Safety Standard for Bunk Beds

SUMMARY: The Consumer Product Safety Commission (CPSC or Commission)

has determined that unreasonable risks of injury and death are

associated with bunk beds that are constructed so that children can

become entrapped in the beds' structure or become wedged between the

bed and a wall.

This document issues the final rules mandating bunk bed performance

requirements to reduce this hazard. The rules are issued under both the

Federal Hazardous Substances Act (FHSA), for bunk beds intended for use

by children, and the Consumer Product Safety Act (CPSA), for bunk beds

not ``intended'' for (but often used by) children.

DATES: These rules will become effective June 19, 2000 and will apply

to all bunk beds manufactured in the United States, or imported, on or

after that date.

ADDRESSES: Documents relating to these rules can be obtained from the

Office of the Secretary, Consumer Product Safety Commission,

Washington, D.C. 20207-0001, or inspected at the Office of the

Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West

Highway, Bethesda, Maryland; telephone (301) 504-0800.

FOR FURTHER INFORMATION CONTACT: Pamela Major, Office of Compliance,

Consumer Product Safety Commission, Washington, D.C. 20207; telephone

(301) 504-0608, ext. 1373; email [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

In this document, the Commission issues rules mandating

requirements to protect against the entrapment of children in bunk

beds. 1 Without proper guardrails and safe dimensions for

openings in the bed's structure, a bunk bed may allow a child to be

entrapped, and thus strangle or suffocate. This can occur when the

child becomes wedged between the bed and the wall, when the child slips

his or her torso through an opening in the bed that is too small for

its head to pass through (torso-first entrapment), or when the child

places his or her head in an opening, then moves to a narrower area of

the opening where the head cannot pull out, and then falls or loses

his/her footing (head-first entrapment).

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\1\ The Commission voted 2-1 to issue this rule. Chairman Ann

Brown and Commissioner Thomas H. Moore voted to issue the rule.

Commissioner Mary Sheila Gall voted against. Statements of the

Commissioners concerning this vote are available from the Office of

the Secretary.

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There is a voluntary standard for bunk beds, ASTM F1427-96, that

contains provisions to protect children from entrapment. The ASTM

standard requires:

Guardrails on both sides of the upper bunk, except for up

to 15 inches at each end of the bed. The upper edge of the guardrails

shall be no less than 5 inches above the top surface of the mattress

when a mattress of the maximum thickness specified by the bed

manufacturer's instructions is on the bed. Guardrails shall be attached

so that they cannot be removed without either intentionally releasing a

fastening device or applying forces sequentially in different

directions.

That openings in the structure surrounding the upper bunk

be small enough to prevent passage of a tapered block having a base

measuring 3.5 inches by 6.2 inches.

That openings in the end structures within 9 inches above

the sleeping surface of the lower bunk mattress be either small enough

to prevent passage of the 3.5 by 6.2 inch block or large enough to

permit passage of a 9-inch diameter sphere (the space needed to

withdraw a child's head).

Labels and instructions.

Because of continued reports of deaths and other incidents

associated with entrapment in bunk beds, and because of indications

there might not be adequate compliance with the voluntary ASTM

standard, the CPSC published an advance notice of proposed rulemaking

(ANPR) to begin a rulemaking proceeding that could result in

performance or other standards to address the risk of entrapment

associated with bunk beds. 2 63 FR 3280 (January 22, 1998);

64 FR 3456 (January 22, 1999) (extension of time to issue proposed

rule). After considering the comments received in response to the ANPR,

the Commission voted 2-0-1 3 to publish a notice of proposed

rulemaking (NPR) to propose a new 16 CFR Part 1213 under the Consumer

Product Safety Act (CPSA) and a new 16 CFR Part 1513 under the Federal

Hazardous Substances Act (FHSA). 64 FR 10245 (March 3, 1999); 64 FR

14158 (March 24, 1999) (notice of opportunity for presentation of oral

comments). The entrapment provisions of these two rules are identical.

As discussed below in Section E of this notice, the CPSA rule addresses

hazards associated with adult bunk beds (those not specifically

intended for use by children, although they are often used for that

purpose), and the FHSA rule addresses hazards associated with bunk beds

intended for use by children.

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\2\ The ANPR was approved by a 2-1 vote of the Commission.

Chairman Ann Brown and Commissioner Thomas H. Moore voted to approve

the ANPR; Commissioner Mary Sheila Gall voted not to publish the

ANPR.

\3\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to

publish the NPR; Commissioner Mary Sheila Gall abstained.

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After the original proposal, discussions at ASTM meetings indicated

that requirements in addition to those originally proposed are needed

to adequately address fatalities due to entrapment of children's necks

in the end structures of bunk beds. The Commission voted 2-1 to propose

these additional requirements. 64 FR 37051 (July 9, 1999).

B. Incident Data

Deaths

From January 1990 through August 9, 1999, CPSC received reports of

91 bunk-bed-related deaths of children under age 15 (see Table 1

below).

Table 1.--Fatal Bunk Bed Incidents Reported to CPSC, by Year and Hazard

Pattern

[January 1990 to August 9, 1999]

------------------------------------------------------------------------

Year Total Entrap. Hanging Falls

-------------------------------------------1----------------------------

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

1991.................................. 15 10 2 3

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

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

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

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

1996.................................. 12 11 1 ......

1997 2................................ 8 6 2 ......

1998 2................................ 3 1 1 1

1999 2................................ 1 ....... 1 ......

---------------------------------

Total............................... 91 57 25 9

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Source: CPSC data files, January 1990-August 9, 1999.

1 These deaths are neither a complete count of all that occurred during

this time period nor a sample of known probability of selection.

However, they provide a minimum number of deaths occurring during this

time period and illustrate the circumstances involved in some bunk-bed-

related fatalities.

2 The Death Certificate files for 1997 through August 9, 1999, are not

complete.

Of the 91 fatalities, 57 resulted from entrapment. An additional 25

children died when they inadvertently were hung from the bed by such

items as belts, ropes, clothing, and bedding, and 9 children died in

falls from bunk beds.

As shown in Table 2, over 96% (55 of 57) of those who died in

entrapment incidents were age 3 and younger, and

[[Page 71889]]

all but one were younger than 5. In contrast, about 76% (19 of 24) of

those who died in hanging incidents were age 6 and older. Fall deaths

were split among children 4 years of age and younger and children 9 and

older.

Table 2.--Fatal Bunk Bed Incidents Reported to CPSC, by Victim Age and

Hazard Pattern

[January 1990-August 9, 1999]

------------------------------------------------------------------------

Age (years) Total Entrap. Hanging Falls

------------------------------------------------------------------------

Reports of deaths show there is an unreasonable risk;

A mandatory standard will improve compliance;

The benefits show a reasonable relationship to costs;

[[Page 71894]]

A mandatory rule permits the Commission to seek penalties

from violators;

There is increased awareness of mandatory standards; and

A mandatory standard removes the cost advantage of

producing nonconforming beds.

b. Reference the ASTM standard: Two comments on the NPR neither

opposed nor favored a mandatory rule. The President of ASTM and the

chairman of the ASTM F15.30 subcommittee for bunk beds requested that,

if the Commission elects to proceed with a mandatory standard, it

should reference the ASTM F1427 voluntary standard. At the present

time, there are some significant differences in the entrapment

requirements in the ASTM standard and those in the mandatory rule.

Although the ASTM subcommittee for bunk beds has agreed to make certain

revisions to the voluntary standard, these revisions would not make the

entrapment requirements in the ASTM standard identical to those in the

rule (see additional discussion below in the response to comments on

the July 9, 1999 NPR). Further, the Commission does not know that these

revisions will be approved by the formal ASTM ballot process.

Therefore, the mandatory rule does not reference the ASTM standard, but

instead contains specific requirements addressing entrapment.

c. Substantial compliance: As noted, where there is a voluntary

standard in place, both the CPSA and the FHSA prohibit the Commission

from issuing a mandatory standard unless the Commission finds either

that the voluntary standard is not likely to eliminate or adequately

reduce the risk or that it is unlikely that there will be ``substantial

compliance'' with the voluntary standard.

For the reasons stated in Section F of this notice, the Commission

has found both that the voluntary standard will not adequately reduce

the risk of injury from bunk beds and that it is unlikely that there

will be substantial compliance with the voluntary standard. Therefore,

the voluntary standard is not a bar to issuance of a rule.

d. OMB Circular No. A-119: One commenter noted that OMB Circular

No. A-119 directs agencies to use voluntary standards in lieu of

government-unique standards except where they are inconsistent with law

or otherwise impractical. However, Circular No. A-119 states that it

should not ``be construed to commit any agency to the use of a

voluntary standard which * * * is, in its opinion, inadequate * * * or

is otherwise inappropriate.'' The Commission determines that, in this

case, reliance on the voluntary standard is ``inappropriate'' for the

reasons stated in Section H of this notice. Thus, Circular No. A-119

does not prevent issuance of a final rule.

e. Entrapment incidents: A bunk bed manufacturer claimed that the

extra cost and major design changes required to comply with the

proposed rule's provisions for a continuous guardrail do not reduce or

eliminate the potential hazards. The manufacturer also claimed that

there were no incidents of entrapment between a bunk bed and a wall

prior to the inception of the 1996 ASTM standard.

However, CPSC is aware of 9 fatalities resulting from entrapment

between a top bunk and a wall from 1990 through August 9, 1999. Two of

these fatalities occurred in beds conforming to the ASTM standard's

requirement for a wall-side guardrail that permits gaps up to 15 inches

in width between each end of the guardrail and the bed's end

structures. One of these deaths occurred in 1994 and the other in 1996.

In both, the victims slipped through the unprotected area between the

end of the guardrail and bed end structure. The requirement in the rule

for a continuous wall-side guardrail will prevent future incidents of

this type.

f. Hazards in other types of beds: It was noted by one commenter

that other types of beds, such as small single beds and trundle beds,

could have the same entrapment hazards as bunk beds if they are used by

preschool age children. The commenter, therefore, suggested that any

bed intended for preschool age children, and adult beds (since it is

predictable that young children will be placed in these beds), should

be subject to a mandatory standard.

The Commission did not extend the scope of the standard to cover

beds other than bunk beds, because this would involve different

considerations of risk, cost, and benefits, and is outside the scope of

the present proceeding.

This commenter also recommended that both adult and children's bunk

beds should be covered by a single standard, and that the standard

should be issued under the CPSA.

As explained in the proposal and in Section E of this notice, the

CPSA provides that a risk that can be adequately regulated under the

FHSA can be regulated under the CPSA only if the Commission determines,

by rule, that regulating the risk under the CPSA is in the public

interest. Bunk beds intended for use by children, but not other bunk

beds, could adequately be regulated under the FHSA, and the Commission

did not find reasons why it would be in the public interest to regulate

the risk from children's bunk beds under the CPSA. Accordingly, the

Commission proposed to regulate bunk beds intended for use by children

under the FHSA and to regulate other (adult) bunk beds under the CPSA.

