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CFR Citation: 16 CFR Chapter II, Subchapter D

NOTICE: PROPOSED RULES

ACTION: Flammable Fabrics Act:

DOCUMENT ACTION: Advance notice of proposed rulemaking.

SUBJECT CATEGORY: Ignition of Upholstered Furniture by Small Open Flames and/or Smoldering Cigarettes; Advance Notice of Proposed Rulemaking; Request for Comments and Information

DATES: Written comments and submissions in response to this notice must be received by December 22, 2003.

DOCUMENT SUMMARY: The Consumer Product Safety Commission (CPSC or Commission) has found, based on available information, that a new flammability standard or other regulation may be needed for upholstered furniture products and for fabrics and related materials used in, or intended for use in, upholstered furniture, to protect the public against unreasonable risk of fire leading to death, personal injury, or significant property damage. The risk of fire addressed in today's advance notice of proposed rulemaking (ANPR) is from ignition of upholstered furniture by small open flames and/or smoldering cigarettes. This proceeding is being conducted under authority of the Flammable Fabrics Act (FFA).

In 1994, the Commission commenced a regulatory proceeding under the FFA addressing the risk of fire from ignition of upholstered furniture by small open flame sources such as matches, cigarette lighters, and candles. 59 FR 30735 (1994). This ANPR reflects the Commission's decision to expand that proceeding to explicitly address cigarette ignitions as well.\1\
\1\ The Commissioners voted 30 to issue this ANPR. Statements of Commissioners Moore and Gall concerning the vote are available on the CPSC Web site at http://www.cpsc.gov.

The Commission solicits written comments from interested persons concerning the risk of injury and death associated with ignition of upholstered furniture by smoldering cigarettes and/or small open flames, data on cigarette or small open flame ignition testing of upholstered furniture, the regulatory alternatives discussed in this notice, other possible means to address this risk, and the economic impacts of the various alternatives. The Commission also invites interested persons to submit an existing standard, or a statement of intent to modify or develop a voluntary standard, to address the risk of death or injury due to ignition of upholstered furniture by small open flames and/or smoldering cigarettes.

SUMMARY: Upholstered furniture; flammability standards,

SUPPLEMENTAL INFORMATION

Products within the scope of this ANPR include: (1) upholstered furniture used in homes, offices, and other places of assembly and public accommodation that consist in whole or in part of resilient materials (such as polyurethane foam, cotton batting, or related materials) enclosed within a covering consisting of fabric or related materials, and (2) fabric or related materials used or intended for use in the production of upholstered furniture. This scope is the same as that of the Commission proceeding commenced in 1994 under the FFA concerning small open flame ignition of upholstered furniture. 59 FR 30735 (1994).

B. The Upholstered Furniture Market

The Commission staff estimates that there were over 1,500 U.S. manufacturers of upholstered furniture, accounting for an estimated $8.4 billion in shipments in 1997, the most recent year for which Census of Manufacturers data are available.\2\ In that year, imports [[Page 60630]]
accounted for about $550 million, for total shipments of about $8.9 billion. Shipments are concentrated among the major producers. The 50 largest firms reportedly accounted for approximately 70% of the total value of all upholstered furniture shipments in 1997. Most of the remaining manufacturers were small firms, none of which accounted for a significant portion of sales.
\2\ The technical and economic information summarized in this ANPR is set forth in considerably more detail in the various CPSC staff briefing materials prepared on the subject of upholstered furniture flammability, including Upholstered Furniture
Flammability: Analysis of Comments from the CPSC Staff's June 2002 Public Meeting, February 2003; Upholstered Furniture Flammability: Regulatory Options, October 2001; Upholstered Furniture
Flammability: Regulatory Options for Small Open Flame & Smoking Material Ignited Fires, October 1997; and Briefing Package on Petition FP 931, Upholstered Furniture Flammability, April 1994. These and other documents pertinent to this proceeding may be obtained from the CPSC Web site at http://www.cpsc.gov or from the CPSC Office of the Secretary. The documents are also available for inspection at the Commission's Public Reading Room, 4330 EastWest Highway, room 419, Bethesda, Maryland 20814. For further information please contact the Office of the Secretary to the Commission at (301) 5040800.

The average life of most upholstered furniture is about 1517 years. The CPSC staff estimates that over 400 million pieces of upholstered furniture are in use in the U.S.

