[Federal Register Volume 75, Number 210 (Monday, November 1, 2010)]
[Proposed Rules]
[Pages 67047-67054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27504]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1632

[CPSC Docket No. CPSC-2010-0105]


Standard for the Flammability of Mattresses and Mattress Pads

AGENCY: Consumer Product Safety Commission.

ACTION: Proposed rule.

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SUMMARY: The Consumer Product Safety Commission (``CPSC'' or 
``Commission'') 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 is no longer being produced. The Commission is 
proposing to amend the mattress standard to require a standard 
reference material cigarette, 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 18, 2011.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0105, by any of the following methods:

Electronic Submissions

    Submit electronic comments in the following way:

[[Page 67048]]

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    To ensure timely processing of comments, the Commission is no 
longer accepting comments submitted by electronic mail (e-mail) except 
through http://www.regulations.gov.

Written Submissions

    Submit written submissions in the following way:
    Mail/hand delivery/courier (for paper, disk, or CD-ROM 
submissions), preferably in five copies, to: Office of the Secretary, 
Consumer Product Safety Commission, Room 820, 4330 East West Highway, 
Bethesda, MD 20814; telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received may be 
posted without change, including any personal identifiers, contact 
information, or other personal information provided, to  http://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
electronically. Such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Patricia K. Adair, Directorate for 
Engineering Sciences, Consumer Product Safety Commission, 4330 East 
West Highway, Bethesda, MD 20814-4408; telephone (301) 504-7536; 
<a href="/cdn-cgi/l/email-protection#99e9f8fdf8f0ebd9fae9eafab7fef6ef"><span class="__cf_email__" data-cfemail="25554441444c5765465556460b424a53">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

A. Background

1. The Current Standard and the Need for Amendment

    The Standard for the Flammability of Mattresses and Mattress Pads 
(``the Standard''), 16 CFR part 1632, was initially issued by the U.S. 
Department of Commerce in 1972 under the authority of the Flammable 
Fabrics Act (``FFA''), 15 U.S.C. 1191 et seq. When the Consumer Product 
Safety Act (``CPSA'') created the Consumer Product Safety Commission, 
it transferred to the Commission the authority to issue flammability 
standards under the FFA.
    The Standard sets forth a test to determine the ignition resistance 
of a mattress or mattress pad when exposed to a lighted cigarette. 
Lighted cigarettes are placed at specified locations on the surface of 
a mattress (or mattress pad). The Standard establishes pass/fail 
criteria for the tests. The Standard currently specifies the ignition 
source for these tests by its physical properties. These properties 
were originally selected to represent an unfiltered Pall Mall 
cigarette, which was identified as the most severe smoldering ignition 
source.
    In January 2008, CPSC staff learned that the R.J. Reynolds Tobacco 
Company planned to stop producing unfiltered Pall Mall cigarettes 
(although it would continue to make a reduced ignition propensity or 
``RIP'' version). The CPSC staff, mattress manufacturers, and testing 
organizations were concerned about testing to the Standard if the 
specified ignition source cigarettes were unavailable. Under an 
Interagency Agreement (``IAG'') with the CPSC, the National Institute 
of Standards and Technology (``NIST'') developed a standard reference 
material (``SRM'') cigarette that could be used as the ignition source 
in the Standard.

2. Incident Data

    Recent fire loss estimates for mattresses and bedding indicate that 
smoking material ignitions of mattresses or bedding lead to a large 
number of fire deaths and injuries. The most recently available 
estimates are from 2005 through 2007. For that time period, there was 
an estimated annual average of 2,100 fires in which smoking materials 
ignited mattresses or bedding. These led to an estimated annual average 
of 150 deaths, 350 injuries, and $57 million in property loss.

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 
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 Office of 
the Secretary (see the ADDRESSES section of this notice) within 45 days 
of publication of this notice. If the Commission receives requests to 
make oral comments, a date will be set for a public meeting for that 
purpose, and notice of the meeting will be provided in the Federal 
Register.