Although this does not comply with the commenter's recommendation that

both categories of bunk beds be regulated under the CPSA, it does

comply with the recommendation that the standard's requirements apply

to both adults' and children's beds.

g. Bunk beds for institutional use: Two comments addressed the

issue of whether the rule should apply to bunk beds sold for

institutional use, such as school or college dormitories, prisons, and

military facilities. One comment, from a trade association representing

a number of major producers of bunk beds, states that to include

institutional beds in the scope of the rule would be a departure from

past CPSC practice. The association asserts that the regulation of

public accommodations has traditionally been accomplished through state

and municipal building codes. The other comment, from a manufacturer of

college dormitory furniture, strongly objects to a regulation that is

unsupported by any data to show that there is a high risk for adults or

college students. Institutional bunk beds are generally not provided

with guardrails, and the manufacturer claims that to add such rails,

and comply with other provisions in the proposed rule, would add $225

to the cost of each of his beds and be of no benefit to an adult user.

Although the Commission cannot confirm the commenter's cost

estimate, it agrees that the cost of compliance with the rule would be

substantially higher for institutional bunk beds than for residential

beds, in part because institutional beds typically do not have any

guardrails (since they are intended for teenagers or adults).

Furthermore, of the two known fatalities of children that occurred in

beds that were originally sold for institutional use, one was an

entrapment between the lower bunk mattress and a wall, a scenario not

addressed by the rule. The other incident was an entrapment in a gap

between the end structure and a mattress that was too short to fit

properly on the lower bunk. This incident would be addressed by a label

and the instructions for proper mattress size if institutional beds

were included in the scope of the rule.

According to information supplied by industry, there are about

200,000 bunk beds sold for the institutional market each year for use

by colleges and

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boarding schools, the military, mental health facilities, and

correctional facilities. The expected useful life of these

institutional products is estimated by industry at 7 to 10 years.

Therefore, there may be about 1.7 million institutional beds in use.

Manufacturers projected that the cost of compliance for institutional

bunk beds would be considerably higher than that of residential bunk

beds, due to the addition of two guard rails (rather than one for

residential) and the heavier-duty materials used in institutional bunk

beds. For comparison purposes, if the only significant cost was the

addition of two guardrails (equivalent to rails used in residential

beds), the cost of compliance for institutional bunk beds would be

twice that of residential units, or $30 to $80 per bed.

Given that one death would have been addressed during the last 9.5

years, and that an average of about 1.7 million institutional bunk beds

may have been in use during those years, the risk addressed by

inclusion of institutional beds in the mandatory standard would be

about 0.06 deaths per million beds in use per year ((1 death/9.5

years)/1.7 million beds). Assuming a societal cost of $5 million per

death, the annual societal value of averting this risk is about $0.30

per bed per year. If we assume a useful life of 10 years, and a

discount rate of 3%, the estimated present value of averting this risk

would be about $2.55 per bed over its entire useful life. Thus, based

on available information, the benefits of the rule, if applied to

institutional bunk beds, would likely be substantially less than the

costs. Because of this, and because the likelihood that consumers will

purchase institutional beds in the future is not known, the Commission

decided not to include institutional bunk beds within the scope of the

rule. For the purposes of this rule, facilities intended for use by

children under age 6 are not considered to be institutions.

h. Effective date: The Commission proposed an effective date of 180

days (6 months) after the final rule is published. A trade association

representing a number of major bunk bed producers commented that there

should be an 18-month lead time before the rule becomes effective; the

association reiterated this in its comments on the July 9, 1999, NPR. A

time line showing the tasks needed to comply with the proposed rule was

included in the association's comments. The trade association stated

that between 5 and 10 months of time were needed to allow

manufacturers, distributors, and retailers to sell their inventories.

An allowance of lead time to deplete inventory is not necessary,

because the rule will apply only to bunk beds manufactured or imported

after the rule's effective date. Deletion of the time allotted for

inventory depletion from the trade association's time line would result

in an effective date of 8 to 13 months after publication.

The CPSA provides that an effective date shall not exceed 180 days

unless the Commission finds that a longer period is in the public

interest. Although the schedule provided by the association might be

reasonable for a high-volume manufacturer with numerous models affected

by the rule, the Commission considers the schedule to be unnecessarily

long for the minor changes imposed by the rule on the small

manufacturers likely to be affected. Thus, the Commission cannot

conclude it is in the public interest to extend the effective date past

the proposed 180-day period. The Commission concludes that the 180-day

period between publication of the final rule and its effective date is

reasonable and adequate to allow manufacturers time to make any

necessary product changes.

2. Comments on the July 9, 1999, NPR

a. Support for the rule: One commenter, who had previously

submitted a comment supporting the rule in the March 3, 1999, NPR, also

supports the revised rule on the grounds that ``these requirements are

necessary to address fatalities due to entrapment of children's necks

in end structures of bunk beds.'' The commenter also believes ``that

the Commission should not defer to the ASTM voluntary standard because

of widespread lack of compliance and because the current voluntary

standard is inadequate.'' As previously stated, the Commission is not

relying on the voluntary standard.

b. Neck entrapment probe: Two comments from bunk bed manufacturers

that are members of the ASTM F15.30 subcommittee addressed the angle

incorporated into the probe in the revised proposed rule. One of the

comments, submitted on behalf of the entire subcommittee, stated that

the lower bunk end-structure requirements in the ASTM standard would be

revised in accordance with the requirements in the proposed rule

(Secs. 1213.3(b)(3) & (4), 1213.4, 1513.3(b)(3) & (4), and 1513.4)),

except that the sides of the probe (see Figure 2) would have a 55 deg.

angle relative to the centerline of the probe instead of the 75 deg.

angle of the probe in the revised proposed rule. The comment from the

other manufacturer, a member of the ASTM bunk bed subcommittee, also

addressed the angle on the end-structure probe and stated that, while

he could accept a probe with either angle, it was his opinion that the

55 deg. angle should be adopted. Both of these comments supported a

55 deg. angle based on its apparent success in preventing neck

entrapment incidents in playground equipment.

Another comment, from a trade association representing major

manufacturers of bunk beds, reiterated the association's comment on the

March 3, 1999 NPR that it was not opposed to a mandatory rule for bunk

beds, and supported a provision to address neck entrapment in lower

bunk end structures. It also takes no position on the appropriate probe

for this purpose, but recommends ``a probe which eliminates or

adequately reduces the risk of neck entrapment.''

In drafting the neck entrapment requirements, the CPSC staff

initially considered using a probe identical to that in the ASTM F1487

standard for public playground equipment (with a 55 deg. angle). The

rationale for the 55 deg. angle stems from a recommendation by a

committee, convened in 1976 by the National Recreation and Park

Association (NRPA), that developed requirements for a possible CPSC

mandatory standard for playground equipment. The angle requirement was

``intended to eliminate dangerous angles that could form openings

tending to entrap or strangle the user.'' The rationale for the

committee's recommendation stated: ``[I]t is best engineering judgement

at this point, and takes into consideration the fact that most angles

present in current equipment are 60 deg. or greater.'' Based on this

NRPA committee recommendation, the CPSC Handbook for Public Playground

Safety, first published in 1981, also addresses neck entrapment in

angles on public playground equipment by recommending that angles be

greater than 55 deg..

The Commission decided that the angle on the neck entrapment probe

in the bunk bed standard should be 75 deg., instead of 55 deg., for a

number of reasons. First, in 1985, following a number of deaths

resulting from neck entrapment in accordion-style baby gates and

enclosures, the staff worked with industry to draft requirements for a

voluntary standard for these products. The staff developed a probe that

had an angle of 75 deg. at its base, because an 11-month-old child had

become fatally entrapped in a diamond-shaped opening in a baby gate

having a 71 deg. angle at its base. The probe was designed to protect

children two years of age and younger. It was accepted by the ASTM gate

and

[[Page 71896]]

enclosure subcommittee and eliminated V-shaped openings with angles

less than 75 deg..

Second, the lack of injury data involving public playground

equipment having angles greater than 55 deg. does not convince the

Commission that a 55 deg. probe would adequately protect children. The

potential for children to become entrapped in an angle between 55 deg.

and 75 deg. depends on the type of equipment. The pieces of public

playground equipment most likely to have angles between 55 and 75 deg.

that could cause neck entrapment are dome climbers and handrails on

ladders. Public playground equipment is generally intended for children

from 2 through 12 years of age. Dome climbers are not appropriate for

children under 5 years of age. Children 5 years of age and older who

use dome climbers are more likely to be able to call out for assistance

or pull themselves up and out if they become entrapped. As for ladder

handrails, the angles that potentially could be an entrapment hazard

are generally located at the bottom of the ladder below the neck level

of even small children.

Finally, children under 2 years of age are almost always supervised

when playing in public playgrounds, and adult assistance would be

readily available if needed. This is not the case with bunk beds, where

children are left to sleep unattended.

For the above reasons, the Commission concludes that a 75 deg.

angle on the neck entrapment probe is necessary to adequately address

the risk of entrapment in bunk bed end structures to protect children

under 2 years of age.

H. The Need for a Mandatory Standard

As noted in Section F of this notice, a mandatory standard is

needed to provide requirements that are not now in the voluntary

standard. In deciding to issue this rule, the Commission also

considered carefully the particular characteristics of the bunk bed

industry. This industry is highly diverse and fragmented, with

differing levels of sophistication relating to product safety. Firms

can easily enter and leave the bunk bed manufacturing business. This

fragmentation and diversity contributes to difficulties in achieving

more complete compliance with the voluntary standard.

Because it is difficult to identify all firms in the industry, it

is difficult for voluntary standards organizations and trade

associations to conduct outreach and education efforts regarding the

voluntary standard. By contrast, in industries with a smaller number of

firms (and particularly large firms), it is easier to find the firms

and educate them about the existence and importance of voluntary

standards. Mandatory standards--codified in the accessible Code of

Federal Regulations--are easier to locate, and their significance is

more obvious.

These generalizations about the industry are supported by the

staff's enforcement experience. The CPSC's Office of Compliance (EXC)

is aware of 167 firms who currently either manufacture or import bunk

beds. Between November 1994 and October 1997, CPSC staff participated

in eight recalls of bunk beds that did not comply with the voluntary

standard. The recalls involved 41 manufacturers and importers, and

affected approximately 531,000 bunk beds. In early 1998, CPSC

Compliance staff conducted limited retail surveillance of bunk beds for

compliance with the voluntary standard. Twenty-three firms had at least

one model of bunk bed that did not conform, and six of these firms were

repeat violators. This surveillance resulted in five recalls, involving

approximately 37,000 beds.

Later in 1998, a consumer complaint and a report under Section 15

of the CPSA sparked investigations that resulted in recalls of 58,000

bunk beds and 5,400 bunk bed kits. To date, the total number of bunk

beds and kits recalled since 1994 has risen to more than 630,000,

involving 48 firms.

