Bunk Beds; Notice of Proposed Rulemaking

Federal RegisterMar 3, 1999

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1213, 1500, and 1513

Bunk Beds; Notice of Proposed Rulemaking

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Consumer Product Safety Commission (``CPSC'' or

``Commission'') has reason to believe 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 notice proposes a rule mandating bunk bed performance

requirements to reduce this hazard. This rule would be 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 beds not intended for children. The Commission solicits

written comments and will provide an opportunity for oral comments from

interested persons.

DATE: Written comments in response to this notice must be received by

the Commission by May 17, 1999. The Commission will announce an

opportunity for oral presentations of comments in a separate Federal

ADDRESSES: Written comments, should be mailed, preferably in five

copies, to the Office of the Secretary, Consumer Product Safety

Commission, Washington, D.C. 20207-0001, or delivered to the Office of

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

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

also may be filed by telefacsimile to (301) 504-0127 or by email to

[email protected]. Written comments should be captioned ``NPR for Bunk

Beds.''

FOR FURTHER INFORMATION CONTACT: Concerning the substance of the

proposed rule: John Preston, Directorate for Engineering Sciences,

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

(301) 504-0494, ext. 1315.

SUPPLEMENTARY INFORMATION:

A. Background; History of Voluntary Standards Activities

Bunk beds have been long recognized as a potential source of

serious injury to children. In 1978, an Inter-Industry Bunk Bed Safety

Task Group developed a Bunk Bed Safety Guideline for voluntary use by

manufacturers and retailers of bunk beds intended for home use. Members

of this group included the National Association of Bedding

Manufacturers, the National Association of Furniture Manufacturers, the

Southern Furniture Manufacturers Association, and the National Home

Furnishings Association. The guideline became effective on January 1,

1979.

In February 1981, an American National Standard for Bedding

Products and Components (ANSI Z357.1) was published. For the most part,

this standard contained dimensional requirements for mattresses and

foundations for all beds. However, it also incorporated the

requirements of the January 1, 1979, industry safety guideline for bunk

beds. In May 1986, the American Furniture Manufacturer's Association

(``AFMA'') published Voluntary Bunk Bed Safety Guidelines developed by

the Inter-Industry Bunk Bed Committee (``IIBBC'').

On August 26, 1986, the Consumer Federation of America (``CFA'')

filed a petition with CPSC requesting the promulgation of a mandatory

safety regulation for bunk beds. In its petition, CFA cited three

different risks of injury posed by bunk beds: inadequate mattress

supports that can allow the mattress to fall to the bunk below or to

the floor, entrapment in the space between the guardrails and the

mattress, and entrapment between the bed and the wall. CFA alleged that

the voluntary industry guidelines did not fully address the hazards

posed to consumers.

In July 1988, AFMA published Revised Voluntary Bunk Bed Safety

Guidelines, with an effective date of April 1989. A majority of the

revisions were made as a result of CPSC staff comments on the May 1986

guidelines, which included comments that the requirements addressing

entrapment in openings in guardrails were not adequate and that bunk

beds should be required to be sold with two guardrails. To prevent

entrapment, the 1989 revised guidelines did require two guardrails to

accompany a bunk bed, and required that any opening in the structure of

the upper bunk be less than 3\1/2\ inches in width.

On July 21, 1988, the Commission voted to deny the petition filed

by the CFA, but directed its staff to prepare a letter to AFMA urging

that it reconsider the CPSC staff's comments that had not been included

in the Revised Voluntary Bunk Bed Safety Guidelines. That letter was

sent in August 1988. It also requested (a) that AFMA consider

additional staff recommendations, (b) that AFMA submit the revised

guidelines to a voluntary standards organization such as ANSI or ASTM

for development as a voluntary safety standard, and (c) that AFMA

develop, and provide to the Commission, a plan and proposed

implementation date for a certification program to ensure that bunk

beds comply with the guidelines. AFMA responded that a certification

program would be established upon publication of an ASTM bunk bed

standard.

