[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71888-71915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32676]
[[Page 71887]]
_______________________________________________________________________
Part III
Consumer Product Safety Commission
_______________________________________________________________________
16 CFR Parts 1213, 1500, and 1513
Safety Standard for Bunk Beds; Final Rule
Federal Register / Vol. 64, No. 245 / Wednesday, December 22, 1999 /
Rules and Regulations
[[Page 71888]]
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1213, 1500, and 1513
Safety Standard for Bunk Beds
AGENCY: Consumer Product Safety Commission.
ACTION: Final rules.
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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 pmajor@cpsc.gov.
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
------------------------------------------------------------------------
<1.................................... 18="" 16="" 1="" 1="" 1.....................................="" 20="" 19="" 1="" ......="" 2.....................................="" 16="" 13="" 2="" 1="" 3.....................................="" 8="" 7="" .......="" 1="" 4.....................................="" 4="" 1="" 1="" 2="" 5.....................................="" 1="" .......="" 1="" ......="" 6.....................................="" 3="" .......="" 3="" ......="" 7.....................................="" 3="" 1="" \1\="" 2="" ......="" 8.....................................="" 2="" .......="" 2="" ......="" 9.....................................="" 3="" .......="" 2="" 1="" 10+...................................="" 13="" .......="" 10="" 3="" ---------------------------------="" total...............................="" 91="" 57="" 25="" 9="" ------------------------------------------------------------------------="" source:="" cpsc="" data="" files,="" january="" 1990-august="" 9,="" 1999.="" \1\="" child="" was="" blind="" and="" confined="" to="" upper="" bunk="" by="" removal="" of="" the="" ladder.="" using="" statistical="" methodology="" (capture-recapture),="" about="" 10="" bunk-="" bed-related="" entrapment="" deaths="" are="" estimated="" to="" have="" occurred="" in="" the="" united="" states="" each="" year="" since="" 1990.="" injuries="" from="" hospital="" emergency="" room="" data="" reported="" through="" the="" national="" electronic="" injury="" surveillance="" system="" (neiss),="" the="" commission="" estimates="" that="" about="" 34,300="" bunk-bed-related="" injuries="" to="" children="" under="" the="" age="" of="" 15="" were="" treated="" in="" u.s.="" hospital="" emergency="" rooms="" during="" 1998.="" forty-="" one="" percent="" of="" the="" victims="" were="" younger="" than="" 5="" years.="" a="" review="" of="" the="" descriptive="" comments="" received="" for="" each="" injury="" revealed="" that="" falls="" from="" the="" bed="" were="" involved="" in="" a="" majority="" of="" the="" incidents.="" there="" were="" a="" few="" reports="" of="" limb="" entrapment="" incidents,="" and="" one="" incident="" involved="" a="" 2-="" year-old="" male="" who="" was="" found="" hanging="" from="" a="" bunk="" bed="" with="" a="" sheet="" wrapped="" around="" his="" neck;="" he="" was="" admitted="" to="" the="" hospital="" with="" a="" head="" injury.="" entrapment="" incidents="" the="" commission="" reviewed="" entrapment-related="" incidents,="" which="" accounted="" for="" the="" majority="" of="" deaths,="" in="" further="" detail="" to="" obtain="" additional="" information="" about="" the="" circumstances="" involved.="" both="" fatal="" and="" ``near-miss''="" incidents="" were="" included.="" the="" ``near-miss''="" incidents,="" usually="" reported="" through="" consumer="" complaints,="" were="" those="" in="" which="" a="" child="" became="" entrapped="" in="" the="" bed,="" often="" requiring="" rescue="" by="" the="" parent="" or="" caregiver.="" in="" these="" cases,="" there="" were="" generally="" no="" injuries="" or="" injuries="" were="" minor="" (contusions/abrasions).