3280 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

1This ANPR was approved by a 2–1 vote of the

Commission. Chairman Ann Brown and

economic impact, positive or negative,

on a substantial number of small entities

under the criteria of the Regulatory

Flexibility Act. A copy of the draft

regulatory evaluation prepared for this

action has been placed in the Rules

Docket. A copy of it may be obtained by

contacting the Rules Docket at the

location provided under the caption

ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation

safety, Safety.

The Proposed Amendment

Accordingly, pursuant to the

authority delegated to me by the

Administrator, the Federal Aviation

Administration proposes to amend part

39 of the Federal Aviation Regulations

(14 CFR part 39) as follows:

PART 39—AIRWORTHINESS

DIRECTIVES

1. The authority citation for part 39

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]

2. Section 39.13 is amended by

adding a new airworthiness directive

(AD) to read as follows:

Raytheon Aircraft Company: Docket No. 97–

CE–68–AD.

Applicability: Model 1900D airplanes

(serial numbers UE–1 through UE–160),

certificated in any category.

Note 1: This AD applies to each airplane

identified in the preceding applicability

provision, regardless of whether it has been

modified, altered, or repaired in the area

subject to the requirements of this AD. For

airplanes that have been modified, altered, or

repaired so that the performance of the

requirements of this AD is affected, the

owner/operator must request approval for an

alternative method of compliance in

accordance with paragraph (e) of this AD.

The request should include an assessment of

the effect of the modification, alteration, or

repair on the unsafe condition addressed by

this AD; and, if the unsafe condition has not

been eliminated, the request should include

specific proposed actions to address it.

Compliance: Required within the next

1,000 hours time-in-service (TIS) after the

effective date of this AD, unless already

accomplished.

To prevent the loss of the pilot and co-pilot

intercom, VHF communications, and

passenger address system, which could result

in loss of all communication during critical

phases of flight, accomplish the following:

(a) Inspect the electrical connectors, the

radio switching panel and its relay printed

circuit boards (PCB’s) for moisture and

corrosion in accordance with the

Accomplishment Instructions in Raytheon

Service Bulletin (SB) No. 2643, dated August,

1996.

(1) If moisture is found, prior to further

flight, clean and dry the component in

accordance with the Accomplishment

Instructions in Raytheon Service Bulletin

(SB) No. 2643, dated August, 1996.

(2) If corrosion is found, prior to further

flight, either clean or replace the component,

depending on the severity, in accordance

with the Accomplishment Instructions in

Raytheon Service Bulletin (SB) No. 2643,

dated August, 1996.

(3) If moisture or corrosion is found, prior

to further flight, locate and eliminate the

source (i.e., crack, hole, leak) in accordance

with the Accomplishment Instructions in

Raytheon Service Bulletin (SB) No. 2643,

dated August, 1996.

(b) Inspect the nose avionics wire

harnesses for proper installation, and if any

wire harness is not installed properly, prior

to further flight, secure it with cable ties in

accordance with the Accomplishment

Instructions in Raytheon Service Bulletin

(SB) No. 2643, dated August, 1996.

(c) Remove the A017 component PCB, part

number (P/N) 101–342536–1, and replace the

PCB with a new A017 component PCB (P/N

101–342536–5 or an FAA-approved

equivalent part number) in accordance with

the Accomplishment Instructions in

Raytheon Service Bulletin (SB) No. 2643,

dated August, 1996.

(d) Special flight permits may be issued in

accordance with §§ 21.197 and 21.199 of the

Federal Aviation Regulations (14 CFR 21.197

and 21.199) to operate the airplane to a

location where the requirements of this AD

can be accomplished.

(e) An alternative method of compliance or

adjustment of the compliance time that

provides an equivalent level of safety may be

approved by the Manager, Wichita Aircraft

Certification Office, Room 100, 1801 Airport

Rd., Wichita, Kansas 67209. The request shall

be forwarded through an appropriate FAA

Maintenance Inspector, who may add

comments and then send it to the Manager,

Wichita Aircraft Certification Office.

Note 2: Information concerning the

existence of approved alternative methods of

compliance with this AD, if any, may be

obtained from the Wichita Aircraft

Certification Office.

(f) All persons affected by this directive

may obtain copies of the document referred

to herein upon request to Raytheon Aircraft

Company, P.O. Box 85, Wichita, Kansas

67201–0085; or may examine this document

at the FAA, Central Region, Office of the

Regional Counsel, Room 1558, 601 E. 12th

Street, Kansas City, Missouri 64106.

Issued in Kansas City, Missouri, on January

14, 1998.

Michael Gallagher,

Manager, Small Airplane Directorate, Aircraft

Certification Service.

