 13495]]

industry representatives support a mandatory standard. If a voluntary 
standard were developed, the economic burden would fall primarily on 
the larger firms (who would likely be the first to comply), their 
market shares could be reduced and benefits to consumers (in terms of 
reduced deaths and injuries) would likely decline accordingly.
    Labeling Requirements. The Commission could require labeling on 
mattresses to warn consumers in lieu of a standard. However, as 
discussed in the Regulatory Analysis above, requiring warning labels is 
not considered an effective option for reducing the risk of fires. 
Thus, while labeling costs are probably negligible, labels alone are 
unlikely to reduce mattress fires significantly.

8. Summary and Conclusions

    The standard to address open-flame ignition of mattress sets will 
affect all mattress manufacturers. Almost all of these firms would be 
considered small businesses, using the Small Business Administration 
definition. Material and labor costs for all firms are expected to 
initially increase on average by $6.05 to $19.49, with a mid-point 
estimate of $12.77, per mattress set produced. These cost increases are 
expected to be borne equally by all firms and hence do not have a 
disproportionate adverse impact on the smaller mattress producers. 
These costs are expected to decline in the future due to improved 
technology of producing fire resistant materials and increased 
competition among suppliers of inputs used by the mattress industry.
    Testing, record keeping, and quality control/quality assurance 
requirements may have a disproportionate impact on small manufacturers 
because they are generally required per firm or per prototype and 
therefore would constitute a larger percent of total revenues, sales, 
and value added for the smaller firms. To minimize the adverse impact 
on small manufacturers, the standard provides for prototype pooling 
among different establishments within the same firm and among different 
firms. The standard would also allow selling mattress sets based on 
subordinate prototypes that differ from a qualified prototype only with 
respect to size (length and width), and/or ticking material or other 
components that do not impact the fire performance of the prototype 
without testing the subordinate prototypes, to minimize testing costs 
to all manufacturers, especially those whose volume of output is small.
    Compared to other effective alternatives considered, the standard 
minimizes the impact on small businesses. The only alternatives that 
might have a lower adverse impact on small business are labeling or 
doing nothing. Either alternative would be ineffective in reducing the 
fires, deaths, and injuries associated with mattresses.

L. Health Effects Issues Concerning the Use of Flame Retardants

    As discussed above, some commenters raised concerns about possible 
health effects from flame retardants (``FR'') that manufacturers may 
use to meet the standard. The staff considered this issue when 
developing the proposed rule and prepared a preliminary qualitative 
assessment of the potential risk of health effects from exposure to FR 
chemicals that may be incorporated in mattresses to meet the proposed 
standard. Five FR chemicals/chemical classes (i.e., antimony trioxide, 
boric acid/zinc borate, decabromodiphenyl oxide, melamine, and 
vinylidene chloride) were reviewed (at the time, data on potential 
exposures to FR chemicals in mattresses was not available). The staff 
concluded that, based on available information, FR chemicals and flame 
resistant materials were available that could be used to meet the 
proposed mattress standard without posing any unacceptable risk to 
consumers.
    After publication of the NPR the staff continued its analysis of 
possible environmental or health effects. That analysis is provided in 
the staff's ``Quantitative Assessment of Potential Health Effects from 
the Use of Fire Retardant (FR) Chemicals in Mattresses,'' which is 
discussed below. [11] The staff provided this assessment for peer 
review. [16] The staff's report, the comments of the reviewers and the 
staff's responses are available on CPSC's Web site.
    To quantify the amount of FR chemical(s) that may be released from 
the barriers, the staff conducted migration/exposure assessment studies 
on selected FR-treated mattress barriers. These barriers were treated 
with a variety of FR chemicals including: antimony trioxide (AT), boric 
acid, decabromodiphenyl oxide (DBDPO), melamine, ammonium 
polyphosphate, and vinylidene chloride. The exposure studies were 
conducted in three sequential phases to estimate exposures from dermal 
absorption, ingestion, and inhalation. The staff measured the total 
amount of FR chemical present in the barrier and the potential 
migration of the FR chemical(s) in the barrier to a surrogate material 
for skin, to estimate dermal absorption. Tests were also done to 
determine the amount of FR chemical that may be ingested. Finally, the 
airborne particle-bound release of the FR chemical(s) from the barrier 
during tests simulating normal use over 10 years was used to estimate 
potential inhalation exposures. The staff also conducted limited aging 
studies to assess the effects of environmental factors, such as heat 
and humidity, on the release of airborne particle-bound FR chemicals.
    The staff quantitatively assessed all applicable routes of exposure 
(i.e., dermal, oral, and inhalation) for the FR chemicals for which 
migration/exposure data were available and determined the potential 
risk associated with exposure to these FR chemicals. The analysis 
included estimates of average exposure, as well as the reasonable upper 
bound exposures. Staff evaluated potential exposure through all three 
routes combined, as well as individually. The staff's studies and 
analyses applied conservative assumptions in areas of scientific 
uncertainty, that is, assumptions that tend to overestimate exposure 
and risk.
    Based on this risk assessment, the staff concludes that AT, boric 
acid, and DBDPO would not present any appreciable risk of health 
effects to consumers who sleep on treated mattresses. The estimated 
hazard index values for these compounds are all substantially less than 
one under all exposure conditions. As for vinylidene chloride, no 
detectable concentrations were found, even in the staff's initial 
extreme extraction studies. Thus, it is considered unlikely that 
significant quantities of this compound will be released from mattress 
barriers. Since melamine and ammonium polyphosphate do not satisfy the 
FHSA definition of ``toxic,'' these compounds are not expected to 
present any appreciable risk of health effects to consumers, and 
therefore, were not tested extensively.
    The results of this exposure and risk assessment of the selected FR 
treatments suggest that there are a number of commercially available 
FR-treated barriers that can be used to meet the standard that are not 
expected to present any appreciable risk of health effects to consumers 
who sleep on mattresses that comply with the standard.

M. Environmental Considerations

    Usually, CPSC rules establishing performance requirements are 
considered to ``have little or no potential for affecting the human 
environment,'' and environmental

[[Page 13496]]

assessments are not usually prepared for these rules (see 16 CFR 
1021.5(c)(1)). However, because manufacturers may need to use more 
inherently flame resistant materials or incorporate flame retardant 
(FR) chemicals into their products in order to meet the standard, the 
Commission provided a more thorough discussion of the potential for 
environmental impacts in the NPR than it normally would.
    As mentioned above, at the time of the NPR, the staff prepared a 
preliminary qualitative assessment of the potential risk of health 
effects from exposure to flame retardant chemicals that may be 
incorporated in mattresses to meet the proposed standard. Based on this 
assessment, the staff prepared (and posted on CPSC's Web site) both an 
Environmental Assessment (``EA'') and a Finding of No Significant 
Impact (``FONSI''),\7\ which were discussed in the NPR. The EA 
concluded that there are FR chemicals and flame resistant materials 
available for meeting the proposed standard that, based on currently 
available data, are not expected to pose unacceptable risks to the 
environment or human health and are widely used in other applications. 
[14] The FONSI concluded that there will be no significant impacts on 
the human environment as a result of the proposed standard. [15] The 
CPSC reaffirms these conclusions with regard to the final rule. [10] As 
discussed in section L. above, after publication of the NPR, the staff 
performed additional work and prepared a quantitative assessment of 
potential health effects of FR chemicals that could be used to meet the 
mattress standard. This subsequent work further supports the 
conclusions in the EA and FONSI.
---------------------------------------------------------------------------

    \7\ Both of these documents are available from the Commission's 
Office of the Secretary or from the Commission's Web site (see 
footnote 2 above).
---------------------------------------------------------------------------

N. Executive Order 12988 (Preemption)

    Under Executive Order 12988 (Feb. 5, 1996) federal agencies must 
specify the preemptive effect, if any, of new regulations. Requirements 
imposed under state law, including laws developed in state courts, may 
be limited, foreclosed or barred by express language in a Congressional 
enactment, by implication from the breadth of a Congressional 
regulatory scheme that occupies the legislative field, or by 
implication because of a conflict with a Congressional enactment.
    The Commission intends and expects that the new mattress 
flammability standard will preempt inconsistent state standards and 
requirements, whether in the form of positive enactments or court 
created requirements. State requirements intended to reduce the risk of 
mattress fire, no matter how well intentioned, have the potential to 
undercut the Commission's uniform national flammability standard, 
create impediments for manufacturers whose mattress products enter the 
stream of interstate commerce, establish requirements that make dual 
state and federal compliance physically impossible, and cause confusion 
among consumers seeking to understand differing state and federal 
mattress fire requirements.
    To fully accomplish the Congressional purpose of the FFA in this 
area, this mattress flammability rule must take precedence over any 
non-identical state requirements that seek to reduce the risk of 
mattress fire. Preemption of non-identical state requirements is 
expressly and impliedly supported by the words of the statute, its 
legislative history, and public policy. The FFA expressly provides that 
if the Commission issues a flammability standard for a fabric or 
product under the FFA, ``no State or political subdivision of a State 
may establish or continue in effect a flammability standard or other 
regulation for such fabric, related material or product if the standard 
or other regulation is designed to protect against the same risk of the 
occurrence of fire with respect to which the standard or other 
regulation under this Act is in effect unless the State or political 
subdivision standard or other regulation is identical to the Federal 
standard or other regulation.'' 15 U.S.C. 1203(a). The statute also 
provides an application process for an exemption from federal 
preemption for non-identical State or political subdivision 
flammability requirements. Thus, in the absence of such an exemption, 
the federal standard will preempt all non-identical state requirements.
    The legislative history of the FFA affirms the broad preemptive 
scope of the federal rule. The Conference Committee Report explicitly 
explained the preemptive reach of the FFA:

    The conferees wish to emphasize that in determining whether a 
Federal requirement preempts State or local requirements, the key 
factor is whether the State or local requirement respecting a 
product is designed to deal with the same risk of injury or illness 
associated with the product as the Federal requirement. Even though 
the State or local requirement is characterized in different terms 
than the Federal requirement or may have different testing methods 
for determining compliance, so long as the Federal and State or 
local requirements deal with the same risk of injury associated with 
a product, the Federal requirement preempts a different State or 
local requirement.
    [A] State standard designed to protect against the risk of 
injury from a fabric catching on fire would be preempted by a 
Federal flammability standard covering the same fabric even though 
the Federal flammability standard called for tests using matches and 
the State standard called for tests using cigarettes. When an item 
is covered by a Federal flammability standard * * * a different 
State or local flammability requirement applicable to the same item 
will be preempted since both are designed to protect against the 
same risk, that is the occurrence of death or injury from fire.

H.R. Rep. No. 1022, 94th Cong., 2d Sess. 29 (1976).