In October 1992, ASTM published the Standard Consumer Safety

Specification for Bunk Beds, ASTM F1427-92, in response to the

Commission's August 1988 request. The performance requirements in that

standard primarily addressed falls from the upper bunk, entrapment in

the upper bunk structure or between the upper bunk and a wall, and

security of the foundation support system. The standard also had a

requirement for a warning label and for instructions to accompany the

bed. In June 1994, the ASTM bunk bed standard was republished with

additional provisions (requested by CPSC staff) to address collapse of

tubular metal bunk

[[Page 10246]]

beds. The most current version of the ASTM bunk bed standard was

published in September 1996 and contains additional revisions suggested

by CPSC staff. These address entrapment in lower-bunk end structures;

mattress size information on the warning label and carton; and the name

and address of the manufacturer, distributor, or seller on the bed. To

protect children from entrapment, the ASTM standard requires that:

There be guardrails on both sides of the upper bunk,

except for up to 15 inches at the ends of the bed;

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;

Openings in the end structures within a height of 9 inches

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

enough to prevent passage of a tapered block having a base measuring

3.5 inches by 6.2 inches or large enough to permit passage of a 9-inch

diameter sphere.

Despite these voluntary efforts, the Commission, over the last 4

years, has recalled over one-half million bunk beds that did not

conform to the entrapment requirements in the ASTM F1427-96 standard

(ASTM standard). Because of continued reports of deaths and other

incidents associated with bunk beds, and because of indications there

may 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.

63 FR 3280 (January 22, 1998). The Commission received 418 comments in

response to the ANPR.

B. Incident Data

Deaths

From January 1990 through October 23, 1998, CPSC received reports

of 89 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

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Hazard Pattern

Year Total -------------------------

Entrap. Hanging Falls

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Total................................. 89 57 24 8

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

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

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Source: CPSC data files, January 1990--October 1998.

Of the 89 fatalities, 57 (64%) resulted from entrapment. An

additional 24 children died when they inadvertently were hung from the

bed by such items as belts, ropes, clothing, and bedding, and eight

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 all but one were

younger than 5. In contrast, almost 80% (19 of 24) of those who died in

hanging incidents were age 6 and older. Eight fall-related deaths

occurred during this period and involved both pre-school and older

victims.

Using statistical methodology, a national estimate of the total

annual entrapment deaths was developed. About 10 bunk-bed-related

entrapment deaths are estimated to have occurred in the United States

each year since 1990.

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

Hazard Pattern

[January 1990-October 1998]

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

Hazard pattern

Age (years) Total -------------------------

Entrap. Hanging Falls

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

Total................................. 89 57 24 8

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

The number of injuries associated with bunk bed entrapment

are minimal [, and,]

For [its own] protection, a retailer would be required to

engage in [its] own testing, thereby dramatically increasing the price

[of a bunk bed] to the customer.

Response: While entrapment generally does not result in an injury

requiring medical attention, it is the leading cause of death

associated with bunk beds, and the proposed rule is primarily intended

to address entrapment fatalities. The Commission does not agree that a

mandatory rule would force retailers to incur the cost of having bunk

beds tested. If retailers are concerned that manufacturers may claim

conformance when in fact their products do not conform, the tests in

the proposed rule are simple enough that retailers easily could check

for conformance themselves.

5. Issue: Installation and bedding choice. The same furniture

retailer argues that a mandatory standard ignores major contributing

factors to bunk bed accidents, i.e., consumer installation and consumer

bedding choice.

Response: CPSC is not aware of any incidents resulting from

improper consumer assembly or from an incorrect choice of bedding.

6. Issue: Degree of voluntary conformance. A trade association and

the organization ``Consumer Alert'' question the legality of a

rulemaking proceeding in light of the Commission's estimate of the

current conformance to the ASTM standard.

Response: See Section D of this notice.

7. Third-party certification as an alternative. An independent

testing laboratory that currently operates a third-party certification

program stated that they believe that such a certification program

indicating conformance to the ASTM standard would be more productive

than a mandatory rule. The laboratory suggested that CPSC could

recognize the certification program and encourage manufacturers to join

it as CPSC presently does for seven juvenile products' certification

programs.

