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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A06-2206

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 15, 2006
- **Citation:** 71 FR 13472

## Text

CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1633
Final Rule: Standard for the Flammability (Open Flame) of Mattress Sets

AGENCY:

Consumer Product Safety Commission.

ACTION:

Final rule.

SUMMARY:

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

DATES:

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

FOR FURTHER INFORMATION CONTACT:

Jason Hartman, Office of Compliance, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; telephone (301) 504-7591; e-mail
jhartman@cpsc.gov
.

SUPPLEMENTARY INFORMATION:

A. Background

The Commission is issuing this flammability standard to reduce deaths and injuries related to mattress fires, particularly those initially ignited by open flame sources such as lighters, candles and matches.
1

Although the Commission has a flammability standard directed toward cigarette ignition of mattresses, 16 CFR Part 1632, a significant number of mattress fires are ignited by open flame sources and are not directly addressed by that standard.

1
Chairman Hal Stratton and Commissioner Nancy Nord issued a joint statement, and Commissioner Thomas H. Moore issued a separate statement. These are available from the Commission's Office of the Secretary (Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland 20814; telephone 301-504-7293; or e-mail:
cpsc-os@cpsc.gov
) or from the Commission's Web site,
www.cpsc.gov
.

On October 11, 2001, the Commission issued an advance notice of proposed rulemaking (“ANPR”) concerning the open flame ignition of mattresses/bedding. 66 FR 51886. CPSC, industry, and the California Bureau of Home Furnishings and Thermal Insulation (“CBHF”) worked with National Institute of Standards and Technology (“NIST”), which conducted research to develop a test method that could be included in a standard to address open flame ignition of mattresses. On January 13, 2005, the Commission issued a notice of proposed rulemaking (“NPR”) proposing a flammability standard based on the NIST research. 70 FR 2470. Comments received in response to the NPR are discussed in section H of this notice.

The characteristics of mattress/bedding fires and research conducted to develop the standard are discussed in detail in the NPR, 70 FR 2470, and in the staff's technical memoranda supporting this rulemaking. Because a mattress contains a substantial amount of flammable materials, if it (one that does not meet the standard) ignites in a bedroom fire the mattress will burn rapidly, and will quickly reach dangerous flashover conditions within a few minutes. Flashover is the point at which the entire contents of a room are ignited simultaneously by radiant heat, making conditions in the room untenable and safe exit from the room impossible. At flashover, room temperatures typically exceed 600-800° C (approximately 1100-1470° F). About two-thirds of all mattress fatalities are attributed to mattress fires that lead to flashover. This accounts for nearly all of the fatalities that occur outside the room where the fire originated and about half of the fatalities that occur within the room of origin.

The size of a fire can be measured by its rate of heat release. A heat release rate of approximately 1,000 kilowatts (“kW”) leads to flashover in a typical room. Tests of twin size mattresses of traditional constructions (complying with the existing mattress cigarette ignition standard in 16 CFR 1632) without bedclothes have measured peak heat release rates that exceeded 2,000 kW in less than 5 minutes. In tests of traditional king size mattresses, peak rates of heat release were nearly double that. [2]
2

2
Numbers in brackets refer to documents listed at the end of this notice. They are available from the Commission's Office of the Secretary, (Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland 20814; telephone 301-504-7293; or e-mail:
cpsc-os@cpsc.gov
) or from the Commission's Web site (
http://www.cpsc.gov/library/foia/foia.html
).

The goal of the standard is to minimize or delay flashover when a mattress is ignited in a typical bedroom fire. With certain exceptions explained below, the standard requires manufacturers to test specimens of each of their mattress prototypes (designs) before mattresses based on that prototype may be introduced into commerce. The standard prescribes a full-scale test using a pair of T-shaped gas burners designed to represent burning bedclothes. The mattress set must not exceed a peak heat release rate of 200 kW at any time during a 30 minute test, and the total heat release for the first 10 minutes of the test must not exceed 15 megajoules (“MJ”). Mattresses that meet the standard's criteria will make only a limited contribution to a fire, especially in the early stages of the fire. This will allow occupants more time to discover the fire and escape. [1&2]

The State of California's Bureau of Home Furnishings and Thermal Insulation issued an open flame fire standard for mattresses and mattress/box spring sets and futons, TB 603, which went into effect January 1, 2005. Both the Commission's standard and TB 603 are based on the research conducted at NIST, and they use the same basic test method. Both TB 603 and the Commission's standard require that mattresses not exceed a 200 kW peak heat release rate during the 30 minute test. However, the standards differ in the limit they set on total energy release in the first ten minutes of the test (the Commission's standard sets a stricter limit of 15 MJ, while TB 603 sets the limit at 25 MJ).

NIST has conducted extensive research on mattress/bedding fires for the Sleep Products Safety Council (“SPSC”) and the Commission. The NPR summarized the research that was conducted to develop the test method and other research conducted prior to publication of the NPR. 70 FR 2470. Subsequently, CPSC contracted with NIST to conduct additional test work to explore technical issues raised in the comments that the Commission received on the NPR and to provide additional technical support for finalizing the

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

B. Statutory Authority

This proceeding is conducted pursuant to Section 4 of the Flammable Fabrics Act (“FFA”), which authorizes the Commission to initiate proceedings for a flammability standard when it finds that such a standard is “needed to protect the public against unreasonable risk of occurrence of fire leading to death or personal injury, or significant property damage.” 15 U.S.C. 1193(a).

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

C. The Product

The standard applies to mattresses and mattress and foundation sets (“mattress sets”). “Mattress” is defined as a resilient material, used alone or in combination with other materials, enclosed in a ticking and intended or promoted for sleeping upon. For further details on how the term is defined in the standard see section E.3. of this preamble.

Throughout the standard the Commission uses the term “mattress set” to mean a mattress alone if the mattress is manufactured for sale without a foundation, or a mattress and a foundation together, if the mattress is manufactured for sale with a foundation. Under the standard, a mattress manufactured for sale with a foundation must be tested with its foundation and a mattress manufactured for sale alone must be tested alone.

According to the International Sleep Products Association (“ISPA”), the top four producers of mattresses and foundations account for almost 60 percent of total U.S. production. In 2003, there were 571 establishments producing mattresses in the U.S. [7]

Mattresses and foundations are typically sold as sets. However, more mattresses are sold annually than foundations; some mattresses are sold as replacements for existing mattresses (without a new foundation) or are for use in platform beds or other beds that do not require a foundation. ISPA estimated that the total number of U.S. conventional mattress shipments was 22.5 million in 2004, and would be 23.0 million in 2005. These estimates do not include futons, crib mattresses, juvenile mattresses, sleep sofa inserts, or hybrid water mattresses. These “non-conventional” sleep surfaces are estimated to comprise about 10 percent of total annual shipments of all sleep products. The value of conventional mattress and foundation shipments in 2004, according to ISPA, was $4.10 and $1.69 billion respectively, compared to $3.28 and $1.51 billion respectively in 2002. [7]

The expected useful life of mattresses can vary substantially, with more expensive models generally experiencing the longest useful lives. Industry sources recommend replacement of mattresses after 10 to 12 years of use, but do not specifically estimate the average life expectancy. In the 2001 mattress ANPR, the Commission estimated the expected useful life of a mattress at about 14 years. To estimate the number of mattresses in use for analysis of the proposed rule, the Commission used both a 10 year and 14 year average product life. Using CPSC's Product Population Model, the Commission estimates the number of mattresses (conventional and non-conventional) in use in 2005 to be 237 million using a ten-year average product life, and 303.9 million using a fourteen-year average product life. [7]

According to industry sources, queen size mattresses are the most commonly used. In 2004, queen size mattresses were used by 34.9 percent of U.S. consumers. Twin and twin XL were used by 29.3 percent of U.S. consumers, followed by full and full XL (19.9 percent), king and California king (11.5 percent), and all other sizes (4.4 percent). The average manufacturing price in 2004 was $182 for a mattress and $90 for a foundation. Thus, the average manufacturing price of a mattress and foundation set was about $272 in 2004. Although there are no readily available data on average retail prices for mattress/foundation sets by size, ISPA reports that sets selling under $500 represented 34.6 percent of the market in 2004 compared to 40.7 percent in 2002. Sets selling for between $500 and $1000 represented 41.1 percent of the market in 2004, compared to 39.2 percent in 2002. [7]

The top four manufacturers of mattresses and foundations operate about one-half of the 571 U.S. establishments producing these products. The remainder of the establishments are operated by smaller firms. According to the Statistics of U.S. Businesses Census Bureau data, all but twelve mattress firms had fewer than 500 employees in 2002. If one considers a firm with fewer than 500 employees to be a small business, then 97.7 percent ((522-12)/522) of all mattress firms are small businesses. [7] The potential impact of the standard on these small businesses is discussed in section K of this document.

D. Risk of Injury

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

service annually during 1999-2002. These fires resulted in 350 deaths, 1,750 injuries and $295.0 million in property loss annually. Of these, the staff considers an estimated 14,300 fires, 330 deaths, 1,680 injuries, and $281.5 million property loss annually to be addressable by the standard. Addressable means the incidents were of a type that would be affected by the standard solely based on the characteristics of the fire cause (i.e., a fire that ignited a mattress or that ignited bedclothes which in turn ignited the mattress). For example, an incident that involved burning bedclothes but occurred in a laundry room would not be considered addressable. [3]

Among the addressable casualties, open flame fires accounted for about 110 deaths (33 percent) and 890 injuries (53 percent) annually. Smoking fires accounted for 180 deaths (55 percent) and about 520 injuries (31 percent) annually. Children younger than age 15 accounted for an estimated 90 addressable deaths (27 percent) and 340 addressable injuries (20 percent) annually. Adults age 65 and older accounted for an estimated 80 addressable deaths (24 percent) and 180 addressable injuries (11 percent) annually. [3]

E. Description of the Final Standard

1. General

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

2. Imported Mattresses

Imported mattresses must meet the same requirements as domestically produced mattresses. This means that mattress sets produced outside the United States must be tested in accordance with the procedures described in § 1633.7 and must meet the criteria specified in § 1633.3(b), as well as the quality assurance and recordkeeping requirements in §§ 1633.6 and 1633.11 before they may be introduced into commerce in the United States.