="" however,="" the="" commission="" examined="" ``near-miss''="" incidents="" because="" they="" have="" the="" potential="" for="" death="" or="" serious="" injury.="" there="" were="" 122="" entrapment="" incidents="" from="" january="" 1990="" through="" august="" 9,="" 1999,="" of="" which="" 57="" were="" fatalities="" and="" 65="" were="" ``near-="" misses.''="" table="" 3="" illustrates="" the="" location="" in="" the="" bunk="" bed="" where="" the="" child="" was="" entrapped.="" table="" 3.--location="" in="" bunk="" bed="" of="" fatal="" and="" ``near-miss''="" entrapment="" incidents="" ------------------------------------------------------------------------="" type="" of="" incident="" ------------------------="" location="" of="" entrapment="" near-="" total="" fatal="" miss="" ------------------------------------------------------------------------="" top="" bunk.......................................="" 77="" 39="" 38="" guardrail..................................="" 51="" 27="" 24="" bed/wall...................................="" 11="" 9="" 2="" end="" structure..............................="" 12="" 1="" 11="" add-on="" rail................................="" 1="" 1="" 0="" other......................................="" 1="" 0="" 1="" unknown....................................="" 1="" 1="" 0="" bottom="" bunk....................................="" 27="" 12="" 15="" guardrail..................................="" 1="" 0="" 1="" bed/wall...................................="" 6="" 6="" 0="" end="" structure..............................="" 14="" 3="" 11="" add-on="" rail................................="" 2="" 2="" 0="" other......................................="" 4="" 1="" 3="" ladder.........................................="" 7="" 2="" 5="" unknown="" bunk...................................="" 11="" 4="" 7="" guardrail..................................="" 2="" 0="" 2="" bed/wall...................................="" 1="" 1="" 0="" end="" structure..............................="" 4="" 0="" 4="" ``safety="" rails''...........................="" 1="" 1="" 0="" other......................................="" 1="" 0="" 1="" unknown....................................="" 2="" 2="" 0="" ------------------------="" total..................................="" 122="" 57="" 65="" ------------------------------------------------------------------------="" source:="" cpsc="" data="" files,="" january="" 1990--august="" 9,="" 1999.="" based="" on="" a="" review="" of="" the="" 57="" bunk="" bed="" entrapment="" deaths,="" the="" commission="" concludes="" that="" 39="" deaths="" could="" have="" been="" prevented="" if="" the="" beds="" had="" conformed="" to="" the="" current="" astm="" standard="" and="" that="" 42="" could="" have="" been="" prevented="" by="" the="" commission's="" bunk="" bed="" rules.="" of="" the="" three="" incidents="" that="" occurred="" in="" bunk="" beds="" conforming="" to="" the="" astm="" standard,="" two="" involved="" entrapment="" in="" the="" upper="" bunk.="" in="" these="" separate="" incidents,="" an="" 18-month-old="" infant="" and="" a="" child="" who="" was="" almost="" 5="" years="" old="" slipped="" through="" the="" space="" between="" the="" end="" of="" the="" guardrail="" and="" the="" end="" structure="" of="" the="" bed="" and="" became="" wedged="" between="" the="" bed="" and="" a="" wall.="" in="" the="" third="" incident,="" a="" 22-month-old="" child="" became="" entrapped="" by="" the="" head="" in="" an="" opening.="" the="" opening="" was="" between="" the="" underside="" of="" the="" upper="" bunk="" foundation="" [[page="" 71890]]="" support="" and="" a="" curved="" structural="" member="" in="" the="" bunk="" bed="" end="" structure.="" c.="" the="" rule's="" requirements="" the="" final="" rule="" defines="" a="" bunk="" bed="" as="" any="" bed="" in="" which="" the="" underside="" of="" any="" foundation="" is="" over="" 30="" inches="" from="" the="" floor.="" any="" bunk="" bed="" shall="" provide="" at="" least="" two="" upper="" bunk="" guardrails,="" at="" least="" one="" on="" each="" side="" of="" the="" bed.