Federal Register, Volume 73 Issue 43 (Tuesday, March 4, 2008)

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

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Part II

Consumer Product Safety Commission

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16 CFR Part 1634

Standard for the Flammability of Residential Upholstered Furniture;
Proposed Rule

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

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1634

Standard for the Flammability of Residential Upholstered
Furniture

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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

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

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

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

SUPPLEMENTARY INFORMATION:

A. Background

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

[[Page 11703]]

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

B. Statutory Authority

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

C. The Product

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

[[Page 11704]]

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

D. Risk of Injury

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

1. California Regulatory Activity

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

2. United Kingdom Regulations

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

3. Voluntary Standards Activity

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

F. The Proposed Standard

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

1. Scope

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

2. General Requirements

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

[[Page 11705]]

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

3. Cover Fabric Smoldering Resistance Test

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

4. Interior Fire Barrier Smoldering Resistance Test

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

5. Interior Fire Barrier Open Flame Resistance Test

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

6. Administrative Requirements

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

G. Response to Comments on the ANPR and Subsequent Submissions

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

1. Scope and Test Methods

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

[[Page 11706]]

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

2. Standardized Test Materials

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

[[Page 11707]]

3. Stringency of Requirements

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

4. Large Scale Validation Testing

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

5. Potential Benefits and Costs

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

[[Page 11708]]

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

[[Page 11709]]

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

6. Potential Use of FR Chemicals

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

H. Preliminary Regulatory Analysis

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

[[Page 11710]]

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

1. Introduction

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

2. The Proposed Standard: Scope and Provisions

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

3. Products and Industries Potentially Affected

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

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

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

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

Although there are a large number of upholstered furniture
manufacturers, the top four companies accounted for nearly 35 percent
of the total value of household upholstered furniture shipments in 2002
(the latest year for which industry concentration ratio data are
available); the 50 largest companies accounted for about 67 percent.\6\
Reports from the trade press indicate that the industry has become more
concentrated in the last ten years. Several firms have ceased
operations; others have merged with larger companies through buyouts.
The consolidation included Furniture Brands International's acquisition
of HDM Furniture Industries (which included Henredon and Drexel
Heritage) in 2001, and La-Z-Boy's acquisition of Ladd in January 2000
and Bauhaus and Alexvale in 1999. La-Z-Boy is the number one
upholstered furniture manufacturer (by dollar volume), and Ladd,
Bauhaus, and Alexvale all previously ranked in the top 30. Furniture
Brands International is the second-leading domestic manufacturer of
upholstered furniture, and companies it acquired were previously part
of number four-ranked LifeStyle Furnishings, International, Ltd.
---------------------------------------------------------------------------

\6\ U.S Census Bureau, U.S. Department of Commerce, 2002
Economic Census, report EC02-31SR-1, ``Concentration Ratios: 2002,''
May 2006.
---------------------------------------------------------------------------

The industry also includes many small companies and establishments.
The 2002 Economic Census reports that only 29 percent of upholstered
furniture establishments (564 of 1,946) had 20 or more employees, and
only 10 percent (200 establishments) had 100 or more. By some measures,
such as the U.S. Small Business Administration's (SBA's) definition for
qualification for small business loans, a furniture manufacturing
company is considered to be ``small'' if it has fewer than 500
employees (at all of its establishments). This definition encompassed
more than 97 percent of firms in the industry in 2002.\7\
---------------------------------------------------------------------------

\7\ Based on 2002 firm size data compiled by the United States
Small Business Administration's Office of Advocacy which is
available online at http://www.sba.gov/advo/research/data.html.
---------------------------------------------------------------------------

Exports of upholstered furniture had a value of about $285 million
in 2005, or almost 3 percent of the total value of shipments.\8\ The
value of imports of products categorized by the Census Bureau as NAICS
337121 was $2,792 million in 2005.\9\ Therefore, there were net imports
of about $2.5 billion. With estimated domestic shipments of $9.9
billion, these net imports resulted in total apparent consumption of
upholstered furniture in 2005 (domestic shipments plus imports, minus
the value of exports) of about $12.4 billion.
---------------------------------------------------------------------------

\8\ U.S. Department of Commerce data.
\9\ U.S. Department of Commerce and U.S. International Trade
Commission data (c.i.f. cost basis).
---------------------------------------------------------------------------

Imports have grown in recent years, accounting for about 22 percent
of the value of total apparent consumption of residential upholstered
furniture in 2005. By way of comparison, about 10 percent of the value
of apparent consumption of upholstered household furniture in 1999 was
imported. The leading country of origin is China, which accounted for
about 52 percent of the value of imports in 2005 and nearly 63 percent
of the value of imports in 2006. Mexico accounted for about 11 percent
of imports in 2006; Italy about 8 percent, and; Canada about 5 percent.
These four countries accounted for 86 percent of the total value of
imported upholstered furniture in 2006.
The importance of China as a source for imports has grown
significantly in recent years. China supplanted Italy as the leading
country of origin in 2003, and by 2006 the value of imports from China
was almost 6 times that of the second-ranked country of origin, Mexico.
Italy had been the number one source for upholstered furniture imports

[[Page 11711]]

for many years. The majority of units from both China and Italy in 2004
reportedly were upholstered in leather.\10\ Although much of the gain
in China's market share has been at the expense of Italian imports,
some of the furniture imported from China is from plants that have been
established by several major Italian firms. China has been the leading
source of wood (non-upholstered) furniture imports and its growth as a
source of upholstered furniture is expected to continue.
---------------------------------------------------------------------------

\10\ Industry analyst, Jerry Epperson, reported in Furniture
Today, December 12, 2005. p. 66.
---------------------------------------------------------------------------

In addition to affecting manufacturers of residential upholstered
furniture typically found in living room and family rooms, the proposed
standard also includes dining room and kitchen chairs within its scope
if they are made with contiguously upholstered seats and backs.
Similarly upholstered desk chairs purchased for household use are also
covered by the standard. Dining chairs are generally products of firms
classified in the wood household furniture industry, NAICS 337122. The
Economic Census reports that 4.8 million wood dining room chairs were
shipped in 1997, with a value of shipments totaling about $526 million.
In 2002, shipments fell to 2.9 million chairs, with a value of about
$446 million. The decline in domestic shipments is attributable to
significant increases in imports of wood furniture from China and other
countries.
Census data are not reported separately for upholstered and non-
upholstered dining chairs. In 1994, an industry-sponsored study
surveyed participants in the voluntary industry program to improve the
cigarette ignition resistance of furniture that was developed by the
Upholstered Furniture Action Council (UFAC). Among the firms surveyed
were manufacturers of upholstered dining room and kitchen seating. The
study report estimated that the total value of shipments of such
furniture that complied with the UFAC Program (and, therefore, had
upholstered seats) was about $250 million for 1993.\11\ Based on the
value of 1992 shipments ($580 million), perhaps 3 to 4 million
upholstered dining chairs were shipped by these UFAC participants. A
great majority of these items may not have had upholstered backs, or
they had upholstered backs that were not contiguous with upholstered
seats. Other firms that are not participants in the UFAC Program also
manufacture upholstered dining furniture. Given the limitations of the
market data, the number of dining chairs produced annually that fall
within the scope of the proposed standard cannot be estimated with much
precision, although the total number of units is thought to be
relatively small.
---------------------------------------------------------------------------

\11\ Heiden Associates, Inc., ``Report on Survey of UFAC Members
re: Compliance with Upholstered Furniture Cigarette Ignition
Flammability Standard,'' December 15, 1994.
---------------------------------------------------------------------------

Annual domestic retail sales of all types of living room and family
room upholstered furniture total about 30 to 33 million units with a
value of over $20 billion. Furniture manufacturers, especially smaller
firms, commonly market their products through independent sales
representatives who provide information on the market, and get and
service new retail accounts for manufacturers. Recently, some
manufacturers have reduced their reliance on independent
representatives by employing their own salespeople.
Besides purchasing from manufacturers through independent sales
representatives or the manufacturers' own sales staff, retailers may
purchase furniture from wholesale furniture distributors. These
wholesalers purchase from perhaps 25 to 30 manufacturers of different
types and styles of furniture. The sales staffs of the wholesalers then
call on retailers within their areas. Dealing through local wholesalers
that stock an assortment of furniture, and that also offer competitive
prices, credit, and other services, is advantageous to many retailers,
particularly smaller firms.\12\
---------------------------------------------------------------------------

\12\ Handbook of Furniture Manufacturing & Marketing, Volume 9,
Wholesaling, AKTRIN Research Institute and High Point University,
May 1994.
---------------------------------------------------------------------------

According to the 2002 Census of Retail Trade, 19,403 retail
establishments carried upholstered furniture as a product line.\13\
Retail prices of upholstered furniture fall into a very broad range,
depending on materials and manufacturing techniques used. Larger
retailers are more likely to purchase directly from furniture
manufacturers, and smaller firms are more likely to purchase through
wholesale distributors. Increasingly in recent years, retailers have
reportedly devoted more floor space to private labeled furniture
imported directly from foreign manufacturers. In response, several of
the larger domestic furniture manufacturers have opened or expanded
their own retail outlets.
---------------------------------------------------------------------------

\13\ U.S Census Bureau, U.S. Department of Commerce, 2002
Economic Census, report EC02-441-09 ``Furniture Stores: 2002,''
August 2004.
---------------------------------------------------------------------------

A review of trade publications indicates that approximately 100 to
200 domestic manufacturers derive a significant share of their revenues
from fabric for residential upholstered furniture.\14\ This number
includes textile mills that produce finished upholstery fabric and
textile finishers that purchase unfinished goods and perform additional
processes, such as printing and dyeing. Like the upholstered furniture
manufacturing industry, the 1990s saw consolidation of firms
specializing in upholstery fabric production, with larger firms buying
out competitors or divisions of competitors. However, in just the last
few years the U.S. industry has been shaken by the decreased demand for
domestically-produced fabric as a result of increased competition from
imported upholstery fabric, the increased popularity of leather
upholstery, and the dramatic increase in consumption of upholstered
furniture imported from China. One of the largest marketers of
upholstery fabrics in the U.S. reported that the trend to greater
foreign competition and the entry of more converters of upholstery
fabric (companies that purchase and resell fabrics) has resulted in
greater fragmentation of the upholstery fabric industry in recent
years, with lower barriers to entry, and an increase in competition
based on price.\15\
---------------------------------------------------------------------------

\14\ Including the Directory of Manufacturers published by the
former industry association, the American Textile Manufacturers
Institute (ATMI).
\15\ Culp, Inc., Annual Company report for the fiscal year ended
April 29, 2007.
---------------------------------------------------------------------------

Interior fabric revenues of the top 10 firms totaled more than $1.9
billion in 2002, based on a trade press survey.\16\ These revenues
included sales of fabrics other than those used in residential
upholstery. A similar survey found that the top 10 upholstery fabric
mills had combined revenues from interior fabric shipments of $2.4
billion.\17\ In addition to declining sales for the leading U.S.
upholstery fabric manufacturers, the difficult state of the industry is
evidenced by recent bankruptcies of firms that were once industry
leaders, such as Joan Fabrics (previously the number one upholstery
manufacturer) and Quaker Fabric (previously the number three firm).
Both of these firms ceased operations and their production facilities
were liquidated in 2007.
---------------------------------------------------------------------------

\16\ ``U.S. fabric producers still standing despite import
wave.'' Furniture/Today, Cahners Publishing, Greensboro, NC, June 2,
2003.
\17\ ``Mastercraft buy puts Joan at top.'' Furniture/Today,
Cahners Publishing, Greensboro, NC, June 1998.
---------------------------------------------------------------------------

Textile mills that make upholstery fabrics as their primary
products are included in the North American NAICS code 313210. Of 663
firms in NAICS 313210 in 2002, only 63 (about 10 percent) had 500 or
more employees. About 65 percent of the firms had fewer

[[Page 11712]]

than 20 employees.\18\ The SBA considers firms with fewer than 1,000
employees to be small businesses for the purposes of programs
administered by that agency. Although these data are indicative of the
sizes of firms involved in the production of furniture upholstery
fabrics, NAICS 313210 encompasses many firms that produce fabrics other
than furniture upholstery. Nevertheless, it is likely that nearly all
manufacturers of upholstery fabrics could be considered small
businesses under SBA guidelines.
---------------------------------------------------------------------------

\18\ Based on 2002 firm size data compiled by the United States
Small Business Administration's Office of Advocacy which is
available online at http://www.sba.gov/advo/research/data.html.
---------------------------------------------------------------------------

Fabric finishers also tend to be small. Finishers are firms that
receive unfinished fabrics (``greige goods'' or ``gray goods'') and
perform additional manufacturing processes (e.g., printing, dyeing,
backcoating, needle-punching, and stain-guarding). Fabrics may be
purchased by the finishers, or finished under contract to other firms
that supply the fabrics. Fabric finishers are classified in NAICS code
313311. Of 1,016 broadwoven fabric finishing firms in NAICS 313311 in
2002, only 30 (3 percent) had 500 or more employees.\19\ Only a few
firms currently apply FR treatments to upholstery fabrics.
---------------------------------------------------------------------------

\19\ Ibid.
---------------------------------------------------------------------------

The U.S. Census Bureau reported that U.S. upholstery fabric
production in 2004 was 284 million square yards (which is the
equivalent of 189 million linear yards).\20\ This production was 43
percent lower than 2002's reported production of 499 million square
yards (332 million linear yards) of upholstery fabric.\21\ The number
of looms in operation for the production of these fabrics totaled 2,610
at the end of 2004, down 20 percent from 3,098 looms at the end of
2002. The major end-use markets for upholstery production are in
upholstered furniture and automobile manufacturing. Upholstery fabrics
are also used in the manufacture of window treatments and other home
textiles. Based on a survey of upholstered furniture manufacturers by
Ciprus, Ltd., about 233 million linear yards of upholstery fabric were
consumed in the production of household furniture in 2001.\22\ This
total does not include leather and vinyl upholstery, which are
estimated to have comprised about 30 percent of all furniture
upholstery materials used in 2001. Therefore, total upholstery use for
the domestic manufacture of residential upholstered furniture was about
333 million linear yards. Estimates of total annual upholstery fabric
consumption based on average requirements for chairs and sofas/
loveseats are 225 million linear yards.\23\
---------------------------------------------------------------------------

\20\ U.S. Census Bureau. Current Industrial Reports, Broadwoven
Fabrics (Gray): 2004. MQ313T(04)-5. June 2005.
\21\ U.S. Census Bureau. Current Industrial Reports, Broadwoven
Fabrics (Gray): 2002. MQ313T(02)-5. June 2003.
\22\ Ciprus Limited, LLC. The North American Market for Contract
& Residential Upholstery Fabric, 2001.
\23\ According to industry sources, an average of approximately
7 linear yards of fabric is needed to upholster chairs and 11 to 15
yards are needed for sofas. Based on about 31.5 million annual unit
shipments (of which perhaps about 53 percent are sofas, sofabeds,
and loveseats and about 47 percent are other chairs), estimated
annual upholstery material requirements are about 321 million linear
yards (about 217 million yards for sofas, sofabeds and loveseats
plus 104 million yards for chairs).
---------------------------------------------------------------------------

The U.S. Census Bureau's Economic Census report, Upholstered
Household Furniture Manufacturing: 2002, included information on the
costs of upholstery fabrics and other materials used in the production
of upholstered household furniture in that year. The report placed the
delivered cost of woven cotton upholstery fabrics (excluding ticking)
at $312 million and the delivered cost of other woven upholstery
fabrics, such as those made of rayon, nylon, and polyester (excluding
ticking) at $802 million.\24\ The combined total delivered cost of
upholstery fabric of $1,114 million was about 22 percent of the total
delivered cost of all materials used in upholstered furniture
manufacturing in 2002 (which was, according to the Census Bureau,
$5,107 million). Other upholstery cover materials include leather,
which is not reported as a separate material category by the Bureau of
the Census, and coated and laminated fabrics, which had a delivered
cost of about $185 million in 2002. In its 2007 Annual Report, La-Z-
Boy, the largest manufacturer of upholstered furniture in the U.S.,
reported that purchased cover materials (primarily fabric and leather)
accounted for about 28 percent of the total cost of raw materials for
its upholstery group.\25\
---------------------------------------------------------------------------

\24\ U.S. Census Bureau, 2002 Economic Census, Upholstered
Household Furniture Manufacturing: 2002, EC02-311-313311. September
2004.
\25\ La-Z-Boy, Inc. Annual Report for the Fiscal Year Ended
April 28, 2007 (Form 10-K.) Page 5.
---------------------------------------------------------------------------

Until recent years, relatively little upholstery fabric was
imported. A report by Keyser Ciprus, Ltd., estimated that 8 million
linear yards of residential upholstery fabric were imported in 1997.
That accounted for approximately 2 percent of total consumption of
upholstery fabric for residential furniture production in that
year.\26\ However, as noted above, foreign upholstery fabric production
facilities (located primarily in China) have expanded operations and
imports of upholstery fabrics have grown substantially.
---------------------------------------------------------------------------

\26\ Keyser Ciprus Limited, op. cit., p. 40.
---------------------------------------------------------------------------

Much of the foreign production is from facilities that are owned or
operated in partnership with U.S. textile firms. For example, Culp,
Inc., reported that almost 60 percent of their sales of upholstery
fabrics in their fiscal year ended April 29, 2007, consisted of fabrics
produced in plants outside the U.S., compared to 17 percent of sales
just two years before.\27\ Culp owns and operates four upholstery
plants in Shanghai, China, and markets other fabrics from third party
sources which are also located in China. The firm only has one
remaining upholstery fabric plant in the U.S., down from fourteen in
2000.\28\ Culp's experience in shifting production to foreign plants
has also been reported by other U.S. upholstery fabric manufacturers.
In January 2007 Richloom Fabrics Group shifted production of its
Berkshire Weaving upholstery line from its South Carolina plant to a
facility in Shanghai.\29\ Quaker Fabric Corporation also entered into
business agreements in recent years with Asian firms to produce fabrics
it designs. Quaker estimated that, industry-wide, about 42 percent of
total domestic upholstery fabric sales (excluding automotive fabrics)
were imported in 2004, versus only 11 percent in 2002. The company's
management believed it was likely that the trend continued, and it
estimated that about 60 percent of furniture upholstery fabric sales
were imported by the end of 2006.\30\ As noted above, Quaker Fabric,
which had long been a major U.S. producer of upholstery fabric, could
not successfully adjust its operations to meet the recent market
shifts, and the firm liquidated its operations in 2007.
---------------------------------------------------------------------------

\27\ Culp, Inc. Annual company report for the fiscal year ended
April 29, 2007. (Reportedly includes fabrics produced at Culp's
Shanghai manufacturing plant and production sourced from other Asian
firms.)
\28\ Culp, Inc. Annual company report for the fiscal year ended
April 23, 2000.
\29\ Andrews, Susan M. ``Richloom moves production to China.''
Furniture/Today, December 18, 2006.
\30\ Quaker Fabric Corp. Annual Report for the Fiscal Year Ended
December 30, 2006 (Form 10-K.).
---------------------------------------------------------------------------

At least until recent years, exports of upholstery fabric were
significant for many U.S. manufacturers. In the late 1990s as much as
20 percent of the upholstery fabric production by U.S. manufacturers in
recent years may have been exported. As noted above, more upholstery
fabric is being imported from China and other foreign sources in more
recent years, and some major U.S. fabric

[[Page 11713]]

manufacturers have established production facilities in China, or have
established business relationships with Chinese firms to produce
fabrics to their specifications and designs. These market changes could
be expected to reduce exports by domestic firms from previous levels.
There is a growing practice, especially for leather, to purchase
fully cut and sewn parts from areas outside of the United States
including but not limited to: Argentina, Brazil, China, Italy, Thailand
and Uruguay. This trend should continue given the lower labor costs in
some of these areas and other existing economic conditions. La-Z-Boy
reports that importing cut and sewn leather parts results in savings of
10 to 20 percent compared to domestic purchases and fabrication of
these parts.\31\ Cut and sewn ``kits'' reportedly are manufactured to
the specifications of furniture manufacturers at facilities maintained
by foreign fabric producers. Culp reports that it rapidly expanded its
cut and sew operations in its Shanghai plants.\32\
---------------------------------------------------------------------------

\31\ La-Z-Boy. op. cit., p. 4.
\32\ Culp, Inc. Annual Company report for the fiscal year ended
April 29, 2007.
---------------------------------------------------------------------------

CPSC-sponsored surveys of furniture manufacturers in 1981, 1984,
and 1995, and commercial surveys in 1997, 2001, and 2006 \33\ provided
information on two characteristics of fabrics: fabric type and
principal fiber (or material) type. Fabric Type refers to commonly-
accepted descriptions of the ways in which fabrics are manufactured or
of their distinctive characteristics. For the period covered by these
surveys, manufacturers increased their use of jacquard and dobby
fabrics, and decreased their use of velvet fabrics.\34\ Usage of cotton
prints and flocks fluctuated within fairly narrow ranges during the
period, according to the surveys.
---------------------------------------------------------------------------

\33\ Keyser-Ciprus, Ltd. survey (1997) and Ciprus Limited, LLC,
surveys (2001 and 2006).
\34\ ``Jacquards'' and ``dobbies'' refer to the types of looms
and weaves used to produce fabrics. Brocades, damasks, velvets,
tapestry weaves, and matelasses are often jacquard-woven. Dobbie
looms enable weaving of small, geometric figures as a regular
pattern. Dobby looms produce patterns that are beyond the range of
simple looms, but are somewhat limited compared to a jacquard loom,
which has a wider range of pattern capabilities.
---------------------------------------------------------------------------

Fiber (or material) Type refers to the fibers or materials used in
the manufacture of the fabrics or upholstery. Most upholstery fabric
fibers are classified as cellulosic (e.g. cotton and rayon) or
thermoplastic (e.g., polyester, polyolefin, and nylon); other materials
used to make upholstery include vinyl (which is coated on a base
fabric), wool, and leather. Based on the 2006 Ciprus Limited survey,
cellulosic fabrics currently account for about 25 percent of
upholstered furniture upholstery covering materials. Thermoplastic
fabrics account for 45 percent; leather, wool and vinyl-coated fabrics
account for about 30 percent (mostly leather).
Review of the data on material types from the surveys conducted
since 1981 indicates that the most notable changes over the years have
been the increase in use of leather at the expense of both cellulosic
and thermoplastic fibers. The Ciprus survey in 2001 found that about 30
percent of furniture covering materials used in that year was leather,
significantly greater than found in the earlier surveys.\35\ Fabrics
made from predominantly cellulosic fibers include heavier-weight
fabrics (such as cellulosic jacquards and velvets) and lighter-weight
fabrics (mainly cotton prints). Analysis of survey data since 1981
indicates that heavier cellulosic fabrics have usually comprised about
15 to 20 percent of all upholstery covering yardage.
---------------------------------------------------------------------------

\35\ Ciprus Limited. op. cit.
---------------------------------------------------------------------------

4. Characteristics of Furniture in U.S. Households

The number of furniture units in use is estimated with the CPSC
Product Population Model, based on available annual sales data and
industry estimates of the average product life of furniture.\36\
Estimates are for sofas, loveseats, armchairs, recliners, convertible
sofas and other upholstered furniture commonly found in residential
living rooms, family rooms, and guest rooms.
---------------------------------------------------------------------------

\36\ M.L. Lahr and B.B. Gordon, Final Report on Product Life
Model Feasibility and Development Study, Battelle Columbus
Laboratories, July 14, 1980.
---------------------------------------------------------------------------

Sales are defined as shipments from U.S. manufacturers plus net
imports. Annual shipment data are available from the Economic Census
published every five years (i.e., 2002, 1997, 1992 * * *) by the Bureau
of the Census. For upholstered wood furniture and dual-purpose sleep
furniture, the Economic Census usually provides information on unit
shipments, by type (such as sofas, sleep sofas, rockers, recliners, and
other chairs). For product categories for which unit shipment data were
not available, we estimated unit shipments by assigning average per
unit values to the Census data on value of shipments. Finally,
estimates of net imports were added to shipments to estimate the total
number of upholstered units sold to U.S. households. For the years in
which Economic Census data are not available, shipment estimates were
based on furniture shipment values published by the Department of
Commerce in the Annual Survey of Manufactures.\37\
---------------------------------------------------------------------------

