[Federal Register Volume 85, Number 211 (Friday, October 30, 2020)]
[Proposed Rules]
[Pages 68803-68809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22747]


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CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2020-0024]

16 CFR Part 1632


Standard for the Flammability of Mattresses and Mattress Pads; 
Proposed Amendment

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed rule.

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SUMMARY: The Consumer Product Safety Commission (Commission, or CPSC) 
is proposing to amend its Standard for the Flammability of Mattresses 
and Mattress Pads. The ignition source cigarette specified in the 
standard for use in the mattress standard's performance tests, Standard 
Reference Material cigarette SRM 1196, is no longer available for 
purchase. The Commission is proposing to amend the mattress standard to 
require a revised Standard Reference Material cigarette, SRM 1196a, 
which was developed by the National Institute of Standards and 
Technology, as the ignition source for testing to the mattress 
standard.

DATES: Comments on the proposal should be submitted no later than 
January 13, 2021.

ADDRESSES: Comments, identified by Docket No. CPSC-2020-0024, may be 
submitted electronically or in writing:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: https://www.regulations.gov. Follow the 
instructions for submitting comments. The CPSC does not accept comments 
submitted by electronic mail (email), except through https://www.regulations.gov. The CPSC encourages you to submit electronic 
comments by using the Federal eRulemaking Portal, as described above.
    Mail/hand delivery/courier Written Submissions: Submit comments by 
mail/hand delivery/courier to: Division of the Secretariat, Consumer 
Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, 
MD 20814; telephone: (301) 504-7479; email: [email protected].
    Instructions: All submissions must include the agency name and 
docket number for this proposed rule. CPSC may post all comments 
received without change, including any personal identifiers, contact 
information, or other personal information provided, to: https://www.regulations.gov. Do not submit electronically: confidential 
business information, trade secret information, or other sensitive or 
protected information that you do not want to be available to the 
public. If you wish to submit such information, please submit it 
according to the instructions for written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2020-0024, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Lisa Scott, Directorate for Laboratory 
Sciences, Office of Hazard Identification and Reduction, U.S. Consumer 
Product Safety Commission, 5 Research Place, Rockville, MD 20850; 
telephone: 301-987-2064; email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

1. The Standard

    The Standard for the Flammability of Mattresses and Mattress Pads 
(Standard), 16 CFR part 1632, issued pursuant to the Flammable Fabrics 
Act (FFA), 15 U.S.C. 1191 et seq., sets forth a test to determine the 
ignition resistance of a mattress or mattress pad when exposed to a 
lighted cigarette. Lighted cigarettes are placed at specified locations 
on the surface of a mattress or mattress pad. The Standard establishes 
pass/fail criteria for the tests. The Standard currently specifies the 
ignition source for these tests as Standard Reference Material 
cigarette SRM 1196, available for purchase from the National Institute 
of Standards and Technology (NIST). See 16 CFR 1632.4(a)(2).

2. Development of the Original Standard Reference Material Cigarette

    The original specification for the Standard's ignition source 
included physical characteristics of a conventional, commercially 
available, non-filtered, king-sized cigarette. Although no specific 
brand was identified in the standard, a Pall Mall Red cigarette, 
manufactured by R.J. Reynolds Tobacco Company (RJR), was commonly known 
to meet the specifications. In early 2008, RJR notified CPSC that the 
company intended to convert its production of Pall Mall Red cigarettes 
to be Fire Standard Compliant (FSC).
    In 2008, CPSC sought to find an alternate ignition source and 
contracted with NIST to develop an ignition source with an ignition 
strength equivalent to the conventional Pall Mall Red cigarette. The 
ignition strength value is on a scale from 0 to 100 and is analogous to 
the percentage of full-length burns on a laboratory substrate. Lower 
values indicate a cigarette is more likely to self-extinguish when not 
actively being smoked, while higher values indicate a cigarette is more 
likely to remain lit while unattended. The Pall Mall Red ignition 
strength varied by vintage from a measured low of 35 to a high of 95, 
most often falling at the higher end of the range. FSC cigarettes are 
required to have an ignition strength lower than 25 and in practice are 
often much weaker to ensure uniform compliance.
    In 2010, NIST developed SRM 1196, Standard Cigarette for Ignition

[[Page 68804]]

Resistance Testing. SRM 1196 was available for purchase starting in 
September 2010. On November 1, 2010, CPSC proposed the use of the SRM 
1196 cigarette as the standard ignition source. 75 FR 67047. On 
September 23, 2011, CPSC issued a final rule amending the Standard to 
specify SRM 1196 as the standard ignition source, which became 
effective on September 23, 2012. 76 FR 59014.