Response. The Commission does not believe that recognition of a

third-party certification program would have a significant effect on

the degree of conformance to the ASTM standard, because the firms that

have been found to be in violation of the entrapment provision in the

standard are small and are not likely to participate.

H. Preliminary Regulatory Analysis

Introduction

The CPSA and FHSA require the Commission to publish a preliminary

regulatory analysis of the proposed rule and reasonable alternatives.

This includes a discussion of the likely benefits and costs of the

proposed rule and its reasonable alternatives. The Commission's

preliminary regulatory analysis is set forth below.

Product and Market Information

Bunk beds are essentially stackable twin beds, with wood or metal

frames. Some models now incorporate a lower double bed with a twin

upper. The Commission notes that the definition of bunk bed in the

proposed rule is based on the definition in the ASTM standard. That

definition states that a bunk bed is a bed in which the underside of

the foundation is over 30 inches from the floor. This does not require

that there be a second stackable mattress and foundation. The

Commission requests comments on whether the rule should be limited to

beds with more than one foundation.

The retail prices of these products range from $100 to $700;

manufacturers estimate the average retail price of a bunk bed at $300.

According to AFMA, which represents manufacturers of bunk beds, forty

firms, which are either AFMA members or members of the existing ASTM

bunk bed subcommittee, account for about 75-80% of total annual sales

of bunk beds. At the time the ANPR was issued, the Commission knew of

106 manufacturers of bunk beds, including the 40 AFMA or ASTM members.

Staff is now aware of about 160 firms manufacturing bunk beds. The

share of the market accounted for by the other non-AFMA/ASTM firms is

not known, but is believed to account for a large portion of the

remaining 20-25% of the market. Additionally, there are likely other

firms unknown to CPSC that are producing bunk beds.

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

annually, and that the expected useful life of bunk beds is 13 to 17

years. Based on the CPSC's Product Population Model (a computer model

which estimates how many of a particular product are in use at a given

time), there may be some 7-9 million bunk beds available for use; this

includes beds to which children are not exposed and beds which are not

stacked.

Historically, imports have accounted for only a small part of the

U.S. market for bunk beds. This is due in large part to the shipping

cost relative to price. Since bunk beds can be shipped unassembled and

mated to U.S.-made mattresses, there is a small number of imported bunk

beds sold in the United States. AFMA spokesmen report that there are no

data on the extent of such imports. However, AFMA indicated that

imports of bunk beds by its members appear to be increasing.

Conformance With the Existing Voluntary Standard

The Commission's Compliance staff has reported that all 40 firms

that either are members of AFMA or have ASTM standing produce bunk beds

that are in conformance with the existing voluntary standard. The staff

has examined the products of and/or contacted the remaining firms known

to be producing bunk beds. Subsequently, the staff worked with the

manufacturers of beds that did not comply with the voluntary standard

to implement a number of corrective actions, including recalls. Since

then, all of the beds produced by these firms have been in conformance.

The extent of conformance to the voluntary bunk-bed standard since

1979 (the initial year industry guidelines were available) is not known

with precision. However, based on its knowledge of industry practices,

CPSC's Engineering Sciences staff estimates that roughly 50% of

production from 1979 to

[[Page 10252]]

1986 conformed to the voluntary standard's upper-bunk entrapment

requirements. This rough estimate is based in part on the fact that,

although the guidelines were available during this period, even some

firms represented on the ASTM standards committee did not follow them.

The industry publicized the availability of guidelines in 1986, and

CPSC staff became more heavily involved in the standards process. The

CPSC believes that the publication of these guidelines and CPSC staff

involvement raised industry awareness of the existence and importance

of the voluntary standard. Accordingly, conformance may have increased

to perhaps 75% of production from 1986 to 1992. In 1992, ASTM published

its bunk bed standard, and CPSC began to monitor products for

conformance to that standard. Therefore, for purposes of the cost/

benefit analysis, we assume that 90% of production since 1992 may

conform to the ASTM standard.