[FR Doc. 98–1461 Filed 1–21–98; 8:45 am]

BILLING CODE 4910–13–U

CONSUMER PRODUCT SAFETY

COMMISSION

16 CFR Chapter II

Bunk Beds; Advance Notice of

Proposed Rulemaking; Request for

Comments and Information

AGENCY: Consumer Product Safety

Commission.

ACTION: Advance notice of proposed

rulemaking.

SUMMARY: The Commission has reason

to believe that unreasonable risks of

injury and death may be associated with

bunk beds constructed so that children

can become entrapped in the beds’

structure or become wedged between

the bed and a wall.

This advance notice of proposed

rulemaking (‘‘ANPR’’) initiates a

rulemaking proceeding that could result

in a rule mandating bunk bed

performance requirements to reduce this

hazard. This rule could be issued under

either the Federal Hazardous Substances

Act (‘‘FHSA’’) or the Consumer Product

Safety Act (‘‘CPSA’’), or separate rules

might be issued under the FHSA and

CPSA addressing bunk beds intended

for use by children or adults,

respectively.

The Commission solicits written

comments from interested persons

concerning the risks of injury and death

associated with bunk beds, the

regulatory alternatives discussed in this

ANPR, other possible ways to address

these risks, and the economic impacts of

the various regulatory alternatives. The

Commission also invites interested

persons to submit an existing standard,

or a statement of intent to modify or

develop a voluntary standard, to address

the risks of injury and death described

in this ANPR.

DATES: Written comments and

submissions in response to this ANPR

must be received by the Commission by

April 7, 1998.

ADDRESSES: Comments should be

mailed, preferably in five copies, to the

Office of the Secretary, Consumer

Product Safety Commission,

Washington, D.C. 20207–0001, or

delivered to the Office of the Secretary,

Consumer Product Safety Commission,

Room 502, 4330 East-West Highway,

Bethesda, Maryland; telephone (301)

504–0800. Comments also may be filed

by telefacsimile to (301) 504–0127 or by

email to cpsc-os@cpsc.gov. Comments

should be captioned ‘‘ANPR for Bunk

Beds.’’ 1
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3281

Commissioner Thomas H. Moore voted to approve

this ANPR; Commissioner Mary S. Gall voted not

to publish the ANPR.

FOR FURTHER INFORMATION CONTACT: John

Preston, Directorate for Engineering

Sciences, Consumer Product Safety

Commission, Washington, D.C. 20207;

telephone (301) 504–0494, ext. 1315.

SUPPLEMENTARY INFORMATION:

A. Background; History of Voluntary

Standards Activities

Bunk beds have been long recognized

as a potential source of serious injury to

children. In 1978, an Inter-Industry

Bunk Bed Safety Task Group developed

a Bunk Bed Safety Guideline for

voluntary use by manufacturers and

retailers of bunk beds intended for home

use. Members of this group included the

National Association of Bedding

Manufacturers, the National Association

of Furniture Manufacturers, the

Southern Furniture Manufacturers

Association, and the National Home

Furnishings Association. The guideline

became effective on January 1, 1979. In February 1981, an American

National Standard for Bedding Products

and Components (ANSI Z357.1) was

published. For the most part, this

standard contained dimensional

requirements for mattresses and

foundations for all beds. However, it

also incorporated the requirements of

the January 1, 1979, industry safety

guideline for bunk beds. In May 1986,

the American Furniture Manufacturer’s

Association (‘‘AFMA’’) published

Voluntary Bunk Bed Safety Guidelines

developed by the Inter-Industry Bunk

Bed Committee (‘‘IIBBC’’).

On August 26, 1986, the Consumer

Federation of America (‘‘CFA’’) filed a

petition with CPSC requesting the

promulgation of a mandatory safety

regulation for bunk beds. In its petition,

CFA cited three different risks of injury

posed by bunk beds: Inadequate

mattress supports that can allow the

mattress to fall to the bunk below or to

the floor, entrapment in the space

between the guardrails and the mattress,

and entrapment between the bed and

the wall. CFA alleged that the voluntary

industry guidelines did not fully

address the hazards posed to

consumers.

In July 1988, AFMA published

Revised Voluntary Bunk Bed Safety

Guidelines, with an effective date of

April 1989. A majority of the revisions

were made as a result of CPSC staff

comments on the May 1986 guidelines,

which included comments that the

requirements addressing entrapment in

openings in guardrails were not

adequate and that bunk beds should be

required to be sold with two guardrails.

To prevent entrapment, the 1989 revised

guidelines did require two guardrails to

accompany a bunk bed, and required

that any opening in the structure of the

upper bunk be less than 31⁄2 inches.