="" one="" guardrail="" shall="" be="" continuous="" between="" each="" of="" the="" bed's="" end="" 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="" structure.="" 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.="" guardrails="" shall="" be="" attached="" so="" that="" they="" cannot="" be="" removed="" without="" either="" intentionally="" releasing="" a="" fastening="" device="" or="" applying="" forces="" sequentially="" in="" different="" directions.="" there="" has="" been="" some="" question="" about="" how="" to="" interpret="" the="" requirement="" that="" the="" guardrail="" shall="" be="" ``continuous''="" between="" the="" end="" structures.="" the="" commission="" will="" tolerate="" a="" gap="" between="" the="" guardrail="" and="" end="" structure="" of="" up="" to="" 0.22="" inches="" (so="" as="" to="" not="" cause="" a="" finger="" entrapment="" hazard="" for="" a="" child).="" moreover,="" the="" guardrail="" need="" not="" necessarily="" be="" fastened="" to="" the="" end="" structure="" (as="" by="" bolting="" or="" welding).="" 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.="" the="" commission="" does="" not="" intend="" for="" this="" requirement="" to="" prohibit="" designs="" where="" the="" wall-side="" guardrail="" terminates="" in="" a="" quarter-="" circle="" bend="" and="" attaches="" to="" the="" side="" rail="" of="" the="" upper="" bunk="" foundation.="" 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="" (representing="" a="" child's="" torso)="" shown="" in="" figure="" 1="" of="" parts="" 1213="" and="" 1513.="" 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.="" 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="" of="" parts="" 1213="" and="" 1513.="" 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="" (representing="" a="" child's="" head).="" in="" order="" to="" protect="" against="" head-first="" entrapment="" in="" a="" bed's="" end="" structure,="" the="" commission's="" staff="" developed="" a="" test="" procedure="" using="" the="" template="" shown="" in="" figure="" 2="" of="" parts="" 1213="" and="" 1513.="" this="" template="" and="" procedure="" are="" similar="" to="" those="" that="" were="" developed="" to="" address="" neck="" entrapment="" hazards="" in="" playground="" equipment="" structures="" and="" that="" are="" specified="" in="" astm="" f="" 1487-98,="" ``standard="" specification="" for="" playground="" equipment="" for="" public="" use.''="" the="" astm="" standard="" for="" bunk="" beds="" does="" not="" contain="" a="" comparable="" provision.="" any="" portion="" of="" an="" opening="" in="" the="" bed's="" end="" structure="" below="" the="" foundation="" of="" the="" upper="" bunk="" that="" is="" required="" to="" be="" probed="" by="" the="" wedge-block="" probe="" shown="" in="" figure="" 1="" of="" parts="" 1213="" and="" 1513,="" and="" that="" will="" allow="" free="" passage="" of="" a="" 9-inch="" diameter="" sphere,="" must="" satisfy="" the="" new="" neck="" entrapment="" provisions="" in="" the="" rules.="" the="" template="" of="" figure="" 2="" embodies="" the="" following="" principles.="" first,="" a="" child="" will="" not="" be="" able="" to="" insert="" his="" or="" her="" neck="" sideways="" into="" an="" opening="" of="" less="" than="" 1.88="" inches.="" (this="" dimension="" represents="" the="" neck="" breadth="" of="" 2.5="" inches="" for="" a="" 5th="" percentile="" 2-year-old="" child,="" minus="" an="" allowance="" of="" 0.62="" inches="" for="" tissue="" compression.)="" second,="" there="" is="" a="" minimal="" likelihood="" of="" entrapment="" when="" the="" boundaries="" of="" an="" opening="" converge="" on="" the="" neck="" at="" an="" included="" angle="" of="" greater="" than="" 75="" deg..="" see="" cpsc="" memorandum="" from="" shelley="" waters="" deppa="" to="" john="" preston,="" ``voluntary="" standards="" for="" gates="" and="" enclosures,''="" january="" 15,="" 1985.="" this="" angle="" was="" chosen="" because="" it="" is="" slightly="" larger="" than="" the="" angles="" involved="" in="" neck="" entrapment="" accidents="" with="" baby="" gates="" and="" expandable="" enclosures.