\37\ Estimated shipments before 1967 were based on the Federal
Reserve's annual furniture production index.
---------------------------------------------------------------------------

The CPSC's Product Population Model uses sales data and information
on the average product life to estimate the numbers of items remaining
in use in the years following their purchase by consumers. The
estimated average useful life of upholstered furniture reportedly
ranges from 15 to 17 years.\38\ Based on the assumption that the
expected life of a piece of upholstered furniture is 16 years, the
average number of upholstered items in household use during 2002-2004
was about 447 million pieces.
---------------------------------------------------------------------------

\38\ Based on discussions between industry officials and
Department of Commerce personnel.
---------------------------------------------------------------------------

Surveys of furniture manufacturers in the last several years show
the shift towards thermoplastic fabrics peaked during the period of the
mid-1980's to the mid-1990's. Information provided to the CPSC by the
Upholstered Furniture Action Council (UFAC) showed that a significant
shift to greater use of thermoplastic fabrics began in the 1950's, and
became more pronounced in the 1970's.\39\ These data on usage of
different types of fabrics over the years can be used to characterize
upholstery fabrics found on furniture in U.S. households. An estimated
31.2 percent of furniture in use in U.S. households during the period
2002-2004 was covered with fabrics predominantly made with cellulosic
fabrics; an estimated 50.2 percent were covered with predominantly
thermoplastic fabrics, and 18.6 percent were covered with other
materials (mainly leather, wool, and vinyl-coated fabrics).
---------------------------------------------------------------------------

\39\ Report to the CPSC on the UFAC Voluntary Program,
Upholstered Furniture Action Council, March 21, 1978.
---------------------------------------------------------------------------

5. Expected Benefits of the Proposed Standard

The expected benefits of the proposed standard are estimated as the
reduction in the societal costs associated with upholstered furniture
fires that would be prevented by the standard. We estimate the benefits
in several steps. First, the average annual societal costs of
upholstered furniture fires are estimated, based on estimates of the
aggregate annual costs of fire-related deaths, injuries, and property
damage. These costs are differentiated by ignition source (i.e.,
cigarette vs. open flame ignition) and by fabric covering type (since
different fabrics exhibit different ignition propensities). Societal
costs are also estimated on a ``per product in use'' basis, based on

[[Page 11714]]

estimates of the numbers of furniture items in use.
Second, since each furniture item is expected to remain in use for
an average of 15 to 17 years, the present value of the product's
estimated lifetime fire costs is estimated by summing the discounted
annual costs over the item's expected useful life. The estimated annual
societal costs that are expected to accrue over the furniture item's
useful life are discounted at an annual rate of 3 percent. This rate is
consistent with recommendations in the economic literature for
discounting the costs and consequences of health programs.\40\ Societal
costs have also been estimated using a 7 percent discount rate, as
recommended by the Office of Management and Budget (in addition to 3
percent) in its guidance to Federal agencies on the use of discounting
in regulatory analysis (Circular A-4).
---------------------------------------------------------------------------

\40\ For example: Viscusi, W.K., ``Discounting Health Effects
for Medical Decisions,'' in Valuing Health Care: Costs, Benefits,
and Effectiveness of Pharmaceuticals and Medical Technologies, ed.
F.A. Sloan, 123-24. New York: Cambridge University Press. 1995.
Also, Gold, Marthe R., et al., Cost-Effectiveness in Health and
Medicine. New York: Oxford University Press. 1996.
---------------------------------------------------------------------------

Third, the expected effectiveness of the proposed standard (i.e.,
the percentage reduction in fire losses) is estimated for each ignition
source and upholstery cover type. As discussed below, effectiveness of
the standard at reducing societal costs is based on judgments regarding
improvements attributed to fabric treatments and effectiveness of
barrier materials.
We begin the analysis by evaluating the societal costs of cigarette
fires and the expected benefits associated with preventing these fires.
This is followed with an evaluation of the societal costs and likely
benefits associated with the prevention of open-flame ignited fires.
a. Expected Benefits From Reducing Cigarette Fire Losses
Societal costs of furniture fires started by cigarettes. The
purpose of this section is to estimate the societal costs of cigarette-
related upholstered furniture fires to use as the basis for estimating
the cigarette benefits. In the next section, benefits are estimated as
avoided societal costs. These costs are based on fire losses (deaths,
injuries and property loss) estimated by the CPSC Directorate for
Epidemiology, which relies on fire loss data acquired from the National
Fire Protection (NFPA) annual survey of fire departments and the U.S.
Fire Administration (USFA) National Fire Incident Reporting System
(NFIRS). The most recent fire data available to make such estimates was
for the 2002-2004 time period. Societal cost estimates are also
differentiated by fabric cover types, which (as described below)
exhibit different cigarette ignition propensities.
According to the CPSC's Directorate for Epidemiology, there was an
average of 260 addressable civilian deaths and 320 nonfatal civilian
injuries annually from fires started by cigarettes during the 2002-2004
time frame.\41\ There was also an average of about $73 million annually
(in 2005 dollars) in property losses from cigarette-ignited fires.\42\
By combining the costs associated with deaths, injuries, and property
damage, total societal costs can be estimated.
---------------------------------------------------------------------------

\41\ Miller, David. ``2002-2004 Fire Loss Estimates for
Upholstered Furniture.'' Directorate for Epidemiology, U.S. Consumer
Product Safety Commission, August 3, 2007 (Draft). The Directorate
for Epidemiolgy based its estimates on a methodology that was
refined to address concerns raised by the General Accounting Office
(GAO) in a 1999 report, ``Consumer Product Safety Commission:
Additional Steps Needed to Assess Fire Hazards of Upholstered
Furniture.''
\42\ Estimated average property losses of about $65 million for
2002-2004 (Miller, op. cit.) are expressed in 2004 dollars ($70
million) based on changes in the Producer Price Index for
construction materials.
---------------------------------------------------------------------------

For analytic purposes staff assigns a value of $5 million as the
value of a statistical life for the calculation of societal costs. The
$5 million estimate is consistent with the general range of the value
of a statistical life published in the literature, which generally
falls in the $3 million to $7 million range.\43\ Multiplying the annual
estimate of about 260 deaths by the value of a statistical life of $5
million yields annual fatality costs of $1.3 billion.
---------------------------------------------------------------------------

\43\ Viscusi, W. Kip, ``The Value of Risks to Life and Health,''
Journal of Economic Literature, Vol. XXXI, December 1993, pp. 1912-
1946.
---------------------------------------------------------------------------

Nonfatal injuries were assigned an average cost of $146,740 each.
The basis for this estimate was the analysis of burn injury costs
reported in the August 1993 report ``Societal Costs of Cigarette
Fires,'' part of the research sponsored by the CPSC under the Fire Safe
Cigarette Act of 1990.^{44 45} The $146,740 figure represents a
weighted average of injury costs (including pain and suffering) for
both hospitalized injuries and injuries treated and released. The
estimate of 320 injuries annually results in societal costs of about
$47 million.
---------------------------------------------------------------------------

\44\ Zamula, William W., ``Costs for Non-Fatal, Addressable
Residential Civilian Injuries Associated with Upholstered Furniture
Fires.'' (Memorandum to Gregory B. Rodgers, AED, EC) Directorate for
Economic Analysis, U.S. Consumer Product Safety Commission.
September 6, 2007. (Costs are estimated in 2005 dollars.)
\45\ Miller, Ted R., et al., ``Societal Costs of Cigarettes
Fires,'' prepared for the U.S. Consumer Product Safety Commission
under the Cigarette Safety Act of 1984, August 1993.
---------------------------------------------------------------------------

As noted above, the proposed standard would also address about $70
million annually in property losses from fires started by cigarettes,
based on estimates for the 2002-2004 period. Consequently, the total
annual costs of cigarette-ignited fires addressed by the proposed
standard amounted to an annual average of about $1,420 million ($1,300
million + $47 million + $73 million) during the 2002-2004 time period.
Information on the number of furniture items (i.e., separate pieces
of furniture) in use provides a basis for estimating the costs of
cigarette ignition fires on a per unit basis. The average estimated
number of items of residential living room and family room upholstered
furniture in use during the 2002-2004 time period was about 447 million
units, based on an expected useful product life of 15-17 years. Given
the annual societal costs and the number of furniture units in use, the
annual societal cost per unit of furniture in use, resulting from
cigarette ignition, amounted to about $3.18 ($1,420 million/447 million
units of furniture). This per unit societal cost estimate represents an
average across all furniture items in use. However, because different
fabric coverings for furniture exhibit different ignition propensities,
we can develop more precise estimates of per unit societal costs by
accounting for the fabric cover.
Ignition testing of chairs by CPSC staff and others over the years
has shown that the cigarette ignition hazard of furniture mainly
involves chairs covered with fabrics that are predominantly woven from
cellulosic fibers, i.e., cotton and rayon. Chair testing done by the
CPSC staff and California's Bureau of Home Furnishings has shown that
chairs covered with predominantly thermoplastic fabrics (e.g.,
polyester, polypropylene, and nylon) are much less likely to ignite
from cigarettes. Chairs covered with some materials, such as leather,
vinyl-coated fabrics, and wool fabrics are resistant to ignition from
cigarettes. Given the disparity of ignition propensities, some types of
furniture would be expected to result in greater societal costs from
fires. Information relevant to the determination of average
ignitability and estimation of societal costs for furniture covered
with different types of materials is discussed below.
The results of the analysis described in this section (including
estimates of market shares by fabric covering, estimates of ignition
propensities and risk by fabric type, and estimates of

[[Page 11715]]

annual societal costs) are summarized in Table 1.
BILLING CODE 6355-01-P
[GRAPHIC] [TIFF OMITTED] TP04MR08.000

BILLING CODE 6355-01-C

[[Page 11716]]

Estimates of the types of upholstery on furniture pieces found in
households during 2002-2004 were derived from historical data from
surveys in various years, estimates of annual sales of upholstered
furniture, and calculations of the survival of furniture in years after
purchase (using the CPSC's Product Population Model). Based on these
sources, the Directorate for Economic Analysis estimates that 50.2
percent of the 447 million upholstered furniture items that were in use
during 2002-2004 were covered with thermoplastic fabrics, 31.2 percent
were covered with cellulosic fabrics, and 18.6 percent were covered
with leather, vinyl-coated fabrics, or wool fabrics. These market
shares are shown in Table 1, column 1.
Note that the market shares in the first three rows sum to the 31.2
percent of the furniture in use covered with cellulosic fabrics.
However, because extensive testing data show that some cellulosic
fabrics are more likely to ignite than others, this analysis also
separates cellulosic fabrics into three categories according to their
ignition propensities. The next several paragraphs describe this sub-
categorization of cellulosic fabric coverings.
Testing by the CPSC laboratory using the proposed Upholstery Fabric
Smoldering Ignition Test \46\ indicates that upholstery cover materials
which are most likely to fail the test are fabrics woven entirely of
cellulosic fibers that are heavier than eight ounces per square yard.
These fabrics are assumed to include all fabrics that would be
classified as Class II fabrics under the UFAC Program as well as
predominantly cellulosic fabrics that would be classified as Class I
fabrics under the UFAC Program and Class C and D fabrics according to
the proposed furniture flammability standard fabric test method
developed by the National Bureau of Standards (NBS, now the National
Institute of Standards and Technology) in the 1970s. Estimation of the
percentage of fabrics that would fail the fabric test of the proposed
standard, and assessment of the societal costs presented by different
types of upholstery cover materials are, therefore, based on fabric and
chair test data accumulated over the years.
---------------------------------------------------------------------------

\46\ The Upholstery Fabric Smoldering Ignition Test is cigarette
ignition testing of fabrics over a standard non-flame-retardant
polyurethane foam substrate.
---------------------------------------------------------------------------

Classification of cellulosic fabrics according to the test
developed by UFAC (which classifies fabrics according to char length on
the vertical surface when tested over standard non-FR polyurethane
foam) and the test developed by NBS (which classifies fabrics according
to char length when tested over a glass fiberboard substrate) have been
used to categorize the ignition performance of cellulosic fabrics in
this analysis. CPSC laboratory analyses since 1980 found that about 82
percent of cellulosic fabrics tested were Class I fabrics according to
the fabric classification test of the UFAC Program (i.e., having a
vertical char length of less than 1.75 inches), and 18 percent of
cellulosic fabrics were UFAC Class II fabrics (i.e., having a vertical
char length of 1.75 inches or greater). Assuming the tested fabrics
were representative of cellulosic fabrics, 25.6 percent of all fabrics
on furniture in use during 2002-2004 were UFAC Class I (31.2% that were
covered with cellulosic fabrics x 82%) and 5.6 percent were UFAC Class
II (31.2% x 18%).
Laboratory testing shows that the cover material smoldering
resistance test of the proposed standard is more severe than the UFAC
Fabric Classification Test.\47\ Therefore, for the purposes of this
analysis, UFAC Class II fabrics are assumed to fail the proposed fabric
test without changes that would improve their ignition resistance.
Limited testing also indicates that some portion of UFAC Class I
fabrics will fail the fabric test of the proposed standard. Twenty-five
percent of the Class I fabrics tested by the CPSC staff in 1980 and
1984 were found to be generally more ignition-prone Class D fabrics
according to the NBS fabric classification test (i.e., sustaining chars
of greater than 3 inches when tested over glass fiberboard). If we
assume that such fabrics would fail the proposed standard's fabric
test, an estimated 12 percent of fabrics found on furniture in 2002-
2004 would have failed the test (5.6 percent which were UFAC Class II,
plus 25 percent of the 25.6 percent of other cellulosic fabrics which
were UFAC Class I. (Designated as ``Severely Ignition-Prone
Cellulosics'' in Table 1.)
---------------------------------------------------------------------------

\47\ Tao, Weiying, Ph.D. ``Evaluation of Test Method and
Performance Criteria for Cigarette Ignition (Smoldering) Resistance
of Upholstered Furniture Materials.'' Division of Electrical and
Flammability Engineering, Directorate for Laboratory Sciences, U.S.
Consumer Product Safety Commission. May 2005.
---------------------------------------------------------------------------

Fabrics assumed to pass the proposed standard include more
moderately ignition-prone fabrics that are Class I according to the
UFAC Fabric Classification test and Class C according to the NBS fabric
test (i.e., sustaining chars of 1.5--3 inches when tested over glass
fiberboard), and more ignition-resistant Class B cellulosic fabrics
according to the NBS fabric test (which sustain char lengths of less
than 1.5 inches when tested over glass fiberboard). The Class C fabrics
accounted for an estimated 5.8 percent of fabrics found on furniture in
2002-2004 (22.5 percent of UFAC Class I cellulosic fabrics according to
CPSC staff testing). These fabrics are designated as ``Moderately
Ignition-Prone Cellulosics'' in Table 1. More ignition-resistant NBS
Class B fabrics are estimated to have comprised 52.5 percent of UFAC
Class I cellulosic fabrics, or 13.4 percent of all fabrics and covering
materials found on upholstered items in 2002-2004. These fabrics are
designated as ``Lower Ignition-Prone Cellulosics'' in Table 1.
Estimated ignition propensities for furniture covered with
cellulosic fabrics are based on chair testing that was done in 1984 and
1994. Evaluating chair test results according to UFAC and NBS fabric
classifications, 58.3 percent of test cigarettes were estimated to lead
to ignitions for chairs covered with UFAC Class II fabrics. The
estimated ignition propensity for test cigarettes on chairs covered
with UFAC Class I, NBS Class D fabrics was 46.6 percent. Combining
these two severely-ignition-prone fabric classes yields an average
estimated ignition propensity of 52.1 percent (weighted by their 2002-
2004 market shares). Cigarettes placed on furniture covered with
moderately ignition-prone fabrics had an estimated 32.2 percent
likelihood of resulting in ignition.\48\ About 10.5 percent of test
cigarettes were estimated to lead to ignitions for chairs covered with
less ignition-prone cellulosic fabrics.\49\ (See column 2 of Table 1.)
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\48\ UFAC Class I, NBS Class C cellulosic fabrics.
\49\ NBS Class B cellulosic fabrics.
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Because of less concern with the ignition propensity of
thermoplastic fabrics, ignition testing data for such materials are
more limited. Expanding chair test data to include tests conducted in
1980 led to an estimate that 1.5 percent of test cigarettes would
result in ignition for furniture covered with thermoplastic fabrics.
Additionally, based on limited laboratory ignition testing data,
materials such as leather, wool fabrics, and vinyl-coated fabrics are
assumed to be highly resistant to ignition from cigarettes.
The calculation of weighted ignition propensities of furniture
covered with different types of fabrics is the product of the estimated
market share of furniture in use in 2002-2004 for each type of fabric
and its estimated ignition propensity. The estimated weighted ignition
propensity was 0.063 for items covered with severely ignition-prone

[[Page 11717]]

cellulosic fabrics (i.e., 12.0% share of the market x 52.1% ignition
propensity); 0.019 for items covered with moderately ignition-prone
cellulosic fabrics (5.8% x 32.2%); 0.014 for items covered with less
ignition-prone cellulosic fabrics (13.4% x 10.5%); and .008 for items
covered with thermoplastic fabrics (50.2% x 1.5%). (See column 3 of
Table 1.)
The percent of total risk presented by furniture covered with
different fabric types was derived by dividing estimated weighted
ignition propensities by the sum of all weighted ignition propensities
(which was about .103 for furniture in use in 2002-2004). Thus, as
shown in the table, the more severely ignition-prone cellulosic fabrics
\50\ were estimated to account for 60.9 percent of the total risk
(.063/.103); moderately ignition-prone cellulosic fabrics \51\
accounted for an estimated 18.0 percent of the risk (.019/.103); less
ignition-prone cellulosic fabrics accounted for about 13.7 percent of
the risk (.014/.103); and thermoplastic fabrics accounted for about 7.3
percent of the risk (.008/.103). (See column 4 of Table 1.) \52\
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\50\ UFAC Class II and UFAC Class I/NBS Class D fabrics.
\51\ NBS Class C cellulosic fabrics.
\52\ Percent of total risk for each fabric type was calculated
from estimates of market share and ignition propensity that were not
rounded.
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The average annual societal costs associated with cigarette
ignitions of each fabric type were estimated by dividing the product of
estimated percent of total risk (above) and the total estimated average
annual societal costs associated with cigarette ignition of furniture
($1,420 million) by the estimated number of units in use during 2002-
2004 with each fabric type (447 million units in use x estimated market
share). The average annual societal costs were estimated to be $16.08
for items covered with severely ignition-prone cellulosic fabrics
(60.9% x $1,420 million/447 million x 12.0%); $9.94 for items covered
with moderately ignition-prone cellulosic fabrics (18.0% x $1,420
million/447 million x 5.8%); $3.24 for items covered with less
ignition-prone cellulosic fabrics (13.4% x $1,420 million/447 million x
13.7%); and $.46 for items covered with thermoplastic fabrics (7.3% x
$1,420 million/447 million x 50.2%). (See column 5 of Table 1.)
The estimated lifetime societal costs per unit of furniture were
calculated as the present value of the estimated annual societal costs
over the expected product life of the item of furniture. The annual
expected societal costs of cigarette ignition were assumed to apply
each year that an item of furniture remains in household use. The
CPSC's Product Population Model was used to calculate the likelihood
that furniture items would remain in use in years after purchase.
Annual societal costs per unit were multiplied by estimated probability
of survival in subsequent years. The estimated stream of future
expected societal costs were discounted to their present values, using
a discount rate of 3 percent.
Available data suggest that other factors (in addition to changes
in fabrics) have contributed to a decline in fires resulting from
cigarette ignition of upholstered furniture over time. These factors
include changes in smoking-related behavior of individuals, increased
presence of smoke alarms, and changes in furniture filling materials.
The present value estimates were further adjusted to account for an
expected future decline in smoking-related fire incidents. This was
done by forecasting future fire deaths by year, based on trends in
deaths from cigarette ignitions of upholstered furniture during 1980-
2004, and reducing the expected societal costs of cigarette ignited
fires by the projected percentage reduction. This analysis found that
expected lifetime societal costs, discounted to their present value
using a 3 percent discount rate, should be reduced by approximately 28
percent. Thus, expected lifetime societal costs per unit of $195.31 for
items covered with severely ignition-prone cellulosic fabrics were
reduced to $140.04 after incorporating the trend data. Similar
calculations led to estimates of lifetime societal costs of $86.60 for
items covered with moderately ignition-prone cellulosic fabrics; $28.24
for items covered with less ignition-prone cellulosic fabrics; and
$4.06 for items covered with thermoplastic fabrics. (See column 6 in
Table 1.)
b. Expected Benefits
The analysis described above estimated the per unit hazard costs
associated with the upholstery materials of different ignition
propensities, based on the furniture in use during 2002-2004, the most
recent time period for which fire data is available. However, as
discussed in Section 4, the types of upholstery materials used in the
production of furniture have changed over the years. Since the proposed
standard would address risks associated with current production,
projection of benefits requires estimating the societal costs
associated with materials now being used to manufacture furniture. This
is accomplished by estimating the percentage of furniture items
currently made with covering materials of differing ignition
propensities.
A 2006 survey of furniture manufacturers by Ciprus Limited provides
information on consumption of cellulosic, thermoplastic, and leather
covering materials in the production of furniture.\53\ Using CPSC staff
test data discussed above, the percentages of current production (as
indicated by the Ciprus data) made with materials ranging from severely
ignition-prone cellulosic fabrics to ignition resistant materials such
as leather were estimated. These estimates are shown in column 1 of
Table 2. The estimated percentage of upholstered items now made with
severely ignition-prone cellulosic fabrics has fallen to 9.6 percent of
annual production, from 12.0 percent estimated for furniture in use
during 2002-2004. This is a 20 percent decrease in the relative use of
the most ignition-prone class of fabrics. The use of other ignition-
prone fabrics has also declined, in relative terms, while the use of
generally ignition-resistant materials such as leather (estimated to be
about 30 percent of current production) is 62 percent greater than
found in household use in 2002-2004.
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\53\ Ciprus Limited, op. cit.
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Column 2 of Table 2 shows the expected number of furniture units
produced annually, by type of covering material, based on the market
shares of the various fabric coverings (column 1) and an estimated 30.5
million furniture units produced. Column 3 provides the estimates of
per unit lifetime societal costs derived in Table 1.
Based on current estimates of the types and quantity of furniture
produced, the estimated total present value of the expected societal
costs from cigarette fires is $681 million for furniture produced in a
year, in the absence of a standard. (See column 4 of Table 2.) Total
estimated societal costs involving furniture covered with severely
ignition-prone cellulosic fabrics account for $411 million, or about 60
percent of the total. In contrast, thermoplastic fabrics, which are
used to cover about 45 percent of all upholstered furniture produced,
account for an estimated $55.5 million in societal costs, or only about
8 percent of the total.
A comparison of the ignition performance of upholstered chairs made
with current fabrics with that of chairs made in compliance with the
proposed standard would provide data to assess the likely reduction in
ignition propensity that would result from the proposed standard. In
the absence of such data, we can estimate the benefits of the standard
by making reasonable judgments about improvements in ignition
performance that would result from the use of complying materials.
Furniture currently manufactured with severely ignition-prone
cellulosic fabrics could realize a reduction in societal costs per unit
under the proposed standard to the equivalent of that now estimated for
furniture covered by less ignition-prone cellulosic fabrics. This
reduction would be attributable to improved ignition performance of
fabrics or from the use of qualifying barriers. The reduction in
lifetime societal costs per unit from $140.04 to $28.24 amounts to a
hazard reduction of 79.8 percent (shown in column 5 of Table 2). We
likewise assume that pre-standard societal costs estimated for
moderately ignition-prone cellulosic fabrics (which are also expected
to fail the proposed cover fabric test) would also likely fall to the
level of estimated hazard costs associated with furniture covered with
less ignition-prone fabrics. The estimated reduction from estimated
lifetime societal costs of $86.60 to $28.24 would be a 67.4 percent
reduction in the hazard presented (also shown in column 5). Since
upholstered furniture items covered with less ignition-prone cellulosic
fabrics and thermoplastic fabrics are expected to pass the proposed
cover fabric test, and there are no requirements for filing materials
under the proposed standard, furniture covered with those fabrics would
not be expected to be associated with any reduction in their expected
societal costs.
The estimated benefits per unit were calculated for each fabric
class. (See column 6 of Table 2.) Per unit benefits of the proposed
standard range from $0 for furniture covered with ignition-resistant
fabrics such as thermoplastic or lower cigarette-ignition-prone
cellulosics to an estimated $111.80 per unit for items currently
covered by severely ignition-prone cellulosic fabrics. The benefits
from ignition resistant materials such as leather, wool, and vinyl-
coated fabrics are also expected to be $0.
The total estimated benefits of the proposed standard are
calculated by multiplying estimated per unit benefits (shown in column
6) by the estimated annual units produced with each class of covering
material (column 2). Based on these calculations, estimated benefits of
the standard, in the form of expected lifetime reduction in societal
costs associated with production of furniture in one year, discounted
to their present value using a discount rate of 3 percent, total $410.2
million. About 80 percent of total estimated benefits are associated
with the approximately 10 percent of furniture currently made with
severely ignition-prone cellulosic fabrics.
As noted previously, OMB guidance to Federal agencies on the use of
discounting in regulatory analysis recommends that future benefits (and
costs) of federal regulations be presented using discount rates of 3
percent and 7 percent. Projected benefits from reductions in smoldering
ignitions have an estimated present value of $309.1 million if future
benefits are discounted at a 7% discount rate.
In addition to cigarette losses, the Directorate for Epidemiology
estimated fire losses from small open-flame ignitions for the years
2002-2004.\54\ During this time period, there were an average of 30
deaths and 170 nonfatal injuries annually from fires started by small
open flames. There was also an average of about $50 million annually in
property losses from small open flame-ignited fires during this time
frame.\55\
---------------------------------------------------------------------------