On July 21, 1988, the Commission

voted to deny the petition filed by the

CFA, but directed its staff to prepare a

letter to AFMA and IIBBC urging that

AFMA reconsider the CPSC staff

comments that had not been included in

the Revised Voluntary Bunk Bed Safety

Guidelines. That letter was sent in

August 1988. It also requested (a) that

AFMA consider additional staff

recommendations, (b) that AFMA

submit the revised guidelines to a

voluntary standards organization such

as ANSI or ASTM for development as a

voluntary safety standard, and (c) that

AFMA develop, and provide to the

Commission, a plan and proposed

implementation date for a certification

program to ensure that bunk beds

complied with the guidelines. AFMA

responded that a certification program

would be established upon publication

of an ASTM bunk bed standard.

In October 1992, ASTM published the

Standard Consumer Safety Specification

for Bunk Beds, ASTM F1427–92, in

response to the Commission’s August

1988 request. The performance

requirements in that standard primarily

addressed falls from the upper bunk,

entrapment in the upper bunk structure

or between the upper bunk and a wall,

and security of the foundation support

system. The standard also had a

requirement for a warning label and for

instructions to accompany the bed. In

June 1994, the ASTM bunk bed standard

was republished with additional

provisions (requested by CPSC staff) to

address collapse of tubular metal bunk

beds. The most current version of the

ASTM bunk bed standard was

published in September 1996 and

contains additional revisions suggested

by CPSC staff. These address

entrapment in lower bunk end

structures; mattress size information on

the warning label and carton; and the

name and address of the manufacturer,

distributor, or seller on the bed.

Because of continued reports of

deaths and other incidents associated

with bunk beds, and because of

indications that there is inadequate

compliance with the voluntary ASTM

standard, the CPSC staff prepared a

briefing package that summarized the

available information. Copies of this

briefing package can be obtained from

the Commission’s Office of the

Secretary. After considering the

available information, the Commission

decided to publish this advance notice

of proposed rulemaking to begin a

rulemaking proceeding that could result

in performance or other standards to

address the risk of entrapment

associated with bunk beds.

B. Incident Data

From January 1990 through

September 1997, CPSC received reports

of 85 bunk-bed-related deaths of

children under age 15. As shown below,

54 (64 percent) were caused by

entrapment. An additional 23 children

died when they were inadvertently

hanged from the bed by such items as

belts, ropes, clothing, and bedding.

Eight children died in falls from bunk

beds during this period. Almost all (96

percent) of the entrapment victims were

ages 3 and younger, whereas hanging

and fall victims tended to be older than

3 years. The Commission continues to

receive reports of incidents and other

information concerning bunk bed

entrapment hazards.

Available data indicate that the

number of bunk-bed-related deaths has

not decreased in recent years and that

the majority of fatal incidents continue

to involve entrapment. To better

evaluate the extent of the entrapment

problem, the Commission’s staff also

developed national estimates of the total

number of entrapment deaths that

occurred each year, using statistical

methodology that examined the extent

of overlap between data-reporting

sources. These estimates projected that

about 10 bunk bed entrapment deaths

have occurred each year in the United

States since 1990.

FATAL BUNK BED INCIDENTS REPORTED TO CPSC, BY YEAR AND HAZARD PATTERN

Hazard pattern

Year Total Entrap. Hanging Falls

1990 .................................................................................................................................. 7 5 2 ....................

1991 .................................................................................................................................. 15 10 2 3
3282 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

FATAL BUNK BED INCIDENTS REPORTED TO CPSC, BY YEAR AND HAZARD PATTERN—Continued

Hazard pattern

Year Total Entrap. Hanging Falls

1992 .................................................................................................................................. 4 3 1 ....................

1993 .................................................................................................................................. 19 10 7 2

1994 .................................................................................................................................. 10 6 3 1

1995 .................................................................................................................................. 12 5 5 2

1996 .................................................................................................................................. 11 10 1 ....................

1997 .................................................................................................................................. 7 5 2 ....................

Total ........................................................................................................................... 85 54 23 8

Source: CPSC Data Files, January 1990–September 1997, U.S. Consumer Product Safety Commission/EHHA.

CPSC staff reviewed available

information on entrapment-related

incidents, which accounted for the

majority of deaths, to obtain additional

detail about the circumstances involved.

In all, CPSC received reports of 103

entrapment incidents from January 1990

through September 1997, including 54

that involved deaths and 49 that

involved ‘‘near-misses’’ (where a child

was entrapped, but usually with no or

minor injury, often because another

person intervened). Most reported

incidents involved wooden bunk beds,

and entrapment occurred most often on

the top bunk. Common areas of

entrapment were under the guardrail,

within the end structures of the bed,

and between the bed and the wall.

With three exceptions, almost all of

the incidents involving fatal entrapment

in the structure of bunk beds occurred

in areas of the beds that apparently did

not conform to the entrapment

provisions in the current voluntary

standard. Two of the three exceptions

involved entrapment on the upper bunk.