Since 1994, at the completion of each round of surveillance and

follow-up action, CPSC staff believed that the known bunk bed

manufacturers complied with the voluntary standard. This is the case

today. Yet, each time, the staff later discovered more manufacturers,

and some of their beds had to be recalled because they presented a risk

of entrapment. The Commission believes that, in the absence of a

mandatory rule, this pattern would continue.

Some manufacturers contacted by Compliance did not see an urgency

to comply with a ``voluntary'' standard, and they did not recognize the

hazards associated with noncompliance. Other manufacturers were not

even aware of the standard. As a result, in the absence of a mandatory

standard, entrapment hazards would continue to exist on beds in use and

for sale.

For the foregoing reasons, the Commission believes that a mandatory

bunk bed entrapment standard is needed and has, therefore, decided to

issue the mandatory rule.

A mandatory bunk bed entrapment standard will bring the following

benefits:

1. A mandatory standard will increase the awareness and sense of

urgency of manufacturers in this industry regarding compliance with the

entrapment provisions, thereby increasing the degree of conformance to

those provisions.

2. A mandatory standard will allow the Commission to seek penalties

for violations. Publicizing fines for noncompliance with a mandatory

standard will deter other manufacturers from making noncomplying beds.

3. A mandatory standard will allow state and local officials to

assist CPSC staff in identifying noncomplying bunk beds and taking

action to prevent the sale of these beds.

4. Under a mandatory standard, retailers and distributors will

violate the law if they sell noncomplying bunk beds. Retailers and

retail associations will then insist that manufacturers and importers

provide complying bunk beds.

5. The bunk bed industry is extremely competitive. Manufacturers

who now conform to the ASTM standard have expressed concern about those

firms that do not. Nonconforming beds can undercut the cost of

conforming beds. A mandatory standard will take away any competitive

cost advantage for unsafe beds.

6. A mandatory standard will help prevent noncomplying beds made by

foreign manufacturers from entering the United States. CPSC could use

the resources of the U.S. Customs Service to assist in stopping

hazardous beds at the docks.

I. Other Statutory Requirements and Findings

The Commission is issuing the requirements for bunk beds not

intended for use by children as a consumer product safety standard

under the CPSA. This requires a finding that the requirements are

reasonably necessary to eliminate or adequately reduce an unreasonable

risk of injury presented by bunk beds. This finding is made in the

appendix to Part 1213.

Section 9(e) of the CPSA requires that, in promulgating a consumer

product safety rule, ``the Commission shall also consider and take into

account the special needs of elderly and handicapped persons to

determine the extent to which such persons may be adversely affected by

such rule.'' 15 U.S.C. 2058(e).

The requirements for end-structure openings and, except as noted

below, for a continuous guardrail on the wall side of bunk beds do not

entail any inconvenience for the user. The requirement that guardrails

cannot be

[[Page 71897]]

removed without either intentionally releasing a fastening device or

applying forces sequentially in different directions also is expected

to not have a significant adverse effect on the elderly or handicapped.

First, the voluntary standard has required this safety feature for many

years, and many currently manufactured bunk beds already have this

feature. Second, handicapped or elderly persons rarely use the top

bunk. Third, once installed, guardrails are likely to be left in place.

Finally, the actions needed to use guardrails with these features would

present little or no additional difficulty for elderly or handicapped

persons who can remove guardrails without these features. Therefore,

after considering the effects of the rule on elderly and handicapped

persons, the Commission concludes that the life saving benefits of the

rule clearly warrant whatever small adverse effect it may cause on the

use of bunk beds by the elderly or handicapped, if any.

The regulation for bunk beds intended for the use of children

requires a determination under FHSA Section 3(a)(1) that bunk beds that

do not comply with the rule present mechanical hazards, as provided in

FHSA Section 3(a)(1), and are thus hazardous substances. See FHSA

Sections 2(f)(1)(D) and 2(s). Under the FHSA, a product that is a

hazardous substance and intended for use by children is banned. FHSA

Section 2(q)(1). This finding is made in the appendix to Part 1513.

To issue a final rule under either the CPSA or the FHSA, the

Commission must publish the text of the final rule and a final

regulatory analysis that includes the elements stated in 3(i)(1) of the

FHSA or section 9(f)(2) of the CPSA. 15 U.S.C. 1262(i)(1), 2058(f)(2).

The required final regulatory analysis is in Section J of this notice.

Before issuing a final regulation under either the CPSA or the

FHSA, the Commission must make other statutory findings. These concern

voluntary standards, the relationship of the costs and benefits of the

rule, and the burden imposed by the regulation. CPSA Sec. 9(f)(3), 15

U.S.C. 2058(f)(3); FHSA Sec. 3(i)(2), 15 U.S.C. 1262(i)(2). These

findings are made in the appendices to Parts 1213 and 1513,

respectively.

J. Final Regulatory Analysis

Introduction: The rules issued in this notice are under the

authority of both the CPSA and the FHSA. Both statutes require that the

Commission publish a final regulatory analysis of the rule. The

Commission's final regulatory analysis is published below. (Since the

technical requirements of the rule under the CPSA and the rule under

the FHSA are identical, this analysis will refer to ``the rule.'')

Product and market information: The retail prices of bunk beds

range from about $100 to over $700; manufacturers estimate the average

retail price to be about $300. Some models now have a lower double bed

with a twin upper bunk.

The American Furniture Manufacturers Association (AFMA) represents

manufacturers of bunk beds. According to AFMA, 40 firms, either AFMA

members or members of the existing ASTM bunk bed subcommittee, account

for 75-80% of total known annual sales of bunk beds. Through Compliance

staff activities, the Commission is now aware of 167 manufacturers of

bunk beds. The share of the market accounted for by the 127

manufacturers or distributors who are not AFMA members or members of

the ASTM subcommittee is not known, but is believed to account for a

majority of the remaining 20-25% of annual sales.

Bunk beds are a category of bedroom furniture, and every

manufacturer of bedroom furniture is a potential producer of bunk beds.

Further, because of their straightforward design, other types of

businesses (and individuals) can also produce these products. Thus, it

is likely that there are other unidentified manufacturers, each

producing small numbers of bunk beds.

Industry sources estimate that about 500,000 bunk beds are sold

annually for household use, and that the expected useful life of these

products is 13-17 years. Based on this information, the CPSC's Product

Population Model (a computer-generated statistical program) estimates

that there may be about 8 million bunk beds in household use.

AFMA sources indicate that imports of bunk beds by its members

appear to be increasing. Industry sources indicate that most, if not

all, metal bunk beds sold are imported. Metal bunk beds are estimated

to account for about 20% of the sales of bunk beds.

Conformance with the existing voluntary standard: There is an

existing voluntary standard for bunk beds, ASTM F1427. There are no

known government or industry data describing the extent of conformance

to this standard. However, based on its knowledge of industry

practices, the Commission's Engineering Sciences staff (ES) estimated

that roughly 50% of production from 1979 to 1986 conformed to the

standard's upper bunk entrapment requirements. Staff estimates that, as

the industry publicized the guidelines and CPSC staff became involved

in the standards process, conformance increased to roughly 75% of

production during the period 1986 to 1992. The conformance was

estimated to have increased further after 1992, when ASTM published its

bunk bed standard and the staff (EXC) became active in monitoring for

conformance to the standard. Staff estimates that up to 90% or more of

production since 1992 conforms to the ASTM standard.

EXC reported that the bunk beds produced by the 40 firms that are

either members of AFMA or the ASTM subcommittee all conform to the

existing voluntary standard. EXC staff also examined the product lines

of the remaining 127 identified firms, and believes that, after a

number of recall activities, all of the beds produced by these firms

were in conformance with the standard.

Costs and Benefits

Potential Costs. The costs associated with the mandatory rule

include the cost of adapting to the provisions of the rule for any

firms not now meeting those requirements. The cost factors affected by

these requirements are any increases in the cost of materials, and any

redesign costs necessary to comply with the mandatory rule.

Four manufacturers that previously had modified their production

stated that the additional materials needed to address entrapment were

nominal compared to overall materials costs in bunk bed production.

They also stated that any redesign costs would not be significant on a

per-unit basis. The most significant cost was the addition of a

continuous guardrail to the top bunk, which might add $15 to $40 to the

average retail price of bunk beds (or 5% to 13% of the average retail

price). This cost will apply only to bunk beds in current production

that do not now meet the voluntary standard.

There are also costs to some of the firms that now conform to the

voluntary standard requirement for a wall-side guardrail, because the

current voluntary standard allows for a 15-inch gap at either or both

ends of this guardrail. A spokesman for a major independent bunk bed

testing lab estimated that bunk bed models conforming to the voluntary

standard are split about equally between those having a continuous

wall-side rail (about 72 inches in length) and those having a 15-inch

gap on one or both ends of the wall-side rail.

Thus, about 50% of all models that meet the current voluntary

standard may require some change in design, as well as additional

materials, to meet the requirements in the mandatory

[[Page 71898]]

standard. The incremental cost of closing the gap (or gaps) in the

wall-side top rail is unknown. However, because a continuous rail is

merely an extension of the existing rail already in place, the increase

in the retail price is probably less than proportional to the increase

in length. Thus, if a continuous rail adds $15 to $40 to the price of a

bunk bed, closing the gap on the wall-side rail may cost consumers no

more than about $5 to $10.

For a small number of firms, the rule may also result in costs

associated with modifications of some bottom bunk end structures. Such

modifications to openings may be required to prevent the free passage

of a wedge block (simulating a child's torso) if they do not allow the

free passage of a sphere (simulating a child's head). The requirement

also addresses the shape of openings that could admit a child's neck,

and entrap the head in the end structure. The Commission is aware of

few current designs that will be affected by this latter requirement.

However, if these one-time redesign costs are amortized over the entire

production runs for these firms, the per-unit costs are expected to be

small.

Potential benefits. The expected societal costs of bunk bed

entrapment deaths represent the potential benefits of preventing these

deaths. Epidemiology staff reported that there were 57 entrapment

deaths associated with bunk beds from 1990 through August 9, 1999.

Based on a review of the circumstances of the reports, staff concluded

that the voluntary standard would have addressed 37 of the 39 top bunk

entrapment deaths and 2 of the 3 bottom bunk end structure entrapment

deaths. Altogether, the Commission concludes that the voluntary

standard would have addressed 68% (39/57) of the reported fatalities

due to entrapment in both the top and bottom bunk locations.

Additionally, conformance to the final rule (as opposed to the

voluntary standard) will address another 3 of the 57 (about 5%)

entrapment deaths, including the 2 top-bunk deaths that would not have

been addressed by the voluntary standard, and 1 bottom bunk end-

structure death.

The Commission projects that about 10 bunk bed entrapment

fatalities have occurred annually since 1990. Thus, for the segment of

bunk beds that do not conform to the voluntary standard, the rule will

address about 7 deaths per year. For the segment of bunk beds that

conform to the requirements of the voluntary standard but not the rule,

the rule will address an additional death every other year, or about

0.5 deaths per year.

