Standard for the Flammability of Mattresses and Mattress Pads; Amendment, 32758-32764 [2021-13070]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 86, Number 118 (Wednesday, June 23, 2021)]
[Rules and Regulations]
[Pages 32758-32764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13070]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1632

[Docket No. CPSC-2020-0024]


Standard for the Flammability of Mattresses and Mattress Pads; 
Amendment

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Commission (Commission, or CPSC) 
is issuing this final rule to amend its Standard for the Flammability 
of Mattresses and Mattress Pads. The ignition source cigarette 
specified in the standard for use in the mattress standard's 
performance tests, Standard Reference Material cigarette SRM 1196, is 
no longer available for purchase. This final rule amends the mattress 
standard to require a revised Standard Reference Material cigarette, 
SRM 1196a, which was developed by the National Institute of Standards 
and Technology, as the ignition source for testing to the mattress 
standard.

DATES: This rule is effective July 23, 2021.

FOR FURTHER INFORMATION CONTACT: Lisa Scott, Directorate for Laboratory 
Sciences, Office of Hazard Identification and Reduction, U.S. Consumer 
Product Safety Commission, 5 Research Place, Rockville, MD 20850; 
telephone: 301-987-2064; email: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

1. The Standard

    The Standard for the Flammability of Mattresses and Mattress Pads 
(Standard), 16 CFR part 1632, issued pursuant to the Flammable Fabrics 
Act (FFA), 15 U.S.C. 1191 et seq., sets forth a test to determine the 
ignition resistance of a mattress or mattress pad when exposed to a 
lighted cigarette. Lighted cigarettes are placed at specified locations 
on the mattress or mattress pad. The Standard establishes pass/fail 
criteria for the tests. The Standard currently specifies the ignition 
source for these tests as Standard Reference Material cigarette SRM 
1196, available for purchase from the National Institute of Standards 
and Technology (NIST). See 16 CFR 1632.4(a)(2).

2. Development of the Original Standard Reference Material Cigarette

    The original specification for the Standard's ignition source 
included physical characteristics of a conventional, commercially 
available, non-filtered, king-sized cigarette. Although no specific 
brand was identified in the standard, a Pall Mall Red cigarette, 
manufactured by R.J. Reynolds Tobacco Company (RJR), was commonly known 
to meet the specifications. In early 2008, RJR notified CPSC that the 
company intended to convert its production of Pall Mall Red cigarettes 
to be Fire Standard Compliant (FSC).
    In 2008, CPSC sought to find an alternate ignition source and 
contracted with NIST to develop an ignition source with an ignition 
strength equivalent to the Pall Mall Red cigarette. The ignition 
strength value is on a scale from 0 to 100 and is analogous to the 
percentage of full-length burns on a laboratory substrate. Lower values 
indicate a cigarette is more likely to self-extinguish when not 
actively being smoked, while higher values indicate a cigarette is more 
likely to remain lit while unattended. The non-FSC Pall Mall Red 
ignition strength varied by vintage from a low of 35 to a high of 95, 
most often falling at the higher end of the range. FSC cigarettes are 
required to have an ignition strength lower than 25, and in practice, 
they are often much weaker, to ensure uniform compliance.
    In 2010, NIST developed SRM 1196, Standard Cigarette for Ignition 
Resistance Testing. SRM 1196 was available for purchase starting in 
September 2010. On November 1, 2010, CPSC proposed the use of SRM 1196 
as the standard ignition source. 75 FR 67047. On September 23, 2011, 
CPSC issued a final rule amending the Standard to specify SRM 1196 as 
the standard ignition source, which became effective on September 23, 
2012. 76 FR 59014.

[[Page 32759]]

3. Development of a New Standard Reference Material Cigarette

    All of the SRM 1196 cigarettes were produced in one production run 
in 2010, with a supply estimated to last approximately 10 years. NIST 
staff made several attempts to procure a new batch of SRM 1196 
cigarettes as the supply dwindled; but in late 2018, the supply of SRM 
1196 was depleted before NIST was able to complete a new procurement. 
NIST was unable to find a manufacturer to produce additional SRM 1196 
cigarettes. However, NIST successfully procured SRM 1196a as a 
replacement for SRM 1196.
    NIST conducted tests to determine whether the SRM 1196 properties 
were replicated in the new SRM 1196a. NIST evaluated the suitability of 
SRM 1196a by examining the cigarette's ignition strength, tobacco 
column length and mass, use of unbanded paper, and absence of a filter. 
Tobacco column length is the length of the cigarette that contains 
tobacco. Banded paper contains bands that slow the cigarette's 
combustion when not actively being smoked, while unbanded paper does 
not contain these bands. NIST affirmed that these SRM 1196 properties 
were replicated in the new SRM 1196a, because the latter has a similar 
ignition strength, tobacco column length and mass, it uses unbanded 
paper, and it has no filter. NIST began selling SRM 1196a in February 
2020.