C. Description of the Proposed Amendment

1. NIST's Research

    Currently, the Standard requires that the ignition source for 
testing mattresses ``shall be cigarettes without filter tips made from 
natural tobacco, 85 <plus-minus> 2 mm long with a tobacco packing 
density of 0.270 <plus-minus> 0.02 g/cm\3\ and a total weight of 1.1 
<plus-minus> 0.1 g.'' 16 CFR 1632.4(a)(2). This specification was 
intended to describe a conventional unfiltered Pall Mall cigarette that 
was available when the Standard was developed. This specification was 
chosen in order to replicate the most severe smoldering ignition source 
for testing mattresses and mattress pads.
    When the CPSC learned in January 2008 that R.J. Reynolds would be 
stopping production of the unfiltered Pall Mall cigarettes, the CPSC 
sought to find an alternate ignition source that would have the same 
burning characteristics as the ignition source specified in the 
Standard so that mattresses could be tested in accordance with the 
Standard and so that the safety level of the Standard would not be 
changed. In August 2008, the CPSC entered into an IAG with NIST to 
develop a new cigarette ignition source SRM that would have the 
ignition strength of the test cigarette required in the Standard.
    There are no cigarette ignition test data to characterize the 
ignition propensity of cigarettes from 1972, when the Standard was 
promulgated. In the absence of such data, NIST sought to identify the 
highest ignition strength cigarette, consistent with the intent of the 
original Standard. NIST evaluated Pall Mall cigarettes of different 
vintages (1992 through 2008) to determine the ignition strengths of the 
cigarettes that had been used to test soft furnishings,

[[Page 67049]]

such as mattresses. Although SRM cigarettes are now becoming available, 
sufficient quantities of previous (1992 through 2003) cigarettes no 
longer exist to perform any comparative studies of ignition propensity. 
The NIST research strongly indicated, however, that the SRM is 
equivalent in ignition strength to the previous highest known strength 
unfiltered Pall Mall cigarette. After developing a standard procedure 
for determining the ignition strength of cigarettes and assessing 
different vintage cigarettes, NIST recommended to CPSC staff that the 
new SRM cigarette meet the following specification:
    [cir] Nominal length: 83 mm <plus-minus> 2 mm
    [cir] Tobacco packing density: 0.270 g/cm3 <plus-minus> 0.020g/cm3
    [cir] Mass: 1.1 g <plus-minus> 0.1 g
    [cir] Ignition Strength: 70 Percent Full Length Burn (PFLB) to 95 
PFLB using ASTM E 2187, as modified in Section 4.2 of NIST Technical 
Note 1627
    [cir] Non ``Fire Safe Cigarette'' (FSC)
    The first three descriptors restate the physical requirements 
listed in the Standard for the ignition source. The recommended 
ignition strength range reflects the three oldest vintages of the Pall 
Mall cigarette tested by NIST and represents a worst-case ignition 
source.
    In June 2009, NIST provided CPSC staff with a report on its 
research, ``NIST Technical Note 1627: Modification of ASTM E 2187 for 
Measuring the Ignition Propensity of Conventional Cigarettes'' (Ref. 
1). The CPSC used NIST's research described in this report as the basis 
to establish specific parameters for a new ignition source specified in 
the Standard. Therefore, the proposed rule would amend 16 CFR 
1632.4(a)(2) to specify the use of an SRM cigarette, developed in 2010 
based on NIST's research. The new SRM cigarette would be designated SRM 
1196, and the proposed amendment also would state that SRM 1196 is 
available for purchase from the National Institute of Standards and 
Technology, 100 Bureau Drive, Gaithersburg, MD, 20899