Many of the bunk beds produced in the early to mid-1980's, which

may not have been in conformance to the standard, have reached the end

of their average expected useful lives and are probably no longer in

use. Therefore, although the Commission cannot precisely estimate what

proportion of bunk beds in current use conforms to the voluntary

standard, the percentage likely falls between 50 and 90%. Assuming a

``conforming'' range between these extremes, on the order of from 70 to

85%, some 15 to 30% of bunk beds in use since the early 1990's do not

conform to the ASTM voluntary standard for upper bunk entrapment.

Potential Costs of Proposed Rule

(1) Introduction

The costs associated with the proposed rule would include the cost

of compliance for any firms not now conforming to the voluntary

standard, and the cost of any Commission-added requirements in the

final mandatory rule.

(2) Costs of Mandating ASTM's Requirements

In order to provide some preliminary information regarding these

costs, CPSC Economics staff contacted four manufacturers that had

modified their production to conform to the standard. Two of these

manufacturers stated that the cost of additional materials needed to

provide ASTM entrapment protection was nominal compared to the overall

materials costs, and that redesign costs would not be significant on a

per-unit basis. They estimated that the addition of a second guardrail

to the upper bunk added $15-20 to the retail price of a bed. The two

other manufacturers, marketing bunk beds in the ``mid to upper'' price

range, estimated that the addition of the second guardrail resulted in

a $30-40 per bed increase in the retail price. Thus, the overall retail

price increase range is estimated to be from $15 to $40 per bed. Only

those firms that do not conform to the voluntary standard would be

affected.

Potential Benefits of Mandating ASTM's Requirements

The proposed rule is intended to address the risk of entrapment

deaths of children from bunk beds. The potential benefits would be the

decrease in these entrapment deaths. Avoidance of other incidents (such

as near-entrapments) do not contribute significantly to the monetized

benefits, because they generally produce no or only minor injuries. All

of the known deaths involved children age 7 or younger.

The expected societal costs of bunk bed entrapment deaths represent

the potential benefits of preventing them. There were 39 entrapment

deaths associated with the upper bunk that were reported to the CPSC

from January 1990 through mid-October 1998. Based on a review of the

circumstances of the reports by the CPSC's Engineering and Epidemiology

staff, the Commission concludes that the voluntary standard would have

addressed at least 37 of the 39 upper-bunk entrapment deaths.

Additionally, the standard would have addressed two of the three lower-

bunk entrapment deaths that occurred in the bed end structures.

Nationally, CPSC staff projected that about 10 (95% confidence

interval, 6.0 to 14.4) bunk bed entrapment fatalities occurred annually

since 1990. Altogether, the Commission believes that the voluntary

standard would have addressed 68% of the reported fatalities due to

entrapment in all locations (39 57). Therefore, the voluntary

standard could have addressed an estimated 7 deaths (10 x .68) per

year.

In order to determine the expected benefits of the proposed rule,

it is necessary to know the risk of death through bunk bed entrapment,

defined as ``deaths per nonconforming bunk bed,'' and the expected

reduction in risk. The risk level computation requires information on

the number of bunk beds that were in use over the period of reported

fatalities. The risk reduction factor depends on the effectiveness

level of the standard.

The midpoint of the estimated number of bunk beds in use is 8

million units. If 15-30% of bunk beds that were in use did not conform

to the standard, as estimated above, then fatalities may be assumed to

have been spread over an estimated 1.2 to 2.4 million nonconforming

beds (0.15 to 0.30, x 8 million). Therefore, the risk of a fatal

entrapment that the voluntary standard's provisions could address is

from 2.9 to 5.8 deaths per million nonconforming beds (72.4 to

71.2). At an assumed societal cost of $5 million per death, the

annual societal value of averting all such fatalities is from about $15

to $30 per bed per year (3 deaths per million nonconforming beds x $5

million, at the lower end of the range, to 6 deaths per million

beds x $5 million, at the upper end).

If we assume a useful life of 15 years for a bunk bed and a

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

entrapment fatalities addressed by the voluntary standard ranges from

about $175 to $350 per bed. This is the total potential benefit of

averting the risk of death from a nonconforming bed over its useful

life.

