Standard for the Flammability of Residential Upholstered Furniture, 11702-11752 [08-768]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 73, Number 43 (Tuesday, March 4, 2008)]
[Proposed Rules]
[Pages 11702-11752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-768]



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Part II





Consumer Product Safety Commission





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16 CFR Part 1634



Standard for the Flammability of Residential Upholstered Furniture; 
Proposed Rule

Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / 
Proposed Rules

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1634


Standard for the Flammability of Residential Upholstered 
Furniture

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Consumer Product Safety Commission 
(``Commission'' or ``CPSC'') is proposing flammability standards for 
residential upholstered furniture under the Flammable Fabrics Act 
(``FFA''). The proposal would establish performance requirements and 
certification and labeling requirements for upholstered furniture. 
Manufacturers of upholstered furniture would choose one of two possible 
methods of compliance: They could use cover materials that are 
sufficiently smolder resistant to meet a cigarette ignition performance 
test; or they could place fire barriers that meet smoldering and open 
flame resistance tests between the cover fabric and interior filling 
materials. Manufacturers of upholstered furniture would be required to 
certify compliance with the standard and to comply with certain 
recordkeeping requirements as specified in the proposal.

DATES: Comments in response to this document must be received by the 
Commission not later than May 19, 2008.
    Comments on elements of the proposed rule that, if issued in final 
form would constitute collection of information requirements under the 
Paperwork Reduction Act, may be filed with the Office of Management and 
Budget (``OMB'') and with the Commission. Comments will be received by 
OMB until May 5, 2008.

ADDRESSES: Comments should be filed by e-mail to cpsc-os@cpsc.gov. 
Comments also may be filed by telefacsimile to (301) 504-0127 or 
mailed, preferably in five copies, to the Office of the Secretary, 
Consumer Product Safety Commission, 4330 East West Highway, Bethesda, 
MD 20814, or delivered to the Office of the Secretary, Consumer Product 
Safety Commission, Room 502, 4330 East-West Highway, Bethesda, 
Maryland; telephone (301) 504-7530. Comments should be captioned 
``Upholstered Furniture NPR.''
    Comments to OMB should be directed to the Desk Officer for the 
Consumer Product Safety Commission, Office of Information and 
Regulatory Affairs, OMB, Washington, DC 20503. The Commission asks 
commenters to provide copies of such comments to the Commission's 
Office of the Secretary, with a caption or cover letter identifying the 
materials as comments submitted to OMB on the proposed collection of 
information requirements for the proposed upholstered furniture 
flammability standard.
    The public may also request an opportunity to present comments 
orally. Such requests should be submitted to the Office of the 
Secretary of the Commission by e-mail, mail, fax or in person at the 
addresses or phone numbers listed above for the CPSC.

FOR FURTHER INFORMATION CONTACT: Dale R. Ray, Project Manager, 
Directorate for Economic Analysis, Consumer Product Safety Commission, 
4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7704.

SUPPLEMENTARY INFORMATION:

A. Background

    Regulatory/technical activity. In 1993 the National Association of 
State Fire Marshals (``NASFM'') petitioned the Commission to issue 
regulations under the FFA addressing upholstered furniture fire risks. 
NASFM requested that the Commission adopt three existing state of 
California standards.
    The Commission granted the petition in part, and issued an advance 
notice of proposed rulemaking (``ANPR'') on June 15, 1994 on the 
specific risk of small open flame-ignited fires. 59 FR 30,735 (1994). 
The Commission denied the petition with respect to large open flame-
ignited fires, and deferred action on the petition with respect to 
cigarette-ignited fires pending a CPSC staff evaluation of: (1) The 
level of voluntary conformance to existing voluntary industry 
guidelines, and (2) the overall level of cigarette ignition resistance 
among products on the market.
    Following issuance of the 1994 ANPR, CPSC staff developed a draft 
performance standard and a test method to evaluate the small open flame 
performance of upholstered furniture. In October 1997, the staff 
forwarded a briefing package to the Commission concluding that a small 
open flame standard was feasible and could effectively reduce the risk 
to consumers, including both small open flame and cigarette ignitions. 
The staff recommended that the Commission defer action until the agency 
could gather additional scientific information to ensure that flame 
retardant (``FR'') upholstery fabric treatments that manufacturers 
might use would not result in adverse health effects. The staff 
recommended that the Commission defer action on the cigarette ignition 
portion of the 1993 NASFM petition pending a decision on open flame 
ignition. On October 5, 2001, NASFM withdrew the portion of the 
petition seeking Commission action with respect to cigarette-ignited 
fires.
    In July of 2003 the CPSC staff recommended that the Commission 
issue an ANPR to expand the upholstered furniture proceeding to address 
ignition of upholstered furniture by both small open flames and by 
smoldering cigarettes. The Commission accepted the staff's 
recommendation, and the ANPR was published on October 23, 2003. 68 FR 
60,619. The 2003 ANPR sought comment on issues relating to the kinds of 
standard provisions that might best address the upholstered furniture 
fire risk in its entirety.
    The Commission received 13 written comments during the 60-day 
formal comment period following publication of the ANPR. Interested 
parties subsequently provided additional written submissions in the 
form of letters, position statements or presentations of technical data 
at meetings. A detailed discussion of significant comments received is 
provided in Section G of this preamble. In October 2004, the staff held 
a public meeting to present the direction of what would become the 
staff's 2005 draft standard. The staff analyzed comments received at 
that meeting as well. The proposed standard takes account of that 
analysis. Staff received comments on its 2005 draft standard, continued 
its research and analysis and developed a revised, 2007 draft proposal 
that focused primarily on preventing smoldering ignitions and reducing 
the need for flame retardant chemicals.\1\ This notice presents the 
2007 draft as the Commission's proposed standard.\2\
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    \1\ The Commission staff briefing package discussing this 
proposal, Briefing Package: Regulatory Alternatives for Upholstered 
Furniture Flammability, November 2007, (the ``Staff Briefing 
Package'') is available on the Internet at: https://www.cpsc.gov/
library/foia/foia08/brief/briefing.html. Copies may also be 
requested from the Commission's Office of the Secretary at the 
address shown above.
    \2\ Acting Chairman Nancy Nord and Commissioner Thomas H. Moore 
issued statements which are available from the Commission's Office 
of the Secretary (see Addresses section of this notice) or from the 
Commission's Web site, https://www.cpsc.gov/pr/statements.html.
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    Overview of the proposed standard. The proposed standard 
establishes two possible approaches. Upholstered furniture can meet the 
proposed standard by having either (1) upholstery cover material that 
complies with the prescribed smoldering ignition

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resistance test (referred to as ``Type I'' furniture) or (2) an 
interior fire barrier that complies with specified smoldering and small 
open flame ignition resistance tests (``Type II'' furniture). No 
requirements are prescribed for filling materials. The standard would 
become effective one year after issued in final form and would apply to 
upholstered furniture manufactured or imported on or after that date.
    The performance tests prescribed in the proposed standard are 
conducted with the tested material installed in mockups that simulate 
the intersection of the seating area of an item of upholstered 
furniture. In addition to the material under test, the mockup is 
assembled using standardized upholstery test materials as defined in 
the proposed standard.
    Manufacturers (including importers) of upholstered furniture would 
be required to certify that the article of upholstered furniture 
complies with the proposed standard and to maintain records 
demonstrating compliance with the applicable portions of the proposed 
standard. Upholstered furniture subject to the proposed standard would 
be required to be labeled with information identifying the 
manufacturer, the date of manufacture, the item and type of furniture, 
and a statement certifying that the article complies with applicable 
requirements of the standard.