4. CPSC Staff Evaluation of SRM 1196a 1
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    \1\ This final rule is based on information and analysis 
provided in the Staff Briefing Package, Final Rule: Amendment to 16 
CFR part 1632 Standard for the Flammability of Mattresses and 
Mattress Pads, available at https://www.cpsc.gov/s3fs-public/Standard-for-the-Flammability-of-Mattresses-and-Mattress-Pads-SRM-1196a-Cigarette.pdf?bHVseQI3Ak24UimMOnqrsDwtavQYGg4E.
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    CPSC staff evaluated SRM 1196a in a pilot study and then a full-
scale study to determine whether it is a comparable, safety-neutral 
replacement for SRM 1196.
    CPSC staff conducted an initial pilot study in late 2019 to 
evaluate the suitability of SRM 1196a as a substitute for SRM 1196. The 
goal of the pilot study was to ensure the full-scale study met 
statistically robust and scientifically meaningful criteria. Staff 
evaluated the confidence interval and margin of error to use in the 
full-scale study, based on an examination of the 2010 transition from 
the original ignition source to SRM 1196, CPSC compliance data, and the 
number of test replicates required by the Standard. Based on this 
analysis and testing during the pilot study, staff subject matter 
experts determined that a 90 percent confidence interval and 
equivalence margin of 35 percent were appropriate.
    CPSC staff then conducted a full-scale study in early 2020, to 
determine whether there is statistical equivalence between SRM 1196 and 
SRM 1196a. In the full-scale study, staff evaluated SRM 1196 and SRM 
1196a and found statistically equivalent char length pass/fail patterns 
for all tested mattress substrates. Test results were within a 90 
percent confidence interval and equivalence margin of 35 percent. Staff 
noted that NIST certified the ignition strengths of both SRMs to be 
comparable, based on a 95 percent confidence interval with a 5 percent 
margin in laboratory testing. Although the bounds found by CPSC staff 
are larger than the NIST confidence interval, staff determined that the 
NIST tests only examined the cigarette characteristics on substrates 
that have little variability. The CPSC testing included representative 
mattress materials that are inherently more variable than the benchmark 
substrates in the NIST cigarette tests. Furthermore, staff analysis of 
both SRM cigarettes found that the physical dimensions of SRM 1196 and 
SRM 1196a are nearly identical. Based on the evidence provided by the 
full-scale study, pilot study, and NIST certification, as well as 
examination of CPSC compliance data and data from the 2010 transition 
from the original ignition source to SRM 1196, CPSC staff's review 
showed that SRM 1196a cigarettes are statistically equivalent to SRM 
1196. On these bases, the Commission finds that SRM 1196a is a 
comparable, safety-neutral replacement for SRM 1196.

B. Statutory Provisions

    The FFA sets forth the process by which the Commission can issue or 
amend a flammability standard. 15 U.S.C. 1193. In accordance with those 
provisions, the Commission is amending the Standard to specify SRM 
1196a as the ignition source for testing under the Standard. As 
required by the FFA, the Commission published a proposed rule 
containing the text of the ignition source revision, alternatives 
considered, and a preliminary regulatory analysis. 15 U.S.C. 1193(i); 
85 FR 68803 (Oct. 30, 2020).
    Before issuing a final rule, the Commission must prepare a final 
regulatory analysis and make findings concerning any relevant voluntary 
standard, the relationship of costs and benefits of the rule (in this 
case, the ignition source revision), and the burden imposed by the 
rule. 15 U.S.C. 1193(j). In addition, the Commission must find that the 
rule: (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).
    The Commission also must provide an opportunity for interested 
persons to make an oral presentation concerning the rulemaking before 
the Commission may issue a final rule. Id. 1193(d). In the preamble to 
the proposed rule, the Commission requested that anyone who wanted to 
make an oral presentation concerning this rulemaking contact the 
Commission's Division of the Secretariat within 45 days of publication 
of the proposed rule. The Commission did not receive any requests to 
make an oral presentation.

C. Description of the Revised Ignition Source

    Currently, the Standard requires that the ignition source for 
testing mattresses ``shall be a Standard Reference Material cigarette 
(SRM 1196), available for purchase from the National Institute of 
Standards and Technology. . . .'' 16 CFR 1632.4(a)(2). CPSC is amending 
the Standard to require the use of SRM 1196a instead of SRM 1196 
cigarettes.