These beds had guardrails that did not

run the entire length of the bed and, in

each of the two incidents, a child

slipped through the space between the

end of the guardrail and the bed’s end

structure and became wedged between

the bed and a wall. (The current

standard permits guardrails that

terminate before reaching the bed’s end

structure, provided there is no more

than 15 inches between either end of the

guardrail and the bed’s closest end

structure.)

The third death involving a

conforming bunk bed occurred when a

22-month-old child was playing with an

older sibling on a bunk bed and placed

his head into a tapered opening between

the underside of the upper bunk

foundation and a structural member.

This child is believed to have been

standing on the lower bunk mattress,

and, when his feet slipped off the

mattress, he was suspended by his head.

(The current standard only addresses

openings in lower bunk end structures

that are within 9 inches above the

sleeping surface of the mattress.)

C. Market Information

Industry sources estimate that about

500,000 bunk beds are sold each year for

residential use (excluding institutional

sales), and that sales have been

relatively stable over time. The annual

retail value of sales has been estimated

by AFMA at about $150 million.

Industry sources estimate the average

retail price of bunk beds to be about

$300, but prices range from about $100

to $700. Bunk beds are marketed in

specialty stores, furniture stores,

department stores, and by mail order.

There is also a market for used bunk

beds in thrift shops, garage sales, and

classified advertising.

Trade sources estimate the expected

useful life of bunk beds to be 13–17

years. Based on available information,

there are about 7–9 million bunk beds

available for use, including bunk beds

that are not currently used for sleeping,

and those that are now used as two

separate beds.

CPSC staff is aware of at least 106

bunk bed manufacturers, which are

believed to produce the bulk of annual

sales. Of the 106 identified firms, 40 are

either members of AFMA or are

members of the ASTM subcommittee

that developed the existing voluntary

standard for bunk beds. According to

AFMA, these 40 firms represent 75–80

percent of the total annual shipments of

bunk beds. While there are likely many

other small regional manufacturers or

importers of bunk beds in addition to

the 106 identified firms, these are not

likely to account for a significant share

of the U.S. market.

D. Compliance With the Existing

Voluntary Standard

There has been a continuing pattern

of nonconformance to the voluntary

standard. From June through August

1994, the Commission’s Office of

Compliance (Compliance) identified

and sent letters of inquiry to 85 bunk

bed manufacturers/importers, as part of

a voluntary standard conformance

monitoring project. Responses to these

letters revealed that 17 companies were

marketing bunk bed designs that

presented potential entrapment hazards.

Based on these responses, as well as on

retail inspections, consumer complaints,

and reported incidents, 41

manufacturers have, since November

1994, recalled wooden and metal bunk

beds that did not conform to the

entrapment requirements in the ASTM

standard. The recalls involve over onehalf million bunk beds.

In February 1997, Compliance

assigned 45 inspections of bunk bed

retailers nationwide. Examination of 77

beds from 35 different manufacturers by

staff from CPSC’s regional offices

revealed that 12 bunk bed designs, each

from a different manufacturer, did not

conform with the entrapment

requirements of the ASTM voluntary

standard. Problems identified through

these inspections resulted both in

voluntary recalls of already produced

beds and in corrections of future

production. The most recent recall, in

September 1997, involved five

companies and pertained to 16,500

beds. One of these beds was involved in

a fatal entrapment incident.

As noted above, CPSC’s staff

identified 106 manufacturers and

importers of wooden and metal bunk

beds. The Commission believes that the

actual number of manufacturers and

importers could be much higher.

Because of the relative ease of

constructing bunk beds, many small

companies are formed each year. These

may quickly go in and out of the

business of making bunk beds. These

companies are normally not associated

with industry organizations, and are

often unaware of the voluntary standard

or misinterpret its requirements.

Accordingly, the Commission

preliminarily concludes that it is very

likely that there will continue to be

serious conformance problems with the

voluntary standard.
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3283

E. The Potential Need for a Mandatory

Standard

Although the voluntary standard

improves the safety of bunk beds,

companies are not required to comply

with it. Some manufacturers contacted

by Compliance did not see an urgency

to comply with a ‘‘voluntary’’ standard,

and they did not recognize the hazards

associated with noncompliance. As a

result, entrapment hazards will

continue to exist on beds in use and for

sale. Currently, all 106 manufacturers

identified by CPSC staff appear to be

producing beds that conform to the

entrapment requirements in the ASTM

F1427 bunk bed standard. However,

small regional manufacturers that

periodically enter the marketplace may

not be aware of the voluntary standard,

or of the hazards that are associated

with bunk beds.

The Commission believes that a

mandatory entrapment standard may be

needed for the following reasons:

1. The adoption of a mandatory

standard could increase the awareness

and sense of urgency of manufacturers

regarding compliance with the

entrapment provisions, thereby

increasing the degree of conformance to

those provisions.

