Standard for the Flammability of Upholstered Furniture, 18440-18444 [2021-06977]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 86, Number 67 (Friday, April 9, 2021)]
[Rules and Regulations]
[Pages 18440-18444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06977]



[[Page 18440]]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1640

[Docket No. CPSC-2021-0007]


 Standard for the Flammability of Upholstered Furniture

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Direct final rule.

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SUMMARY: The Consumer Product Safety Commission (Commission or CPSC) is 
issuing a direct final rule to codify in the Code of Federal 
Regulations the statutory requirements for the flammability of 
upholstered furniture under the COVID-19 Regulatory Relief and Work 
From Home Safety Act. This Act mandates that CPSC promulgate California 
Technical Bulletin 117-2013 as a flammability standard for upholstered 
furniture under section 4 of the Flammable Fabrics Act.

DATES: Effective date: The rule is effective on June 25, 2021, and 
applies to upholstered furniture manufactured, imported, or 
reupholstered on or after that date, unless we receive a significant 
adverse comment by May 10, 2021. If we receive a timely significant 
adverse comment, we will publish notification in the Federal Register, 
withdrawing this direct final rule before the effective date. The 
Director of the Federal Register approves the incorporation by 
reference of certain documents listed in this final rule as of June 25, 
2021.
    Compliance date for labeling requirement: Compliance with the 
labeling requirement in Sec.  1640.4 must start by June 25, 2022, and 
applies to upholstered furniture manufactured, imported, or 
reupholstered on or after that date.

ADDRESSES: You can submit comments, identified by Docket No. CPSC-2021-
0007, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: https://www.regulations.gov. Follow the 
instructions for submitting comments. CPSC does not accept comments 
submitted by electronic mail (email), except through https://www.regulations.gov. CPSC encourages you to submit electronic comments 
by using the Federal eRulemaking Portal, as described above.
    Mail/Hand Delivery/Courier Written Submissions: Submit comments by 
mail/hand delivery/courier to: Division of the Secretariat, Consumer 
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, 
MD 20814; telephone: (301) 504-7479. Alternatively, as a temporary 
option during the COVID-19 pandemic, you may email such submissions to: 
[email protected].
    Instructions: All submissions must include the agency name and 
docket number for this notice. CPSC may post all comments without 
change, including any personal identifiers, contact information, or 
other personal information provided, to: https://www.regulations.gov. 
Do not submit electronically: Confidential business information, trade 
secret information, or other sensitive or protected information that 
you do not want to be available to the public. If you wish to submit 
such information, please submit it according to the instructions for 
mail/hand delivery/courier written submissions.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov, and insert the 
docket number, CPSC-2021-0007 into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Andrew Lock, Project Manager, 
Directorate for Laboratory Sciences, National Product Testing and 
Evaluation Center, 5 Research Place, Rockville, MD 20850, phone: (301) 
987-2099; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

    On December 27, 2020, Congress signed into law, ``COVID-19 
Regulatory Relief and Work From Home Safety Act,'' Public Law 116-260 
(COVID-19 Act). Section 2101(c) of the COVID-19 Act mandates that, 180 
days after the date of enactment of the COVID-19 Act, the standard for 
upholstered furniture set forth by the Bureau of Electronic and 
Appliance Repair, Home Furnishings and Thermal Insulation of the 
Department of Consumer Affairs of the State of California in Technical 
Bulletin (TB) 117-2013 (TB 117-2013), entitled, ``Requirements, Test 
Procedure and Apparatus for Testing the Smolder Resistance of Materials 
Used in Upholstered Furniture,'' published June 2013, ``shall be 
considered to be a flammability standard promulgated by the Consumer 
Product Safety Commission under section 4 of the Flammable Fabrics Act 
(15 U.S.C. 1193).''