B. Statutory Authority

    This proceeding is conducted pursuant to Section 4 of the Flammable 
Fabrics Act (``FFA''), which authorizes the Commission to initiate 
proceedings for a flammability standard when it finds that such a 
standard is ``needed to protect the public against unreasonable risk of 
the occurrence of fire leading to death or personal injury, or 
significant property damage.'' 15 U.S.C. 1193(a).
    Section 4 also sets forth the process by which the Commission may 
issue a flammability standard. As required in section 4(g), the 
Commission has issued an ANPR. 68 FR 60629. 15 U.S.C. 1193(g). The 
Commission has reviewed the comments submitted in response to the ANPR 
and now is issuing a notice of proposed rulemaking (``NPR'') containing 
the text of the proposed rule along with alternatives the Commission 
has considered and a preliminary regulatory analysis. 15 U.S.C. 
1193(i). The Commission will consider comments provided in response to 
the NPR and decide whether to issue a final rule along with a final 
regulatory analysis. Id. 1193(j). The FFA also requires that when 
issuing a standard or regulation the Commission must provide an 
opportunity for interested persons to present their views orally. Id. 
1193(d).
    The Commission cannot issue a final rule unless it makes certain 
findings and includes these in the regulation. The Commission must 
find: (1) If an applicable voluntary standard has been adopted and 
implemented, that compliance with the voluntary standard is not likely 
to adequately reduce the risk of injury, or compliance with the 
voluntary standard is not likely to be substantial; (2) that benefits 
expected from the regulation bear a reasonable relationship to its 
costs; and (3) that the regulation imposes the least burdensome 
alternative that would adequately reduce the risk of injury. 15 U.S.C. 
1193(j)(2). In addition, the Commission must find that the standard (1) 
is needed to adequately protect the public against the risk of the 
occurrence of fire leading to death, injury or significant property 
damage, (2) is reasonable, technologically practicable, and 
appropriate, (3) is limited to fabrics, related materials or products 
which present unreasonable risks, and (4) is stated in objective terms. 
Id. 1193(b).

C. The Product

    The proposed standard applies to residential upholstered furniture. 
The proposal specifically requires testing of cover fabrics and, 
alternatively, barrier materials if they are used as a means of 
complying with the proposed standard. Upholstered furniture is defined 
for purposes of the proposed standard to include articles of interior 
seating furnishing intended for indoor use in a home or other 
residential occupancy that: (1) Consist in whole or in part of 
resilient cushioning materials (such as foam, batting, or related 
materials) covered by fabric or related materials; and (2) are 
constructed with a contiguous upholstered seat and back or arms. 
Included within the definition are products that are intended or 
promoted for indoor residential use for sitting or reclining upon, such 
as: Chairs, sofas, motion furniture, sleep sofas, home office furniture 
customarily offered for sale through retailers or otherwise available 
for residential use, and upholstered furniture intended for use in 
dormitories or other residential occupancies. Items excluded from the 
definition are: Furniture, such as patio chairs, intended solely for 
outdoor use; furniture without contiguous upholstered seating and backs 
and/or arm surfaces, such as ottomans, pillows or pads that are not 
sold with the article of furniture; commercial or industrial furniture 
not offered for sale through retailers or not otherwise available for 
residential use; furniture intended or sold solely for use in hotels 
and other short-term lodging and hospitality establishments; futons, 
flip chairs, the mattress portions of sleep sofas, and non-furniture 
infant or juvenile products such as walkers, strollers, high chairs or 
pillows.
    Commission staff estimates that the proposed standard would affect 
more than 1,600 manufacturers and importers of upholstered furniture 
and the 100-200 textile manufacturers that derive a significant share 
of their revenues from household furniture fabrics. The staff estimates 
that the average useful life of upholstered furniture ranges from 15 to 
17 years. Assuming that the expected life of a piece of upholstered 
furniture is about 16 years, the average number of upholstered 
furniture items in household use during 2002-2004 was about 447 million 
pieces. Upholstered furniture products and manufacturers are discussed 
in greater detail in section H, Preliminary Regulatory Analysis, of 
this preamble.
    The top four companies accounted for nearly 35 percent of the total 
value of household upholstered furniture shipments in 2002; the 50 
largest companies accounted for about 67 percent. The industry also 
includes many small companies. The staff estimates that nearly all of 
the affected firms (over 97 percent) would be classified as small 
businesses under Small Business Administration guidelines. The staff's 
initial analysis of the potential impact of the proposed standard on 
such ``small entities'' is provided in section I., Initial Regulatory 
Flexibility Analysis, of this preamble.
    As discussed in section D of this preamble, the majority of deaths 
and injuries resulting from fires involving upholstered furniture were 
started by smoldering ignition sources (such as cigarettes). The 
staff's test data show that furniture covered with predominantly 
cellulosic fabrics (such as cotton and rayon) is much more likely to be 
involved in cigarette-ignited fires than furniture covered with 
predominantly thermoplastic fabrics (such as polyester, polyolefin, and 
nylon). The proposed standard focuses primarily on reducing deaths and 
injuries from smoldering ignited fires. Staff estimates that about 14 
percent of currently-produced furniture items are likely to fail the 
proposed standard's smoldering ignition test for cover fabrics. These 
would primarily be items constructed with certain predominantly 
cellulosic fabrics; staff believes most of these fabrics could be 
modified to meet the proposed standard. Staff anticipates that most 
manufacturers are likely to bring these furniture items into

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compliance by modifying the physical characteristics of the cover 
fabrics rather than by using flame retardant (FR) fabric treatments. 
Alternatively, manufacturers would have the option to meet the proposed 
standard by using barrier materials that pass open flame and smoldering 
ignition tests rather than changing the cover fabric.