3. Development of a New Standard Reference Material Cigarette

    All of the SRM 1196 cigarettes were produced in one production run 
in 2010, with a supply estimated to last approximately 10 years. NIST 
staff made several attempts to procure a new batch of SRM 1196 
cigarettes as the supply dwindled, but in late 2018, the supply of SRM 
1196 was depleted before NIST was able to complete a new procurement. 
NIST was unable to find a manufacturer to produce additional SRM 1196 
cigarettes. However, NIST successfully procured SRM 1196a as a 
replacement for SRM 1196.
    NIST conducted tests to determine whether the SRM 1196 properties 
were replicated in the new SRM 1196a. NIST evaluated the suitability of 
SRM 1196a by examining the cigarette's ignition strength, tobacco 
column length and mass, use of unbanded paper, and absence of a filter. 
Tobacco column length is the length of the cigarette that contains 
tobacco. Banded paper contains bands that slow the cigarette's 
combustion when not actively being smoked, while unbanded paper does 
not contain these bands. NIST affirmed that these SRM 1196 properties 
were replicated in the new SRM 1196a, because it has a similar ignition 
strength, tobacco column length and mass, it uses unbanded paper, and 
it has no filter. NIST began selling SRM 1196a in February 2020.

4. CPSC Staff Evaluation of SRM 1196a 1
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    \1\ Staff Briefing Package, Proposed Amendment to 16 CFR part 
1632 Standard for the Flammability of Mattresses and Mattress Pads, 
is available at https://www.cpsc.gov/s3fs-public/NPR-Standard-for-the-Flammability-of-Mattresses-and-Mattress-Pads-Proposed-Amendment.pdf?POASWvZmX8ZwwU1OIoDjE9CDMRCHPaGA.
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    CPSC staff evaluated SRM 1196a in a pilot study and then a full-
scale study to determine whether it is a comparable, safety-neutral 
replacement for SRM 1196.
    CPSC staff conducted an initial pilot study in late 2019 to 
evaluate the suitability of SRM 1196a as a substitute for SRM 1196. The 
goal of the pilot study was to ensure the full-scale study met 
statistically robust and scientifically meaningful criteria. Staff 
evaluated the confidence interval and margin of error to utilize in the 
full-scale study, based on an examination of the 2010 transition from 
the original ignition source to SRM 1196, CPSC compliance data, and the 
number of test replicates required by the Standard. Based on this 
analysis and testing during the pilot study, staff subject matter 
experts determined that a 90 percent confidence interval and 
equivalence margin of 35 percent were appropriate.
    CPSC staff then conducted a full-scale study in early 2020 to 
determine whether there is statistical equivalence between SRM 1196 and 
SRM 1196a. In the full-scale study, staff evaluated both SRM 1196 and 
SRM 1196a and found statistically equivalent char length pass/fail 
patterns for all tested mattress substrates. Test results were within a 
90 percent confidence interval and equivalence margin of 35 percent. 
Staff noted that NIST certified the ignition strengths of both SRMs to 
be comparable based on a 95 percent confidence interval with a 5 
percent margin in laboratory testing. While the bounds found by CPSC 
staff are larger than the NIST confidence interval, staff determined 
that the NIST tests only examined the cigarette characteristics on 
substrates which have little variability. The CPSC testing included 
representative mattress materials that are inherently more variable 
than the benchmark substrates in the NIST cigarette tests. Furthermore, 
staff analysis of both SRM cigarettes found that the physical 
dimensions of SRM 1196 and SRM 1196a are nearly identical. Based on the 
evidence provided by the full-scale study, pilot study, and NIST 
certification, as well as examination of CPSC compliance data and data 
from the 2010 transition from the original ignition source to SRM 1196, 
CPSC staff's review showed that SRM 1196a cigarettes are statistically 
equivalent to SRM 1196. On these bases, the Commission finds that SRM 
1196a is a comparable, safety-neutral replacement for SRM 1196.

B. Statutory Provisions

    The FFA sets forth the process by which the Commission can issue or 
amend a flammability standard. In accordance with those provisions, the 
Commission is proposing to amend the Standard to specify the SRM 1196a 
cigarette developed by NIST as the ignition source to be used for 
testing under the Standard. As required by the FFA, the proposed rule 
contains the text of the amendment, alternatives that the Commission 
has considered, and a preliminary regulatory analysis. 15 U.S.C. 
1193(i). Before issuing a final rule, the Commission must prepare a 
final regulatory analysis and make certain findings concerning any 
relevant voluntary standard, the relationship of costs and benefits of 
the rule, and the burden imposed by the regulation. Id. 1193(j). 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. Id. 1193(b).
    The Commission also must provide an opportunity for interested 
persons to make an oral presentation concerning the rulemaking before 
the Commission may issue a final rule. Id. 1193(d). The Commission 
requests that anyone who would like to make an oral presentation 
concerning this rulemaking please contact the Commission's Division of 
the Secretariat (see the ADDRESSES section of this proposed rule) 
within 45 days of publication of this proposed rule. If the Commission 
receives requests to make oral comments, a date will be set for a 
public meeting via webinar for that purpose, and notice of the meeting 
will be provided in the Federal Register.