II. Description of the California Standard

    The Commission is codifying the relevant sections in 16 CFR part 
1640 to ensure that CPSC regulations clearly and accurately reflect the 
statutory requirements imposed on the regulated community by the COVID-
19 Act. Immediate codification of the relevant portions of the COVID-19 
Act requirements will put regulated parties on notice of their legal 
responsibilities and ensure that stakeholders, including manufacturers, 
importers, testing laboratories, consumers, and other interested 
parties, have notice that the CPSC will adopt the California standard 
effective on June 25, 2021.
    Pursuant to the COVID-19 Act, as of June 25, 2021, the California 
standard, TB 117-2013, is considered to be a flammability standard 
promulgated under section 4 of the FFA. TB 117-2013 sets forth the 
requirements, test procedure, and apparatus for testing the smolder 
resistance of materials used in upholstered furniture from hazards 
associated with smoldering ignition. The standard provides methods for 
smolder resistance of cover fabrics, barrier materials, resilient 
filling materials, and decking materials for use in upholstered 
furniture. The COVID-19 Act also requires that states may not preempt 
sections 1374 through 1374.3 of title 4, California Code of Regulations 
(CCR) (except for subsections (b) and (c) of section 1374 of that 
title).
     Section 1374, 4 CCR 1374, is titled, ``Flammability; 
Upholstered and Reupholstered Furniture'' and provides that:
    (a) On and after January 1, 2015, all filling materials and cover 
fabrics contained in any article of upholstered furniture and added to 
reupholstered furniture shall meet the fire retardant requirements as 
set forth in TB 117-2013.
    (b) In addition to the requirements of subsection (a) above, 
finished articles of upholstered furniture may also be tested in 
accordance with TB 116 entitled ``Test Procedures and Apparatus for 
Testing the Flame Retardance of Upholstered Furniture,'' dated January 
2019.
    (c) The flammability requirements contained in this section are 
considered to be flammability performance standards. Testing under 
these standards shall be at the discretion of the licensee; however, 
products and materials offered for sale in this state shall meet all 
applicable flammability requirements established in these regulations.
     Section 1374.1, 4 CCR 1374.1, is titled ``Exemptions. 
[Repealed];
     Section 1374.2, 4 CCR 1374.2, is titled ``Criteria for 
Exemption'' and includes exemptions for certain articles of upholstered 
furniture including outdoor cushions and pads, certain

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infant and toddler products, and medically prescribed furnishings;
     Section 1374.3, 4 CCR 1374.3 is titled ``Labeling'' and 
prescribes certain labeling requirements for upholstered furniture 
conforming to section 1374 (a) and 1374 (b).
    In accordance with the requirements of 1 CFR 51.5, the CPSC 
includes regulatory text with following incorporations by reference:
     TB 117-2013;
     Sections 1374, 1374.2, and 1374.3 of 4 CCR.

III. Description of the Rule

    The Commission codifies the following relevant statutory text of 
section 2101 in the COVID-19 Act:

A. Definitions

    The COVID-19 Act provides the following definitions:
     The term ``bedding product'' means--
    (1) an item that is used for sleeping or sleep-related purposes; or
    (2) any component or accessory with respect to an item described in 
subparagraph (1), without regard to whether the component or accessory, 
as applicable, is used--
    (a) alone; or
    (b) along with, or contained within, that item;
     the term ``California standard'' means TB 117-2013;
     the terms ``foundation'' and ``mattress'' have the 
meanings given those terms in 16 CFR 1633.2, as in effect on the date 
of enactment of the COVID-19 Act; and
     the term ``upholstered furniture''--
    (1) means an article of seating furniture that--
    (a) is intended for indoor use;
    (b) is movable or stationary;
    (c) is constructed with an upholstered seat, back, or arm;
    (d) is--
    (i) made or sold with a cushion or pillow, without regard to 
whether that cushion or pillow, as applicable is attached or detached 
with respect to the article of furniture; or
    (ii) stuffed or filled, or able to be stuffed or filled, in whole 
or in part, with any material, including a substance or material that 
is hidden or concealed by fabric or another covering, including a 
cushion or pillow belonging to, or forming a part of, the article of 
furniture; and
    (e) together with the structural units of the article of furniture, 
any filling material, and the container and covering with respect to 
those structural units and that filling material, can be used as a 
support for the body of an individual, or the limbs and feet of an 
individual, when the individual sits in an upright or reclining 
position;
    (2) includes an article of furniture that is intended for use by a 
child; and
    (3) does not include--
    (a) a mattress;
    (c) a foundation;
    (d) any bedding product; or
    (e) furniture that is used exclusively for the purpose of physical 
fitness and exercise.

B. Testing and Certification

    The COVID-19 Act provides that for purposes of testing and 
certification:
     A fabric, related material, or product to which the 
California standard applies shall not be subject to section 14(a) of 
the Consumer Product Safety Act (15 U.S.C. 2063(a)) with respect to 
that standard.
     Each manufacturer of a product that is subject to the 
California standard shall include the statement ``Complies with U.S. 
CPSC requirements for upholstered furniture flammability'' on a 
permanent label located on the product, which shall be considered to be 
a certification that the product complies with that standard.