="" in="" addition,="" in="" some="" boundary="" configurations,="" a="" child="" who="" slips="" while="" his/her="" head="" is="" in="" the="" opening="" will="" be="" removed="" from="" the="" opening="" by="" the="" force="" of="" gravity.="" in="" the="" final="" rule,="" an="" opening="" that="" indicates="" a="" neck="" entrapment="" potential="" when="" tested="" with="" the="" template="" of="" figure="" 2="" is="" nevertheless="" allowed="" if="" 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.="" the="" template="" is="" used="" to="" protect="" against="" head-first="" entrapment="" as="" follows.="" first,="" all="" portions="" of="" the="" boundary="" of="" the="" opening="" are="" probed="" with="" the="" ``a''="" section="" of="" the="" test="" template="" of="" figure="" 2.="" the="" template="" is="" inserted="" into="" the="" opening,="" with="" the="" plane="" of="" the="" template="" in="" the="" plane="" of="" the="" opening="" and="" with="" the="" ``top''="" of="" the="" template="" perpendicular="" to="" the="" centerline="" of="" the="" portion="" of="" the="" boundary="" being="" probed.="" (it="" may="" be="" necessary="" to="" detach="" the="" ``b''="" section="" of="" the="" template="" to="" fit="" the="" ``a''="" section="" into="" the="" opening.)="" the="" ``a''="" section="" of="" the="" template="" is="" then="" moved="" along="" the="" centerline="" of="" the="" portion="" of="" the="" boundary="" being="" probed="" until="" it="" is="" stopped="" by="" contact="" with="" the="" boundaries="" of="" the="" opening="" (see="" figure="" 3="" of="" parts="" 1213="" and="" 1513).="" if="" there="" is="" simultaneous="" contact="" between="" the="" boundary="" of="" the="" opening="" and="" both="" sides="" of="" the="" ``a''="" section="" of="" the="" template,="" the="" boundary="" is="" converging="" on="" a="" potential="" neck="" entrapment="" point="" at="" an="" angle="" of="" less="" than="" 75="" deg.,="" and="" further="" investigation="" is="" required.="" (contact="" at="" an="" upper="" corner="" of="" the="" template,="" as="" shown="" in="" figure="" 2,="" is="" not="" considered="" to="" be="" contact="" with="" a="" ``side.'')="" to="" check="" further="" for="" the="" potential="" for="" neck="" entrapment,="" place="" the="" neck="" portion="" of="" the="" ``b''="" section="" of="" the="" template="" into="" the="" opening,="" with="" the="" template's="" plane="" perpendicular="" to="" both="" the="" plane="" of="" the="" opening="" and="" the="" centerline="" of="" the="" opening="" (see="" figure="" 4="" of="" parts="" 1213="" and="" 1513).="" if="" the="" neck="" portion="" can="" completely="" enter="" the="" opening="" (pass="" 0.75="" inch="" or="" more="" beyond="" the="" points="" where="" contact="" with="" the="" sides="" of="" the="" ``a''="" section="" of="" the="" template="" occurred),="" the="" opening="" may="" present="" a="" neck="" entrapment="" hazard.="" such="" an="" opening="" is="" not="" allowed="" unless="" the="" lower="" boundary="" of="" the="" opening="" slopes="" downward="" at="" 45''="" or="" more="" for="" the="" whole="" distance="" from="" the="" narrowest="" part="" of="" the="" opening="" the="" neck="" can="" reach="" to="" the="" larger="" (greater="" than="" 9-inch)="" part="" of="" the="" opening.="" 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.="" 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="" 71891]]="" [graphic]="" [tiff="" omitted]="" tr22de99.000="" billing="" code="" 6355-01-c="" 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.="" d.="" the="" astm="" standard="" the="" entrapment="" requirements="" in="" the="" final="" rules="" being="" issued="" are="" identical="" to="" those="" in="" the="" astm="" standard,="" with="" the="" following="" exceptions.="" 1.="" definition="" of="" bunkbed:="" in="" the="" astm="" standard,="" a="" bunk="" bed="" is="" defined="" as="" a="" bed="" in="" which="" the="" underside="" of="" the="" foundation="" is="" over="" 35="" inches="" from="" the="" floor,="" rather="" than="" the="" 30="" inches="" in="" the="" final="" rule.