As discussed below, the term “manufacturer” refers to the establishment where a mattress is produced or assembled, and it is the plant or factory producing or assembling the mattress set that is responsible for prototype testing. The importer must have records demonstrating compliance with the standard on an establishment specific basis. To ensure that foreign-made mattress sets comply with the standard, the final rule requires that the records specified in § 1633.11 must be in English and must be kept at a location in the United States.

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

The standard applies to “mattress sets,” defined as either (1) a mattress and foundation labeled by the manufacturer for sale as a set, or (2) a mattress that is labeled for sale alone. This definition was not in the proposed rule, but was added to simplify the sometimes cumbersome references to mattress and foundation sets. As discussed below, the Commission has added a requirement for manufacturers to label mattresses and foundations to indicate if they are to be sold with a corresponding mattress or foundation or if they are to be sold alone.

“Mattress” is defined substantially as it was in the proposed rule and as it is in the existing mattress standard at 16 CFR 1632, as “a resilient material or combination of materials enclosed by a ticking (used alone or in combination with other products) intended or promoted for sleeping upon.” The standard lists several types of mattresses that are included in this definition (e.g., futons, crib mattresses, youth mattresses). It also refers to a glossary of terms where these items are further defined.

Specifically excluded from the definition of mattress are mattress pads, pillows and other items used on top of a mattress, upholstered furniture which does not contain a mattress, and juvenile or other product pads. Mattress pads and other top of the bed items may be addressed in the Commission's pending rulemaking on bedclothes, in which an ANPR was issued on January 13, 2005. 70 FR 2514.

Like the Commission's existing mattress cigarette ignition standard, the open flame standard issued today allows an exemption for one-of-a-kind mattress sets if they are manufactured to fulfill a physician's written prescription or manufactured in accordance with comparable medical therapeutic specifications.

The Commission has added a clarification that the term “mattress” includes mattresses that have undergone renovation, and it has added a definition of “renovation.” The NPR had included a policy clarification stating that mattresses renovated for resale would be covered by the standard. The definition of “renovation” comes from that policy clarification. Including mattresses renovated for resale in the mattress definition makes the Commission's intent to include them in the standard clearer.

For clarification the Commission has added or modified some other definitions. The term “subordinate prototype” was added to refer to a prototype that is not required to be tested. A definition of “confirmed prototype” was added to describe a prototype that is based on a qualified prototype in a pooling arrangement. The term “edge seam” was redefined as “edge” to accommodate mattress or foundation constructions that do not have a seam, as in a continental border. A definition for “prototype developer” was added to describe a third party that designs mattress prototypes for use by a manufacturer, but does not produce mattress sets for sale. The prototype developer does not necessarily conduct tests to qualify the mattress prototype. A barrier supplier, for example, could be a prototype developer. The term “prototype pooling” was clarified to explain the responsibilities of the involved parties.

4. General Requirements of the Standard (§ 1633.3)

The test method in the standard is essentially unchanged from the method described in the NPR. It uses the full scale test method developed by NIST. As explained in the NPR, the complexities of mattress construction make a full scale test necessary to evaluate the fire performance of a mattress.

The specimen (a mattress and foundation or mattress alone) is exposed to a pair of T-shaped gas burners. The specimen is to be no smaller than twin size, unless the largest size mattress or set produced of that type is smaller than twin size, in which case the largest size must be tested.

The burners impose a specified local heat flux simultaneously to the top and side of the mattress set for a specified period of time (70 seconds for the top burner and 50 seconds for the side

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

5. Test Criteria (§ 1633.3)

The standard establishes two test criteria that the specimen must meet to pass the test. These criteria are the same as those proposed in the NPR. The peak rate of heat release must not exceed 200 kW at any time during the 30 minute test, and the total heat release must not exceed 15 MJ during the first 10 minutes of the test.

Limiting the peak rate of heat release to 200 kW (during the 30 minute test) ensures a less flammable design. It represents a significant improvement in performance compared to traditional mattress designs. The peak rate of heat release limit accounts for the contribution of bedclothes and other room contents to the fire hazard, ensures that the mattress does not cause flashover on its own, is technically feasible, and considers many factors related to the fire scenario (such as room effects). [2]

The test duration of 30 minutes is related to, but not equivalent to, the estimated time required to permit discovery of the fire and allow escape under typical fire scenarios. A 30 minute test is based on an analysis of the hazard and the technological feasibility of producing complying mattresses. It is intended to provide a substantial increase in time for an occupant to discover and escape the fire. The number of failures, test variability, performance unreliability, and associated costs increase significantly with longer test periods. Usually, staying at or below the 200kW limit for a 30 minute test is estimated to provide an adequate time for fire discovery and escape by occupants in the bed or otherwise in the room of fire origin. [2]

The effectiveness of the standard depends on the need for early discovery and escape from the fire without delay. Limiting the early contribution of the mattress will have the greatest impact on reducing the risk as the mattress will have little involvement in the fire for the specified period of time. The early limit of 15 MJ for the first 10 minutes of the test partially compensates for burning bedclothes and ticking by preventing early involvement of the mattress as the bedclothes burn and compensates for other items that might be involved early in a fire. [2]

California's TB 603 prescribes a 25 MJ limit in the first 10 minutes of the test. However, NIST research and fire modeling indicate that a fire that reaches a size of 25 MJ within 10 minutes could limit a person's ability to escape the room. According to several producers, mattress sets that use available barrier technology release total heat that is far below the 25 MJ limit of TB 603. [7]

6. Prototype Testing (§ 1633.4)

The standard requires, with certain exceptions, that mattress manufacturers have three specimens of each prototype tested before introducing a mattress set into commerce. A prototype is a specific design of a mattress set that serves as a model for the production units that will be introduced into commerce. Mattress sets then produced based on the prototype mattress set must be the same as the prototype with respect to materials, components, design, and methods of assembly. The definition of “manufacturer” refers to the establishment where the mattress is produced or assembled, not the company. Thus, the plant or factory producing or assembling the mattress set is responsible for prototype testing.

However, there are three exceptions to the requirement for prototype testing. A manufacturer is allowed to sell a mattress set based on a prototype that has not been tested if the prototype differs from a qualified prototype (one that has been tested and meets the criteria) only with respect to: (1) The mattress/foundation length and width, not depth (e.g., twin, queen, king, etc.); (2) the ticking, unless the ticking of the qualified prototype has characteristics that are designed to improve the mattress set's test performance; and/or (3) any component, material or method of assembly, provided that the manufacturer can show, on an objectively reasonable basis, that such difference(s) will not cause the mattress set to exceed the specified test criteria. The third exception allows the manufacturer to change the depth of the mattress if he can make the required showing concerning the test criteria. If a manufacturer chooses to make use of the third exception, he/she can minimize testing, but must maintain records documenting that the change(s) will not cause the prototype to exceed the test criteria (see § 1633.11(b)(4) of the rule).

When conducting prototype qualification testing, the manufacturer must test a minimum of three specimens of the prototype in accordance with the test method described, and all of the mattress sets must meet both of the test criteria discussed above. If any one prototype specimen that the manufacturer tests fails the specified criteria, the prototype is not qualified (even if the manufacturer chooses to test more than three specimens).

As explained in the NPR preamble, the Commission believes that three specimens is the appropriate minimum number for testing at this time (as this is the number typically used and the inter-laboratory study indicates that three replicates are appropriate to adequately characterize mattress performance).

As was proposed, the standard allows a manufacturer to produce a mattress set in reliance on testing that was conducted before the effective date of the standard. The final rule explains the parameters for relying on such tests. The manufacturer must have documentation demonstrating that the tests were conducted according to the required test method and the specified criteria were met. Tests conducted 30 days or more after this standard is published in the
Federal Register
must comply with the recordkeeping requirements of § 1633.11. The manufacturer must also comply with applicable recordkeeping requirements in order to use the prototype pooling and subordinate prototype provisions.

7. Pooling (§ 1633.5)

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

Pooling may be used by two or more plants within the same firm or by two or more independent firms. The final rule also recognizes that pooling can occur between a manufacturer and a prototype developer. This could be a company that manufactures mattress

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

8. Quality Assurance Requirements (§ 1633.6)

The standard contains the same strict requirements for quality assurance as the proposal did. This is necessary because research and testing indicate that small variations in construction (e.g., missed stitching around the side of the mattress) can affect the fire performance of a mattress. Testing conducted at NIST after the NPR was published reinforced the importance of quality assurance. The language in this section has been changed somewhat to better indicate the Commission's intent that production mattresses should be the same as the prototypes on which they are based.

Each manufacturer must implement a quality assurance program to ensure that the mattress sets it produces are the same as the qualified, subordinate or confirmed prototype on which they are based with respect to materials, components, design and methods of assembly. This means that at a minimum, manufacturers must: (1) Have controls in place on components, materials and methods of assembly to ensure that they are the same as those used in the prototype; (2) designate a production lot that is represented by the prototype; and (3) inspect mattress sets produced for sale.

The standard does not require manufacturers to conduct testing of production mattresses. However, the Commission recognizes the value of such testing as part of a quality assurance program. Therefore, the Commission encourages manufacturers to conduct random testing of mattress sets that are produced for sale.

If a manufacturer obtains any test results or any other evidence indicating that a mattress set does not meet the specified criteria (or that a component, material or assembly process could negatively affect the test performance of the mattress set), the manufacturer must cease production and distribution in commerce of the affected mattress sets until corrective action is taken.

9. Test Procedure (§ 1633.7)

The test procedure in the standard is based on the test protocol developed by NIST. The procedure in the final standard is essentially the same as what was proposed with some minor changes and a few substantive modifications described below.

Requirements for sample conditioning have been tightened to require a conditioning temperature greater than 18° C (65° F) and less than 25° C (77° F) and a relative humidity less than 55 percent. Requirements for the test area conditions have been added, stating that the area must be maintained at a temperature greater than 15° C (59° F) and less than 27° C (80.6° F) and at a relative humidity less than 75 percent. Initiation of flammability testing is required to begin within 20 minutes after removal of the mattress sample from environmentally controlled storage conditions.

Specifications for the bed frame supporting the test specimen have been clarified to address dimensions for specimens other than twin-size, frame height to accommodate the side burner in tests of thin mattresses without foundations, and support for more flexible mattress products.