C. Preemption

    The COVID-19 Act provides that for purposes of preemption, 
notwithstanding section 16 of the FFA \1\ and section 231 of the 
Consumer Product Safety Improvement Act of 2008,\2\ and except as 
provided in sections 1374 through 1374.3 of title 4, California Code of 
Regulations (except for subsections (b) and (c) of section 1374 of that 
title), or the California standard, no State or any political 
subdivision of a State may establish or continue in effect any 
provision of a flammability law, regulation, code, standard, or 
requirement that is designed to protect against the risk of occurrence 
of fire, or to slow or prevent the spread of fire, with respect to 
upholstered furniture.
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    \1\ Section 16(a) of the FFA states that, with certain 
exceptions: ``[W]henever a flammability standard or other regulation 
for a fabric, related material, or product is in effect under this 
Act, no State or political subdivision of a State may establish or 
continue in effect a flammability standard or other regulation for 
such fabric, related material or product if the standard or other 
regulation is designed to protect against the same risk of 
occurrence of fire with respect to which the standard or other 
regulation under this Act is in effect unless the State or political 
subdivision standard or other regulation is identical to the Federal 
standard or other regulation.'' 15 U.S.C. 1203(a).
    \2\ Section 231 of the CPSIA, Public Law 110-314, provides that, 
``The provisions of this section establishing the extent to which 
the Flammable Fabrics Act (15 U.S.C. 1191 et seq.) preempts, limits, 
or otherwise affects any other Federal, State, or local law, any 
rule, procedure, or regulation, or any cause of action under State 
or local law not to be expanded or contracted in scope, or limited, 
modified or extended in application, by any rule or regulation under 
the Flammable Fabrics Act, or by reference in any preamble, 
statement of policy, executive branch statements, or other matter 
associated with the publication of any such rule or regulation.'' 
(15 U.S.C. 2051 note).
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    In addition, the COVID-19 Act provides that the COVID-19 Act and 
the FFA (15 U.S.C. 1191 et seq.) will not preempt or otherwise affect--
    (1) any State or local law, regulation, code, standard, or 
requirement that--
    (a) concerns health risks associated with upholstered furniture; 
and
    (b) is not designed to protect against the risk of occurrence of 
fire, or to slow or prevent the spread of fire, with respect to 
upholstered furniture;
    (2) sections 1374 through 1374.3 of title 4, California Code of 
Regulations (except for subsections (b) and (c) of section 1374 of that 
title), as in effect on the date of enactment of this Act; or
    (3) the California standard.

IV. Direct Final Rule Process

    The Commission is issuing this rule as a direct final rule (DFR). 
The Administrative Procedure Act (APA) generally requires notice and 
comment rulemaking. 5 U.S.C. 553(b). In Recommendation 95-4, the 
Administrative Conference of the United States (ACUS) endorsed direct 
final rulemaking as an appropriate procedure to expedite promulgation 
of rules that are noncontroversial and that are not expected to 
generate significant adverse comment. See 60 FR 43108 (August 18, 
1995). Consistent with the ACUS recommendation, the Commission is 
publishing this rule as a direct final rule because CPSC believes that 
this action is not controversial, and CPSC does not expect significant 
adverse comment because we are codifying statutorily mandated 
requirements. Unless we receive a significant adverse comment within 30 
days, the rule will become effective on June 25, 2021. In accordance 
with ACUS's recommendation, the Commission considers a significant 
adverse comment to be one where the commenter explains why the rule 
would be inappropriate, including an assertion challenging the rule's 
underlying premise or approach, or a claim that the rule would be 
ineffective or unacceptable without change.
    Should the Commission receive a significant adverse comment, the 
Commission will withdraw this direct final rule. A notice of proposed 
rulemaking (NPR), providing an opportunity for public comment, is also

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being published in this same issue of the Federal Register.