="" neither="" of="" these="" definitions="" requires="" that="" there="" be="" two="" separate="" sleeping="" surfaces.="" 2.="" guardrails:="" the="" final="" rule="" provides="" that="" one="" guardrail="" (the="" wall="" side)="" shall="" be="" continuous="" between="" the="" bed's="" end="" structures.="" the="" other="" guardrail="" may="" terminate="" before="" reaching="" the="" bed's="" end="" structures,="" providing="" there="" is="" no="" more="" than="" 15="" inches="" between="" either="" end="" of="" the="" guardrail="" and="" the="" nearest="" bed="" end="" structure.="" the="" current="" astm="" standard="" permits="" both="" guardrails="" to="" end="" 15="" inches="" from="" the="" nearest="" bed="" end="" structure.="" compared="" to="" the="" final="" rule,="" this="" permits="" two="" areas="" where="" a="" child="" could="" become="" entrapped="" between="" the="" bed="" and="" the="" wall.="" 3.="" bunk="" end="" structures:="" (a)="" the="" final="" rule="" provides="" that="" there="" shall="" be="" no="" openings="" in="" the="" end="" structures="" between="" the="" underside="" of="" the="" foundation="" of="" the="" upper="" bunk="" and="" the="" upper="" side="" of="" the="" foundation="" of="" the="" lower="" bunk="" that="" will="" permit="" the="" free="" passage="" of="" the="" wedge="" block="" shown="" in="" figure="" 1="" (representing="" a="" child's="" torso)="" unless="" the="" openings="" are="" also="" large="" enough="" to="" permit="" the="" free="" passage="" of="" a="" 9-inch="" diameter="" sphere="" (to="" ensure="" the="" head="" can="" also="" pass="" through).="" in="" the="" astm="" standard,="" these="" passage="" requirements="" apply="" only="" to="" that="" portion="" of="" the="" end="" structure="" that="" is="" between="" the="" level="" of="" the="" lower="" bunk="" foundation="" support="" system="" and="" 9.0="" inches="" (230="" mm)="" above="" the="" sleeping="" surface="" of="" the="" maximum="" thickness="" mattress="" and="" foundation="" combined="" as="" recommended="" by="" the="" manufacturer.="" during="" 1999,="" there="" were="" three="" meetings="" of="" the="" astm="" subcommittee="" at="" which="" changes="" to="" the="" astm="" standard="" were="" voted="" upon="" or="" discussed.="" the="" following="" discussion="" describes="" how="" these="" potential="" changes="" relate="" to="" how="" close="" the="" voluntary="" standard="" might="" have="" ultimately="" resembled="" the="" final="" rules="" if="" they="" were="" not="" now="" being="" issued="" by="" the="" commission.="" the="" astm="" subcommittee="" approved="" a="" motion="" to="" define="" a="" bunk="" bed="" as="" a="" bed="" in="" which="" the="" underside="" of="" the="" foundation="" is="" over="" 30="" inches="" from="" the="" floor,="" as="" in="" the="" mandatory="" rule.="" after="" discussing="" the="" meaning="" of="" the="" term="" ``continuous="" guardrail,''="" the="" subcommittee="" approved="" a="" revision="" that="" would="" require="" one="" guardrail="" on="" the="" upper="" bunk="" to="" terminate="" no="" greater="" than="" 1.5="" inches="" from="" the="" end="" structures,="" as="" opposed="" to="" the="" proposed="" requirement="" that="" the="" guardrail="" be="" continuous="" between="" the="" end="" structures.="" as="" noted="" above,="" the="" 1.5="" inch="" space="" approved="" by="" the="" subcommittee="" would="" not="" comply="" with="" the="" final="" rule's="" requirement="" that="" the="" wall-side="" guardrail="" be="" continuous="" between="" the="" end="" structures.="" the="" revision="" approved="" by="" the="" astm="" subcommittee="" also="" clarified="" that="" the="" 15-inch="" space="" between="" the="" ends="" of="" the="" other="" upper="" bunk="" guardrail="" must="" be="" measured="" 5="" inches="" above="" the="" sleeping="" surface="" of="" the="" maximum="" thickness="" mattress="" specified.="" this="" clarification="" agrees="" with="" the="" final="" rule.