To determine the expected benefits of the rule, it is necessary to

estimate the risk of entrapment death associated with bunk beds not

conforming to the requirements of the mandatory rule. In this case, the

risk computation requires information on the number of bunk beds that

did not conform to the voluntary standard and on the number of bunk

beds that conformed to the voluntary standard but not the mandatory

rule.

Since an estimated 1.2 to 2.4 million bunk beds in use since 1990

did not conform to the voluntary standard, the risk of entrapment

addressed by the rule for this group of beds ranges from about 2.9 to

5.8 deaths per million nonconforming beds (7 deaths per 2.4 million

beds to 7 deaths per 1.2 million beds). At an assumed societal cost of

$5 million per death, a useful life of about 15 years for a bunk bed,

and a discount rate of 3%, the estimated present value of averting

entrapment fatalities on beds that did not conform to the voluntary

standard ranges from about $175 to $350 per noncomplying bed.

The rule will also address another 0.5 entrapment deaths annually

that would not have been addressed by the voluntary standard. Assuming

that about one-half of the 5.6 to 6.8 million bunk beds would have

conformed to the voluntary standard but not the mandatory rule, the

risk of entrapment for these beds would have ranged from about 0.15 to

0.18 deaths per million beds (0.5 deaths per 3.4 million beds to 0.5

deaths per 2.8 million beds). Using the assumptions stated above, the

estimated present value of averting entrapment fatalities not addressed

by the voluntary standard ranges from $9 to $11 per noncomplying bed.

Comparison of costs and benefits. The above analysis evaluated the

costs and benefits of the rule for two market segments: bunk beds that

do not conform to the voluntary standard, and bunk beds that conform to

the requirements of the voluntary standard but not to the requirements

of the mandatory rule. For the segment of bunk beds that does not

conform to the voluntary standard, the expected benefits of the rule

(about $175 to $350 per bed) are substantially greater than the

expected costs of the rule (about $15 to $40 per bed). Thus, if the

standard prevents all of the deaths addressed on bunk beds not

conforming to the voluntary standard, the expected net benefits per bed

sold will range from a low of about $135 ($175-$40) to about $335

($350-$40), and will average about $235 per bed. The effectiveness of

the standard is preventing the injuries and deaths it addresses is

expected to be very high.

For the second segment, those beds that meet the requirements of

the voluntary standard but not those of the rule, the expected benefits

range from about $9 to $11 per bed and the costs range from about $5 to

$10.

Institutional bunk beds. The Commission also considered applying

the rule to bunk beds produced for the institutional market (such as

for colleges, the military, etc.). As described in Section G of this

notice, the Commission excluded institutional bunk beds from the rule.

K. Final Regulatory Flexibility Act Certification

The Commission is required by the Regulatory Flexibility Act of

1980 (RFA) to address and give particular consideration to the economic

effects of the rule on small entities.

The precise number of firms manufacturing bunk beds is not known.

Commission staff has identified 167 firms that have produced bunk beds:

these were identified through the trade association, national and

regional trade shows, industry contacts, the Internet, and retail

inspections. Small Business Administration guidelines classify firms in

the furniture industry as small if they have less than 500 employees,

are independently owned, and are not dominant in the field; thus, most

of the identified firms would be classified as small businesses. It is

likely that there are additional unidentified firms that produce

relatively small numbers of bunk beds. These remaining producers are

also likely to be small businesses.

Even though there is a substantial number of small firms, the

Commission does not expect that there will be a significant effect on

these firms. As noted earlier, after the extensive recall activities

conducted by the Commission's staff, the 167 firms identified by the

staff apparently conform to the existing voluntary standard, and will

require only slight modifications to comply with the mandatory rule.

For firms not conforming to the voluntary standard, the requirements

are expected to result in cost increases that are small and likely to

be passed on to consumers.

The mandatory rule will not require third-party testing, and it is

anticipated that firms themselves will do the testing required to

certify that their products comply with the mandatory standard.

There are no reporting or recordkeeping requirements under the

rule. There are no Federal rules that the rule will duplicate, or with

which it will overlap or conflict.

Accordingly, the Commission certifies that the rule will not have a

significant

[[Page 71899]]

economic impact on a substantial number of small entities.

L. Environmental Assessment

The rule will not cause manufacturers to dispose of existing

construction materials or packaging. Sale of inventories of finished

noncomplying products (including those at retail) will not be

prohibited, since the rule will apply only to units produced or

imported after the effective date.

The rule is not expected to have a significant effect on the

materials used in the production and packaging of subject bunk beds, or

in the number of units discarded after the rule.

Therefore, no significant environmental effects are expected to be

caused by the rule for bunk beds.

M. Executive Orders

Executive Order No. 12,988 requires agencies to state the

preemptive effect, if any, to be given the regulation. The preemptive

effects of these rules are established by Section 26 of the CPSA, 15

U.S.C. 2075, and Section 18 of the FHSA. Section 26(a) of the CPSA

states:

(a) Whenever a consumer product safety standard under [the CPSA]

applies to a risk of injury associated with a consumer product, no

State or political subdivision of a State shall have any authority

either to establish or continue in effect any provision of a safety

standard or regulation which prescribed any requirements as to the

performance, composition, contents, design, finish, construction,

packaging, or labeling of such products which are designed to deal

with the same risk of injury associated with such consumer product,

unless such requirements are identical to the requirements of the

Federal standard.

Subsection (b) of 15 U.S.C. 2075 provides a circumstance under

which subsection (a) does not prevent the Federal Government or the

government of any State or political subdivision of a State from

establishing or continuing in effect a safety standard applicable to a

consumer product for its own [governmental] use, and which is not

identical to the consumer product safety standard applicable to the

product under the CPSA. This occurs if the Federal, State, or political

subdivision requirement provides a higher degree of protection from

such risk of injury than the consumer product safety standard.

Subsection (c) of 15 U.S.C. 2075 authorizes a State or a political

subdivision of a State to request an exemption from the preemptive

effect of a consumer product safety standard. The Commission may grant

such a request, by rule, where the State or political subdivision

standard or regulation (1) provides a significantly higher degree of

protection from such risk of injury than does the consumer product

safety standard and (2) does not unduly burden interstate commerce.

Similar preemption provisions are in the FHSA. See FHSA Section

18(b), 15 U.S.C. 1261 note.

This rule has been evaluated in light of the principles stated in

Executive Order No. 13,132 concerning federalism, even though that

Order does not apply to independent regulatory agencies, such as CPSC.

The only substantial federalism concern associated with this rule is

preemption of non-identical state standards. The Commission is aware of

standards in California and Oklahoma that differ from the final rule in

minor ways. In fact, the Commission understands that the intent of the

California standard was to duplicate the anticipated Federal rule.

By establishing findings the Commission must make to issue these

types of rules and expressly providing for preemption of non-identical

state standards, Congress clearly intended preemption of state law in

these circumstances. Further, the preemption is the minimum required to

carry out the purposes of the CPSA and the FHSA. In view of the minor

differences between these two state rules and the Federal rule, the

Commission concludes that the Federal rule will have no adverse effect

on the safety of the citizens of these two states.

Further, to the extent that these state rules differ from each

other and from the voluntary standard, manufacturers who would like to

provide bunk beds to either of these states and to another state may

have to sell different versions of their beds to satisfy the

conflicting standards. Thus, these state rules, if not preempted, could

have an adverse economic effect on manufacturers and distributors.

List of Subjects in 16 CFR Parts 1213, 1500, and 1513

Bunk beds, Consumer protection, Infants and children, Reporting and

recordkeeping requirements.

Effective date. These rules will become effective June 19, 2000.

For the reasons set out in the preamble, the Commission amends

Title 16, Chapter II, Subchapters B and C, of the Code of Federal

Regulations as set forth below.

1. A new Part 1213 is added to Subchapter B, to read as follows:

PART 1213--SAFETY STANDARD FOR ENTRAPMENT HAZARDS IN BUNK BEDS

Sec.

1213.1 Scope, application, and effective date.

1213.2 Definitions.

1213.3 Requirements.

1213.4 Test methods.

1213.5 Marking and labeling.

1213.6 Instructions.

1213.7 Findings.

Figures 1-4

Appendix to Part 1213--Findings Under the Consumer Product Safety Act

Authority: 15 U.S.C. 2056, 2058.

Sec. 1213.1 Scope, application, and effective date.

(a) Scope, basis, and purpose. This part 1213, a consumer product

safety standard, prescribes requirements for bunk beds to reduce or

eliminate the risk that children will die or be injured from being

trapped between the upper bunk and the wall, in openings below

guardrails, or in other structures in the bed.

(b) Application and effective date. The standard in this part

applies to all bunk beds, except those manufactured only for

institutional use, that are manufactured in the United States, or

imported, on or after June 19, 2000. (Facilities intended for use by

children under age 6 are not considered to be institutions.) Bunk beds

intended for use by children are subject to the requirements in 16 CFR

1500.18(a)(18) and 16 CFR part 1513, and not to this part 1213.

However, those regulations are substantively identical to the

requirements in this part 1213.

Sec. 1213.2 Definitions.

As used in this part 1213:

Bed. See Bunk bed.

Bed end structure means an upright unit at the head and foot of the

bed to which the side rails attach.

Bunk bed means a bed in which the underside of any foundation is

over 30 inches (760 mm) from the floor.

Foundation means the base or support on which a mattress rests.

Guardrail means a rail or guard on a side of the upper bunk to

prevent a sleeping occupant from falling or rolling out.

Sec. 1213.3 Requirements.

(a) Guardrails. (1) Any bunk bed shall provide at least two

guardrails, at least one on each side of the bed, for each bed having

the underside of its foundation more than 30 inches (760 mm) from the

floor.

(2) One guardrail shall be continuous between each of the bed's end

[[Page 71900]]

structures. ``Continuous'' means that any gap between the guardrail and

end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause

a finger entrapment hazard for a child).

(3) The other guardrail may terminate before reaching the bed's end

structures, providing there is no more than 15 inches (380 mm) between

either end of the guardrail and the nearest bed end structures.

(4) For bunk beds designed to have a ladder attached to one side of

the bed, the continuous guardrail shall be on the other side of the

bed.

(5) Guardrails shall be attached so that they cannot be removed

without either intentionally releasing a fastening device or applying

forces sequentially in different directions.

(6) The upper edge of the guardrails shall be no less than 5 inches

(130 mm) above the top surface of the mattress when a mattress of the

maximum thickness specified by the bed manufacturer's instructions is

on the bed. This requirement does not prohibit a wall-side guardrail

that terminates in a quarter-circle bend and attaches to the side rail

of the upper bunk foundation.