    The broad preemptive reach of the new rule is further supported by 
Congress' omission from the FFA of a savings clause. A savings clause 
is commonly used to restrict the preemptive reach of a federal law. In 
the context of the Commission, the Congress included savings clauses to 
preserve state common law requirements in the Consumer Product Safety 
Act, 15 U.S.C. 2074(a) and 2072(c). Moreover, the existence or absence 
of a savings clause in a statutory scheme is a significant factor in 
court decisions reviewing the scope of preemption. The absence of a 
savings clause generally indicates Congressional intent for broader 
preemption of state flammability requirements that seek to reduce the 
risk of mattress fires.
    In developing this mattress flammability standard, the Commission 
carefully balanced numerous factors to craft a rule that will improve 
consumer safety and meet the Commission's other statutory obligations. 
The Commission believes that a different standard or additional 
requirements imposed by state statutes or common law would upset this 
balance. The FFA requires the Commission to find that the benefits of 
the regulation bear a reasonable relationship to its costs and that the 
regulation imposes the ``least burdensome'' requirement to prevent or 
adequately reduce the risk of injury. See 15 U.S.C. 1193(j)(1)-(2). The 
Commission has performed such analysis and believes that requiring 
mattresses to meet a different flammability requirement--even one that 
is effectively more stringent--would impose greater costs, in both 
monetary and non-monetary terms, on manufacturers and consumers and 
thereby upset the carefully tailored balance of costs and benefits this 
standard achieves.
    This standard prescribes a performance test. Requiring mattress 
manufacturers to use specific materials or methodologies to reach the 
flammability standard's goals could

[[Page 13497]]

impose greater costs and interfere with the particular balance the 
Commission struck between competing public policy considerations. 
Mattress manufacturers need to maintain the flexibility and business 
discretion to decide what combination of design and materials is 
appropriate to meet the federal flammability standard.
    Finally, non-identical requirements imposed by state courts 
conflict with the federal standard no less than requirements imposed by 
state legislatures or state agencies. Congress' repeated 
characterization in the Conference Report of the FFA's ``requirements'' 
could not have intended to exclude state common law causes of action. 
If it did, then each state could use its tort law to enforce whatever 
flammability standard it deemed appropriate, potentially creating fifty 
different mattress fire standards across the nation. This is precisely 
the result Congress sought to avoid. Congress' explicit ban on non-
identical state flammability requirements would be meaningless if 
states were free to incorporate such standards into their common law 
duties of care.
    For all these reasons, this standard would preempt all non-
identical state requirements which seek to reduce the risk of death or 
injury from mattress fires.

O. Effective Date

    The FFA requires that the effective date of a flammability standard 
be one year after the final standard is promulgated unless the 
Commission finds for good cause shown that an earlier or later date is 
in the public interest. 15 U.S.C. 1193(b). The Commission proposed that 
the rule would become effective one year from publication of a final 
rule in the Federal Register and would apply to mattresses entering the 
chain of distribution on or after that date. However, as discussed 
above, in response to comments, the Commission is providing an 
effective date of July 1, 2007 to coincide with the mattress production 
cycle.
    The Commission finds that this longer effective date is in the 
public interest. An effective date that coincides with the regular 
model/style change cycle will minimize the standard's impact on the 
industry, particularly small producers outside of California.

P. Findings

    Sections 1193(a) and (j)(2) of the FFA require the Commission to 
make certain findings when it issues a flammability standard. The 
Commission must find that the standard: (1) Is needed to adequately 
protect the public against the risk of the occurrence of fire leading 
to death, injury or significant property damage; (2) is reasonable, 
technologically practicable, and appropriate; (3) is limited to 
fabrics, related materials or products which present unreasonable 
risks; and (4) is stated in objective terms. Id. 1193(b). In addition, 
the Commission must find that: (1) If an applicable voluntary standard 
has been adopted and implemented, that compliance with the voluntary 
standard is not likely to adequately reduce the risk of injury, or 
compliance with the voluntary standard is not likely to be substantial; 
(2) that benefits expected from the regulation bear a reasonable 
relationship to its costs; and (3) that the regulation imposes the 
least burdensome requirement that would prevent or adequately reduce 
the risk of injury. The last three findings must be included in the 
regulation. Id. 1193(j)(2). These findings are discussed below.
    The standard is needed to adequately protect the public against 
unreasonable risk of the occurrence of fire. National fire loss 
estimates indicate that mattresses and bedding were the first items to 
ignite in 15,300 residential fires attended by the fire service 
annually during 1999-2002. These fires resulted in 350 deaths, 1,750 
injuries and $295.0 million in property loss each year. Of these, the 
staff considers an estimated 14,300 fires, 330 deaths, 1,680 injuries, 
and $281.5 million property loss annually to be addressable by the 
standard. The Commission estimates that the standard will prevent 69 to 
78 percent of deaths and 73 to 84 percent of the injuries occurring 
with these addressable mattress/bedding fires. Thus, the Commission 
estimates that when all mattresses have been replaced by ones that 
comply with the standard, 240 to 270 deaths and 1,150 to 1,330 injuries 
will be avoided annually as a result of the standard.
    The regulatory analysis explains that the Commission estimates 
lifetime net benefits of $23 to $50 per mattress or aggregate lifetime 
net benefits for all mattresses produced in the first year of the 
standard of $514 to $1,132 million from the standard. Thus, the 
Commission finds that the standard is needed to adequately protect the 
public from the unreasonable risk of the occurrence of fire.
    The standard is reasonable, technologically practicable, and 
appropriate. Through extensive research and testing, NIST developed a 
test method to assess the flammability of mattresses ignited by an open 
flame. The test method represents the typical scenario of burning 
bedclothes igniting a mattress. Based on NIST's testing, the standard 
establishes criteria that will reduce the fire intensity of a burning 
mattress, allowing more time for occupants to escape before flashover 
occurs. NIST testing has also demonstrated that mattresses can be 
constructed with available materials and construction that will meet 
the test criteria. Therefore, the Commission finds that the standard is 
reasonable, technologically practicable, and appropriate.
    The standard is limited to fabrics, related materials, and products 
that present an unreasonable risk. The standard applies to mattresses 
and mattress and foundation sets. It is a performance standard. Thus, 
it neither requires nor restricts the use of particular fabrics, 
related materials or products. Manufacturers may choose the materials 
and methods of construction that they believe will best suit their 
business and result in mattresses that can meet the specified test 
criteria. As discussed above, the Commission concludes that current 
mattresses present an unreasonable risk. Therefore, the Commission 
finds that the standard is limited to fabrics, related materials, and 
products that present an unreasonable risk.
    Voluntary standards. The Commission is not aware of any voluntary 
standard in existence that adequately and appropriately addresses the 
specific risk of injury addressed by this standard. Thus, no findings 
concerning compliance with, and adequacy of, voluntary standards are 
necessary.
    Relationship of Benefits to Costs. The Commission estimates that 
the total lifetime benefits of a mattress complying with this standard 
will range from $45 to $57 per mattress (based on a 10 year mattress 
life and 3% discount rate). The Commission estimates that total 
resource costs of the standard will range from $8 to $22 per mattress. 
This yields net benefits of $23 to $50 per mattress. The Commission 
estimates that aggregate lifetime benefits associated with all 
mattresses produced the first year the standard becomes effective range 
from $1,024 to $1,307 million, and that aggregate resource costs 
associated with these mattresses range from $175 to $511 million, 
yielding net benefits of about $514 to $1,132 million. Therefore, the 
Commission finds that the benefits from the regulation bear a 
reasonable relationship to its costs.
    Least burdensome requirement that adequately reduces the risk of 
injury. The Commission considered the following alternatives: 
alternative maximum peak heat release rate and test

[[Page 13498]]

duration, alternative total heat released in the first 10 minutes of 
the test, mandatory production testing, a longer effective date, taking 
no action, relying on a voluntary standard, and requiring labeling 
alone. As discussed in the preamble above and the regulatory analysis, 
these alternatives are expected to increase costs without increasing 
benefits, or significantly reduce the benefits expected from the rule. 
Therefore, the Commission finds that the standard imposes the least 
burdensome requirement that would adequately reduce the risk.

Q. Conclusion

    For the reasons stated in this preamble, the Commission finds that 
this flammability standard for mattress sets is needed to adequately 
protect the public against the unreasonable risk of the occurrence of 
fire leading to death, injury, and significant property damage. The 
Commission also finds that the standard issued today is reasonable, 
technologically practicable, and appropriate. The Commission further 
finds that the standard is limited to the fabrics, related materials 
and products which present such unreasonable risks. The Commission also 
finds that the benefits from the regulation bear a reasonable 
relationship to its costs and the standard imposes the least burdensome 
requirement that would adequately reduce the risk.

List of Subjects in 16 CFR Part 1633

    Consumer protection, Flammable materials, Labeling, Mattresses and 
mattress pads, Records, Textiles, Warranties.


0
For the reasons stated in the preamble, the Commission amends Title 16 
of the Code of Federal Regulations by adding a new part 1633 to read as 
follows:

PART 1633--STANDARD FOR THE FLAMMABILITY (OPEN FLAME) OF MATTRESS 
SETS

Subpart A--The Standard
Sec.
1633.1 Purpose, scope and applicability.
1633.2 Definitions.
1633.3 General requirements.
1633.4 Prototype testing requirements.
1633.5 Prototype pooling and confirmation testing requirements.
1633.6 Quality assurance requirements.
1633.7 Mattress test procedure.
1633.8 Findings.
1633.9 Glossary of terms.
Subpart B--Rules and Regulations
1633.10 Definitions.
1633.11 Records.
1633.12 Labeling.
1633.13 Tests for guaranty purposes, compliance with this section, 
and ``one of a kind'' exemption.

FIGURE 1 TO PART 1633--TEST ASSEMBLY, SHOWN IN FURNITURE CALORIMETER 
(CONFIGURATION A)
FIGURE 2 TO PART 1633--TEST ARRANGEMENT IN 3.05m x 3.66m (10 ft x 12 
ft) ROOM (CONFIGURATION B)
FIGURE 3 TO PART 1633--DETAILS OF HORIZONTAL BURNER HEAD
FIGURE 4 TO PART 1633--DETAILS OF VERTICAL BURNER HEAD
FIGURE 5 TO PART 1633--DETAILS OF BURNER STAND-OFF
FIGURE 6 TO PART 1633--BURNER ASSEMBLY SHOWING ARMS AND PIVOTS 
(SHOULDER SCREWS), IN RELATION TO, PORTABLE FRAME ALLOWING BURNER 
HEIGHT ADJUSTMENT
FIGURE 7 TO PART 1633--ELEMENTS OF PROPANE FLOW CONTROL FOR EACH 
BURNER
FIGURE 8 TO PART 1633--JIG FOR SETTING MATTRESSES AND FOUNDATION 
SIDES IN SAME PLANE
FIGURE 9 TO PART 1633--BURNER PLACEMENTS ON MATTRESS/FOUNDATION
FIGURE 10 TO PART 1633--JIG FOR SETTING BURNERS AT PROPER DISTANCES 
FROM MATTRESS/FOUNDATION
FIGURE 11 TO PART 1633--DIAGRAMS FOR GLOSSARY OF TERMS
FIGURE 12 TO PART 1633--B LABELS FOR DOMESTIC MATTRESS WITH 
FOUNDATION
FIGURE 13 TO PART 1633--B LABELS FOR IMPORTED MATTRESS WITH 
FOUNDATION
FIGURE 14 TO PART 1633--B LABEL FOR DOMESTIC MATTRESS ALONE AND WITH 
FOUNDATION
FIGURE 15 TO PART 1633--B LABEL FOR IMPORTED MATTRESS ALONE AND WITH 
FOUNDATION
FIGURE 16 TO PART 1633--B LABEL FOR DOMESTIC MATTRESS ONLY
FIGURE 17 TO PART 1633 B--LABEL FOR IMPORTED MATTRESS ONLY

    Authority: 15 U.S.C. 1193, 1194

Subpart A--The Standard


Sec.  1633.1  Purpose, scope, and applicability.

    (a) Purpose. This part 1633 establishes flammability requirements 
that all mattress sets must meet before sale or introduction into 
commerce. The purpose of the standard is to reduce deaths and injuries 
associated with mattress fires by limiting the size of the fire 
generated by a mattress set during a thirty minute test.
    (b) Scope. (1) All mattress sets, as defined in Sec.  1633.2(c), 
manufactured, imported, or renovated on or after the effective date of 
this standard are subject to the requirements of the standard.
    (2) One-of-a-kind mattress sets may be exempted from testing under 
this standard in accordance with Sec.  1633.13(c).
    (c) Applicability. The requirements of this part 1633 shall apply 
to each ``manufacturer'' (as that term is defined in Sec.  1633.2(k)) 
of mattress sets which are manufactured for sale in commerce.