D. Response to Comments on the Proposed Rule

    The Commission received four public comments. One commenter 
supported amending the standard to update the SRM ignition source, 
citing the need for consistency in flammability performance and test 
methods. Three other commenters opposed the amendment. The issues 
raised in the comments are summarized and addressed below.
    Comment: The cost of implementing SRM 1196a would negatively impact 
mattress manufacturers, due to the higher price charged for SRM 1196a 
over SRM 1196, and the cost increase associated with SRM 1196a over SRM 
1196 should be considered substantial.
    Response: The economic analysis of SRM 1196a shows that it will not 
have a significant economic impact on small domestic firms that supply 
the U.S. mattress market. The most expensive testing scenario a firm 
might encounter would fall well below the threshold to be considered 
significant. Furthermore, because SRM 1196a is a safety-neutral 
replacement for SRM 1196, firms are not required to retest existing 
prototypes with SRM 1196a. So, for existing prototypes that firms 
intend to continue

[[Page 32760]]

to offer for sale, there is no additional cost associated with this 
amendment. Additionally, although the price of SRM 1196a is more than 
the price of SRM 1196, the cost of SRM 1196a is determined by NIST 
using the actual costs incurred in the production of SRM 1196a and 
applicable overhead and surcharge rates. The Commission has determined 
that the cost increase of adopting SRM 1196a is not considered 
significant to even the smallest domestic suppliers in the United 
States.
    Comment: The additional cost of SRM 1196a would be passed along to 
consumers, increasing the cost of mattresses nationwide.
    Response: The increase in cost associated with adopting SRM 1196a 
could potentially be passed on to the consumer. Under the Standard's 
testing requirements, however, the cost of testing is born over the 
size of the production run for a given prototype. For a regular 
production run, the cost per mattress product that could be passed on 
to the consumer associated with adopting SRM 1196a as the ignition 
source is negligible. Furthermore, because SRM 1196a is a safety-
neutral replacement for SRM 1196, firms are not required to retest 
existing prototypes. So, for existing prototypes that firms intend to 
continue to offer for sale, there is no additional cost associated with 
this amendment and no associated cost passed on to the consumer.
    Comment: The U.S. market for mattress products faces challenges 
stemming from supply chain shortages and disruptions related to the 
COVID-19 pandemic and tariffs on trade.
    Response: Preliminary data published by the U.S. Bureau of Labor 
Statistics (BLS) for the Mattress Manufacturing Industry (NAICS 337910) 
show that prices charged to producers to manufacture mattresses have 
increased by 2.2 percent since the start of the pandemic. The Producer 
Price Index data published by the BLS does not provide details on what 
causes industry production price changes. Nor does it attribute price 
increases to supply chain shortages or disruptions; but it does provide 
a reliable indication that production prices have increased. Although 
cost increases currently may be impacting industry, the cost associated 
with adopting SRM 1196a is small. The marginal cost increase associated 
with amending the Standard will not have a significant impact on 
suppliers. Delaying the rule, or electing not to adopt SRM 1196a as the 
standard ignition source, would not result in any significant cost 
savings.
    Comment: The SRM ignition source is not representative of FSC 
cigarettes consumers can purchase. It is too strong to be a 
standardized ignition source for testing. The Commission should use FSC 
cigarettes as the ignition source for testing to the Standard.
    Response: The SRM 1196a cigarette is a more appropriate test 
ignition source than FSC cigarettes for the following reasons:
     The SRM cigarette is a test instrument with calibration 
and traceability to NIST. Its ignition characteristics are more 
important than whether it looks like a consumer cigarette.
     Cigarette ignition of mattresses and bedding remains a 
substantial cause of residential fire deaths and injuries each year. 
Weakening the standard ignition strength would lower the threshold for 
smoldering ignition of these products, potentially increasing the 
incidence of these events. The SRM 1196a cigarette maintains the 
current level of safety because it is a safety-neutral replacement for 
SRM 1196.
     FSC cigarettes are intended to self-extinguish when not 
actively being smoked. The Standard states: ``If a cigarette 
extinguishes before burning its full length on any mattress surface 
location . . . the test must be repeated with a freshly lit 
cigarette.'' Because FSC cigarettes are designed to reduce the amount 
of time a cigarette burns while unattended, testing with FSC cigarettes 
could lead to many test locations with an incomplete initial data 
point. In addition, it also could lead to substantially more repeated 
tests. This would require firms to use more cigarettes to complete a 
test and increase the time required to complete the test.
    Comment: The Commission should consider SRM 1082, NIST's FSC 
Cigarette Ignition Strength Standard material.
    Response: SRM 1082 is not a suitable replacement for SRM 1196 
because it is an FSC cigarette. SRM 1082 would not provide the same 
level of safety, given its ignition strength of 15.8, compared to the 
ignition strength of SRM 1196a of 95.6 (on a scale of 0-100). SRM 1082 
is also more expensive than SRM 1196a, with a cost of $405 for one 
carton, which is 85 percent costlier per cigarette than SRM 1196a ($437 
for two cartons). Additionally, because SRM 1082 is an FSC cigarette, 
it could self-extinguish, requiring substantially more individual 
cigarettes to complete the testing.
    Comment: It is not fair to obligate industry to procure SRM 
cigarettes from NIST, and NIST has a vested financial interest in 
revising the Standard.
    Response: SRM cigarettes are available for purchase from NIST, and 
no other source. According to NIST's pricing policy published online, 
it establishes the prices of its measurement services in accordance 
with federal statutes. The prices of SRMs are determined by production 
costs, overhead, and surcharge rates incurred by NIST. Twice each 
calendar year, SRMs may be re-priced taking into account updates for 
overhead and surcharge rates, as determined by NIST and the Department 
of Commerce.