(7) With no mattress on the bed, there shall be no openings in the

structure between the lower edge of the uppermost member of the

guardrail and the underside of the upper bunk's foundation that would

permit passage of the wedge block shown in Figure 1 of this part when

tested in accordance with the procedure at Sec. 1213.4(a).

(b) Bed end structures. (1) The upper edge of the upper bunk end

structures shall be at least 5 inches (130 mm) above the top surface of

the mattress for at least 50 percent of the distance between the two

posts at the head and foot of the upper bunk when a mattress and

foundation of the maximum thickness specified by the manufacturer's

instructions is on the bed.

(2) With no mattress on the bed, there shall be no openings in the

end structures above the foundation of the upper bunk that will permit

the free passage of the wedge block shown in Figure 1 when tested in

accordance with the procedure at Sec. 1213.4(b).

(3) When tested in accordance with Sec. 1213.4(c), there shall be

no openings in the end structures between the underside of the

foundation of the upper bunk and upper side of the foundation of the

lower bunk that will permit the free passage of the wedge block shown

in Figure 1, unless the openings are also large enough to permit the

free passage of a 9-inch (230-mm) diameter rigid sphere.

(4) All portions of the boundary of any opening required by

Secs. 1213.4(c)(1) and (2) to be probed by the wedge block of Figure 1,

and that permits free passage of a 9-inch diameter sphere, must conform

to the neck entrapment requirements of Sec. 1213.4(c)(3).

Sec. 1213.4 Test methods.

(a) Guardrails (see Sec. 1213.3(a)(6)). With no mattress on the

bed, place the wedge block shown in Figure 1, tapered side first, into

each opening in the bed structure below the lower edge of the uppermost

member of the guardrail and above the underside of the upper bunk's

foundation. Orient the block so that it is most likely to pass through

the opening (e.g., the major axis of the block parallel to the major

axis of the opening) (``most adverse orientation''). Then gradually

apply a 33-lbf (147-N) force in a direction perpendicular to the plane

of the large end of the block. Sustain the force for 1 minute.

(b) Upper bunk end structure (see Sec. 1213.3(b)(2)). Without a

mattress or foundation on the upper bunk, place the wedge block shown

in Figure 1 into each opening, tapered side first, and in the most

adverse orientation. Determine if the wedge block can pass freely

through the opening.

(c) Lower bunk end structure (see Sec. 1213.3(b)(3)). (1) Without a

mattress or foundation on the lower bunk, place the wedge block shown

in Figure 1, tapered side first, into each opening in the lower bunk

end structure in the most adverse orientation. Determine whether the

wedge block can pass freely through the opening. If the wedge block

passes freely through the opening, determine whether a 9-inch (230-mm)

diameter rigid sphere can pass freely through the opening.

(2) With the manufacturer's recommended maximum thickness mattress

and foundation in place, repeat the test in paragraph (c)(1) of this

section.

(3) All portions of the boundary of any opening that is required to

be probed by the wedge block of Figure 1 by paragraphs (c)(1) and

(c)(2) of this section, and that permits free passage of a 9-inch

diameter sphere, must satisfy the requirements of paragraphs (c)(3)(i)

and (c)(3)(ii) of this section addressing neck entrapment.

(i) Insert the ``A'' section of the test template shown in Figure 2

of this part into the portion of the boundary of the opening to be

tested, with the plane of the template in the plane of the opening and

with the centerline of the top of the template (as shown in Figure 2)

aligned parallel to the centerline of the opening, until motion is

stopped by contact between the test template and the boundaries of the

opening (see Figure 3 of this part). By visual inspection, determine if

there is simultaneous contact between the boundary of the opening and

both sides of the ``A'' section of the template. If simultaneous

contact occurs, mark the contact points on the boundary of the opening

and conduct the additional test described in paragraph (c)(3)(ii) of

this section.

(ii) To check the potential for neck entrapment, place the neck

portion of the ``B'' section of the template into the opening, with its

plane perpendicular to both the plane of the opening and the centerline

of the opening (see Figure 4 of this part). If the neck portion of the

``B'' section of the template completely enters the opening (passes

0.75 inch or more beyond the points previously contacted by the ``A''

section of the template), the opening is considered to present a neck

entrapment hazard and fails the test, unless its lower boundary slopes

downward at 45 deg. or more for the whole distance from the narrowest

part of the opening the neck can reach to the part of the opening that

will freely pass a 9-inch diameter sphere.

Sec. 1213.5 Marking and labeling.

(a) There shall be a permanent label or marking on each bed stating

the name and address (city, state, and zip code) of the manufacturer,

distributor, or retailer; the model number; and the month and year of

manufacture.

(b) The following warning label shall be permanently attached to

the inside of an upper bunk bed end structure in a location that cannot

be covered by the bedding but that may be covered by the placement of a

pillow.

BILLING CODE 6355-01-P

[[Page 71901]]

[GRAPHIC] [TIFF OMITTED] TR22DE99.001

BILLING CODE 6355-01-C

Sec. 1213.6 Instructions.

Instructions shall accompany each bunk bed set, and shall include

the following information.

(a) Size of mattress and foundation. The length and width of the

intended mattress and foundation shall be clearly stated, either

numerically or in conventional terms such as twin size, twin extra-

long, etc. In addition, the maximum thickness of the mattress and

foundation required for compliance with Sec. 1213.3(a)(5) and (b)(1)

shall be stated.

(b) Safety warnings. The instructions shall provide the following

safety warnings:

(1) Do not allow children under 6 years of age to use the upper

bunk.

(2) Use guardrails on both sides of the upper bunk.

(3) Prohibit horseplay on or under beds.

(4) Prohibit more than one person on upper bunk.

(5) Use ladder for entering or leaving upper bunk.

(6) If the bunk bed will be placed next to a wall, the guardrail

that runs the full length of the bed should be placed against the wall

to prevent entrapment between the bed and the wall. (This applies only

to bunk beds without two full-length guardrails.)

Sec. 1213.7 Findings.

The Consumer Product Safety Act requires that the Commission, in

order to issue a standard, make the following findings and include them

in the rule. 15 U.S.C. 2058(f)(3). These findings are contained in the

Appendix to this Part 1213.

(a) The rule in this part (including its effective date of June 19,

2000 is reasonably necessary to eliminate or reduce an unreasonable

risk of injury associated with the product.

[These findings are contained in the Appendix to this part 1213.]

(b) Promulgation of the rule is in the public interest.

(c) Where a voluntary standard has been adopted and implemented by

the affected industry, that compliance with such voluntary standard is

not likely to result in the elimination or adequate reduction of the

risk of injury; or it is unlikely that there will be substantial

compliance with such voluntary standard.

(d) The benefits expected from the rule bear a reasonable

relationship to its costs.

(e) The rule imposes the least burdensome requirement that prevents

or adequately reduces the risk of injury for which the rule is being

promulgated.

BILLING CODE 6355-01-P

[[Page 71902]]

Figure 1 to Part 1213--Wedge Block for Tests in Sec. 1213.4(a),

(b), and (c)

[GRAPHIC] [TIFF OMITTED] TR22DE99.007

[[Page 71903]]

Figure 2 to Part 1213--Test Template for Neck Entrapment

[GRAPHIC] [TIFF OMITTED] TR22DE99.003

[[Page 71904]]

Figure 3 to Part 1213--Motion of Test Template Arrested by

Simultaneous Contact With Both Sides of ``A'' Section and

Boundaries of Opening

[GRAPHIC] [TIFF OMITTED] TR22DE99.004

[[Page 71905]]

Figure 4 to Part 1213--Neck Portion of ``B'' Section of Template

Enters Completely Into Opening

[GRAPHIC] [TIFF OMITTED] TR22DE99.005

BILLING CODE 6355-01-C

[[Page 71906]]

Appendix to Part 1213--Findings Under the Consumer Product Safety

Act

The Consumer Product Safety Act requires that the Commission, in

order to issue a standard, make the following findings and include

them in the rule. 15 U.S.C. 2058(f)(3). Because of this, the facts

and determinations in these findings apply as of the date the rule

was issued, December 22, 1999.

A. The rule in this part (including its effective date of June

19, 2000) is reasonably necessary to eliminate or reduce an

unreasonable risk of injury associated with the product.

1. For a recent 9.6-year period, the CPSC received reports of 57

deaths of children under age 15 who died when they were trapped

between the upper bunk of a bunk bed and the wall or when they were

trapped in openings in the bed's structure. Over 96% of those who

died in entrapment incidents were age 3 or younger. On average,

averting these deaths is expected to produce a benefit to society

with a present value of about $175 to $350 for each bed that

otherwise would not have complied with one or more of the rule's

requirements.

2. This increased safety will be achieved in two ways. First,

all bunk beds will be required to have a guardrail on both sides of

the bed. If the bed is placed against a wall, the guardrail on that

side is expected to prevent a child from being entrapped between the

bed and the wall. The guardrail on the wall side of the bed must

extend continuously from one end to the other. Second, the end

structures of the bed must be constructed so that, if an opening in

the end structure is large enough so a child can slip his or her

body through it, it must be large enough that the child's head also

can pass through.

3. For the reasons discussed in paragraph D. of this Appendix,

the benefits of the changes to bunk beds caused by this rule will

have a reasonable relationship to the changes' costs. The rule

addresses a risk of death, and applies primarily to a vulnerable

population, children under age 3. The life-saving features required

by the rule are cost-effective and can be implemented without

adversely affecting the performance and availability of the product.

The effective date provides enough time so that production of bunk

beds that do not already comply with the standard can easily be

changed so that the beds comply. Accordingly, the Commission finds

that the rule (including its effective date) is reasonably necessary

to eliminate or reduce an unreasonable risk of injury associated

with the product.

B. Promulgation of the rule is in the public interest. For the

reasons given in paragraph A. of this Appendix, the Commission finds

that promulgation of the rule is in the public interest.

C. Where a voluntary standard has been adopted and implemented

by the affected industry, that compliance with such voluntary

standard is not likely to result in the elimination or adequate

reduction of the risk of injury; or it is unlikely that there will

be substantial compliance with such voluntary standard.

1. Adequacy of the voluntary standard. i. In this instance,

there is a voluntary standard addressing the risk of entrapment in

bunk beds. However, the rule goes beyond the provisions of the

voluntary standard. First, it eliminates the voluntary standard's

option to have an opening of up to 15 inches at each end of the

wall-side guardrail. Second, it requires more of the lower bunk end

structures to have entrapment protection. The voluntary standard

protects against entrapment only within the 9-inch space immediately

above the upper surface of the lower bunk's mattress. The mandatory

standard extends this area of protection upward to the level of the

underside of the upper bunk foundation. Both of these provisions,

which are in the rule but not in the voluntary standard, address

fatalities and, as noted in paragraph D of this Appendix, have

benefits that bear a reasonable relationship to their costs.

ii. Therefore, the Commission finds that compliance with the

voluntary standard is not likely to result in the elimination or

adequate reduction of the risk of entrapment injury or death.