There are between 100 and 200 manufacturers of fabric for household upholstered furniture. This number includes textile mills that produce finished upholstery fabric, and textile finishers that purchase unfinished goods and perform additional operations, such as printing and dyeing. The top 16 firms account for about 80 percent of the upholstery fabric market.

U.S. upholstery fabric production in 1997 was 665.5 million square yards, about 345360 million square yards of which went into production of residential upholstered furniture. Approximately two percent of total consumption of upholstery fabric for residential furniture production was imported. About 53 percent of upholstered furniture cover materials were predominantly synthetic, mostly thermoplastic fabrics such as polyester, polyolefin and nylon. About 27 percent were predominantly cellulosic fabrics like cotton and rayon. About 20 percent were leather.
C. Additional Background Information

1. Cigarette Ignitions

Cigarette ignitions of upholstered furniture have long been a leading cause of residential fire deaths, injuries and property damage. The Commission has extensively investigated this risk since the 1970s, when the CPSC staff prepared a draft proposed cigarette ignition standard. In 1977, a furniture industry group, the Upholstered Furniture Action Council (UFAC), established a voluntary industry program as an alternative to CPSC rulemaking. The UFAC voluntary guidelines were amended in 1983, and are widely followed among manufacturers today.

Based on a 1996 CPSC survey, more than 85 percent of currently manufactured upholstered furniture (including products from nonUFAC member firms) met the UFAC guidelines. Further, based on salesweighted estimates of CPSC laboratory test results, more than 80 percent of currently produced furniture was estimated to resist cigarette ignition. This estimate, which reflects a gradual increase in the use of inherently cigaretteresistant upholstery fabrics and filling materials, represents about a 70 percent improvement in cigarette ignition resistance since 1980.

Upholstered furniture products meeting the existing State of California regulation, Technical Bulletin (TB) 117, offer a level of cigarette ignition resistance comparable to that of products conforming to the UFAC guidelines. In 1998, the California Bureau of Home Furnishings and Thermal Insulation initiated a project to upgrade the small open flame resistance provisions of TB117. The cigarette resistance provisions of TB117 are not being revised.

Both the American Furniture Manufacturers Association (AFMA) and a group of six upholstery fabric manufacturers known as the Fabric Coalition have expressed support for a mandatory national standard addressing cigarette and small open flame ignitions of upholstered furniture.\3\
\3\ Copies of the AFMA and Fabric Coalition correspondence to this effect may be obtained from the CPSC Web site at http://www.cpsc.gov or from the CPSC Office of the Secretary.

2. Small Open Flame Ignitions

Beginning in 1994, CPSC staff developed a draft small open flame standard for residential upholstered furniture that would prevent or limit fire growth following exposure to a small open flame such as that from a match or cigarette lighter. The staff's draft standard contains flammability performance tests for seating areas and dust covers, as well as requirements for production testing and recordkeeping. The most recent draft appears in the CPSC staff's October 2001 briefing package.\4\ The staff's draft standard contains no performance tests for cigarette ignition resistance.

Manufacturers have identified flame retardant (FR) upholstery fabrics as a likely means of limiting fire growth to meet the draft small open flame standard. FR fabrics are not needed to meet the existing California TB117 regulation or the UFAC voluntary guidelines. CPSC laboratory testing suggested, however, that FR upholstery fabrics would reduce the risk of upholstered furniture fires ignited by smoldering cigarettes as well as by small open flame sources. CPSC staff estimates that about 80 percent of the projected benefits of a possible small open flame standard would accrue from reductions in cigarette fire losses.
\4\ Upholstered Furniture Flammability: Regulatory Options, October 2001. See fn. 1 supra regarding viewing and obtaining copies of this and other related documents.

D. Statutory Authority

This proceeding is conducted under authority of the Flammable Fabrics Act. 15 U.S.C. 11911204. An item of upholstered furniture is an ``interior furnishing'' ``product'' as those terms are defined in sections 2(e) and (h) of the FFA. 15 U.S.C. 1191(e) and (h). The Commission has authority under section 4(a) of the FFA to institute a proceeding to issue a flammability standard or other regulation, including labeling, for an interior furnishing product if it determines that such a standard ``may be needed to adequately 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).

A proceeding to promulgate a regulation establishing a flammability standard begins by publication of an ANPR. FFA section 4(g), 15 U.S.C. 1193(g). If the Commission elects to continue the rulemaking proceeding after considering responses to the ANPR, the Commission must publish a preliminary regulatory analysis along with the text of the proposed rule. FFA section 4(i), 15 U.S.C. 1193(i).