Other Comments

    We also received other comments that are out of scope in this 
rulemaking proceeding. Commenters stated that 16 CFR part 1632 should 
be revoked because 16 CFR part 1633 is a more robust standard. Another 
commenter raised an issue regarding flame retardants in health care 
products. The scope of this rulemaking is limited to revising the 
ignition source in the Standard. The Commission is not making any other 
changes to the Standard. Because the comments do not address the 
replacement of SRM 1196 with SRM 1196a, these comments fall outside the 
scope of this rulemaking. We note that CPSC separately published an 
advance notice of proposed rulemaking to consider the revocation or 
amendment of 16 CFR part 1632, and those issues are appropriately 
addressed in that proceeding. 70 FR 36357.

E. Final Regulatory Analysis

    Section 4(j) of the FFA requires that the Commission prepare a 
final regulatory analysis when it issues a regulation under section 4 
of the FFA and that the analysis be published with the rule. 15 U.S.C. 
1193(j). The following discussion fulfills this requirement.

1. Market/Industry Information

    The size of the U.S. mattress market increased from $17.4 billion 
in 2018, to $18.1 billion in 2019. Roughly 23.6 million mattress units 
shipped in 2018. Approximately 29 percent (6.8 million) of units 
shipped were imported products. Three industry sectors supply 
mattresses and mattress pads to the U.S. market, categorized under the 
North American Industry Classification System (NAICS): NAICS Sector 
337910--Mattress Manufacturing, NAICS Sector 314120--Curtain and Linen 
Mills, and NAICS Sector 423210--Furniture and Merchant Wholesalers.
    The Mattress Manufacturing Sector (337910) includes establishments 
primarily engaged in manufacturing

[[Page 32761]]

innerspring, box spring, and non-innerspring mattresses. The Curtain 
and Linen Mills Sector (314120) comprises establishments primarily 
engaged in manufacturing household linens, bedspreads, sheets, 
tablecloths, towels, and shower curtains, from purchased materials. 
This sector includes mattress pad and mattress protector manufacturing. 
The Furniture and Merchant Wholesalers Sector (423210) is primarily 
engaged in the merchant wholesale distribution of furniture, except 
hospital beds and medical furniture. Importers of mattresses are 
typically categorized under NAICS code 423210.
    According to the Small Business Administration (SBA), a firm in the 
Mattress Manufacturing sector (NAICS sector 337910) can be defined as 
``small'' if the firm employs fewer than 1,000 workers. Under this 
definition, among the 250 firms identified by staff in the sector, 240 
are small businesses that supply mattress products. The SBA defines a 
firm within the Curtain and Linen Mills Sector (NAICS sector 314120) as 
small if the firm employs fewer than 750 workers. Under this 
definition, among the 20 firms identified by staff, 19 firms are small 
and currently supply mattress products to the U.S. mattress market. 
Finally, a firm in the Furniture and Merchant Wholesale Sector (NAICS 
sector 423210) is defined as small if the firm employs fewer than 100 
workers. All of the 88 firms identified in this sector meet this 
definition of small. Under SBA-provided definitions, the majority of 
firms supplying the U.S. market for mattresses and mattress pads are 
small businesses.