The specification for the gas burner hole size has been changed. In 2000, NIST developed a pair of propane gas burners to consistently simulate the typical heat impact imposed on a mattress by burning bedding items. These burners were incorporated as the ignition source in the full-scale fire test for mattresses. Subsequently, a commercial supplier manufactured a commercial version of the NIST burner apparatus that was used by various test laboratories to conduct full-scale mattress testing in accordance with TB 603 and CPSC's proposed standard. Inadvertently, the commercial version incorporated larger diameter holes in both of the burner heads (1.50 mm vs. 1.17 mm). The proposed standard specified the original NIST burner holes. After this difference was discovered, NIST conducted studies to determine the effects of the larger diameter burner holes on peak burner heat flux. The results of the comparison show that the burners with the larger holes do a better job of meeting the target peak flux levels of bedclothes than do the original burners with the smaller holes, supporting continued use of the commercial version of the burner apparatus rather than the NIST original. The final standard has been revised to provide for the burner holes used in the commercial versions. [1&2]

A provision has been added to the standard at § 1633.7(k) that allows the use of alternate test apparatus with the approval of the Office of Compliance.

Other minor changes in the test procedure, equipment and set up include clarifications of gas specifications, draft control, and burner orientation. These are discussed in the Engineering Sciences and Laboratory memoranda. [1,4&5]

10. Recordkeeping (§ 1633.11)

The Commission made several changes to the recordkeeping requirements. The standard now requires that records must be kept in English at a location in the United States and requires the complete physical addresses of suppliers, manufacturing facilities (foreign and domestic), and test laboratories in records. The standard no longer requires the manufacturer to maintain a physical sample of the materials and components of a prototype. The required records should be sufficient to determine compliance without the burden of maintaining physical samples.

The standard requires manufacturers to maintain certain records to document compliance with the standard. This includes records concerning prototype testing, pooling and confirmation testing, and quality assurance procedures and any associated testing. The required records must be maintained for as long as mattress sets based on the prototype are in production and must be retained for three years thereafter.

11. Labeling (§ 1633.12)

The labeling required by the standard has been modified from the proposed rule. These changes were made to provide more complete information about the manufacturer/importer and to enable consumers to choose the correct foundation (if any) to use with the mattress they purchase.

Each mattress set must bear a permanent label stating (1) the name of the manufacturer, or for imported mattress sets, the name of the foreign manufacturer and the importer; (2) the complete physical address of the manufacturer, and if the mattress is imported, the complete physical address of the importer or U.S. location where records are maintained; (3) the month and year of manufacture; (4) the model identification; (5) prototype identification number; and (6) a

certification that the mattress complies with the standard.

The final rule specifies the wording and format to be used in the compliance certification label, and requires that this information appear on a single label dedicated to this purpose. This will ensure that the information is not detracted from or minimized, and it will prevent potential confusion with state labeling requirements. The label information may be printed on the reverse side of the label in another language.

Included on the label must be a statement indicating whether the mattress meets the standard when used without a foundation, with a corresponding foundation or both alone and with a foundation. A mattress that is tested with a foundation may perform differently when used with a different foundation or without any foundation. Thus, it is important for consumers to know what foundation (if any) the mattress they are purchasing is intended to be sold with.

12. One of a Kind Exemption (§ 1633.13)

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

F. Effectiveness Evaluation

As discussed in the NPR, CPSC staff conducted an effectiveness evaluation to assess the potential effectiveness of the proposed standard in addressing deaths and injuries resulting from mattress/bedding fires. The evaluation was based primarily on review of CPSC investigation reports that provided details of the occupants' situations and actions during the fire. Staff reviewers identified criteria that affected the occupants' ability to escape the fires they had experienced. The staff used these criteria to estimate percentage reductions in deaths and injuries expected to occur under the much less severe fire conditions anticipated with improved designs of mattresses that would comply with the standard. The staff then applied these estimated reductions to national estimates of mattress/bedding fire deaths and injuries to estimate numbers of deaths and injuries that could be prevented with the standard. [3]

The staff's effectiveness estimates in the NPR were based on full-scale tests of early experimental mattress designs incorporating strong, but not necessarily cost-effective barrier systems. These mattress tests were conducted with burning bedclothes so that the fires produced could be used to estimate changes in deaths and injuries expected to result from the standard. In the past few years, mattress designs and materials have evolved with manufacturers now producing mattresses to meet California TB 603. New fire barrier products have been introduced, mattress designs have been more closely engineered to achieve the required performance, and single-sided mattresses have become an increasingly larger and more significant portion of the residential market. [1]

In evaluations that the staff conducted after publication of the NPR, the staff found that when mattresses are closely designed to the performance requirements in the final standard, as is expected as the industry develops their new products, flashover conditions could occur earlier than previously measured with experimental and initially over-engineered designs. Staff accounted for this observed behavior by reducing the effectiveness estimates for the final standard adjusting for the effect on some occupants. The standard's limit on the early contribution of the mattress to the fire (15 MJ in the first 10 minutes) will help to maintain tenable conditions early in the fire and allow for timely discovery and escape from growing fire conditions. [1&2]

The most recent national fire loss estimates indicated that mattresses and bedding were the first items to ignite in 15,300 residential fires attended by the fire service annually during 1999-2002. These fires resulted in 350 deaths, 1,750 injuries and $295.0 million in property loss each year. Of these, the staff considers an estimated 14,300 fires, 330 deaths, 1,680 injuries, and $281.5 million property loss annually to be addressable by the standard (i.e., of the type that the standard could affect based on the characteristics of the fire). [3]

For the final rule, the staff has reviewed the fire loss data and updated its effectiveness evaluation to account for the observations discussed above. The staff's analysis is explained in detail in the memorandum “Updated Estimates of Residential Fire Losses Involving Mattresses and Bedding.” [3]

CPSC staff estimates that, overall, the standard may be expected to prevent 69 to 78 percent of the deaths and 73 to 84 percent of the injuries presently occurring in addressable mattress/bedding fires attended by the fire service. Applying these percentage reductions to estimates of addressable mattress/bedding fire losses noted above, staff estimates potential reductions of 240 to 270 deaths and 1,150 to 1,330 injuries annually in fires attended by the fire service when all existing mattress sets have been replaced with mattress sets meeting the new standard. There may also be reductions in property damage resulting from the standard, but data are not sufficient for the staff to quantify this impact. [3]

G. Inter-Laboratory Study

Before publication of the NPR, an inter-laboratory study was conducted with the support of the SPSC, NIST, and participating laboratories to explore the sensitivity, repeatability, and reproducibility of the NIST test method. However, only a preliminary analysis of the results of the study was available prior to the NPR. A more detailed analysis is now available. See Damant, G./Inter-City Testing and Consulting Corporation & Sleep Products Safety Council (2005).
Developing an Open-Flame Ignition Standard for Mattresses and Bed Sets (Report on a Precision and Bias Evaluation of the Technical Bulletin 603 Test Method
). Alexandria, VA: Sleep Products Safety Council. The analysis is summarized below.

All of the participating labs conducted multiple tests of eight different mattress designs. The mattress designs varied critical elements (e.g., the barrier—sheet or high-loft, the type of mattress—single or double-sided) and the style of mattress (e.g., tight or pillow top). [2]

A detailed statistical analysis of the test data suggests neither unreasonable sensitivities nor practical limitations of the NIST test protocol. The results were not affected by substantially varying the parameters (primarily associated with possible test facility and operator errors) selected for the sensitivity study. The data indicate that the specified ignition source is severe enough and the test duration long enough to allow a valid/realistic evaluation of mattress set performance. [2]

The data showed some significant differences in the test results reported by the participating laboratories, and a variety of factors possibly influenced these differences. However, the study suggests that, when the test procedures are correctly followed, it is the combined characteristics and resulting behavior of the mattress components chosen, mattress design, and consistency of the manufacturing processes that determines the test outcome. Observations from the study emphasize the importance of controlling components, materials, and methods of assembly. Quality assurance procedures,

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

H. Response to Comments on the NPR

As discussed above, the Commission published an NPR in the
Federal Register
on January 13, 2005, proposing a flammability standard addressing open flame ignition of mattresses. 70 FR 2470. During the comment period, the Commission received over 540 comments from consumers, businesses, associations and interested parties representing various segments of the mattress industry and consumers. In addition, comments were presented by interested parties at a public hearing concerning the mattress NPR that the Commission held on March 3, 2005. Additional comments have also been submitted since the close of the comment period.

Commenters who generally supported the proposed rule provided comments regarding definitions, testing procedures, recordkeeping requirements, importer/renovator responsibilities, and other related issues. Those opposed to the standard expressed concerns about the health effects of flame retardant chemicals needed to help mattress sets comply with the performance requirements. [18 & 19] Significant issues and the Commission's responses are summarized below. More detailed responses and responses to minor comments are discussed in the staff's briefing memoranda.

1. Scope and Definitions of the Standard

a.
Comment.
One commenter noted inconsistency in use of the terms “mattress” and “mattress set,” which could lead to confusion. The commenter suggested using and defining “mattress set” to refer to mattresses to be tested both with and without a foundation.

Response.
CPSC has now defined “mattress set” to include mattresses labeled for sale alone and mattresses labeled for sale with a foundation, depending upon the manufacturer's intentions, to resolve the problem of inconsistency, as well as reduce wordiness. The revised definition also makes clear that foundations need not meet the test requirements by themselves. The term is used throughout the final standard.

b.
Comment.
Two commenters stated that the distinction between prototypes that need to be tested and those that do not is unclear. They suggest using a different term, such as “Model,” for prototypes that do not need to be tested.

Response.
CPSC agrees that using a different term to refer to prototypes that are not required to be tested would prevent confusion. “Subordinate prototype,” defined at § 1633.2(p), is used for an untested prototype based on either a qualified or confirmed prototype.

c.
Comment.
One commenter recommended that the term “prototype developer” be defined to permit third parties, such as component suppliers, to design and test prototypes that can be used by mattress manufacturers.

Response.
The standard does not prohibit entities other than mattress manufacturers from designing and testing mattresses for pooling purposes. For purposes of clarity a definition for “prototype developer” has been added to the standard to describe a third party providing this service to the industry. If such an entity designs a prototype for a mattress manufacturer, the manufacturer would still be responsible for causing qualification testing of and maintaining all records required for that prototype, including those documenting the prototype qualification. If the prototype developer designs and qualifies the prototype, the manufacturer would have to do the required confirmation test.

d.
Comment.
Commenters questioned the applicability of the proposed standard to mattresses used in recreational vehicles and the lodging industry.