Comparison of Costs and Benefits of Compliance With ASTM's Requirements

The expected net benefits of a mandatory standard containing only

the entrapment provisions of the ASTM standard depend upon the costs of

the standard for each otherwise noncomplying bed ($15 to $40), the

societal costs of the deaths addressed by the standard for each

noncomplying bed ($175 to $350), and the effectiveness of the standard

in reducing deaths. If the standard were fully effective (i.e., if it

prevents all of the deaths addressed), the benefits would be much

higher than the costs of implementing the standard. In fact, the net

benefits per otherwise noncomplying bed, over its expected product

life, would range from a low of $135 ($175-$40) to a high of $335

($350-$15). Thus, the benefits of these provisions are about 4-23 times

their costs. CPSC's Engineering staff has concluded that all of the

entrapment incidents addressed by the requirements of the proposed

standard would have been averted had those beds been in conformance.

Thus, a mandatory standard is expected to be highly effective.

The number of nonconforming bunk beds produced annually is not

known with precision. Industry sources estimated that there may be as

many as 50,000 nonconforming units produced each year. If this estimate

is used, the net benefits to society of the proposed rule (if fully

effective and all non-conforming beds were made to comply) would be

about $6.75 to $16.75 million per year (50,000 x $135 to

50,000 x $335).

[[Page 10253]]

If the standard were less than 100% effective, or if all nonconforming

beds were not made to comply, the aggregate expected benefits would be

proportionately less.

Costs and Benefits of Additional Requirements

As discussed below, the Commission is also aware of entrapment

deaths on the upper bunk and lower bunk, in scenarios not addressed by

the voluntary standard. To address these deaths, the proposed mandatory

standard includes requirements for a continuous guardrail for the

entire wall side of the upper bunk, and modifications of the lower bunk

structure. CPSC staff concluded that these modifications would have

averted these remaining entrapment deaths.

(a) Continuous guardrail. The Commission is proposing a requirement

for a continuous guardrail along the entire wall side of the bed; the

current voluntary standard allows a 15-inch gap at either end of the

wall side guardrail. The continuous guardrail would address two

entrapment deaths that occurred between the bed and the wall in the

area of a gap in the guardrail during the 105-month study period of

January 1990 through mid-October 1998. This should prevent about 0.23

deaths per year (28.75 years).

Trade sources indicated that perhaps 50-75% of all bunk beds in use

during the January 1990-May 1998 period contained this gap; if this

percentage range is used, then some 4-6 million beds with the gap would

have been in use for each of the years in the study period.

Consequently, over that period of time, there were from 0.04 deaths per

million nonconforming beds per year (0.236) to 0.06 deaths per

million nonconforming beds per year (0.234). Assuming a cost of

$5 million per death, the staff estimated the present value of

eliminating these gaps at $2.40 to $3.50 over the life of each bed that

otherwise would have had a gap in the wall-side guardrail.

The precise cost of eliminating the allowance of a 15-inch gap in

the guardrail for the wall side of the upper bunk is unknown. However,

the Commission estimates that the cost of materials to extend one

guardrail an additional 30 inches (for those bunk beds which

incorporated up to a 15-inch gap on both ends of the wall-side

guardrail) would be less than the estimated benefits ($2.40 to $3.50

per noncomplying bed).

(b) Lower bunk end structures. The Commission is aware of one death

over the past 8 years involving entrapment in the end structures of the

lower bunk, occurring in a scenario not currently addressed by the

voluntary standard. Addressing this death would result in costs

associated with redesigning the bed so that the end structures will not

allow the free passage of a wedge block (approximating the size of a

child's body) unless it also allows the free passage of a 9-inch sphere

(approximating the child's head). The precise potential cost of

reconfiguring the bunk end structures is unknown, since the Commission

does not know how many models would require such rework. Based on some

known noncomplying beds, however, the Commission believes that, for

some bunk beds, materials costs may decrease since less material may be

required to comply with these requirements than are currently being

used. Thus, the Commission expects the costs of this requirement to be

design-related. Costs to redesign the end structures, where necessary,

will be modest and, in any event, can be amortized over the total

subsequent production of the beds. If these one-time design costs are

amortized over the entire production run for these bunks, the estimated

costs are likely to be small. Therefore, the major portion of the costs

imposed by the rule will fall only on those firms that do not currently

comply with the voluntary standard.

wall 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 provision.