D. Risk of Injury

    Annual estimates of national fires and fire losses involving 
ignition of upholstered furniture are based on data from the U.S. Fire 
Administration's National Fire Incident Reporting System (``NFIRS'') 
and the National Fire Protection Administration's (``NFPA'') annual 
survey of fire departments.
    National fire loss estimates for 2002-2004 indicated that 
upholstered furniture was the first item to ignite in an average 7,800 
residential fires attended by the fire service annually during that 
period. These fires resulted in an average of 540 deaths, 870 injuries 
and $250 million in property loss each year.
    Of these fires, the staff considers an estimated 3,500 fires, 280 
deaths, 500 injuries, and $112 million property loss annually to be 
addressable by the proposed standard. Addressable here means the 
incidents were of a type that would be affected by the proposed 
standard (i.e., a fire that ignited upholstered furniture and that had 
a smoking material or small open flame heat source). Approximately 90% 
of estimated deaths, 65% of estimated injuries and 59% of property 
damage resulted from ignition by smoking materials, almost always 
cigarettes. The remaining addressable fires were started by small open 
flame sources. Among the addressable casualties, smoking materials 
accounted for about 260 deaths and 320 injuries annually. Small open 
flame fires accounted for about 30 deaths and 170 injuries annually.\3\
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    \3\ Numbers do not add up to totals due to rounding.
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E. Other Upholstered Furniture Flammability Standards

1. California Regulatory Activity

    California Technical Bulletin 117 (``TB-117''), the mandatory 
regulation for all upholstered furniture sold in that state, contains 
both smoldering and small open flame resistance performance 
requirements. Complying upholstered furniture is generally similar to 
furniture sold in other states, except that California furniture is 
typically made with FR resilient foam filling materials. In early 2002, 
the California Bureau of Home Furnishings and Thermal Insulation 
(BHFTI) released a draft revision of TB-117. This draft revision 
contained upgraded performance requirements for small open flame 
ignition resistance of filling materials, and a cover material test 
similar to that developed by the Commission staff in its 2001 draft 
small open flame standard. The TB-117 smoldering resistance provisions 
were not changed.
    The California BHFTI has not proposed amendments to TB-117 to 
incorporate the 2002 draft revision. The BHFTI's comment on the 
Commission's October 23, 2003 ANPR expressed support for a uniform 
national standard. BHFTI recommended that the Commission consider 
adopting appropriate elements of the 2002 draft revised TB-117 into a 
proposed Commission rule. The proposed standard contains some 
requirements similar to provisions of TB-117.

2. United Kingdom Regulations

    The U.K. Department of Trade and Industry (``DTI'') enforces the 
U.K. Furniture and Furnishings (Flammability) Regulations, issued in 
1990. These regulations contain smoldering and open flame resistance 
requirements for residential upholstered furniture based on test 
methods in British Standard BS 5852. The CPSC proposed standard's fire 
barrier open flame test uses the apparatus and ignition source from the 
U.K. regulations.

3. Voluntary Standards Activity

    Since the Commission's original ANPR on upholstered furniture was 
published in 1994, industry groups have been encouraged to develop 
voluntary flammability requirements through a recognized standards 
organization. The Upholstered Furniture Action Council (``UFAC'') 
voluntary industry program of cigarette ignition tests developed in the 
1970s is embodied in ASTM E-1353 and other voluntary test methods. 
Commission staff estimates voluntary UFAC conformance at about 90% of 
furniture production. The UFAC voluntary program does not address small 
open flame ignitions. Aspects of the UFAC cigarette ignition resistance 
test methods, California BHF Technical Bulletins (TB) 116, 117, and 
133, and British Standard BS-5852 have been adopted by various 
consensus voluntary standards organizations and industry groups, 
including ASTM International, the International Standards Organization, 
the National Fire Protection Association and the Business and 
Institutional Furniture Manufacturers of America, and have also been 
incorporated into some state and local fire codes. Some industry groups 
have suggested that the Commission should adopt the UFAC program as a 
proposed rule. As discussed in section G.1 of this preamble, the 
Commission concludes that mandating the UFAC guidelines would have 
little effect on reducing deaths and injuries related to upholstered 
furniture fires.

F. The Proposed Standard

    In developing the proposed flammability standard to address 
ignitions of residential upholstered furniture, the Commission 
considered the available hazard information, existing standards 
development research together with the latest CPSC laboratory data, and 
technical information developed by other organizations. Economic, 
health and environmental factors were also considered.

1. Scope

    The proposed standard contains flammability performance 
requirements for most residential upholstered furniture. The proposed 
standard applies to:
     Residential seating products intended for indoor use and 
constructed with contiguous upholstered seats and backs, such as chairs 
and sofas (including motion furniture and sleep sofas);
     Some home office furniture sold through retailers or 
otherwise available for household use; and
     Upholstered furniture used in dormitories or other 
residential occupancies.
    The proposed standard does not apply to:
     Outdoor furniture, such as patio chairs;
     Articles without contiguous upholstered seating surfaces, 
such as ottomans, decorative pillows or pads, and many office chairs 
and dining chairs;
     Commercial or industrial furniture not intended or sold 
for household use;
     Furniture intended or sold solely for use in hotels and 
other temporary lodging and hospitality establishments;
     Futons, flip chairs, and the mattress components of sleep 
sofas; and
     Non-furniture juvenile products such as walkers, 
strollers, high chairs and pillows.

2. General Requirements

    The proposed standard addresses resistance to ignition and limited 
fire growth by means of performance tests for cover fabrics and, 
alternatively, for

[[Page 11705]]

barriers. The principal performance requirements of the proposed 
standard are intended to reduce the risk of fire from smoldering 
ignition. If barriers are chosen as the means of compliance, they must 
meet both small open flame and smoldering resistance requirements. The 
proposal adapts elements and variations of existing standards, 
including California Technical Bulletin 117, ASTM E-1353 (tests from 
the UFAC voluntary industry guidelines) and United Kingdom regulations 
(based on British Standard BS-5852).
    The upholstered furniture tests are conducted using seating mockups 
of fabric and filling materials. The goal is to reduce the smolder 
propensity of cover materials and limit the mass loss from combustion 
(smoldering, melting, or flaming) of the mockup's interior filling 
materials. Pass/fail criteria are based on maximum acceptable 
combustion time and mass loss percentages within a 45 minute test 
period.

3. Cover Fabric Smoldering Resistance Test

    In this test, fabrics are tested in combination with a standard 
polyurethane foam substrate. A lighted cigarette is placed in the seat/
back crevice of the mockup and is allowed to burn its entire length. 
The mockup must not continue to smolder at the end of the 45 minute 
test or transition to flaming at any time during the test, and the foam 
substrate must not exceed the mass loss limit of 10%. Ten initial 
specimens are tested. If the 10 initial specimens meet these criteria, 
the cover fabric sample passes. If there is a failure in any one of the 
10 initial specimens, the test must be repeated on an additional 20 
specimens. At least 25 of the 30 specimens must meet the criteria.