2. Substantial compliance. i. Neither the CPSA nor the FHSA

define ``substantial compliance.'' The March 3, 1999 Notice of

Proposed Rulemaking summarized an interpretation of ``substantial

compliance'' that the Office of General Counsel provided to the

Commission. 64 Fed. Reg. 10245, 10248-49 (March 3, 1999). The

Commission specifically invited public comment on that

interpretation from ``all persons who would be affected by such an

interpretation.'' Id. at 10249. The Commission received more than 20

comments on the interpretation.

ii. Having now considered all the evidence that the staff has

presented, the comments from the public, and the legal advice from

the Office of General Counsel, the Commission concludes that there

is not ``substantial compliance'' with the ASTM voluntary standard

for bunk beds within the meaning of the Consumer Product Safety Act

and the Federal Hazardous Substances Act. See, e.g., 15 U.S.C.

2058(f)(3)(D)(ii); 15 U.S.C. 1262(i)(2)(A)(ii). However, the

Commission does not adopt a general interpretation of ``substantial

compliance'' focusing on whether the level of compliance with a

voluntary standard could be improved under a mandatory standard.

Rather, the grounds for the Commission's decision focus on the

specific facts of this rulemaking and are stated below.

iii. The legislative history regarding the meaning of

``substantial compliance'' indicates that the Commission should

consider whether compliance is sufficient to eliminate or adequately

reduce the risk of injury in a timely fashion and that, generally,

compliance should be measured in terms of the number of complying

products, rather than the number of manufacturers who are in

compliance. E.g., Senate Report No. 97-102, p. 14 (May 15, 1981);

House Report No. 97-158, p. 11 (June 19, 1981); H. Conf. Rep. No.

97-208, 97th Cong., 1st Sess. 871, reprinted in 1981 U.S. Code Cong.

& Admin. News 1010, 1233.

iv. Given this Congressional guidance, the Commission believes

it appropriate to examine the number of conforming products as the

starting point for analysis. However, the Commission does not

believe that there is any single percentage of conforming products

that can be used in all cases to define ``substantial compliance.''

Instead, the percentage must be viewed in the context of the hazard

the product presents. Thus, the Commission must examine what

constitutes substantial compliance with a voluntary standard in

light of its obligation to safeguard the American consumer.

v. There are certain factors the agency considers before it

initiates regulatory action, such as the severity of the potential

injury, whether there is a vulnerable population at risk, and the

risk of injury. See 16 CFR 1009.8. These and other factors also

appropriately inform the Commission's decision regarding whether a

certain level of conformance with a voluntary standard is

substantial. In the light of these factors, industry's compliance

rate with the voluntary standard for bunk beds is not substantial.

vi. In this case, the Commission deals with the most severe

risk--death--to one of the most vulnerable segments of our

population--infants and young children. While the risk of death is

not high, it exists whenever a young child is in a residence with a

nonconforming bunk bed.

vii. Additionally, some products, such as hairdryers without

shock protection devices, require some intervening action (dropping

the hair dryer into water) to create the hazard. By contrast, deaths

in bunk beds occur during the intended use of the product--a child

rolling over in bed or climbing in or out of it--without any

intervening action.

viii. The Commission must also consider that bunk beds have a

very long product life, frequently being passed on to several

families before being discarded. Thus, a number of children may be

exposed to a bed during its useful life. Every noncomplying bed that

poses an entrapment hazard presents the potential risk of death to

any young child in the house. It is a risk that is hard for a parent

to protect against, as children find their way onto these beds even

if they are not put to sleep in them.

ix. Bunk beds are products that can be made relatively easily by

very small companies, or even by a single individual. The Office of

Compliance believes smaller entities will always present a

compliance problem, because new manufacturers can enter the

marketplace relatively easily and need little expertise to make a

wooden bunk bed. The evidence seems to support the view that there

will always be an irreducible number of new, smaller bunk bed

manufacturers who will not follow the voluntary standard.

x. What constitutes substantial compliance is also a function of

what point in time the issue is examined. In 1989, the Commission

denied a petition for a mandatory bunk bed rule. At that time,

industry was predicting that by April of 1989, 90% of all beds being

manufactured would comply with the voluntary guidelines. But that

was in the context of years of steadily increasing conformance and

the hope that conformance would continue to grow and that deaths and

near-misses would begin to decline. But the

[[Page 71907]]

conformance level never grew beyond the projection for 1989 and

deaths and near-misses have not dropped.

xi. Even with the existing compliance rate, the Commission is

contemplating the prospect of perhaps 50,000 nonconforming beds a

year (or more) entering the marketplace, with many beds remaining in

use for perhaps 20 years or longer. Under these circumstances, a 10%

rate of noncompliance is too high.

xii. It is now clear that the bunk bed voluntary standard has

not achieved an adequate reduction of the unreasonable risk of death

to infants and children in a timely fashion, and it is unlikely to

do so. Accordingly, the Commission finds that substantial compliance

with the voluntary standard for bunk beds is unlikely.

xiii. Products that present some or all of the following factors

might not be held to as strict a substantial compliance analysis.

Those which:

--Rarely or never cause death;

--Cause only less severe injuries;

--Do not cause deaths or injuries principally to a vulnerable

segment of the population;

--Are not intended for children and which have no special attraction

for children;

--Have a relatively short life span;

--Are made by a few stable manufacturers or which can only be made

by specialized manufacturers needing a significant manufacturing

investment to produce the product;

--Are covered by a voluntary standard which continues to capture an

increasing amount of noncomplying products; or

--Require some additional intervening action to be hazardous.

xiv. And, in analyzing some other product, there could be other

factors that would have to be taken into consideration in

determining what level of compliance is adequate to protect the

public. The tolerance for nonconformance levels has to bear some

relationship to the magnitude and manageability of the hazard

addressed.

xv. The Commission emphasizes that its decision is not based on

the argument that a mandatory rule provides more powerful

enforcement tools. If this were sufficient rationale, mandatory

rules could always displace voluntary standards, and this clearly

was not Congress's intent. But, with a mandatory standard, the

necessity of complying with a mandatory federal regulation will be

understandable to small manufacturers. State and local governments

will have no doubt about their ability to help us in our efforts to

locate these manufacturers.

D. The benefits expected from the rule bear a reasonable

relationship to its costs.

1. Bunk beds that do not comply with ASTM's requirements for

guardrails. The cost of providing a second guardrail for bunk beds

that do not have one is expected to be from $15-40 per otherwise

noncomplying bed. If, as expected, the standard prevents virtually

all of the deaths it addresses, the present value of the benefits of

this modification are estimated to be from $175-350 per otherwise

noncomplying bed. Thus, the benefit of this provision is about 4-23

times its cost.

2. Bunk beds that comply with ASTM's requirements for

guardrails. The voluntary standard allows up to a 15-inch gap in the

coverage of the guardrail on the wall side of the upper bunk.

Additional entrapment deaths are addressed by requiring that the

wall-side guardrail be continuous from one end of the bed to the

other. The estimated present value of the benefits of this

requirement is $2.40 to $3.50 per otherwise noncomplying bed. The

Commission estimates that the materials cost to extend one guardrail

an additional 30 inches (760 mm) will be less than the present value

of the benefits of making the change. Further, the costs of any

design changes can be amortized over the number the bunk beds

manufactured after the design change is made. Thus, the costs of any

design change will be nominal.

3. Lower bunk end structures. The Commission is aware of a

death, involving entrapment in the end structures of the lower bunk,

occurring in a scenario not currently addressed by the voluntary

standard. This death would be addressed by extending the voluntary

standard's lower bunk end structures entrapment provisions from 9

inches above the lower bunk's sleeping surface to the bottom of the

upper bunk and by also including a test for neck entrapment in this

area. The Commission expects the costs of this requirement to be

design-related only, and small. Indeed, for some bunk beds,

materials costs may decrease since less material may be required to

comply with these requirements than is currently being used. Again,

the design costs for these modifications to the end structures can

be amortized over the subsequent production run of the bed.

4. Effect on market. The small additional costs from any wall-

side guardrails and end-structure modifications are not expected to

affect the market for bunk beds, either alone or added to the costs

of compliance to ASTM's provisions.

5. Conclusion. The Commission has no reason to conclude that any

of the standard's requirements will have costs that exceed the

requirement's expected benefits. Further, the total effect of the

rule is that the benefits of the rule will exceed its costs by about

4-23 times. Accordingly, the Commission concludes that the benefits

expected from the rule bear a reasonable relationship to its costs.

E. The rule imposes the least burdensome requirement that

prevents or adequately reduces the risk of injury for which the rule

is being promulgated. 1. The Commission considered relying on the

voluntary standard, either alone or combined with a third-party

certification program. However, the Commission concluded that a

mandatory program will be more effective in reducing these deaths,

each of which is caused by an unreasonable risk of entrapment.

Accordingly, these alternatives would not prevent or adequately

reduce the risk of injury for which the rule is being promulgated.

2. The Commission also considered a suggestion that bunk beds

that conformed to the voluntary standard be so labeled. Consumers

could then compare conforming and nonconforming beds at the point of

purchase and make their purchase decisions with this safety

information in mind. This, however, would not necessarily reduce

injuries, because consumers likely would not know there is a

voluntary standard and thus would not see any risk in purchasing a

bed that was not labeled as conforming to the standard.

3. For the reasons stated in this Appendix, no alternatives to a

mandatory rule have been suggested that would adequately reduce the

deaths caused by entrapment of children in bunk beds. Accordingly,

the Commission finds that this rule imposes the least burdensome

requirement that prevents or adequately reduces the risk of injury

for which the rule is being promulgated.

2. The authority citation for part 1500 continues to read as

follows:

Authority: 15 U.S.C. 1261-1278.

3. Section 1500.18 is amended by adding paragraph (a)(18) to read

as follows:

Sec. 1500.18 Banned toys and other banned articles intended for use by

children.

(a) * * *

(18)(i) Any bunk bed (as defined in Sec. 1513.2(c) of this chapter)

that does not comply with the requirements of part 1513 of this

chapter.

(ii) Findings. In order to issue a rule under Section 3(e) of the

Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1262(e), classifying

a toy or other article intended for use by children as a hazardous

substance on the basis that it presents a mechanical hazard (as defined

in Section 2(s) of the FHSA), the FHSA requires the Commission to make

the following findings and to include these findings in the regulation:

Bunk beds present a mechanical hazard; Where a voluntary standard has

been adopted and implemented by the affected industry, that compliance

with such voluntary standard is not likely to result in the elimination

or adequate reduction of the risk of injury, or it is unlikely that

there will be substantial compliance with such voluntary standard; The

benefits expected from the rule bear a reasonable relationship to its

costs; and The rule imposes the least burdensome requirement that

prevents or adequately reduces the risk of injury for which the rule is

being promulgated. These findings are made in the Appendix to Part

1513.

4. A new part 1513 is added to Subchapter C to read as follows:

PART 1513--REQUIREMENTS FOR BUNK BEDS

Sec.