Alternatives. The Commission considered two alternatives to the

proposed rule.

(a) Defer to the voluntary standard. One alternative to a mandatory

rule would be to decide that a mandatory regulation is not necessary,

because the current standard addresses about 70% of reported entrapment

hazards over the past 8 years. If there is no mandatory action, then no

costs would be imposed and no deaths would be averted involving future

nonconforming bunk beds.

A variation on this alternative was raised by a commenter, who

suggested that bunk beds which conform to the voluntary standard should

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 do 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.

(b) Third-party certification. The Commission could have decided to

defer to the voluntary standard and, in addition, to encourage third-

party testing to the ASTM standard.

This alternative also would not likely prevent the deaths from

entrapment that could be prevented by a mandatory rule. Firms that are

too small and regional to appreciate the importance of complying with

the voluntary standard are unlikely to volunteer to obtain third-party

certification that their products comply with that standard. In

addition, the costs of third-party certification would deter many small

firms from using this alternative. Furthermore, small firms especially

might be reluctant to pay for third-party certification when compliance

with the entrapment provisions of the voluntary standard can easily be

determined by the manufacturer.

I. Regulatory Flexibility Act

The Commission is required by the Regulatory Flexibility Act of

1980 (``RFA'') to address and give particular attention to the economic

effects of the proposed rule on small businesses.

The precise number of firms manufacturing bunk beds is not now

known. The Commission staff has identified about 160 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

(``SBA'') guidelines classify firms in the furniture production

industry as small if they have less than 500 employees, are

independently owned, and are not dominant in the field. Most of these

firms would be classified as small businesses under SBA's criteria. It

is likely that there are additional firms which produce relatively

small numbers of bunk beds annually. 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, all of the 160 firms identified by the

Commission already conform to the existing voluntary standard (some

only after CPSC recall activity). Moreover, it is unlikely that the

effects on any firms that have not been identified and that do not

currently conform would be significant. For firms not conforming, the

requirements are expected to increase

[[Page 10254]]

retail prices by about 5 to 15%, which likely would be passed on to

consumers.

The mandatory standard would not require third-party testing. It is

anticipated that the firms would self-certify that their products were

in compliance with the mandatory standard. There would be no reporting

or recordkeeping requirements under the proposed standard. The

Commission is unaware of any Federal rules that would duplicate, or

overlap or conflict with, the proposed rule.

J. Preliminary Environmental Assessment

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

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

the number of units discarded after the rule becomes effective.

Therefore, no significant environmental effects would result from the

proposed mandatory rule for bunk beds.

K. Executive Orders

This proposed rule has been evaluated in accordance with Executive

Order No. 13,083, and the rule raises no substantial federalism

concerns.

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 is 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.

L. Extension of Time To Issue Final Rule Under the CPSA

Section 9(d)(1) of the CPSA, 15 U.S.C. 2058(d)(1), provides that a

final consumer product safety rule must be published within 60 days of

publication of the proposed rule unless the Commission extends the 60-

day period for good cause and publishes its reasons for the extension

in the Federal Register.

Executive Order No. 12,662, which implements the United States-

Canada Free-Trade Implementation Act, provides that publication of

standards-related measures shall ordinarily be at least 75 days before

the comment due date. Accordingly, the Commission provided a comment

period of 75 days for this proposal.

After the comment period ends, the CPSC's staff will need to

prepare draft responses to the comments, along with a draft regulatory

analysis and either a draft regulatory flexibility analysis or a draft

finding of no substantial impact on a significant number of small

entities. Then the staff will prepare a briefing package for the

Commission. The Commission is likely to then be briefed, and will later

vote on whether to issue a final rule. The Commission expects that this

additional work will take about 12 months. Accordingly, the Commission

extends the time by which it must either issue a final CPSA rule or

withdraw the NPR until March 3, 2000. If necessary, this date may be

further extended.

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

Consumer protection, Infants and children.

Effective Date

The Commission proposes that the rule become effective 180 days

after publication of the final rule. This period will allow

manufacturers to make any changes in their production needed to comply

with the standard without unduly delaying the safety benefits expected

from the rule.