Sec.  1633.2  Definitions.

    In addition to the definitions given in section 2 of the Flammable 
Fabrics Act as amended (15 U.S.C. 1191), the following definitions 
apply for purposes of this part 1633.
    (a) Mattress means a resilient material or combination of materials 
enclosed by a ticking (used alone or in combination with other 
products) intended or promoted for sleeping upon. This includes 
mattresses that have undergone renovation as defined in paragraph (d) 
of this section.
    (1) This term includes, but is not limited to, adult mattresses, 
youth mattresses, crib mattresses (including portable crib mattresses), 
bunk bed mattresses, futons, flip chairs without a permanent back or 
arms, sleeper chairs, and water beds or air mattresses if they contain 
upholstery material between the ticking and the mattress core. 
Mattresses used in or as part of upholstered furniture are also 
included; examples are convertible sofa bed mattresses, corner group 
mattresses, day bed mattresses, roll-away bed mattresses, high risers, 
and trundle bed mattresses. See Sec.  1633.9 Glossary of terms, for 
definitions of these items.
    (2) This term excludes mattress pads, mattress toppers (items with 
resilient filling, with or without ticking, intended to be used with or 
on top of a mattress), sleeping bags, pillows, liquid and gaseous 
filled tickings, such as water beds and air mattresses that contain no 
upholstery material between the ticking and the mattress core, 
upholstered furniture which does not contain a mattress, and juvenile 
product pads such as car bed pads, carriage pads, basket pads, infant 
carrier and lounge pads, dressing table pads, stroller pads, crib 
bumpers, and playpen pads. See Sec.  1633.9 Glossary of terms, for 
definitions of these items.
    (b) Foundation means a ticking covered structure used to support a 
mattress or sleep surface. The structure may include constructed 
frames, foam, box springs, or other materials, used alone or in 
combination.
    (c) Mattress set means either a mattress and foundation labeled by 
the manufacturer for sale as a set, or a mattress labeled by the 
manufacturer for sale without any foundation.

[[Page 13499]]

    (d) Renovation means altering an existing mattress set for the 
purpose of resale.
    (1) This term includes any one, or any combination of the 
following: replacing the ticking or batting, stripping a mattress to 
its springs, rebuilding a mattress, or replacing components with new or 
recycled materials.
    (2) This term excludes alterations if the person who renovates the 
mattress intends to retain the renovated mattress for his or her own 
use, or if a customer or a renovator merely hires the services of the 
renovator and intends to take back the renovated mattress for his or 
her own use.
    (e) Ticking means the outermost layer of fabric or related material 
of a mattress or foundation. It does not include any other layers of 
fabric or related materials quilted together with, or otherwise 
attached to, the outermost layer of fabric or related material.
    (f) Upholstery material means all material, either loose or 
attached, between the mattress ticking and the core of a mattress.
    (g) Edge means the seamed, un-seamed or taped border edge of a 
mattress or foundation that joins the top and/or bottom with the side 
panels.
    (h) Tape edge means an edge made by using binding tape to encase 
and finish raw edges.
    (i) Binding tape means a fabric strip used in the construction of 
some edges.
    (j) Seam thread means the thread used to form stitches in 
construction features, seams, and tape edges.
    (k) Manufacturer means an individual plant or factory at which 
mattress sets are manufactured or assembled. For purposes of this part 
1633, importers and renovators are considered manufacturers.
    (l) Prototype means a specific design of mattress set that serves 
as a model for production units intended to be introduced into commerce 
and is the same as the production units with respect to materials, 
components, design and methods of assembly. A mattress intended for 
sale with a foundation(s) shall be considered a separate and distinct 
prototype from a mattress intended for sale without a foundation.
    (m) Prototype developer means a third party that develops a 
prototype for use by a manufacturer. Such prototypes may be qualified 
by either the prototype developer or by the manufacturer.
    (n) Qualified prototype means a prototype that has been tested in 
accordance with Sec.  1633.4(a) and meets the criteria stated in Sec.  
1633.3(b).
    (o) Confirmed prototype means a prototype that is part of a pooling 
arrangement and is the same as a qualified prototype with respect to 
materials, components, design and methods of assembly and has been 
tested in accordance with Sec.  1633.5(a)(3) and meets the criteria 
stated in Sec.  1633.3(b).
    (p) Subordinate prototype means a mattress set that is based on a 
qualified or confirmed prototype and is the same as the qualified or 
confirmed prototype, except as permitted by Sec.  1633.4(b). A 
subordinate prototype is considered to be represented by a qualified or 
confirmed prototype and need not be tested in accordance with Sec.  
1633.4(a) or Sec.  1633.5(a)(3).
    (q) Prototype pooling means a cooperative arrangement--whereby one 
or more manufacturers build mattress sets based on a qualified 
prototype produced by another manufacturer or prototype developer. A 
manufacturer who relies on another manufacturer's or prototype 
developer's qualified prototype must perform a confirmation test on the 
mattress set it manufactures.
    (r) Confirmation test means a pre-market test conducted by a 
manufacturer who is relying on a qualified prototype produced by 
another manufacturer or prototype developer. A confirmation test must 
be conducted in accordance with the procedures set forth in Sec.  
1633.7 and meet the criteria in Sec.  1633.3(b).
    (s) Production lot means any quantity of finished mattress sets 
that are produced in production intervals defined by the manufacturer, 
and are intended to replicate a specific qualified, confirmed or 
subordinate prototype that complies with this part 1633.
    (t) Specimen means a mattress set tested under this regulation.
    (u) Twin size means any mattress with the dimensions 38 inches (in) 
(965 millimeters) x 74.5 in. (1892 mm); all dimensions may vary by 
\1/2\ in. (13 mm).
    (v) Core means the main support system that may be present in a 
mattress, such as springs, foam, water bladder, air bladder, or 
resilient filling.


Sec.  1633.3  General requirements.

    (a) Summary of test method. The test method set forth in Sec.  
1633.7 measures the flammability (fire test response characteristics) 
of a mattress specimen by exposing the specimen to a specified flaming 
ignition source and allowing it to burn freely under well-ventilated, 
controlled environmental conditions. The flaming ignition source shall 
be a pair of propane burners. These burners impose differing fluxes for 
differing times on the top and sides of the specimen. During and after 
this exposure, measurements shall be made of the time-dependent heat 
release rate from the specimen, quantifying the energy generated by the 
fire. The rate of heat release must be measured by means of oxygen 
consumption calorimetry.
    (b) Test criteria. (1) When testing the mattress set in accordance 
with the test procedure set forth in Sec.  1633.7, the specimen shall 
comply with both of the following criteria:
    (i) The peak rate of heat release shall not exceed 200 kilowatts 
(``kW'') at any time within the 30 minute test; and
    (ii) The total heat release shall not exceed 15 megajoules (``MJ'') 
for the first 10 minutes of the test.
    (2) In the interest of safety, the test operator should discontinue 
the test and record a failure if a fire develops to such a size as to 
require suppression for the safety of the facility.
    (c) Testing of mattress sets. Mattresses labeled for sale with a 
foundation shall be tested with such foundation. Mattresses labeled for 
sale without a foundation shall be tested alone.
    (d) Compliance with this standard. Each mattress set manufactured, 
imported, or renovated on or after the effective date of the standard 
shall meet the test criteria specified in paragraph (b) of this section 
and otherwise comply with all applicable requirements of this part 
1633.


Sec.  1633.4  Prototype testing requirements.

    (a) Except as otherwise provided in paragraph (b) of this section, 
each manufacturer shall cause three specimens of each prototype to be 
tested according to Sec.  1633.7 and obtain passing test results 
according to Sec.  1633.3(b) before selling or introducing into 
commerce any mattress set based on that prototype, unless the 
manufacturer complies with the prototype pooling and confirmation 
testing requirements in Sec.  1633.5.
    (b) Notwithstanding the requirements of paragraph (a) of this 
section, a manufacturer may sell or introduce into commerce a mattress 
set that has not been tested according to Sec.  1633.7 if that mattress 
set differs from a qualified or confirmed prototype only with respect 
to:
    (1) Mattress/foundation length and width, not depth (e.g., twin, 
queen, king);
    (2) Ticking, unless the ticking of the qualified prototype has 
characteristics (such as chemical treatment or special fiber 
composition) designed to improve performance on the test prescribed in 
this part; and/or
    (3) Any component, material, design or method of assembly, so long 
as the manufacturer can demonstrate on an

[[Page 13500]]

objectively reasonable basis that such differences will not cause the 
mattress set to exceed the test criteria specified in Sec.  1633.3(b).
    (c) All tests must be conducted on specimens that are no smaller 
than a twin size, unless the largest size mattress set produced is 
smaller than a twin size, in which case the largest size must be 
tested.
    (d) (1) If each of the three specimens meets both the criteria 
specified in Sec.  1633.3(b), the prototype shall be qualified. If any 
one (1) specimen fails to meet the test criteria of Sec.  1633.3(b), 
the prototype is not qualified.
    (2) Any manufacturer may produce a mattress set for sale in 
reliance on prototype tests performed before the effective date of this 
Standard, provided:
    (i) The manufacturer has documentation showing that such tests were 
conducted in accordance with all requirements of this section and Sec.  
1633.7 and yielded passing results according to the test criteria of 
Sec.  1633.3(b);
    (ii) Any tests conducted more than 30 days after publication of 
this standard in the Federal Register must comply with the 
recordkeeping requirements in Sec.  1633.11;
    (iii) Such mattress sets may be used for prototype pooling only if 
the manufacturer complies with applicable recordkeeping requirements in 
Sec.  1633.11; and
    (iv) Such mattress sets may serve as the basis for a subordinate 
prototype only if the manufacturer has all records required by Sec.  
1633.11.


Sec.  1633.5  Prototype pooling and confirmation testing requirements.

    (a) Prototype pooling. One or more manufacturers may rely on a 
qualified prototype produced by another manufacturer or prototype 
developer provided that:
    (1) The prototype meets the requirements of Sec.  1633.4;
    (2) The mattress sets being produced are the same as the qualified 
prototype with respect to materials, components, design and methods of 
assembly; and
    (3) The manufacturer producing mattress sets in reliance on a 
qualified prototype has performed a confirmation test on at least one 
(1) Specimen of the mattress set it produces in accordance with Sec.  
1633.7. The tested specimen must meet the criteria under Sec.  
1633.3(b) before any mattress sets based on the qualified prototype may 
be sold or introduced into commerce.
    (b) Confirmation test failure. (1) If the confirmation test 
specimen fails to meet the criteria of Sec.  1633.3(b), the 
manufacturer thereof shall not sell any mattress set based on the same 
qualified prototype until that manufacturer takes corrective measures, 
tests a new specimen, and the new specimen meets the criteria of Sec.  
1633.3(b).
    (2) If a confirmation test specimen fails to meet the criteria of 
Sec.  1633.3(b), the manufacturer thereof must notify the manufacturer 
of the prototype of the test failure.


Sec.  1633.6  Quality assurance requirements.