Response.
The Commission intends for this standard to apply to essentially the same mattresses as are currently regulated under Part 1632. Mattresses are “products” under the Flammable Fabrics Act. However, motorized RVs that are subject to the National Highway Traffic Safety Administration's FMVSS No. 302 would not be subject to the Commission's mattress standard.

Interpreting the 1632 mattress standard, the Commission's staff and Office of General Counsel have expressed the view that the flammability standards issued under the FFA (including 1632) are applicable to mattresses, carpets and rugs when installed in travel trailers, 5th wheelers and slide-in campers, but travel trailer cushions that have dual purposes as mattresses and seat cushions would not be considered mattresses.

Mattresses used in the lodging industry are subject to the 1632 mattress standard. Commenters have not presented any reasons why these mattresses should be treated differently under the new Part 1633 regulation addressing open flame ignition. In the absence of such information, the Commission believes it is appropriate to continue to include mattresses used in the lodging industry as subject to Commission mattress flammability rules.

2. Technical Requirements/Specifications

a.
Comment.
Several commenters recommended changing the specified burner hole size to the #53 drill size (1.50 mm) used on production burners and limit the time between removal of the sample from conditioning and the start of the test.

Response.
As discussed earlier in this preamble, NIST recently evaluated peak heat fluxes from two versions of gas burner designs, the original and the commercial burners with larger holes. The study showed that the burners with the larger holes do a better job of meeting the target peak flux levels of bedclothes than do the original burners with the smaller holes. Accordingly, the Commission has revised the standard to specify a nominal burner hole size of 1.50 mm, which corresponds to Grade 10 machining practice with a well formed #53 drill bit.

b.
Comment.
Several commenters recommended tightening sample conditioning and test area conditioning requirements.

Response.
CPSC agrees that exposure of a mattress sample to the fire test room environmental conditions could likely have an impact on test results. Some laboratories have observed seasonal variations in test performance. It is reasonable, therefore, to require that testing of a specific conditioned sample should begin within a certain amount of time after removal from the storage conditions.

Based on NIST's evaluation of the effects of laboratory humidity in fire test performance, the Commission has revised the standard to require that testing must begin within 20 minutes after removal from the conditioning room. The sample conditioning requirements in § 1633.7(b) of the standard have been revised to specify an upper limit on the temperature. The temperature range must be greater than 18° C (65° F) and less than 25° C (77° F). The test area conditions must now be maintained at a temperature greater than 15° C (59° F) and less than 27° C (80.6° F) and a relative humidity less than 75 percent. These specifications will minimize environmental influences on test results.

c.
Comment.
Several comments requested the use of slightly modified test equipment. For example, one

commenter requested to use a modified technique to obtain the required burner offset from the specimen instead of the foot. Another comment pertained to using an alternate method of measuring the gas flow, rather than using a rotameter type of flowmeter.

Response.
To address such issues that would not be expected to influence the test, the proposed standard has been revised to include a provision for the use of alternate apparatus in § 1633.7(k): Mattress sets may be tested using test apparatus that differs from that described in this section if the manufacturer obtains and provides to the Commission data demonstrating that tests using the alternate apparatus for the procedures specified in this section yield failing results as often as, or more often than, tests using the apparatus specified in the standard. The manufacturer shall provide the supporting data to the Office of Compliance, and staff will review the data and determine whether the alternate apparatus may be used.

3. Exposure to Flame Retardant Chemicals—Health Concerns

a.
Comment.
Numerous commenters stated that they were concerned about the possible toxicity of flame retardant (FR) chemicals in general. Other commenters, including manufacturers of mattresses or mattress components, stated that there are FR chemicals that can be used without presenting a hazard to consumers, workers, or the environment.

Response.
In the view of the CPSC staff, there are inherently flame resistant materials and FR chemicals available that can be used to meet the standard and that are not likely to present a hazard to consumers, workers, or the environment. The CPSC and Environmental Protection Agency (EPA) staffs will continue to evaluate the potential effects of FR treatments to ensure that they do not present a hazard to consumers, workers, or the environment.

Mattress manufacturers would be free to choose the means of complying with the standard. Options available to manufacturers include the use of inherently flame resistant materials, FR barriers, and FR chemicals. To meet the standard, FR chemicals would most likely be applied to components inside the mattress, such as batting or barriers. However, FR chemicals might be applied to mattress ticking (cover fabric) in some cases. The potential risk presented by any chemical, including FR chemicals, depends on both toxicity and exposure. To the extent that FR chemical treatments remain bound to or within the mattress, exposure and its attendant risk would be minimized.

The CPSC staff has considered the potential chronic health risks associated with FR chemicals that may be used in mattresses to comply with the standard and continues to study the potential exposures to FR chemicals that may occur over the lifetime of a mattress. The Commission concludes that there are inherently flame resistant materials, FR barriers, and FR chemical treatments that can be used without presenting any appreciable risks of health effects to consumers.

The CPSC staff is also working with the EPA to ensure that the use of FR chemicals does not endanger consumers, workers, or the environment. EPA has broad statutory authority over chemical substances that address potential risks to consumers, workers, and the environment. EPA has several programs such as the Design for the Environment (DfE), High Production Volume (HPV) Chemical Challenge, and Voluntary Children's Chemical Exposure Program (VCCEP) to evaluate the potential hazards of chemicals, including flame retardants, to consumers, workers, and the environment. In addition, the CPSC staff is cooperating with EPA in developing a significant new use rule (SNUR) for FR chemicals that could be used to comply with CPSC or state flammability requirements for upholstered furniture and possibly mattresses. EPA's programs and statutory authority can be used to obtain additional toxicity or exposure data where needed, and complement the activities of the CPSC and the statutory authority of the Commission.

b.
Comment.
A number of commenters were specifically concerned about the toxicity of boric acid, which is used to treat cotton batting.

Other commenters, including manufacturers of mattresses, mattress components, and chemicals, noted that boric acid has been used in mattresses for many years and that their employees have not suffered any ill effects. They noted that the EPA also recently increased its reference dose (RfD) for boric acid. (This means that a greater daily exposure to boric acid is considered acceptable by EPA.)

Response.
After publication of the NPR, the CPSC staff performed studies to estimate the potential for exposure as well as the potential health risk associated with the use of boric acid as a flame retardant. [4&11] The staff's studies and analysis applied conservative assumptions in areas of scientific uncertainty, that is, assumptions that may overestimate, rather than underestimate, exposure and risk. The staff concluded that the estimated exposure to boric acid was below both the EPA's revised RfD and the updated CPSC staff's Acceptable Daily Intake (ADI). Thus, boric acid is not expected to pose any appreciable risks of health effects to consumers who sleep on treated mattresses.

c.
Comment.
One commenter specifically mentioned fiberglass as a potentially hazardous FR treatment due to inhalation of glass fibers.

Response.
The type of fiberglass used in textiles and FR barriers, “continuous filament,” is not considered hazardous.

d.
Comment.
Some commenters argued that the risk of dying in a fire is lower than the risk of adverse health effects from exposure to FR chemicals in mattresses.

Response.
The commenter provided no data on mattress exposures to support this assertion. There are approximately 15,000 fires per year in the U.S. in which mattresses or bedding are the first item ignited, resulting in about 1,750 injuries and 350 deaths per year. The Commission has concluded that the risk of injury or death in a fire involving mattresses or bedding is substantial.

The CPSC has studied the potential exposures and chronic health risks associated with FR chemicals that may be used in mattresses to comply with the standard. The results of these studies indicate that there are a number of commercially available FR-treated barriers that can be used to meet the standard without presenting any appreciable risks of health effects to consumers.

e.
Comment.
Numerous commenters stated that they have multiple chemical sensitivity (MCS), allergies, or other health conditions that could be exacerbated by exposure to FR chemicals.

Response.
The CPSC concludes that there is no evidence to suggest that FR chemical exposures from mattresses would contribute to the causation or exacerbation of allergies, asthma, or multiple chemical sensitivity (MCS). For the most part, the materials and FR chemicals that will be used to comply with the standard do not share the characteristics of the types of exposures associated with the conditions noted by the commenters.

MCS is a “condition in which a person reports sensitivity or intolerance (as distinct from an allergy) to a number of chemicals and other irritants at very low concentrations.” The chemicals include both recognized pollutants—for example, formaldehyde, volatile organic

compounds, and environmental tobacco smoke—as well as agents generally considered to be innocuous, such as fragrances. Health professionals and biomedical scientists differ in their views regarding the underlying causes and physiological processes of this condition. Non-allergic asthma and rhinitis are generally associated with exposure to respiratory irritants such as combustion products, environmental tobacco smoke, dusts, and solvents, while allergic asthma and rhinitis symptoms are most often associated with exposures to airborne biological substances, such as animal dander, insect wastes, molds, and pollen. The FR materials or chemicals under consideration are generally non-volatile, are not associated with fragrances or odors, and are not derived from biological materials.

Furthermore, the potential risks presented by FR chemicals depend on both toxicity and exposure. In most cases, FR chemicals would be applied to components inside the mattress, such as batting or barriers. To the extent that FR chemical treatments remain bound to or within the mattress, exposure and its attendant risk would be minimized.

f.
Comment.
Some commenters claimed that FR chemicals may cause sudden infant death syndrome (SIDS).

Response.
The CPSC disagrees with the claim that antimony compounds or other FR chemicals may cause sudden infant death syndrome (SIDS). Following a four-year study in the United Kingdom and reviews by a number of expert panels in the UK and the U.S., the expert panels concluded that there is no credible evidence that antimony compounds or any other FR chemicals contribute to SIDS.

g.
Comment.
Some commenters were specifically concerned about the toxicity of polybrominated diphenyl ethers (PBDE's), including decabromodiphenyl oxide (DBDPO).

Response.
PBDE's are a family of FR chemicals that have been used in some components of consumer products. Octabromodiphenyl ether (octa-BDE) was a relatively minor product that was never used in mattresses or upholstered furniture. Pentabromodiphenyl ether (penta-BDE) is no longer in use. It was one of the primary FR treatments for flexible polyurethane foam (PUF), which is used in mattresses, upholstered furniture, and other applications. However, most non-California residential mattresses and upholstered furniture do not require FR-treated PUF to pass current flammability requirements. The European Chemicals Bureau concluded that there is no reason to ban DBDPO. The U.S. EPA and the European Chemicals Bureau continue to review the potential environmental effects of DBDPO. The CPSC staff evaluated risks associated with mattress barriers containing DBDPO and concluded that DBDPO used in barriers for mattresses is not expected to pose any appreciable risk of health effects in consumers. [1&13]

h.
Comment.
Some individuals commented that there is no guidance for manufacturers to consider toxicity and exposure when selecting FR chemicals.