2. A mandatory standard would allow

the Commission to seek penalties for

violations. Publicizing fines for

noncompliance with a mandatory

standard would deter other

manufacturers from making

noncomplying beds.

3. A mandatory standard would allow

state and local officials to assist CPSC

staff in identifying noncomplying bunk

beds and take action to prevent the sale

of these beds.

4. Under a mandatory standard,

retailers, and distributors would violate

the law if they sold noncomplying bunk

beds. Retailers and retail associations

would then insist that manufacturers

and importers provide complying bunk

beds.

5. The bunk bed industry is extremely

competitive. Manufacturers who now

conform with the ASTM standard have

expressed concern about those firms

that do not. Nonconforming beds can

undercut the cost of conforming beds. A

mandatory standard would establish a

level playing field and take away any

competitive cost advantage for unsafe

beds.

6. A mandatory standard would help

prevent noncomplying beds made by

foreign manufacturers from entering the

United States. CPSC could use the

resources of U.S. Customs to assist in

stopping hazardous beds at the docks.

7. The absence of manufacturer

identification on many beds has

resulted in extremely low recall

effectiveness rates. A mandatory

standard could require companies to

include identification on the beds.

8. Although the Commission currently

believes that the ASTM voluntary

standard for bunk beds adequately

addresses the most common entrapment

hazards associated with these products,

the Commission is aware of three

entrapment fatalities that occurred in

conforming beds. A mandatory standard

could modify the provisions in the

voluntary standard so as to address the

deaths that can occur on beds that

comply with the voluntary standard.

Therefore, the Commission decided to

issue an ANPR to begin a rulemaking

proceeding and to seek public comment

on all aspects of this proceeding,

including (a) the need for a mandatory

standard and (b) any additional

requirements that may be needed to

address fatalities known to have

occurred on bunk beds conforming to

the current voluntary standard.

However, the available information

does not support a conclusion that

changes to currently produced bunk

beds would significantly reduce the

number of fatalities due to falls and

hangings. Thus, although information

on these hazards is welcome, the

Commission does not at this time intend

to propose performance requirements to

address falls or hangings from bunk

beds.

F. Cost/Benefit Considerations

To provide some preliminary

information on additional costs to

conform to the entrapment requirements

of the existing voluntary standard,

CPSC’s Economics staff contacted four

manufacturers who had modified their

production for that reason. The most

expensive modification was the

addition of a second guardrail to the top

bunk. Two firms estimated that the

additional guardrail would add $15–20

to the retail price of these products. The

other two manufacturers, who market

beds in the ‘‘mid to upper’’ price range,

estimated a $30–40 increase in the retail

price of their products. This increased

cost would be incurred only by those

firms that do not now conform to the

voluntary standard.

CPSC estimates that the costs to

society of bunk bed entrapment deaths

is about $174–346 per bed over its

expected useful life. The costs of

bringing bunk beds into conformance

with entrapment requirements range

from $15–40 per bed. If the measures

taken to address bunk-bed-related

entrapment deaths were only about 4 to

23 percent effective in reducing these

deaths, the costs and the benefits of

such an activity would be about equal.

In fact, the Commission expects that a

mandatory standard would be

substantially more effective than this.

G. Statutory Authorities for This

Proceeding

What statute is appropriate for

regulating bunk beds? CPSA section

3(a)(1), 15 U.S.C. 2052(a)(1). The

Federal Hazardous Substances Act

(‘‘FHSA’’) authorizes the regulation of

unreasonable risks of injury associated

with articles intended for use by

children that present mechanical (or

electrical or thermal) hazards. FHSA

section 2(f)(D), 15 U.S.C. 1261(f)(D). The

hazards associated with bunk beds that

are described above are mechanical. See

FHSA section 2(s), 15 U.S.C. 1261(s).

The Consumer Product Safety Act

(‘‘CPSA’’) authorizes the regulation of

unreasonable risks of injury associated

with ‘‘consumer products,’’ which

include bunk beds—whether intended

for the use of children or adults. CPSA

section 3(a)(1), 15 U.S.C. 2052(a)(1).

Thus, bunk beds intended for the use of

adults can be regulated only under the

CPSA, while bunk beds intended for the

use of children potentially could be

regulated under either the FHSA or the

CPSA. Bunk beds probably would be

considered as intended for use by

children only if they have smaller than

twin-size mattresses or incorporate

styling or other features especially

intended for use or enjoyment by

children.

Section 30(d) of the CPSA, however,

provides that a risk associated with a

consumer product that can be reduced

to a sufficient extent by action under the

FHSA can be regulated under the CPSA

only if the Commission, by rule, finds

that it is in the public interest to do so.