If the Commission then moves forward to issue a regulation, in addition to the text of the final rule, it must publish a final regulatory analysis that includes: (1) A description of the potential benefits and costs of the rule; (2) a summary of any alternatives that were considered, their costs and benefits, and the reasons for their rejection; and (3) a summary and assessment of any significant issues raised on the preliminary regulatory analysis that accompanied the proposed rule. FFA section 4(j)(1), 15 U.S.C. 1193(j)(1). In addition, the Commission must make findings concerning the inadequacy of any pertinent voluntary standard, that the benefits of the rule bear a reasonable relationship to its costs, and that the rule is the least burdensome requirement that prevents or adequately reduces the risk of injury. FFA section 4(j)(2), 15 U.S.C. 1193(j)(2).

E. The Risk of Injury and Death

Fires involving ignitions of upholstered furniture constitute a leading cause of residential fire losses. Furniture fires killed more people in 1998 (the latest year for which data are
[[Page 60631]]
available) than did fires involving any other category of consumer products under the Commission's jurisdiction. About fourfifths of the estimated deaths and about twothirds of the estimated injuries that CPSC staff believes could be addressed by a mandatory standard were from smoldering ignition by smoking materials (almost always cigarettes), as shown below. In addition, about fourfifths of the estimated societal costs ($1.9 billion out of $2.4 billion) of upholstered furniture fires were cigarette ignitionrelated. Estimated 1998 Addressable Upholstered Furniture Fire Losses \5\ Property Loss Fires Deaths Injuries ($mil) Smoking Materials.................................................. 4,700 340 730 87 Small Open Flame................................................... 1,500 80 350 32

Total.......................................................... 6,200 420 1,080 120

Although cigaretteignited furniture fire deaths have declined by about 70 percent over the past two decades, recent years' data suggest the decline may be leveling off. Even at the 1998 level, the number of deaths is large, and the potential economic benefits of reducing the $1.9 billion in societal costs are substantial.
\5\ Addressable losses from NFIRS cases identified as
upholstered furniture, with appropriate coding for type of material ignited, area of origin, ignition factor, and equipment involved. Outofscope or inconsistently coded cases, including incendiary and suspicious fires, are excluded. Source: Upholstered Furniture Flammability: Regulatory Options, CPSC October 2001.
F. Existing Standards

1. UFAC Program

The UFAC voluntary program contains six cigarette ignition performance tests for different upholstered furniture components (cover and interior fabrics, ``barriers'' i.e., batting, decking and filling/ padding materials, decorative trim and welt cord) as well as certification and product labeling provisions. The UFAC guidelines encourage the use of the inherently smolderresistant materials that have become popular on the market.

The UFAC fabric classification test (now embodied in ASTM voluntary test method E1390) denotes upholstery cover fabrics as either Class I or Class II. Class I fabrics are less ignitionprone. Class II fabrics are more ignitionprone. To conform to the UFAC guidelines, Class II fabrics may only be used in constructions with smolderresistant batting (or other materials that conform to the UFAC ``barrier'' test) between the fabric and interior materials of the furniture. However, CPSC laboratory testing of full scale chairs demonstrated that UFAC conforming products made with smolderprone fabrics can ignite and burn even when polyester batting or other ignitionresistant fillings are present. Thus, CPSC staff believes that UFAC component conformance does not guarantee cigarette resistance of the finished article. 2. California Technical Bulletins

California Technical Bulletin 117, which is mandatory for all upholstered furniture sold in the state, contains component performance tests for cigarette ignition resistance of fibrous/loose fill and cellular foam filling materials. Upholstered furniture sold in California must also be labeled as complying with the TB117 performance requirements.

Like the UFAC voluntary program, TB117 is comprised of component tests. Another California standard, TB116, is available to manufacturers on a voluntary basis. TB116 incorporates a fullscale (or smallscale composite) cigarette test. Manufacturers whose products meet this standard may use labels stating that the products provide a higher level of fire protection.

TB116 and 117 are not national standards. However, some manufacturers, importers and retailers offer TB117compliant products for nationwide distribution.