2. The Mattress Standard

    The mattress standard at 16 CFR part 1632 requires premarket, full-
scale prototype testing for each new mattress design. Prototype testing 
also must be performed for each change in materials of an existing 
design that may affect cigarette ignition resistance.
    Under the Standard, four defined test procedures require the use of 
an SRM ignition source: The mattress test procedure, the mattress pad 
test procedure, the ticking classification test procedure, and the tape 
edge substitution test procedure. The number of test cigarettes 
required by these test procedures range from 18 SRM test cigarettes 
consumed during the ticking classification test, to 108 SRM test 
cigarettes consumed during the mattress or mattress pad test 
procedures. Furthermore, under the Standard only SRM test cigarettes 
from unopened packages can be selected for a series of tests, and if a 
cigarette extinguishes before burning its full length on any mattress 
surface location, the test must be repeated with a freshly lit 
cigarette. Therefore, mattress and mattress pad test procedures 
require, in practice, six packs of SRM cigarettes, the ticking 
classification test procedure requires in practice one pack of SRM 
cigarettes, and the tape edge substitution test requires, at a minimum, 
two packs of SRM cigarettes.
    SRM 1196a is available for purchase from NIST at a minimum order of 
2 cartons. A carton contains 10 packs, and each pack contains 20 
cigarettes; therefore, two cartons from NIST will contain 400 SRM 
cigarettes. Based on information collected by staff from a selection of 
domestic third-party testing facilities, a third-party testing facility 
uses an average of 10 to 40 packs of SRM cigarettes (or between 200-800 
test cigarettes) per month. These data provide insight into the number 
of test cigarettes used by third party testing facilities located in 
the United States, as an order of magnitude. A testing facility that 
uses 400 test cigarettes per month would need to purchase two cartons 
of SRM cigarettes from NIST every month.

3. Potential Benefits and Costs

    The SRM 1196a cigarette would have approximately the same ignition 
strength characteristics as originally intended by the Standard. The 
use of SRM 1196a cigarettes would not change the flammability 
performance tests or test method required under the Standard.
a. Potential Benefits
    Cigarette ignition of mattresses and mattress pads is a substantial 
cause of residential fire deaths and injuries each year. This rule will 
allow firms to comply with the Standard, with consistent and reliable 
results, preventing injury and death due to mattress fires. This rule 
is ``safety-neutral,'' so mattresses that passed or failed under the 
existing Standard would be expected to generate similar results when 
SRM 1196a is used. The level of protection provided by the Standard 
would neither increase nor decrease as a result of the change from SRM 
1196 to SRM 1196a. Thus, there would be no impact on the level or value 
of fire safety benefits derived from the Standard.
    Because NIST has exhausted its supply of SRM 1196, adopting this 
rule to require the use of SRM 1196a will allow firms access to an 
ignition source that would permit them to continue testing mattresses 
and mattress pads to the Standard. This rule would thus provide 
significant benefits to firms, since failing to adopt this amendment 
would mean that the Standard would require firms to test using an 
ignition source that is no longer available for purchase.
    As an interim measure in 2018, when NIST's stock of SRM 1196 
cigarettes was depleted, CPSC's Office of Compliance issued guidance 
stating that testing to the Standard could be completed with commercial 
king-size, non-filtered FSC cigarettes. CPSC's Office of Compliance 
amended its Interim Enforcement Policy guidance, effective September 
2020, to allow testing with either reserved stock of SRM 1196 or new 
stock of SRM 1196a. Accordingly, testing with FSC cigarettes to the 
Standard is no longer permitted.
    SRM cigarettes provide a common ignition source for all 
laboratories, while commercially available FSC cigarettes do not offer 
that consistency. The ignition strength of FSC cigarettes vary from one 
brand to another. Because FSC cigarettes are required to have an 
ignition strength lower than 25 and are often much weaker, FSC 
cigarettes would have an ignition strength substantially lower than SRM 
1196a. As a result, test results would vary between a test conducted 
with one brand of FSC cigarette and another, making testing, reporting, 
and enforcement inconsistent and unreliable.
    Furthermore, FSC cigarettes are intended to self-extinguish when 
left unattended. Under the Standard, results from a cigarette that does 
not burn its full length are not accepted. Any cigarette which 
extinguishes before burning its full length on any mattress surface 
location must be retested with a freshly lit cigarette. As a result, 
use of the FSC cigarette as the ignition source would likely lead to an 
increase in the average number of cigarettes used for each complete 
test. FSC cigarettes would likely self-extinguish, requiring multiple 
freshly lit cigarettes to complete a test, thereby increasing the costs 
of testing and time burdens associated with testing.
    In contrast to the inconsistency and unreliability of FSC 
cigarettes, SRM 1196a is a statistically equivalent replacement for SRM 
1196, and will reduce the need for retesting and lighting fresh FSC 
cigarettes. Furthermore, SRM 1196a allows for consistency in reporting 
and testing between laboratories. This rule specifying SRM 1196a as a 
replacement cigarette will achieve consistency and prevent uncertainty 
for industry, testing laboratories, and CPSC.