2. Issues Raised by Comments on NIST's Report

    The Commission posted NIST Technical Note 1627 on its Web site in 
July 2009. The Commission received three comments, all from industry 
trade associations. The principal issues raised by the comments that 
are relevant to this rulemaking and the Commission's responses are 
discussed below.
    Comment: Some comments stated that the cigarette specified in the 
Standard does not reflect real-world conditions and argued that the 
CPSC should not try to replicate it in establishing a new ignition 
source.
    Response: The intent of the Standard was not to represent the 
typical cigarette of that time, but to specify a cigarette with the 
highest potential to ignite soft furnishings in order to provide a high 
level of safety. The Commission intends to specify an ignition source 
that is close to the original specification, to maintain the level of 
safety established by the Standard.
    Comment: Some comments noted that many States are requiring RIP 
cigarettes, and, because these will be widely in use, the ignition 
source in the Standard should be a RIP cigarette.
    Response: The CPSC has no data indicating a correlation between the 
use of RIP cigarettes and reduction in fire losses where soft 
furnishings, such as mattresses, are the first item to ignite. The 
National Fire Protection Association's (``NFPA's'') model State 
legislation calls for testing RIP cigarettes in accordance with ASTM 
standard E 2187-04, ``Standard Test Method for Measuring the Ignition 
Strength of Cigarettes.'' This model legislation requires that no more 
than 25 percent of cigarettes tested in a trial test burn their full 
length. This means that even with full compliance, some RIP cigarettes 
may be expected to burn like non-RIP cigarettes. Moreover, only 8 of 
the 50 States that have enacted (or soon will enact) legislation 
mandating RIP cigarettes require auditing to confirm compliance with 
ASTM E 2187-04. Thus, the extent of fire safety gains due to RIP 
cigarettes is uncertain. Under these circumstances, specifying a RIP 
cigarette as the ignition source in the Standard could reduce the level 
of fire safety provided by the Standard.
    Comment: One comment expressed concern about the cost of SRM 
cigarettes for small manufacturers, such as upholstery fabric 
manufacturers.
    Response: As discussed in greater detail in the preliminary 
regulatory analysis summarized in section D of this preamble, the 
Commission does not anticipate that the cost of SRM cigarettes will add 
significantly to testing costs for mattresses. The CPSC estimates that 
using SRM cigarettes at up to $245 per carton would increase total 
annual testing costs for mattresses by about $70,000 or approximately 
10 percent. The CPSC notes that, for mattresses, individual ticking 
fabrics generally are not tested; instead, testing of the assembled 
mattress is usually performed by a third party laboratory. Also, 
existing qualified designs and constructions of mattresses would not 
have to be retested.
    As for the impact on upholstered furniture fabric makers, the cost 
of SRM cigarettes would be one aspect of testing costs that the 
Commission would consider in evaluating the costs and benefits of an 
upholstered furniture flammability standard in the context of that 
rulemaking. (In the Federal Register of March 4, 2008, the Commission 
published a proposed rule that would establish flammability standards 
for residential upholstered furniture under the FFA (73 FR 11702), and 
CPSC staff is in the process of testing and evaluation to support a 
possible final upholstered furniture flammability rule.)
    Comment: One comment stated that a surrogate equivalent to the 
discontinued non-RIP cigarette is needed quickly, given that those 
materials are no longer being produced. The commenter opined that to 
specify a nonequivalent SRM as NIST recommends would require the CPSC 
to conduct a lengthy rulemaking procedure to amend 16 CFR part 1632.
    Response: The new SRM cigarette is designed to be equivalent to the 
original test cigarette. In its report, NIST recommended a replacement 
cigarette that is as close as possible to the original test cigarette 
specified in the Standard. The purpose of developing the SRM cigarette 
is to enhance repeatability of test results without changing the level 
of fire safety provided by the Standard.

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 the analysis be published 
with the proposed rule. 15 U.S.C. 1193(i). The following discussion 
extracted from the staff's memorandum entitled ``Preliminary Regulatory 
Analysis: Smoldering Ignition Source Proposed Technical Amendment to 
the Flammability Standard for Mattresses and Mattress Pads (16 CFR Part 
1632)'' (Ref. 2) addresses this requirement.

1. Market/Industry Information

    Domestic manufacturers of mattresses and related sleep products 
(for example, mattress pads, box springs, innerspring cushions, and 
air-flotation sleep systems) are classified under the 2002 North 
American Industry Classification System (NAICS) in sector code 337910, 
Mattress Manufacturing. This group includes firms classified under the 
1997 Standard Industry Classification (SIC) category 2515. Available 
U.S. Economic Census data show an estimated total value of shipments 
for this category of about $5 billion in recent years. Domestic 
employment is estimated at about 20,000 workers. Industry estimates 
indicate that the number of mattresses (including unconventional