="" in="" addition,="" the="" subcommittee="" approved="" a="" change="" to="" the="" instructions="" that="" must="" accompany="" a="" bunk="" bed="" to="" inform="" consumers="" that="" a="" bunk="" bed="" placed="" adjacent="" to="" a="" wall="" must="" have="" the="" continuous="" guardrail="" on="" the="" wall-side="" of="" the="" bed.="" this="" requirement="" agrees="" with="" the="" final="" rule.="" the="" astm="" subcommittee="" voted="" to="" expand="" the="" current="" entrapment="" requirements="" to="" include="" the="" entire="" end="" structure="" between="" the="" level="" of="" the="" upper="" and="" lower="" bunk="" foundation="" support="" systems,="" as="" provided="" in="" the="" final="" rule.="" further,="" it="" did="" not="" oppose="" adding="" a="" neck="" entrapment="" requirement="" to="" the="" astm="" standard.="" however,="" the="" members="" present="" questioned="" the="" need="" for="" a="" 75="" deg.="" angle="" on="" the="" test="" probe,="" when="" a="" 55="" deg.="" angle="" on="" a="" similar="" probe="" in="" the="" astm="" public="" playground="" equipment="" standard="" appeared="" to="" have="" been="" effective="" in="" addressing="" neck="" entrapment="" incidents="" in="" openings.="" a="" working="" group="" was="" established="" to="" draft="" a="" recommendation="" [[page="" 71892]]="" for="" the="" subcommittee="" on="" whether="" the="" probe="" to="" be="" used="" in="" the="" astm="" bunk="" bed="" standard="" should="" have="" a="" 75="" deg.="" angle="" as="" in="" the="" proposed="" rule="" or="" a="" 55="" deg.="" angle="" as="" in="" the="" playground="" equipment="" standard.="" a="" motion="" was="" approved="" to="" accept="" the="" recommendation="" of="" the="" working="" group="" and="" to="" forward="" it,="" together="" with="" the="" other="" previously="" approved="" revisions,="" to="" astm="" for="" a="" ballot="" by="" the="" full="" subcommittee.="" at="" the="" request="" of="" astm,="" cpsc="" staff="" searched="" cpsc="" playground="" incident="" data="" and="" verified="" that="" no="" neck="" entrapments="" were="" reported="" in="" structures="" conforming="" to="" the="" requirements="" in="" the="" voluntary="" playground="" standards.="" a="" september="" 9,="" 1999="" letter="" from="" the="" astm="" working="" group="" was="" submitted="" as="" a="" comment="" on="" the="" july="" 9,="" 1999="" npr.="" the="" letter="" stated="" that="" the="" working="" group="" had="" recommended="" to="" the="" astm="" subcommittee="" that="" the="" neck="" entrapment="" requirement="" to="" be="" added="" to="" the="" astm="" standard="" for="" bunk="" beds="" will="" specify="" the="" probe="" in="" the="" astm="" public="" playground="" equipment="" standard,="" which="" uses="" a="" 55="" deg.="" angle.="" after="" the="" astm="" working="" group's="" decision="" to="" use="" the="" 55="" deg.="" playground="" equipment="" probe,="" manufacturers="" discussed="" limiting="" the="" revision="" of="" the="" requirements="" for="" lower="" bunk="" end="" structures="" in="" the="" astm="" standard="" to="" metal="" bunk="" beds="" only.="" their="" rationale="" for="" such="" a="" limitation="" is="" that="" there="" have="" been="" no="" known="" neck="" entrapment="" incidents="" in="" wooden="" bunk="" beds="" and="" that="" it="" is="" not="" likely="" that="" a="" wooden="" bunk="" bed="" would="" be="" manufactured="" with="" openings="" of="" a="" shape="" that="" would="" present="" neck="" entrapment.="" at="" the="" present="" time,="" the="" commission="" does="" not="" know="" whether="" the="" lower="" bed="" end="" structure="" requirements="" in="" the="" astm="" standard="" will="" apply="" only="" to="" metal="" beds.="" the="" revisions="" to="" the="" voluntary="" standard="" that="" were="" approved="" during="" the="" meetings="" of="" the="" astm="" bunk="" bed="" subcommittee="" have="" not="" been="" sent="" for="" balloting="" by="" the="" entire="" subcommittee.="" the="" commission="" does="" not="" know="" when="" the="" ballot="" will="" be="" mailed="" or="" what="" new="" requirements="" will="" be="" approved.="" e.