V. Effective Date and Compliance Date

    Sec. 2101 of the COVID-19 Act states that, beginning on June 25, 
2021, the California standard shall be considered to be a flammability 
standard promulgated by the CPSC under section 4 of the FFA (15 U.S.C. 
1193). Section 4(b) of the FFA provides that a flammability standard 
shall become effective one year from the date it is promulgated, unless 
the Commission finds for good cause that an earlier or later effective 
date is in the public interest, and the Commission publishes the reason 
for that finding. Section 4(b) of the FFA also requires that an 
amendment of a flammability standard shall exempt products ``in 
inventory or with the trade'' on the date the amendment becomes 
effective, unless the Commission limits or withdraws that exemption 
because those products are so highly flammable that they are dangerous 
when used by consumers for the purpose for which they are intended. 15 
U.S.C. 1193(b).

A. Effective Date

    Under the COVID-19 Act, because the California standard is required 
to be promulgated as an FFA standard as of June 25, 2021, under section 
4(b) of the FFA, the effective date would be a year from the date of 
promulgation, or June 25, 2022, absent Commission action. However, the 
Commission concludes that there is good cause to require an earlier 
effective date of June 25, 2021 because based on current information, a 
very high percentage (up to 95 percent) of upholstered furniture items 
currently marketed in the United States already comply with the TB 117-
2013 requirements. Therefore, the June 25, 2021 effective date would 
not impose any significant additional burden to industry. Accordingly, 
upholstered furniture manufactured, imported, or reupholstered on or 
after June 25, 2021, is required to be compliant with the requirements 
of the standard.

B. Inventory

    Section 4(b) of the Flammable Fabrics Act also states that ``[e]ach 
. . . [promulgated] standard . . . shall exempt . . . products in 
inventory or with the trade as of the date on which the standard . . . 
becomes effective except that, if the Commission finds that any such . 
. . product is so highly flammable as to be dangerous when used by 
consumers for the purpose for which it is intended, it may under such 
conditions as the Commission may prescribe, withdraw, or limit the 
exemption for such . . . product.'' Id. Because industry is 
substantially compliant with the TB-117-2013 requirements, most 
products in inventory or with trade would already meet the flammability 
requirements under the COVID-19 Act, and therefore, would not support a 
finding by the Commission that such products would be deemed highly 
flammable. Accordingly, the Commission concludes that there is no basis 
to prescribe, withdraw, or limit the exemption for products in 
inventory or trade.

C. Compliance Date for Labeling

    The COVID-19 Act imposes a new requirement which directs each 
manufacturer of a product that is subject to the California standard to 
include the statement ``Complies with U.S. CPSC requirements for 
upholstered furniture flammability'' on a permanent label located on 
the product. Because this is a new requirement, the Commission provides 
a later compliance date, for the labeling requirements only, to allow 
the furniture industry sufficient time to implement the new labeling 
requirements and address any supply chain issues that may exist for 
relabeling upholstered furniture. Accordingly, upholstered furniture 
manufactured, imported, or reupholstered on or after June 25, 2021, 
must comply with the flammability requirements of TB 117-2013, and 
comply with the labeling requirements by June 25, 2022.

VI. Incorporation by Reference

    The Office of the Federal Register (OFR) has regulations regarding 
incorporation by reference. 1 CFR part 51. Under these regulations, 
agencies must discuss, in the preamble of the rule, ways in which the 
material the agency incorporates by reference is reasonably available 
to interested parties, and how interested parties can obtain the 
material. In addition, the preamble of the rule must summarize the 
material. 1 CFR 51.5(a).
    In accordance with the OFR regulations, section II of this preamble 
summarizes the material in TB 117-2013 and sections 1374, 1374.2, and 
1374.3 of 4 CCR that the Commission incorporates by reference into 16 
CFR part 1640. These documents are reasonably available to interested 
parties because these documents are not copyrighted and are publicly 
available. TB 117-2013 is available for viewing and downloading at 
https://bhgs.dca.ca.gov/about_us/tb117_2013.pdf. Interested parties can 
request a copy of TB 117-2013 from the State of California, Department 
of Consumer Affairs, 4244 South Market Court, Suite D, Sacramento, CA 
95834. Sections 1374, 1374.2, and 1374.3 of 4 CCR are available for 
viewing and downloading at https://oal.ca/gov/publications/ccr/. 
Interested parties can order a hard-copy version of the CCR or purchase 
individual Titles, from Barclay, publisher of the Official CCR, at 1-
800-888-3600. See Sec.  1640.6(b) for more availability information.
    The CPSC will make both TB117-2013, and sections 1374, 1374.2, and 
1374.3 of 4 CCR available in www.regulations.gov in this docket, under 
Supporting and Related Material. Interested parties can also schedule 
an appointment to inspect copies at CPSC's Division of the Secretariat, 
U.S. Consumer Product Safety Commission, Room 820, 4330 East West 
Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: [email protected].