4. Interior Fire Barrier Smoldering Resistance Test

    In this test, the barrier is placed between a standard foam 
substrate and a standard cotton velvet cover fabric. A lighted 
cigarette is placed in the seat/back crevice of the mockup. The foam 
substrate must not exceed 1% mass loss by the end of the 45 minute 
test, and the mockup must not transition to open flaming at any time 
during the test. Ten initial specimens are tested. If all 10 initial 
specimens meet these criteria, the barrier sample passes. If any one of 
the ten fails, an additional 20 specimens are tested, and at least 25 
of the 30 must meet the criteria.

5. Interior Fire Barrier Open Flame Resistance Test

    The proposed standard also contains provisions for the open flame 
resistance of barriers. In addition to providing protection from small 
flame ignition, the open flame performance test contributes to the 
protection of materials from the progression of smoldering to flaming 
combustion.
    In this test, the barrier is placed between a standard rayon cover 
fabric and standard foam substrate on a metal test frame. An open flame 
ignition source is applied to the seat/back crevice of the mockup. The 
mockup must not exceed 20% mass loss by the end of the 45 minute test. 
Again, 10 initial samples are tested. If there is a failure with any of 
the 10 specimens, an additional 20 specimens are tested, and at least 
25 of the 30 must meet the criteria for the sample barrier to pass.

6. Administrative Requirements

    In addition to flammability performance requirements, the proposed 
standard contains provisions relating to certification and 
recordkeeping, testing to support guaranties, and labeling of finished 
articles of upholstered furniture. These requirements are intended to 
help manufacturers, importers and suppliers ensure that their products 
comply, and to help the CPSC staff enforce the proposed performance 
standard. These provisions are contained in Subpart B of the proposed 
standard.
    Under Sec.  8 of the FFA, 15 U.S.C. 1197, producers of finished 
articles of upholstered furniture, i.e., manufacturers and importers, 
may rely on guaranties of compliance issued by material suppliers to 
avoid criminal prosecution in certain instances. However, manufacturers 
and importers are ultimately responsible under the proposal for 
compliance of the upholstered furniture products they produce and 
introduce into commerce. It is unlawful under the FFA to provide a 
false guaranty. While there are no specific sampling or production 
testing requirements in the proposed standard, the FFA requires that 
any guaranties be supported by reasonable and representative tests 
sufficient to establish that production units of materials meet the 
applicable tests.
    The proposed standard requires that each finished article of 
upholstered furniture carry a permanent label: (1) Containing a 
statement certifying that it complies with the standard, identifying 
the ``Type'' of furniture (i.e., Type I or Type II); (2) identifying 
the manufacturer or importer; and (3) specifying the location and month 
and year of manufacture and model and lot number or other identifier 
applicable to the item. This information would be required to be 
separate from other label information. The label would help retailers 
and consumers identify products in the event of a recall or other 
corrective action.

G. Response to Comments on the ANPR and Subsequent Submissions

    The Commission received 13 written comments during the 60-day 
formal comment period following publication of the ANPR in October 
2003. Since that time, interested parties provided about 20 additional 
written submissions in the form of letters, position statements or 
technical presentations at public meetings. Further, the staff held or 
attended several public meetings with stakeholders to discuss issues of 
interest.
    Many of the public comments addressed similar issues. These issues 
generally involved: (a) The scope, test methods and acceptance criteria 
of a possible proposed rule; (b) the potential benefits and costs of 
various alternatives; and (c) the potential use of flame retardant (FR) 
chemicals to comply with those alternatives. Some of the comments dealt 
specifically with the staff's 2001 and 2005 draft standards, options 
that contained more open flame performance requirements for upholstery 
materials than the proposed rule. A few of the comments dealt with the 
staff's 2007 draft proposal, which became the agency's proposed 
standard. The Commission considered all of the comments received since 
2003 in developing the proposed rule.

1. Scope and Test Methods

    Comment. Several industry, government and fire safety organizations 
provided comments on the general scope of a standard, mainly with 
respect to cigarette versus open flame ignition performance.
    Under the 2003 ANPR, the staff developed multiple draft standards 
containing both smoldering and open flame requirements. The proposed 
rule places primary emphasis on smoldering ignition resistance, as a 
substantial majority of upholstered furniture-related deaths, injuries 
and property losses result from smoldering fires. Several furniture 
industry groups commented that the fire risk associated with open flame 
ignition has become so small that regulation in that area is 
unnecessary. They also commented that the science of open flame 
ignition behavior is so complex that substantial further research would 
be needed to support

[[Page 11706]]