C. Description of the Proposed Amendment

    Currently, the Standard requires that the ignition source for 
testing mattresses ``shall be a Standard Reference Material cigarette 
(SRM 1196), available for purchase from the National Institute of 
Standards and Technology. . . .'' 16 CFR 1632.4(a)(2). CPSC now 
proposes to amend the Standard to require the use of SRM 1196a instead 
of SRM 1196.

D. Preliminary Regulatory Analysis

    Section 4(i) of the FFA requires that the Commission prepare a 
preliminary regulatory analysis when it proposes to issue or amend a 
flammability standard under the FFA and that this analysis be published 
with the proposed rule. 15 U.S.C. 1193(i). CPSC staff conducted this 
analysis to assess the regulatory impact of the proposed amendment.

1. Market/Industry Information

    The size of the U.S. mattress market increased from $17.4 billion 
in 2018 to $18.1 billion in 2019. Roughly 23.6 million mattress units 
shipped in 2018. Approximately 29 percent (6.8 million) of units 
shipped were imported products.

[[Page 68805]]

    Three industry sectors supply Mattresses and Mattress Pads to the 
U.S. Market, categorized under the North American Industry 
Classification System (NAICS): NAICS Sector 337910--Mattress 
Manufacturing, NAICS Sector 314120--Curtain and Linen Mills, and NAICS 
Sector 423210--Furniture and Merchant Wholesalers.
    The Mattress Manufacturing Sector (337910) includes establishments 
primarily engaged in manufacturing innerspring, box spring, and non-
innerspring mattresses. The Curtain and Linen Mills Sector (314120) 
comprises establishments primarily engaged in manufacturing household 
linens, bedspreads, sheets, tablecloths, towels, and shower curtains, 
from purchased materials. This sector includes mattress pad and 
mattress protector manufacturing. The Furniture and Merchant 
Wholesalers Sector (423210) is primarily engaged in the merchant 
wholesale distribution of furniture, except hospital beds and medical 
furniture. Importers of mattresses are typically categorized under 
NAICS code 423210.
    According to the Small Business Administration (SBA), a firm in the 
Mattress Manufacturing sector (NAICS sector 337910) can be defined as 
``small'' if the firm employs fewer than 1,000 workers. Under this 
definition, among the 250 firms identified by staff in the sector, 240 
are small businesses that supply mattress products. The SBA defines a 
firm within the Curtain and Linen Mills Sector (NAICS sector 314120) as 
small if the firm employs fewer than 750 workers. Under this 
definition, among the 20 firms identified by staff, 19 firms are small 
and currently supply mattress products to the U.S. mattress market. 
Finally, a firm in the Furniture and Merchant Wholesale Sector (NAICS 
sector 423210) is defined as small if the firm employs fewer than 100 
workers. All of the 88 firms staff identified in this sector meet this 
definition of small. Under SBA-provided definitions, staff finds the 
majority of firms supplying the U.S. market for mattresses and mattress 
pads are small businesses.

2. The Mattress Standard

    The mattress standard at 16 CFR part 1632 requires premarket, full-
scale prototype testing for each new mattress design. Prototype testing 
also must be performed for each change in materials of an existing 
design that may affect cigarette ignition resistance.
    Under the Standard, four defined test procedures require the use of 
an SRM ignition source: The mattress test procedure, the mattress pad 
test procedure, the ticking classification test procedure, and the tape 
edge substitution test procedure. The number of test cigarettes 
required by these test procedures range from 18 SRM test cigarettes 
consumed during the ticking classification test, to 108 SRM test 
cigarettes consumed during the mattress or mattress pad test 
procedures. Furthermore, under the Standard only SRM test cigarettes 
from unopened packages can be selected for a series of tests, and if a 
cigarette extinguishes before burning its full length on any mattress 
surface location, the test must be repeated with a freshly lit 
cigarette. Therefore, mattress and mattress pad test procedures 
require, in practice, 6 packs of SRM cigarettes, the ticking 
classification test procedure requires in practice 1 pack of SRM 
cigarettes, and the tape edge substitution test requires, at a minimum, 
2 packs of SRM cigarettes.
    SRM 1196a is available for purchase from NIST at a minimum order of 
2 cartons. A carton contains 10 packs, and each pack contains 20 
cigarettes; therefore, two cartons from NIST will contain 400 SRM 
cigarettes. Based on information collected by staff from a selection of 
domestic third-party testing facilities, a third-party testing facility 
uses an average of 10 to 40 packs of SRM cigarettes (or between 200-800 
test cigarettes) per month. These data provide insight into the number 
of tests cigarettes used by third party testing facilities located in 
the United States, as an order of magnitude. A testing facility that 
uses 400 test cigarettes per month would need to purchase two cartons 
of SRM cigarettes from NIST every month.