VII. Certification

    Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 
2051-2089) requires manufacturers of products subject to a consumer 
product safety rule under the CPSA, or to a similar rule, ban, 
standard, or regulation under any other act enforced by the Commission, 
to certify that the products comply with all applicable CPSC 
requirements. 15 U.S.C. 2063(a). The COVID-19 Act provides that for 
purposes of testing and certification, fabric, related material, or 
product to which the California standard applies shall not be subject 
to section 14(a) of the CPSA (15 U.S.C. 2063(a)) with respect to that 
standard. Accordingly, section 14(a) of the CPSA does not apply to this 
standard for the flammability of upholstered furniture. However, the 
COVID-19 Act requires each manufacturer of a product that is subject to 
the California standard to include the statement ``Complies with U.S. 
CPSC requirements for upholstered furniture flammability'' on a 
permanent label located on the product, which shall be considered to be 
a certification that the product complies with this standard.

VIII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally 
requires agencies to review final rules for their potential economic 
impact on small entities, including small businesses, and prepare 
regulatory flexibility analyses. 5 U.S.C. 603, 604. The CPSC has 
determined that the direct final rule is limited to codifying the 
relevant statutory provisions of the COVID-19 Act, and will not cause a 
significant impact on small entities. The CPSC

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certifies that this rule will not, if issued, have a significant impact 
on a substantial number of small entities.

IX. Paperwork Reduction Act

    The COVID-19 Act includes requirements for labeling because it 
requires each manufacturer of a product that is subject to the 
California standard to include a permanent label located on the product 
with the statement ``Complies with U.S. CPSC requirements for 
upholstered furniture flammability.''
    Although marking, labeling, and instructional literature can 
constitute a ``collection of information,'' as defined in the Paperwork 
Reduction Act (PRA; 44 U.S.C. 3501-3521), the PRA excepts labels that 
disclose information completely defined by the agency, such as the 
Surgeon General's warnings about cigarettes. Here, the required label 
is defined by statute and allows for no variability regarding the 
content of the label. Thus, the public disclosure of information 
required by the product label: ``Complies with U.S. CPSC requirements 
for upholstered furniture flammability'' does not fall within the 
definition of ``collection of information'' under the PRA. 5 CFR 
1320.3(c)(2).

X. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
the Commission's rules from any requirement to prepare an environmental 
assessment or an environmental impact statement where they ``have 
little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(2). This rule falls within the categorical exclusion, so no 
environmental assessment or environmental impact statement is required.

XI. Preemption

    The COVID-19 Act provides that for purposes of preemption, 
notwithstanding the preemption provisions under section 16 of the 
Flammable Fabrics Act (15 U.S.C. 1203) and section 231 of the Consumer 
Product Safety Improvement Act of 2008 (CPSIA) (15 U.S.C. 2051 note), 
and except as provided in sections 1374 subsections (b) and (c) of the 
California Code of Regulations of section 1374; or the California 
standard, no state or any political subdivision of a State may 
establish or continue in effect any provision of a flammability law, 
regulation, code, standard, or requirement that is designed to protect 
against the risk of occurrence of fire, or to slow or prevent the 
spread of fire, with respect to upholstered furniture.
    In addition, the COVID-19 Act includes a provision--``Preservation 
of Certain State Law'' providing that nothing in the COVID-19 Act or 
the FFA (15 U.S.C. 1191 et seq.) will preempt or otherwise affect--
    (1) any State or local law, regulation, code, standard, or 
requirement that--
    (a) concerns health risks associated with upholstered furniture; 
and
    (b) is not designed to protect against the risk of occurrence of 
fire, or to slow or prevent the spread of fire, with respect to 
upholstered furniture;
    (2) sections 1374 through 1374.3 of title 4, California Code of 
Regulations (except for subsections (b) and (c) of section 1374 of that 
title), as in effect on the date of enactment of this Act; or
    (3) the California standard.
    This rule codifies the preemption provisions to put regulated 
parties on notice of their legal responsibilities regarding preemption 
and to eliminate the potential for confusion that might arise in the 
event that a conflict is perceived between the preemption requirements 
of the COVID-19 Act and those contained in other CPSC statutes.