1513.1 Scope, application, and effective date.

1513.2 Definitions.

1513.3 Requirements.

1513.4 Test methods.

1513.5 Marking and labeling.

1513.6 Instructions.

[[Page 71908]]

Figures 1-4

Appendix to Part 1513--Findings Under the Federal Hazardous Substances

Act

Authority: 15 U.S.C. 1261(f)(1)(D), 1261(s), 1262(e)(1),

1262(f)-(i).

Sec. 1513.1 Scope, application, and effective date.

(a) Scope, basis, and purpose. This part 1513 prescribes

requirements for bunk beds to reduce or eliminate the risk that

children will die or be injured from being trapped between the upper

bunk and the wall or in openings below guardrails or in other

structures in the bed. Bunk beds meeting these requirements are

exempted from 16 CFR 1500.18(a)(18).

(b) Application and effective date. This part applies to all bunk

beds, except those manufactured only for institutional use, that are

manufactured in the United States, or imported, on or after June 19,

2000. (Facilities intended for use by children under age 6 are not

considered to be institutions.) Bunk beds, as described in this

section, that are not intended for use by children are subject to the

requirements in 16 CFR part 1213, and not to 16 CFR 1500.18(a)(18).

However, the provisions of 16 CFR 1213 are substantively identical to

the requirements in this part 1513.

Sec. 1513.2 Definitions.

As used in this part 1513:

Bed. See Bunk bed.

Bed end structure means an upright unit at the head and foot of the

bed to which the side rails attach.

Bunk bed means a bed in which the underside of any foundation is

over 30 inches (760 mm) from the floor.

Foundation means the base or support on which a mattress rests.

Guardrail means a rail or guard on a side of the upper bunk to

prevent a sleeping occupant from falling or rolling out.

Sec. 1513.3 Requirements.

(a) Guardrails. (1) Any bunk bed shall provide at least two

guardrails, at least one on each side of the bed, for each bed having

the underside of its foundation more than 30 inches (760 mm) from the

floor.

(2) One guardrail shall be continuous between each of the bed's end

structures. ``Continuous'' means that any gap between the guardrail and

end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause

a finger entrapment hazard for a child).

(3) The other guardrail may terminate before reaching the bed's end

structures, providing there is no more than 15 inches (380 mm) between

either end of the guardrail and the nearest bed end structure.

(4) For bunk beds designed to have a ladder attached to one side of

the bed, the continuous guardrail shall be on the other side of the

bed.

(5) Guardrails shall be attached so that they cannot be removed

without either intentionally releasing a fastening device or applying

forces sequentially in different directions.

(6) The upper edge of the guardrails shall be no less than 5 inches

(130 mm) above the top surface of the mattress when a mattress of the

maximum thickness specified by the manufacturer's instructions is on

the bed. This requirement does not prohibit a wall-side guardrail that

terminates in a quarter-circle bend and attaches to the side rail of

the upper bunk foundation.

(7) With no mattress on the bed, there shall be no openings in the

structure between the lower edge of the uppermost member of the

guardrail and the underside of the upper bunk's foundation that would

permit passage of the wedge block shown in Figure 1 of this part when

tested in accordance with the procedure at Sec. 1513.4(a).

(b) Bed end structures. (1) The upper edge of the upper bunk end

structures shall be at least 5 inches (130 mm) above the top surface of

the mattress for at least 50 percent of the distance between the two

posts at the head and foot of the upper bunk when a mattress and

foundation of the maximum thickness specified by the manufacturer's

instructions is on the bed.

(2) With no mattress on the bed, there shall be no openings in the

rigid end structures above the foundation of the upper bunk that will

permit the free passage of the wedge block shown in Figure 1 when

tested in accordance with the procedure at Sec. 1513.4(b).

(3) When tested in accordance with Sec. 1513.4(c), there shall be

no openings in the end structures between the underside of the

foundation of the upper bunk and upper side of the foundation of the

lower bunk that will permit the free passage of the wedge block shown

in Figure 1, unless the openings are also large enough to permit the

free passage of a 9-inch (230-mm) diameter rigid sphere.

(4) All portions of the boundary of any opening required by

Secs. 1513.4(c)(1) and (2) to be probed by the wedge block of Figure 1,

and that permits free passage of a 9-inch diameter sphere, must conform

to the neck entrapment requirements of Sec. 1513.4(c)(3).

Sec. 1513.4 Test methods.

(a) Guardrails (see Sec. 1513.3(a)(6)). With no mattress on the

bed, place the wedge block shown in Figure 1, tapered side first, into

each opening in the rigid bed structure below the lower edge of the

uppermost member of the guardrail and above the underside of the upper

bunk's foundation. Orient the block so that it is most likely to pass

through the opening (e.g., the major axis of the block parallel to the

major axis of the opening) (``most adverse orientation''). Then,

gradually apply a 33-lbf (147-N) force in a direction perpendicular to

the plane of the large end of the block. Sustain the force for 1

minute.

(b) Upper bunk end structure (see Sec. 1513.3(b)(2)). Without a

mattress or foundation on the upper bunk, place the wedge block shown

in Figure 1 into any opening, tapered side first, and in the most

adverse orientation. Determine if the wedge block can pass freely

through the opening.

(c) Lower bunk end structure (see Sec. 1513.3(b)(3)). (1) Without a

mattress or foundation on the lower bunk, place the wedge block shown

in Figure 1, tapered side first, into each opening in the lower bunk

end structure in the most adverse orientation. Determine whether the

wedge block can pass freely through the opening. If the wedge block

passes freely through the opening, determine whether a 9-inch (230-mm)

diameter rigid sphere can pass freely through the opening.

(2) With the manufacturer's recommended maximum thickness mattress

and foundation in place, repeat the test in paragraph (c)(1) of this

section.

(3) All portions of the boundary of any opening that is required to

be probed by the wedge block of Figure 1 by paragraphs (c)(1) and

(c)(2) of this section, and that permits free passage of a 9-inch

diameter sphere, must satisfy the requirements of paragraphs (c)(3)(i)

and (c)(3)(ii) of this section addressing neck entrapment:

(i) Insert the ``A'' section of the test template shown in Figure 2

of this part into the portion of the boundary to be tested, with the

plane of the template in the plane of the opening and with the

centerline of the top of the template (as shown in Figure 2) aligned

parallel to the centerline of the opening, until motion is stopped by

contact between the test template and the boundaries of the opening

(see Figure 3 of this part). By visual inspection, determine if there

is simultaneous contact between the boundary of the opening and both

sides of the ``A'' section of the template. If simultaneous contact

occurs, mark the contact points on the boundary of the

[[Page 71909]]

opening and conduct the additional test described in paragraph

(c)(3)(ii) of this section.

(ii) To check the potential for neck entrapment, place the neck

portion of the ``B'' section of the template into the opening, with its

plane perpendicular to both the plane of the opening and the centerline

of the opening (see Figure 4 of this part). If the neck portion of the

``B'' section of the template can completely enter the opening (passes

0.75 inch or more beyond the points previously contacted by the ``A''

section of the template), the opening is considered to present a neck

entrapment hazard and fails the test, unless its lower boundary slopes

downward at 45'' or more for the whole distance from the narrowest part

of the opening the neck can reach to the part of the opening that will

freely pass a 9-inch diameter sphere.

Sec. 1513.5 Marking and labeling.

(a) There shall be a permanent label or marking on each bed stating

the name and address (city, state, and zip code) of the manufacturer,

distributor, or retailer; the model number; and the month and year of

manufacture.

(b) The following warning label shall be permanently attached to

the inside of an upper bunk bed end structure in a location that cannot

be covered by the bedding but that may be covered by the placement of a

pillow.

BILLING CODE 6358-01-P

[GRAPHIC] [TIFF OMITTED] TR22DE99.006

BILLING CODE 6355-01-C

Sec. 1513.6 Instructions

Instructions shall accompany each bunk bed set, and shall include

the following information.

(a) Size of mattress and foundation. The length and width of the

intended mattress and foundation shall be clearly stated, either

numerically or in conventional terms such as twin size, twin extra-

long, etc. In addition, the maximum thickness of the mattress and

foundation required for compliance with Sec. 1513.3 (a)(5) and (b)(1)

of this part shall be stated.

(b) Safety warnings. The instructions shall provide the following

safety warnings:

(1) Do not allow children under 6 years of age to use the upper

bunk.

(2) Use guardrails on both sides of the upper bunk.

(3) Prohibit horseplay on or under beds.

(4) Prohibit more than one person on upper bunk.

(5) Use ladder for entering or leaving upper bunk.

(6) If the bunk bed will be placed next to a wall, the guardrail

that runs the full length of the bed should be placed against the wall

to prevent entrapment between the bed and the wall. (This applies only

to bunk beds without two full-length guardrails.)

BILLING CODE 6355-01-P

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BILLING CODE 6355-01-C

[[Page 71914]]

Appendix to Part 1513--Findings Under the Federal Hazardous

Substances Act

The Federal Hazardous Substances Act (FHSA) requires that the

Commission, in order to issue Part 1513, make the following findings

and include them in the rule. 15 U.S.C. 1261(s), 1262(i). Because of

this, the facts and determinations in these findings apply as of the

date the rule was issued, December 22, 1999.

A. Bunk beds present a mechanical hazard. Section 2(s) of the

FHSA states that an ``article may be determined to present a

mechanical hazard if, in normal use or when subjected to reasonably

foreseeable damage or abuse, its design or manufacture presents an

unreasonable risk of personal injury or illness * * * (3 from * * *

surfaces, edges, openings, or closures * * * , or (9) because of any

other aspect of the articles design or manufacture.'' 15 U.S.C.

1261(s).

2. For a recent 9.6-year period, the CPSC received reports of 57

deaths of children under age 15 who died when they were trapped

between the upper bunk of a bunk bed and the wall or when they were

trapped in openings in the bed's structure. Over 96% of those who

died in entrapment incidents were age 3 or younger. On average,

averting these deaths is expected to produce a benefit to society

with a present value of about $175 to $350 for each bed that

otherwise would not have complied with one or more of the rule's

requirements.

3. This increased safety will be achieved in three main ways.

First, all bunk beds will be required to have a guardrail on both

sides of the bed. If the bed is placed against a wall, the guardrail

on that side is expected to prevent a child from being entrapped

between the bed and the wall. The guardrail on the wall side of the

bed must extend continuously from one end to the other. Second, the

end structures of the bed must be constructed so that, if an opening

in the end structure is large enough so a child can slip his or her

body through it, it must be large enough that the child's head also

can pass through. Third, this area must also be constructed so that

a child cannot insert his or her head into an opening and move to

another part of the opening where the head cannot be pulled out and

the neck can become entrapped.

4. For the reasons discussed in paragraph C of this Appendix,

the benefits of the changes to bunk beds caused by this rule will

have a reasonable relationship to the changes' costs. The rule

addresses a risk of death, and applies primarily to a vulnerable

population, children under age 3. The life-saving features required

by the rule are cost-effective and can be implemented without

adversely affecting the performance and availability of the product.