[[Page 32762]]

b. Potential Costs
    The cost increase associated with this rule is related to the SRM 
test cigarettes used as the ignition source for testing. A carton of 
SRM cigarettes contains 10 packs, and each pack contains 20 cigarettes; 
therefore, two cartons from NIST will contain 400 SRM cigarettes. 
Prices for SRM 1196a are set by NIST. At the time the Commission 
published the proposed rule, NIST charged $400 to purchase a ``unit'' 
of two cartons of SRM 1196a. Since then, NIST increased the price for 
two cartons to $437. The current price of SRM 1196a reflects a number 
of increases in surcharges accrued over the last calendar year, which 
includes NIST personnel costs and NIST overhead. The price increase 
from the previous NIST listed price of $400 per unit of two cartons is 
a price increase of 9.25 percent. At the new per-unit price, the cost 
of a pack of SRM 1196a cigarettes increased from $20 per pack to 
$21.85.
    Manufacturers and importers of mattresses will be responsible for 
ensuring that their mattress products are tested using SRM 1196a. If a 
supplier's mattress product does not comply with the requirements, they 
will need to either modify the product, or cease their manufacture or 
importation. Additionally, as required by the CPSIA and its 
implementing regulations, manufacturers and importers of youth 
mattresses would be required to certify that their mattresses intended 
for children comply with the requirements of the Standard. Many 
domestic manufacturers of youth mattresses are small entities as 
defined by SBA. The following analysis reviews possible impacts of 
using SRM 1196a in the Standard.
    The annual cost of adopting the SRM 1196a test cigarette will vary 
among small firms. Different firms offer a variety of mattress products 
and have different operational procedures for mattress product 
development and testing. Among other considerations, the number of 
mattresses produced annually by small firms is not uniform. 
Furthermore, some firms perform testing procedures in-house, while 
others elect or are required to have testing performed by a CPSC-
approved conformity assessment body. The number of new prototypes that 
a firm will bring to market, and the size of a production run by a 
small firm, is up to the firm to decide; but the cost per firm of the 
amendment would be impacted by these individual decisions.
    Commission staff reviewed a variety of likely cost increases that 
may be faced by small firms in adopting SRM 1196a, in three separate 
testing scenarios. To determine the likely costs faced by small firms 
from use of SRM 1196a cigarettes, staff analyzed testing costs related 
to the Standard in a manner that is consistent with past economic 
analysis of the industry. The analysis uses commercial data published 
online for mattress manufacturing, bedding manufacturing, and wholesale 
mattress product importers acquired from Dun and Bradstreet. Staff also 
reviewed current mattress products available on the market from a 
variety of small domestic suppliers and received input from industry on 
the type and frequency of testing performed under the Standard.
    The number of new prototypes that a small firm will bring to market 
is up to the individual firm to decide, but the cost per firm due to 
this rule would be impacted by these individual business decisions. A 
small firm may choose to make new prototypes every year and bring them 
to market, or it may elect to substitute ticking and modify existing 
models of mattress products that are selling well or are customer 
favorites.
    The Commission previously published cost estimates for three 
testing scenarios. 85 FR 68806. To supplement that analysis, the 
following discusses the effect of the SRM 1196a price increase from $20 
per pack to $21.85 per pack since publication of the proposed rule. The 
most expensive of the three testing scenarios was Scenario 1, which 
used 46 packs of SRM 1196a to test mattresses and mattress products 
annually. At $11.50 per pack, a firm's cost of using SRM 1196 would be 
$529 (46 packs x $11.50 per pack = $529). At $21.85 per pack for SRM 
1196a, the same testing scenario would cost a firm $1,005.10 (46 packs 
x $21.85 per pack = $1,005.10). As a result of adopting SRM 1196a as 
the replacement SRM, at a price of $21.85 per pack, the firm would 
incur a cost increase of $476.10 ($1,005.10-$529 = $476.10). This 
example of a cost impact is for the most expensive testing scenario a 
firm might reasonably choose. The lowest reported annual revenue for 
any small domestic firm in the mattress manufacturing sector is 
$128,000. One percent of annual revenue for the firm is $1,280 
($128,000 x 1 percent). For this small domestic supplier, any impact 
smaller than $1,280 should be considered insignificant. Therefore, the 
cost increase of $476.10 of using SRM 1196a at the price of $437, as 
charged by NIST, would not be significant for even the smallest firm 
currently supplying the sector.
    In summary, this rule is not expected to have a significant impact 
on expected benefits or costs of the Standard in 16 CFR part 1632. Both 
the expected benefits and costs of the amendment are small, and the 
likely effect on testing costs per new prototype mattress or ticking 
substitution would be minor, especially when the projected cost is 
allocated over a production run of complying mattresses.