XII. Congressional Review Act

    The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that 
before a rule may take effect, the agency issuing the rule must submit 
the rule, and certain related information, to each House of Congress 
and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission 
must indicate whether the rule is a ``major rule.'' The CRA states that 
the Office of Information and Regulatory Affairs (OIRA) determines 
whether a rule qualifies as a ``major rule.''
    Pursuant to the CRA, this rule does not qualify as a ``major 
rule,'' as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC 
will submit the required information to each House of Congress and the 
Comptroller General.

List of Subjects in 16 CFR Part 1640

    Consumer protection, Flammable materials, Incorporation by 
reference, Labeling, Upholstered furniture materials, Textiles.

0
For the reasons stated in the preamble, the Commission amends title 16 
of the Code of Federal Regulations by adding part 1640 to subchapter D 
to read as follows:

PART 1640--STANDARD FOR THE FLAMMABILITY OF UPHOLSTERED FURNITURE

Sec.
1640.1 Purpose and scope.
1640.2 Effective date and compliance date.
1640.3 Definitions.
1640.4 Certification and labeling.
1640.5 Requirements.
1640.6 Incorporation by reference.

    Authority:  Sec. 2101, Pub. L. 116-260, 15 U.S.C. 1193.


Sec.  1640.1  Purpose and scope.

    (a) Purpose. This part establishes the standard for the 
flammability of upholstered furniture, as set forth by the Bureau of 
Electronic and Appliance Repair, Home Furnishings and Thermal 
Insulation of the Department of Consumer Affairs of the State of 
California in Technical Bulletin 117-2013, entitled ``Requirements, 
Test Procedure and Apparatus for Testing the Smolder Resistance of 
Materials Used in Upholstered Furniture,'' published June 2013 (for 
availability, see Sec.  1640.6).
    (b) Scope. All upholstered furniture as defined in Sec.  1640.3 
manufactured, imported, or reupholstered on or after the effective date 
of this standard is subject to the requirements of this part.


Sec.  1640.2  Effective date and compliance date.

    (a) Effective date. This part (the standard) is effective June 25, 
2021, and shall apply to all upholstered furniture, as defined in Sec.  
1640.3, manufactured, imported, or reupholstered on or after that date.
    (b) Compliance date. Compliance with the labeling requirement in 
Sec.  1640.4 shall be required by June 25, 2022, and shall apply to all 
upholstered furniture, as defined in Sec.  1640.3, manufactured, 
imported, or reupholstered on or after that date.


Sec.  1640.3  Definitions.

    (a) Bedding product means
    (1) An item that is used for sleeping or sleep-related purposes; or
    (2) Any component or accessory with respect to an item described in 
this paragraph (a), without regard to whether the component or 
accessory, as applicable, is used--
    (i) Alone; or
    (ii) Along with, or contained within, that item;
    (b) California standard means the standard set forth by the Bureau 
of Electronic and Appliance Repair, Home Furnishings and Thermal 
Insulation of the Department of Consumer Affairs of the State of 
California in Technical Bulletin 117- 2013, entitled ``Requirements, 
Test Procedure and Apparatus for Testing the Smolder Resistance of 
Materials Used in Upholstered Furniture'', published June 2013 (see 
Sec.  1640.6).
    (c) Foundation has the meaning given that term in Sec.  1633.2 of 
this chapter.

[[Page 18444]]

    (d) Mattress has the meaning given that term in Sec.  1633.2 of 
this chapter.
    (e) Upholstered furniture. (1) Means an article of seating 
furniture that--
    (i) Is intended for indoor use;
    (ii) Is movable or stationary;
    (iii) Is constructed with an upholstered seat, back, or arm;
    (iv) Is:
    (A) Made or sold with a cushion or pillow, without regard to 
whether that cushion or pillow, as applicable, is attached or detached 
with respect to the article of furniture, or
    (B) Stuffed or filled, or able to be stuffed or filled, in whole or 
in part, with any material, including a substance or material that is 
hidden or concealed by fabric or another covering, including a cushion 
or pillow belonging to, or forming a part of, the article of furniture; 
and
    (v) Together with the structural units of the article of furniture, 
any filling material, and the container and covering with respect to 
those structural units and that filling material, can be used as a 
support for the body of an individual, or the limbs and feet of an 
individual, when the individual sits in an upright or reclining 
position;
    (2) Includes an article of furniture that is intended for use by a 
child; and
    (3) Does not include--
    (i) A mattress;
    (ii) A foundation;
    (iii) Any bedding product; or
    (iv) Furniture that is used exclusively for the purpose of physical 
fitness and exercise.