\54\ Miller, David. op. cit.
\55\ Estimated average property losses for 2002-2004 are
expressed in 2005 dollars, based on changes in the Producer Price
Index for construction materials.
---------------------------------------------------------------------------

Assuming a value of statistical life of $5 million,\56\ the
societal costs associated with the 30 deaths annually amounted to about
$150 million. The 170 nonfatal injuries were assigned an average cost
of $146,740 each,\57\ resulting in societal costs of about $25 million.
Adding in the $50 million annually in property losses from fires
started from small open-flame ignition, the total annual costs of open-
flame ignited fires addressed by the proposed standard amount to about
$225 million ($150 million + $25 million + $50 million).
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\56\ Viscusi, W. Kip, op. cit.
\57\ Zamula, William W., op. cit. Injury costs are expressed in
2005 dollars.
---------------------------------------------------------------------------

As in Table 1, these annual estimates of the open-flame losses are
used to develop estimates of the lifetime societal costs of open-flame
hazards per unit of furniture in use during 2002-2004, for each of the
five fabric categories. The results are presented in Table 3.
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Column 1 of Table 3 shows the proportions of furniture in each
fabric material category, and is identical to the corresponding column
in Table 1. Column 2 describes open-flame ignition propensities, based
on small open flame ignition testing by the CPSC laboratory in 1996. In
that testing, cellulosic and thermoplastic fabrics had nearly the same
ignition propensity when subjected to a small flame for 20 seconds.
Ignitions in 20 seconds or less were observed for 27 of 29
predominantly cellulosic fabrics (about 93 percent) and 17 of 18
predominantly thermoplastic fabrics (about 94 percent).\58\
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\58\ Based on testing data presented in Directorate for
Laboratory Sciences memoranda dated October 3, 1996, through
September 19, 1997, Tab D, ``Upholstered Furniture Flammability:
Regulatory Options for Small Open Flame & Smoking Material Ignited
Fires,'' October 24, 1997.
---------------------------------------------------------------------------

Based on these ignition propensities and the estimated percentages
of furniture in use comprised by upholstered items with cellulosic and
thermoplastic fabrics, furniture covered with thermoplastic fabrics
accounted for an estimated 62 percent of the overall risk of small open
flame ignitions during 2002-2004; items covered with cellulosic fabrics
accounted for an estimated 38 percent of the risk. While Table 3
separates cellulosic fabrics according to differences in their
cigarette ignition propensities, for this analysis all cellulosic
fabrics are assumed to have the same small open flame ignition
propensity. The estimated percent of overall risk for each type of
cellulosic fabric is, therefore, determined by market share. As with
the risk of ignition by cigarettes, furniture covered by leather, wool,
and vinyl-coated fabrics is assumed to be resistant to ignition from a
20-second exposure to a small open flame.
Following the same methodology described in Table 1, the average
annual societal costs associated with small open flame ignitions of
each fabric type were estimated by dividing the products of estimated
percent of total risk and the total estimated average annual societal
costs associated with small open flame ignition of furniture ($225
million) by the estimated number of units in use during 2002-2004 with
each fabric type (447 million units in use x estimated market share).
This approach resulted in estimated average annual societal costs of
about $.62 for items covered with thermoplastic fabrics (62% x $225
million /447 million x 50.2%) and about $.61 for items covered with
predominantly cellulosic fabrics (38% x $225 million/447 million x
31.2%). (See column 5 of Table 3.)
Finally, the lifetime societal costs (per unit of furniture) were
estimated as the present value of the annual per unit societal costs
over the expected product life of a furniture item. This present value
estimate (shown in column 6), discounted at a rate of 3 percent, is
about $7.55 for items covered with predominantly thermoplastic fabrics
and $7.44 for items covered with predominantly cellulosic fabrics.
The estimated benefits associated with the prevention of open-flame
fires are described in Table 4. The methodology is similar to that
described for Table 2. Column 1 shows the current market shares, by
fabric type, and Column 2 shows annual sales based on annual furniture
shipments of 30.5 million units. Column 3 provides the estimates of per
unit lifetime societal costs derived in Table 3, and Column 4 provides
estimates of the aggregate societal costs of fires associated with
open-flame ignition.
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For the purposes of this analysis, we assume that about 40 percent
of furniture currently manufactured with severely cigarette ignition-
prone cellulosic fabrics (accounting for about 1.17 million units, or
3.8 percent of all furniture items) would be made with barrier
materials. Complying barriers may reduce the open flame ignition
hazards by about 90 percent, or $6.70 per unit, and benefits could
total $7.9 million for furniture made with complying barriers.
Based on the assumption that 40 percent of severely cigarette
ignition-prone cellulosic fabrics would be used with complying
barriers, the remaining 60 percent of furniture currently manufactured
with severely cigarette ignition-prone cellulosic fabrics (accounting
for 5.8 percent of all furniture items) and the 4.6 percent of fabric
yardage that is moderately cigarette ignition prone (combining for
nearly 3.2 million units) would require other modifications or they
would have to be dropped from use as upholstery cover materials. The
methods of compliance chosen by manufacturers likely would affect the
level of reduction in open flame ignition hazards. The implications of
these decisions are discussed below.
Fabrics that do not pass the upholstery cover fabric smoldering
ignition resistance test could be brought into compliance through
treatments with FR chemicals. FR treatment of fabrics and filling
materials to achieve compliance with the staff's 2005 draft standard
might result in a 50 percent reduction in small open flame fire
losses.\59\ However, unlike the 2005 draft standard, the current
proposed standard does not include provisions related to open flame
ignition performance of filling materials, which in many cases would
have required FR treatments to achieve compliance. Lacking this
additional contribution to fire-retardance, the effectiveness of FR
fabric treatments under the proposed standard at reducing the small
open flame fire hazard probably would be lower. Consequently, the
hazard reduction for furniture with FR-treated fabrics may be about 25
percent under the proposed standard. Per unit open flame ignition
benefits would be about $1.86, and aggregate open flame benefits would
be about $5.9 million, if manufacturers resort to FR treatment for all
of the nearly 3.2 million units. From the standpoint of fabric type,
the average hazard reduction for severely cigarette ignition-prone
cellulosic fabrics would be 51 percent,\60\ and the reduction for
moderately cigarette ignition-prone cellulosic fabrics would be 25
percent. (See column 5 of Table 4.)
---------------------------------------------------------------------------

\59\ Smith, Charles, Directorate for Economic Analysis, CPSC,
Preliminary Regulatory Analysis of a Draft Proposed Flammability
Rule to Address Ignitions of Upholstered Furniture, November 2007.
\60\ Based on 25% effectiveness x 60% of the fabrics being FR-
treated and 90% x 40% that are made with barriers.
---------------------------------------------------------------------------

Alternatively, manufacturers would have the options of using
fabrics that are reformulated with different fibers or dropping non-
complying fabrics from use as furniture covers. In fact, this may be
the preferred option for most manufacturers, given concerns with costs,
FR exposure, aesthetic effects, and other issues. Open flame benefits
would not be expected for such furniture items. If the use of FR-
treatments of fabrics is 80 percent lower than assumed above, the
number of units made with FR-treated fabrics would total about 630,000
and aggregate open flame benefits from furniture using FR-treated
fabrics would be about $1.2 million, and total open flame benefits
would be about $9 million. If all 630,000 units with FR fabric
treatments involved severely cigarette ignition-prone fabrics, the
average estimated hazard reduction for that category of fabrics would
be about 41 percent.\61\
---------------------------------------------------------------------------

\61\ Based on 25% effectiveness x 21.6% of the fabrics being FR-
treated and 90% x 40% that are made with barriers.
---------------------------------------------------------------------------

Based on the assumed range of furniture units that would be made
with FR-treated fabrics, aggregate open flame benefits from the
proposed standard range from about $9 million to $13.8 million, as
shown in column 7 of Table 4. In accordance with OMB guidance that
future benefits (and costs) of federal regulations be presented using
discount rates of 3 percent and 7 percent, open flame benefits of the
proposed standard have also been estimated to have a present value of
$6.4 million to $9.9 million if future benefits are discounted at a 7
percent discount rate.

6. Expected Costs of the Proposed Standard

a. Costs Related to Upholstery Fabrics and Barrier Materials
Upholstery fabric and FR treatments. This section of the analysis
presents information about the expected resource costs associated with
the proposed standard. These costs include manufacturing costs incurred
for materials, labor, testing, and recordkeeping, and distribution
costs to wholesalers, distributors, and retailers. The estimates are
expressed in 2005 dollars (as were estimated benefits). Cost estimates
are limited to upholstered household furniture that may commonly be
found in living rooms and family rooms. A relatively small number of
other types of chairs that fall within the scope of the standard, such
as a small percentage of dining chairs and desk chairs purchased by
consumers, are excluded from this analysis.\62\ Cost estimates are
summarized in Table 5.
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\62\ Those other items probably would incur relatively minor
increases in costs because of the types of materials used, and
smaller material requirements per unit of furniture.
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[[Page 11725]]

Fabrics failing the fabric test of the proposed standard could be
treated with FR chemicals or be reformulated with fibers that enable
passing results. Manufacturers would also be able to continue using
fabrics without modifications if they use an acceptable barrier
material (i.e., one that passes the proposed barrier tests) between the
fabric and filling materials. For purposes of this analysis, the highly
cigarette ignition-prone fabrics and moderately cigarette ignition-
prone fabrics, estimated to combine for about 14.2 percent of total
upholstery cover materials, are assumed to require modifications if
their use is to continue under the proposed standard. As discussed
previously, these modifications could include the use of FR treatments
or barriers, or reformulating the fabrics in a way (such as increasing
the thermoplastic fiber content) that will allow the fabrics to pass
the smoldering test of the proposed standard.
Based on fabrics that have been tested by the CPSC laboratory, many
of the fabrics that would fail the fabric test of the proposed standard
are heavier weight (over eight ounces per square yard) fabrics that are
made entirely of cellulosic fibers, such as cotton or rayon. Many of
these fabrics could be treated with FR chemicals to enable them to pass
the fabric test. Typically, fully upholstered chairs require about 7
linear yards of fabric, and sofas require 11 to 15 yards, depending on
factors such as the need to match patterns (which results in more
fabric waste in pattern cutting). The average increase in fabric costs
could range from $.62 to $1.05 per linear yard for manufacturers, based
on previous estimates for FR backcoating to achieve resistance to
ignition from small open flames.\63\ Also, although the proposed
standard does not specify frequency of testing to assure compliance of
treated fabrics with the fabric test, we assume that testing will be
done to provide guaranties to furniture manufacturers. This testing
could increase fabric costs an additional $.03 to $.06 per linear yard
of fabric, on average. Therefore, total average manufacturing cost
increases for furniture made with FR-treated upholstery fabrics under
the proposed standard could range from $4.55 to $7.77 for chairs and
$8.45 to $14.43 for sofas and loveseats.\64\ Considering estimates of
unit shipments of chairs and sofas (based on an analysis of Department
of Commerce Economic Census data), the average manufacturing cost
increase per item of furniture resulting from FR treatments of fabric
is estimated to range from $6.61 to $11.28.\65\ (See column 1 of Table
5.)
---------------------------------------------------------------------------

\63\ Smith, Charles. Directorate for Economic Analysis, CPSC,
Economic Analysis of Regulatory Options to Address Small Open Flame
Ignitions of Upholstered Furniture, October 2001. Note: Bureau of
Labor Statistics reports virtually no change in Producer Price Index
for job or commission finishing of cotton broadwoven fabrics from
2001-2005. Therefore, previous estimates are used in this analysis.
\64\ Assuming average fabric yardage for sofas and loveseats is
13 linear yards.
\65\ We estimate that in 1997, upholstered living room and
family rooms furniture purchased for consumer use was comprised of
about 15.6 million sofas, sofabeds, and loveseats (52.7%), and 14.0
million chairs (47.3%). Therefore: ($4.55 x 47.3%) + ($8.45 x 52.7%)
= $6.61; and ($7.77 x 47.3%) + ($14.43 x 52.7%) = $11.28.
---------------------------------------------------------------------------

Barrier materials. Some furniture manufacturers may choose to offer
fabrics that do not pass the fabric classification test by using an
acceptable barrier material under the cover fabric. Based on barriers
used in the UK to comply with the barrier test of that country's
furniture flammability standard, the cost to manufacturers could range
from $2.00 to $2.47 per linear yard (reportedly 54 to 59 inches in
width) for standard FR barriers, and about $2.67 to $2.94 per linear
yard for down-proof barriers (i.e. having yarns and weaves suitable for
encasing down).\66\ As with FR-treated cover fabrics, testing would be
done to assure compliance with the barrier test of the proposed
standard. However, given expected large production runs of barriers and
the greater degree of uniformity of barrier materials compared to cover
fabrics, additional testing costs to furniture manufacturers could be
about $.01 per yard of barrier fabric.
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\66\ Smith, Charles. op. cit.
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The decision to use barriers as a means to comply with the standard
is more likely to be taken by firms that serve the upper-end furniture
market. These furniture items are more likely to be manufactured with
interior fabrics between the cushioning materials and the upholstery
covers. In a 1995 survey of furniture manufacturers, the CPSC found
that about one-third of the seat, arm and back cushions were made with
interior fabrics. Interior fabrics were used in an average of about 50
percent of cushions made by smaller firms, which are more likely to
serve the upper-end market. To the extent that manufacturers already
enclose filling materials in interliner fabrics, the FR barriers could
be replacing untreated materials.
Cushions are usually purchased from fabricators that make them to
the specifications of the furniture manufacturers. For seat cushions,
the barrier alternative would result in a change in the interior fabric
used by the cushion fabricators. For such items, barrier costs would be
offset by the costs of the untreated materials, about $.30 per yard for
standard interliner fabrics and $.80 per yard for down-proof interliner
fabrics. Net increases in material costs, including costs for testing,
would be about $1.71 to $2.18 per yard for standard fabrics and $1.88
to $2.15 per yard for down-proof fabrics. Cushions typically have sides
that are about 24 inches long, and they are about 5 inches thick.
Therefore, about one linear yard of 54-inch wide interior fabric would
be used per seat cushion, and the cost increases per linear yard of
material would also hold true for cost increases per cushion.
Barrier materials required for other parts of the seating areas of
furniture items might require about two yards of material per chair and
four yards per sofa. These areas may be less likely to have interliner
fabrics currently than is the case with seat cushions. Therefore,
increased material costs probably would be $2.01 to $2.48 per linear
yard for standard FR barriers. These materials would increase material
costs by about $4.02 to $4.96 for chairs and $8.04 to $9.92 for sofas.
Adding the approximately $1.71 to $2.18 per cushion material cost
increases from substituting the use of FR barriers for standard
interliner materials, total increased material costs might be about
$5.73 to $7.14 for chairs and $13.17 to $16.46 for sofas.
In addition to increased material costs, manufacturers would also
be faced with additional costs related to labor needed to include FR
barriers on parts of the upholstered items that are not currently made
with interliner fabrics or battings. The additional labor required
might average about 15 to 20 minutes per item.\67\ Hourly labor costs,
including benefits, are estimated to range from about $25 to $30.\68\
Therefore, labor costs for the additional upholstery work could be
about $6.25 to $10.00. Total increases in

[[Page 11726]]

manufacturing costs (material and labor) are estimated to range from
$11.98 to $17.14 for chairs and $19.42 to $26.46 for sofas and
loveseats. The average increase in manufacturing costs per item of
upholstered furniture that would be made with FR barriers is estimated
to range from $15.90 to $22.05.\69\ (See column 2 of Table 5.)
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\67\ Based on a telephone conversation between a representative
of Vanguard Furniture, and Charles Smith, Directorate for Economic
Analysis, CPSC, on February 23, 2001.
\68\ Although the Bureau of Labor Statistics National
Compensation Survey reports that average upholsterer wages for the
Hickory-Morganton-Lenoir, NC area were $17.03 per hour in 2005, we
assume that wages and other labor costs are typically higher ($25-
$30) for upholsterers that work for manufacturers using expensive
decorative fabrics (which are more likely to be used with barrier
materials). This assumption is supported by labor cost information
provided by Vanguard Furniture, op. cit.
\69\ We estimate that in 1997, upholstered living room and
family rooms furniture purchased for consumer use was comprised of
about 15.6 million sofas, sofabeds, and loveseats (52.7%), and 14.0
million chairs (47.3%). Therefore: ($11.98 x 47.3%) + ($19.42 x
52.7%) = $15.90; and ($17.14 x 47.3%) + ($26.46 x 52.7%) = $22.05.
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As noted above, highly cigarette ignition-prone fabrics, estimated
to comprise 9.6 percent of total upholstery cover materials, could
require the use of FR treatments or barriers if their use is to
continue under the proposed standard. The use of barriers is more
economically feasible with more expensive fabrics, such as those
produced by members of the Decorative Fabrics Association (DFA). The
DFA estimates that fabrics marketed by its members comprise perhaps 1.5
percent of total upholstery fabric yardage used to make furniture.\70\
If 40 percent of highly cigarette ignition-prone fabrics (3.8% of all
upholstery cover materials, i.e., more than just the 1.5 percent of
fabric yardage reportedly marketed by DFA members) are assumed to be
used with acceptable barrier materials under a standard, about 1.17
million furniture pieces annually might be made with barriers under a
standard. The aggregate manufacturing cost increase related to use of
complying barrier fabrics under these assumptions would range from
about $18.7 million to $25.9 million.\71\ If 60 percent of highly
cigarette ignition-prone fabric yardage (covering 5.8% of all furniture
items) is assumed to be treated with FR chemicals, the estimated
aggregate increase in manufacturing costs from FR treatment of fabrics
would range from $11.6 million to $19.9 million annually.\72\ The
combined aggregate costs of fabric treatments and barriers would total
$30.3 million to $45.7 million annually.
---------------------------------------------------------------------------

\70\ Information provided to the staff at a June 29, 2000,
public meeting.
\71\ (30.5 million units x 3.8% x $15.90) = $18.7 million; (30.5
million units x 3.8% x $22.05) = $25.9 million.
\72\ (30.5 million units x 5.8% x $6.61) = $11.6 million; (30.5
million units x 5.8% x $11.28) = $19.9 million.
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In addition to costs associated with furniture covered with
severely cigarette ignition-prone cellulosic fabrics, fabrics that are
moderately cigarette ignition-prone could also be expected to require
modifications in order to comply with the proposed standard's
smoldering ignition test for cover materials. If these units
(accounting for an estimated 4.6% of current furniture purchases by
consumers) are also made with FR fabric treatments, material costs per
unit would increase by $6.61 to $11.28, for an increase in estimated
aggregate costs ranging from $9.3 million to $15.9 million annually.
Total estimated material cost increases related to FR treatment of
fabrics or the use of complying barriers would, therefore, range from
about $39.6 million to $61.6 million annually.
It should be noted that these cost estimates could be considered to
be the upper bound for material costs of the proposed standard, since
manufacturers would have the less expensive alternative of substituting
upholstery fabrics that pass the smoldering requirements for those that
do not, without the application of FR chemicals or the use of barrier
materials. If choosing these options were to reduce reliance on FR-
treatments of fabric by 80 percent from that assumed in the above
analysis, FR-treatment costs under the proposed standard could total
about $6.3 million annually. Under this assumption, an estimated 2.1
percent of furniture items would be made with FR-treated fabrics; 3.8
percent would be made with barrier materials, and; 8.3 percent would be
units in which fabrics were reformulated with more ignition-resistant
fibers or otherwise switched to fabrics/covers that comply without
treatments or barriers. In this scenario, aggregate costs of FR-
treatment of fabrics and the use of barriers would be about $30.8
million.
b. Costs Related to Compliance Verification
Costs related to compliance verification will result from
requirements placed on furniture manufacturers to maintain records and
to apply a permanent label to the items.\73\ Other resource costs of
compliance verification include the costs of compliance and enforcement
activities undertaken by CPSC staff. For purposes of this analysis we
assume compliance verification costs of about $.10 per furniture unit.
(See column 5 of Table 5.)
---------------------------------------------------------------------------

\73\ Costs related to production testing are incorporated in the
estimated material costs of the draft standard.
---------------------------------------------------------------------------

c. Distribution Costs
An additional cost of the proposed standard could be increases in
costs to wholesalers, distributors, and retailers in the form of added
storage, transportation, and inventory financing costs. Since furniture
items that would be produced under the standard are not likely to be
larger or heavier than pre-standard items, added storage and
transportation costs are likely to be negligible. However, inventory
financing costs will increase by the average cost of borrowing money,
applied to the increase in the wholesale price of a furniture item over
the average inventory holding time period. Since most furniture
producers use just-in-time production and have small inventories of
finished items, this additional cost will probably not exceed 10
percent of the increase in manufacturing costs. A 10 percent markup,
therefore, is being used to measure these distribution costs. This
yields a resource cost to the firms in the distribution chain averaging
about $0.67-$1.14 per furniture item made with FR-treated fabrics and
$1.60 to $2.22 per item made with barriers. The weighted range of
estimated resource costs for furniture made with severely cigarette
ignition-prone fabrics is $1.04 to $1.57 per unit of furniture.\74\
(See column 4 of Table 5.) Aggregate costs associated with estimated
increased inventory financing costs range from $4.2 million to $6.4
million annually. As discussed in Section 7 of this analysis, the
proposed standard may lead to increases in retail prices of furniture
greater than the 10 percent markup.
---------------------------------------------------------------------------

\74\ Based on the assumption that 60% of these units will use
FR-treated fabrics and 40% will use barriers.
---------------------------------------------------------------------------

d. Summary of Expected Costs
Table 5 summarizes the results of the cost analyses. It illustrates
the differing costs estimated to be incurred under the standard by
furniture items covered with the different classifications of
upholstery materials previously discussed in the societal costs and
benefits section of this analysis. The estimated 14.2 percent of
furniture items covered by severely and moderately cigarette-ignition-
prone cellulosics would incur greater total and per unit costs under
the proposed standard. We assume these fabrics would fail the
upholstery cover fabric smoldering ignition resistance test of the
proposed standard. Therefore, their continued use in furniture
production would require the use of barrier materials that pass the
barrier test of the proposed standard or other treatments. Furniture
items covered with other types of upholstery materials should not
require FR-treated fabrics or barriers. However, all units would incur
minor compliance verification costs.