    (a) Quality assurance. Each manufacturer shall implement a quality 
assurance program to ensure that mattress sets manufactured for sale 
are the same as the qualified and/or confirmed prototype on which they 
are based with respect to materials, components, design and methods of 
assembly, except as permitted by Sec.  1633.4(b). At a minimum these 
procedures shall include:
    (1) Controls, including incoming inspection procedures, of all 
mattress set materials, components and methods of assembly to ensure 
that they are the same as those used in the prototype on which they are 
based;
    (2) Designation of a production lot that is represented by the 
prototype; and
    (3) Inspection of mattress sets produced for sale sufficient to 
demonstrate that they are the same as the prototype on which they are 
based with respect to materials, components, design and methods of 
assembly.
    (b) Production testing. Manufacturers are encouraged to conduct, as 
part of the quality assurance program, random testing of mattress sets 
being produced for sale according to the requirements of Sec. Sec.  
1633.3 and 1633.7.
    (c) Failure of mattress sets produced for sale to meet flammability 
standard. (1) Sale of mattress sets. If any test performed for quality 
assurance yields results which indicate that any mattress set of a 
production lot does not meet the criteria of Sec.  1633.3(b), or if a 
manufacturer obtains test results or other evidence that a component or 
material or construction/assembly process used could negatively affect 
the test performance of the mattress set as set forth in Sec.  
1633.3(b), the manufacturer shall cease production and distribution in 
commerce of such mattress sets until corrective action is taken.
    (2) Corrective action. A manufacturer must take corrective action 
when any mattress set manufactured or imported for sale fails to meet 
the flammability test criteria set forth in Sec.  1633.3(b).


Sec.  1633.7  Mattress test procedure.

    (a) Apparatus and test materials. (1) Calorimetry. The rate of heat 
release must be measured by means of oxygen consumption calorimetry. 
The calibration should follow generally accepted practices for 
calibration. The calorimetry system shall be calibrated at a minimum of 
two (2) calibration points--at 75 kW and 200 kW.
    (2) Test area. The test area must have either Test Configuration A 
or B. The test area conditions shall be maintained at a temperature 
greater than 15 [deg]C (59 [deg]F) and less than 27 [deg]C (80.6 
[deg]F) and a relative humidity less than 75 percent.
    (i) Test configuration A. (an open calorimeter (or furniture 
calorimeter)). In this configuration, the specimen to be tested is 
placed under the center of an open furniture calorimeter. Figure 1 of 
this part shows the test assembly atop a bed frame and catch surface. 
The specimen shall be placed under an open hood which captures the 
entire smoke plume and is instrumented for heat release rate 
measurements. The area surrounding the test specimen in an open 
calorimeter layout shall be sufficiently large that there are no heat 
re-radiation effects from any nearby materials or objects. The air flow 
to the test specimen should be symmetrical from all sides. The air flow 
to the calorimeter hood shall be sufficient to ensure that the entire 
fire plume is captured, even at peak burning. Skirts may be placed on 
the hood periphery to help assure this plume capture, if necessary, 
though they must not be of such an excessive length as to cause the 
incoming flow to disturb the burning process. Skirts must also not heat 
up to the point that they contribute significant re-radiation to the 
test specimen. The air supply to the hood shall be sufficient that the 
fire is not in any way limited or affected by the available air supply. 
The fire plume should not enter the hood exhaust duct. Brief (seconds) 
flickers of flame that occupy only a minor fraction of the hood exhaust 
duct inlet cross-section are acceptable since they do not signify 
appreciable suppression of flames.
    (ii) Test configuration B. The test room shall have dimensions 10 
ft. by 12 ft. by 8 ft. (3048 mm x 3658 mm x 2438 mm) high. The specimen 
is placed within the burn room. All smoke exiting from the room is 
caught by a hood system instrumented for heat release rate 
measurements. The room shall have no openings permitting air 
infiltration other than a doorway opening 38 in  0.25 in by 
80 in  0.25 in (965 mm  6.4 mm x 2032 mm  6.4 mm) located as indicated in Figure 2 of this part and other 
small openings as necessary to

[[Page 13501]]

make measurements. The test room shall be constructed of wood or metal 
studs and shall be lined with fire-rated wallboard or calcium silicate 
board. An exhaust hood shall be positioned outside of the doorway so as 
to collect all of the combustion gases. There shall be no obstructions 
in the air supply to the set-up.
    (3) Location of test specimen. The location of the test specimen is 
shown in Figure 2 of this part. The angled placement is intended to 
minimize the interaction of flames on the side surfaces of the test 
specimen with the room walls. One corner of the test specimen shall be 
13 centimeters (cm) to 17 cm from the wall and the other corner shall 
be 25 cm to 30 cm from the wall. The test room shall contain no other 
furnishings or combustible materials except for the test specimen.
    (4) Bed frame. (i) Frame dimensions. The specimen shall be 
supported around its perimeter by the bed frame. For twin size 
mattresses, the specimen shall be placed on top of a welded bed frame 
1.90 m by 0.99 m (75 in by 39 in) made from 40 mm (1.50 in) steel 
angle. If testing a size other than twin, the bed frame shall similarly 
match the dimensions of the specimen.
    (ii) Frame height. The frame shall be 115 mm (4.5 in) high, except 
if adjustments are necessary to accommodate the required burner 
position in paragraph (h)(2)(ii) of this section. The height of the 
frame shall also be adjusted, as necessary, so that the burner is no 
less than 25mm (1 in) above the supporting surface.
    (iii) Frame crosspieces. The frame shall be completely open under 
the foundation except for two crosspieces, 25 mm wide (1 in) at the \1/
3\ length points, except when sagging of the specimen between the 
crosspieces exceeds 19 mm (\3/4\ in) below the frame. Minimal 
additional crosspieces shall then be added to prevent sagging of the 
specimen.
    (5) Catch pan. The bed frame feet shall rest on a surface of either 
calcium silicate board or fiber cement board, 13 mm (0.5 in) thick, 
2.11 m by 1.19 m (83 in by 47 in). The board serves as a catch surface 
for any flaming melt/drip material falling from the bed assembly and 
may be the location of a pool fire that consumes such materials. This 
surface must be cleaned between tests to avoid build-up of combustible 
residues. Lining this surface with aluminum foil to facilitate cleaning 
is not recommended since this might increase fire intensity via 
reflected radiation.
    (6) Ignition source. (i) General. The ignition source shall consist 
of two T-shaped burners as shown in Figures 3 and 4 of this part. One 
burner impinges flames on the top surface of the mattress. The second 
burner impinges flames on the side of the mattress and on the side of 
the foundation. Each of the burners shall be constructed from stainless 
steel tubing (12.7 mm diameter with 0.89  0.5 mm wall 
thickness; 0.50 in diameter with 0.035  0.002 in wall). 
Each burner shall incorporate a stand-off foot to set its distance from 
the test specimen surface (Figure 5 of this part). Both burners shall 
be mounted with a mechanical pivot point but the side burner is locked 
in place to prevent movement about this pivot in normal usage. The top 
burner, however, is free to rotate about its pivot during a burner 
exposure and is lightly weighted so as to exert a downward force on the 
mattress top through its stand-off foot so that the burner follows a 
receding top surface on the test specimen (Figure 6 of this part). The 
combination of burner stand-off distance and propane gas flow rate to 
the burners determines the heat flux they impose on the surface of the 
test specimen so that both of these parameters are tightly controlled.
    (ii) Top surface burner. The T head of the top surface burner 
(horizontal burner, Figure 3 of this part) shall be 305  2 
mm (12  0.08 in) long with gas tight plugs in each end. 
Each side of the T shall contain 17 holes equally spaced over a 135 mm 
length (8.5 mm  0.1 mm apart; 0.333  0.005 in). 
The holes on each side shall begin 8.5 mm (0.33 in) from the centerline 
of the burner head. The holes shall be 1.45 mm to 1.53 mm (0.058 in to 
0.061 in) in diameter (which corresponds to Grade 10 machining practice 
with a well formed 53 drill bit). The holes shall point 5[deg] 
out of the plane of the diagram in Figure 3. This broadens the width of 
the heat flux profile imposed on the surface of the test specimen.
    (iii) Side surface burner. The T head of the side surface burner 
(vertical burner) shall be constructed similarly to the top surface 
burner, as shown in Figure 4 of this part, except that its overall 
length shall be 254  2 mm (10  0.08 in). Each 
side of the burner head shall contain 14 holes spaced evenly over a 110 
mm length (8.5 mm  0.1 mm apart; 0.333  0.005 
in). The holes shall be 1.45 mm to 1.53 mm (0.058 in to 0.061 in) in 
diameter (which corresponds to Grade 10 machining practice with a well 
formed 53 drill bit). The holes shall point 5[deg] out of the 
plane of the diagram in Figure 4.
    (iv) Burner stand-off. The burner stand-off on each burner shall 
consist of a collar fixed by a set screw onto the inlet tube of the 
burner head (Figure 5 of this part). The collar shall hold a 3 mm 
diameter stainless steel rod having a 12.7 mm by 51 mm by (2-2.5 mm) 
thick (0.5 in by 2 in by (0.08-0.10 in) thick) stainless steel pad 
welded on its end with its face (and long axis) parallel to the T head 
of the burner. The foot pad shall be displaced about 10 mm to 12 mm 
from the longitudinal centerline of the burner head so that it does not 
rest on the test specimen in an area of peak heat flux. A short section 
(9.5 mm outer diameter (``OD''), about 80 mm long; \3/8\ in OD, about 
3.2 in long) of copper tubing shall be placed in the inlet gas line 
just before the burner to facilitate making the burner nominally 
parallel to the test specimen surface (by a procedure described below). 
The copper tube on the top surface burner should be protected from 
excessive heat and surface oxidation by wrapping it with a suitable 
layer of high temperature insulation to protect the equipment. Both 
copper tubes are to be bent by hand in the burner alignment process. 
They must be replaced if they become work-hardened or crimped in any 
way. The gas inlet lines (12.7 mm OD stainless steel tubing; 0.50 in) 
serve as arms leading back to the pivot points and beyond, as shown in 
Figure 6 of this part. The length to the pivot for the top burner shall 
be approximately 1000 mm (40 in).
    (v) Frame. Figure 6 of this part shows the frame that holds the 
burners and their pivots, which are adjustable vertically in height. 
All adjustments (burner height, burner arm length from the pivot point, 
counterweight positions along the burner arm) are facilitated by the 
use of knobs or thumbscrews as the set screws. The three point 
footprint of the burner frame, with the two forward points on wheels, 
facilitates burner movement and burner stability when stationary.
    (vi) Arms. The metal arms attached to the burners shall be attached 
to a separate gas control console by flexible, reinforced plastic 
tubing.\1\ The gas control console is mounted separately so as to 
facilitate its safe placement outside of the test room throughout the 
test procedure. The propane gas lines running between the console and 
the burner assembly must be anchored on the assembly before running to 
the burner inlet arms. A 1.5 m  25 mm (58 in  1 
in) length of flexible, reinforced tubing between the anchor point and 
the end of each burner inlet allows free movement of the top burner 
about its pivot point. The top burner arm shall have a pair of moveable 
cylindrical

[[Page 13502]]

counterweights that are used, as described below, to adjust the 
downward force on the stand-off foot.
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    \1\ Fiber-reinforced plastic tubing (6 mm ID by 9.5 mm OD; 3 
inch ID by inch OD) made of PVC should be used.
---------------------------------------------------------------------------