Sec.  1640.4  Certification and labeling.

    (a) Testing and certification. A fabric, related material, or 
product to which the California standard applies shall not be subject 
to section 14(a) of the Consumer Product Safety Act (15 U.S.C. 2063(a)) 
with respect to that standard.
    (b) Certification label. Each manufacturer of a product that is 
subject to the California standard shall include the statement 
``Complies with U.S. CPSC requirements for upholstered furniture 
flammability'' on a permanent label located on the product, which shall 
be considered to be a certification that the product complies with that 
standard.


Sec.  1640.5  Requirements.

    (a) In general. All upholstered furniture must comply with the 
requirements in the California standard, Technical Bulletin (TB) 117-
2013, ``Requirements, Test Procedure and Apparatus for Testing the 
Smolder Resistance of Materials Used in Upholstered Furniture,'' June 
2013 (incorporated by reference Sec.  1640.6).
    (b) Preemption. Notwithstanding section 16 of the Flammable Fabrics 
Act (15 U.S.C. 1203) and section 231 of the Consumer Product Safety 
Improvement Act of 2008 (15 U.S.C. 2051 note), and except as provided 
in sections 1374, 1374.2, and 1374.3 of 4 California Code of 
Regulations (CCR) (except for subsections (b) and (c) of section 1374 
of that title) (incorporated by reference Sec.  1640.6) or the 
California standard, no State or any political subdivision of a State 
may establish or continue in effect any provision of a flammability 
law, regulation, code, standard, or requirement that is designed to 
protect against the risk of occurrence of fire, or to slow or prevent 
the spread of fire, with respect to upholstered furniture.
    (c) Preservation of certain State law. Nothing in Public Law 116-
260 or the Flammable Fabrics Act (15 U.S.C. 1191 et seq.) and section 
231 of the Consumer Product Safety Improvement Act of 2008 (15 U.S.C. 
2051 note), may be construed to preempt or otherwise affect:
    (1) Any State or local law, regulation, code, standard, or 
requirement that--
    (i) Concerns health risks associated with upholstered furniture; 
and
    (ii) Is not designed to protect against the risk of occurrence of 
fire, or to slow or prevent the spread of fire, with respect to 
upholstered furniture;
    (2) Sections 1374, 1374.2, and 1374.3 of 4 CCR (except for 
subsections (b) and (c) of section 1374 of that title), as in effect on 
the date of enactment of Public Law 116-260; or
    (3) The California standard.


Sec.  1640.6  Incorporation by reference.

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available 
for inspection at U.S. Consumer Product Safety Commission (CPSC), Room 
820, 4330 East West Highway, Bethesda, MD 20814, and is available from 
the other sources listed in this section. To schedule an appointment, 
contact CPSC's Division of the Secretariat: telephone (301) 504-7479 or 
email: [email protected]. The material is also available for inspection 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, email 
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.
    (a) State of California, Department of Consumer Affairs, 4244 South 
Market Court, Suite D, Sacramento, CA 95834; email [email protected]; 
phone (800) 952-5210; or visit https://bhgs.dca.ca.gov/about_us/tb117_2013.pdf.
    (1) California standard. Technical Bulletin (TB) 117-2013, 
``Requirements, Test Procedure and Apparatus for Testing the Smolder 
Resistance of Materials Used in Upholstered Furniture,'' June 2013; IBR 
approved for Sec.  1640.5.
    (2) [Reserved]
    (b) State of California, Office of Administrative Law (OAL), 300 
Capitol Mall, Suite 1250, Sacramento, CA 95814-4339, phone 916-323-
6815, email [email protected]; or visit https://oal.ca.gov/publications/ccr/; or purchase a hard-copy version (full code or individual titles) 
from Barclay, publisher of the Official CCR, at 1-800-888-3600.
    (1) California Code of Regulations (CCR), Title 4, Sections 1374, 
1374.2, and 1374.3, in effect as of February 26, 2021 Register 2021, 
No. 9; IBR approved for Sec.  1640.5.
    (2) [Reserved]

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2021-06977 Filed 4-8-21; 8:45 am]
BILLING CODE 6355-01-P