4. Regulatory Alternatives

    The Commission considered two basic alternatives: (1) Allow for the 
use of FSC cigarettes as the ignition source; or (2) take no action on 
the smoldering ignition source issue.
    Neither SRM 1196a nor FSC cigarettes (alternative one) would likely 
have a substantial economic impact. There would, however, be some 
relative differences in terms of resource costs and potential effects 
on the level of benefits the Standard affords. Alternative two would 
impose a significant economic impact, as it would require firms to use 
an ignition source that is no longer available, effectively making it 
impossible for firms to comply with the Standard. The advantages and 
disadvantages of these two basic alternatives are discussed below.
a. Allow for the Use of FSC Cigarettes
    Under the first alternative, manufacturers and testers could 
conduct tests with any available FSC cigarettes.
    A possible advantage of the Commission taking this alternative 
action is that some of the projected minor increase in resource costs 
of testing would not be incurred, since FSC cigarettes are less 
expensive than SRM 1196a. As noted, however, firms would likely have to 
use many more FSC cigarettes than SRM 1196a cigarettes due to the 
likelihood that FSC cigarettes would extinguish before testing is 
complete.
    Disadvantages of the Commission taking this action include an 
increase in test result variability due to differences in cigarettes. 
Tests would be less reliable and results would vary depending on which 
cigarette was used. This would create uncertainty and confusion 
surrounding the reliability of tests for compliance with 16 CFR part 
1632. Manufacturers and testing firms would have to conduct tests that 
are either wasteful (in terms of extra cigarettes required to complete 
a test due to cigarettes prematurely extinguishing) or have 
irreproducible and unreliable results.

[[Page 32763]]

b. No Action
    If the Commission took no action, firms would be required to use an 
ignition source that is no longer available for purchase. Firms would 
be unable to comply with the Standard.
    In summary, there are no readily available or technically feasible 
alternatives to SRM 1196a that would have lower estimated costs and 
still address the need for a consistent ignition source that retains 
the ``safety-neutral'' approach of this rule.

F. Regulatory Flexibility Act Certification

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
an agency that engages in rulemaking generally must prepare initial and 
final regulatory flexibility analyses describing the impact of the rule 
on small businesses and other small entities. Section 605 of the RFA 
provides that an agency is not required to prepare a regulatory 
flexibility analysis if the head of an agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This rule retains the current mattress test procedure, but requires 
that entities performing cigarette ignition tests (including the CPSC, 
other state agencies, and industry testing organizations) purchase and 
use SRM 1196a cigarettes at a higher cost than the price at which SRM 
1196 cigarettes had been sold. No additional actions will be required 
of small entities. The costs associated with the rule will essentially 
be borne by mattress manufacturers and importers that perform (or pay 
fees for) compliance testing.
    The Commission has determined that this rule will have little or no 
effect on small producers. The design and construction of existing, 
compliant mattress products will remain unchanged, and the resource 
cost increase of using SRM 1196a cigarettes will represent a minimal 
increase in total testing costs. We have addressed comments concerning 
the impact of this rule on small entities, and we are not aware of any 
other information that would change the conclusion that the rule will 
not have a significant impact on a substantial number of small 
businesses or other small entities.
    Based on the information presented here, in the proposed rule, and 
in the staff briefing package, the Commission concludes that the rule 
will have little or no effect on small producers. Thus, the Commission 
certifies that the rule will not have a significant impact on a 
substantial number of small businesses or other small entities.

G. Environmental Considerations

    Pursuant to the National Environmental Policy Act, and in 
accordance with Council on Environmental Quality regulations and CPSC 
procedures for environmental review, the Commission has assessed the 
possible environmental effects associated with the rule. The 
Commission's regulations state that amendments to rules providing 
performance requirements for consumer products normally have little or 
no potential for affecting the human environment. 16 CFR 1021.5(c)(1). 
Nothing in this rule alters that expectation. Therefore, because this 
rule would have no adverse effect on the environment, neither an 
environmental assessment nor an environmental impact statement is 
required.

H. Preemption

    The rule will modify a flammability standard issued under the FFA. 
With certain exceptions that are not applicable in this instance, ``no 
state or political subdivision of a state may establish or continue in 
effect a flammability standard or other regulation'' applicable to the 
same fabric or product covered by an FFA standard if the state or local 
flammability standard or other regulations is ``designed to protect 
against the same risk of the occurrence of fire'' unless the state or 
local flammability standard or regulation ``is identical'' to the FFA 
standard. 15 U.S.C. 1203(a). The rule will not alter the preemptive 
effect of the existing mattress standard. Thus, the rule will preempt 
nonidentical state or local flammability standards for mattresses or 
mattress pads designed to protect against the same risk of the 
occurrence of fire.

I. Effective Date

    Section 4(b) of the FFA (15 U.S.C. 1193(b)) provides that an 
amendment of 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. The 
Commission believes that an effective date of thirty days will give 
adequate notice to all interested persons for firms to obtain SRM 1196a 
cigarettes from NIST. Section 4(b) of the FFA 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. 
This rule merely changes the ignition source, however, without any 
change to the test requirements of the Standard, so there is no 
relevant exemption for products in inventory or with the trade. The 
purpose of this rule is to allow manufacturers to replace SRM 1196 
cigarettes which are no longer available. Accordingly, manufacturers 
are already purchasing SRM 1196a cigarettes as the SRM 1196 stock is 
depleted. Therefore, the Commission finds for good cause that the rule 
will become effective 30 days after publication in the Federal 
Register.