[[Page 67050]]

items such as futons, crib and juvenile mattresses, and sleep sofa 
inserts) shipped in the United States residential market is roughly 25 
million units annually. About 5 to 10 percent of this total is 
comprised of imported products, including some imports marketed by the 
domestic manufacturers. The proportion of imports for mattress pads is 
higher.
    An estimated 150 to 200 domestic firms produce new mattresses or 
mattress pads in manufacturing facilities in the United States. An 
unknown but potentially similar number of firms in the United States 
sell renovated mattresses, which may account for 2.5 to 5 million 
units, or between 10 and 20 percent of mattresses sold. Thus, there may 
be as many as approximately 400 manufacturing firms subject to 16 CFR 
part 1632. These firms comprise more than 600 production 
establishments. Larger manufacturers may offer dozens of models (not 
counting different size designations, e.g., twin, full, queen, king) at 
any given time; new models may be introduced once or twice per year. 
Many smaller firms market only a few models and make few, if any, 
construction changes in a year.

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, a minimum of 18 cigarettes (i.e., about one pack) are 
consumed per mattress surface. Under the CPSC's 2006 interim 
enforcement policy, two mattress surfaces must be tested (the Standard 
specifies that six surfaces must be tested; however, current reported 
practice is to test two surfaces). For two-sided, traditional 
mattresses, one mattress is consumed per prototype. With the market 
trend in recent years toward single-sided mattresses (i.e., those 
designed not to be flipped), it is much more common that two mattresses 
are consumed per prototype. In either case, at least 36 cigarettes 
(i.e., about two packs) are consumed per prototype.
    No post-prototype, periodic testing is required under 16 CFR part 
1632. However, the Standard allows the use of ``subordinate'' 
prototypes (i.e., a mattress that differs from the prototype in certain 
acceptable ways and therefore does not need to be tested) based on a 
confirmatory test of a complying model, such that multiple producers 
can market that same complying product in different production 
facilities or under different brand names. This practice is common in 
the industry among licensees, and especially among smaller firms that 
manufacture models based on qualified prototypes developed and tested 
for certification of compliance with both 16 CFR part 1633 and part 
1632 by larger firms or ``prototype developers.'' Further, 16 CFR part 
1632 allows substitutions of cover or ``ticking'' materials, based on a 
set of small scale classification tests in lieu of new prototypes for 
each ticking. In this test, 9 to 18 cigarettes (approximately one half 
to one full pack) are consumed. Equivalency of performance for a 
majority of new mattress models is demonstrated using this optional 
ticking substitution test.
    Some manufacturers perform tests pursuant to 16 CFR part 1632 in 
their production facilities. Most, however, use third party testing 
laboratories since the advent of 16 CFR part 1633 in 2006.

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 cigarettes would not alter the 
stringency of the flammability performance tests in the Standard, so 
the proposal would not amend the test method itself.
i. Potential Benefits
    Because the proposed amendment is ``safety-neutral,'' mattresses 
that passed or failed under the existing Standard would be expected to 
generate similar results when the NIST-developed SRM is used. The level 
of protection provided by the Standard would neither increase nor 
decrease as a result. Thus, there would be no impact on the level or 
value of fire safety benefits derived from the 16 CFR part 1632 
Standard.
    There would, however, be potential benefits associated with the 
proposed amendment that are not readily quantifiable. Currently, 
manufacturers and testing laboratories do not have access to continued 
supplies of test cigarettes other than RIP Pall Mall cigarettes. 
Existing inventories of conventional Pall Mall cigarettes have been 
depleted or exhausted. Many industry representatives have requested 
guidance on the issue of which cigarette to use in testing.
    Even if continuing supplies of conventional test cigarettes were 
available, the variability in cigarette performance described in the 
NIST research may lead to an unacceptably low level of test outcome 
reproducibility. This is causing uncertainty among testing firms and 
manufacturers and importers certifying compliance with the Standard; 
these firms have expressed concern that tests conducted by the CPSC and 
by industry may not be comparable. This inconsistency could lead to 
unnecessary additional testing. The proposed amendment specifying an 
SRM cigarette would reduce inconsistency and uncertainty for industry, 
testing laboratories, and the CPSC.
ii. Potential Costs
    Currently, manufacturers incur testing costs related to 16 CFR part 
1632 whenever new mattress models are introduced that either: (1) Are 
of new construction, or (2) have new tickings that may influence 
cigarette ignition resistance. Larger manufacturers may introduce 20 or 
more new constructions or ticking substitutions each year. Smaller 
producers and renovators probably introduce fewer items or rely on 
prototype developers for multiple models. Assuming that qualified 
prototypes are developed for all new constructions and ticking 
substitutions to demonstrate compliance, a range of estimates for 
annual prototypes and ticking substitutions can be used to project 
potential costs associated with the proposed amendment to incorporate 
SRM cigarettes into the Standard.
    Pre-Amendment Testing Costs. For most mattress models that require 
some kind of testing, the testing cost per model to manufacturers is 
comprised chiefly of: (1) The resource costs of producing the 
mattresses used for destructive testing, including shipping to a test 
laboratory; and (2) the laboratory's fee for the testing service, which 
includes photographic and other records prepared by the test laboratory 
as well as the cigarettes consumed in testing.
    The cost of mattresses consumed in prototype testing may amount to 
approximately $400 for a typical two-mattress test series (although the 
range can go much higher, to more than $1,000 per mattress for low-
volume, specialty items). Prototype test charges reported by third 
party testing laboratories can vary widely, especially by location. For 
example, charges for tests performed in China tend to be significantly 
lower than charges for tests performed in the United States. Overall, 
these charges, which include the cost of the test cigarettes, may 
average about $250 per prototype (labor and material costs for 
manufacturers to perform their own tests may be similar). Thus, the 
current average total cost per mattress prototype may be roughly $400 + 
$250 = $650. A ticking substitution test is simpler and much less 
expensive, requiring only small samples of ticking