    (vii) Burner head. Each burner head shall have a separate pilot 
light consisting of a 3 mm OD (\1/8\ in OD) copper tube with an 
independently-controlled supply of propane gas. The tube terminates 
within 10 mm of the center of the burner head. Care must be taken to 
set the pilot flame size small enough so as not to heat the test 
specimen before the timed burner exposure is begun.
    (viii) Flow control system. Each burner shall have a flow control 
system of the type shown in Figure 7 of this part. Propane gas from a 
source such as a bottle is reduced in pressure to approximately 70 
kilopascals (``kPa'') (20 pounds per square inch gage (``psig'')) and 
fed to the system shown in Figure 8 of this part. The gas flow to the 
burner is delivered in a square-wave manner (constant flow with rapid 
onset and termination) by means of the solenoid valve upstream of the 
flowmeter. An interval timer (accurate to  0.2 s) 
determines the burner flame duration. The pilot light assures that the 
burner will ignite when the solenoid valve opens.\2\ The gas flow shall 
be set using a rotameter type of flowmeter, with a 150 mm scale, 
calibrated for propane. When calibrating the flowmeter, take into 
account that the flow resistance of the burner holes causes a finite 
pressure increase in the flowmeter above ambient. (If a calibration at 
one atmosphere is provided by the manufacturer, the flowmeter reading, 
at the internal pressure existing in the meter, required to get the 
flow rates listed below must be corrected, typically by the square root 
of the absolute pressure ratio. This calls for measuring the actual 
pressure in the flow meters when set near the correct flow values. A 
value roughly in the range of 1 kPa to 3 kPa--5 in to 15 in of water--
can be expected.) See information on calibration in paragraph (b) of 
this section.
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    \2\ If the side burner, or more commonly one half of the side 
burner, fails to ignite quickly, adjust the position of the igniter, 
bearing in mind that propane is heavier than air. The best burner 
behavior test assessment is done against an inert surface (to spread 
the gas as it would during an actual test).
---------------------------------------------------------------------------

    (ix) Gas flow rate. Use propane gas: The propane shall be minimum 
99% pure (often described by suppliers as CP or ``chemically pure'' 
grade, but this designation should not be relied on since the actual 
purity may vary by supplier). Each burner has a specific propane gas 
flow rate set with its respective, calibrated flowmeter. The gas flow 
rate to the top burner is 12.9 liters per minute (``L/min'')  0.1 L/min at a pressure of 101  5 kPa (standard 
atmospheric pressure) and a temperature of 22  3 [deg]C. 
The gas flow rate to the side burner is 6.6  0.05 L/min at 
a pressure of 101  5 kPa (standard atmospheric pressure) 
and a temperature of 22  3 [deg]C. The total heat release 
rate of the burners is 27 kW.
    (b) Calibration of Propane Flowmeters. (1) Preparation. Once the 
assembly of the burner is completed and all the connecting points are 
checked for gas leakage, the most critical task is ensuring the exact 
flow rates of propane into the top and side burners, as described in 
the test protocol. The gas flow rates are specified at 12.9 Liters per 
minute (LPM)  0.1 LPM and 6.6 LPM  0.05 LPM for 
the top and side burners (Burners 1 and 2), respectively, at a pressure 
of 101  5 kiloPascal (kPa) (standard atmospheric pressure) 
and a temperature of 22  3 [deg]C. The rotameters that are 
installed in the control box of the burner assembly need to be 
calibrated for accurate measurement of these flow rates.
    (i) The most practical and accurate method of measuring and 
calibrating the flow rate of gases (including propane) is use of a 
diaphragm test meter (also called a dry test meter). A diaphragm test 
meter functions based on positive displacement of a fixed volume of gas 
per rotation and its reading is therefore independent of the type of 
the gas being used. The gas pressure and temperature, however, can have 
significant impact on the measurement of flow rate.
    (ii) The gas pressure downstream of the rotameters that are 
installed in the control box of the burner assembly should be 
maintained near atmospheric pressure (only a few millimeters of water 
above atmosphere). Therefore, the best location to place the diaphragm 
test meter for gas flow calibration is right downstream of the control 
box. The pressure at the propane tank must be set at 20  
0.5 pounds per square inch gage (psig).
    (2) Calibration Procedure. Install the diaphragm test meter (DTM) 
downstream of the control box in the line for the top burner. Check all 
connecting points for gas leakage. Open the main valve on the propane 
tank and set a pressure of 20  0.5 psig. Set the timers in 
the control box for 999 seconds (or the maximum range possible). Record 
the barometric pressure. Turn the ``Burner 1'' switch to ON and ignite 
the top burner. Allow the gas to flow for 2-3 minutes until the DTM is 
stabilized. Record the pressure and temperature in the DTM. Use a 
stopwatch to record at least one minute worth of complete rotations 
while counting the number of rotations.\3\ Calculate the propane gas 
flow rate using the recorded time and number of rotations (total flow 
in that time). Use the pressure and temperature readings to convert to 
standard conditions. Repeat this measurement for two additional meter 
setting to allow for calibrating the flowmeter throughout the range of 
interest. Plot the flow versus meter reading, fit a best line (possibly 
quadratic) through these points to find the meter setting for a flow of 
12.9 LPM at the above ``standard conditions.'' Repeat this procedure 
for ``Burner 2'' using three meter readings to find the setting that 
gives a flow rate of 6.6 LPM at the standard conditions. After 
completion of the calibration, re-set the timers to 70 and 50 seconds.
---------------------------------------------------------------------------

    \3\ With a diaphragm test meter well-sized to this application, 
this should be more than five rotations. A one liter per rotation 
meter will require 10 to 15 rotations for the flow measurements and 
greater than the minimum of one minute recording time specified 
here.
---------------------------------------------------------------------------

    (c) Conditioning. Remove the specimens from any packaging prior to 
conditioning. Specimens shall be conditioned in air at a temperature 
greater than 18 [deg]C (65 [deg]F) and less than 25 [deg]C (77 [deg]F) 
and a relative humidity less than 55 percent for at least 48 continuous 
hours prior to test. Specimens shall be supported in a manner to permit 
free movement of air around them during conditioning.
    (d) Test preparation. (1) General. Horizontal air flow at a 
distance of 0.5 m (20 in) on all sides of the test specimen at the 
mattress top height shall be 0.5 m/s. If there is any visual evidence 
that the burner flames are disturbed by drafts during their exposure 
durations, the burner regions must be enclosed on two or more sides by 
at least a triple layer of screen wire. The screens shall be at least 
25 cm tall. The screen(s) for the top burner shall sit on the mattress 
top and shall be wide enough to extend beyond the area of the burner 
impingement. All screens shall be far enough away (typically 30 cm or 
more) from the burner tubes so as not to interfere or interact with 
flame spread during the burner exposure. The screen for the side burner 
will require a separate support from below. All screens shall be 
removed at the end of the 70 second exposure interval.
    (2) Specimen. Remove the test specimen from the conditioning room 
immediately before it is to be tested. Testing shall begin within 20 
minutes after removal from the conditioning area. Be sure the bed frame 
is approximately centered on the catch surface. Place the specimen on 
the bed frame. Carefully center them on the bed

[[Page 13503]]

frame and on each other. The mattress shall be centered on top of the 
foundation (see Figure 1 of this part). However, in order to keep the 
heat flux exposure the same for the sides of the two components, if the 
mattress is 1 cm to 2 cm narrower than the foundation, the mattress 
shall be shifted so that the side to be exposed is in the same plane as 
the foundation. Refer to Figure 8 of this part. A product having an 
intended sleep surface on only one side shall be tested with the 
sleeping side up so that the sleeping surface is exposed to the propane 
burner.
    (e) Burner flow rate/flow timer confirmation. Just prior to moving 
the burner adjacent to the test specimen, briefly ignite each burner at 
the same time, and check that the propane flow to that burner is set at 
the appropriate level on its flowmeter to provide the flows listed in 
Sec.  1633.7(a)(6)(ix). Check that the timers for the burner exposures 
are set to 70 seconds for the top burner and 50 seconds for the side 
burner. For a new burner assembly, check the accuracy of the gas flow 
timers against a stop watch at these standard time settings. Set pilot 
flows to a level that will not cause them to impinge on sample 
surfaces.
    (f) Location of the gas burners. Place the burner heads so that 
they are within 300 mm (1 ft) of the mid-length of the mattress. If 
there are unique construction features (e.g., handles, zippers) within 
the burner placement zone, the burner shall impinge on this feature. 
The general layout for the room configuration is shown in Figure 2 of 
this part. For a quilted mattress top the stand-off foot pad must 
alight on a high, flat area between dimples or quilting thread runs. 
The same is to be true for the side burner if that surface is quilted. 
If a specimen design presents a conflict in placement such that both 
burners cannot be placed between local depressions in the surface, the 
top burner shall be placed at the highest flat surface.
    (g) Burner set-up. The burners shall be placed in relation to the 
mattress and foundation surfaces in the manner shown in Figure 9 of 
this part, i.e., at the nominal spacings shown there and with the 
burner tubes nominally parallel \4\ to the mattress surfaces on which 
they impinge. Since the heat flux levels seen by the test specimen 
surfaces depend on burner spacing, as well as gas flow rate, care must 
be taken with the set-up process.
---------------------------------------------------------------------------

    \4\ The top burner will tend to be tangential to the mattress 
surface at the burner mid-length; this orientation will not 
necessarily be parallel to the overall average mattress surface 
orientation nor will it necessarily be horizontal. This is a result 
of the shape of the mattress top surface.
---------------------------------------------------------------------------

    (h) Burner alignment procedure. (1) Preparation. Complete the 
following before starting the alignment procedure:
    (i) Check that the pivot point for the mattress top burner feed 
tube and the two metal plates around it are clean and well-lubricated 
so as to allow smooth, free movement.
    (ii) Set the two burners such that the 5[deg] out-of-plane angling 
of the flame jets makes the jets on the two burners point slightly 
toward each other.
    (iii) Check the burner stand-off feet for straightness and 
perpendicularity between foot pad and support rod and to see that they 
are clean of residue from a previous test.
    (iv) Have at hand the following items to assist in burner set-up: 
The jig, shown in Figure 10 of this part, for setting the stand-off 
feet at their proper distances from the front of the burner tube; a 3 
mm thick piece of flat stock (any material) to assist in checking the 
parallelness of the burners to the mattress surfaces; and a 24 gage 
stainless steel sheet metal platen that is 30 mm (12 in) wide, 610 mm 
(24 in) long and has a sharp, precise 90[deg] bend 355 mm (14 in) from 
one 30 mm wide end. Refer to Figure 8 of this part.
    (2) Alignment. (i) Place the burner assembly adjacent to the test 
specimen. Place the sheet metal platen on the mattress with the shorter 
side on top. The location shall be within 30 cm (1 ft) of the 
longitudinal center of the mattress. The intended location of the 
stand-off foot of the top burner shall not be in a dimple or crease 
caused by the quilting of the mattress top. Press the platen laterally 
inward from the edge of the mattress so that its side makes contact 
with either the top and bottom edge or the vertical side of the 
mattress.\5\ Use a 20 cm (8 in) strip of duct tape (platen to mattress 
top) to hold the platen firmly inward in this position.
---------------------------------------------------------------------------

    \5\ Mattresses having a convex side are treated separately since 
the platen cannot be placed in the above manner. Use the platen only 
to set the top burner parallelness. Set the in/out distance of the 
top burner to the specification in paragraph (h)(1)(iii). Set the 
side burner so that it is approximately (visually) parallel to the 
flat side surface of the foundation below the mattress/foundation 
crevice once its foot is in contact with the materials in the 
crevice area. The burner will not be vertical in this case. If the 
foundation side is also non-flat, set the side burner vertical 
( 3 mm, as above) using a bubble level as a reference. 
The side surface convexities will then bring the bowed out sections 
of the specimen closer to the burner tube than the stand-off foot.
---------------------------------------------------------------------------

    (ii) With both burner arms horizontal (pinned in this position), 
fully retract the stand-off feet of both burners and, if necessary, the 
pilot tubes as well.\6\ (Neither is to protrude past the front face of 
the burner tubes at this point.) Move the burner assembly forward 
(perpendicular to the mattress) until the vertical burner lightly 
contacts the sheet metal platen. Adjust the height of the vertical 
burner on its vertical support column so as to center the tube on the 
crevice between the mattress and the foundation. (This holds also for 
pillow top mattress tops, i.e., ignore the crevice between the pillow 
top and the main body of the mattress.)\7\ Adjust the height of the 
horizontal burner until it sits lightly on top of the sheet metal 
platen. Its burner arm should then be horizontal.
---------------------------------------------------------------------------