any reasonable conclusions about the effectiveness and technical 
adequacy of any performance requirements. In addition, they opposed 
open flame ignition requirements on the basis that compliance costs 
would be unreasonably high. These groups recommended that the 
Commission proceed with rulemaking on smoldering ignition only, and 
that CPSC adopt the performance tests in the ASTM/UFAC voluntary 
guidelines in the proposed rule.
    Other stakeholders, including representatives of fire safety 
organizations, state government and chemical industry groups, 
recommended that a federal rule contain both smoldering and open flame 
requirements, and stated that solutions are technically and 
economically feasible. Some commenters opposed any course that would 
reduce the current level of safety provided by the existing California 
regulation, Technical Bulletin (TB) 117. Other industry groups 
supported adoption of a smoldering standard and eventual consideration 
of open flame requirements in the future. The California Bureau of Home 
Furnishings and Thermal Insulation (BHFTI) recommended that CPSC 
consider adopting elements of the draft revised TB-117 published by 
BHFTI in 2002.
    In 2004, an industry ``coalition'' of furniture producers and 
material suppliers developed a set of performance requirements for 
Commission consideration. The coalition proposal included: a small open 
flame test for cover fabrics, based on a modification of the 
Commission's Standard for the Flammability of Clothing Textiles (16 CFR 
Part 1610); smoldering and open flame tests for filling materials, 
based on the 2002 draft revision of California TB-117; an open flame 
test for fibrous (non-foam) ``cushion wraps,'' based on an existing 
U.K. regulation provision; ASTM/UFAC smoldering tests for cushion 
wraps; and an unspecified barrier test to be developed by CPSC. The 
staff evaluated the industry coalition proposal and questioned the 
effectiveness of some of the performance elements. Coalition members 
withdrew support for their proposal in 2005 as the CPSC staff was 
continuing its evaluation and considering other alternatives.
    Response. The Commission recognizes that estimated residential 
upholstered furniture fire losses have declined over time, and that 
relatively few losses--e.g., about 10% of the addressable deaths--are 
attributable to open flame-ignited fires. Thus, relatively few open 
flame deaths and injuries could be averted, even under highly effective 
open flame requirements. The Commission notes, however, that large 
numbers of deaths and injuries remain. Since a substantial majority of 
these losses result from cigarette-ignited fires, the Commission agrees 
that a rule with primary emphasis on smoldering can have substantial 
safety benefits. Based on CPSC's laboratory research, the Commission 
also agrees that the ASTM/UFAC test method provides a useful basis for 
a standard, but does not agree that the ASTM/UFAC tests as implemented 
in the UFAC voluntary program would adequately achieve those benefits. 
While UFAC has contributed to fire safety by encouraging the use of 
smolder-resistant materials, the program allows the use of smolder-
prone cover fabrics with polyurethane foam, and allows highly smolder-
prone fabrics in combination with more smolder-resistant materials 
(e.g., polyester batting) underneath. These conforming combinations are 
not always adequate to prevent fire growth from smoldering ignitions.
    CPSC laboratory testing demonstrated that smolder-prone fabrics can 
defeat the inherent smolder resistance of polyester batting, and that 
furniture mockup assemblies with highly smolder-prone fabrics can 
transition from smoldering to flaming combustion over time. Further, 
some lower-priced furniture may use UFAC-conforming but smolder-prone 
fabrics without smolder resistant batting. In addition, the UFAC tests 
may not be adequate to characterize the smoldering behavior of all 
upholstery materials; for example, UFAC's vertical char length 
performance metric does not always reflect the downward burning that 
typically occurs in polyurethane foam fillings. Additionally, the ASTM/
UFAC method employs a draft-limiting enclosure that was designed to 
improve test repeatability but artificially restricts burning of the 
most smolder-prone fabrics. The non-time-limited UFAC tests may also 
adversely affect the repeatability of the test results. The Commission 
concludes that adopting the ASTM/UFAC tests without significant 
modification would have little effect on currently-produced upholstered 
furniture, and would therefore probably have negligible safety benefits 
beyond those already achieved under the voluntary industry program. 
Thus, the proposed rule has smoldering ignition requirements that are 
somewhat different from, and more stringent than, those of the UFAC 
guidelines. The proposed standard also contains open flame performance 
requirements for barriers; these barriers must protect interior filling 
materials from smolder-prone fabrics that may otherwise cause furniture 
to transition from smoldering to flaming combustion.

2. Standardized Test Materials

    Comment. In addition to the CPSC staff's extensive studies on the 
suitability of various standard test materials, industry groups 
contributed research and submitted comments on the performance of 
standard cover fabrics and standard polyurethane foams specified in the 
CPSC staff's draft standards. Both the staff and industry noted the 
potential effects of interdependency of standard test materials, and 
the potential impact on test results of the observed variability in the 
performance of certain test materials. This variability chiefly related 
to a standard cotton velvet fabric specified in the open flame tests of 
the CPSC staff's 2005 draft standard; to a lesser extent, variability 
was observed in the behavior of the standard FR test foam used in the 
smoldering tests of the staff's 2005 draft. The comments generally 
recommended changes to the standard test materials or the test methods 
to eliminate the undesirable effects of standard material variability.
    Response. The staff's research concluded that the variability 
identified in the performance of the standard fabric (and, in some 
cases, the standard non-FR foam) could adversely affect the 
repeatability and reproducibility of open flame tests, and could yield 
unacceptably inconsistent results. Similar inconsistencies were 
observed in the standard FR foam used in smoldering tests. Therefore, 
the staff revised the qualification requirements for standard test 
materials to ensure consistency. Further, in view of the hazard data 
and the complexity (including standard materials variability) of the 
open flame tests, the proposed rule eliminates the open flame tests for 
filling materials entirely, and retains standard fabrics for barrier 
tests only. This approach not only simplifies the proposed standard, 
but also eliminates the interdependency and variability issues raised 
by the commenters. The standard cotton velvet test fabric performs 
consistently in barrier smoldering tests, as does the standard rayon 
test fabric in barrier open flame tests. Since FR foam would not be 
needed to comply with the proposed rule, the rule specifies only 
standard non-FR foam in all tests.

[[Page 11707]]

3. Stringency of Requirements

    Comment. Some industry groups opposed the CPSC staff's 2005 draft 
standard's open flame filling material tests in the absence of an open 
flame fabric test, and asserted that the 2005 draft's smoldering and 
open flame filling material requirements were too stringent for some 
lower-density foams to meet, even with FR treatment. Furniture industry 
commenters subsequently opposed any requirements that would be more 
stringent than those of the UFAC guidelines. Many commenters supported 
the concept of a barrier test option to afford flexibility to 
manufacturers and fabric suppliers, although some furniture industry 
groups opposed an open flame requirement for barriers and supported the 
UFAC smoldering requirement instead. Regarding the staff's 2007 draft 
proposal that became this proposed standard, some commenters argued 
that the stringent fabric smoldering requirements would require 
substantial re-engineering or FR treatment of fabrics. A number of 
commenters also recommended that CPSC study the effectiveness of 
reduced ignition propensity (IP), or ``fire-safe,'' cigarettes before 
proposing any flammability requirements for upholstered furniture.
    Response. Many of these comments pertained to specific provisions 
of the open flame requirements of the CPSC staff's 2005 draft standard. 
The proposed standard does not contain open flame requirements for 
fabrics or fillings. As noted previously, CPSC's laboratory research on 
smoldering ignition indicates that several elements of the ASTM/UFAC 
voluntary approach would not be very effective at reducing the risk. 
The UFAC guidelines allow smolder-prone combinations of upholstery 
materials that would not adequately limit fire growth, either from 
smoldering or transition to flaming combustion. Since the proposed rule 
relies substantially on cover fabrics or barriers to protect interior 
filling materials, the proposed standard contains very stringent 
smoldering requirements, and requires that barriers provide protection 
regardless of cover fabric ignitability.
    The Commission agrees that a significant proportion of 
predominantly cellulosic fabrics (i.e., chiefly cotton fiber content) 
would have to be modified or eliminated under the proposed standard. 
The Commission notes that these fabrics are the most smolder-prone 
materials used in upholstered furniture, and that many smolder-prone 
fabrics can sometimes overwhelm the inherent smolder resistance of 
synthetic filling materials like polyurethane foam or polyester 
batting. Thus, the proposed requirements are applied to those materials 
whose ignition behavior is the primary contributor to the risk.
    The proposed standard would not prohibit fabric suppliers from 
using FR-treated fabrics to comply. However, furniture and textile 
industry representatives have stated a desire to avoid such products 
for aesthetic and cost reasons. Given the availability of non-FR 
alternatives, it is unlikely that fabric suppliers would use the FR 
treatments they said consumers would reject.
    The Commission agrees that reduced ignition propensity cigarettes 
may be an effective means of reducing consumer product-related 
smoldering fires. Such reductions would likely occur irrespective of 
CPSC action on upholstered furniture. An increasing number of states 
(and Canada) have ``fire safe cigarette'' laws that now require or will 
require that only reduced-IP cigarettes be available for sale. 
Complying cigarettes would likely reduce, but would not eliminate, the 
risk of smoldering ignited upholstered furniture fires. The extent of 
any such reduction is unknown. The staff has initiated a study to 
review available state data and to conduct laboratory tests to evaluate 
the reduction in smoldering ignition propensity associated with 
reduced-IP cigarettes compared to conventional cigarettes. This work 
will help the Commission evaluate the potential effect of reduced-IP 
cigarettes on upholstered furniture fire losses.