[[Page 67051]]

material, a reusable small-scale test apparatus, and a smaller number 
of cigarettes; the average total cost may be around $50.
    Testing costs incurred for prototypes and ticking substitutions can 
be allocated over a production run of mattresses. The cost per unit may 
vary with production volume, the mix of tests performed, and other 
factors. The examples below incorporate assumptions based on 
discussions with industry representatives. These examples illustrate 
some possible baseline cost differences for larger versus smaller 
firms:
    Typical example for a medium-to-large producer:
    <bullet> 20 new models: 5 new constructions + 15 new tickings
    <bullet> 5 prototype tests @ $650 each = $3,250
    <bullet> 15 ticking substitution classification tests @ $50 each = 
$750
    <bullet> Total base year cost = $3,250 + $750 = $4,000
    <bullet> Baseline testing cost for production run of 50,000 units = 
$0.08 per unit
    Typical example for a smaller producer:
    <bullet> 5 new models: 2 new constructions + 3 new tickings
    <bullet> 2 prototype tests @ $650 each = $1,300
    <bullet> 3 ticking substitution classification tests @ $50 each = 
$150
    <bullet> Total base year cost = $1,300 + $150 = $1,450
    <bullet> Baseline testing cost for production run of 5,000 units = 
$0.29 per unit
    These examples reflect the likely average annual testing costs to 
industry, assuming reasonably full compliance with 16 CFR part 1632. 
Thus, approximate baseline testing costs for the largest 50 mattress 
manufacturers would be about 50 x $4,000 = $200,000 annually; testing 
costs for the remaining 350 firms would be about 350 x $1,450 = 
$507,500. Thus, total estimated baseline testing costs may be about 
$200,000 + $507,500 = $707,500 per year.
    Costs per Firm Associated With the Proposed Amendment. The only 
cost increase associated with the proposed amendment is related to the 
SRM cigarettes. The anticipated price of SRM cigarettes from NIST is 
about $245 per carton, including estimated typical shipping (a carton 
contains 200 cigarettes, i.e., 10 packs of 20). Testing laboratories 
and others can obtain (RIP) Pall Mall cigarettes currently on the 
market for prices ranging from $60 to $100 per carton, depending on the 
geographic region. Thus, the cost of cigarettes for parties performing 
tests may increase from as little as approximately $6 to $10 per pack, 
to as much as approximately $25 per pack, representing an increase of 
$15 to $19 per pack.
    Under the protocol in 16 CFR part 1632, new packs of cigarettes are 
opened for each test sequence. A new prototype or confirmatory test 
consumes about two packs, and a ticking substitution test consumes 
about one pack. Assuming an increase in price per pack of $19, the 
average cost of performing the tests could increase by 2 x 19 = $38 per 
prototype and $19 per ticking substitution. This represents a 6 percent 
increase ($38/$650) in average total resource costs per prototype, and 
a 38 percent increase ($19/$50) in average resource costs per ticking 
substitution.
    In the above ``typical producer'' examples, the larger firm with 20 
new models would incur increased prototype costs of 5 x $38 = $190 plus 
increased ticking substitution costs of 15 x $19 = $285, for a total 
annual increase of $190 + $285 = $475 (about 12 percent of the firm's 
overall $4,000 annual testing cost). Over a 50,000 unit production run, 
the cost would be $0.0095 (i.e., less than one cent) per unit. The 
smaller firm with five new models would incur increased prototype costs 
of 2 x $38 = $76 and increased ticking substitution costs of 3 x 19 = 
$57, for a total annual increase of $76 + $57 = $133 (i.e., about 9 
percent of the firm's overall $1,450 annual testing cost). Over a 5,000 