15 U.S.C. 2079(d). Accordingly,

children’s bunk beds could be regulated

only under the FHSA, unless the

Commission finds that it is in the public

interest to regulate them under the

CPSA. Thus, assuming that ‘‘adult’’ and

‘‘children’s’’ bunk beds each present an

unreasonable risk of injury, the

Commission could:

1. Issue a rule for children’s bunk

beds under the FHSA and a rule for

adult bunk beds under the CPSA; or

2. Issue a rule under the CPSA for

both adult and children’s bunk beds,

and issue a rule under CPSA § 30(d) that

it is in the public interest to do so.

A possible reason for finding that it is

in the public interest to regulate both

adult and children’s bunk beds under

the CPSA would be to avoid confusion

as to which act applied to a particular

bunk bed. The Commission will make a

decision on which act(s) should be used
3284 Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules

if and when it decides to issue a

proposed rule addressing the hazards of

bunk beds. As discussed below, the

procedure and statutory findings

required to issue a rule for bunk beds

are essentially identical under either

act. Accordingly, any final rule may be

issued under the CPSA, the FHSA, or a

combination of the two acts.

What effect will the existence of the

voluntary standard have on the

rulemaking? The Commission may not

issue a standard under either the CPSA

or the FHSA if industry has adopted and

implemented a voluntary standard to

address the risk, unless the Commission

finds that ‘‘(i) compliance with such

voluntary * * * standard is not likely to

result in the elimination or adequate

reduction of such risk of injury; or (ii)

it is unlikely that there will be

substantial compliance with such

voluntary * * * standard.’’ In this case,

it appears that a high percentage of bunk

beds comply with ASTM F1427–92.

Accordingly, the Commission has

addressed the issue of whether the

relatively high degree of compliance

with the ASTM standard (possibly 90

percent or more) constitutes

‘‘substantial compliance’’ that would

prevent the Commission from issuing a

mandatory standard for bunk beds.

Neither statute defines the term

‘‘substantial compliance.’’ However,

guidance is provided by the legislative

history of the CPSA:

In determining whether or not it is likely

that there will be substantial compliance

with such voluntary * * * standard, the

Commission should determine whether or

not there will be sufficient compliance to

eliminate or adequately reduce an

unreasonable risk of injury in a timely

fashion. Therefore, compliance generally

should be measured in terms of the number

of complying products rather than in terms

of complying manufacturers.

H.R. Conf. Rep. No. 208, 97th Cong., 1st

Sess. 873 (1981): ‘‘Adequately reduce’’

means to reduce the risk ‘‘to a sufficient

extent that there will no longer exist an

unreasonable risk of injury.’’ Id. This

legislative history suggests that

substantial compliance means that there

will be sufficient compliance with the

voluntary standard to reduce the

product’s risk to the point that the risk

is no longer ‘‘unreasonable.’’

Factors that are relevant both to a

determination of unreasonable risk and

to whether there is substantial

compliance are the severity of the

remaining injuries and the vulnerability

of the injured population. The CPSC

staff’s analysis shows that issuing a

mandatory rule could save a significant

number of children’s lives. Thus, the

injuries are severe, and the affected

population is extremely vulnerable. The

cost/benefit information discussed

above indicates a likelihood that the

benefits of a rule for bunk beds would

bear a reasonable relationship to its

costs, and the remaining risks from

bunk beds are thus ‘‘unreasonable.’’ See

15 U.S.C. 1262(i)(2)(B), 2058(f)(3)(E).

Accordingly, the Commission

preliminarily concludes that there

currently is not substantial compliance

with the ASTM standard.

Rulemaking procedure. Before

adopting a CPSA standard or FHSA

rule, the Commission first must issue an

ANPR as provided in section 3(f) of the

FHSA or section 9(a) of the CPSA. 15

U.S.C. 1262(f), 2058(a). If the

Commission decides to continue the

rulemaking proceeding after considering

responses to the ANPR, the Commission

must then publish the text of the

proposed rule, along with a preliminary

regulatory analysis, in accordance with

section 3(h) of the FHSA or section 9(c)

of the CPSA. 15 U.S.C. 1262(h), 2058(c).

If the Commission then wishes to issue

a final rule, it must publish the text of

the final rule and a final regulatory

analysis that includes the elements

stated in 3(i)(1) of the FHSA or section

9(f)(2) of the CPSA. 15 U.S.C. 1262(i)(1),

2058(f)(2). And before issuing a final

regulation, the Commission must make

certain statutory findings concerning

voluntary standards, the relationship of

the costs and benefits of the rule, and

the burden imposed by the regulation.

FHSA section 3(i)(2), CPSC section

9(f)(3), 15 U.S.C. 2058(f)(3).