3. Potential Benefits and Costs

    The SRM cigarette described in the proposal would have 
approximately the same ignition strength characteristics as originally 
intended by the Standard. The use of SRM 1196a cigarettes would not 
change the flammability performance tests or test method required under 
the Standard.
a. Potential Benefits
    The proposed amendment is ``safety-neutral,'' so mattresses that 
passed or failed under the existing Standard would be expected to 
generate similar results when SRM 1196a is used. The level of 
protection provided by the Standard would neither increase nor decrease 
as a result of the change from SRM 1196 to SRM 1196a. Thus, there would 
be no impact on the level or value of fire safety benefits derived from 
the 16 CFR part 1632 Standard.
    Because NIST has exhausted its supply of SRM 1196, adopting the 
proposed amendment to require the use of SRM 1196a will allow firms 
access to an ignition source that would permit them to continue testing 
mattresses and mattress pads to the Standard. The proposed amendment 
would thus provide significant benefits to firms, since failing to 
adopt this amendment would mean that the Standard would require firms 
to test using an ignition source that is no longer available for 
purchase.
    As an interim measure in 2018, when NIST's stock of SRM 1196 
cigarettes was depleted, CPSC's Office of Compliance issued guidance 
stating that testing to the Standard could be completed with commercial 
king-size, non-filtered FSC cigarettes. CPSC's Office of Compliance 
amended its Interim Enforcement Policy guidance, effective September 
2020, to allow testing with either reserved stock of SRM 1196 or new 
stock of SRM 1196a. Accordingly, testing with FSC cigarettes to the 
Standard is no longer permitted. The Commission welcomes comments 
concerning whether any entity has a stockpile of SRM 1196 cigarettes 
and whether the Commission should continue to allow the use of SRM 1196 
cigarettes as an ignition source under the Standard.
    SRM cigarettes provide a common ignition source for all 
laboratories, while commercially available FSC cigarettes do not offer 
that consistency. The ignition strength of FSC cigarettes vary from one 
brand to another. Because FSC cigarettes are required to have an 
ignition strength lower than 25 and are often much weaker, FSC 
cigarettes would have an ignition strength substantially lower than SRM 
1196a. As a result, compliance test results would vary between a test 
conducted with one brand of FSC cigarette and another, making testing, 
reporting, and enforcement inconsistent and unreliable.
    Furthermore, FSC cigarettes are intended to self-extinguish when 
left unattended. Under the Standard, results from a cigarette that does 
not burn its full length are not accepted. Any cigarette which 
extinguishes before burning its full length on any mattress surface 
location must be retested with a freshly lit cigarette. As a result, 
use of the FSC cigarette as the replacement ignition source would 
likely lead to an increase in the average number of cigarettes used for 
each complete test. FSC cigarettes would likely self-extinguish, 
requiring multiple freshly lit cigarettes to complete a test, thereby 
increasing the costs of testing and time burdens associated with 
testing.

[[Page 68806]]