4. Large Scale Validation Testing

    Comment. Some stakeholders recommended that CPSC establish a 
correlation between its bench scale tests in the proposed rule and the 
performance of complying materials in larger or ``full'' scale tests 
that more reasonably represent the seating areas of finished articles 
of upholstered furniture. These large scale tests would help validate 
the results and potential effectiveness of the bench scale tests.
    Response. The Commission agrees that large scale testing is a 
valuable source of information to help demonstrate the increased safety 
the proposed standard would provide. To supplement the CPSC staff's 
bench scale testing and limited large scale testing performed 
previously, the staff plans to sponsor such large scale tests. The 
Commission can use the results of these tests in developing a possible 
final rule.

5. Potential Benefits and Costs

    Comment. Some industry groups submitted comments about the CPSC 
staff's draft preliminary regulatory analysis of potential benefits and 
costs associated with various regulatory alternatives. Most of these 
comments were from organizations that opposed various aspects of the 
CPSC staff's 2005 draft standard; some of the comments related to the 
staff's draft proposal that became the proposed standard.
    The comments on the staff's analysis of the 2005 draft standard 
generally asserted that the staff had overestimated potential benefits 
and understated potential costs. A 2006 furniture industry report on 
the staff's analysis of the 2005 draft standard and alternatives 
criticized the statistical methodology used to develop national fire 
loss estimates, and recommended different methods that would generally 
result in lower estimates of potential benefits of a flammability rule. 
The report also questioned other aspects of the staff's estimation of 
potential economic benefits of a standard, positing that staff 
overstated benefits by using effectiveness estimates and value-of-life 
estimates that were too high, discount rates that were too low, and 
incorrect assumptions about the distribution of smolder-prone furniture 
fabrics among smoking vs. non-smoking households.
    The 2006 industry report also asserted that the staff understated 
costs to filling material suppliers and furniture manufacturers and 
importers, and recommended that the staff's sensitivity analysis 
consider all combinations of factors affecting benefits and costs 
unless those factors were mutually exclusive. Manufacturers of 
polyurethane foam raised some of the same cost issues, and discussed 
anticipated difficulties in producing consistently-complying foams at 
the lower densities often used in upholstered arms and other areas of 
furniture.
    Regarding the CPSC staff's 2007 draft proposal, some textile 
industry representatives criticized the emphasis on cover fabric 
performance, and expressed concern that the standard would not regulate 
filling material performance. They also expressed concern that 
difficulties in modifying many fabrics, combined with the cost of 
``double-upholstering'' furniture to incorporate interior barriers, may 
lead suppliers to use FR treatments to comply. One report prepared for 
an environmental group recommended that CPSC include in its analysis of 
the 2007 draft estimates of economic losses from

[[Page 11708]]