    \6\ The pilot tubes can normally be left with their ends just 
behind the plane of the front of the burner tube. This way they will 
not interfere with positioning of the tube but their flame will 
readily ignite the burner tubes.
    \7\ For tests of the mattress alone, set the center of the side 
burner at the lower edge of the mattress OR the top (upper tip) of 
the side burner 25 mm (1 in) below the top edge of the mattress, 
whichever is lower. This prevents inappropriate (excessive) exposure 
of the top surface of the mattress to the side burner.
---------------------------------------------------------------------------

    (iii) Move the horizontal burner in/out (loosen the thumb screw 
near the pivot point) until the outer end of the burner tube is 13 mm 
to 19 mm (\1/2\ in to \3/4\ in) from the corner bend in the platen 
(this is facilitated by putting a pair of lines on the top of the 
platen 13 mm and 19 mm from the bend and parallel to it). Tighten the 
thumb screw.
    (iv) Make the horizontal burner parallel to the top of the platen 
(within 3 mm, \1/8\ in over the burner tube length) by bending the 
copper tube section appropriately. Note: After the platen is removed 
(in paragraph (h)(2)(vii) of this section), the burner tube may not be 
horizontal; this is normal. For mattress/foundation combinations having 
nominally flat, vertical sides, the similar adjustment for the vertical 
burner is intended to make that burner parallel to the sides and 
vertical. Variations in the shape of mattresses and foundations can 
cause the platen section on the side to be non-flat and/or non-
vertical. If the platen is flat and vertical, make the vertical burner 
parallel to the side of the platen ( 3 mm) by bending its 
copper tube section as needed. If not, make the side burner parallel to 
the mattress/foundation sides by the best visual estimate after the 
platen has been removed.
    (v) Move the burner assembly perpendicularly back away from the 
mattress about 30 cm (1 ft). Set the two stand-off feet to their 
respective distances using the jig designed for this purpose. Install 
the jig fully onto the burner tube (on the same side of the tube as the 
stand-off foot), with its side edges parallel to the burner feed arm, 
at

[[Page 13504]]

about the position where one end of the foot will be. Loosen the set 
screw and slide the foot out to the point where it is flush with the 
bottom end of the jig. Tighten the set screw. Make sure the long axis 
of the foot is parallel to the burner tube. It is essential to use the 
correct side of the spacer jig with each burner. Double check this. The 
jig must be clearly marked.
    (vi) Set the downward force of the horizontal burner. Remove the 
retainer pin near the pivot. While holding the burner feed arm 
horizontal using a spring scale \8\ hooked onto the thumbscrew holding 
the stand-off foot, move the small and/or large weights on the feed 
tube appropriately so that the spring scale reads 170 g to 225 g (6 oz 
to 8 oz).
---------------------------------------------------------------------------

    \8\ An acceptable spring scale has a calibrated spring mounted 
within a holder and hooks on each end.
---------------------------------------------------------------------------

    (vii) Remove the sheet metal platen (and tape holding it).
    (viii) Hold the horizontal burner up while sliding the burner 
assembly forward until its stand-off foot just touches the mattress 
and/or the foundation,\9\ then release the horizontal burner. The outer 
end of the burner tube should extend at least 6 mm to 12 mm (\1/4\ in 
to \1/2\ in) out beyond the uppermost corner/edge of the mattress so 
that the burner flames will hit the edge. (For a pillow top mattress, 
this means the outer edge of the pillow top portion and the distance 
may then be greater than 6 mm to 12 mm.) If this is not the case, move 
the burner assembly (perpendicular to the mattress side)--not the 
horizontal burner alone--until it is. Finally, move the vertical burner 
tube until its stand-off foot just touches the side of the mattress 
and/or the foundation. (Use the set screw near the vertical burner 
pivot.)
---------------------------------------------------------------------------

    \9\ The foot should depress the surface it first contacts by no 
more than 1 mm to 2 mm. This is best seen up close, not from the 
rear of the burner assembly. However, if a protruding edge is the 
first item contacted, compress it until the foot is in the plane of 
the mattress/foundation vertical sides. The intent here is that the 
burner be spaced a fixed distance from the vertical mattress/
foundation sides, not from an incidental protrusion. Similarly, if 
there is a wide crevice in this area which would allow the foot to 
move inward and thereby place the burners too close to the vertical 
mattress/foundation sides, it will be necessary to use the spacer 
jig (rather than the stand-off foot) above or below this crevice to 
set the proper burner spacing. Compress the mattress/foundation 
surface 1 mm to 2 mm when using the jig for this purpose.
---------------------------------------------------------------------------

    (ix) Make sure all thumbscrews are adequately tightened. Care must 
be taken, once this set-up is achieved, to avoid bumping the burner 
assembly or disturbing the flexible lines that bring propane to it.
    (x) If there is any indication of flow disturbances in the test 
facility which cause the burner flames or pilot flames to move around, 
place screens around the burners so as to minimize these 
disturbances.\10\ These screens (and any holders) must be far enough 
away from the burners (about 30 cm or more for the top, less for the 
side) so that they do not interact with the flames growing on the 
specimen surfaces. For the top surface burner, at least a triple layer 
of window screen approximately 30 cm high sitting vertically on the 
mattress top (Figure 9 of this part) has proved satisfactory. For the 
side burner at least a triple layer of screen approximately 15 cm wide, 
formed into a square-bottom U-shape and held from below the burner has 
proved satisfactory. Individual laboratories will have to experiment 
with the best arrangement for suppressing flow disturbances in their 
facility.
---------------------------------------------------------------------------

    \10\ The goal here is to keep the burner flames impinging on a 
fixed area of the specimen surface rather than wandering back and 
forth over a larger area.
---------------------------------------------------------------------------

    (i) Running the test. (1) Charge the hose line to be used for fire 
suppression with water.
    (2) Burner Preparation. (i) Turn AC power on; set propane pressure 
to 20 psig at bottle; set timers to 70 s (top burner) and 50 s (side 
burner); with burner assembly well-removed from test specimen, ignite 
burners and check that, WHEN BOTH ARE ON AT THE SAME TIME, the 
flowmeters are set to the values that give the requisite propane gas 
flow rates to each burner. Turn off burners. Set pilot tubes just 
behind front surface of burners; set pilot flow valves for ca. 2 cm 
flames. Turn off pilots.
    (ii) Position burner on test specimen and remove sheet metal 
platen.
    (iii) Place screens around both burners.
    (3) Start pilots. Open pilot ball valves one at a time and ignite 
pilots with hand-held flame; adjust flame size if necessary being very 
careful to avoid a jet flame that could prematurely ignite the test 
specimen (Note that after a long interval between tests the low pilot 
flow rate will require a long time to displace air in the line and 
achieve the steady-state flame size.)
    (4) Start recording systems. With the calorimetry system fully 
operational, after instrument zeroes and spans, start the video lights 
and video camera and data logging systems two minutes before burner 
ignition (or, if not using video, take a picture of the setup).
    (5) Initiate test. Start test exposure by simultaneously turning on 
power to both timers (timers will turn off burners at appropriate 
times). Also start a 30 minute timer of the test duration. Check/adjust 
propane flow rates (DO THIS ESSENTIAL TASK IMMEDIATELY. Experience 
shows the flow will not remain the same from test-to-test in spite of 
fixed valve positions so adjustment is essential.) If not using video, 
one photo must be taken within the first 45 seconds of starting the 
burners.
    (6) End of burner exposure. When the burners go out (after 70 
seconds for the longer exposure), carefully lift the top burner tube 
away from the specimen surface, producing as little disturbance as 
possible to the specimen. Turn off power to both timers. Remove all 
screens. Turn off pilots at their ball valves. Remove the burner 
assembly from the specimen area to facilitate the video camera view of 
the full side of the specimen. In the case of the room-based 
configurations, remove the burner assembly from the room to protect it.
    (j) Video Recording/Photographs. Place a video or still frame 
camera so as to have (when the lens is zoomed out) just slightly more 
than a full-length view of the side of the test specimen being ignited, 
including a view of the flame impingement area while the burner 
assembly is present. The view must also include the catch pan so that 
it is clear whether any melt pool fire in this pan participates 
significantly in the growth of fire on the test specimen. The camera 
shall include a measure of elapsed time to the nearest 1 second for 
video and 1 minute for still frame within its recorded field of view 
(preferably built into the camera). For the room-based configuration, 
the required full-length view of the sample may require an 
appropriately placed window, sealed with heat resistant glass, in one 
of the room walls. Place the camera at a height just sufficient to give 
a view of the top of the specimen while remaining under any smoke layer 
that may develop in the room. The specimen shall be brightly lit so 
that the image does not lose detail to over-exposed flames. This will 
require a pair or more of 1 kW photo flood lights illuminating the 
viewed side of the specimen. The lights may need to shine into the room 
from the outside via sealed windows.
    (k) Cessation of Test. (1) The heat release rate shall be recorded 
and video/photographs taken until either 30 minutes has elapsed since 
the start of the burner exposure or a fire develops of such size as to 
require suppression for the safety of the facility.
    (2) Note the time and nature of any unusual behavior that is not 
fully within the view of the video camera. This is most easily done by 
narration to a camcorder.

[[Page 13505]]

    (3) Run the heat release rate system and datalogger until the fire 
has been fully out for several minutes to allow the system zero to be 
recorded.
    (l) Use of alternate apparatus. Mattress sets may be tested using 
test apparatus that differs from that described in this section if the 
manufacturer obtains and provides to the Commission data demonstrating 
that tests using the alternate apparatus during the procedures 
specified in this section yield failing results as often as, or more 
often than, tests using the apparatus specified in the standard. The 
manufacturer shall provide the supporting data to the Office of 
Compliance, Recalls & Compliance Division, U.S. Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, Maryland 20814. Staff 
will review the data and determine whether the alternate apparatus may 
be used.


Sec.  1633.8  Findings.

    (a) General. In order to issue a flammability standard under the 
FFA, the FFA requires the Commission to make certain findings and to 
include these in the regulation, 15 U.S.C. 1193(j)(2). These findings 
are discussed in this section.
    (b) Voluntary standards. No findings concerning compliance with and 
adequacy of a voluntary standard are necessary because no relevant 
voluntary standard addressing the risk of injury that is addressed by 
this regulation has been adopted and implemented.
    (c) Relationship of benefits to costs. The Commission estimates the 
potential total lifetime benefits of a mattress that complies with this 
standard to range from $45 to $57 per mattress set (based on a 10 year 
mattress life and a 3% discount rate). The Commission estimates total 
resource costs of the standard to range from $8 to $22 per mattress. 
This yields net benefits of $23 to $50 per mattress set. The Commission 
estimates that aggregate lifetime benefits associated with all 
mattresses produced the first year the standard becomes effective range 
from $1,024 to $1,307 million, and that aggregate resource costs 
associated with these mattresses range from $175 to $511 million, 
yielding net benefits of about $514 to $1,132 million. Accordingly, the 
Commission finds that the benefits from the regulation bear a 
reasonable relationship to its costs.
    (d) Least burdensome requirement. The Commission considered the 
following alternatives: alternative maximum peak heat release rate and 
test duration, alternative total heat released in the first 10 minutes 
of the test, mandatory production testing, a longer effective date, 
taking no action, relying on a voluntary standard, and requiring 
labeling alone (without any performance requirements). The alternatives 
of taking no action, relying on a voluntary standard (if one existed), 
and requiring labeling alone are unlikely to adequately reduce the 
risk. Requiring a criterion of 25 MJ total heat release during the 
first 10 minutes of the test instead of 15 MJ would likely reduce the 
estimated benefits (deaths and injuries reduced) without having much 
effect on costs. Both options of increasing the duration of the test 
from 30 minutes to 60 minutes and decreasing the peak rate of heat 
release from 200 kW to 150 kW would likely increase costs significantly 
without substantial increase in benefits. Requiring production testing 
would also likely increase costs. Therefore, the Commission finds that 
an open flame standard for mattresses with the testing requirements and 
criteria that are specified in the Commission rule is the least 
burdensome requirement that would prevent or adequately reduce the risk 
of injury for which the regulation is being promulgated.