unit production run, the increased testing cost would be $0.027 (i.e., 
less than three cents) per mattress.
    In summary, the expected additional cost of testing related to the 
proposal may range from about $133 to $475 per firm, or about one to 
three cents per mattress produced. The distribution of this projected 
cost among manufacturers and testing laboratories is uncertain because 
some test laboratories may choose to pass their increased costs--in the 
form of higher test fees--on to manufacturers, while others may not. 
Even if all such costs were passed on to manufacturers, it is unlikely 
that there would be a noticeable effect on wholesale or retail mattress 
prices.
    Aggregate Costs Associated With the Proposed Amendment. There may 
be as many as 200 new product manufacturers and 200 renovators, for a 
total of about 400 firms. The largest 50 firms are assumed to have 20 
new models (50 x 20 = 1,000 models to be tested), and the remaining 350 
firms to have five new models (350 x 5 = 1,750 models to be tested), 
for a total of 1,000 + 1,750 = 2,750 models to be tested. The aggregate 
annual cost of the proposed amendment will vary with the number of new 
prototypes and ticking substitutions. A point estimate can be developed 
using the pre amendment baseline examples above and the best available 
information on these variables.
    Using the baseline assumptions for new prototypes versus ticking 
substitutions, the 50 largest firms would have an average of five 
prototypes each (for a total of 5 x 50 = 250) and the remaining 350 
smaller firms would have two prototypes each (for a total of 2 x 350 = 
700); thus, the overall number of prototypes to be performed would be 
250 + 700 = 950. The number of ticking substitutions would be 15 each 
for the larger firms (for a total of 15 x 50 = 750) and three each for 
the smaller firms (for a total of 3 x 350 = 1,050); the overall number 
of ticking substitutions would be 750 + 1,050 = 1,800.
    At two packs of cigarettes per prototype and one pack per ticking 
substitution, the estimated quantity consumed in testing would be 2 x 
950 = 1,900 for prototypes and 1,800 for ticking substitutions, for a 
total of 1,900 + 1,800 = 3,700 packs. At an increase of $19 per pack, 
the estimated total resource cost would be 3,700 x 19 = $70,300. This 
point estimate represents an unweighted average increase of about 10 
percent of the estimated $707,500 aggregate annual industry testing 
costs related to 16 CFR part 1632.
    In addition to the projected costs to industry, the CPSC and other 
government agencies (for example, the California Bureau of Home 
Furnishings & Thermal Insulation and the Canadian Ministry of Health) 
would likely purchase small quantities of SRM cigarettes from NIST for 
compliance testing and related research. Thus, the proposal also would 
have minor costs to Federal and other government agencies, depending on 
the numbers of tests these organizations may perform in any given year.
    The proposed effective date of the amendment is one year from the 
date of publication of a final rule in the Federal Register. New 
mattress models are typically introduced once or twice per year. The 
proposed effective date would allow this product cycle to proceed 
without potential disruption or additional testing costs. It would also 
help ensure continuing availability of an adequate supply of SRM 
cigarettes to testing laboratories and manufacturers from NIST.
    In summary, the proposed amendment to specify the SRM cigarette is 
not expected to have a significant impact on expected benefits or costs 
of the Standard in 16 CFR part 1632. Resource costs may amount to 
roughly $70,000 per year. The amendment would, however, reduce test 
variability