Response.
Under the FHSA, manufacturers are responsible for ensuring that their products either do not present a hazard to consumers or, if they are hazardous, that they are properly labeled according to the requirements of the FHSA. In 1992, the Commission issued chronic hazard guidelines to assist manufacturers in complying with the FHSA (16 CFR 1500.3(c)(2). The guidelines address carcinogenicity, neurotoxicity, reproductive and developmental toxicity, exposure, bioavailability, and risk assessment.

i.
Comment.
One manufacturer commented that the CPSC staff should use realistic exposure scenarios, rather than overly conservative ones.

Response.
In assessing chronic health hazards, the goal of the CPSC staff is to determine whether “reasonably foreseeable handling and use” may be hazardous to consumers. Therefore, the staff generally attempts to make best estimates of exposure under realistic conditions. However, in the absence of adequate data, the staff applies “conservative” assumptions, that is, assumptions that might overestimate, rather than underestimate risk.

The CPSC chronic hazard guidelines describe various approaches to exposure assessment. Direct measures of exposure such as field studies are generally preferred over laboratory studies and mathematical modeling. However, field studies are not always practical for technical or economic reasons. Thus, the staff frequently relies on a combination of laboratory data and mathematical models.

The CPSC staff developed laboratory methods and exposure scenarios to assess the potential exposure to FR chemicals in mattresses. These methods are conservative in that they may overestimate, rather than underestimate, the potential risk.

4. Durability of Flame Retardant Chemicals—Fire Performance

Comment.
Several commenters recommended requiring performance tests to assure the durability of flame retardant chemicals and barrier performance after exposure to moisture. Some provided test data to support their concerns. Other commenters provided data from tests of used mattresses taken out of service, indicating they still met applicable standards.

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

5. Effective Date

Comment.
Commenters suggested a variety of effective dates for the final rule ranging from immediate implementation to coinciding with regular model changes (January and July) and 18 months from final publication.

Response.
The standard provides an effective date of July 1, 2007, which is the earlier of January or July that follows twelve months after publication of the
Federal Register
notice. This date would coincide with regular model/style changes and thus make it easier for all producers, especially small producers outside of California who are not producing complying mattress sets, to update their styles and produce complying mattress sets.

All national producers that sell mattresses in California already have developed the production technology and conducted the testing required to

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

6. Labeling

a.
Comment.
One commenter urged the Commission to require the labels of imported mattresses to bear the foreign manufacturer's name and full address, including country, as well as the importer's name and full address.

Response.
CPSC agrees that such information should be present on the mattress set label and has revised § 1633.12 (a) of the standard accordingly.

b.
Comment.
One commenter referred to the Textile Fiber Products Identification Act, which is administered by the Federal Trade Commission (FTC) and requires, among other things, that mattresses made with “reused stuffing” be labeled so, and suggested that CPSC coordinate with FTC to allow the disclosure to appear on the label with the other information required by the standard.

Response.
Labeling of mattresses is governed by several organizations, including CPSC, FTC, and individual states. Because of the informative nature and quantity of information needed, the standard has been revised to require the information specified in § 1633.12 to be displayed on a permanent, dedicated label in a prescribed format. Therefore, no other information apart from that required by the standard may appear on this label. This helps to insure prominence of consumer safety information and to prevent potential confusion with other labeling requirements.

c.
Comment.
One commenter suggested requiring renovated mattresses to bear a yellow label that would distinguish them from new mattresses, which traditionally bear white labels. In addition, the commenter recommended that renovated mattress labels be required to contain a statement indicating that compliance with the standard does not imply that the renovated mattress is sanitary or hygienic.

Response.
The standard seeks to reduce injuries and deaths due to fires. It is not intended to address the sanitary condition of mattresses.

d.
Comment.
One commenter expressed concern that requiring a dedicated label might detract from the Sleep Product Safety Council's safety hangtag program, conflict with the state law labeling program, and negatively affect the aesthetics of the finished product. The commenter suggested allowing manufacturers to display the required information on the Sleep Products Safety Council's safety hangtag.

Response.
CPSC has revised the labeling provision in the standard to (1) include intended usage information for the safety of the consumer, (2) require all information specified in § 1633.12 to appear on a dedicated label, and (3) permit the display of the consumer usage information in any other language on the reverse (blank) side of the label. Consumers must be able to identify the correct foundation, if any, to use with the mattress they purchase. With this intended usage information, consumers will understand that the mattress they purchase meets the requirements of the standard when used alone, with one or more specific foundation(s), or both.

Requiring the specified information to appear on a dedicated label has the benefit of (1) ensuring that such information is not detracted from or minimized, (2) avoiding potential conflict or confusion with state labeling requirements, (3) guaranteeing that the intended usage information is highlighted and presented in a consistent manner, and (4) allowing manufacturers the option of providing the intended usage information in another language on the back of the label. CPSC staff designed the required label to be as small as possible without compromising the clarity and effectiveness of the specified information.

e.
Comment.
Ten commenters recommended including in the standard a requirement that mattresses provide a label listing FR chemicals used or a statement warning of health risks.

Response.
The staff has found that numerous FR materials are available that will enable mattresses to meet the standard without posing any appreciable health risks. Moreover, the FHSA itself would require a hazard warning label if a mattress did contain a hazardous substance as that term is defined in the FHSA. The potential health hazard associated with any chemical depends on both toxicity and exposure. A label stating the names of any FR chemicals used in the mattress would thus not in fact provide any useful information to the consumer because the mere presence of an FR chemical is not an indication that the mattress containing that chemical poses any health risk.

7. Preemption

Comment.
The Commission received several comments concerning preemption. One commenter asked that the Commission explicitly state in the standard that the mattress standard would preempt both codified state rules and State common law claims that address the same risk of injury as the federal mattress standard. Other commenters asked that the Commission indicate that the standard would not preempt stricter state standards.

Response.
The Commission's position on the preemptive effect of this final rule is stated in Section N. of this preamble.

8. Domestic Manufacturer/Renovator vs. Importer Responsibilities

a.
Comment.
Two commenters suggested making importer testing/recordkeeping responsibilities explicit. They suggested including language specifying that testing needs to be conducted (either qualification or confirmation) and records maintained for
each
foreign manufacturer if the importer is importing from more than one manufacturer.

Response.
CPSC intends for the requirements of the standard to be the same for domestic manufacturers/renovators and importers: each is responsible for maintaining the appropriate qualification and confirmation test records for mattress sets they produce and/or import. These requirements have been clarified in the standard.

b.
Comment.
One commenter expressed concern that foreign manufacturers may circumvent testing requirements by drop-shipping directly to consumers. The commenter recommended adding a definition of “importer” that identifies domestic agents involved with selling or marketing the product to be drop-shipped as the responsible party.

Response.
The CPSC does not believe that adding a definition of importer will suitably address the issue. Section 3(a) of the Flammable Fabrics Act already prohibits “[t]he manufacture for sale, or the offering for sale, in commerce, or the importation into the United States, or the introduction, delivery for introduction, transportation or causing to be transported in commerce or for the

purpose of sale or delivery after sale in commerce * * *” of any product violating a standard issued under its authority. This means that any party—including importers and other agents initially introducing goods regulated under the FFA into commerce—engaged in the foregoing actions with respect to non-complying products would be liable under the FFA.

In response to the commenter's concern, CPSC revised the standard to require each manufacturer to maintain a copy of the records demonstrating compliance at a U.S. location. Additionally, this location would be required to appear on the mattress label. Section 1633.11(e) of the standard has been revised to reflect these requirements.

9. Quality Assurance Requirements

Comment.
One commenter suggested limiting the scope of the components and materials required to be controlled for quality assurance to only those that are critical to the flammability performance of the finished product.

Response.
The Commission believes that it is premature to limit the scope of the quality control on incoming components and materials. The Commission could revisit this issue once significant experience with the standard is gained and the industry and CPSC have more confidence in the contributions of various components to the full-scale fire performance of mattress sets.

10. Recordkeeping and Sample Retention

a.
Comment.
One commenter recommended that the test and manufacturing records require the “name and full address” of the testing laboratory, as opposed to just the “location.” The same commenter likewise suggested substituting “full address” for “location” for both the manufacturer of the qualified prototype in the pooling confirmation test records and the suppliers in the prototype records.

Response.
CPSC agrees that the name and complete address of the testing laboratory, as well as the complete addresses of the qualified prototype manufacturer and each material and component supplier, should appear in the respective records. This will provide more complete and accurate information for compliance purposes. Changes in § 1633.11 of the standard have been made accordingly.

b.
Comment.
One commenter urged the Commission to limit the records required under § 1633.11(d)(5) of the standard to only those relating to the testing and evaluations of components, materials, and assembly methods critical to flammability performance of the qualified prototype.

Response.
Since it is too early to know exactly what components, materials, and assembly methods will influence the flammability performance of a mattress, CPSC does not believe it is appropriate to limit the types of records required under § 1633.11(d)(5) at this time. Moreover, these records will likely be used by manufacturers to demonstrate that a change in component, material, and/or assembly method will not degrade the flammability performance of a prototype, thus allowing the manufacturer to forgo testing and qualifying a new prototype. To that end, it is in the interest of the manufacturer to maintain a broader scope of such records.

c.
Comment.
Two commenters remarked that the requirement to keep physical samples of all materials used in each prototype is overly burdensome and impractical. The large numbers of samples would require significant storage space while the objective could be accomplished through test and quality certificates and other documentation already required in the quality assurance records.

Response.
The requirement to maintain physical samples of prototype materials and components was included in the proposed standard as an added measure for manufacturers to verify that production mattresses match their representative prototype. Given that the prototype recordkeeping requirements already call for manufacturers to provide a detailed description of and specifications for each material and component used in every prototype, and given that this information may be used to reliably verify material and component consistency, the requirement to keep physical samples has been eliminated in the standard.

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

Comment.
Some commenters supported revoking the existing standard for cigarette ignition of mattresses and mattress pads. Others recommended careful review of risks, incident data, and benefits of the current standard before revocation is considered.