="" statutory="" authorities="" for="" this="" proceeding="" the="" fhsa="" authorizes="" the="" regulation="" of="" unreasonable="" risks="" of="" injury="" associated="" with="" articles="" intended="" for="" use="" by="" children="" that="" present="" mechanical="" (or="" electrical="" or="" thermal)="" hazards.="" fhsa="" sec.="" 2(f)(d),="" 15="" u.s.c.="" 1261(f)(d).="" the="" hazards="" associated="" with="" bunk="" beds="" that="" are="" described="" above="" are="" mechanical.="" see="" fhsa="" sec.="" 2(s),="" 15="" u.s.c.="" 1261(s).="" the="" cpsa="" authorizes="" the="" regulation="" of="" unreasonable="" risks="" of="" injury="" associated="" with="" ``consumer="" products,''="" which="" include="" bunk="" beds''whether="" intended="" for="" the="" use="" of="" children="" or="" adults.="" cpsa="" sec.="" 3(a)(1),="" 15="" u.s.c.="" sec.="" 2052(a)(1).="" thus,="" bunk="" beds="" intended="" for="" the="" use="" of="" adults="" can="" be="" regulated="" only="" under="" the="" cpsa,="" while="" bunk="" beds="" intended="" for="" the="" use="" of="" children="" potentially="" could="" be="" regulated="" under="" either="" the="" fhsa="" or="" the="" cpsa.="" the="" commission="" considers="" a="" bunk="" bed="" to="" be="" intended="" for="" use="" by="" children="" if="" it="" has="" smaller="" than="" twin-size="" mattresses="" or="" incorporates="" styling="" or="" other="" features="" especially="" intended="" for="" use="" by="" children.="" the="" available="" data="" do="" not="" indicate="" whether="" the="" known="" deaths="" and="" injuries="" are="" occurring="" on="" beds="" intended="" for="" use="" by="" children.="" nevertheless,="" any="" regulation="" for="" bunk="" beds="" should="" include="" beds="" intended="" for="" children,="" since="" there="" is="" no="" reason="" why="" such="" beds,="" to="" the="" extent="" they="" exist,="" do="" not="" present="" the="" same="" risks="" to="" children="" as="" do="" adults'="" bunk="" beds.="" section="" 30(d)="" of="" the="" cpsa,="" however,="" provides="" that="" a="" risk="" associated="" with="" a="" consumer="" product="" that="" can="" be="" reduced="" to="" a="" sufficient="" extent="" by="" action="" under="" the="" fhsa="" can="" be="" regulated="" under="" the="" cpsa="" only="" if="" the="" commission,="" by="" rule,="" finds="" that="" it="" is="" in="" the="" public="" interest="" to="" do="" so.="" 15="" u.s.c.="" 2079(d).="" because="" the="" risks="" of="" bunk="" beds="" can="" be="" addressed="" with="" the="" two-pronged="" approach="" (i.e.,="" by="" both="" statutes),="" there="" appears="" to="" be="" no="" strong="" reason="" why="" it="" would="" be="" in="" the="" public="" interest="" to="" regulate="" bunk="" beds="" only="" under="" the="" cpsa.="" accordingly,="" the="" requirements="" were="" proposed,="" and="" are="" issued,="" as="" two="" separate="" rules,="" one="" under="" the="" cpsa="" for="" ``adult''="" bunk="" beds="" and="" the="" other="" under="" the="" fhsa="" for="" beds="" intended="" for="" use="" by="" children.="" f.="" statutory="" findings="" relating="" to="" the="" voluntary="" standard="" the="" commission="" may="" not="" issue="" a="" standard="" under="" either="" the="" cpsa="" or="" the="" fhsa="" if="" an="" industry="" has="" adopted="" and="" implemented="" a="" voluntary="" standard="" to="" address="" the="" risk,="" unless="" the="" commission="" finds="" that="" ``(i)="" compliance="" with="" such="" voluntary="" *="" *="" *="" standard="" is="" not="" likely="" to="" result="" in="" the="" elimination="" or="" adequate="" reduction="" of="" such="" risk="" of="" injury;="" or="" (ii)="" it="" is="" unlikely="" that="" there="" will="" be="" substantial="" compliance="" with="" such="" voluntary="" *="" *="" *="" standard.''="" see="" 9(f)(3)(d)="" of="" the="" cpsa,="" 15="" u.s.c.="" 2058(f)(3)(d),="" and="" 3(i)2)="" of="" the="" fhsa,="" 15="" u.s.c.="" 1262(i)(2).="" the="" percentage="" of="" currently="" produced="" bunk="" beds="" that="" conform="" to="" the="" astm="" standard="" could="" be="" as="" high="" as="" 90%="" or="" more.