[[Page 67052]]

and uncertainty among manufacturers subject to the Standard and among 
testing organizations. 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) Base the standard test cigarette on a different 
SRM, with the approximate lower ignition strength of an RIP cigarette; 
or (2) take no action on the smoldering ignition source issue.
    Neither the proposed amendment nor either of these two alternatives 
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. The advantages 
and disadvantages of these two basic alternatives are discussed 
immediately below.
a. Alternate SRM
    Under this first alternative, the Commission could amend the 
Standard to specify a different, lower ignition propensity SRM 
cigarette. Such an SRM would presumably be closer in ignition strength 
to the ``worst-case'' RIP cigarettes currently on the market.
    There are three possible advantages to specifying an alternative 
SRM: (1) The problem of test repeatability and reproducibility would be 
addressed, as it is under the proposed amendment; (2) an alternative 
SRM would, in theory, better approximate the fire risk associated with 
cigarettes currently available to consumers in the United States; and 
(3) currently, there is a low ignition propensity SRM (SRM 1082) 
developed by NIST for use by state regulators in assessing the 
compliance of RIP cigarettes. These SRM cigarettes are currently 
available at a price, including estimated typical shipping, of $195 per 
carton (compared to the projected price for the proposed SRM 1196 
cigarette of $245 per carton). Thus, resource costs to manufacturers 
and testing laboratories (including the CPSC) to adopt a readily-
available alternative SRM could be somewhat lower than under the 
proposed amendment; although it is likely that any new alternate SRM 
would be priced at least comparably to the proposed SRM 1196.
    There are three possible disadvantages to specifying an alternative 
SRM. First, in comparison to the proposed SRM, a low ignition 
propensity SRM would not be considered equivalent or ``safety 
neutral,'' under the presumption that the use of such cigarettes would 
result in a less stringent flammability test. While no data are 
available to describe the extent of this potential difference, it is 
quite possible that more mattress construction prototypes would pass a 
test using a lower ignition propensity SRM than do currently with 
commercially available cigarettes. This may result in an unknown, but 
potentially adverse, impact on the level of safety benefits provided by 
the Standard.
    The second disadvantage is that the two known technical approaches 
to developing a lower ignition propensity SRM appear to be incompatible 
with the test in 16 CFR part 1632. First, under existing state 
regulations, all known commercial RIP cigarettes incorporate banded 
paper designed to impede full length burns. The current test measures 
mattress ignitions resulting from full length cigarette burns and 
allows up to three relights per cigarette to achieve a full length 
burn. It is likely that either: (1) Many low ignition propensity 
cigarettes would be wasted in completing the test; or (2) the test 
could not be reliably completed using banded-paper, self-extinguishing 
cigarettes. Second, while the existing SRM 1082 does not use banded-
paper technology, it would have the same impracticalities as the 
banded-paper cigarette under the current Standard. The low ignition 
propensity design of the existing SRM 1082 is intended to yield a 12 to 
15 percent full length burn rate (i.e., the cigarettes are made to 
self-extinguish 85 to 88 percent of the time). Because this SRM is 
intended to be used as a calibration tool for cigarette manufacturers 
subject to state regulations, it is purposely designed to represent a 
minimal ignition propensity target, rather than a typical or 
representative RIP ignition propensity. It would clearly not represent 
a ``worst-case'' RIP cigarette. Further, SRM 1082 does not meet the 
specified physical criteria for cigarette length and density; so these 
cigarettes are physically unlike the current test cigarette or current 
RIP cigarettes.
    The third disadvantage is that the properties of a new SRM that 
would mimic the ignition behavior of ``worst case'' RIP cigarettes have 
not been characterized. The ``worst case'' RIP cigarette would be one 
that burns its full length and may, therefore, be similar to its non-
RIP counterpart. Insufficient research exists to support a new and 
different, low ignition propensity SRM; and a variety of as-yet-unknown 
modifications to the test method in 16 CFR part 1632 would likely be 
needed to incorporate such an SRM. The time and cost to develop a new 
SRM is undetermined, but the existing concern about the short-term 
availability of a consistent ignition source would not be resolved.
    Thus, while a lower ignition strength SRM cigarette may be 
technically feasible, there is no readily available SRM alternative 
that would address the need for a consistent, ``safety-neutral'' 
ignition source.
b. No Action
    Under the second alternative, the test cigarette specifications in 
the Standard would remain unchanged. Manufacturers and testers would 
remain free to conduct tests with any available cigarettes, including 
RIP Pall Malls, which meet the existing physical parameters.
    The possible advantage of the Commission taking no action is that 
the projected minor increase in resource costs of testing would not be 
incurred.
    The possible disadvantage of the Commission taking no action would 
be that the basic issue of test result variability due to differences 
in cigarettes would not be addressed, and the uncertainty and confusion 
surrounding the reliability of tests for compliance with 16 CFR part 
1632 would not be reduced. Manufacturers and testing firms may continue 
to conduct tests that are either wasteful (in terms of extra RIP 
cigarettes required to complete a test) or have irreproducible results.
    In summary, there are no readily available and/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