    In contrast to the inconsistency and unreliability of FSC 
cigarettes, the replacement SRM 1196a is a statistically equivalent 
replacement for SRM 1196, and would reduce the need for retesting and 
lighting fresh FSC cigarettes. Furthermore, SRM 1196a allows for 
consistency in reporting and testing between laboratories. The proposed 
amendment specifying SRM 1196a as a replacement cigarette would achieve 
consistency and prevent uncertainty for industry, testing laboratories, 
and CPSC.
b. Potential Costs
    The cost increase associated with the proposed amendment is related 
to the SRM test cigarettes used as the ignition source for testing. 
Prices for SRM 1196a are set by NIST. SRM 1196a is available for 
purchase from NIST at a minimum order of 2 cartons, at a cost of $400, 
plus shipping. A carton contains 10 packs, and each pack contains 20 
cigarettes; therefore, two cartons from NIST will contain 400 SRM 
cigarettes. The price charged for SRM 1196a is approximately 74 percent 
higher than the price for SRM 1196. The price charged by NIST for SRM 
1196 had been $230 for 2 cartons of test material (20 packs of 
cigarettes), plus shipping.
    If SRM 1196a is adopted as the replacement for SRM 1196, 
manufacturers and importers of mattresses would be responsible for 
ensuring that their mattress products are tested using SRM 1196a. If a 
supplier's mattress product does not comply with the requirements, they 
will need to either modify the product, or cease their manufacture or 
importation. Additionally, as required by the CPSIA and its 
implementing regulations, manufacturers and importers of youth 
mattresses would be required to certify that their mattresses intended 
for children comply with the requirements of the Standard. Many 
domestic manufacturers of youth mattresses are small entities as 
defined by SBA. The following analysis reviews some of the possible 
impacts using SRM 1196a in the Standard.
    The annual cost of adopting the SRM 1196a test cigarette will vary 
among small firms. Different firms offer a variety of mattress products 
and have different operational procedures for mattress product 
development and testing. Among other considerations, the number of 
mattresses produced annually by small firms is not uniform. 
Furthermore, some firms perform testing procedures in-house, while 
others elect or are required to have testing performed by a CPSC-
approved conformity assessment body. The number of new prototypes that 
a firm will bring to market, and the size of a production run by a 
small firm, is up to the firm to decide; but the cost per firm of the 
proposed amendment would be impacted by these individual decisions.
    Staff has reviewed a variety of likely cost increases that may be 
faced by small firms in adopting SRM 1196a, in three separate testing 
scenarios. The Commission welcomes comments on the number and types of 
tests performed by firms on a monthly (or annual) basis. The Commission 
also welcomes comments from small firms on estimates of the number of 
SRM test cigarettes they use on a monthly (or annual) basis.
    To determine the likely costs faced by small firms from use of SRM 
1196a cigarettes, staff analyzed testing costs related to the Standard 
in a manner that is consistent with past economic analysis of the 
industry. The analysis uses commercial data published online for 
mattress manufacturing, bedding manufacturing, and wholesale mattress 
product importers acquired from Dun and Bradstreet. Staff has also 
reviewed current mattress products available on the market from a 
variety of small domestic suppliers and has received input from 
industry on the type and frequency of testing performed by industry 
under the Standard. Based on all of the information that staff has 
analyzed, staff has determined that the following three scenarios 
represent a likely range of costs incurred by small firms.

Scenario 1

    A small firm produces on average 20 new mattress models per 
year. Five of these new mattress models are new prototypes, and 14 
models are made with new ticking substitutions. The one remaining 
model requires a tape edge substitution test. Such a firm would 
consume 46 packs of test cigarettes annually.

(5 mattress tests x 6 packs + 14 ticking tests x 1 pack + 1 tape 
substitution test x 2 packs = 30 packs + 14 packs + 2 packs = 46 
packs)

Scenario 2

    A small firm produces on average 5 new mattress models per year. 
Two of these new mattress models are new prototypes, and the 
remaining three models are made with new ticking substitutions. Such 
a firm would consume 15 packs of test cigarettes annually.

(2 mattress tests x 6 packs + 3 ticking tests x 1 pack = 12 packs + 
3 packs = 15 packs)

Scenario 3

    A small firm produces on average 3 new mattress models per year. 
Each mattress model is sold with a protective mattress pad, intended 
for use with a crib mattress in a standard-size crib. Such a firm 
would consume 36 packs of test cigarettes annually.

(3 mattress tests x 6 packs + 3 mattress pad tests x 6 packs = 18 
packs + 18 packs = 36 packs)

    As noted, the cost of SRM 1196a is about 74 percent higher than 
that of SRM 1196. Not accounting for shipping costs, a pack of SRM 1196 
costs the firm approximately $11.50, while SRM 1196a costs the firm 
$20. Using the cost of SRM 1196 and SRM 1196a, we can calculate the 
cost increase faced by firms under the three scenarios above:

     In scenario 1, the firm with 20 new models using 46 
test cigarette packs annually would incur increased costs of $391, 
from $529 annually (46 packs x $11.50 per pack = $529) to $920 
annually (46 packs x $20 per pack = $920).
     In scenario 2, the firm with five new models using 15 
test cigarette packs annually would incur increased costs of 
$127.50, from $172.50 annually (15 packs x $11.50 per pack = 
$172.50) to $300 annually (15 packs x $20 per pack = $300).
     In scenario 3, the firm with 3 new mattress models and 
3 new mattress pad models using 36 packs annually would incur 
increased costs of $306, from $414 annually (36 packs x $11.50 per 
pack = $414) to $720 annually (36 packs x $20 per pack = $720).