increased cancer risks associated with FR filling material additives.
    Several stakeholders recommended that CPSC consider the effect of 
reduced ignition propensity (IP), or ``fire-safe'' cigarettes on the 
potential benefits of a possible upholstered furniture flammability 
standard. One report prepared for an environmental group presented an 
alternative calculation of benefits incorporating some different 
assumptions about reduced-IP cigarette effectiveness than those made by 
the CPSC staff in 2006. Some industry commenters suggested that as 
reduced-IP cigarettes came into wider use, a standard for upholstered 
furniture would no longer have net benefits to the public.
    Response. Regarding fire loss estimation methodologies, the CPSC 
staff noted several biases and errors in the industry report's approach 
that would misrepresent the estimates of fire losses. The 2006 industry 
report's criticism of the staff's method did not consider the proper 
allocation of fire incidents with unknown fire causes. Further, the 
indirect estimating method recommended by the industry report 
incorrectly used estimates of the number of fires to estimate death and 
injuries, thereby introducing bias and understating deaths. The CPSC 
staff's method correctly used death and injury counts weighted with 
probability-based estimates for fire deaths and injuries. Another 
method suggested by the industry report wrongly excluded some in-scope 
deaths from the body of data used to make the estimates. The use of 
these recommended alternative methods would significantly understate 
fire losses, and would thereby understate the potential benefits of a 
flammability rule.
    Regarding benefits projections, the preliminary regulatory analysis 
of the proposed rule estimated the monetary value of potential benefits 
using estimates of effectiveness based on CPSC laboratory tests of 
upholstered furniture mockup assemblies constructed with ignition 
resistant fabrics or barriers, and using adjustments to reflect the 
projected mix of products on the market and other factors. Large scale 
tests will help support the effectiveness estimates. However, the 
Commission staff has ample experience to date with upholstery material 
testing to estimate that the proposed rule would likely be highly 
effective (about 60%) at reducing fire deaths, injuries and property 
damage. Even considering the effectiveness estimates for the CPSC 
staff's 2005 draft standard, there is no basis for applying 
effectiveness rates for the U.K. regulations to a CPSC rule. Further, 
the sensitivity analysis in the preliminary regulatory analysis 
accounts for uncertainty in the estimates.
    The Commission staff estimated the present value of future safety 
benefits using discount rates (3% and 7%) recommended by the Office of 
Management and Budget in its guidance on regulatory analyses. Also, 
CPSC's statistical value of life estimate ($5 million) and sensitivity 
analysis range ($3-7 million) is consistent with values cited in the 
economic literature and widely used in regulatory decision-making.
    Regarding the distribution of upholstered furniture constructed 
with smolder prone fabrics among smoking vs. non-smoking households, 
the preliminary regulatory analysis assumed that furniture fabric types 
are distributed evenly among households. Smolder prone fabrics are 
often, but not always, used on the very high-priced, decorator 
furniture more commonly found in higher-income households that tend 
less often to be smoking households. However, anticipated market trends 
include potential future increases in predominantly-cotton fabrics in 
more moderately-priced furniture, especially among imports, which tends 
to be lower in price than domestic products. To the extent that 
furniture with smolder prone fabrics is more often found in higher-
income households with lower smoking prevalence, the benefits of a 
flammability rule could be reduced somewhat. The preliminary regulatory 
analysis notes in its sensitivity analysis that the likely impact on 
benefits would be small.
    The sensitivity analysis in the preliminary regulatory analysis 
considers the impact of a variety of factors on potential benefits and 
costs. Varying more than one factor at a time is generally appropriate 
when those factors are highly correlated, rather than whenever they are 
not mutually exclusive, as the 2006 industry report suggested. The 
sensitivity analysis does take into account some combinations of 
factors, but not all factors that could conceivably affect benefits and 
costs. However, even if all of the combinations of possible factors 
were considered together, estimated net benefits of the proposed 
standard would still total $100 million or more from a year's 
production of complying upholstered furniture.
    The staff considered likely cost impacts on fabric, filling 
material and other upholstery material suppliers in analyzing the 
potential impacts of the proposed standard. Cost estimates were 
generally reported directly as provided by firms in the industry 
sectors affected although some cost estimates varied significantly 
among firms. The preliminary regulatory analysis recognized several 
areas of cost concern, including low-density polyurethane foam and 
loose filling materials (for the staff's 2005 draft standard) and 
certain 100% cotton fabrics (for the 2007 draft). The staff analysis 
noted that while most upholstered furniture fabrics would meet the 
proposed standard without modification, more than half of all 
predominantly cellulosic fabrics may fail the proposed standard fabric 
smoldering test. These smolder-prone fabrics are typically used with 
synthetic filling materials that would otherwise be generally smolder 
resistant; thus, the proposed standard targets those fabrics 
contributing most to the risk of smoldering ignition.
    The staff also noted that some of the more expensive decorator 
fabrics that would fail the proposed fabric smoldering test already are 
used in furniture that employs multiple layers of upholstery materials, 
or ``double upholstering.'' Decorative fabric suppliers have long 
supported a barrier option for use with non-complying fabrics. For most 
articles of upholstered furniture, the barrier option incorporated into 
the proposed standard would involve substituting complying barriers for 
existing interior fabrics or battings; this would amount to a ``drop-in 
replacement'' of existing components for most barriered furniture, and 
would not require significant additional assembly labor costs.
    The preliminary regulatory analysis estimates costs based on the 
assumption that some or all non-complying fabrics not used with 
barriers would be FR treated; however, it is unlikely that a 
significant proportion of fabrics would actually be treated; thus, 
material costs may be lower than estimated in the analysis. Compliance 
costs associated with re-engineering some heavier-weight, 100% 
cellulosic fiber fabrics may be significant for some firms, although 
fiber content modifications are made routinely by producers (sometimes 
as often as every six months) to reflect style trends in the market. 
Blended-fiber fabrics in particular could probably be readily modified 
without difficulty or significant disruption.
    Under the staff's draft 2005 standard, FR foam fillings would 
likely be used to comply. One of the FRs currently used in foams 
meeting the existing California TB-117 may pose cancer and non-cancer 
chronic health risks. Pending

[[Page 11709]]

further study of these and other FR chemicals, the preliminary 
regulatory analysis of alternatives assumed that hazardous FRs would 
not be used to comply, and therefore did not include a calculation of 
possible disbenefits associated with potential use of any potentially 
hazardous filling material FRs. The proposed standard would not require 
the use of any FRs in foam or other interior filling materials.
    The Commission considered the potential impact of reduced-IP 
cigarettes, and continues to study this matter. State requirements for 
such cigarettes may reduce upholstered furniture fire losses over time 
irrespective of CPSC action. The extent of the reduction is unknown. 
The preliminary regulatory analysis does specifically account for 
possible risk reductions associated with reduced-IP cigarettes. If, for 
example, reduced-IP cigarettes reduced the level of benefits of the 
proposed rule to half the estimated level, then projected net benefits 
would be reduced from $367-387 million to $155-177 million per year's 
worth of complying furniture production. Even at a 70% benefit 
reduction, estimated net benefits of the proposed rule would still 
approach $100 million.

6. Potential Use of FR Chemicals

    Comment. The Commission received a number of comments either 
opposing or supporting the potential use of FR chemical technologies to 
meet a possible flammability rule. Most of these comments related to 
the staff's previous, 2005 draft standard, which would have required 
that resilient, fibrous and loose filling materials (typically made of 
polyurethane foam or polyester fiber) be open flame resistant. Some 
comments specifically opposed the use of polybrominated diphenyl ethers 
(PBDEs), and cited studies on the potential health and environmental 
risks related to these compounds. At least one of the major filling 
material FRs, penta-BDE, that was previously used to meet California 
TB-117's open flame requirements, has been discontinued. While most 
fillings would be FR-treated under the 2005 draft, the proposed 
standard does not contain filling material requirements, and FR 
additives would not be needed to comply.
    Some environmental groups opposed any new regulations that may add 
to the environmental burden of FR chemicals, especially halogenated FRs 
containing bromine or chlorine. They contended that since some FRs are 
persistent in the environment, bioaccumulative in animals and 
potentially toxic to humans, and since there is a lack of data on some 
aspects of the potential effects on human health and environmental 
risks, the Commission should not encourage the use of these chemicals. 
Some of these groups supported the furniture industry position that 
CPSC should impose only smoldering ignition requirements, on the 
presumption that FRs would not be needed to meet these requirements. 
The environmental groups strongly supported the staff's 2007 draft 
proposal that became this proposed standard.
    Furniture and filling material producers opposed significant 
increases in FR usage on the basis that their workers could be exposed 
to more FRs released from component materials. They were also concerned 
that state and local environmental regulations may curtail the 
availability of economically feasible FRs and may adversely affect 
manufacturers' ability to recycle scrap materials. Furniture and fabric 
manufacturers also contended that, in view of recent adverse publicity, 
consumers would prefer not to risk exposure to potentially toxic FRs. 
Some representatives of fabric suppliers have also expressed concern 
that any smolder resistance requirements more stringent than those in 
the UFAC voluntary guidelines would force many firms to use FR 
treatments on predominantly cotton fabrics to comply.
    Chemical producers stated that safe and effective FR solutions are 
available to address the furniture risk. They noted that non-
halogenated alternatives for filling materials are currently being 
offered or developed, as are ``inherently-FR'' fiber barriers that do 
not present a significant likelihood of consumer exposure.
    Response. CPSC developed the proposed standard mindful of the 
continuing uncertainty about potential health and environmental effects 
of FR chemical usage, with an objective of achieving significant 
reductions in fire deaths and injuries from upholstered furniture fires 
caused by smoking materials while minimizing reliance on FR additives 
in fabrics and filling materials to meet that objective. While the 
available scientific data are sufficient to show that some FRs would 
not present significant health or environmental risks, the Commission 
agrees that insufficient data are available to be reasonably sure that 
other FRs would not present health risks if used in upholstered 
furniture. The staff's health risk assessment for foam filling 
materials concluded that the polyurethane foam FR most widely used to 
meet California TB-117 may not present chemical risks to consumers but 
identified significant data gaps; the risk assessment further indicated 
that another currently used filling material FR may present both cancer 
and non-cancer risks to consumers. On the other hand, the CPSC staff's 
health risk assessment for barriers concluded that several commercially 
available technologies, including inherently-FR fiber products, could 
be used without presenting appreciable health risks to the public.
    Under the proposed standard, neither fabrics nor filling materials 
would need to incorporate FR additives to achieve compliance. While FR-
treated fabrics would not be prohibited, many fabric suppliers have 
indicated they would likely either modify the fiber content or 
construction of their most smolder prone fabrics, or continue to offer 
non-complying fabrics for use exclusively with complying barriers in 
the finished article of furniture. Thus, the Commission anticipates 
that FR fabrics would be the least likely means of compliance with the 
proposed rule. Barriers could incorporate FR treatments, but barrier 
suppliers have reported that they would likely offer inherently-FR 
fiber materials that do not pose a risk of potential exposure for 
upholstered furniture applications, similar to those products designed 
to meet the Commission's open flame rule for mattresses (16 CFR part 
1633). Barriers are projected to be used in only about 5% of all 
upholstered furniture; most of this usage would be in designer or 
higher-priced furniture for which the relatively higher cost of 
barriers would not be a significant factor.
    The Commission plans to monitor the progress of ongoing studies on 
FR chemicals and to consider the results of those studies as the 
regulatory process continues. At the request of the staff, the National 
Toxicology Program (NTP) of the Department of Health and Human Services 
has undertaken a review of several FRs that could be used to meet CPSC 
flammability rules. The NTP review will be a relatively long-term 
project that contributes to the overall level of knowledge about FR 
chemicals among scientists and regulators.