Sec.  1633.9  Glossary of terms.

    (a) Absorbent pad. Pad used on top of mattress. Designed to absorb 
moisture/body fluids thereby reducing skin irritation, can be one time 
use.
    (b) Basket pad. Cushion for use in an infant basket.
    (c) Bunk beds. A tier of beds, usually two or three, in a high 
frame complete with mattresses (see Figure 11 of this part).
    (d) Car bed. Portable bed used to carry a baby in an automobile.
    (e) Carriage pad. Cushion to go into a baby carriage.
    (f) Chaise lounge. An upholstered couch chair or a couch with a 
chair back. It has a permanent back rest, no arms, and sleeps one (see 
Figure 11).
    (g) Convertible sofa. An upholstered sofa that converts into an 
adult sized bed. Mattress unfolds out and up from under the seat 
cushioning (see Figure 11).
    (h) Corner groups. Two twin size bedding sets on frames, usually 
slipcovered, and abutted to a corner table. They also usually have 
loose bolsters slipcovered (see Figure 11).
    (i) Crib bumper. Padded cushion which goes around three or four 
sides inside a crib to protect the baby. Can also be used in a playpen.
    (j) Daybed. Daybed has foundation, usually supported by coil or 
flat springs, mounted between arms on which mattress is placed. It has 
permanent arms, no backrest, and sleeps one (see Figure 11).
    (k) Dressing table pad. Pad to cushion a baby on top of a dressing 
table.
    (l) Drop-arm loveseat. When side arms are in vertical position, 
this piece is a loveseat. The adjustable arms can be lowered to one of 
four positions for a chaise lounge effect or a single sleeper. The 
vertical back support always remains upright and stationary (see Figure 
11).
    (m) Futon. A flexible mattress generally used on the floor that can 
be folded or rolled up for storage. It usually consists of resilient 
material covered by ticking.
    (n) High riser. This is a frame of sofa seating height with two 
equal size mattresses without a backrest. The frame slides out with the 
lower mattress and rises to form a double or two single beds (see 
Figure 11).
    (o) Infant carrier and lounge pad. Pad to cushion a baby in an 
infant carrier.
    (p) Mattress foundation. This is a ticking covered structure used 
to support a mattress or sleep surface. The structure may include 
constructed frames, foam, box springs or other materials used alone or 
in combination.
    (q) Murphy bed. A style of sleep system where the mattress and 
foundation are fastened to the wall and provide a means to retract or 
rotate the bed assembly into the wall to release more floor area for 
other uses.
    (r) Pillow. Cloth bag filled with resilient material such as 
feathers, down, sponge rubber, urethane, or fiber used as the support 
for the head of a person.
    (s) Playpen pad. Cushion used on the bottom of a playpen.
    (t) Portable crib. Smaller size than a conventional crib. Can 
usually be converted into a playpen.
    (u) Quilted means stitched with thread or by fusion through the 
ticking and one or more layers of material.
    (v) Roll-away-bed. Portable bed which has frame that folds with the 
mattress for compact storage.
    (w) Sleep lounge. Upholstered seating section which is mounted on a 
frame. May have bolster pillows along the wall as backrests or may have 
attached headrests (see Figure 11).
    (x) Stroller pad. Cushion used in a baby stroller.
    (y) Sofa bed. These are pieces in which the back of the sofa swings 
down flat with the seat to form the sleeping surface. Some sofa beds 
have bedding boxes for storage of bedding. There are two types: the 
one-piece, where the back and seat are upholstered as a unit, supplying 
an unbroken sleeping surface; and the two-piece, where back and seat 
are upholstered separately (see Figure 11 of this part).

[[Page 13506]]

    (z) Sofa lounge--(includes glideouts). Upholstered seating section 
is mounted on springs and in a frame that permit it to be pulled out 
for sleeping. Has upholstered backrest bedding box that is hinged. 
Glideouts are single sleepers with sloping seats and backrests. Seat 
pulls out from beneath back and evens up to supply level sleeping 
surface (see Figure 11).
    (aa) Studio couch. Consists of upholstered seating section on 
upholstered foundation. Many types convert to twin beds (see Figure 
11).
    (bb) Studio divan. Twin size upholstered seating section with 
foundation is mounted on metal bed frame. Has no arms or backrest, and 
sleeps one (see Figure 11 of this part).
    (cc) Trundle bed. A low bed which is rolled under a larger bed. In 
some lines, the lower bed springs up to form a double or two single 
beds as in a high riser (see Figure 11).
    (dd) Tufted means buttoned or laced through the ticking and 
upholstery material and/or core, or having the ticking and loft 
material and/or core drawn together at intervals by any other method 
which produces a series of depressions on the surface.
    (ee) Twin studio divan. Frames which glide out (but not up) and use 
seat cushions, in addition to upholstered foundation to sleep two. Has 
neither arms nor back rest (see Figure 11).
    (ff) Flip or sleeper chair. Chair that unfolds to be used for 
sleeping, typically has several connecting fabric covered, solid foam 
core segments.

Subpart B--Rules and Regulations


Sec.  1633.10  Definitions.

    (a) Standard means the Standard for the Flammability (Open-Flame) 
of Mattress Sets (16 CFR part 1633, subpart A).
    (b) The definition of terms set forth in the Sec.  1633.2 of the 
Standard shall also apply to this section.


Sec.  1633.11  Records.

    (a) Test and manufacturing records C general. Every manufacturer 
and any other person initially introducing into commerce mattress sets 
subject to the standard, irrespective of whether guarantees are issued 
relative thereto, shall maintain the following records in English at a 
location in the United States:
    (1) Test results and details of each test performed by or for that 
manufacturer (including failures), whether for qualification, 
confirmation, or production, in accordance with Sec.  1633.7. Details 
shall include: name and complete physical address of test facility, 
type of test room, test room conditions, time that sample spent out of 
conditioning area before starting test, prototype or production 
identification number, and test data including the peak rate of heat 
release, total heat release in first 10 minutes, a graphic depiction of 
the peak rate of heat release and total heat release over time. These 
records shall include the name and signature of person conducting the 
test, the date of the test, and a certification by the person 
overseeing the testing as to the test results and that the test was 
carried out in accordance with the Standard. For confirmation tests, 
the identification number must be that of the prototype tested.
    (2) Video and/or a minimum of eight photographs of the testing of 
each mattress set, in accordance with Sec.  1633.7 (one taken before 
the test starts, one taken within 45 seconds of the start of the test, 
and the remaining six taken at five minute intervals, starting at 5 
minutes and ending at 30 minutes), with the prototype identification 
number or production lot identification number of the mattress set, 
date and time of test, and name and location of testing facility 
clearly displayed.
    (b) Prototype records. In addition to the records specified in 
paragraph (a) of this section, the following records shall be 
maintained for each qualified, confirmed and subordinate prototype:
    (1) Unique identification number for the qualified or confirmed 
prototype and a list of the unique identification numbers of each 
subordinate prototype based on the qualified or confirmed prototype. 
Subordinate prototypes that differ from each other only be length or 
width may share the same identification number.
    (2) A detailed description of all materials, components, and 
methods of assembly for each qualified, confirmed and subordinate 
prototype. Such description shall include the specifications of all 
materials and components, and the name and complete physical address of 
each material and component supplier.
    (3) A list of which models and production lots of mattress sets are 
represented by each qualified, confirmed and/or subordinate prototype 
identification number.
    (4) For subordinate prototypes, the prototype identification number 
of the qualified or confirmed prototype on which the mattress set is 
based, and, at a minimum, the manufacturing specifications and a 
description of the materials substituted, photographs or physical 
specimens of the substituted materials, and documentation based on 
objectively reasonable criteria that the change in any component, 
material, or method of assembly will not cause the subordinate 
prototype to exceed the test criteria specified in Sec.  1633.3(b).
    (5) Identification, composition, and details of the application of 
any flame retardant treatments and/or inherently flame resistant fibers 
or other materials employed in mattress components.
    (c) Pooling confirmation test records. In addition to the test and 
prototype records specified in paragraphs (a) and (b) of this section, 
the following records shall be maintained:
    (1) The prototype identification number assigned by the qualified 
prototype manufacturer;
    (2) Name and complete physical address of the qualified prototype 
manufacturer;
    (3) Copy of qualified prototype test records, and records required 
by paragraph (b)(2) of this section; and
    (4) In the case of imported mattress sets, the importer shall be 
responsible for maintaining the records specified in paragraph (b) of 
this section for confirmation testing that has been performed with 
respect to mattress sets produced by each foreign manufacturing 
facility whose mattress sets that importer is importing.
    (d) Quality assurance records. In addition to the records required 
by paragraph (a) of this section, the following quality assurance 
records shall be maintained:
    (1) A written copy of the manufacturer's quality assurance 
procedures;
    (2) Records of any production tests performed. Production test 
records must be maintained and shall include, in addition to the 
requirements of paragraph (a) of this section, an assigned production 
lot identification number and the identification number of the 
qualified, confirmed or subordinate prototype associated with the 
specimen tested;
    (3) For each qualified, confirmed and subordinate prototype, the 
number of mattress sets in each production lot based on that prototype;
    (4) The start and end dates of production of that lot; and
    (5) Component, material and assembly records. Every manufacturer 
conducting tests and/or technical evaluations of components and 
materials and/or methods of assembly must maintain detailed records of 
such tests and evaluations.
    (e) Record retention requirements. The records required under this 
Section shall be maintained by the manufacturer (including importers) 
for as long as mattress sets based on the prototype in question are in 
production and shall be

[[Page 13507]]

retained for 3 years thereafter. Records shall be available upon the 
request of Commission staff.
    (f) Record location requirements. (1) For mattress sets produced in 
the United States, all records required by this section must be 
maintained at the plant or factory at which the mattress sets are 
manufactured or assembled.
    (2) For mattress sets produced outside of the United States, a copy 
of all records required by this section must be maintained at a U.S. 
location, which must be identified on the mattress set label as 
specified in Sec.  1633.12(a).


Sec.  1633.12  Labeling.