    Staff finds the effective increase in the price per pack charged by 
NIST from $11.50 to $20 ranges from roughly $127.50 to $391 per year, 
among small firms in the above scenarios. Therefore, this is roughly 
the cost increase that small firms may face if SRM 1196a is adopted as 
the replacement reference material. The cost to a small firm would vary 
depending on the testing scenario.
    The number of new prototypes that a small firm will bring to market 
is up to the individual firm to decide, but the cost per firm of the 
proposed amendment would be impacted by these individual business 
decisions. The small firm may choose to make new prototypes every year 
and bring them to market, or it may elect to substitute ticking and 
modify existing models of mattress products that are selling well or 
are customer favorites.
    In summary, the proposed amendment to specify the SRM 1196a 
cigarette is not expected to have a significant impact on expected 
benefits or costs of the Standard in 16 CFR part 1632. Both the 
expected benefits and likely economic costs of the amendment are small, 
and the likely effect on testing costs per new prototype mattress or 
ticking substitution would be minor, especially when the projected cost 
is allocated over a production run of complying mattresses.

4. Regulatory Alternatives

    The Commission could consider two basic alternatives to the 
proposed amendment: (1) Allow for the use of

[[Page 68807]]

FSC cigarettes as the ignition source; or (2) take no action on the 
smoldering ignition source issue.
    Neither the proposed amendment nor alternative one would likely 
have a substantial economic impact. There would, however, be some 
relative differences in terms of resource costs and potential effects 
on the level of benefits the Standard affords. Alternative two would 
impose a significant economic impact, as it would require firms to use 
an ignition source that is no longer available, effectively making it 
impossible for firms to comply with the Standard. The advantages and 
disadvantages of these two basic alternatives are discussed below.
a. Allow for the Use of FSC Cigarettes
    Under the first alternative, manufacturers and testers could 
conduct tests with any available FSC cigarettes.
    A possible advantage of the Commission taking this alternative 
action is that some of the projected minor increase in resource costs 
of testing would not be incurred, since FSC cigarettes are less 
expensive than SRM 1196a. As noted, however, firms would likely have to 
use many more FSC cigarettes than SRM 1196a cigarettes due to the 
likelihood that FSC cigarettes would extinguish before testing is 
complete.
    Disadvantages of the Commission taking this action include an 
increase in test result variability due to differences in cigarettes. 
Tests would be less reliable and results would vary depending on which 
cigarette was used. This would create uncertainty and confusion 
surrounding the reliability of tests for compliance with 16 CFR part 
1632. Manufacturers and testing firms would have to conduct tests that 
are either wasteful (in terms of extra cigarettes required to complete 
a test due to cigarettes prematurely extinguishing) or have 
irreproducible and unreliable results.
b. No Action
    If the CPSC took no action, firms would be required to use an 
ignition source that is no longer available for purchase. Firms would 
be unable to comply with the Standard.
    In summary, there are no readily available or technically feasible 
alternatives to the proposed amendment that would have lower estimated 
costs and still address the need for a consistent ignition source that 
retains the ``safety-neutral'' approach of the proposed amendment.

E. Regulatory Flexibility Act Certification

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
an agency that engages in rulemaking generally must prepare initial and 
final regulatory flexibility analyses describing the impact of the rule 
on small businesses and other small entities. Section 605 of the RFA 
provides that an agency is not required to prepare a regulatory 
flexibility analysis if the head of an agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    The proposed rule would retain the current mattress test procedure, 
but require that entities performing cigarette ignition tests 
(including the CPSC, other state agencies, and industry testing 
organizations) purchase and use SRM 1196a cigarettes at a higher cost 
than the price at which SRM 1196 cigarettes had been sold. No 
additional actions would be required of small entities. The costs 
associated with the proposed rule would essentially be borne by 
mattress manufacturers and importers that perform (or pay fees for) 
compliance testing.
    All of the suppliers of mattress products to the U.S. market 
identified by staff are domestic firms. We limit our analysis to 
domestic firms because U.S. Small Business Administration (SBA) 
guidelines pertain to U.S.-based entities.
    To determine whether a regulatory flexibility analysis or a 
certification statement of no significant impact on a substantial 
number of small entities is appropriate for a proposed rule, staff 
determines a threshold for ``no significant economic impact.'' The SBA 
provides leeway in determining the threshold and provides several 
varied examples of screening measures, including the one percent of 
gross revenue measure. Staff has chosen the gross revenue calculation 
because we have data to support its calculation.
    For each market segment, staff is able to demonstrate that the 
proposed rule would impose an economic impact of less than 1 percent of 
gross revenue for the affected firms. Therefore, staff recommends 
certification for the rule. The following analysis provides the basis 
for this conclusion.