3. Fire Safe Cigarette Legislation

Regulations implementing New York State legislation requiring ``firesafe,'' i.e., lower ignition propensity (IP), cigarettes may become effective in 2003.\6\ Lower IP cigarettes would presumably reduce fire losses, including those involving upholstered furniture. Several federal firesafe cigarette bills were introduced
unsuccessfully in the 107th Congress.\7\ The extent to which lowerIP cigarettes may reduce the risk of ignition of upholstered furniture and other home furnishings is currently unknown.
\6\ Fire Safety Standards for Cigarettes, N.Y. Executive Law, Chapter 18, Article 6C, Sec. 156c (McKinney 2003).
\7\ See, e.g., Fire Safe Cigarette Act of 2002, HR 5059 IH, 107th Congress, 2d Session, introduced June 27, 2002.

G. Finding

Based on information currently available to it from investigations, research, and other sources, the Commission finds that a new flammability standard, or other regulation, may be needed for upholstered furniture products made from fabrics and related materials, and for fabrics and related materials used in, or intended for use in upholstered furniture, to protect the public against the unreasonable risk of the occurrence of fire leading to death, personal injury or significant property damage. FFA section 4(a), 15 U.S.C. 1193(a). The risk of the occurrence of fire addressed in this ANPR is that from ignition of upholstered furniture by small open flames and/or smoldering cigarettes. Commencing this proceeding expands the Commission's prior FFA proceeding addressing small open flame ignition sources such as matches, cigarette lighters, and candles to also include ignition by smoldering cigarettes.
H. Regulatory Alternatives Under Consideration

1. Flammability Standard

If the Commission finds that one is needed to adequately protect the public against an unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage, it may promulgate a flammability standard for upholstered furniture. Any such standard must be stated in objective terms and be reasonable, technologically practicable, and appropriate. FFA section 4(b), 15 U.S.C. 1193(b). It also must be limited to those fabrics, related materials, or products that have been determined to present the unreasonable risk of fire at issue in the proceeding. Id.

2. Labeling Regulation

Either separately or as part of a flammability standard, the Commission may consider issuing a labeling regulation as part of this proceeding. FFA section 4(a), 15 U.S.C. 1193(a).
[[Page 60632]]

3. Voluntary Standard

If the Commission determines that any voluntary or other standard or portion thereof submitted in response to this ANPR would eliminate or adequately reduce the risk of injury in question it may issue that standard, or a portion of it, as a proposed regulation. FFA section 4(h)(1); 15 U.S.C. 1193(h). In general, the Commission may not promulgate a regulation if there is an existing voluntary standard addressing the same risk that would likely result in the elimination or adequate reduction of that risk and with which there would likely be substantial compliance. FFA sections 4(h)(2) and (j)(2); 15 U.S.C. sections 1193(h)(2) and (j)(2).

I. Solicitation of Information and Comments

This ANPR is the first step in a proceeding which could result in a mandatory flammability standard and/or labeling regulation, or a voluntary standard for upholstered furniture that presents an unreasonable risk of the occurrence of fire due to cigarette or small open flame ignition leading to death or personal injury or significant property damage. The Commission invites interested persons to submit their comments on any aspect of the alternatives discussed above. Specifically, in accordance with section 4(g) of the FFA, the Commission solicits:

1. Written comments with respect to: (a) The risk identified by the Commission; (b) the need for flammability performance requirements to address cigarette and/or small open flame ignition of upholstered furniture; (c) the need for a uniform national upholstered furniture flammability standard; (d) the relationship between cigarette and small open flame ignition performance; (e) the regulatory alternatives being considered and the potential effectiveness and economic impacts of these alternatives; and (f) other possible alternatives for addressing the risk and the effectiveness and economic impacts of these alternatives.

2. Any existing standard or portion of a standard which could be issued as a proposed regulation.

3. A statement of intention to modify or develop a voluntary standard to address the risk of injury discussed in this notice, together with a description of a plan to do so.

In addition, the Commission would like to receive data on cigarette and small open flame ignition tests of upholstered furniture.

Comments and other submissions should be captioned ``Upholstered Furniture Flammability Proceeding'' and mailed to the Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207, or delivered to that office, room 502, 4330 EastWest Highway, Bethesda, Maryland 20814. Comments and other submissions may also be filed by facsimile to (301) 5040127 or by email to cpscos@cpsc.gov. All comments and other submissions must be received by December 22, 2003.

Dated: October 20, 2003.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 0326809 Filed 102203; 8:45 am]
BILLING CODE 635501P

FOR FURTHER INFORMATION CONTACT Dale R. Ray, Project Manager, Directorate for Economic Analysis, U.S. Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 5047704; fax (301) 5040109; email dray@cpsc.gov.