    (a) Each mattress set subject to the Standard shall bear a 
permanent, conspicuous, and legible label(s) containing the following 
information (and no other information) in English:
    (1) Name of the manufacturer, or for imported mattress sets, the 
name of the foreign manufacturer and importer;
    (2)(i) For mattress sets produced in the United States, the 
complete physical address of the manufacturer.
    (ii) For imported mattress sets, the complete address of the 
foreign manufacturer, including country, and the complete physical 
address of the importer or the United States location where the 
required records are maintained if different from the importer;
    (3) Month and year of manufacture;
    (4) Model identification;
    (5) Prototype identification number for the mattress set;
    (6) A certification that the mattress complies with this standard.
    (i) For mattresses intended to be sold without a foundation, a 
certification stating ``This mattress meets the requirements of 16 CFR 
part 1633 (federal flammability (open flame) standard for mattresses) 
when used without a foundation''; or
    (ii) For mattresses intended to be sold with a foundation, a 
certification stating ``This mattress meets the requirements of 16 CFR 
part 1633 (federal flammability (open flame) standard for mattresses) 
when used with foundation .'' Such foundation(s) shall be clearly 
identified by a simple and distinct name and/or number on the mattress 
label; or
    (iii) For mattresses intended to be sold both alone and with a 
foundation, a certification stating ``This mattress meets the 
requirements of 16 CFR part 1633 (federal flammability (open flame) 
standard for mattresses) when used without a foundation or with 
foundation(s) .''; and
    (7) A statement identifying whether the manufacturer intends the 
mattress to be sold alone or with a foundation.
    (i) For mattresses intended to be sold without a foundation, the 
label shall state ``THIS MATTRESS IS INTENDED TO BE USED WITHOUT A 
FOUNDATION.'' See Figures 16 and 17 of this part; or
    (ii) For mattresses intended to be sold with a foundation, the 
label shall state ``THIS MATTRESS IS INTENDED TO BE USED WITH 
FOUNDATION(S): .'' See Figures 12 and 13 of this part; 
or
    (iii) For mattresses intended to be sold both alone and with a 
foundation, the label shall state ``THIS MATTRESS IS INTENDED TO BE 
USED WITHOUT A FOUNDATION OR WITH FOUNDATION(S): .'' See 
Figures 14 and 15 of this part.
    (b) The mattress label required in paragraph (a) of this section 
must measure 2\3/4\ in width and the length can increase as 
needed for varying information. The label must be white with black 
text. The label text shall comply with the following format 
requirements:
    (1) All information specified in paragraphs (a)(1) through (6) of 
this section must be in 6-point font or larger with mixed uppercase and 
lowercase letters. The text must be left justified and begin \1/
4\ from left edge of label. See Figure 12-17 of this part.
    (2) The statement specified in paragraph (a)(7)(i) of this section 
must be in 10-point Arial/Helvetica font or larger, uppercase letters 
with the words ``WITHOUT A FOUNDATION'' bolded and the word ``WITHOUT'' 
in italics. The text shall be centered in a text box with the width 
measuring 2\1/2\ and the length increasing as needed. See 
Figures 16 and 17 of this part.
    (3) The statement specified in paragraph (a)(7)(ii) of this section 
must be in 10-point Arial/Helvetica font or larger in uppercase 
letters. The foundation identifier should be in 12-point font or 
larger, bolded, and underlined. The text shall be centered in a text 
box with the width measuring 2\1/2\ and the length 
increasing as needed. See Figures 12 and 13 of this part.
    (4) The statement specified in paragraph (a)(7)(iii) of this 
section must be in 10-point or larger Arial/Helvetica font, uppercase 
letters with the words ``WITHOUT A FOUNDATION OR'' bolded and the word 
``WITHOUT'' in italics. The foundation identifier should be in 12-point 
font or larger, bolded, and underlined. The text shall be centered in a 
text box with the width measuring 2\1/2\ and the length 
increasing as needed. See Figures 14 and 15 of this part.
    (c) The foundation label required in paragraph (a) of this section 
must measure 2\3/4\ in width and the length can increase as 
needed for varying information. The label must be white with black 
text. The label shall contain the following:
    (1) The information specified in paragraphs (a)(1) through (5) of 
this section; and
    (2) The words ``Foundation ID:'' followed by a distinct name and/or 
number that corresponds to the name and/or number used on the mattress. 
This text must be in 10-point or larger bold Arial/Helvetica font, and 
the foundation identifier must be underlined. See Figures 12 through 15 
of this part.
    (d) The statements specified in paragraphs (a)(7(i) and (a)(7)(ii), 
and (a)(7)(iii) of this section may be translated into any other 
language and printed on the reverse (blank) side of the label.
    (e) No person, other than the ultimate consumer, shall remove or 
mutilate, or cause or participate in the removal or mutilation of, any 
label required by this section to be affixed to any item.


Sec.  1633.13  Tests for guaranty purposes, compliance with this 
section, and ``one of a kind'' exemption.

    (a) Tests for guaranty purposes. Reasonable and representative 
tests for the purpose of issuing a guaranty under section 8 of the 
Flammable Fabrics Act, 15 U.S.C. 1197, for mattress sets subject to the 
Standard shall be the tests performed to show compliance with the 
Standard.
    (b) Compliance with this section. No person subject to the 
Flammable Fabrics Act shall manufacture for sale, import, distribute, 
or otherwise market or handle any mattress set which is not in 
compliance with the provisions under Subpart B.
    (c) ``One of a kind'' exemption for physician prescribed 
mattresses. (1)(i) A mattress set manufactured in accordance with a 
physician's written prescription or manufactured in accordance with 
other comparable written medical therapeutic specification, to be used 
in connection with the treatment or management of a named individual's 
physical illness or injury, shall be considered a ``one of a kind 
mattress'' and shall be exempt from testing under the Standard pursuant 
to Sec.  1633.7 thereof: Provided, that the mattress set bears a 
permanent, conspicuous and legible label which states:

    WARNING: This mattress set may be subject to a large fire if 
exposed to an open flame. It was manufactured in accordance

[[Page 13508]]

with a physician's prescription and has not been tested under the 
Federal Standard for the Flammability (Open-Flame) of Mattress Sets 
(16 CFR part 1633).

    (ii) Such labeling must be attached to the mattress set so as to 
remain on or affixed thereto for the useful life of the mattress set. 
The label must be at least 40 square inches (250 sq. cm) with no linear 
dimension less than 5 inches (12.5 cm). The letters in the word 
``WARNING'' shall be no less than 0.5 inch (1.27 cm) in height and all 
letters on the label shall be in a color which contrasts with the 
background of the label. The warning statement which appears on the 
label must also be conspicuously displayed on the invoice or other 
sales papers that accompany the mattress set in commerce from the 
manufacturer to the final point of sale to a consumer.
    (2) The manufacturer of a mattress set exempted from testing under 
this paragraph (c) shall, in lieu of the records required to be kept by 
Sec.  1633.10, retain a copy of the written prescription or other 
comparable written medical therapeutic specification for such mattress 
set during a period of three years, measured from the date of 
manufacture.
    (3) For purposes of this regulation the term physician shall mean a 
physician, chiropractor or osteopath licensed or otherwise permitted to 
practice by any State of the United States.
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BILLING CODE 6355-01-C

    Dated: March 3, 2006.
Todd Stevenson,
Secretary, Consumer Product Safety Commission.

List of Relevant Documents

    1. Briefing memorandum from Margaret Neily, Project Manager, 
Directorate for Engineering Sciences, to the Commission, ``Final 
Rule for the Flammability (Open Flame) of Mattress Sets,'' January 
13, 2006.
    2. Memorandum from Allyson Tenney, ES, to Margaret Neily, 
Engineering Sciences, ``Technical Rationale for the Standard for the 
Flammability (Open Flame) of Mattress Sets and Responses to Related 
Public Comments,'' January 6, 2006.
    3. Memorandum from Linda Smith and David Miller, EPI, Updated 
Estimates of Residential Fire Losses Involving Mattresses and 
Bedding, December 2005.
    4. Memorandum from David Cobb, LSC, to Allyson Tenney, ESFS, 
``Durability of Flame Retardant Chemicals in Mattress Barriers After 
Repeated Insults with Synthetic Urine,'' December 12, 2005.
    5. Memorandum from Diane Porter, LS, to Allyson Tenney, ES, 
``Mattress Flammability--Suggested Revisions to Proposed 16 CFR Part 
1633 Standard for the Flammability (Open Flame) of Mattresses and 
Mattress/Foundation Sets,'' January 6, 2006.

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    6. Terrance R. Karels, EC, to Margaret L. Neily, ES, ``Mattress 
Update,'' December 7, 2005.
    7. Memorandum from Soumaya Tohamy, EC, to Margaret Neily, 
Project Manager, ``Final Regulatory Analysis Staff's Draft Final 
Standard to Address Open Flame Ignitions of Mattress Sets,'' January 
10, 2006.
    8. Memorandum from Soumaya Tohamy, EC, to Margaret Neily, 
Project Manager, ``Final Regulatory Flexibility Analysis for Staff's 
Draft Final Standard to Address Open Flame Ignitions of Mattress 
Sets,'' January 10, 2006.
    9. Memorandum from Soumaya M. Tohamy, EC, to Margaret L. Neily, 
ES, ``Staff Response to Economic Comments on NPR for Open Flame 
Mattress Standard,'' January 10, 2006.
    10. Memorandum from Robert Franklin, EC, to Margaret L. Neily, 
ES, ``Updated Environmental Information,'' December 14, 2005.
    11. Memorandum from Treye Thomas and Patricia Brundage, HS, 
``Quantitative Assessment of Health Effects from the Use of Flame 
Retardant (FR) Chemicals in Mattresses,'' January 9, 2006.
    12. Memorandum from Treye A. Thomas and Patricia Brundage, HS, 
to Margaret Neily, ``Response to TERA Comments on Mattresses--
Toxicity of Flame Retardant Chemicals,'' January 9, 2006.
    13. Memorandum from Michael Babich, HS, to Margaret Neily, 
``Response to Public Comments on Mattresses--Toxicity of Flame 
Retardant Chemicals,'' January 9, 2006.
    14. Memorandum from Robert Franklin, EC, ``Environmental 
Assessment of a Draft Proposed Open-Flame Ignition Resistance 
Standard for Mattresses,'' October 27, 2004.
    15. Memorandum from Patricia Semple, Executive Director, CPSC, 
to the Commission, ``Finding of No Significant Impact from 
Implementation of the Proposed Open-Flame Ignition Resistance 
Standard for Mattresses and Mattress/Foundation Sets,'' November 19, 
2004.
    16. Peer review comments on the CPSC Memo ``Quantitative 
Assessment of Potential Health Effects From the Use of Fire 
Retardant Chemicals in Mattresses,'' Lead authors: Lynne Haber, TERA 
Mike Jayjock, The Lifeline Group.
    17. Memorandum from Martha A. Kosh, OS, to ES, ``Standard to 
Address Open Flame Ignition of Mattresses/Bedding; ANPR,'' List of 
comments on CF 02-1, December 13, 2001.
    18. Memorandum from Martha A. Kosh, OS, to ES, ``Standard for 
the Flammability (Open Flame) of Mattresses and Mattress/foundation 
Sets; Notice of Proposed Rulemaking,'' List of comments on CF 05-1, 
March 31, 2005.
    19. Memorandum from Martha A. Kosh, OS, to ES, ``Standard for 
the Flammability (Open Flame) of Mattresses and Mattress/foundation 
Sets; Notice of Proposed Rulemaking,'' list of comments on CF 05-3-
1, August 23, 2005.
    20. Memorandum from Jason Hartman, CE, to Margaret Neily, 
Director ESFS, ``Changes to the Labeling Provision of the Proposed 
Open Flame Mattress Standard,'' December 20, 2005.
    21. Memorandum from Sarah B. Brown, ESHF, to Margaret Neily, 
Project Manager, ``Mattress Label Format and Layout Justification,'' 
December 13, 2005.
    22. Memorandum from Jason Hartman, CE, to Margaret Neily, 
Director ESFS, ``Staff Response to Compliance-Related Comments on 
NPR for Open Flame Mattress Standard,'' December 14, 2005.
    23. Memorandum from Jonathan D. Midgett, ESHF, to Margaret L. 
Neily, Project Manager, ``Human Factors Affecting Sampling on 
Mattress Surfaces,'' December 12, 2005.
    24. Memorandum from Bharat Bhooshan, LSC, to Treye Thomas, HS, 
``Vinylidene Chloride (VC) Testing in Mattress-barrier Samples,'' 
December 12, 2005.
    25. Memorandum from David Cobb, LSC, to Treye Thomas, HS, 
``Migration of Flame Retardant Chemicals in Mattress Barriers,'' 
December 12, 2005.

[FR Doc. 06-2206 Filed 3-14-06; 8:45 am]
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