[[Page 11727]]

Based on the estimated increases in manufacturing costs associated
with changes in fabrics and the use of barriers, costs of compliance
verification, and distribution costs, aggregate costs under the
proposed standard are estimated to range from about $47 million to $71
million annually. The midpoints of the estimated ranges of costs total
$59.1 million. As noted above, since changes in fiber contents of
fabrics or dropping fabrics from selections offered by manufacturers
will be an option available to manufacturers, the aggregate
manufacturing costs related to FR treatments and barriers could be
lower. Under an alternative assumption that the reliance on FR
treatments of fabrics will be 80 percent lower, aggregate costs of the
proposed standard would be about $34 million for one year's production
of complying furniture.

7. Comparison of Costs and Benefits

a. Benefits and Costs of Proposed Standard
The expected benefits of the proposed standard, which will vary
depending on the cigarette ignition propensity of the upholstery cover
material used, were discussed in Section 5 of this analysis (and shown
in Tables 2 and 4) and are summarized in Table 6. Table 6 shows the
estimated benefits (per unit of furniture) in columns 1, 2, and 3. The
benefits associated with bringing furniture pieces now covered with
severely cigarette ignition-prone cellulosic fabrics into compliance
are estimated to range from $114.88 to $115.59 per unit (comprised of
$111.80 from reduced losses from furniture fires started by cigarettes
and $3.08 to $3.79 from reduced losses from fires started by small open
flames). The projected benefits resulting from modifications to
furniture covered with moderately cigarette ignition-prone cellulosic
fabrics range from $58.36 to $60.22 per unit. For both groups of
fabrics the range in benefits is attributable to the effect of
different assumptions of use of FR fabric treatments on open flame
ignition benefits. Other types of covering materials are not expected
to be associated with either cigarette or open flame benefits, since no
modifications to fabrics or filling materials would be required to
comply with the proposed standard.
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[GRAPHIC] [TIFF OMITTED] TP04MR08.005

BILLING CODE 6355-01-C

[[Page 11729]]

Table 6 also shows (in column 4) the midpoints of the ranges of
estimated per unit costs of compliance with the proposed standard,
which were discussed in Section 6 of this analysis. Estimated costs per
unit of furniture covered with severely and moderately cigarette
ignition-prone cellulosic fabrics are expressed as ranges based on
different assumptions of the extent to which FR treatment would be used
to achieve compliance. The higher cost estimates reflect the midpoint
of costs estimated using an assumption that all of the affected fabrics
are either FR treated or used with complying barriers. The lower cost
estimates assume that reliance on FR treatments is reduced by 80
percent, as manufacturers comply through fabric fiber reformulation or
dropping noncomplying fabrics from use as upholstery covers.
Table 6 also shows aggregate and cumulative net benefits associated
with the proposed standard. The total net benefits shown in column 7
are the product of per unit net benefits and number of units produced
annually by type of cover material. For example, the total estimated
net benefits from furniture covered with moderately cigarette ignition-
prone cellulosic fabrics range from $70.7 million to $81.9 million,
given by the product of 1.4 million units produced and per unit net
benefits of $50.27 to $58.25. The cumulative net benefits (shown in
column 8 of Table 6) are calculated by the vertical summation of the
``Total Net Benefits'' column. Total net benefits of the proposed
standard are estimated to range from $364.9 million to $385.1 million.
As noted in Table 6 and in previous sections of this analysis on
benefits, expected benefits accruing in future years have been
discounted to their present value using a 3 percent discount rate to
reflect society's time preference. In accordance with OMB guidelines on
benefits calculations, calculations have also been made using a 7
percent discount rate. Using this higher rate, total net benefits of
the proposed standard are estimated to range from about $260 million to
$281 million over the life of complying upholstered furniture produced
in a year.\75\ Analyses using both discount rates assume that
manufacturers would use FR treatments in a manner that poses no
additional risk of injury or adverse health effects to consumers.
---------------------------------------------------------------------------

\75\ Aggregate benefits ranging from about $316 million to $319
million minus aggregate costs ranging from about $34 million to $59
million (midpoint of range).
---------------------------------------------------------------------------

b. Sensitivity Analysis
The previous discussion compares benefits and costs of the proposed
standard using discount rates of 3 percent and 7 percent to express
expected benefits accruing in the future in their present value, an
estimated value of a statistical life of $5 million, and an estimated
average cost of injury of $146,740. Net benefits were also estimated
based on estimated increases in costs of producing and marketing
furniture that complies with the proposed standard. In addition to
these factors, the estimation of benefits was based on assumptions
regarding the effectiveness of the standard at reducing losses from
cigarette and small open flame ignitions. This section examines the
effect of changing any of these assumptions on the expected net
benefits that would result from compliance with the proposed standard.
In all cases, the estimated net benefits of the proposed standard
remain positive.
Discount rates of 3 percent and 7 percent were used to express
expected benefits accruing in the future in their present value. Using
a 3 percent rate, total estimated benefits of the standard range from
about $419 million to $424 million, the range of estimated total costs
is about $34 million to $59 million, and total estimated net benefits
range from about $365 million to $385 million. Using a 7 percent
discount rate, the present value of benefits would range from about
$316 million to $319 million, and total net benefits would range from
about $260 million to $281 million.
Estimated benefits of the proposed standard were based on a value
of a statistical life of $5 million. If benefits are calculated based
on a lower bound of $3 million as the value for a statistical life,\76\
total estimated benefits of the standard would range from about $267
million to $270 million using a 3 percent discount rate and about $201
million to $203 million using a 7 percent discount rate. Total
estimated net benefits would range from about $211 million to $233
million using a 3 percent discount rate and $144 million to $167
million using a 7 percent discount rate. Alternatively, if a value of
$7 million is assigned to a statistical life, the total estimated
benefits would range from about $572 million to $578 million (at a 3%
discount rate) and about $430 million to $435 million (at a 7% discount
rate) and total estimated net benefits would range from about $519
million to $538 million (at a 3% discount rate) and $376 million to
$396 million (at a 7% discount rate).
---------------------------------------------------------------------------

\76\ Viscusi, W. Kip. op. cit.
---------------------------------------------------------------------------

Estimated benefits of the proposed standard are based on an average
societal cost of $146,740 per injury. Changing the estimate used for
the cost of injury will have minimal impact on the results, because the
share of benefits from reduced injuries is less than 4 percent of total
benefits. Hence, even if there were no reduction in injuries from the
proposed standard, the total estimated benefits would be about $404
million to $409 million and total net benefits would be $350 million to
$370 million using a 3 percent discount rate. Using a 7 percent
discount rate, estimated benefits would range from about $305 million
to $308 million and estimated net benefits would range from about $249
million to $271 million.
Section 6 of this analysis addresses the expected costs of the
standard. Estimates of costs are based on judgments regarding changes
to materials that will be required to meet performance tests of the
proposed standard, the costs of those changes per unit, and the number
of affected furniture items produced annually. Based on the midpoints
of ranges of estimated cost impacts of material changes, and different
assumptions of reliance on FR fabric treatments as a means to
compliance, aggregate costs of the standard were estimated to be $34
million to $59 million for annual production of upholstered household
furniture. With these costs, total estimated net benefits of the
proposed standard range from about $365 million to $385 million using a
3 percent discount rate and $260 million to $281 million using a 7
percent discount rate. Even if we assume that the costs of the standard
are twice those estimated in Section 6 (i.e., $68 million to $118
million) the standard would still have estimated net benefits ranging
from about $306 million to $351 million from annual production of
upholstered furniture if future benefits are discounted at 3 percent,
and about $190 million to $237 million if a 7 percent discount rate is
used.
Estimated benefits of the proposed standard were based on
assumptions regarding the effectiveness at reducing societal costs of
cigarette and small open flame ignitions of furniture. However, if we
assume that the standard will have one-half the effectiveness that our
estimated benefits are based upon, aggregate benefits would still range
from about $210 million to $212 million, and net benefits would range
from about $153 million to $176 million, using a 3 percent discount
rate. Using a 7 percent discount rate, estimated benefits would

[[Page 11730]]

range from about $158 million to $160 million, and net benefits would
range from about $100 million to $124 million.
c. Impact of the Proposed Standard on Retail Prices
The estimated costs of the proposed standard include the increased
costs of materials, labor, and distribution directly attributable to
the rule. It is likely that manufacturers will pass on at least some of
the costs of complying with the standard to the consumer, in the form
of higher retail prices. The actual increase in retail prices will
depend on the price elasticity of demand for furniture products (i.e.,
the responsiveness of quantity demanded to the change in price). If
demand is highly price elastic, then manufacturers will experience a
relatively large decrease in sales of upholstered furniture products in
response to a price increase, and their ability to pass on increased
regulatory costs to the consumer is limited. If demand is price
inelastic, consumers respond less intensely to price increases,
enabling producers to successfully pass through cost increases.
Regarding the market for upholstered furniture, it is anticipated
that demand is relatively price elastic in the short run, because
consumers can usually postpone the purchase of a durable good.
Increases in retail prices are thus likely to be limited. In the long
run, demand is less elastic and any attempt to pass through increased
costs is more likely to succeed. Consequently, increases in retail
prices are more likely to be observed.
In the absence of information on the price elasticity of demand for
upholstered furniture products, it is possible to make use of
traditional industry markup rates to provide an upper bound estimate
for retail price increases. Such estimates may be viewed as upper bound
estimates because they do not reflect the price elasticity of demand.
Moreover, traditional markups do not factor in the role of competition,
which can also influence attempts to increase prices. Rather, the
markup simply reflects the price that producers will want to charge
based on historical accounting costs. As noted above, an increase in
price will result in a reduction in sales and in the case of highly
elastic demand, revenues will decline as well, which will tend to
moderate attempts to increase retail prices.
According to industry sources, higher production costs for
materials and labor could result in retail prices that are higher by a
factor of 2.5, or 150 percent. Based on this markup, the average retail
price impact of the proposed standard on furniture items made with FR
treated fabrics could be about $23 (for perhaps 2 to 10 percent of all
items), and the average retail price impact for furniture produced with
barrier materials could be about $48 (for perhaps 4% of furniture
items). The average retail price impact for furniture that will not be
made with FR fabric treatments or barriers under fabrics (perhaps 86 to
94% of units), could be under $1 per unit. The average increase in
retail prices for all upholstered furniture is estimated to be less
than $5 per item, based on the traditional industry markup rates.

8. Alternatives to the Proposed Standard

a. The Staff's 2005 Draft Standard
The aggregate benefits of the staff's 2005 draft standard (i.e.,
the reduction in the societal costs associated with complying
furniture), based on the annual sales of a little over 30 million
furniture items, are expected to be about $597 million. Total aggregate
costs of the 2005 draft standard for each year's production are
estimated to range from about $167 million to $184 million, with a
midpoint of about $176 million. Although the 2005 draft standard would
be expected to increase the use of FR chemicals in the production of
urethane foam cushioning and fabrics to achieve compliance, estimates
assumed that these chemicals would be selected and used in a way that
would not lead to appreciable societal costs. If the use of these
chemicals would have adverse health or environmental impacts, the costs
of the 2005 draft standard are understated. Estimated benefits and
costs per unit would vary greatly depending on cover materials. Most
units would incur costs related to FR-treatment of filling materials,
and an estimated 10 percent of units covered with more ignition-prone
fabrics would require modifications (FR-fabric treatment or FR
barriers) that would lead to higher costs of compliance. Projected
annual net benefits to society from the staff's 2005 draft standard
total $421.5 million. A sensitivity analysis of several factors (value
of life, injury costs, effectiveness, and costs) showed that
alternative assumptions still yield substantially positive net
benefits.
b. The Draft Small Open Flame Ignition Standard
As an alternative to the proposed standard, the Commission could
adopt the standard drafted by CPSC staff in 2001 that focused on small
open flame ignition of upholstered furniture. That draft standard was
the subject of a staff briefing package submitted to the Commission in
October 2001. Compliance with the draft small open flame standard would
require the use of upholstery cover materials that do not sustain
combustion following exposure to a small flame for 20 seconds, or,
alternatively, the use of materials that would pass an open flame
barrier test. The staff estimated that most fabrics would fail the 20-
second flame test unless they would be treated with FR chemicals.
Although the FR treatments under that standard specifically addressed
small open flame ignition hazards, CPSC staff testing data also showed
substantial improvement in cigarette ignition resistance. In fact, most
of the estimated benefits of the small open flame standard were
projected to result from reductions in societal losses from cigarette
ignitions.
Based on estimated costs of compliance and estimated reductions in
both small open flame and cigarette ignition hazards, adoption of the
2001 draft small open flame standard would result in estimated
aggregate benefits totaling $651 million and aggregate costs of about
$272 million from annual production of about 30.5 million pieces of
upholstered furniture.\77\ Therefore, estimated aggregate net benefits
of the small open flame standard would be $379 million. This compares
with estimated net benefits of $365 million to $385 million for the
proposed standard.\78\
---------------------------------------------------------------------------

\77\ Smith, Charles, 2001 op. cit. Based on ``Best Estimates''
of reductions in ignition propensity and midpoints of estimated
increases in manufacturing costs; as with the current analysis,
distribution costs are estimated to be an additional 10 percent. The
best estimate for cigarette ignition reduction involving cellulosic
fabrics is 75%, based on 2003 estimates made by Mark Levenson, EPHA,
CPSC.
\78\ The net benefits of the staff's 2007 draft standard may
also be underestimated. The difference does not take into account
the likely heavier (and hence more costly) loadings of FR chemicals
that would be needed to meet the 20-second open flame test of the
alternative 2001 draft open flame standard. (For purposes of
comparison, the FR treatment costs between these two alternatives
were assumed to be the same.)
---------------------------------------------------------------------------

While the estimated net benefits of the proposed standard are
relatively close to those estimated for the staff's 2001 draft small
open flame standard, the costs associated with the proposed standard
are substantially less. In fact, the estimated costs of the proposed
standard (ranging from $34 million to $59 million) are 78 to 87 percent
lower than the costs of the 2001 draft ($272 million). The difference
is related, in large part, to the reduced level of treatment of
upholstery fabric with FR chemicals. Unlike the proposed standard,
which would result in the treatment of perhaps 2 to 10 percent of

[[Page 11731]]

upholstery fabric coverings, nearly 66 percent of the upholstery covers
would likely receive FR treatments to pass the 20-second open flame
test of the CPSC staff's 2001 draft standard.
It should also be noted that retail price impacts of the proposed
standard, reflecting the lower underlying costs, would also be
substantially lower than under the staff's 2001 small open flame draft
standard. Increases in the retail price of furniture may have some
negative impact on sales. Higher prices may lead some consumers to
delay the purchase of new furniture or lead them to buy it less
frequently, and could potentially result in secondary impacts on the
sales of furniture components and industry employment; such effects are
likely to be more pronounced in the short run. While the impact of
these price increases cannot be predicted with certainty, the higher
costs of the 2001 open flame standard would likely have more pronounced
effects. Additionally, while the retail price impact of the proposed
standard will tend to fall most heavily on generally more expensive
furniture items (i.e., those with the more expensive cellulosic
fabrics), the alternative open flame standard would fall
disproportionately on the more inexpensive furniture with thermoplastic
fabrics, the fabrics less prone to cigarette ignition.
Finally, while FR chemicals could be used under both the proposed
standard and the 2001 draft open flame standard, usage under the draft
small open flame standard is likely to be much greater. Under the 2001
open flame standard the staff estimated that up to about 300 million
linear yards of fabric could be FR-treated annually. Under the proposed
standard, however, an estimated maximum of 65 million yards could
potentially be treated.\79\
---------------------------------------------------------------------------

\79\ Franklin, Robert. Preliminary Environmental Assessment of a
Draft Proposed Flammability Standard for Residential Upholstered
Furniture. November 2007.
---------------------------------------------------------------------------

c. A Mandatory Standard Based on the UFAC Voluntary Program
As an alternative to the proposed standard, the Commission could
adopt the provisions of the UFAC Voluntary Action Program as a
mandatory standard. The Upholstered Furniture Action Council, or UFAC,
was formed by major furniture industry associations in 1974, largely as
a response to prospective CPSC actions on upholstered furniture. The
UFAC Voluntary Action Program was developed in the late 1970's and
amended as ``Phase 2'' in 1983. Tests for decorative trim were added to
the program in 1993. The program requires classification of upholstery
cover fabrics into either ``Class I'' or ``Class II,'' based on a
cigarette ignition performance test. All conforming furniture must
comply with specified construction criteria for welt cords, decking
substrates, filling materials, and interior fabrics; and more cigarette
ignition-prone Class II fabrics used with polyurethane foam seat
cushions must have a barrier material between the fabric and foam that
passes a barrier smoldering performance test. Conforming furniture is
to be labeled with a UFAC tag.
The staff's last market evaluation of UFAC conformance was
conducted in 1996. At that time, based on ignition testing of chairs
purchased by the CPSC, the staff estimated that about 90 percent of
upholstered furniture may have been produced in conformance with the
UFAC program (including a majority of units produced by firms that did
not participate in the UFAC program). Although the UFAC program is
designed to prevent the use of furniture components that may be more
likely to lead to cigarette ignition of the finished items, the program
is not designed to predict the ignition performance of all UFAC
furniture. CPSC staff testing found that some chairs that conformed to
the UFAC program ignited from cigarettes, and some nonconforming chairs
resisted ignition. The findings illustrated that cigarette-ignition
resistance of upholstered furniture is more dependent on the fabrics
and filling materials used, rather than on conformance with all aspects
of the UFAC Program.\80\
---------------------------------------------------------------------------

\80\ Charles Smith, Directorate for Economic Analysis, CPSC, and
Linda Fansler, Directorate for Laboratory Sciences, Cigarette
Ignition Propensity of Upholstered Furniture, November 1996.
---------------------------------------------------------------------------

Costs of mandating the requirements of the UFAC program should be
minimal. Perhaps the major program element associated with costs is the
requirement for a smolder-resistant barrier to be used under Class II
fabrics when the seat cushion core is standard urethane foam. The
primary barrier material for this purpose under the UFAC program is
polyester fiberfill cushion wrap. Based on analysis of market data,
fewer than 5 percent of upholstered furniture items are currently
produced with Class II fabrics. The great majority of the seat cushions
on these items already is made with polyester wraps, and, therefore,
are conforming to the UFAC program. Incremental costs of using
polyester wraps on all seat cushions covered with Class II fabrics
could total less than $500,000.\81\ Non-UFAC establishments surveyed in
1995 were found to be less likely than UFAC program participants to use
heat-conducting welt cords in seat cushions. Welt cord that conforms to
the UFAC program reportedly costs furniture manufacturers less than one
cent more per yard, compared to comparable welt cord that does not
conform to the UFAC program.\82\ Incremental costs could be less than
$.04 per seat cushion and $.07 or less per chair and $.15 or less per
sofa, for items made with welt cord. Given what is believed to be the
current high conformance rate, and the absence of welt cord in a
substantial portion of upholstered furniture styles, incremental costs
to substitute UFAC-compliant welt cord might total less than
$200,000.\83\ Other costs associated with changes in construction
materials associated with the adoption of the UFAC program as a
mandatory rule should be very minor. Incremental costs related to
compliance enforcement should be low, since materials are already
subject to verification testing to qualify as acceptable materials
under the UFAC program and manufacturers already incur labeling costs
under the UFAC program. However, it is possible that somewhat higher
recordkeeping costs could be one of the major cost elements of
mandating the UFAC program, given the minor costs related to materials.
Total costs of compliance for adoption of the UFAC program as a
mandatory standard could be under $5 million.
---------------------------------------------------------------------------

\81\ Based on the assumption that 5% of seat cushions with Class
II fabrics (perhaps 150,000 cushions) would require polyester wraps.
\82\ A representative of welt cord manufacturer, Petco-Sackner,
reported during an October 17, 2007, telephone conversation with
Charles Smith, Directorate for Economic Analysis, that UFAC welt
cord is sold to furniture manufacturers for $32 per 1,000 yard reel,
versus $25 per 1,000 yards for similar non-UFAC welt cord.
\83\ If current UFAC conformance is about 90% and about 55% of
units are made with welt cord (based on 1995 survey of
manufacturers), average incremental welt cord costs of about $.11
per item would be applied to approximately 1.7 million units
annually, with aggregate costs of about $185 million.
---------------------------------------------------------------------------

Benefits that would result from mandating compliance with the UFAC
program would also be much smaller than estimated for other alternative
performance standards discussed in this analysis. Most furniture
covered with fabrics that would benefit most from a barrier of
polyester fiberfill over urethane foam already are manufactured in that
way. The cigarette-ignition resistance of nearly all upholstered items
would not be significantly improved under this alternative. Although a
minimal reduction in the

[[Page 11732]]

overall smoldering hazard (of less than 1%) could result in positive
net benefits, the expected net benefits of adoption of the UFAC program
as a mandatory standard would be minimal, and substantially below any
other alternative performance standards discussed in this analysis.
d. A Mandatory Furniture Standard Based on the Revised Draft Provisions
of California Technical Bulletin 117
In February 2002, California's Bureau of Home Furnishings published
draft revisions to the state's Technical Bulletin (TB-117) that
contains mandatory requirements for materials used in the manufacture
of upholstered furniture sold in the state. Unlike the proposed
standard, the revised California draft standard specifies open flame
and smoldering ignition tests for filling materials (including urethane
foam and loose filling materials). These filling materials requirements
apply to all furniture items, including those covered in ignition
resistant fabrics such as leather, wool and vinyl.
In addition, the revised draft TB-117 specifies a small open flame
test for upholstery fabrics. The open flame test requires the 20 second
application of a small open-flame to the crevice of a seat/back mock-up
assembly of fabric over a standard flame-retardant polyurethane foam
pad. The specimen fails if (1) weight loss exceeds 4 percent in the
first 10 minutes, or (2) the specimen burns progressively before 10
minutes.
In the view of the Directorate for Engineering Sciences (ES), the
open flame fabric test is less stringent than the open flame test for
fabrics that was part of the CPSC staff's 2001 draft standard.\84\
Nevertheless, ES believes that the great majority of fabrics currently
used by the furniture industry would require modification in order to
comply with the draft TB-117 test. This judgment is shared by the
California Bureau of Home furnishings personnel, based on their testing
experience.\85\
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\84\ The 2001 CPSC draft standard required that there be no
continuing combustion 15 minutes after a 20-second small flame
application to a composite consisting of the fabric to be tested and
non-FR urethane foam.
\85\ Said Nurbakhsh, PhD, California Bureau of Home Furnishings,
in a November 14, 2005, e-mail to Charles Smith, Directorate for
Economic Analysis, CPSC.
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Based on testing by California's Bureau of Home Furnishings and the
CPSC laboratory, it is reasonable to assume that the majority of cover
materials are likely to fail the revised draft TB-117 open flame test,
with the exception of ignition resistant cover materials (such as
leather, wool, and vinyl-coated coverings) and some of the heavier-
weight cellulosic fabrics. Consequently, for purposes of evaluating the
costs and benefits of this alternative, we assume that two-thirds of
the approximately 10 percent of cover materials that are severely
ignition-prone cellulosic fabrics (which cover about 2 million units of
furniture annually, or about 6% of all fabric coverings) would pass the
draft TB-117 open flame fabric test. The remaining severely ignition-
prone cellulosic fabrics (covering about 1 million furniture items)
will be assumed to fail the test and therefore require FR treatment. An
additional assumption is that all of the moderate- and lower-ignition
prone cellulosics and thermoplastic cover materials (covering about 18
million furniture items annually, or about 60% of all furniture items
produced) would fail the open flame fabric test and have to be treated.
Thus, a total of about 19 million units of furniture would be covered
in fabrics that would have to be treated in order to comply with the
revised draft TB-117.
The primary costs of the revised draft TB-117 would be the costs of
treating the filling materials (e.g., urethane foam and loose fill) and
the cover fabrics that fail the open flame test. The per-unit costs of
treating urethane foam and the loose fill could be similar to those
estimated for the 2005 standard drafted by the CPSC staff.
Consequently, the filling materials costs per item of furniture might
amount to about $5.85 per unit. Since the TB-117 filling materials
requirements would apply to all furniture items produced (including
items using ignition resistant cover fabrics), the total filling
materials costs would amount to about $178 million ($5.85 per unit x
30.5 million units). It is possible that additional costs would be
required to treat fibrous filling materials under the revised draft TB-
117, since the open flame test for that material could be more
stringent than that drafted by the CPSC staff in 2005.
Based on the assumptions described above, approximately 19 million
units of furniture would be covered in fabrics that fail the open flame
fabric test and would therefore have to be treated. The estimated costs
of FR treatments based on the 2001 CPSC staff draft open flame standard
ranged from about $6.61 to $11.28 per average unit of furniture, with a
midpoint of about $8.95 per item. If we assume that the incremental
costs of FR-treated fabrics under TB-117 amount to about 75 to 100
percent of the costs estimated for the 2001 draft open flame standard,
the midpoint of the resulting range of costs would be about $7.83 per
item of furniture. Therefore, the aggregate costs of the FR treatment
of fabrics might amount to about $151 million ($7.83 per item x 19.3
million items).
In summary, the costs of treating the filling materials and fabrics
under TB-117 could amount to about $330 million annually or more ($178
million for filling materials and $151 million for fabrics). The
associated compliance and distribution costs could bring the total up
to about $370 million annually. This would be more than 6 times the
estimated costs of the proposed standard, estimated to range from $34
million to $59 million.
The likely benefits that would result from adoption of the revised
draft of TB-117 as a mandatory standard vary by cover material type.
First consider the furniture covered by severely cigarette ignition-
prone cellulosic fabrics (2.9 million units). Based on the assumptions
described above, about 1 million of these furniture items will fail the
open flame fabric test of the revised draft TB-117 and have to be
treated. Since these furniture items will have fabric treatments as
well as complying filling materials, it may be reasonable to assume
that the benefits under the revised draft TB-117 would be comparable to
those of the CPSC staff's 2005 draft standard (which would also have
treated filling materials), about $118 per unit. Thus, the benefits
from these items would amount to about $115 million ($118.05 per item x
978,300 items). Additionally, for the remaining 2.0 million units
covered with severely cigarette ignition-prone fabrics that are not
treated, the benefits would probably be no more than about half of the
benefits associated with the treated units, or about $59 per unit.
Thus, the benefits associated with these 2.0 million units with
untreated fabrics might amount to about $115 million ($59.03 per unit x
1,956,600 units). Therefore, the total estimated benefits resulting
from annual production of complying furniture upholstered with severely
cigarette ignition-prone cellulosic fabrics would be about $231
million.
About 18.3 million units of furniture covered in moderately- and
lower-ignition prone cellulosic fabrics and thermoplastic fabrics will
also likely fail the open flame fabric test of the revised draft TB-117
and have to be treated. Under the staff's 2005 draft proposed standard,
these furniture items would have treated filling materials, but not
treated fabric coverings. For purposes of this analysis, we will assume
that the benefits associated with the filling