[[Page 67053]]

ignition tests (including the CPSC, other state agencies, and industry 
testing organizations) purchase and use SRM cigarettes at a higher cost 
than commercial, non-SRM cigarettes. 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.
    The latest available (2002) U.S. Census Bureau Statistics of U.S. 
Businesses and (2003) Economic Census data on this industry sector 
reported over 500 firms and more than 600 manufacturing establishments 
in NAICS sector code 337910, Mattress Manufacturing. More recent 
industry estimates suggest that the number of firms, including 
renovators, is closer to 400. The few industry-leading manufacturers 
are large firms with annual gross revenues of more than $1 billion and 
3,000-5,000 employees each. However, the vast majority of producers--
including all renovators--are much smaller, with annual gross revenues 
of under $20 million and fewer than 100 employees each. Many 
manufacturers serve regional markets and do not have nationwide 
distribution. The Economic Census reported that all but the largest 12 
mattress producing firms--more than 95 percent--had fewer than 500 
employees. These would be considered small businesses under the 
definition used by the Small Business Administration for this industry.
    The larger firms are often comprised of multiple small 
manufacturing establishments. The average gross revenue of the 585 
small manufacturing establishments identified in 2002 was about $8.1 
million. Excluding small establishments with more than 100 employees 
from this average provides a reasonable approximation of small firms 
that are independent of the major producers. This approach reduces the 
average gross revenue to about $4 million. This $4 million average can 
be used to illustrate the potential effect of the proposed rule on 
small firms.
    As discussed in the cost analysis section above, added testing and 
certification costs related to the proposed rule may average about $133 
per small firm, or less than three cents per unit. This represents 
about $133/$4 million = .0033 percent (i.e., less than one percent) of 
small firms' average gross revenues. Even using the $475 increased cost 
estimate presented in the analysis for larger firms, the impact on 
small firms' average gross revenue would be only $475/$4 million = .012 
percent.
    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 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 than 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 concludes 
that a one-year effective date is appropriate to ensure ample time for 
the product cycle and continuing availability of SRM cigarettes from 
NIST. Therefore, the Commission proposes that the amendment to the 
ignition source provision of the standard would become effective one 
year after publication of a final amendment in the Federal Register.

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 a technical amendment rather than a new 
flammability standard, for purposes of

[[Page 67054]]

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. The proposed amendment is necessary to ensure 
that the 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, which established that the SRM 
cigarette is capable of providing reliable and reproducible results in 
flammability testing of mattresses and mattress pads. The proposed SRM 
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 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 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 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.

K. References

    1. Gann, R.G., and Hnetkovsky E.J., Modification of ASTM E 2187 for 
Measuring the Ignition Propensity of Conventional Cigarettes, Technical 
Note 1627, National Institute of Standards and Technology, 
Gaithersburg, MD 20899, 2009.
    2. Directorate for Economic Analysis Report, Preliminary Regulatory 
Analysis: Smoldering Ignition Source Draft Proposed Technical Amendment 
to the Flammability Standard for Mattresses and Mattress Pads (16 CFR 
part 1632).

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)

    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).

    2. Section 1632.4 is amended by revising paragraph (a)(2) to read 
as follows:


Sec.  1632.4  Mattress test procedure.

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

    Dated: October 26, 2010.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2010-27504 Filed 10-29-10; 8:45 am]
BILLING CODE 6355-01-P


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