Response.
On June 23, 2005, the Commission published an advance notice of proposed rulemaking for the possible revocation or amendment of the Standard for the Flammability of Mattresses and Mattress Pads (Cigarette Ignition). 70 FR 36357. That rulemaking will allow for a full evaluation of options to reduce unnecessary burdens while maintaining the safety afforded by the cigarette ignition standard. The Commission staff is also considering measures to reduce the short term testing burden created by the addition of a new mattress standard to an existing one.

12. Costs Associated With the Standard

Comment.
Commenters expressed concerns about the increased costs of barrier materials needed to produce complying mattresses and increased costs to consumers (as much as $100 per mattress).

Response.
Estimates of barrier and other resource costs for mattress producers are lower in the final regulatory analysis than those in the initial regulatory analysis and are expected to drop further as a result of technological developments and increased competition among barrier producers. Total costs are not expected to exceed $23.00 per mattress set.

The expected price increase for consumers was initially estimated to range from $23.00 to slightly less than $80.00. However, the final regulatory analysis updated the costs, which have declined because of technological advances and market competition. This means that the consumer price will increase by a mid-point estimate of $24.21 per mattress.

One national producer currently makes mattresses that would comply with the standard without increasing the price of its mattress sets. Competition for market share among producers will likely drive the price closer to the one charged by this national producer, which would make the likely increase even lower than that suggested by the $24.21 above.

13. Bedclothes Rulemaking

Comment.
Some commenters expressed support for an additional rulemaking for bedclothes because of the significant role those products play in mattress/bedding fire losses. Other commenters shared concerns about the potential use of FR chemicals in such a rulemaking as well.

Response.
On January 13, 2005, the Commission published an advance notice of proposed rulemaking for a standard to address open flame ignition of bedclothes. 70 FR 2514. Recent research has shown that bedclothes are a significant ignition source for mattress fires and can also generate a fire large enough to pose a hazard on their own. Laboratory tests also showed that fire performance of these products could be

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

I. Final Regulatory Analysis

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

1. Introduction

For 1999 to 2002, there were an estimated annual average of 15,300 fires where the first item ignited was mattress/bedding. These fires resulted in an annual average of 350 deaths, 1,750 injuries, and $295 million of property loss. As discussed elsewhere in this document, NIST conducted extensive research and developed a test methodology to test open flame ignition of mattresses. The Commission issued an NPR proposing a standard that incorporates the NIST test method.

California Technical Bulletin (TB) 603, which is based on the use of NIST test burners designed to mimic the local thermal insult (heat flux levels and duration) imposed by burning bedclothes, became effective in California on January 1, 2005. The California share of the market is estimated, by industry representatives, to be around 11 percent of the U.S. market. TB 603 requires all mattress/foundation sets, mattresses intended to be used without a foundation, and futons to meet the following pass/fail criteria: (1) The peak heat release rate (“PHRR”) does not exceed 200 kW during the 30 minute test, and (2) the total heat release does not exceed 25 mega joules (MJ) in the first 10 minutes of the test.

As of October 2005, one of the top four producers is selling mattress sets that comply with both TB 603 and the CPSC standard. The other three (of the top four) are producing complying mattress sets representing between 15 and 20 percent of their total output. This includes all mattress sets sold in California, plus other special orders, institutional mattresses and mattress sets sold in other states. Smaller manufacturers, however, may not produce mattress sets intended for sale outside California to meet TB 603 performance requirements. They are more likely to wait until a federal standard is adopted. The mattress industry and the International Sleep Products Association (ISPA) support the development of a mandatory federal standard (
Furniture Today,
May 10, 2004). A Federal standard would eliminate the uncertainty that may result from having different flammability standards for different states.

2. The Standard: Scope and Testing Provisions

The standard will apply to all mattress sets, where the term mattress set means either a mattress and foundation labeled by the manufacturer for sale as a set, or a mattress labeled by the manufacturer without any foundation. The term mattress means a ticking (
i.e.
, an outer layer of fabric) filled with a resilient material used alone or in combination with other products intended or promoted for sleeping upon. This definition is discussed further in section E.3. above.

A typical innerspring mattress construction might include ticking; binding tape fabric; quilt cushioning with one or more separate layers; quilt backing fabric; thread; cushioning with one or more separate layers; flanging; spring insulator pad; spring unit; and side (border) panels. Options for meeting the standard include the use of one or a combination of the following: fire resistant ticking; chemically treated or otherwise fire resistant filling products; or a fire blocking barrier (either a sheet style barrier, sometimes called a fabric barrier, or a high-loft barrier, sometimes called a fiber barrier). The fire blocking barrier is placed either directly between the exterior cover fabric of the product and the first layer of cushioning materials, or beneath one or more “sacrificial” layers that can burn without reaching the heat release constraints of the standard.

While the technology exists for producing a sheet-style fire blocking barrier, few, if any, producers are choosing it for protecting the mattress. The cost of using sheet barriers is higher than using high-loft barriers, since sheet barriers are thin and therefore could not be substituted for an existing foam or cushioning layer. There is also concern that some sheet barriers, unlike high-loft barriers, may reduce the comfort of the sleeping surface. There are already over twenty different vendors of fire resistant materials associated with the production of mattress sets, including barriers, ticking, foam, tape, and thread. These materials include chemically treated cotton, rayon, and/or polyester, melamine, modacrylic, fiberglass, aramid (Kevlar®), or some combination of them.

For each qualified prototype, three mattress sets must be tested and must pass the test requirements. To obtain a passing result, each mattress/set must pass a 30 minute test, where the PHRR does not exceed 200 kW and the total heat release does not exceed 15 MJ in the first 10 minutes of the test. If any of the sets fail, the problem must be corrected, the prototype must be retested and pass the test (in triplicate). Manufacturers may sell any mattress set based on a qualified prototype. Manufacturers may also sell a mattress set based on a subordinate prototype that has not been tested if that prototype differs from a qualified prototype only with respect to (1) mattress/foundation size (length and width); (2) ticking, unless the ticking of the qualified prototype has characteristics designed to improve performance on the burn test; and/or (3) the manufacturer can demonstrate, on an objectively reasonable basis, that a change in any component, material, or method of assembly will not cause the prototype to exceed the test criteria specified above.

Once a prototype has been qualified, other establishments (plants within the same firm) or independent firms may rely on it through a pooling arrangement. The pooling plant or firm is required to test one mattress set for confirmation testing. If that set fails, then the plant or firm will need to test another mattress set after correcting its production to make sure that it is identical to the original prototype. A pooling firm may sell other mattress sets that have not been tested by the pooling firm if they are based on a confirmed prototype and differ from the confirmed prototype only with respect to the three situations stated above.

3. Products and Industries Potentially Affected

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

establishments. The number of establishments has been declining over time due to mergers and buy-outs. Total employment in the industry, using the NAICS Code 33791, was 24,545 workers in 2003.

The mattress manufacturing industry has three key supplying industries: spring and wire product manufacturing, broad-woven fabric mills, and foam products manufacturing. Depending on the type of fire resistant barrier chosen by different manufacturers, the demand for foam padding or non-skid fabric for mattresses might decline if it were replaced by the high-loft or sheet barrier in the construction of the mattress and foundation. This would be offset by an increase in the demand for the barrier. Fiberglass, melamine, and aramid producers may also be affected to the extent that they are used to produce fire resistant materials used in mattress production.

Manufacturers of bedclothes may also be affected by the standard. Sales of bedclothes may increase or decrease based on whether consumers view bedclothes as complements or substitutes for a new mattress set (complements are goods generally consumed together, substitutes generally substitute for each other). For example, if people tend to buy all parts of a new bed (mattress, foundation, and bedclothes consisting of a comforter, pillows, and sheets) at the same time, then an increase in the quantity of mattresses sold would cause an increase in sales of bedclothes. If, alternatively, people tend to have a fixed budget from which to buy all mattresses and bedding items, then an increase in the quantity of mattresses sold would lead to a decrease in sales of bedclothes. Also, if the decision to buy a new mattress (or mattress set) involves buying a mattress that is much thicker than the one currently in use, then consumers will most likely buy new sheets (and possibly matching pillowcases and other bedclothes items) to fit the new thicker mattress.

If the cost increase is relatively small or there is no resulting increase in the price of a mattress set, then the demand for bedclothes will only be affected if consumers place a higher value on the safer mattress and replace their current mattress sooner than they would have with no standard in place. An increased demand for the safer (and thicker, if the current mattress is relatively old) mattress will likely result in an increased demand for sheets that fit the newer mattresses. This effect, however, is not directly resulting from the adoption of the standard since the thickness of the mattress need not be increased by the presence of either type of barrier. It is the result of the increased utility some consumers may derive from the safer mattress and the consequent increase in demand for bedclothes. The increased demand for safer mattresses would most probably lead to an increase in sales and employment in the spring and wire products, broad-woven fabric, and foam products industries, as well as in the mattress and bedclothes industries.

Other producers that could potentially be affected, if the price change associated with producing compliant mattresses is significant, are those of other substitute products, like airbeds, waterbeds, * * * etc. that contain no upholstered material and would, therefore, not be covered by the standard. Their sales may increase as a proportion of total bedding products.

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

The total number of U.S. conventional mattress shipments was 22.5 million in 2004 and is estimated to be 23.0 in 2005. Mattress shipments have grown at an average rate of three percent over the period 1981 to 2005. Unconventional mattresses (including futons; crib mattresses; juvenile mattresses; sleep sofa inserts; and hybrid water mattresses) are estimated to be about ten percent of the total market. This yields an estimated total number of mattresses produced domestically of 25.6 million in 2005. The value of mattress and foundation shipments in 2004, according to ISPA, was $4.10 and $1.68 billion, compared to $3.26 and $1.51 billion respectively in 2002.

The CPSC Product Population Model (PPM) estimate of the number of mattresses in use in different years is based on available annual sales data and an estimate of the average product life of a mattress. Industry representatives assert that the average consumer replaces a mattress set after ten years. A 1996 CPSC market study estimated the average expected life of a mattress to be 14 years. The PPM estimates the number of (conventional and non-conventional) mattresses in use in 2005 to be 237.0 million, using a 10-year average product life and 303.9 million, using a 14-year average product life. These two numbers are later used to estimate the pre-standard baseline risk and the expected benefits of the standard.