[[Page 11733]]

materials tests of the revised draft TB-117 are similar to those of the
CPSC staff's 2005 draft standard. Consequently, the estimated benefits
associated with the revised draft TB-117 would be greater because the
cover fabrics would also be treated. In other words, unlike the 2005
CPSC staff's draft standard, the benefits of treated filling materials
would be augmented by the use of FR-treated fabrics under the revised
draft TB-117. Since the estimated benefits for these furniture items
under the staff's 2005 draft standard amount to about $251 million, the
gross benefits associated with the revised draft TB-117 would be
greater than $251 million. If we assume that the fabric treatments
would reduce the remaining societal costs by about 50 percent, then the
gross benefits for these 18.3 million units might amount to about $329
million ($251 million + 0.5 x ($408 million-$251 million)).\86\
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\86\ Based on estimates from tables 2, 4, and 6 in the November
2007 Preliminary Regulatory Analysis.
---------------------------------------------------------------------------

Based on this analysis, the total benefits associated with the
revised draft TB-117 might amount to about $560 million ($231 million
from furniture covered with severely ignition prone fabrics and $329
million from furniture covered with other fabrics). These estimated
benefits are greater than those associated with the proposed standard
(estimated to range from $419 million to $424 million).
In summary, the estimated annual costs associated with the revised
draft TB-117 may amount to about $370 million, and the estimated
benefits may amount to about $560 million. Therefore, the estimated net
benefits of this regulatory alternative are about $190 million. This
compares to $365 million to $385 million in net benefits estimated to
result from the proposed standard.
e. A Labeling Rule
A rule requiring hazard information to be presented on labels could
be adopted by the Commission in addition to, or in lieu of, a standard.
The costs of labeling would be just a few cents per item (based on
reported labeling costs under the UFAC Voluntary Action Program and
estimates provided by a label manufacturer). However, the impacts of
such labeling on product safety are likely to be minimal. Labeling that
warns of cigarette ignition hazards is unlikely to be effective,
because labels are unlikely to be seen by consumers when the
upholstered item is in use, and because there already is general public
awareness of these hazards. Additionally, a warning label would not be
likely to prevent fires started by children playing with lighters and
matches, who are unlikely to read the statements provided.
f. Alternative Effective Date
Section 4 of the Flammable Fabrics Act states that standards or
regulations shall become effective 12 months from the date of
promulgation, unless the Commission finds that a different effective
date is in the public interest. Because of the need for FR treatment of
some fabrics used in the manufacture of furniture and the fact that
furniture manufacturers carry stocks of fabrics, a longer period before
the rule becomes effective, such as 18 months, could provide some firms
additional time to use inventories of fabrics that would not pass the
proposed standard's fabric test without FR treatment. However, given
the small percentage of fabrics that will need to be treated (under
10%), it is unlikely that limiting the effective date to 12 months
would substantially burden firms.
Additionally, several options might be available to furniture
manufacturers that have fabric that does not comply with a regulatory
alternative adopted by the CPSC as the effective date for the action
approaches. They might send the remaining fabric yardage to contract
finishers for backcoating with FR chemicals. They could use FR barrier
materials beneath the untreated fabric, as allowed by that alternative
method of compliance with the proposed standard. Also, they might sell
the fabric to jobbers who would market it to furniture manufacturers
that use FR barriers with untreated upholstery fabrics and for other
end-uses that are not within the scope of the regulation. In view of
the relatively small percentage of fabrics estimated to require FR
treatments or other modifications, and other options available to
furniture manufacturers, an effective date longer than 12 months from
the date of promulgation might not be in the public interest.
g. Taking No Action
The Commission could determine that no rule is reasonably necessary
to reduce the risk of fires associated with ignitions of upholstered
furniture. Under this alternative, future societal losses would be
determined by factors that affect the likelihood that ignition sources
come in contact with upholstery and the ignition resistance of
upholstery materials used by furniture manufacturers. For example, the
apparently increasing use of ignition-resistant upholstery materials,
such as leather, could reduce fires over time. Also, the state of
California might adopt the draft revisions to its mandatory standard
for upholstered furniture. Those revisions could result in reduced fire
losses in that state, which accounts for perhaps 15 percent of the
furniture market. Some furniture manufacturers might use materials that
comply with some or all provisions of the California revised standard
for all of their furniture production, which could reduce fire losses
in other areas. Additionally, other political jurisdictions could
impose requirements that would reduce future losses from furniture
fires.
Factors other than furniture materials will also determine fire
losses in the future. Some of these will tend to increase future losses
(such as projected annual increases of about 1% in population and
households) and others might decrease future losses (such as continued
reductions in rates of smoking and alcohol consumption, increasing
smoke alarm operability, information and education efforts, and
installation of sprinkler systems in new construction).
Particularly noteworthy is the expected growth in the availability
of cigarettes that reduce the probability of igniting upholstered
furniture. Effective on June 28, 2004, the State of New York required
all cigarettes sold in the state to self-extinguish if they are left
unattended. Such cigarettes are expected to reduce greatly, but not
eliminate, residential fires started by cigarettes. Similar legislation
became effective in Vermont in 2006 and California, Oregon, and New
Hampshire in 2007, and has been signed into law in 17 other states,
with effective dates ranging from January 1, 2008, to January 1, 2010.
Legislation has also been introduced in nine other states. By 2010,
more than half of the U.S. population will be living in states with
mandatory laws addressing the ignition propensity of cigarettes.\87\ In
addition to state actions, R.J. Reynolds Tobacco Company, the second-
largest cigarette manufacturer with about one-third of the U.S. market,
recently announced its intention to only market reduced ignition
propensity cigarettes in the U.S. by the end of 2009.\88\ This policy,
combined with the increased imposition of state requirements, could
spur other

[[Page 11734]]

cigarette manufacturers to make similar business decisions.
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\87\ Coalition for Fire-Safe Cigarettes, Legislative Updates.
http://www.firesafecigarettes.org (referenced on September 19,
2007).
\88\ Payne, Tommy J., Executive Vice President--Public Affairs,
Reynolds American Inc., in a letter to James M. Shannon, National
Fire Protection Association, October 25, 2007.
---------------------------------------------------------------------------

If the Commission does not adopt a mandatory rule to address
furniture flammability it is possible that a voluntary standard
(perhaps through modifications to the existing UFAC Voluntary Action
Program) could be developed based on the proposed standard, or based on
other provisions, to address these hazards. However, no such voluntary
standard currently exists. Moreover, the effort begun in 1996 through
ASTM to establish a voluntary standard is currently inactive.
Furthermore, comments submitted in response to the October 23, 2003,
ANPR representing all segments of the affected industries supported
mandatory federal regulation to address upholstered furniture
flammability.
Thus, while furniture fires might decline with no CPSC action,
there is no reason to believe that the decline would approach the
proportion of fire losses that could be prevented with the proposed
standard, or some of the other performance standard alternatives
described in this analysis.

I. Initial Regulatory Flexibility Analysis

1. Introduction

The Regulatory Flexibility Act (``RFA'') requires that rules
proposed by the Commission be reviewed for the potential economic
impact on small entities, including small businesses. Section 603 of
the RFA requires the Commission to prepare and make available for
public comment an Initial Regulatory Flexibility Analysis describing
the impact of the proposed rule on small entities and identifying
impact-reducing alternatives. Accordingly, staff prepared an initial
regulatory flexibility analysis for the proposed rule on upholstered
furniture. A summary of the analysis follows.

2. Impact on Small Businesses and Other Small Entities

Summary of proposed requirements. The proposed standard will apply
to finished or ready-to-assemble articles of upholstered furniture, as
discussed earlier in this document. The proposed standard contains
smoldering ignition performance requirements for cover fabrics, and
smoldering and open flame performance requirements for interior fire
barriers (if they are used as the method of compliance). Furniture
items can comply by being made with upholstery cover materials that
pass the cover material cigarette ignition test (designated as ``Type I
upholstered furniture''). Alternatively, manufacturers may comply with
the proposed standard by using a barrier material under the upholstery
fabric that passes the standard's applicable barrier tests (``Type II
upholstered furniture''). This option allows manufacturers to use non-
complying upholstery fabrics.
In addition to flammability performance requirements, the proposed
standard contains provisions relating to certification and
recordkeeping, testing to support guaranties issued by material
suppliers, and labeling of finished articles of upholstered furniture.
These requirements are intended to help manufacturers, importers and
suppliers ensure that their products comply, and to help the CPSC staff
to enforce the performance standard.
The proposed standard provides that finished articles of
upholstered furniture must carry a permanent label containing the
manufacturer or importer name and location; month and year of
manufacture; model identification; and type identification indicating
the means of compliance (i.e., ``Type I'' or ``Type II''). This
information must be separate from other label information. The label
would help retailers and consumers identify products and materials,
e.g., in the event of a recall or other corrective action.
In summary, all manufacturers and importers of upholstered
furniture would be subject to the standard if it is adopted as a rule
by the Commission. However, it is likely that the great majority of
testing would be done by or for upholstery fabric suppliers. These
results would then be used to support guaranties of compliance that
will be provided to furniture manufacturers. Records would be prepared
by those conducting tests (fabric and filling material manufacturer
personnel or outside testing facilities); copies of reports and records
would be maintained by upholstered furniture manufacturers and
furniture importers. No special skills that are not already available
to manufacturers and importers would be required to establish or verify
compliance with the proposed rule.
Impact on small businesses. The proposed standard would apply to
manufacturers and importers of upholstered furniture intended for sale
to consumers. According to the Census Bureau's 2002 Economic Census,
1,686 U.S. companies (with 1,946 establishments) manufactured
upholstered household furniture or dual-purpose sleep furniture as
their primary product. Only 29 percent of upholstered furniture
establishments (564 of 1,946) had 20 or more employees, and only 10
percent (200 establishments) had 100 or more. The U.S. Small Business
Administration (SBA) considered a furniture manufacturing company to be
``small'' for purposes of qualification for small business loans if it
has fewer than 500 employees (at all of its establishments). This
definition encompassed more than 97 percent of firms in the industry in
2002.
The proposed standard will also affect manufacturers and finishers
of upholstery fabrics and barrier materials used in the production of
furniture. Although their products are not directly regulated by the
draft proposed standard, it is expected that they will provide
guaranties to furniture manufacturers regarding fabric ignition
resistance. It is expected that about 10 percent of upholstery cover
fabric yardage will require changes in production, such as the
incorporation of flame retardant (FR) chemicals or changes in fibers,
in order to pass the fabric test of the draft proposed standard. As
noted above, non-complying fabrics could still be used with complying
barrier materials. As with furniture manufacturers, the great majority
of upholstery fabric manufacturers and fabric finishers are small
businesses under SBA definitions.
The usual means of compliance with the proposed standard will be
the use of fabrics that do not need FR treatments or barriers. More
than 85 percent of all upholstered furniture items made under the
proposed standard would be made with such materials. For these items,
estimated average increased costs of the standard would be minor costs
of a few cents per unit that are largely associated with compliance
verification. For those units that comply as a result of FR treatment
of fabrics or the use of barriers, estimated costs are higher, but are
only estimated to involve less than 15 percent of total production. The
increased resource costs associated with furniture using treated FR
fabrics (i.e., the costs associated with materials, labor, and
distribution) are expected to average about $9.95 per item of
furniture; the increased costs associated with the use of barriers may
amount to about $21 per unit.\89\
---------------------------------------------------------------------------

\89\ Cost estimates are weighted based on shipment data of
larger items such as sofas and sofabeds (with higher costs) and
smaller items such as chairs (with lower costs).
---------------------------------------------------------------------------

The cost impacts faced by firms using treated materials, including
smaller manufacturers, would be proportionate to the yardage of treated
upholstery fabrics or barrier materials used. Therefore, the costs of
these methods of compliance are not expected to be borne
disproportionately by smaller

[[Page 11735]]

manufacturers of furniture. In addition, they should be able to pass at
least some of these increased costs on to residential consumers. Small
businesses that manufacture relatively inexpensive furniture that will
require no fabric modifications should face only modest increases in
expenses related to compliance verification, estimated to average $.11
per unit. For these reasons, it seems unlikely that the rule would have
a significant impact on small furniture manufacturers.
Many of the fabrics currently used by small furniture manufacturers
that would fail the fabric test of the proposed standard are likely to
be relatively expensive decorative fabrics. The proposed standard's
option of using FR barrier materials would be a likely means of
compliance for furniture made with such fabrics, and this option was
requested by the segment of the industry using the more expensive
decorative fabrics when the CPSC staff was drafting an open flame
standard in 2001. Other fabrics used by these small furniture
manufacturers could be brought into compliance with FR treatments at
lower per unit costs, if their aesthetic qualities would not be
significantly degraded by the processes. These alternative means of
compliance would allow decorative fabrics to remain available to the
upholstered furniture industry and the consuming public. Since the
prices of fabrics that would be treated or used with barriers, and the
furniture made with them, are likely to be considerably higher than
average, the relative increases in per unit costs would be moderated
for the small furniture manufacturers that use them. Additionally,
discussions with upholstered furniture manufacturers producing the more
expensive furniture using decorative fabrics suggest that the barrier
option will substantially address their concerns with likely adverse
aesthetic effects of FR treatments for many of these fabrics.
The estimated per unit costs of the proposed standard discussed
above include relatively modest costs for recordkeeping (included in
the estimated average compliance verification costs of about $.11 per
item of furniture). The proposed standard would require furniture
manufacturers to maintain records for a period of three years after
items are produced. The records will include identification and
description of the furniture items and materials used in their
manufacture, contact information for material suppliers, and results of
relevant material tests. Smaller firms with limited product lines are
expected to bear lower costs than larger firms with broad product
lines. In summary, the recordkeeping requirements of the proposed rule
would not likely place a substantial burden on small businesses.
The proposed standard was also designed to minimize testing costs
that would be imposed on small furniture manufacturers. Since they may
rely on guaranties provided by fabric and barrier material suppliers,
the proposed rule does not require firms to test composites of their
fabrics and the range of actual cushioning materials. Such testing
would significantly increase costs of the proposed standard, and would
likely disproportionately affect small manufacturers of upholstered
furniture. Nor does the proposed standard include a requirement for a
small open flame test of cover fabrics. An open flame test requirement
similar to the 2001 CPSC staff draft furniture flammability standard
would have added substantially to costs faced by small furniture
manufacturers.
Many of the fabrics that would fail the fabric test of the proposed
standard are likely to be more expensive decorative fabrics. Based on
information provided by the Decorative Fabrics Association, its members
are generally among the smaller establishments that will be affected by
the proposed rule. Partially in response to comments received from this
segment of the industry, the CPSC staff included the provision for use
of acceptable barrier materials as an alternative means of compliance.
This alternative was sought by the industry because of concerns that
aesthetic qualities of many decorative fabrics would be adversely
affected by FR treatments. This alternative allows all upholstery
fabrics manufactured by small textile firms to be used under the
proposed standard, and is expected to substantially mitigate the impact
of the proposed standard on their businesses.
Under the proposed standard, manufacturers are required to conduct
reasonable and representative tests to support initial guaranties of
compliance for their materials. However, the costs associated with
these requirements are expected to be minimal since many of these costs
are now incurred for products marketed for use as complying with
voluntary standards or mandatory standards enforced by California and
other jurisdictions. Manufacturers of upholstery fabrics already
classify their fabrics using the UFAC fabric classification test, which
is similar to the fabric test of the proposed standard.
Thus, small manufacturers of fabrics should only face minor
incremental costs for testing under the proposed standard, compared to
current industry practices. Furthermore, small manufacturers should be
able to pass at least some of the additional costs of testing to
furniture producers and jobbers that purchase their products. This
information suggests that the testing necessary to provide guaranties
of compliance by small manufacturers of fabrics and filling materials
will not result in a substantial impact on such firms.

3. Alternatives and Their Possible Effect on Small Businesses

Alternatives considered by the Commission are discussed in the
Preliminary Regulatory Analysis section of this preamble, Section H. As
discussed therein, four alternative standards were considered by the
Commission: A standard based on requirements drafted by the CPSC staff
in 2005 that includes smoldering and open flame ignition performance
tests for filling materials, in addition to smoldering tests for cover
fabrics and tests for barrier materials; the 2001 draft small open
flame standard developed by the CPSC staff; a standard based on
mandating the provisions of the UFAC voluntary program, and; a standard
based on the 2002 revised draft California furniture regulation (TB-
117). Other regulatory options were also evaluated that might lessen
the potential burden on industry, including small firms. These
regulatory alternatives include extending the effective date beyond 12
months after promulgation, and adoption of warning label requirements.
Another alternative for consideration was the reliance on a voluntary
standard or taking no action.
The CPSC staff's 2005 draft standard would require the use of cover
fabrics that meet cigarette ignition performance tests, and the use of
urethane foam and fibrous filling materials that meet both cigarette
ignition and open flame ignition performance tests. Under this
alternative, manufacturers would have the option of using fire blocking
barriers which pass tests of smoldering and open flame ignition
resistance instead of using complying fabrics and filling materials.
Under the staff's 2005 draft standard, the cost impacts faced by firms
using treated materials, including smaller manufacturers, would be
proportionate to the amounts of treated cushioning materials used, and
yardage of treated upholstery fabrics or barrier materials used.
Therefore, the costs of these methods of compliance would not be
expected to be borne disproportionately by smaller manufacturers of
furniture. In addition, small manufacturers should be able to pass at
least some of their increased costs on to residential consumers. For

[[Page 11736]]

these reasons, it is unlikely that this alternative would have a
significant impact on these small furniture manufacturers.
Like the proposed standard, many of the fabrics used by small
furniture manufacturers that would fail the fabric test of the staff's
2005 draft standard are likely to be relatively expensive decorative
fabrics. Therefore, the statements made above regarding impacts of the
proposed standard would also apply under this regulatory alternative.
Also like the proposed standard, the Directorate for Economic Analysis
does not believe that the recordkeeping requirements of the 2005 draft
standard place a substantial burden on small businesses, and the 2005
draft was also designed to minimize testing costs that would be imposed
on small furniture manufacturers.
Under the 2005 draft standard, processes and materials will be
readily available to small businesses that manufacture cushioning
materials for the furniture industry.\90\ The Directorate for Economic
Analysis believes that consequently, since at least some of the cost
increases are likely to be passed on to the furniture manufacturers
that purchase the materials, a rule based on the 2005 draft standard
would probably not have a significant impact on a substantial number of
small businesses that manufacture cushioning materials subject to the
rule. Nevertheless, ignition performance requirements for filling
materials were not included in the proposed standard, which results in
somewhat lower costs of compliance compared to the 2005 draft
alternative.
---------------------------------------------------------------------------

\90\ Smith, op. cit.
---------------------------------------------------------------------------

Another alternative considered by the Commission was the standard
drafted by the CPSC staff in 2001 that focused on small open flame
ignition of upholstered furniture. That draft standard was the subject
of a staff briefing package submitted to the Commission in October
2001. Compliance with the small open flame standard would require the
use of upholstery cover materials that do not sustain combustion (over
standard urethane foam) following exposure to a small flame for 20
seconds, or, alternatively, the use of materials that would pass a
barrier test.
Based on current market data, the 2001 draft small open flame
standard probably would require FR treatments for about 70 percent of
all upholstery cover materials, or the use of acceptable barrier
materials, compared with less than 10 percent of cover materials
requiring such modifications under the proposed standard. The estimated
net benefits of the 2001 draft small open flame standard are
substantial, and in the range of total net benefits estimated for the
proposed standard. However, the estimated costs of the alternative
small open flame standard are perhaps 5-to-8 times those estimated for
the proposed standard. The higher estimated costs of compliance for the
draft small open flame standard would place greater burdens on all
manufacturers, including smaller firms.
Unlike the proposed standard, the small open flame draft standard
would require substantial production testing, which could
disproportionately affect small upholstered furniture manufacturers
with smaller production runs. Additionally, since up to 70 percent of
upholstery fabric yardage could require FR treatments under the draft
small open flame standard, there would be greater competition for the
available fabric backcoating capacity. Smaller furniture and fabric
producers, with smaller lots of fabrics to be treated, reportedly would
be faced with difficulties in competing with larger firms for timely
access to fabric finishing services for necessary FR treatments.
As another alternative, the Commission could adopt the provisions
of the UFAC Voluntary Action Program as a mandatory standard. The
Upholstered Furniture Action Council, or UFAC, was formed by major
furniture industry associations in 1974, and the UFAC Voluntary Action
Program was developed in the late 1970's and amended in later years.
The program requires classification of upholstery cover fabrics into
either ``Class I'' or ``Class II,'' based on a cigarette ignition
performance test. All conforming furniture must comply with specified
construction criteria for welt cords, decking substrates, filling
materials, and interior fabrics; and more cigarette ignition-prone
Class II fabrics used with polyurethane foam seat cushions must have a
barrier material between the fabric and foam that passes a barrier
performance test. Conforming furniture is to be labeled with a UFAC
tag. In 1996 the CPSC staff estimated that about 90 percent of
upholstered furniture may have been produced in conformance with the
UFAC program (including a majority of units produced by firms that did
not participate in the UFAC program). Costs of mandating the
requirements of the UFAC program should be minimal. Perhaps the major
program element associated with costs is the requirement for a smolder-
resistant barrier to be used under Class II fabrics when the seat
cushion core is standard urethane foam. The primary barrier material
for this purpose under the UFAC program is polyester fiberfill cushion
wrap. Based on analysis of market data, fewer than 5 percent of
upholstered furniture items are currently produced with Class II
fabrics. The great majority of the seat cushions on these items already
are made with polyester wraps, and, therefore, are conforming to the
UFAC program. Total annual costs of compliance for adoption of the UFAC
program as a mandatory standard could be under $5 million.
Benefits that would result from mandating compliance with the UFAC
program would also be much smaller than estimated for the proposed
standard and other alternative performance standards considered by the
Commission. Most furniture covered with fabrics that would benefit most
from a barrier of polyester fiberfill over urethane foam already are
manufactured in that way. The cigarette-ignition resistance of nearly
all upholstered items would not be significantly improved under this
alternative. The expected net benefits of adoption of the UFAC program
as a mandatory standard would be minimal, and substantially below any
other alternative performance standards discussed in this analysis.
In summary, a mandatory standard based on the UFAC voluntary
program would have a minimal impact on small businesses; much smaller
than the proposed standard. However, this regulatory alternative would
not be expected to lead to a significant reduction in smoldering or
open flame ignition hazards of upholstered furniture.
Another alternative standard considered by the Commission was a
revised draft standard for upholstered furniture published by
California's Bureau of Home Furnishings in 2002. The draft would revise
the state's Technical Bulletin (TB-117) which contains mandatory
requirements for materials used in the manufacture of upholstered
furniture sold in the state. Unlike the proposed standard, the revised
California draft standard specifies open flame and smoldering ignition
tests for filling materials (including urethane foam and loose filling
materials). However, unlike the staff's 2005 draft (which did include
such requirements), the filling materials requirements apply to all
furniture items, including those covered in ignition-resistant fabrics
such as leather, wool and vinyl.
In addition to tests for filling materials, the revised draft TB-
117 specifies a small open flame test for upholstery fabrics. The great
majority of