For the reasons set out in the preamble, the Commission proposes to

amend 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.

Figure 1 to Part 1213--Wedge Block for Tests

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

Sec. 1213.1 Scope, application, and effective date.

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. The standard in this part applies to all bunk beds sold for

residential use that are manufactured in the United States, or

imported, after [the effective date of the final rule]. 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:

(a) Bed. See Bunk bed.

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

the bed to which the side rails attach.

is over 30 inches (760 mm) from the floor.

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

(e) 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.

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

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structures. 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.

(3) 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.

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

without either intentionally releasing a fastening device or applying

forces sequentially in different directions.

(5) 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.

(6) 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 Fig. 1 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 Fig. 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 Fig. 1, unless the openings are also large enough to permit the free

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

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

adverse orientation. Determine if the wedge block can pass freely

through the opening.

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

in Fig. 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.

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.

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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) of

this standard 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.

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).

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

[effective date of final rule]) is reasonably necessary to eliminate or

reduce an unreasonable risk of injury associated with the product. (1)

For a recent 8.75-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 end 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 section, 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 section, the Commission finds

that promulgation of the rule is in the public interest.

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 this

section, have benefits that bear a reasonable relationship to their

costs. Furthermore, the absence of any identification of the

manufacturer on many beds has resulted in extremely low recall

effectiveness rates. The standard requires that the name and address of

the manufacturer, distributor, or retailer be on the beds.

(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.'' In dealing with this issue as it

applies to bunk beds, the Commission concludes that substantial

compliance does not exist where a mandatory rule would achieve a higher

degree of compliance. Two key, although not necessarily exclusive,

considerations in making this determination are whether, as complied

with, the voluntary standard would achieve virtually the same degree of

injury reduction that a mandatory standard would achieve and whether

the injury reduction will be achieved in a timely manner.

(ii) The Commission has 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

small number of 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.

(iii) These generalizations about the industry are supported by the

CPSC's staff's enforcement experience. Some manufacturers contacted by

CPSC's Compliance staff 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, entrapment hazards would continue to

exist on beds, in use and for sale, in the absence of a mandatory

standard.

(iv) A mandatory standard will also reduce the staff's workload in

ensuring that children are not exposed to bunk beds presenting

entrapment hazards. In the several years before issuance of this rule,

the staff expended significant

[[Page 10257]]

resources to obtain the then-current level of conformance to the

voluntary standard. The Commission believes that fewer resources will

be required to enforce the mandatory standard than were previously used

to identify defective bunk beds.

(v) For these reasons, the Commission believes that a mandatory

bunk bed entrapment standard is needed. This mandatory standard is

expected to bring the following benefits:

(A) A mandatory standard should 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.

(B) A mandatory standard allows the Commission to seek penalties

for violations. Publicizing fines for noncompliance with a mandatory

standard would deter other manufacturers from making noncomplying beds.

CPSC staff in identifying noncomplying bunk beds and to take action to

prevent the sale of these beds.

(D) Under a mandatory standard, retailers and distributors violate

the law if they sell noncomplying bunk beds. For that reason, retailers

and retail associations will insist that manufacturers and importers

provide complying bunk beds.

(E) The bunk bed industry is extremely competitive. Manufacturers

who now conform to the voluntary 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.

(F) A mandatory standard will help prevent noncomplying beds made

by foreign manufacturers from entering the United States. CPSC could

use the resources of U.S. Customs to assist in stopping hazardous beds

at the docks.

(3) Therefore, there is not substantial compliance with the

voluntary standard. (This does not mean that the Commission would

conclude that a mandatory standard will always be more effective than a

voluntary standard. Each case must be considered on its own facts.)

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

relationship to its costs. (1) Compliance with ASTM's requirements. 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) Providing a continuous guardrail. 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 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. 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 this modification 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

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 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 will 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. 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 section, no alternatives to a

mandatory rule were 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.

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

(c).

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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--(A) General. 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 certain findings and to include these findings in

the regulation. These findings are discussed in paragraphs (a)(18)(B)

through (D) of this section.

(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