H. Regulatory Alternatives Under

Consideration

The Commission is considering

alternatives to reduce the number of

injuries and deaths associated with

bunk beds. In addition to possible

performance standards similar to the

current ASTM standard, additional

performance standards may be

developed to supplement the

entrapment provisions of the ASTM

standard. Further, the potential for

labeling or instructions requirements

and information and education

campaigns to reduce the risk will be

considered, either instead of or in

addition to a mandatory standard.

It is also possible that a voluntary

standard could be developed that would

adequately reduce the risks of

entrapment, falls, and hanging. The

Commission is not aware of any

voluntary standard in effect that applies

to the identified risks of bunk beds other

than ASTM F1427–96. As noted above,

the Commission has preliminarily

concluded that the degree of compliance

with this ASTM standard may be

insufficient and some fatalities have

occurred that are not adequately

addressed by that standard. However, if

improved voluntary standards are

developed and implemented, the

Commission would take that into

account in deciding whether a

mandatory standard is necessary.

I. Solicitation of Information and

Comments

This ANPR is the first step of a

proceeding which could result in a

mandatory performance, labeling, or

instructions standard for bunk beds to

address the risk of entrapment. All

interested persons are invited to submit

to the Commission their comments on

any aspect of the alternatives discussed

above. In particular, CPSC solicits the

following additional information:

1. The models and numbers of bunk

beds produced for sale in the U.S. each

year from 1990 to the present;

2. The names and addresses of

manufacturers and distributors of bunk

beds;

3. The number of persons injured or

killed by the hazards associated with

bunk beds;

4. The circumstances under which

these injuries and deaths occur,

including the ages of the victims;

5. An explanation of designs that

could be adapted to bunk beds to reduce

the risk of entrapment;

6. Characteristics of the product that

could or should not be used to define

which products might be subject to the

requested rule, and which products, if

any, are intended for use by children,

and which for adults;

7. Other information on the potential

costs and benefits of potential rules;

8. Steps that have been taken by

industry or others to reduce the risk of

injuries from the product;

9. The likelihood and nature of any

significant economic impact of a rule on

small entities;

10. The costs and benefits of

mandating a labeling or instructions

requirement.

Also, in accordance with section 3(f)

of the FHSA and section 9(a) of the

CPSA, the Commission solicits:

1. Written comments with respect to

the risk of injury identified by the

Commission, the regulatory alternatives

being considered, and other possible

alternatives for addressing the risk.

2. Any existing standard or portion of

a standard which could be issued as a

proposed regulation.

3. A statement of intention to modify

or develop a voluntary standard to

address the risk of injury discussed in

this notice, along with a description of

a plan (including a schedule) to do so.
Federal Register / Vol. 63, No. 14 /Thursday, January 22, 1998 / Proposed Rules 3285

1 7 U.S.C. § 1 et seq. (1994).

2Commission regulations are found at 17 C.F.R.

Ch. I et seq.

3These types of letters are proposed to be defined

in Rule 140.99 (a)(1), (a)(2), and (a)(3), respectively,

and each is discussed in Part b, below.

4By contrast, since 1971, the Securities and

Exchange Commission (‘‘SEC’’) has required

conformity with certain procedures by persons

submitting requests for no-action or interpretative

letters. See Securities Act Release No. 5127, 36 FR

2600 (Jan. 25, 1971) (prescribed procedures for

requests under the Securities Act of 1933, Securities

Exchange Act of 1934, Public Utility Holding

Company Act of 1935, Trust Indenture Act of 1939,

Investment Company Act of 1940 and Investment

Advisers Act of 1940). Some of these procedures

have been modified or supplemented by SEC staff.

See, e.g., Securities Act Release No. 6253, 45 FR

72644 (Oct. 28, 1980) (institution of abbreviated

response procedures by Division of Corporation

Finance); and Securities Act Release No. 6269 (Dec.

5, 1980) (institution of seven-copy requirement for

requests to Division of Corporation Finance).

5The proposed rule governs requests submitted to

and processed by Commission staff. In certain

circumstances, however, requests must be

submitted to and processed by the Commission

itself. For example, where exemptive authority has

not been delegated to the staff, exemptive relief

must be granted by Commission order (e.g., under

Section 4(c) of the Act, 7 U.S.C. § 6(c) (1994)). The

Commission intends that persons making

exemption requests of it should comply with the

requirements of the applicable section of the Act or

Commission rules, regulations or orders, although

paragraphs (b), (c), (f) and (h) of the proposed rule

provide some useful guidance for such requests.

Comments should be mailed,

preferably in five copies, to the Office of

the Secretary, Consumer Product Safety

Commission, Washington, D.C. 20207–

0001, or delivered to the Office of the

Secretary, Consumer Product Safety

Commission, Room 502, 4330 East-West

Highway, Bethesda, Maryland 20814;

telephone (301) 504–0800. Comments

also may be filed by telefacsimile to

(301) 504–0127 or by email to cpscos@cpsc.gov. Comments should be

captioned ‘‘ANPR for Bunk Beds.’’ All

comments and submissions should be

received no later than April 7, 1998.