[[Page 11737]]

fabrics currently used by the furniture industry probably would require
modification in order to comply with the draft TB-117 test. For
purposes of evaluating the costs and benefits of this alternative, the
Directorate for Economic Analysis assumes that about 60 percent of all
furniture items produced would be covered in fabrics that would have to
be treated in order to pass the fabric test specified in the revised
draft TB-117. The combined costs of treating the filling materials and
fabrics under the revised draft TB-117 and the associated compliance
and distribution costs could total more than six times the estimated
costs of the proposed standard. The higher estimated costs of
compliance of a standard based on the revised draft TB-117 regulation
would place greater burdens on all manufacturers, including smaller
firms.
Additionally, since about 60 percent of upholstery fabric yardage
could require FR treatments in order to comply with the open flame
fabric test of the revised draft TB-117, there would be greater
competition for the available fabric backcoating capacity, which could
cause smaller furniture and fabric producers, with smaller lots of
fabrics to be treated, to be faced with difficulties in competing with
larger firms for timely access to fabric finishing services for
necessary FR treatments.
In summary, a standard based on the revised draft California
furniture flammability regulation, TB-117, probably would have a more
substantial and more disproportionate impact on small businesses than
the proposed standard. The Directorate for Economic Analysis estimates
that the greater burden would not result in higher benefits than the
proposed standard, and estimated net benefits from one year's
production of upholstered furniture under the regulatory alternative
are close to $200 million lower than the net benefits estimated to
result from the proposed standard.
Section 4 of the Flammable Fabrics Act states that standards or
regulations shall become effective 12 months from the date of
promulgation, unless the Commission finds that a different effective
date is in the public interest. Because of the need for FR treatment of
some fabrics used in the manufacture of furniture and the fact that
furniture manufacturers carry stocks of fabrics, a longer period before
the rule becomes effective, such as 18 months, could provide some firms
(including smaller firms) additional time to use inventories of fabrics
that would not pass the proposed standard's fabric test without FR
treatment. However, given the small percentage of fabrics that will
need to be treated, it seems unlikely that setting an effective date of
12 months from the date of promulgation will substantially burden
firms.
The Commission could also require hazard information to be
presented on labels in addition to, or in lieu of, a standard. The
costs of labeling would be just a few cents per item (based on reported
labeling costs under the UFAC Voluntary Action Program and estimates
provided by a label manufacturer), and thus, should not present
significant costs to small furniture manufacturers. However, the
impacts of such labeling on product safety are likely to be minimal.
Labeling that warns of cigarette ignition hazards probably would not be
effective, because labels are unlikely to be seen by consumers when the
upholstered item is in use, and because there already is public
awareness of these hazards. Additionally, a warning label would not be
likely to prevent fires started by children playing with lighters and
matches, who are unlikely to read, or be affected by, the statements
provided.
If the Commission does not adopt a mandatory rule to address
furniture flammability it is possible that a voluntary standard
(perhaps through modifications to the existing UFAC Voluntary Action
Program) could be developed based on the proposed standard or based on
other provisions, such as the industry recommendations, to address
these hazards. However, no such voluntary effort is currently ongoing.
Moreover, the effort begun in 1996 through ASTM to establish a
voluntary open flame standard is currently inactive. Furthermore,
comments submitted in response to the October 23, 2003, ANPR
representing all segments of the affected industries supported
mandatory federal regulation to address upholstered furniture
flammability.
The Commission also could have chosen to take no action. In this
situation, future societal losses would be determined by factors that
affect the likelihood that ignition sources come in contact with
upholstery and the ignition resistance of upholstery materials used by
furniture manufacturers. For example, the apparently increasing use of
ignition-resistant upholstery materials, such as leather, could reduce
fires over time. Also, the state of California might adopt the draft
revisions to its mandatory standard for upholstered furniture. Those
revisions could result in reduced fire losses in that state, which
accounts for perhaps 15 percent of the furniture market. Some furniture
manufacturers might use materials that comply with some or all
provisions of the California revised standard for all of their
furniture production, which could reduce fire losses in other areas.
Additionally, other political jurisdictions could impose requirements
that would reduce future losses from furniture fires.
Factors other than furniture materials will also determine fire
losses in the future. Some of these will tend to increase future losses
(such as projected annual increases of about 1% in population and
households) and others might decrease future losses (such as continued
reductions in rates of smoking and alcohol consumption, increasing
smoke alarm operability, information and education efforts, and
installation of sprinkler systems in new construction).
Particularly noteworthy is the expected growth in the availability
of cigarettes that reduce the probability of igniting upholstered
furniture. Effective on June 28, 2004, the State of New York required
all cigarettes sold in the state to self-extinguish if they are left
unattended. Such cigarettes are expected to reduce greatly, but not
eliminate, residential fires started by cigarettes. Similar legislation
became effective in Vermont in 2006 and California, Oregon, and New
Hampshire in 2007, and has been signed into law in 17 other states,
with effective dates ranging from January 1, 2008, to January 1, 2010.
Legislation has also been introduced in nine other states. By 2010,
more than half of the U.S. population will be living in states with
mandatory laws addressing the ignition propensity of cigarettes.\91\ In
addition to state actions, R.J. Reynolds Tobacco Company, the second-
largest cigarette manufacturer with about one-third of the U.S. market,
recently announced its intention to only market reduced ignition
propensity cigarettes in the U.S. by the end of 2009.\92\ This policy,
combined with the increased imposition of state requirements, could
spur other cigarette manufacturers to make similar business decisions.
---------------------------------------------------------------------------

\91\ Coalition for Fire-Safe Cigarettes, Legislative Updates.
http://www.firesafecigarettes.org (referenced on September 19,
2007).
\92\ Payne, Tommy J., Executive Vice President--Public Affairs,
Reynolds American Inc., in a letter to James M. Shannon, National
Fire Protection Association, October 25, 2007.
---------------------------------------------------------------------------

While furniture fires might decline with no CPSC action, there is
no reason to believe that the decline would approach the proportion of
fire losses that could be prevented with the proposed standard, or some
of the other performance standard alternatives described in this
analysis.

[[Page 11738]]

J. Paperwork Reduction Act

The proposed standard will require manufacturers (including
importers) of upholstered furniture to perform testing and maintain
records of testing. For this reason, the proposed rule contains
``collection of information requirements,'' as that term is used in the
Paperwork Reduction Act, 44 U.S.C. 3501-3520. Therefore, the proposed
rule is being submitted to the Office of Management and Budget
(``OMB'') in accordance with 44 U.S.C. 3507(d) and implementing
regulations codified at 5 CFR 1320.11. The estimated costs of these
requirements are discussed below.

1. Costs of Testing

The proposed standard specifies that initial samples of 10 test
specimens for each tested upholstery fabric and barrier material (or 25
of 30 total specimens if failures are recorded among the first 10),
must pass the applicable tests in order to qualify the materials for
use in upholstered furniture. Manufacturers of fabrics and barrier
materials are expected to either perform the tests in their own
facilities or send materials to third party testing facilities in order
to support guaranties of compliance to furniture manufacturers. Some
manufacturers of decorative fabrics that could not pass the proposed
cover fabric test without FR treatments may choose to forego the costs
of testing and market their products with the understanding that they
would be used with complying barrier materials.
As noted above, approximately 100 to 200 domestic manufacturers
derive a significant share of their revenues from fabric they produce
or import for residential upholstered furniture. An average of about 50
samples per firm could support guaranties for fabrics sold to
upholstered furniture manufacturers. A substantial majority of fabrics
that would be subjected to tests would likely be qualified by passing
results on the initial sample of 10 specimens. If the average cost per
test were $50, the cost of testing a single fabric would amount to
about $500, and the average testing costs per firm would be about
$25,000. Aggregate fabric testing costs for the 100 to 200 domestic
manufacturers would be $2.5 million to $5 million.
Guaranties for barrier materials would be supported by passing
results on the proposed barrier tests for (1) open flame ignition
resistance and (2) smoldering ignition resistance. Average costs to
conduct each of these tests could be approximately $125 per test.
Assuming barrier materials are qualified by the testing results for the
initial samples of 20 specimens (10 for the open flame ignition
resistance test and 10 for the smoldering ignition resistance test),
total testing costs per barrier material marketed for use under the
standard would be about $2,500. If barrier material manufacturers
market an average of four guarantied products for use as barriers,
total testing costs per firm would be about $10,000. If 15 firms issue
guaranties for complying barriers, total costs related to barrier
testing would be about $150,000. Thus, total testing costs for
upholstery fabric and barrier materials could amount to about $2.65
million to $5.15 million.
Since firms could continue to market qualified fabrics and barriers
without the need for additional testing, testing costs per firm could
be lower in subsequent years under the standard.

2. Cost of Information Collection and Recordkeeping

In addition to upholstery fabric and barrier material testing, the
proposed standard will require manufacturers to maintain detailed
documentation of the test results and details of each test performed by
or for that manufacturer. Records are required to be in English and
kept at a location in the United States for a period of at least three
years after production of the article of upholstered furniture
certified by the test results ceases.
Costs of detailed testing documentation are included in the
estimated costs of testing. Maintaining the testing documentation by
manufacturers of fabrics and barrier materials could require an
additional two hours of labor for each material that is certified or
guarantied. As discussed above, maintaining records for perhaps 5,000
to 10,000 guarantied upholstery fabrics and 60 barrier materials could
be required under the proposed standard. Perhaps two hours of labor
could be required at a cost of about $26 per hour to maintain these
records for each guarantied material. Therefore, total recordkeeping
costs incurred by upholstery fabric and barrier material manufacturers
could range from about $263,000 to $523,000 ($52 times 5,060 to 10,060
guaranties). Recordkeeping costs could average $2,600 for each
upholstery fabric manufacturer and $208 for each barrier material
manufacturer.
Upholstered furniture manufacturers would also maintain records of
testing results for fabrics and barrier materials used in their
production. Incremental costs related to recordkeeping would depend, in
part, on the extent to which firms currently maintain records
identifying upholstery fabrics and filling materials with finished
items. Perhaps an average of about 40 hours per firm would be required
to maintain records under the proposed standard. According to the 2002
Economic Census, 1,686 firms manufactured upholstered furniture as
their primary product. At approximately $26 per hour, these firms would
incur average costs of about $1,000 per firm to maintain records, and
aggregate annual costs may be about $1.75 million. Thus, the total
costs of information collection and recordkeeping could amount to about
$2.0 million to $2.3 million.

K. Environmental Considerations

Usually, CPSC rules establishing performance requirements are
considered to ``have little or no potential for affecting the human
environment,'' and environmental assessments are not usually prepared
for these rules (see 16 CFR 1021.5(c)(1)). However, because some
alternatives to the proposed rule could result in more materials
incorporating flame retardant (FR) chemicals, the Commission determined
that a more thorough consideration of the potential for environmental
impacts was warranted. The staff prepared a memorandum ``Environmental
Assessment of Regulatory Alternatives for Addressing Upholstered
Furniture Flammability'' (available on the Commission's Web site) which
discusses the potential environmental effects of several regulatory
alternatives for addressing the flammability of upholstered furniture.
The staff's analysis concludes that, although available scientific data
are lacking on some FR chemicals, there appears to be a number of
promising methods that manufacturers could use to meet an upholstered
furniture flammability standard without posing an unacceptable health
risk to consumers or significantly affecting the environment. The
staff's analysis was initiated when the primary regulatory alternative
being considered was the staff's 2005 draft standard which would likely
have caused manufacturers to use FR chemicals to meet certain
provisions of that draft standard. As noted previously, the standard
that the Commission is proposing was developed, in part, to minimize
the need for manufacturers to use FR chemicals to comply with the
standard. Only about 14 percent of the cover fabrics would require some
modification to pass the proposed standard. The staff anticipates that
most manufacturers will likely rely primarily on modifying cover
fabrics (without using FR chemicals) or on barriers to meet the
proposed performance requirements.

[[Page 11739]]

In accordance with the National Environmental Policy Act
(``NEPA''), the Executive Director of CPSC has issued a Finding of No
Significant Impact (``FONSI'') for the proposed upholstered furniture
flammability standard. The FONSI is based on the staff's Environmental
Assessment and concludes that there will be no significant impacts on
the quality of the human environment as a result of the proposed
upholstered furniture flammability standard. The Commission requests
comments on both the Environmental Assessment and the FONSI.\93\
---------------------------------------------------------------------------

\93\ Both of these documents are available from the Commission's
Office of the Secretary (see ADDRESSES section above) or from the
Commission's Web site at: http://www.cpsc.gov/library/foia/foia08/
brief/briefing.html.
---------------------------------------------------------------------------

L. Executive Order 12988

According to Executive Order 12988 (February 5, 1996), agencies
must state the preemptive effect, if any, of new regulations. The
preemptive effect of this proposed regulation is as stated in section
16 of the FFA. 15 U.S.C. 1203(a).

M. Effective Date

The Commission proposes that the rule would become effective one
year from publication of a final rule in the Federal Register and would
apply to upholstered furniture manufactured on or after that date. The
Commission believes that a one-year effective date should allow
sufficient time for manufacturers to develop products for nationwide
markets that will meet the proposed requirements. The Commission
requests comments, especially from small businesses, on the proposed
effective date and the impact it would have.

N. Proposed Findings

1. General. In order to issue a flammability standard under the
FFA, the Commission must make certain findings and include these in the
regulation, 15 U.S.C. 1193(j)(2). These findings are discussed in this
section.
2. Voluntary standards. In the 1970s the Upholstered Furniture
Action Council (UFAC) developed a voluntary industry program to assess
the cigarette ignition propensity of upholstered furniture. The
substance of the UFAC tests was then adopted in the ASTM E-1353 test
method. CPSC staff estimates that approximately 90% of furniture
production conforms to the UFAC voluntary program/ASTM E-1353
standards. However, while fire losses from cigarette-ignited
upholstered furniture fires have been declining, a large number of
deaths (260 annually) and injuries (320 annually) over the period 2002-
2004 that could be addressed by the proposed rule remain. Moreover,
CPSC laboratory testing has found that UFAC-conforming furniture can
nevertheless ignite and burn when exposed to smoldering cigarettes. The
Commission is unaware of any other adopted and implemented voluntary
standards that address the risk of fire from upholstered furniture
ignitions. Accordingly, the Commission finds that compliance with any
adopted and implemented voluntary upholstered furniture flammability
standard is not likely to result in the elimination or adequate
reduction of the risk of injury from such fires.
3. Relationship of benefits to costs. The Commission estimates the
potential discounted benefits of a year's production of upholstered
furniture complying with the standard to range from about $419 million
to $424 million (based on a 3 percent discount rate). Compliance costs
range from an estimated $34 million to $59 million annually. Thus,
projected net benefits of the proposed standard range from $363 million
to $385 million. On this basis, the Commission finds that the expected
benefits from the regulation bear a reasonable relationship to its
costs.
4. Least burdensome requirement. The Commission considered
proposing the following alternatives: the staff's 2005 draft standard,
the staff's 2001 draft small open flame standard, revised requirements
drafted by California, a rule based on the industry's voluntary
program, and a ``no action'' alternative under which the status quo
would continue to prevail. Although the staff's 2005 draft standard
could result in substantial net benefits, it would impose significantly
higher costs and would necessitate the increased use of FR chemicals.
While the staff's 2001 draft small open flame standard would likely be
more effective in reducing small open flame fire losses, it would also
impose greater costs and necessitate an increase in FR chemicals
(nearly 66 percent of upholstery covers would likely need to receive FR
treatments to pass). A proposal based on California's TB 117
requirements, which contains provisions for both fabrics and filling
materials, would likely have substantial annual costs (about $370
million) and would result in significantly lower net benefits (about
$190 million) than the proposed standard. The fact that significant
levels of annual deaths and injuries remain despite the existence of
the voluntary standard and a high level of compliance with it
demonstrate that both the alternatives of a rule based on the voluntary
standard and the no action alternative are unlikely to result in
adequate reduction or elimination of the risk. Therefore, the
Commission finds that the proposed upholstered furniture flammability
standard is the least burdensome requirement that would prevent or
adequately reduce the risk of injury for which the regulation is being
promulgated.

O. Conclusion

For the reasons stated in this preamble, the Commission
preliminarily finds that a flammability standard for upholstered
furniture 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 preliminarily
finds that the standard is reasonable, technologically practicable, and
appropriate. The Commission further finds that the standard is limited
to the fabrics, related materials and products which present such
unreasonable risks.

List of Subjects in 16 CFR Part 1634

Consumer protection, Flammable materials, Labeling, Upholstered
furniture, Upholstered furniture materials, Records, Textiles,
Warranties.

For the reasons stated in the preamble, the Commission proposes to
amend Title 16 of the Code of Federal Regulations by adding part 1634
to read as follows:

PART 1634--STANDARD FOR THE FLAMMABILITY OF UPHOLSTERED FURNITURE
AND UPHOLSTERED FURNITURE MATERIALS

Subpart A--General, Definitions, Performance Requirements

Sec.
1634.1 Purpose, scope and effective date.
1634.2 Definitions.
1634.3 General requirements.
1634.4 Upholstery cover fabric smoldering ignition resistance test.
1634.5 Interior fire barrier material smoldering ignition resistance
test.
1634.6 Interior fire barrier material open flame ignition resistance
test.

Subpart B--Requirements Applicable to Manufacturers, Labeling,
Guaranties

1634.7 Requirements applicable to upholstered furniture material
manufacturers.
1634.8 Labeling.
1634.9 Requirements applicable to guaranties under Section 8 of the
FFA, 15 U.S.C. Sec. 1197.

[[Page 11740]]

Subpart C--Test Apparatus and Materials for Smoldering Ignition
Resistance Tests

1634.10 Test room.
1634.11 Specimen holder.
1634.12 Ignition source.
1634.13 Sheeting material.
1634.14 Standard polyurethane foam substrate.
1634.15 Standard cotton velvet cover fabric.
1634.16 Conditioning.

Subpart D--Test Facility, Exhaust System, and Cautions

1634.17 Test facility and exhaust system.
1634.18 Cautions.

Subpart E--Test Facility and Materials for Open Flame Ignition
Resistance Tests

1634.19 Test room.
1634.20 Butane gas flame ignition source.
1634.21 Metal test frame.
1634.22 Standard rayon cover fabric.
1634.23 Open flame tests fabric cut-out dimensions.
1634.24 Standard polyurethane foam substrate.
1634.25 Conditioning.

Subpart F--Reupholstering

1634.26 Requirements applicable to reupholstering.

Figures

Figure 1 to Part 1634--Cigarette Ignition Specimen Holder--Base
Figure 2 to Part 1634--Cigarette Ignition Specimen Holder--Movable
Horizontal Support Panel
Figure 3 to Part 1634--Mockup Assembly for Upholstery Cover Fabric
Smoldering Ignition Resistance Test
Figure 4 to Part 1634--Mockup Assembly for Interior Fire Barrier
Material Smoldering Ignition Resistance Test
Figure 5 to Part 1634--Cut-Out Template Dimensions for Open Flame
Test
Figure 6 to Part 1634--Open Flame Metal Test Frame
Figure 7 to Part 1634--Mockup Assembly for Interior Fire Barrier
Materials Open Flame Ignition Resistance Test

Authority: 15 U.S.C. 1193.

Subpart A--General, Definitions, Performance Requirements

Sec. 1634.1 Purpose, scope, and effective date.

(a) Purpose. This part 1634 establishes flammability limits that
all upholstered furniture subject to this part must meet before sale or
introduction into commerce. The purpose of these requirements is to
reduce deaths and injuries associated with upholstered furniture fires.
(b) Scope. All upholstered furniture as defined in Sec. 1634.2(a)
manufactured or reupholstered on or after the effective date of this
standard is subject to the requirements of this part.
(c) Effective date. The standard shall become effective on [the
effective date of this standard] and shall apply to all upholstered
furniture, as defined in 1643.2(a), manufactured or reupholstered on or
after that date.

Sec. 1634.2 Definitions.