H. Preliminary Regulatory Analysis

    The Commission has preliminarily determined to issue a rule 
establishing a flammability standard addressing the ignition of 
upholstered furniture. Section 4(i) of the FFA requires that the 
Commission prepare a preliminary regulatory analysis for this action 
and that it be published with the proposed rule. 15 U.S.C. 1193(i). The 
following discussion, extracted from the staff's memorandum titled 
``Preliminary

[[Page 11710]]

Regulatory Analysis of a Draft Proposed Flammability Rule to Address 
Ignitions of Upholstered Furniture,'' addresses this requirement.

1. Introduction

    The history of this rulemaking is discussed in Section A, 
Background, of this preamble. This Preliminary Regulatory Analysis 
discusses the impacts of provisions specified in the Commission's 
proposed standard for upholstered furniture. It provides information on 
the products and industries that are likely to be affected by actions 
taken to reduce upholstered furniture fires. The analysis also 
discusses potential costs and benefits associated with requirements of 
the proposed standard and reasonable alternatives. This analysis also 
discusses potential effects on small firms and other market impacts.

2. The Proposed Standard: Scope and Provisions

    The proposed standard contains smoldering ignition performance 
requirements for cover fabrics, and smoldering and open flame 
performance requirements for interior fire barriers (if they are used 
as the method of compliance). The proposed standard applies to finished 
or ready-to-assemble articles of upholstered furniture (such as 
upholstered sofas, loveseats, sofa beds, rockers, recliners, and other 
chairs) that are: primarily intended for indoor use in residences; 
constructed with an upholstered seating area, comprised of a contiguous 
upholstered seat and back or arm(s); and manufactured or imported after 
the effective date.
    The proposed standard offers manufacturers two alternative methods 
to produce complying furniture. Furniture items can comply by being 
made with upholstery cover materials that pass the cover material 
smoldering ignition resistance test (designated as ``Type I upholstered 
furniture'' in the proposed standard). Alternatively, manufacturers may 
comply with the proposed standard by using a barrier material under the 
upholstery fabric that passes the standard's applicable barrier tests 
(``Type II upholstered furniture''). This option allows manufacturers 
to use non-complying upholstery fabrics.

3. Products and Industries Potentially Affected

    The largest class of furniture products that would be affected is 
upholstered furniture on wood frames and dual purpose sleep furniture 
such as sofa beds, commonly bought for use in living rooms and family 
rooms. Other types of affected products include upholstered metal 
frame, reed, and rattan furniture.
    Products referred to as ``Household Upholstered Furniture'' by the 
Census Bureau are classified in code 337121 of the North American 
Industrial Classification System (NAICS). This classification includes 
production of upholstered furniture on frames made of wood, metal, or 
other materials, as well as dual-purpose sleep furniture, such as 
convertible sofa beds. The 2002 Economic Census reports that 1,686 U.S. 
companies (with 1,946 establishments) manufactured upholstered 
household furniture or dual-purpose sleep furniture as their primary 
product.\4\ Many other firms may also produce upholstered furniture as 
secondary products.
---------------------------------------------------------------------------

    \4\ U.S Census Bureau, U.S. Department of Commerce, 2002 
Economic Census, report EC02-311-337121, ``Upholstered Household 
Furniture Manufacturing: 2002,'' September 2004.
---------------------------------------------------------------------------

    The Economic Census reports that the value of shipments of 
upholstered household furniture by U.S. firms in 2002 was $10.3 
billion. The Annual Survey of Manufactures reported value of product 
shipments of $10.0 billion in 2003 and $9.55 billion in 2004.\5\ The 
value of product shipments for 2005 was reported by the Census Bureau 
to have totaled $9.9 billion.
---------------------------------------------------------------------------

    \5\ U.S Census Bureau, U.S. Department of Commerce, Value of 
Product Shipments: 2005, Annual Survey of Manufactures, November 
2006.
---------------------------------------------------------------------------

    Although there are a large number of upholstered furniture 
manufacturers, the top four companies accounted for nearly 35 percent 
of the total value of household upholstered furniture shipments in 2002 
(the latest year for which industry concentration ratio data are 
available); the 50 largest companies accounted for about 67 percent.\6\ 
Reports from the trade press indicate that the industry has become more 
concentrated in the last ten years. Several firms have ceased 
operations; others have merged with larger companies through buyouts. 
The consolidation included Furniture Brands International's acquisition 
of HDM Furniture Industrie