Dated: January 15, 1998.

Sadye E. Dunn,

Secretary, Consumer Product Safety

Commission.

[FR Doc. 98–1457 Filed 1–21–98; 8:45 am]

BILLING CODE 6355–01–P

COMMODITY FUTURES TRADING

COMMISSION

17 CFR Part 140

Requests for Exemptive, No-Action

and Interpretative Letters

AGENCY: Commodity Futures Trading

Commission.

ACTION: Proposed rule.

SUMMARY: The Commodity Futures

Trading Commission (‘‘Commission’’) is

proposing new regulations to establish

procedures for the filing of requests for

the issuance of exemptive, no-action

and interpretative letters from the

Commission’s staff.

DATES: Comments on the proposed rule

must be received on or before March 23,

1998.

ADDRESSES: Comments on the proposed

rule should be sent to Jean A. Webb,

Secretary, Commodity Futures Trading

Commission, Three Lafayette Center,

1155 21st Street, N.W., Washington,

D.C. 20581. Comments may be sent by

facsimile transmission to (202) 418–

5528, or by e-mail to secretary@cftc.gov.

Reference should be made to ‘‘Rule

Proposal Re: Requests for Exemptive,

No-Action, and Interpretative Letters.’’

FOR FURTHER INFORMATION CONTACT:

Christopher W. Cummings, Special

Counsel, or Helene D. Schroeder,

Attorney-Adviser, Division of Trading

and Markets, Commodity Futures

Trading Commission, Three Lafayette

Centre, 1155 21st Street, N.W.,

Washington, D.C., 20581. Telephone:

(202) 418–5450.

SUPPLEMENTARY INFORMATION:

I. Requests for Exemptive, No-Action

and Interpretative Letters

A. Background

In the course of administering the

Commodity Exchange Act (‘‘Act’’) 1 and

the rules, regulations and orders

promulgated thereunder by the

Commission,2 Commission staff receive

written requests for advice on or

interpretation of particular provisions of

the Act or Commission rules to

proposed conduct or transactions. If

appropriate, Commission staff provide

the advice or guidance sought through

the issuance of exemptive, no-action or

interpretative letters (‘‘Letters’’).3

Currently, there are no Commission

rules setting forth procedures for

requests for Letters.4

The Commission is of the view that

establishment of uniform procedural

rules governing these requests will

significantly assist the Commission and

its staff by assuring a focused

presentation of the guidance sought, the

issues raised thereby, and relevant

precedent. The Commission is therefore

now proposing uniform procedures for

the filing of requests for exemptive, noaction or interpretative letters. These

procedures are intended to elicit from

the outset the information that staff will

need to evaluate a request, and to

minimize staff resources expended in

seeking additional information.

Letters generally should be requested

from (and, if appropriate, issued by)

Commission staff in instances where the

need for guidance or clarification of a

rule’s applicability arises from relatively

routine circumstances. The Commission

believes that the best mechanism for

handling novel or complex issues,

significant gaps in regulatory coverage,

relief from regulatory requirements or

initiatives for regulatory reform

generally is the notice and comment

rulemaking process or, where

appropriate, exemptive action by the

Commission itself after notice and

public comment. This is especially true

where a perceived issue is likely to

affect a large number of persons or

entities. Accordingly, the Commission

reminds registrants, counsel and the

public that it is receptive to public and

industry input (including, for example,

petitions for rulemaking actions and

petitions for Commission exemptive

action or other orders) in the continuing

process of adapting its regulatory framework to changing market circumstances.

The Commission also notes that,

notwithstanding the requirements for

Letters set forth herein, registrants, other

industry participants, counsel and

members of the public should feel free

to seek information from Commission

staff in those situations where they do

not require no-action relief, or a formal

interpretation of statutory or regulatory

provisions.

Although not required to do so (see II.

Related Matters, below), the

Commission invites public comment on

this proposal.

B. The Proposed Rule

1. Definitions

Paragraph (a) of the proposed rule sets

forth definitions for exemptive, noaction and interpretative letters. The

term ‘‘exemptive’’ letter is defined as a

written grant of relief to a specified

person from the applicability of a

specific provision of the Act or a

Commission rule, regulation or order.

Exemptive letters may be issued by

Commission staff only in those

situations where: (a) the Commission

itself has exemptive authority; and (b)

that authority has been delegated to

staff.5

A ‘‘no-action’’ letter is defined as a

written statement that staff of a specific

division will not recommend

enforcement action to the Commission if

a proposed transaction is undertaken or

a proposed activity is conducted. A noaction letter represents the position of

only the division issuing it and is

binding only upon that division and not