In addition to the definitions given in section 2 of the Flammable
Fabrics Act as amended (15 U.S.C. 1191), the following definitions
apply for purposes of this part 1634.
(a) Upholstered furniture means, for purposes of this part 1634, an
article of seating furnishing intended for indoor use in a home or
other residential occupancy that: consists in whole or in part of
resilient cushioning materials (such as foam, batting, or related
materials) enclosed within a covering consisting of fabric or related
materials, such as leather; and is constructed with contiguous
upholstered seat and back or arms(s).
(1) Items included in the scope of paragraph (a) of this section
include, but are not limited to, products that are intended or promoted
for indoor residential use for sitting or reclining upon, such as:
chairs, sofas, motion furniture, sleep sofas, home office furniture
customarily offered for sale through retailers or otherwise available
for residential use, and upholstered furniture intended for use in
dormitories or other residential occupancies. This includes the
unattached cushions or pillows on such items if they are sold with the
item of upholstered furniture.
(2) Items excluded from the scope of paragraph (a) of this section
consist of: furniture, such as patio chairs, intended solely for
outdoor use; furniture without contiguous upholstered seating and backs
and/or arm surfaces, such as ottomans; pillows or pads that are not
sold with an article of furniture; commercial or industrial furniture
not offered for sale through retailers or not otherwise available for
residential use; furniture intended or sold solely for use in hotels
and other short-term lodging and hospitality establishments; futons,
flip chairs, the mattress portions of sleep sofas; and infant or
juvenile products such as walkers, strollers, high chairs, or pillows.
(b) Type I upholstered furniture means upholstered furniture that
is constructed with an upholstery cover fabric or other material that
covers the seating area and is certified to meet the performance
requirements of Sec. 1634.4.
(c) Type II upholstered furniture means upholstered furniture that
is constructed with an interior fire barrier material that:
(1) Is located directly beneath the external covering material;
(2) Completely encases the filling material used in the seating
area of the item of upholstered furniture; and
(3) Is certified to meet the performance requirements of Sec. Sec.
1634.5 and 1634.6.
(d) Manufacturer means any entity that produces or reupholsters
upholstered furniture or manufactures upholstered furniture materials
subject to this part 1634. For purposes of this part, an importer of
upholstered furniture is also a manufacturer. See subpart F of this
part for additional information on reupholstering.
(e) Produced means, for the purposes of this part 1634,
manufactured or imported.
(f) Upholstery cover fabric means the outermost layer of attached
fabric or other material, such as leather, used to cover the seating
area of the upholstered furniture item.
(g) Crevice means the location in the mockup formed by the
intersection of the vertical and horizontal surfaces of the test
mockup.
(h) Interior fire barrier means a fire-resistant material which is
interposed between the upholstery cover fabric and any interior filling
material.
(i) Fire-resistant material means a material capable of reducing
the likelihood of ignition or delaying fire growth.
(j) Flame retardant means having a chemical coating or treatment
added that imparts greater fire resistance.
(k) Ignition (for open flame testing) means continuous, self-
sustaining combustion, characterized by the presence of any visible
flaming, glowing, or smoldering, after removal of the ignition source.
(l) Metal test frame means the apparatus consisting of two
rectangular metal frames used for assembly of seating area mockups in
open flame ignition resistance tests. See subpart E of this part.
(m) Mockup assembly means the seating area mockup consisting of the
component material to be evaluated and all required standard test
materials, fully assembled in the appropriate specimen holder or metal
test frame.
(n) Sample means a material to be tested for use in upholstered
furniture subject to this part.
(o) Seating area means those portions of an item of upholstered
furniture which a person may sit upon, or rest against while sitting,
including the seat

[[Page 11741]]

and the inside of the back and arms of the item. The seating area
includes such surfaces of any loose pillows or cushions that are not
attached to the item of upholstered furniture but are sold with it.
(p) Self-extinguishment means the unassisted termination of any
visible combustion within a defined time period after ignition source
removal and before the specimen is completely consumed.
(q) Sheeting material means cotton sheeting fabric used to cover
the cigarette ignition source in smoldering ignition resistance tests.
See subpart C of this part.
(r) Smolder means combustion characterized by smoke production,
without visible flame or glowing.
(s) Specimen means an individual piece of upholstery fabric or
barrier material, as defined in paragraph (n) of this section, used in
a mockup assembly for smoldering or open flame ignition testing.
(t) Specimen holder means the two wooden panels used for assembly
of seating area mockups in smoldering ignition resistance tests. See
subpart C of this part.
(u) Standard polyurethane foam (SPUF) substrate means the standard
substrate used for the assembly of seating area mockups to evaluate
materials used in upholstered furniture construction. See subparts C
and E of this part.
(v) Substrate means the innermost material of the tested seating
area mockup, representing the filling material used in upholstered
furniture.
(w) Warp or machine direction of the fabric means the direction of
yarns that run lengthwise, i.e., parallel to selvage, in woven fabrics.

Sec. 1634.3 General requirements.

(a) Upholstered furniture. Each item of upholstered furniture
subject to this part shall comply with the performance requirements of
this part applicable to the upholstered furniture materials required
for that ``Type'' of upholstered furniture and all other applicable
requirements of this part.
(b) Guaranties. Each guaranty issued under this part shall be in
accordance with the applicable requirements of Sec. 1634.9.
(c) Summary of Sec. 1634.4 through Sec. 1634.6 tests. The test
methods set forth in Sec. Sec. 1634.4 through 1634.6 measure the
flammability performance (resistance to smoldering or small open flame
ignition) of cover fabrics and fire barrier materials through a series
of tests using small scale mockups representative of the typical
construction of upholstered furniture.
(d) Standard cover fabric cutting--(1) Smoldering test. The
vertical panel pieces shall be cut with the long dimension being in the
warp direction and the top edge is defined such that the pile lays
smooth when brushed from top to bottom. The horizontal panel pieces
shall be cut with the long dimension being in the warp direction and
the top edge is defined such that the pile lays smooth when brushed
from top to bottom.
(2) Open flame test. The open flame test specimens shall be cut
with the long dimension being in the warp direction (if applicable).

Sec. 1634.4 Upholstery cover fabric smoldering ignition resistance
test.

(a) Scope. This test method is intended to measure the cigarette
ignition resistance of upholstery cover fabrics used in upholstered
furniture. This test applies to all upholstery cover fabrics to be used
in Type I upholstered furniture.
(b) Summary of test method. Ten initial test specimens are required
for the upholstery cover fabrics sample. Vertical and horizontal panels
of a standard foam substrate are covered, using the upholstery cover
fabric to be tested. These panels are placed in the specimen holders,
and a lighted cigarette is placed in the crevice formed by the
intersection of vertical and horizontal panels of each test assembly.
Each cigarette is covered with a piece of sheeting fabric. The
cigarettes are allowed to burn their entire length. Test measurements
and observations are recorded during and after the 45-minute test
duration. The mockup must not continue to smolder at the end of the
test or transition to flaming at any time during the test, and the
substrate must not exceed the mass loss limit. If the 10 initial
specimens meet the performance criteria in paragraph (m) of this
section, the cover fabric sample passes. If a failure is recorded in
any of the 10 initial specimens, the test shall be repeated on an
additional 20 specimens. At least 25 of the 30 specimens tested must
meet the performance criteria of paragraph (m) of this section.
(c) Significance and use. This test method is designed to measure
the resistance of an upholstery cover fabric to a smoldering ignition
source when the fabric is placed over a standard polyurethane foam
substrate.
(d) Test apparatus and materials. The test apparatus and materials
used in this test are detailed in subpart C of this part.
(e) Ignition source. The ignition source is the standard cigarette
specified in subpart C of this part.
(f) Sheeting material. Sheeting material shall be used to cover the
standard test cigarettes. For testing, the fabric shall be cut into
squares 127 x 127 mm (5.0 x 5.0 in). Use the sheeting material
specified in subpart C of this part.
(g) Standard polyurethane foam substrate. Upholstery cover
materials shall be tested in a specimen holder using standard
polyurethane foam (SPUF) substrate. Use the SPUF substrate specified in
subpart C of this Part.
(1) The SPUF substrate shall be cut into 203 x 203 x 76 mm (8.0 x
8.0 x 3.0 in) pieces for vertical panels and 127 x 203 x 76 mm (5.0 x
8.0 x 3.0 in) pieces for horizontal panels.
(2) Each SPUF substrate piece shall be hand crushed before use by
wadding or balling up one time in the fist.
(3) On the data sheet, record the initial mass of each horizontal
and vertical SPUF substrate piece to the nearest 0.1 grams.
(h) Specimen holder. The specimen holder shall consist of two
wooden panels, each a nominal 203 x 203 mm (8.0 x 8.0 in) and nominal
19 mm (0.75 in) thickness, joined together at one edge. A moveable
horizontal panel support shall be positioned on a centrally located
guide. See subpart C and Figures 1 and 2.
(i) Test facility and cautions. The test facility, exhaust system,
and cautions are detailed in subpart D of this part.
(j) Conditioning. All test specimens and standard test materials
(including SPUF substrates, cigarettes, and sheeting material) shall be
conditioned in accordance with subpart C of this part.
(k) Test specimens--(1) Specimen requirements. (i) From the
upholstery cover fabric sample to be tested, initially 10 specimens
shall be cut, comprised of vertical panels, each 203 x 432 mm (8.0 x
17.0 in), and horizontal panels, each 203 x 280 mm (8.0 x 11.0 in).
(ii) The vertical and horizontal panel cover fabric pieces shall be
cut with the long dimension in the warp direction and such that the
major areas of fabric variation will lie in the crevice of the mockup
assembly.
(iii) The horizontal panel cover fabric pieces shall be mounted
warp to warp with the vertical panel pieces such that the major areas
of fabric variation will lie in the crevice of the mockup assembly.
(2) Specimen mounting. (i) For vertical panels, place the cover
fabric on the 203 x 203 x 76 mm (8.0 x 8.0 x 3.0

[[Page 11742]]

in) SPUF substrate pieces, taking care that any areas of fabric
variation mentioned in paragraph (k)(1) of this section are positioned
such that they will form the crevice of the assembled mockup. The warp
or machine direction of the fabric should run front to back on the
mockup assembly. Attach the cover fabric to the SPUF substrate pieces
with straight pins and pull the cover fabric smooth so that no air gaps
exist between the fabric and SPUF substrate. Attach the cotton sheeting
material to the vertical panels with straight pins so that the sheeting
material will cover the cigarette when placed in the crevice,
approximately 50 mm (2 in) from the top of the 203 mm (8.0 in)
dimension.
(ii) For horizontal panels, place the cover fabric on the 127 x 203
x 76 mm (5.0 x 8.0 x 3.0 in) SPUF substrate pieces, taking care that
any areas of fabric variation mentioned in paragraph (k)(1) of this
section are on the edge which will form the crevice of the assembled
mockup. The warp direction of the cover fabric shall run front to back
on the mockup assembly. Attach the cover fabric to the SPUF substrate
pieces with straight pins and pull the fabric smooth so that no air
gaps exist between the fabric and foam substrate.
(iii) Place the assembled vertical and horizontal panels in the
specimen holder. Press the horizontal panel against the vertical panel
to create a straight-line crevice at the intersection. See Figure 3.
(l) Test procedure. (1) Place the assembled mockups a sufficient
distance apart from each other to avoid heat transfer between samples.
(2) Light cigarettes so that no more than 4 mm (0.16 inch) is
burned away and place one cigarette on each mockup crevice created by
the intersection of the vertical and horizontal panels, such that the
cigarette contacts both surfaces and is equidistant from the side edges
of the test panels.
(3) Immediately after placement in the crevice of each mockup,
cover cigarettes with cotton sheeting and run one finger over the sheet
along the length of the covered cigarette to ensure good cover
sheeting-to-cigarette contact and begin timer. If a test is
inadvertently interrupted or a cigarette self-extinguishes on lighting,
it shall be repeated from the beginning with a new cigarette.
(4) Continue testing for 45 minutes.
(5) At 45 minutes, if the mockup assembly is smoldering, record a
failure for the mockup and extinguish with appropriate means and
proceed to paragraph (m) of this section. See Subparts C and D of this
part.
(6) Remove cotton sheeting fabric and remains of upholstery fabric
from the substrate pieces.
(7) Carefully remove the SPUF substrate pieces, clean all
carbonaceous char from panels with a brush.
(8) If the application of an extinguishing agent was not necessary
or a gaseous extinguishing agent (e.g., carbon dioxide or nitrogen) was
applied to the SPUF substrate, record the mass of the un-charred
portions of the SPUF substrate pieces to the nearest 0.1 grams within
15 minutes and proceed to paragraph (m) of this section.
(m) Pass/fail criteria. (1) The sample passes the requirements of
this test procedure if the following criteria are met:
(i) No mockup continues to smolder after the 45 minute test
duration;
(ii) No mockup transitions to open flaming; and
(iii) No SPUF substrate (i.e., sum of both horizontal and vertical
pieces) of any mockup assembly has more than 10% mass loss.
(2) If the 10 initial specimens meet the performance criteria of
this paragraph (m), the cover fabric sample passes. If a failure is
recorded in any of the 10 initial specimens, the test shall be repeated
on an additional 20 specimens. At least 25 of the 30 specimens tested
must meet the criteria of this paragraph.
(n) Test report. The test report shall include, at a minimum, the
following information:
(1) Name and address of test laboratory;
(2) Date of the test(s);
(3) Name of the operator conducting the test;
(4) Complete description of the test specimens;
(5) Applicable smoldering and mass and data for each SPUF substrate
piece from each mockup including:
(i) Mockup smoldering at 45 minutes (Yes/No);
(ii) Pre-test mass;
(iii) Post-test mass; and
(iv) The percent mass loss of the SPUF substrate of each mockup
assembly.
(6) Statement of overall pass/fail results.

Sec. 1634.5 Interior fire barrier material smoldering ignition
resistance test.

(a) Scope. This test method is intended to measure the cigarette
ignition resistance of interior fire barrier materials used in
upholstered furniture to be used in Type II upholstered furniture. This
test method applies to fire-resistant materials including, but not
limited to, all interior fabrics or high loft battings to be qualified
as fire barriers.
(b) Summary of test method. Ten initial test specimens are required
for the interior fire barrier sample. Vertical and horizontal panels of
the interior fire barrier material to be tested are placed between a
standard foam substrate and a standard cover fabric. The panels are
placed in the specimen holders and a lighted cigarette is placed in the
crevice formed by the intersection of the vertical and horizontal
panels in each test assembly. Each cigarette is covered with a piece of
sheeting fabric. The cigarettes are allowed to burn their full length.
Test measurements and observations are recorded during and after the
45-minute test duration. The substrate must not exceed the mass loss
limit at the end of the test and the mockup assembly must not
transition to open flaming at anytime during the test. If the initial
10 specimens meet the performance criteria in paragraph (n) of this
section, the interior fire barrier sample passes. If a failure is
recorded in any of the 10 initial specimens, the test shall be repeated
on an additional 20 specimens. The performance criteria of paragraph
(n) of this section must be met on at least 25 of the 30 specimens
tested.
(c) Significance and use. This test method is designed to measure
the resistance of an interior fire barrier material to a smoldering
ignition source when the barrier is placed between a standard cover
fabric and a standard foam substrate.
(d) Test apparatus and materials. The test apparatus and materials
are detailed in subpart C of this part.
(e) Ignition source. The ignition source is the standard cigarette
specified in subpart C of this part.
(f) Sheeting material. Sheeting material shall be used to cover the
standard test cigarettes. For testing, the fabric shall be cut into
squares 127 x 127 mm (5.0 x 5.0 in). Use the sheeting material
specified in subpart C of this part.
(g) Standard cover fabric. (1) The standard cover fabric represents
a smolder-prone fabric. Use the standard cover fabric specified in
subpart C of this part.
(2) From the standard cover fabric, initially 10 pieces shall be
cut for vertical panels each 203 x 432 mm (8.0 x 17.0 in) and initially
10 pieces for horizontal panels each 203 x 280 mm (8.0 x 11.0 in).
(h) Standard polyurethane foam substrate. (1) Fire barrier
materials shall be tested in a specimen holder using standard
polyurethane foam (SPUF) substrate. Use the SPUF substrate specified in
subpart C of this part.

[[Page 11743]]

(2) The SPUF substrate shall be cut into pieces 203 x 203 x 76 mm
(8.0 x 8.0 x 3.0 in) for vertical panels and 127 x 203 x 76 mm (5.0 x
8.0 x 3.0 in) for horizontal panels.
(3) Each SPUF substrate piece shall be hand crushed before use by
wadding or balling up one time in the fist.
(4) Record the initial mass to the nearest 0.1 grams of each
horizontal and vertical SPUF substrate piece in the data sheet.
(i) Specimen holder. The specimen holder shall consist of two
wooden panels, each a nominal 203 x 203 mm (8.0 x 8.0 in) and nominal
19 mm (0.75 in) thickness, joined together at one edge. A moveable
horizontal panel support is positioned on a centrally located guide.
See subpart C and Figures 1 and 2.
(j) Test facility and cautions. The test facility, exhaust system,
and cautions are detailed in subpart D of this part.
(k) Conditioning. All test specimens and standard test materials
(including SPUF substrates, cigarettes, and sheeting material) shall be
conditioned in accordance with subpart C of this part.
(l) Test specimens-(1) Test specimen requirements. From the
interior fire-barrier material sample to be tested, initially 10
specimens shall be cut, comprised of vertical panels each 203 x 356 mm
(8.0 x 14.0 in) and horizontal panels each 203 x 229 mm (8.0 x 9.0 in).
If the interior fire-barrier material is directional, the vertical
panel pieces shall be cut with the long dimension being in the warp
direction. The horizontal panel specimens shall be cut such that the
short dimension is in the warp direction.
(2) Specimen mounting. (i) For vertical panels, place the 203 x 432
mm (8.0 x 17.0 in) standard cover fabric over the fire-barrier material
on a 203 x 203 x 76 mm (8.0 x 8.0 x 3.0 in) SPUF substrate piece. The
standard cover fabric and interior fire-barrier shall be oriented such
that the top edges of these materials run from top to bottom. Attach
with straight pins and pull smooth so that no air gaps exist. Attach
the cotton sheeting material to the vertical panels with straight pins
so that the sheeting material will cover the cigarette when placed in
the crevice, approximately 50 mm (2.0 in) from the top of the panel.
(ii) For horizontal panels, place the 203 x 280 mm (8.0 x 11.0 in)
standard cover fabric over the interior fire-barrier on the 127 x 203 x
76 mm (5.0 x 8.0 x 3.0 in) SPUF substrate pieces. The standard cover
fabric and interior fire-barrier shall be oriented such that the top
edges of these materials run from the crevice to the front. Attach with
straight pins and pull smooth so that no air gaps exist.
(iii) Place the assembled vertical and horizontal panels in the
specimen holders. Press the horizontal panel against the vertical panel
to create a straight-line crevice at the intersection. See Figure 4.
(m) Test procedure. (1) Place the assembled mockups a sufficient
distance apart from each other to avoid heat transfer between samples.
(2) Light cigarettes so that no more than 4 mm (0.16 inch) is
burned away and place one cigarette on each mockup crevice created by
the intersection of the vertical and horizontal panels, such that the
cigarette contacts both surfaces and is equidistant from the side edges
of the test panels.
(3) Immediately after placement in the crevice of each mockup,
cover cigarettes with cotton sheeting and run one finger over the sheet
along the length of the covered cigarette to ensure good cover
sheeting-to-cigarette contact and begin timer. If a test is
inadvertently interrupted or cigarette self extinguishes on lighting,
it shall be repeated from the beginning with a new cigarette.
(4) Continue testing for 45 minutes.
(5) At 45 minutes, if the mockup assembly is smoldering, extinguish
with appropriate means. See subparts C and D of this part.
(6) Remove cotton sheeting fabric, remains of standard cover
fabric, and interior fire-barrier material from the substrate panels.
(7) Carefully remove the SPUF substrate test panels and clean all
carbonaceous char from panels with a brush.
(8) If the mockup has self-extinguished by the end of the 45 minute
test, or if a gaseous extinguishing agent (e.g. carbon dioxide or
nitrogen) was applied to the mockup, record the mass of the un-charred
portions of the SPUF substrate pieces to the nearest 0.1 grams within
15 minutes and proceed to Sec. 1634.5(n).
(9) If a mass-adding extinguishing agent (e.g., water-based agent)
was applied to the substrate, re-condition the SPUF substrate pieces as
follows.
(i) Place the SPUF substrate pieces in the active flow of a
laboratory air hood to dry for at least 24 hours.
(ii) Measure and record the mass of the SPUF substrate pieces to
the nearest 0.1 gram.
(iii) Place the SPUF substrate pieces in the active flow of the
laboratory air hood to dry for at least three additional hours.
(iv) Measure and record the mass of the SPUF substrate pieces to
the nearest 0.1 gram and compare the measurement with the previous one.
(v) Repeat this procedure every three hours until the mass of the
substrate pieces remains within a tolerance of 0.5% from the previous
reading.
(vi) Re-condition the SPUF pieces according to paragraph (k) of
this section.
(vii) Record the mass of the un-charred portions of the SPUF
substrate pieces to the nearest 0.1 grams.
(n) Pass/fail criteria. (1) The sample passes the requirements of
this test procedure if the following criteria are met:
(i) No SPUF substrate (i.e., sum of both horizontal and vertical
pieces) of any specimen from a mockup assembly has more than 1% mass
loss; and
(ii) No mockup assembly transitions to open flaming.
(2) If the 10 initial specimens meet the performance criteria of
this paragraph (n), the interior fire-barrier sample passes. If a
failure is recorded in any of the 10 initial specimens, the test shall
be repeated on an additional 20 specimens. At least 25 of the 30
specimens tested must meet the performance criteria of this paragraph
(n).
(o) Test report. The test report shall include, at a minimum, the
following information:
(1) Name and address of test laboratory;
(2) Date of the test(s);
(3) Name of the operator conducting the test;
(4) Complete description of the test specimens;
(5) Mass data for each SPUF substrate piece from each mockup
including:
(i) Pre-test mass;
(ii) Post-test mass; and
(iii) The percent mass loss of the SPUF substrate of each mockup
assembly.
(6) Statement of overall pass/fail results.

Sec. 1634.6 Interior fire barrier material open flame ignition
resistance test.

(a) Scope. This test procedure is intended to measure the open
flame ignition resistance of interior fire-barrier materials to be used
in Type II upholstered furniture. This test applies to materials
including, but not limited to, interior fabrics or high loft battings
to qualify them as fire-barriers.
(b) Summary of test method. Ten initial test specimens are required
for the interior fire-barrier sample. The interior fire-barrier
material to be tested is placed between a standard cover fabric and
standard foam substrate and assembled on a metal test frame. An

[[Page 11744]]

open flame ignition source is applied to the crevice formed by the
intersection of the seat/back surfaces of the mockup. Test measurements
and observations are recorded during the 45-minute test duration. The
mockup assembly must not exceed the mass loss limit. If the 10 initial
specimens meet the performance criteria of paragraph (n) of this
section, the interior fire-barrier sample passes. If a failure is
recorded in any of the 10 initial specimens, the test shall be repeated
on an additional 20 specimens. At least 25 of the 30 specimens tested
must meet the performance criteria of paragraph (n) of this section.
(c) Significance and use. This test method is designed to measure
the resistance of an interior fire-barrier material to an open flame
ignition source when the barrier is placed between a standard cover
fabric and a standard foam substrate.
(d) Test apparatus and materials. The test apparatus and materials
are detailed in subpart E of this part.
(e) Ignition source. The ignition source is the nominal 240 mm
butane gas flame described in subpart E of this part.
(f) Standard cover fabric. (1) The standard cover fabric represents
a moderately flammable upholstery cover fabric. Use the standard cover
fabric specified in subpart E of this part.
(2) The standard cover fabric size needed for each test is 1020 x
700 10 mm (40 x 27.5 0.4 in). From the
standard cover fabric, cut triangular cut-outs centered 575 mm (22.5
in) from the top edge on both sides. The size of these cut-outs shall
be approximately 55 x 135 5 mm (2.1 x 5.25
0.2 in) high. See subpart E of this part and Figure 5.
(g) Standard polyurethane foam substrate. (1) Interior fire-barrier
materials shall be tested with a standard polyurethane foam (SPUF)
substrate. Use the SPUF substrate specified in subpart E of this part.
(2) Two panels of the SPUF substrate shall be used. The vertical
(back) block shall be 457 x 305 5 mm (18.0 x 12.0 0.2 in) x 76 2 mm (3.0 0.08 in) thick.
The horizontal (seat) block shall be 457 x 83 5 mm (18.0 x
3.25 0.2 in) x 76 2 mm (3.0 0.08
in) thick.
(h) Metal test frame. The metal test frame shall consist of two
rectangular metal frames locked at right angles to each other. A rod
shall be continuous across the back of the metal test frame. See
subpart E of this part and Figure 6.
(i) Test facility and cautions. The test facility, exhaust system
and cautions are detailed in subpart D of this part.
(j) Conditioning. All test specimens and standard test materials
shall be conditioned in accordance with subpart E of this part.
(k) Test specimens. (1) The interior fire-barrier specimen needed
for each test is 1020 x 700 10 mm (40 x 27.5
0.4 in). From the interior fire-barrier specimen, cut triangular cut-
outs centered 575 mm (22.5 in) from the top edge on both sides. The
size of these cut-outs shall be approximately 55 x 135 5
mm (2.1 x 5.25 0.2 in) high. See subpart E of this part
and Figure 5.
(2) If the interior fire-barrier material is directional, the
specimen shall be cut with the long dimension (1020 mm, 40 in) being in
the warp direction and the top edge is defined as appropriate.
(l) Mockup assembly. (1) Position the seat frame in the upright
position. Adjust the horizontal and vertical (seat and back) panels by
loosening the screws holding the two panels in place. Pull the
horizontal panel forward and the vertical panel upwards creating a
larger gap between the two panels at the crevice. Temporarily secure
the two panels in place (expanded position).
(2) Lay the interior fire-barrier specimen flat and face up on the
table. Lay the standard cover fabric on top, face up.
(3) Fold the two sides of the top (larger) section of fabric and
fire-barrier specimen (from the cutout upwards) over the face of the
standard cover fabric.
(4) Thread the folded standard cover fabric and fire-barrier
specimen under the horizontal rod and pull them out from the back of
the metal test frame until the cutouts are lined up with the horizontal
rod.
(5) Thread the folded standard cover fabric and fire-barrier
specimen back over the rod and pull them out from the front of the
frame.
(6) Line up and pull both the top and bottom sections of the
standard cover fabric and fire-barrier specimen so that the cutouts are
lined up with the metal rod on both sides and the standard cover fabric
and fire-barrier specimen are laying flat and free of folds and
wrinkles.
(7) Place the larger SPUF block flush against the back metal frame
and resting on the fire-barrier specimen. Loosen the screws holding the
vertical (back) panel and lower the panel until the top of the panel is
flush with the top of the larger SPUF foam block. Tighten the screws so
that the vertical panel is secure.
(8) Lift the larger portion of both the fire-barrier specimen and
standard cover fabric over the SPUF back block and secure them to the
top of the back section of the metal frame using metal clips.
(9) Starting at the lowest part of the vertical section on one
side, clip both the fire-barrier specimen and standard cover fabric to
the frame. At the top corner, make a diagonal fold of the fire-barrier
specimen separate from the standard cover fabric. Make a similar fold
with the standard cover fabric and secure all the folded layers (both
fire-barrier and standard cover fabric) to the frame with metal clips
to the side of the test frame. Repeat for the other side.
(10) When the back section is completed, place the frame down so
that the back of the frame is on the table.
(11) Lift up the smaller portion of the standard cover fabric and
fire-barrier specimen and lay them flat on the back panel.
(12) Place the smaller SPUF block with the 83 mm (3.25 in) side
flush against the seat section of the metal frame and press against the
back panel. Loosen the screw holding the horizontal panel and move the
panel until the panel is flush with the smaller SPUF foam block.
Tighten the screws so that the horizontal panel is secure.
(13) Pull the smaller section of the fire-barrier specimen and
standard cover fabric over the SPUF seat block and secure them to
bottom front edge of the metal frame using metal clips.
(14) Re-position the assembly in the upright position.
(15) On one side, fold the unsecured front edge of the fire-barrier
specimen back against the SPUF block. Then, make a diagonal fold with
the unsecured top edge of fire-barrier specimen down on top of it.
Repeat with the unsecured edges of standard cover fabric and clip to
the bottom of the metal test frame. Repeat on the other side.
(16) Ensure that the standard cover fabric and fire-barrier
specimens are smooth and under uniform tension at all locations to
eliminate air gaps between the standard cover fabric, fire-barrier
specimen, and the SPUF blocks. Do not allow a gap exceeding 3 mm (0.125
inch) along the seat/back crevice. See Figure 7.
(m) Test procedure. Have a means for extinguishing the specimen
close at hand. A hand-held carbon dioxide extinguisher is adequate for
most specimens; however, a water spray system should be available as a
back-up, in case the carbon dioxide fails to completely extinguish the
fire.
(1) Pretest. (i) Tare the scale with the empty metal test frame and
clips or, if the scale does not have tare capability, record the mass
of metal test frame and clips.