1. Small Mattress Manufacturers

    Staff identified 240 firms in the Mattress Manufacturing Sector 
that meet SBA size standards for small business. Among small mattress 
manufacturing firms, 220 firms employed fewer than 100 workers. Across 
small firms in the Mattress Manufacturing sector, staff found annual 
revenue averaged $10.49 million.
    The lowest reported annual revenue for any small domestic firm in 
this mattress product supplying sector was $128,000. One percent of 
annual revenue for the firm is $1,280 ($128,000 x 1 percent). 
Therefore, for this small domestic supplier, any increase in cost that 
exceeds $1,280 should be considered significant.
    Estimating a cost increase of $391, the high end estimated cost of 
incorporating SRM 1196a into the Standard, the increase would amount to 
less than 1 percent of annual revenue, $1,280, and would not be 
considered significant.

2. Small Textile Manufacturers

    Staff identified 19 firms in the Textile Manufacturing Sector that 
meet SBA size standards for small business. Among small textile 
manufacturing firms, 14 firms employed fewer than 20 workers. Across 
small firms in the Textile Manufacturing sector, staff found annual 
revenue averaged $2.83 million.
    The lowest reported annual revenue for any small domestic firm in 
this mattress product supplying sector was $200,000. One percent of 
annual revenue for the firm is $2,000 ($200,000 x 1 percent). 
Therefore, for this small domestic supplier, any increase in cost that 
exceeds $2,000 should be considered significant.
    Estimating a cost increase of $391, the high end estimated cost of 
incorporating SRM 1196a into the Standard, the increase would amount to 
less than 1 percent of annual revenue, $2,000, and could not be 
considered significant.

3. Small Importers

    Staff identified 88 firms in the Mattress Wholesale Sector that 
meet SBA size standards for small business. Among small wholesale 
importers of mattress products, 72 firms employed fewer than 20 
workers. Across small firms in the Mattress Wholesale sector, staff 
found annual sales averaged $7.84 million.
    The lowest reported annual revenue for any small domestic firm in 
this mattress product supplying sector was $322,000. One percent of 
annual revenue for the firm is $3,220 ($322,000 x 1 percent). 
Therefore, for this small domestic supplier, any increase in cost that 
exceeds $3,220 should be considered significant.
    Estimating a cost increase of $391, the high end estimated cost of 
incorporating SRM 1196a into the Standard, the increase would amount to 
less than 1 percent of annual revenue, $3,220, and could not be 
considered significant.

[[Page 68808]]

4. Conclusion

    Based on this information, the proposal would have little or no 
effect on small producers because the design and construction of 
existing, compliant mattress products would remain unchanged and 
because the resource cost increase of using SRM 1196a cigarettes would 
represent a minimal increase in total testing costs. Thus, the 
Commission preliminarily concludes that the proposed rule would not 
have a significant impact on a substantial number of small businesses 
or other small entities.

F. Environmental Considerations

    Pursuant to the National Environmental Policy Act, and in 
accordance with the Council on Environmental Quality regulations and 
CPSC procedures for environmental review, the Commission has assessed 
the possible environmental effects associated with the proposed rule.
    The Commission's regulations state that amendments to rules 
providing performance requirements for consumer products normally have 
little or no potential for affecting the human environment. 16 CFR 
1021.5(c)(1). Nothing in this proposed rule alters that expectation. 
Therefore, because the proposed amendment would have no adverse effect 
on the environment, neither an environmental assessment nor an 
environmental impact statement is required.

G. Executive Orders

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations. The proposed rule, if finalized, would modify a 
flammability standard issued under the FFA. With certain exceptions 
that are not applicable in this instance, no state or political 
subdivision of a state may enact or continue in effect ``a flammability 
standard or other regulation'' applicable to the same fabric or product 
covered by an FFA standard if the state or local flammability standard 
or other regulations is ``designed to protect against the same risk of 
the occurrence fire'' unless the state or local flammability standard 
or regulation ``is identical'' to the FFA standard. See 15 U.S.C. 
1476(a). The proposed rule would not alter the preemptive effect of the 
existing mattress standard.
    Thus, the proposed rule would preempt nonidentical state or local 
flammability standards for mattresses or mattress pads designed to 
protect against the same risk of the occurrence of fire.