This analysis focuses principally on queen-size mattresses because they are the most commonly used. In 2004 queen-size mattresses were used by 34.9 percent of U.S. consumers. Following the queen-size are the sizes: Twin and Twin XL (29.3 percent), Full and Full XL (19.9 percent), King and California King (11.5 percent), and all other (4.4 percent). ISPA data reflect that the average size of a mattress is increasing. The average manufacturing price in 2004 was $182 for a mattress of average size and $90 for a foundation of average size. Hence the average manufacturing price of a mattress set was about $272 in 2004.

There are no readily available data on average retail prices for mattress sets by size. ISPA, however, reports that mattress sets selling for under $500 represented 34.6 percent of the marketing 2004. Mattress sets selling for between $500 and $1000 represented 41.1 percent of the market in 2004, compared to 39.2 percent in 2002.

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

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

6. Expected Benefits of the Standard

The expected benefits of the standard are estimated as reductions in the baseline risk of death and injury from all mattress fires, based on a CPSC staff study of fire investigations from 1999-2004. Risk reductions are then calculated on a per-mattress-in-use basis based on estimates of the number of mattresses in use. The monetary value of expected benefits per mattress is derived using estimates for the value of a statistical life and the current (i.e., 2005) average cost of a mattress fire injury. To derive the monetary value of expected benefits over the life of a mattress, the expected annual benefits are discounted (using a three percent discount rate), and then summed over the expected life of the mattress. The analysis considers mattress lives of 10 and 14 years.

The potential benefits of the standard consist of the reduction in deaths, injuries, and property damage that would result. Since the prime objective of the standard is to reduce the likelihood of flashover or increase the

time before flashover occurs, and not to reduce fires, changes in property losses associated with the standard are hard to quantify. Property losses are expected to decline but the extent of the decline cannot be quantified. Consequently, for purposes of this analysis, no reduction in property losses is assumed. That is, all expected benefits from the standard are in the form of prevented deaths and injuries. This underestimates net benefits, since there will likely be some benefits from reduced property losses.

The standard is expected to reduce the likelihood of flashover resulting from fires started by smoking materials or other ignition sources, as well as those started by open-flame ignition. Reductions in fires, injuries, and deaths will translate into societal benefits, as will be discussed in the benefit-cost analysis (Section 8 of this analysis).

Estimates of the effectiveness of the standard are based on a CPSC staff evaluation of in-depth investigation reports of fires (including details of the occupants' situations and actions during the fire) occurring in 1999-2004 in which a mattress or bedding was the first item to ignite, the fire was of the type considered addressable by the standard, and a civilian death or injury resulted. Most of the investigations also included documentation from the fire department that attended the fire. Some incident reports were initiated from death certificates with follow-up documentation from the fire department. This resulted in a total of 195 deaths and 205 injuries in the investigations to be evaluated. The distribution of mattress ignition sources was not representative of all fires involving mattresses and thus the data were weighted to match the NFIRS-based national fire data distributions.

Evaluations of the fire incidents by CPSC staff reviewers used the results of NIST testing (Ohlemiller, 2004; Ohlemiller and Gann, 2003; Ohlemiller and Gann, 2002) conducted to assess the hazard produced from burning mattresses and bedclothes. Specifically, the evaluations were based on the expectation that occupants in bed when the fire ignited but able to escape the burning bedclothes in the first three to five minutes faced a minimal hazard. Occupants in direct contact with burning bedclothes for a longer period (5 to 10 minutes) would be subject to potentially hazardous levels of heat release. If the burning bedclothes did not ignite other non-bedding items or produce flashover at this time, heat release would subside temporarily and then begin to increase as the involvement of the mattress increased.

These conditions would allow occupants 10 to 15 minutes to escape the room of origin before the situation in the room would become untenable. Since the standard is expected to slow the rate of fire spread and hence increase escape time, assuming that bedclothes do not contribute enough heat to pose a hazardous condition, it was assumed that people who were outside the room of origin at the time of ignition were unlikely to die in the fire, unless they entered the room later or were incapable of exiting on their own. The analysis focused on reduction of deaths and injuries because the standard is designed to limit fire intensity and spread rather than prevent ignition.

Each investigation was evaluated by CPSC staff reviewers to identify the features related to the occurrence of a death or injury once the fire was ignited. These included casualty age, casualty location when the fire started (at the point of ignition, in the room of origin but not at the point of ignition, or outside the room of origin), whether the casualty was asleep, or suffered from additional conditions likely to increase the time needed to escape, whether the casualty engaged in fighting the fire, and whether a rescuer was present. All of these conditions were used to determine a range for the likelihood that each individual death or injury would have been prevented had the standard been in effect. Percentage reductions of deaths (injuries) within subcategories of heat source and age group were applied to equivalent subcategories of the national estimates based on the NFIRS and NFPA data for 1999-2002. The estimated reductions per category were summed and the overall percentage reductions were calculated as the percent of addressable deaths (or injuries) that would have been prevented if the likelihood of flashover were reduced in the first 30 minutes and victims had 10 to 15 minutes of escape time.

The staff indicates that the standard is expected to reduce all addressable deaths from mattress/bedding fires by 69 to 78 percent and reduce all addressable injuries from mattress/bedding fires by 73 to 84 percent. Assuming that addressable mattress/bedding fire deaths and injuries account for the same percentage of residential casualties in 2003 and 2004 as in 1999 to 2002, the staff estimates that 240 to 270 deaths and 1150 to 1330 injuries in mattress/bedding fires attended by the fire service could have been prevented annually during the period 2000 to 2004.

The staff's analysis presents the estimated benefits of the standard, based on the expected annual deaths and injuries that are expected to be prevented by the standard. The analysis is conducted as if the standard had gone into effect in 2005. All dollar estimates are based on constant 2005 dollars. A discount rate of 3 percent and average expected lives of a mattress of 10 and 14 years are also assumed.

Based on the estimated number of mattresses in use for an average mattress life of 10 years (described in Section 4), the reduction in the risk of death during the first year the standard becomes effective equals 1.01 deaths per million mattresses (240 deaths divided by the estimated 237 million mattresses in use in 2005) to 1.14 per million mattresses (270 deaths/237 million mattresses). The mid-point estimate of the reduction in the risk of death the first year the standard becomes effective is, therefore, 1.08. The mid-point estimate of the reduction in the risk of injury, similarly calculated, equals 5.23, with a range from 4.85 to 5.61, injuries per million mattresses for an estimated 10-year life of a mattress. The mid-point estimates of the risk reductions for an estimated 14-year average life of a mattress are 0.84 deaths, with a range from 0.79 to 0.89, and 4.08 injuries, with a range of 3.78 to 4.38, per million mattresses.

Annual risk reductions resulting from the standard are used to derive the monetary benefits from reduced deaths and injuries. The estimated reduction in the risk of death is multiplied by the value of a statistical life (and divided by a million) to derive a first-year monetary estimate for the range of benefits from lives saved per mattress. Based on the existing literature, a value of a statistical life of five million dollars is assumed (Viscusi, 1993). The estimated reduction in the risk of injury is similarly used to derive the range of first-year monetary benefits from injuries prevented. The benefits from preventing an injury (the cost of an injury) in 2005 are estimated to average about $150,000, based on Zamula (2005) and Miller et al. (1993). The mid-point estimate of the first-year benefits associated with preventing deaths and injuries equals $6.17, with a range from $5.79 to $6.54 for an estimated mattress life of 10 years and $4.81, with a range from $4.52 to $5.10 for an estimated mattress life of 14 years.

Lifetime benefits are derived by projecting annual benefits for the life of the mattress and summing the discounted (at a rate of 3 percent) stream of annual benefits (measured in constant dollars). The number of mattresses in use is projected to grow at a rate of zero to three percent, based on the average growth rate for the 1981-

2004 period. Since the number of deaths and injuries are implicitly assumed to remain constant over time, a positive growth rate of mattresses in use implies a declining risk over time. The lower end of the ranges for estimated (10 and 14 years) lifetime benefits correspond to a 3 percent projected growth rate and the lower end of the effectiveness ranges. The upper end of the ranges for estimated (10 and 14 years) lifetime benefits correspond to a zero percent projected growth rate and the upper end of the effectiveness ranges.

For an expected mattress life of 10 years, the resulting mid-point estimate of expected lifetime benefits of saved lives associated with the standard equals $44.71, with a range of $39.37 to $50.05 per mattress. The corresponding mid-point estimate of benefits of prevented injuries equals $6.54, with a range of $5.67 to $7.41 per mattress. Hence, for an expected mattress life of 10 years, the mid-point estimate of the expected total lifetime benefits of a compliant mattress equals $51.25, with a range of $45.04 to $57.46 per mattress. For an expected mattress life of 14 years, the mid-point estimate of the total benefits equals $51.82, with a range of $44.30 to $59.34 per mattress. The sensitivity analysis section below examines how the results might change when a discount rate of seven percent is used.

7. Expected Costs of the Standard

This section presents the expected resource costs associated with the standard. Resource costs are costs that reflect the use of a resource that would have been available for other uses had it not been used in conjunction with the production of mattresses compliant with the standard. These costs include material and labor costs; testing costs; costs to wholesalers, distributors, and retailers; costs of producers' information collection and record keeping; costs of quality control/quality assurance programs; and compliance and enforcement costs. The effect on retail prices will be discussed in Section 8 of this Regulatory Analysis.

Material and Labor Costs.
To comply with the standard, the construction of most mattress sets will include a barrier technology with improved fire performance. This barrier may be thick (high-loft) or thin (sheet). High-loft barriers are generally used to replace some of the existing non-woven fiber, foam, and/or batting material, leading to a smaller increase in costs than sheet barriers, which constitute an addition to production materials (and costs). Producers, therefore, are generally using the high-loft barrier for the panel (top of the mattress) and mattress and foundation borders. If they are using sheet barriers, they limit their use to the bottom of the mattress, replacing the no-skid non-FR (fire resistant) sheet used previously.

According to several barrier producers and mattress manufacturers, the price of a high-loft barrier that would make a mattress comply with the standard, is around $2.65 per linear yard, defined to have a width of 88 to 92 inches. Barrier costs range from $2.00 to $3.30, per linear yard. The high-loft barrier replaces the currently-used polyester batting, which costs an average of $ 1.15, with a range from $0.55 to $1.75, per linear yard. Hence, the net increase in the average cost attributed to the use of the high-loft barrier, referred to by the industry as the application cost, is $1.50, with a range from $0.25 to $2.75 per linear yard, which translates to a net increase in barrier-related manufacturing costs of $7.95, with a range from $1.33 to $14.58, for a queen-size mattress set.
3

The queen-size is used for all the cost estimates, because it is the mode size, used by 34.9 percent of consumers in 2004.