[[Page 11745]]

(ii) Assemble the mockup as described in paragraph (l) of this
section.
(iii) Record the initial mass of the fabric/specimen/substrate
assembly directly (if tared) or by subtraction (if not tared).
(iv) Calculate and record the mass corresponding to 20% mass loss
of initial mass of the mockup assembly.
(2) Lighting the igniter flame. (i) Open the butane tank slowly and
light the end of the burner tube. Adjust the gas flow to the
appropriate rate to achieve a 240 mm flame. See subpart E of this part.
(ii) Allow the flame to stabilize for at least 2 minutes.
(3) Starting and performing the test. (i) Place the lit burner tube
in the crevice of the mockup so that the end of the igniter is at the
center of the mockup equidistant from either edge.
(ii) Apply the flame for 70 1 seconds, then
immediately remove ignition source from the mockup. Observe the mockup
combustion behavior for 45 minutes.
(iii) Terminate a test run if any of the following conditions
occurs:
(A) The mockup self-extinguishes;
(B) The 45 minute test duration has elapsed; or
(C) The mass of the mockup reaches more than 20% mass loss of the
initial mass before 45 minutes have elapsed.
(n) Pass/fail criterion. (1) The sample passes if no mockup
assembly has more than 20% mass loss at the end of the 45-minute test.
(2) If the 10 initial specimens meet the performance criterion, the
interior fire-barrier sample passes. If a failure is recorded in any of
the 10 initial specimens, the test shall be repeated on an additional
20 specimens. At least 25 of the 30 specimens tested must meet the
performance criterion of this paragraph.
(o) Test report. The test report shall include, at a minimum, the
following information:
(1) Name and address of the test laboratory;
(2) Date of the test(s);
(3) Name of operator conducting the test;
(4) Complete description of the test specimens;
(5) Mass data for the mockup including:
(i) Initial mass;
(ii) Mass corresponding to 20% mass loss of initial mass;
(iii) Time to reach the mass equal to 20% mass loss of the initial
mass;
(iv) The percent mass loss of the mockup at 45 minutes.
(6) Statement of overall pass/fail results.

Subpart B--Requirements Applicable to Manufacturers, Labeling,
Guaranties

Sec. 1634.7 Requirements applicable to upholstered furniture
manufacturers.

(a) General. Each manufacturer (including importers) of upholstered
furniture subject to this part shall ensure that each article of
upholstered furniture it manufactures or imports for introduction into
commerce complies with all applicable requirements of this part.
(b) Label. Each article of upholstered furniture subject to this
part shall bear a label conforming to the requirements of Sec. 1634.8.
(c) Certification. The certification statement specified on the
label required by paragraph (b) of this section constitutes the
manufacturer's certification that the article of upholstered furniture
to which it is affixed complies with all applicable requirements of
this part.
(d) Basis for certification. The manufacturer shall have an
objectively reasonable basis for the certification required by
paragraph (c) of this section. Examples of an objectively reasonable
basis for certification are:
(1) Records of reasonable and representative tests demonstrating
compliance with all applicable requirements of this part for each cover
or barrier material required for the Type of furniture specified on the
label required by Sec. 1634.8; or
(2) Possession of guaranties meeting the requirements of Sec.
1634.9 for each cover or barrier material required for the Type of
furniture specified on the label required by Sec. 1634.8 and
maintaining that the manufacturer has not, by further processing,
negatively affected the fire performance of any such cover or barrier
material.
(e) Records. (1) Every upholstered furniture manufacturer
(including importers) subject to this part shall maintain records of
the test results and details of each test performed by or for that
manufacturer (including failures) intended to support certification in
accordance with paragraph (c) of this section. Details shall include
all the information required in the Test Report in accordance with
Sec. Sec. 1634.4(n), 1634.5(o) and 1634.6(o).
(2) Records required by this paragraph (e) shall be in English and
kept at a location in the United States.
(3) Records required by this paragraph (e) shall be maintained by
the manufacturer during production of the upholstered furniture and for
a period of at least three (3) years after production of the article of
upholstered furniture ceases. These records shall be made available to
Commission staff upon request.
(f) Cessation of production. If the manufacturer becomes aware of
any information that indicates that any article of upholstered
furniture manufactured by that manufacturer fails to comply with this
part, the manufacturer shall cease production and distribution of such
upholstered furniture until corrective action has been taken to ensure
that further production will conform to all applicable requirements of
this part.
(g) Notification to upholstered furniture material suppliers. An
upholstered furniture manufacturer who becomes aware of information
indicating that any cover or barrier material used, or intended to be
used, in upholstered furniture produced by it fails to meet any
applicable requirement of this part shall promptly inform the supplier
of that material of the deficiency. (Upholstered furniture
manufacturers are also reminded of the reporting requirements of Sec.
15 of the Consumer Product Safety Act, 15 U.S.C. 2064, and implementing
regulations at 16 CFR part 1115.)

Sec. 1634.8 Labeling.

(a) Each article of upholstered furniture subject to this part
shall bear a permanent, conspicuous, and legible label containing:
(1) Name of the manufacturer (and importer, if any);
(2) Location of the manufacturer (and importer, if any), including
street address, city and state;
(3) Month and year of manufacture;
(4) Model identification;
(5) Type identification (i.e., ``Type I'' or ``Type II''); and
(6) The statement ``The manufacturer hereby certifies that this
article of upholstered furniture complies with all applicable
requirements of 16 CFR part 1634''.
(b) The information required by paragraph (a) of this section shall
be set forth separately from any other information appearing on the
label. Other information, representations, or disclosures, appearing on
labels required by this section or elsewhere on the item, shall not
interfere with, minimize, detract from, or conflict with, the required
information.
(c) No person shall remove or mutilate, or cause or participate in
the removal or mutilation of, any label required by this section to be
affixed to any article of upholstered furniture.

[[Page 11746]]

Sec. 1634.9 Requirements applicable to guaranties under section 8 of
the FFA, 15 U.S.C. 1197.

(a) General. Either the manufacturer of a finished article of
upholstered furniture subject to this part or the manufacturer of any
cover or barrier material subject to this part may issue a guaranty in
accordance with this section. The guaranty shall specify the
classification(s) (Type I or II) of upholstered furniture for which the
guaranty is intended to be valid.
(b) Tests to support guaranties. Section 8 of the Flammable Fabrics
Act, 15 U.S.C. 1197, requires that a guaranty thereunder ultimately be
supported by reasonable and representative tests. Reasonable and
representative tests for purposes of this part shall be tests performed
sufficiently to demonstrate that the tested item conforms with each
applicable requirement of this part.

Subpart C--Apparatus and Materials for Smoldering Ignition
Resistance Tests

Sec. 1634.10 Test room.

(a) The test room shall have an appropriate fire protection
suppression system. A suitable extinguishment system such as a water
bottle fitted with a spray nozzle shall be provided to extinguish any
ignited portions of the mockup assembly. Dry chemical extinguishing
agents shall not be used to extinguish or suppress smoldering
combustion since the chemicals add mass therefore increasing the post-
test mass of the mockup remains. In addition, straight pins, staples, a
razor, knife or scissors, a scale, and a brush and/or tongs may be
needed to perform the tests.
(b) If conditions in the test room do not meet the conditioning
specifications, then testing must be initiated within 10 minutes after
the specimens are removed from the conditioning room.

Sec. 1634.11 Specimen holder.

The specimen holder shall consist of two wooden panels, each
nominal 203 x 203 mm (8.0 x 8.0 in) and nominal 19 mm (0.75 in)
thickness, joined together at one edge. A moveable horizontal panel
support is positioned on a centrally located guide. See Figures 1 and
2.

Sec. 1634.12 Ignition source.

The ignition source for all smoldering tests shall be cigarettes
without filter tips made from natural tobacco, 85 2 mm
(3.3 0.1 in) long and with a packing density of 0.27
0.02 g/cm\3\ (0.16 0.01 oz/in\3\) and a total
weight of 1.1 0.1 g (0.039 0.004 oz).

Sec. 1634.13 Sheeting material.

(a) The specifications of the sheeting material are as follows:
(1) Fiber content: 100% cotton
(2) Color: White
(3) Construction: Plain weave, 19-33 threads per square centimeter
(120-210 threads per square inch)
(4) Weight/square yard: 125 28 g/m\2\ (3.7 0.8 oz/yd\2\).
(b) The sheeting shall be refurbished once before use with the
following laundering procedure. The sheeting material shall be washed
and dried one time in accordance with sections 8.2.2 and 8.2.3 of
American Association of Textile Chemists and Colorists (AATCC) Test
Method 124-2001 ``Appearance of Fabrics after Repeated Home
Laundering.'' Washing shall be performed in accordance with sections
8.2.2 and 8.2.3 of AATCC Test Method 124-2001 using wash temperature
(V) 60 3 [deg]C (140 5 [deg]F) specified in
Table II of that method, and the water level, agitator speed, washing
time, spin speed and final spin cycle specified in ``Normal/Cotton
Sturdy'' in Table III of the method. A maximum wash load shall be 8
pounds. Drying shall be performed in accordance with section 8.3.1(A)
of that test method, Tumble Dry, using the exhaust temperature (66[deg]
5 [deg]C; 150[deg] 10 [deg]F) and cool down
time of 10 minutes specified in the ``Durable Press'' conditions of
Table IV of the method.

Sec. 1634.14 Standard polyurethane foam substrate.

(a) The SPUF substrate is used for assembly of the mockups for
evaluation of upholstery cover fabric and interior fire barriers and to
qualify standard cover fabrics.
(b) Flammability performance. (1) Open flame performance. The SPUF
shall be tested in accordance with the test procedures specified in
Sec. 1634.6, but without the use of the standard cover fabric and
using a 5-second impingement of the 35 mm butane flame specified in
Sec. 1634.20(d). In three consecutive trials, using SPUF from the
production lot to be qualified, the SPUF substrate shall have a mass
loss that is greater than 20 percent in less than 120 seconds after
removal of the ignition source.
(2) Smoldering performance. The SPUF shall be tested in accordance
with the test procedures specified in Sec. 1634.4, but without the use
of a cover fabric. In three consecutive trials, using SPUF from the
production lot to be qualified the SPUF substrate shall have a mass
loss less than 1%.
(c) The SPUF substrate shall have the following specifications:
(1) Density: 1.8 lb/ft\3\
(2) Indentation Load Deflection (ILD): 25 to 30
(3) Air permeability: Greater than 4.0 ft\3\/min
(4) No flame-retardant chemical treatment as determined by post-
production chemical analysis.

Sec. 1634.15 Standard cover fabric (cotton velvet) smoldering
qualification for barrier test.

(a) Flammability properties. The standard cover fabric used in
smoldering tests for interior fire barriers in accordance with Sec.
1634.5, shall meet the following requirements: when tested directly
over a qualified SPUF foam substrate following the procedure in Sec.
1634.4, the substrate mass loss average of 10 test results shall be 50
5%.
(b) The standard cover fabric shall also have weight/square yard:
10 oz/yd\2\.
(c) A 100% cotton, velvet pile fabric of beige color, with no
backcoating and treated with certain finishing chemicals involving a
resin catalyst that contains small amounts of melamine, generally
demonstrates the desired flammability performance characteristics
specified.

Sec. 1634.16 Conditioning.

(a) All test specimens and standard test materials (including SPUF
substrates, cigarettes, and sheeting material) shall be conditioned at
a temperature of 21[deg] 3 [deg]C (70[deg] 5
[deg]F) and between 50% and 66% relative humidity for at least 24 hours
prior to testing.
(b) If conditions in the test room do not meet these
specifications, then testing must be initiated within 10 minutes after
the specimens are removed from the conditioning room.

Subpart D--Test facility, exhaust system, and hazards

Sec. 1634.17 Test facility and exhaust system.

The room in which tests under this part are conducted shall have a
volume greater than 20 m\3\ in order to contain sufficient oxygen for
testing, or if smaller, the room shall have a ventilation system
permitting the necessary flow of air. During the pretest and testing
period, airflow rates shall be maintained below 0.1 m/s, measured in
the locality of the mockup assembly to provide adequate air movement
without disturbing the burning behavior. Room ventilation rates before
and during tests shall be maintained at about 200 ft\3\/min. Airflow
rates in this range have been shown to provide adequate oxygen without
physically disturbing the burning behavior of the ignition source or
the mockup assembly. In addition, the ventilation system of the test
facility

[[Page 11747]]

shall be capable of extracting smoke and toxic combustion products
generated during testing for health and safety reasons.

Sec. 1634.18 Hazards.

(a) Health and safety risks associated with conducting the required
testing in accordance with this part 1634 exist. It is essential that
suitable precautions be taken, which include the use of breathing
apparatus and protective clothing. Products of combustion can be
irritating and dangerous to test personnel. Test personnel should avoid
exposure to smoke and gases produced during testing.
(b) A suitable means of fire extinguishment shall be at hand. When
the termination point of the test has been reached and the fire is
extinguished, the presence of a back-up fire extinguisher is
recommended. It is often difficult to determine when combustion in a
mockup assembly has ceased, even after an extinguishment action is
taken, due to burning deep inside the specimens. Care should be taken
that specimens are disposed of only when completely inert.

Subpart E--Test Facility and Materials for Open Flame Ignition
Resistance Tests

Sec. 1634.19 Test room.

The test room shall be draft protected and equipped with a suitable
ventilation system for exhausting smoke and any toxic gases generated
during testing.

Sec. 1634.20 Butane gas flame ignition source.

(a) The butane gas flame ignition source shall be in accordance
with the following specifications or equivalent:
(1) The burner tube shall consist of a stainless steel tube, 8.0
0.1 mm (5/16 0.004 inch) outside diameter,
6.5 0.1 mm (0.256 0.004 inch) internal
diameter.
(2) The butane shall be ``C.P. Grade'' (chemically pure) butane,
99.0% purity.
(b) There shall be a means to control the flow rate of butane.
(c) In the open flame test of section 1634.6 a nominal 240 mm flame
butane is required. The nominal 240 mm butane flame is obtained by
establishing a flow rate of butane gas that is 350 10 ml/
min at 25 [deg]C (77 [deg]F) and 101.3 kPa (14.7 psi).
(d) In standard material qualification tests for SPUF and Rayon, a
nominal 35 mm butane is required. The nominal 35 mm butane flame is
obtained by establishing a flow rate of butane gas that is 45 2 ml/min at 25 [deg]C (77 [deg]F) and 101.3 kPa (14.7 psi).
(e) Flame height is measured from the center end of the burner tube
when held horizontally and the flame is allowed to burn freely in air.

Sec. 1634.21 Metal test frame.

(a) The metal test frame shall consist of two rectangular steel
frames locked at right angles to each other (See Figure 6).
(b) The frames shall be made of nominal 25 mm x 25 mm (1 x 1 inch)
steel angle 3 mm (0.125 inch) thick, and shall securely hold platforms
of steel mesh set 6 1 mm (0.25 0.05 inch)
below the front face of each test frame.
(c) An optional standard edging section around the steel mesh will
provide protection and greater rigidity. The rod shall be continuous
across the back of the apparatus.

Sec. 1634.22 Standard cover fabric (rayon) open flame qualification
for barrier test.

(a) The standard cover fabric used in open flame tests for interior
fire barriers shall be tested in accordance with the test procedures
specified in Sec. 1634.6 using a 20 second application of the 35 mm
butane gas flame specified in Sec. 1634.20. In five consecutive
trials, the assembly mass loss must be greater than 40% at 5 minutes
when tested with a qualified SPUF.
(b) The standard rayon cover fabric shall also:
(1) Be 100% bright regular rayon, scoured, 20/2 ring spun basket
weave construction; and
(2) Have weight/square yard: 8.0 0.5 oz/yd\2\.

Sec. 1634.23 Open flame tests fabric cut-out dimensions.

The fabric cut-out dimensions needed for installing in the mockup
assembly to conduct open flame tests are shown in Figure 5.

Sec. 1634.24 Standard polyurethane foam substrate.

(a) The SPUF substrate used for assembly of mockups shall meet the
following flammability performance requirements.
(1) The SPUF shall be tested in accordance with the open flame test
procedures specified in Sec. 1634.6, but without the use of the
standard cover fabric and using a 5-second impingement of the 35 mm
butane flame specified in Sec. 1634.20(d). In three consecutive
trials, using SPUF from the production lot to be qualified, the SPUF
substrate shall have a mass loss that is greater than 20 percent in
less than 120 seconds after removal of the ignition source.
(2) The SPUF shall be tested in accordance with the smoldering test
procedures specified in Sec. 1634.4, but without the use of a cover
fabric. In three consecutive trials, using SPUF from the production lot
to be qualified the SPUF substrate shall have a mass loss less than 1%.
(b) The SPUF substrate shall have the following specifications:
(1) Density: 1.8 lb/ft\3\
(2) Indentation Load Deflection (ILD): 25 to 30
(3) Air permeability: Greater than 4.0 ft\3\/min
(4) No flame-retardant chemical treatment as determined by post
production chemical analysis.

Sec. 1634.25 Conditioning.

(a) All test specimens and standard test materials shall be
conditioned at a temperature of 21[deg] 3 [deg]C (70[deg]
5 [deg]F) and between 50% and 66% relative humidity for at
least 24 hours prior to testing.
(b) If conditions in the test room do not meet the conditioning
specifications, then testing must be initiated within 10 minutes after
the specimens are removed from the conditioning room.

Subpart F--Reupholstering

Sec. 1634.26 Requirements applicable to reupholstering.

(a) Section 3 of the Flammable Fabrics Act (15 U.S.C. 1192)
prohibits, among other things, the ``manufacture for sale'' of any
product which fails to conform to an applicable standard issued under
the FFA.
(b) Reupholstering upholstered furniture for sale is manufacturing
upholstered furniture for sale and, therefore, is subject to the FFA
and all applicable requirements of this part.
(c) Reupholstering is any replacing of upholstered furniture
material that is subject to any applicable performance requirements of
Sec. Sec. 1634.4 through 1634.6.
(d) If the person who reupholsters the upholstered furniture
intends to retain the reupholstered furniture for his or her own use,
or if a customer hires the services of the reupholsterer and intends to
take back the reupholstered furniture for his or her own use,
``manufacture for sale'' has not occurred and such an article of
reupholstered furniture is not subject to this part.
(e) If an article of reupholstered furniture is sold or intended
for sale, either by the reupholsterer or the owner of the upholstered
furniture who hires the services of the reupholsterer, such a
transaction is considered to be ``manufacture for sale'' and the
article of upholstered furniture is subject to all applicable
requirements of this part.

[[Page 11748]]

Dated: February 14, 2008.
Alberta E. Mills,
Acting Secretary, Consumer Product Safety Commission.

Note: The following appendix will not appear in the Code of
Federal Regulations.

List of Relevant Documents

1. Briefing memorandum from Dale R. Ray, Project Manager,
Directorate for Economic Analysis, to the Commission, ``Regulatory
Alternatives for Upholstered Furniture Flammability,'' November 20,
2007.

2. Memorandum from Rohit Khanna & S. Mehta, Directorate for
Engineering Sciences, to Dale R. Ray, Project Manager, Directorate
for Economic Analysis, ``Technical Rationale Report for the Draft
Standard for the Flammability of Upholstered Furniture,'' November
2007.
3. Memorandum from D. Miller, Directorate for Epidemiology, to
Dale R. Ray, Project Manager, Directorate for Economic Analysis,
``Analysis of Laboratory Data for Upholstered Furniture,'' November
16, 2007.
4. Memorandum from Robert Franklin, EC, to Dale R. Ray, Project
Manager, Directorate for Economic Analysis, Environmental Assessment
of a Draft Proposed Flammability Standard for Residential
Upholstered Furniture,'' November 2007.
5. Memorandum from Charles L. Smith, Directorate for Economic
Analysis, to Dale R. Ray, Project Manager, ``Preliminary Regulatory
Analysis of a Draft Proposed Flammability Rule to Address Ignitions
of Upholstered Furniture,'' December 2007.
6. Memorandum from Charles L. Smith, Directorate for Economic
Analysis, to Dale R. Ray, Project Manager, Directorate for Economic
Analysis, ``Proposed Rulemaking on Upholstered Furniture
Flammability, Initial Regulatory Flexibility Analysis,'' December
2007.
7. Memorandum from Martha A. Kosh, Office of the Secretary, to
Directorate for Economic Analysis, ``Ignition of Upholstered
Furniture by Small Open Flames and/or Smoldering Cigarettes,'' List
of Comments on CF 04-2, December 29, 2003, revised October 19, 2004.
8. Memorandum from A. Bernatz, L. Fansler & L. Scott, to Dale R.
Ray, Project Manager, Directorate for Economic Analysis, ``Test
Program for Upholstery Fabrics and Fire Barriers,'' November 8,
2007.
9. Memorandum from P. Semple, Executive Director, to the
Commission, ``Finding of No Significant Impact from Implementation
of the Proposed Flammability Standard for Residential Upholstered
Furniture,'' November 19, 2007.
10. Memorandum from W. Zamula, Directorate for Economic
Analysis, to Dale R. Ray, Project Manager, Directorate for Economic
Analysis, ``Costs for Non-Fatal, Addressable Residential Civilian
Injuries Associated with Upholstered Furniture Fires,'' September 6,
2007.
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[FR Doc. 08-768 Filed 3-3-08; 8:45 am]
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