="" this="" raises="" the="" questions="" of="" whether="" the="" astm="" standard="" is="" substantively="" adequate="" and,="" if="" so,="" whether="" it="" will="" command="" ``substantial="" compliance.''="" the="" rule="" goes="" beyond="" the="" provisions="" of="" the="" astm="" 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,="" 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.="" third,="" the="" mandatory="" standard="" contains="" protection="" against="" neck="" entrapment="" that="" the="" voluntary="" standard="" lacks.="" finally,="" the="" mandatory="" rule="" applies="" to="" bunk="" beds="" having="" a="" foundation="" over="" 30="" inches="" from="" the="" floor,="" rather="" than="" the="" 35="" inches="" in="" the="" astm="" standard.="" these="" provisions,="" which="" are="" in="" the="" rule="" but="" not="" in="" the="" voluntary="" standard,="" address="" fatalities="" and,="" as="" noted="" below,="" have="" benefits="" that="" bear="" a="" reasonable="" relationship="" to="" their="" costs.="" therefore,="" the="" commission="" finds="" that="" compliance="" with="" the="" voluntary="" standard="" is="" unlikely="" to="" eliminate="" or="" adequately="" reduce="" the="" risk="" of="" entrapment="" injury="" or="" death.="" for="" this="" reason,="" the="" voluntary="" standard="" does="" not="" bar="" issuance="" of="" a="" rule.="" even="" if="" the="" voluntary="" and="" mandatory="" standards="" were="" identical,="" however,="" there="" is="" the="" issue="" of="" whether="" there="" will="" be="" substantial="" compliance="" with="" the="" voluntary="" standard.="" 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.="" 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="" [[page="" 71893]]="" focus="" on="" the="" specific="" facts="" of="" this="" rulemaking="" and="" are="" stated="" below.="" 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.="" 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.="" 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.="" 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.="" 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.="" 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.="" 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.="" 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="" conformance="" level="" never="" grew="" beyond="" the="" projection="" for="" 1989="" and="" deaths="" and="" near-misses="" have="" not="" dropped.="" 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.="" 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.="" 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.="" 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.="" 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.="" g.="" response="" to="" comments="" the="" commission="" received="" 21="" written="" comments="" in="" response="" to="" the="" npr="" published="" in="" the="" federal="" register="" on="" march="" 3,="" 1999.="" in="" addition,="" six="" people="" gave="" oral="" testimony="" in="" a="" public="" hearing="" held="" on="" may="" 6,="" 1999.="" also,="" five="" comments="" were="" received="" in="" response="" to="" the="" revised="" entrapment="" requirements="" published="" in="" the="" july="" 9,="" 1999,="" federal="" register.="" the="" commission's="" responses="" to="" these="" comments="" are="" given="" below:="" 1.="" comments="" on="" the="" march="" 3,="" 1999,="" npr="" a.="" favoring="" a="" mandatory="" rule:="" seven="" commenters="" responding="" in="" writing="" to="" the="" march="" 3,="" 1999,="" npr,="" and="" three="" persons="" at="" the="" may="" 6,="" 1999,="" public="" hearing,="" favored="" a="" mandatory="" rule="" addressing="" entrapment="" in="" bunk="" beds.="" their="" reasons="" were="" varied="" and="" included:=""> 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
[[Page 71895]]
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.
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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.)
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[[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]
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