3
This calculation is based on the assumption that a queen-size mattress set requires 5.3 linear yards of the barrier material to be used in the two (top and bottom) panels of the mattress and the borders of both the mattress and foundation. Some producers are able to use less than 5.3 linear yards, which reduces their cost per queen mattress set.

In addition to the increase in material costs due to the use of a barrier, costs will increase due to the use of fire-resistant (FR) thread for tape stitching. According to several thread producers, the cost of FR thread is $0.51 per queen-size mattress set, with a range from $0.41 to $0.60. Given that the cost of nylon (non-FR) thread is about $0.10 per queen-size mattress set, the average application cost of FR thread (net increase in costs due to the use of FR thread) per queen-size mattress set is $0.41, with a range from $0.31 to $0.50.

Costs may also increase due to slightly reduced labor productivity. Based on industry estimates of an average of two labor hours for the production of a queen-size mattress set, and a 10 percent reduction in labor productivity and an industry average hourly total compensation of $22.00, the cost increase due to reduced labor productivity is about $4.40. The reduced labor productivity results from the inexperience of the workers with the new production methods and should disappear when they become familiar with the products and techniques being used.

The standard requires producers to add a new label to both mattresses and foundations that identifies the prototype and the possible choice of foundations to be used with a specific mattress. This requirement is to ensure that consumers are buying a mattress set that was tested as a set, and would thus meet the requirements of the standard. This label is required to be separate from any other labels already being used and is estimated by industry representatives to result in an additional cost of $0.01 for both the mattress and foundation. This estimate includes both the material and labor needed to add the label.

The increase in the average materials and labor costs of a mattress set is thus equal to the sum of the barrier application cost per mattress set, thread application cost, labeling cost, and costs due to reduced labor productivity. This sum equals $12.77 ($7.95 barrier cost + $0.41 thread cost + $4.40 labor cost + $0.01 label cost). The estimated range for the materials and labor costs is $6.05 to $19.49.

Costs of Prototype and Confirmation Testing.
The standard requires each mattress set qualified prototype to be tested in triplicate for prototype qualification. According to industry representatives, the cost of testing per twin-size mattress set may be about $500: the sum of the average cost of the materials and shipping ($100) and the cost of the use of the lab ($400). Hence, the cost of testing three mattress sets for prototype qualification equals $1500. Additionally, if some mattress set prototypes do not pass the first time, then the cost will be higher, because additional tests will be done after action is taken to improve the resistance of the prototype. If 10 percent of mattresses are retested, then the average cost of testing a prototype would be 10 percent higher, or $1650. This cost is assumed to be incurred no more than once per establishment for each prototype. It is expected that a qualified prototype will be used to represent a mattress construction (e.g., single-sided pillow top) with all subordinate prototypes using the same construction (with different sizes (lengths and widths) and different ticking materials) being based on the qualified prototype.

If companies pool their prototypes across different establishments or different companies, testing costs would be smaller as all but one of the firms/establishments producing to the specification of a pooled prototype may just burn one mattress (for the confirmation test) instead of three (for the qualified prototype test). Therefore, it is expected that the average cost of testing per mattress will be lower for firms and/or establishments that pool their results than for those that do not.

If manufacturers test every mattress construction (e.g., single-sided pillow top, double-sided pillow-top, tight-top, euro-top, * * * etc.), which is estimated, based on conversations with manufacturers, to average about twenty per manufacturer, for every establishment in a given year, then their average testing cost per mattress would approximately equal 82 cents ($1650* 20 styles * 571 establishments/23.0 million conventional mattresses) per mattress set for the first year of production. The standard would allow selling mattress sets whose (subordinate) prototypes differ from a qualified (or confirmed) prototype only with respect to size (length and width), and/or ticking material or other components that do not impact the fire performance of the prototype without testing the prototypes, to minimize testing costs to all manufacturers, especially those whose volume of output is small. Pooling testing results across establishments and/or firms will further reduce the average cost of testing per mattress set. On an annual basis, testing costs will be further reduced because qualified, confirmed, and subordinate prototypes need not be tested every year.

Cost of Information Collection and Record Keeping.
In addition to prototype testing, the standard requires detailed documentation of all tests performed and their results including video or pictures; prototype or production identification number; date and time of test; and name and location of testing facility; test room conditions; and test data for as long as the prototype is in production and for three years after its production ceases. Manufacturers are also required to keep records of a unique identification number for the qualified prototype and a list of the unique identification numbers of each prototype based on the qualified prototype and a description of the materials substituted. Moreover, they are required to document the name and supplier of each material used in construction of a prototype. Additionally, they are required to identify the details of the application of any fire retardant treatments and/or inherently fire resistant fibers employed relative to mattress components.

This documentation is in addition to documentation already conducted by mattress manufacturers in their efforts to meet the cigarette standard. Detailed testing documentation will be done by the test lab and is included in the estimated cost of testing. Based on CPSC Office of Compliance staff estimates, all requirements of the standard are expected to cost an establishment about one hour per qualified prototype. Assuming that every establishment will produce 20 different qualified prototypes, the increase in record keeping costs is about $412.20 (1 hour × 20 qualified prototypes × $20.61 average total compensation per hour for office and administrative support workers) per establishment per year. (Note that pooling among establishments or using a qualified prototype for longer than one year will reduce this estimate.) This translates to an average cost of 1 cent per mattress set for an average establishment, with average output of 40,280 conventional mattresses.

Cost of Quality Control/Quality Assurance Programs.
To ensure that all mattresses are produced to the prototype specification across all factories and over the years for which a production line exists, mattress manufacturers will need a thorough well-documented quality control/assurance program. The top 15 mattress producers (with a market share of 83 percent) have existing quality control programs which could be modified to fit the new standard with minimal additional costs. Smaller producers, whose quality control programs are less detailed or non-existent, will incur some incremental costs as a result of the standard. These incremental costs will be small for each manufacturer and less when measured per mattress set. (See the section on impact of the standard on small businesses for a description of their cost of quality control and quality assurance programs to them.)

Additionally, the standard encourages random production testing to assure manufacturers that their mattresses continue to meet the requirements of the rule, as a possible component of the quality control/quality assurance program. Assuming that an average of 3 mattress set constructions will be tested per establishment per year yields an estimated cost of production testing of about $1500. Based on this assumption, the estimated cost of testing mattress sets for quality assurance purposes, therefore, equals 3.7 cents per mattress ($1500/40,280) for an average establishment.

The labor needed to meet the quality assurance measures required by the standard is estimated by CPSC Office of Compliance staff to be 224 minutes per establishment per prototype per year. Assuming that every establishment will produce 20 qualified prototypes, the increase in labor costs associated with quality assurance requirements of the standard is about $1539 (224 minutes × 20 qualified prototypes × $20.61 average total compensation per hour for office and administrative support workers) per establishment per year. (Note that pooling among establishments or using a qualified, confirmed, or subordinate prototype for longer than one year will reduce this estimate.) This yields an average cost of 3.8 cents per mattress set for an average establishment, with average output of 40,280 mattresses per year. Hence expected total costs of quality assurance/quality control programs may average about 7.5 cents (3.7 + 3.8) per conventional mattress set per year.

Costs to Wholesalers, Distributors, and Retailers.
An added cost of the standard is the increase in costs to wholesalers, distributors, and retailers in the form of additional storage, transportation, and inventory financing costs. Since a mattress complying with the standard will not be bigger than a similar mattress produced before the standard becomes effective, storage and transportation costs are not expected to increase. Inventory financing costs will increase by the average cost of borrowing money, applied to the wholesale price of a mattress over the average inventory holding time period. Since most mattress producers use just-in-time production and have small inventories, this additional cost will probably not exceed ten percent of the increase in production cost (which is the sum of material, labor, testing, record keeping, and quality assurance costs). A ten percent mark-up is, therefore, being used to measure the cost to wholesalers, distributors, and retailers. This yields a resource cost to wholesalers, distributors, and retailers equal to $1.37, with a range from $0.69 to $2.04, per mattress set. Retail prices may increase by more than the 10 percent mark-up. Section 8 discusses the impact of the standard on retail prices of mattress sets.

Costs of Compliance and Enforcement.
Compliance and enforcement costs refer to the costs incurred by CPSC to ensure that manufacturers are complying with the standard. Based on past experience with the existing mattress standard, the estimated CPSC inspection time spent per location (establishment) equals 33 hours for inspection and 6 hours for sample collection. This yields a cost per inspection of about $1,722.63 (39 hours * $44.17, the average wage rate for CPSC inspectors). Additionally, compliance officers spend an average of 20 hours per case, making their cost equal to $1,071.20 (20 hours * $53.56, the average hourly wage rate for compliance officers). This yields an average compliance and enforcement total labor

cost of $2,793.83 per inspected establishment per year.

It should be noted that the expected cost per establishment, if less than one hundred percent of establishments are inspected every year, equals the cost per inspected establishment times the probability that a given establishment will be inspected. Though the probability that a given establishment will be inspected in a given year is not known, assuming that a third of all establishments will be inspected (i.e., about 190 establishments) yields a compliance and enforcement total expected labor cost of $931.28 ($2,793.83 * (
1/3
)) per establishment per year.

In addition to labor costs, CPSC will incur testing costs. It should be noted that the decision to collect samples after an inspection visit is made at the discretion of the investigator and, therefore an accurate assumption about the number of samples collected and sent for a burn test cannot be made. If, based on inspection, samples from 10 percent of all inspected establishments were to be collected and sent to a lab for a burn test, and if samples representing 5 (qualified, confirmed, or subordinate) prototypes are taken from each of these establishments, then the total cost of CPSC testing will be $142,750 (5 prototypes * $1,500 (the cost of testing 3 mattress sets for each qualified prototype) * 19 (10 percent of inspected establishments, equal to a third of 571)). These assumptions about frequency of testing yield an expected cost of testing per establishment of $250 ($142,750/571).

Therefore the expected total CPSC wage and testing costs associated with the standard per establishment per year equal $1,181.28 ($931.28 + $250.00). With an average production of 40,280 mattresses per establishment (23 million mattresses divided by 571 establishments), the average CPSC wage and testing costs equal 2.9 cents per mattress set ($1,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-2206. Public record. Not legal advice.