H. Effective Date

    Section 4(b) of the FFA (15 U.S.C. 1193(b)) provides that an 
amendment of a flammability standard shall become effective one year 
from the date it is promulgated, unless the Commission finds for good 
cause that an earlier or later effective date is in the public 
interest, and the Commission publishes the reason for that finding. 
Section 4(b) of the FFA also requires that an amendment of a 
flammability standard shall exempt products ``in inventory or with the 
trade'' on the date the amendment becomes effective, unless the 
Commission limits or withdraws that exemption because those products 
are so highly flammable that they are dangerous when used by consumers 
for the purpose for which they are intended. The Commission believes 
that an effective date of thirty days would give adequate notice to all 
interested persons for firms to obtain SRM 1196a cigarettes from NIST. 
The purpose of this amendment is to allow manufacturers to replace SRM 
1196 cigarettes which are no longer available. Accordingly, 
manufacturers are already purchasing SRM 1196a cigarettes as the SRM 
1196 stock is depleted. Therefore, the Commission proposes that the 
amendment to the ignition source provision of the standard would become 
effective 30 days after publication of a final amendment in the Federal 
Register. The Commission seeks comment on the proposed effective date.

I. Proposed Findings

    Section 4(a) and (j)(2) of the FFA require the Commission to make 
certain findings when it issues or amends a flammability standard. The 
Commission must find that the standard or amendment: (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). 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 alternative that would 
adequately reduce the risk of injury. Because section 4(a) of the FFA 
refers to proceedings for the determination of an appropriate 
flammability standard ``or other regulation or amendment,'' and because 
this proposed rule would be an amendment rather than a new flammability 
standard, for purposes of this section of the preamble, we will refer 
to the proposed rule as a ``proposed amendment.'' These findings are 
discussed below.
    The amendment to the Standard is needed to adequately protect the 
public against unreasonable risk of the occurrence of fire. The current 
Standard specifies as the ignition source cigarettes that are no longer 
being produced. In order for the Standard to continue to be effective 
(and for labs to test mattresses and mattress pads to determine whether 
they comply with the Standard), it is necessary to change the ignition 
source specification. Changing the ignition source to SRM 1196a, rather 
than FSC cigarettes, will ensure that testing is reliable and that 
results will not vary from one lab or manufacturer to another. Such 
variation would be likely if labs or manufacturers were able to use 
different ignition sources that have similar physical properties but 
different burning characteristics.
    The amendment to the Standard is reasonable, technologically 
practicable, and appropriate. The proposed amendment is based on 
technical research conducted by NIST and CPSC staff, which established 
that the SRM 1196a cigarette is capable of providing reliable and 
reproducible results in flammability testing of mattresses and mattress 
pads. The proposed SRM 1196a ignition source represents an equivalent, 
safety-neutral ignition source for use in testing to establish 
compliance with the Standard.
    The amendment to the Standard is limited to fabrics, related 
materials, and products that present an unreasonable risk. The proposed 
amendment would continue to apply to the same products as the existing 
Standard.
    Voluntary standards. There is no applicable voluntary standard for 
mattresses. The proposal would amend an existing federal mandatory 
standard.
    Relationship of benefits to costs. Amending the Standard to specify 
SRM 1196a cigarettes as the ignition source would allow testing to the 
Standard to continue without interruption, would maintain the 
effectiveness of the Standard, and would not significantly increase 
testing costs to manufacturers and importers of mattresses and mattress 
pads. Thus, there is a reasonable relationship between benefits and 
costs of the proposed

[[Page 68809]]

amendment. Both expected benefits and costs of the proposed amendment 
are likely to be small. The likely effect on testing costs would be 
minor.
    Least burdensome requirement. No other alternative would allow the 
Standard's level of safety and effectiveness to continue. Thus, the 
proposed amendment imposes the least burdensome requirement that would 
adequately address the risk of injury.

J. Conclusion

    For the reasons discussed above, the Commission preliminarily finds 
that amending the mattress flammability standard (16 CFR part 1632) to 
specify SRM 1196a cigarettes as the ignition source 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 preliminarily finds that the amendment to 
the Standard is reasonable, technologically practicable, and 
appropriate. The Commission further finds that the amendment is limited 
to the fabrics, related materials, and products that present such 
unreasonable risks.

List of Subjects in 16 CFR Part 1632

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

    For the reasons given above, the Commission proposes to amend 16 
CFR part 1632 as follows:

PART 1632--STANDARD FOR THE FLAMMABILITY OF MATTRESSES AND MATTRESS 
PADS (FF 4-72, AMENDED)

0
1. The authority citation for part 1632 continues to read as follows:

    Authority: 15 U.S.C. 1193, 1194; 15 U.S.C. 2079(b).

0
2. Revise Sec.  1632.4(a)(2) to read as follows:


Sec.  1632.4  Mattress test procedure.

    (a) * * *
    (2) Ignition source. The ignition source shall be a Standard 
Reference Material cigarette (SRM 1196a), available for purchase from 
the National Institute of Standards and Technology, 100 Bureau Drive, 
Gaithersburg, MD 20899.
* * * * *

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2020-22747 Filed 10-29-20; 8:45 am]
BILLING CODE 6355-01-P