J. 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 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, OIRA 
designated this rule as not a ``major rule,'' as defined in 5 U.S.C. 
804(2).

K. Findings

    Sections 4(a), (b), and (j) of the FFA require the Commission to 
make certain findings when it issues or amends a flammability standard. 
The Commission must find that the standard or amendment: (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. 15 U.S.C. 
1193(b). In addition, the Commission must find that: (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. These findings are discussed 
below.
    The amendment to the Standard is needed to adequately protect the 
public

[[Page 32764]]

against unreasonable risk of the occurrence of fire. The current 
Standard specifies as the ignition source cigarettes that are no longer 
being produced. In order for the Standard to continue to be effective 
(and for labs to test mattresses and mattress pads to determine whether 
they comply with the Standard), it is necessary to change the ignition 
source specification. Changing the ignition source to SRM 1196a, rather 
than FSC cigarettes, will ensure that testing is reliable and that 
results will not vary from one lab or manufacturer to another. Such 
variation would be likely if labs or manufacturers were able to use 
different ignition sources that have similar physical properties but 
different burning characteristics. The Commission finds that the 
amendment is needed to adequately protect the public against 
unreasonable risk of the occurrence of fire leading to death, personal 
injury or significant property damage.
    The amendment to the Standard is reasonable, technologically 
practicable, and appropriate. The amendment is based on technical 
research conducted by NIST and CPSC staff, which established that the 
SRM 1196a cigarette is capable of providing reliable and reproducible 
results in flammability testing of mattresses and mattress pads. The 
SRM 1196a ignition source represents an equivalent, safety-neutral 
ignition source for use in testing to establish compliance with the 
Standard. The Commission finds that the amendment is reasonable, 
technologically practicable and appropriate.
    The amendment to the Standard is limited to fabrics, related 
materials, and products that present an unreasonable risk. The 
amendment will continue to apply to the same products as the existing 
Standard, so the Commission finds that it is limited to fabrics, 
related materials, and products that present an unreasonable risk, and 
it is stated in objective terms.
    Voluntary standards. There is no applicable voluntary standard for 
mattresses. The rule amends an existing federal mandatory standard.
    Relationship of benefits to costs. Amending the Standard to specify 
SRM 1196a cigarettes as the ignition source allows testing to the 
Standard to continue without interruption, maintains the effectiveness 
of the Standard, and will not significantly increase testing costs to 
manufacturers and importers of mattresses and mattress pads. Both 
expected benefits and costs of the amendment are small. The effect on 
testing costs will be minor. Thus, the Commission finds that there is a 
reasonable relationship between benefits and costs of the amendment.
    Least burdensome requirement. No other alternative would allow the 
Standard's level of safety and effectiveness to continue. Thus, the 
Commission finds that the amendment imposes the least burdensome 
requirement that would adequately address the risk of injury.

L. Conclusion

    For the reasons discussed above, the Commission finds that amending 
the mattress flammability standard (16 CFR part 1632) to specify SRM 
1196a cigarettes as the ignition source is needed to adequately protect 
the public against the unreasonable risk of the occurrence of fire 
leading to death, injury, and significant property damage. The 
Commission also finds that the amendment to the Standard is reasonable, 
technologically practicable, and appropriate. The Commission further 
finds that the amendment is limited to the fabrics, related materials, 
and products that present such unreasonable risks.

List of Subjects in 16 CFR Part 1632

    Consumer protection, Flammable materials, Labeling, Mattresses and 
mattress pads, Records, Textiles, Warranties.

    For the reasons given above, the Commission amends 16 CFR part 1632 
as follows:

PART 1632--STANDARD FOR THE FLAMMABILITY OF MATTRESSES AND MATTRESS 
PADS (FF 4-72, AMENDED)

0
1. The authority citation for part 1632 continues to read as follows:

    Authority: 15 U.S.C. 1193, 1194; 15 U.S.C. 2079(b).


0
2. Revise Sec.  1632.4(a)(2) to read as follows:


Sec.  1632.4  Mattress test procedure.

    (a) * * *
    (2) Ignition source. The ignition source shall be a Standard 
Reference Material cigarette (SRM 1196a), available for purchase from 
the National Institute of Standards and Technology, 100 Bureau Drive, 
Gaithersburg, MD 20899.
* * * * *

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2021-13070 Filed 6-22-21; 8:45 am]
BILLING CODE 6355-01-P