The effective date provides enough time so that production of bunk

beds that do not already comply with the standard can easily be

changed so that the beds comply. Accordingly, the Commission finds

that there is an unreasonable risk of entrapment injury associated

with bunk beds that do not comply with Part 1513.

B. Where a voluntary standard has been adopted and implemented

by the affected industry, that compliance with such voluntary

standard is not likely to result in the elimination or adequate

reduction of the risk of injury, or it is unlikely that there will

be substantial compliance with such voluntary standard.

1. Adequacy of the voluntary standard. In this instance, there

is a voluntary standard addressing the risk of entrapment in bunk

beds. However, the rule goes beyond the provisions of the voluntary

standard. First, it eliminates the voluntary standard's option to

have an opening of up to 15 inches at each end of the wall-side

guardrail. Second, it requires more of the lower bunk end structures

to have entrapment protection. The voluntary standard protects

against entrapment only within the 9-inch space immediately above

the upper surface of the lower bunk's mattress. The mandatory

standard extends this area of protection upward to the level of the

underside of the upper bunk foundation. Both of these provisions,

which are in the rule but not in the voluntary standard, address

fatalities and, as noted in this paragraph (a)(18), have benefits

that bear a reasonable relationship to their costs.

Therefore, the Commission finds that compliance with the

voluntary standard is not likely to result in the elimination or

adequate reduction of the risk of entrapment injury or death.

2. Substantial compliance. i. The FHSA does not define

``substantial compliance.'' The March 3, 1999 Notice of Proposed

Rulemaking summarized an interpretation of ``substantial

compliance'' that the Office of General Counsel provided to the

Commission. 64 FR 10245, 10248-49 (March 3, 1999). The Commission

specifically invited public comment on that interpretation from

``all persons who would be affected by such an interpretation.'' Id.

at 10249. The Commission received more than 20 comments on the

interpretation.

ii. Having now considered all the evidence that the staff has

presented, the comments from the public, and the legal advice from

the Office of General Counsel, the Commission concludes that there

is not ``substantial compliance'' with the ASTM voluntary standard

for bunk beds within the meaning of the Consumer Product Safety Act

and the Federal Hazardous Substances Act. See, e.g., 15 U.S.C.

2058(f)(3)(D)(ii); 15 U.S.C. 1262(i)(2)(A)(ii). However, the

Commission does not adopt a general interpretation of ``substantial

compliance'' focusing on whether the level of compliance with a

voluntary standard could be improved under a mandatory standard.

Rather, the grounds for the Commission's decision focus on the

specific facts of this rulemaking and are stated below.

iii. The legislative history regarding the meaning of

``substantial compliance'' indicates that the Commission should

consider whether compliance is sufficient to eliminate or adequately

reduce the risk of injury in a timely fashion and that, generally,

compliance should be measured in terms of the number of complying

products, rather than the number of manufacturers who are in

compliance. E.g., Senate Report No. 97-102, p. 14 (May 15, 1981);

House Report No. 97-158, p. 11 (June 19, 1981); H. Conf. Rep. No.

97-208, 97th Cong., 1st Sess. 871, reprinted in 1981 U.S. Code Cong.

& Admin. News 1010, 1233.

iv. Given this Congressional guidance, the Commission believes

it appropriate to examine the number of conforming products as the

starting point for analysis. However, the Commission does not

believe that there is any single percentage of conforming products

that can be used in all cases to define ``substantial compliance.''

Instead, the percentage must be viewed in the context of the hazard

the product presents. Thus, the Commission must examine what

constitutes substantial compliance with a voluntary standard in

light of its obligation to safeguard the American consumer.

v. There are certain factors the agency considers before it

initiates regulatory action, such as the severity of the potential

injury, whether there is a vulnerable population at risk, and the

risk of injury. See 16 CFR 1009.8. These and other factors also

appropriately inform the Commission's decision regarding whether a

certain level of conformance with a voluntary standard is

substantial. In the light of these factors, industry's compliance

rate with the voluntary standard for bunk beds is not substantial.

vi. In this case, the Commission deals with the most severe

risk--death--to one of the most vulnerable segments of our

population--infants and young children. While the risk of death is

not high, it exists whenever a young child is in a residence with a

nonconforming bunk bed.

vii. Additionally, some products, such as hairdryers without

shock protection devices, require some intervening action (dropping

the hair dryer into water) to create the hazard. By contrast, deaths

in bunk beds occur during the intended use of the product--a child

rolling over in bed or climbing in or out of it--without any

intervening action.

viii. The Commission must also consider that bunk beds have a

very long product life, frequently being passed on to several

families before being discarded. Thus, a number of children may be

exposed to a bed during its useful life. Every noncomplying bed that

poses an entrapment hazard presents the potential risk of death to

any young child in the house. It is a risk that is hard for a parent

to protect against, as children find their way onto these beds even

if they are not put to sleep in them.

ix. Bunk beds are products that can be made relatively easily by

very small companies, or even by a single individual. The Office of

Compliance believes smaller entities will always present a

compliance problem, because new manufacturers can enter the

marketplace relatively easily and need little expertise to make a

wooden bunk bed. The evidence seems to support the view that there

will always be an irreducible number of new, smaller bunk bed

manufacturers who will not follow the voluntary standard.

x. What constitutes substantial compliance is also a function of

what point in time the issue is examined. In 1989, the Commission

denied a petition for a mandatory bunk bed

[[Page 71915]]

rule. At that time, industry was predicting that by April of 1989,

90% of all beds being manufactured would comply with the voluntary

guidelines. But that was in the context of years of steadily

increasing conformance and the hope that conformance would continue

to grow and that deaths and near-misses would begin to decline. But

the conformance level never grew beyond the projection for 1989 and

deaths and near-misses have not dropped.

xi. Even with the existing compliance rate, the Commission is

contemplating the prospect of perhaps 50,000 nonconforming beds a

year (or more) entering the marketplace, with many beds remaining in

use for perhaps 20 years or longer. Under these circumstances, a 10%

rate of noncompliance is too high.

xii. It is now clear that the bunk bed voluntary standard has

not achieved an adequate reduction of the unreasonable risk of death

to infants and children in a timely fashion, and it is unlikely to

do so. Accordingly, the Commission finds that substantial compliance

with the voluntary standard for bunk beds is unlikely.

xiii. Products that present some or all of the following factors

might not be held to as strict a substantial compliance analysis.

Those which:

--Rarely or never cause death;

--Cause only less severe injuries;

--Do not cause deaths or injuries principally to a vulnerable

segment of the population;

--Are not intended for children and which have no special attraction

for children;

--Have a relatively short life span;

--Are made by a few stable manufacturers or which can only be made

by specialized manufacturers needing a significant manufacturing

investment to produce the product;

--Are covered by a voluntary standard which continues to capture an

increasing amount of noncomplying products; or

--Require some additional intervening action to be hazardous.

xiv. And, in analyzing some other product, there could be other

factors that would have to be taken into consideration in

determining what level of compliance is adequate to protect the

public. The tolerance for nonconformance levels has to bear some

relationship to the magnitude and manageability of the hazard

addressed.

xv. The Commission emphasizes that its decision is not based on

the argument that a mandatory rule provides more powerful

enforcement tools. If this were sufficient rationale, mandatory

rules could always displace voluntary standards, and this clearly

was not Congress's intent. But, with a mandatory standard, the

necessity of complying with a mandatory federal regulation will be

understandable to small manufacturers. State and local governments

will have no doubt about their ability to help us in our efforts to

locate these manufacturers.

C. The benefits expected from the rule bear a reasonable

relationship to its costs.

1. Bunk beds that do not comply with ASTM's requirements for

guardrails. The cost of providing a second guardrail for bunk beds

that do not have one is expected to be from $15-40 per otherwise

noncomplying bed. If, as expected, the standard prevents virtually

all of the deaths it addresses, the present value of the benefits of

this modification are estimated to be from $175-350 per otherwise

noncomplying bed. Thus, the benefit of this provision is about 4-23

times its cost.

2. Bunk beds that comply with ASTM's requirements for

guardrails. The voluntary standard allows up to a 15-inch gap in the

coverage of the guardrail on the wall side of the upper bunk.

Additional entrapment deaths are addressed by requiring that the

wall-side guardrail be continuous from one end of the bed to the

other. The estimated present value of the benefits of this

requirement will be $2.40 to $3.50 per otherwise noncomplying bed.

The Commission estimates that the materials cost to extend one

guardrail an additional 30 inches (760 mm) will be less than the

present value of the benefits of making the change. Further, the

costs of any design changes can be amortized over the number of bunk

beds produced after the design change is made. Thus, any design

costs are nominal.

3. Lower bunk end structures. The Commission is aware of a

death, involving entrapment in the end structures of the lower bunk,

occurring in a scenario not currently addressed by the voluntary

standard. This death is addressed by extending the upper limit of

the voluntary standard's lower bunk end structures entrapment

provisions from 9 inches above the lower bunk's sleeping surface to

the bottom of the upper bunk and by also including a test for neck

entrapment in this area. The Commission expects the costs of this

requirement to be design-related only, and small. Indeed, for some

bunk beds, material costs may decrease since less material may be

required to comply with these requirements than are currently being

used. Again, the design costs for these modifications to the end

structures can be amortized over the subsequent production run of

the bed.

4. Effect on market. The small additional costs from any wall-

side guardrail and end-structure modifications are not expected to

affect the market for bunk beds, either alone or added to the costs

of compliance to ASTM's provisions.

5. Conclusion. The Commission has no reason to conclude that any

of the standard's requirements have costs that exceed the

requirement's expected benefits. Further, the total effect of the

rule is that the benefits of the rule will exceed its costs by about

4-23 times. Accordingly, the Commission concludes that the benefits

expected from the rule will bear a reasonable relationship to its

costs.

D. The rule imposes the least burdensome requirement that

prevents or adequately reduces the risk of injury for which the rule

is being promulgated. 1. The Commission considered relying on the

voluntary standard, either alone or combined with a third-party

certification program. However, the Commission concludes that a

mandatory program will be more effective in reducing these deaths,

each of which is caused by an unreasonable risk of entrapment.

Accordingly, these alternatives would not prevent or adequately

reduce the risk of injury for which the rule is being promulgated.

2. The Commission also considered a suggestion that bunk beds

that conformed to the voluntary standard be so labeled. Consumers

could then compare conforming and nonconforming beds at the point of

purchase and make their purchase decisions with this safety

information in mind. This, however, would not necessarily reduce

injuries, because consumers likely would not know there is a

voluntary standard and thus would not see any risk in purchasing a

bed that was not labeled as conforming to the standard.

Dated: December 13, 1999.

Sayde E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 99-32676 Filed 12-21-99; 8:45 am]

BILLING CODE 6355-01-P