PART 1213—SAFETY STANDARD FOR ENTRAPMENT HAZARDS IN BUNK BEDS Authority: 15 U.S.C. 2056, 2058. Source: 64 FR 71899, Dec. 22, 1999, unless otherwise noted. § 1213.1 Scope, application, and effective date. (a) Scope, basis, and purpose. (b) Application and effective date. § 1213.2 Definitions. As used in this part 1213: Bed. Bunk bed. Bed end structure Bunk bed Foundation Guardrail § 1213.3 Requirements. (a) Guardrails. (2) One guardrail shall be continuous between each of the bed's end structures. “Continuous” means that any gap between the guardrail and end structure shall not exceed 0.22 inches (5.6 mm) (so as to not cause a finger entrapment hazard for a child). (3) The other guardrail may terminate before reaching the bed's end structures, providing there is no more than 15 inches (380 mm) between either end of the guardrail and the nearest bed end structures. (4) For bunk beds designed to have a ladder attached to one side of the bed, the continuous guardrail shall be on the other side of the bed. (5) Guardrails shall be attached so that they cannot be removed without either intentionally releasing a fastening device or applying forces sequentially in different directions. (6) The upper edge of the guardrails shall be no less than 5 inches (130 mm) above the top surface of the mattress when a mattress of the maximum thickness specified by the bed manufacturer's instructions is on the bed. This requirement does not prohibit a wall-side guardrail that terminates in a quarter-circle bend and attaches to the side rail of the upper bunk foundation. (7) With no mattress on the bed, there shall be no openings in the structure between the lower edge of the uppermost member of the guardrail and the underside of the upper bunk's foundation that would permit passage of the wedge block shown in Figure 1 of this part when tested in accordance with the procedure at § 1213.4(a). (b) Bed end structures. (2) With no mattress on the bed, there shall be no openings in the end structures above the foundation of the upper bunk that will permit the free passage of the wedge block shown in Figure 1 when tested in accordance with the procedure at § 1213.4(b). (3) When tested in accordance with § 1213.4(c), there shall be no openings in the end structures between the underside of the foundation of the upper bunk and upper side of the foundation of the lower bunk that will permit the free passage of the wedge block shown in Figure 1, unless the openings are also large enough to permit the free passage of a 9-inch (230-mm) diameter rigid sphere. (4) All portions of the boundary of any opening required by §§ 1213.4(c)(1) and (2) to be probed by the wedge block of Figure 1, and that permits free passage of a 9-inch diameter sphere, must conform to the neck entrapment requirements of § 1213.4(c)(3). § 1213.4 Test methods. (a) Guardrails e.g., (b) Upper bunk end structure (c) Lower bunk end structure (2) With the manufacturer's recommended maximum thickness mattress and foundation in place, repeat the test in paragraph (c)(1) of this section. (3) All portions of the boundary of any opening that is required to be probed by the wedge block of Figure 1 by paragraphs (c)(1) and (c)(2) of this section, and that permits free passage of a 9-inch diameter sphere, must satisfy the requirements of paragraphs (c)(3)(i) and (c)(3)(ii) of this section addressing neck entrapment. (i) Insert the “A” section of the test template shown in Figure 2 of this part into the portion of the boundary of the opening to be tested, with the plane of the template in the plane of the opening and with the centerline of the top of the template (as shown in Figure 2) aligned parallel to the centerline of the opening, until motion is stopped by contact between the test template and the boundaries of the opening (see Figure 3 of this part). By visual inspection, determine if there is simultaneous contact between the boundary of the opening and both sides of the “A” section of the template. If simultaneous contact occurs, mark the contact points on the boundary of the opening and conduct the additional test described in paragraph (c)(3)(ii) of this section. (ii) To check the potential for neck entrapment, place the neck portion of the “B” section of the template into the opening, with its plane perpendicular to both the plane of the opening and the centerline of the opening (see Figure 4 of this part). If the neck portion of the “B” section of the template completely enters the opening (passes 0.75 inch or more beyond the points previously contacted by the “A” section of the template), the opening is considered to present a neck entrapment hazard and fails the test, unless its lower boundary slopes downward at 45° or more for the whole distance from the narrowest part of the opening the neck can reach to the part of the opening that will freely pass a 9-inch diameter sphere. § 1213.5 Marking and labeling. (a) There shall be a permanent label or marking on each bed stating the name and address (city, state, and zip code) of the manufacturer, distributor, or retailer; the model number; and the month and year of manufacture. (b) The following warning label shall be permanently attached to the inside of an upper bunk bed end structure in a location that cannot be covered by the bedding but that may be covered by the placement of a pillow. § 1213.6 Instructions. Instructions shall accompany each bunk bed set, and shall include the following information. (a) Size of mattress and foundation. (b) Safety warnings. (1) Do not allow children under 6 years of age to use the upper bunk. (2) Use guardrails on both sides of the upper bunk. (3) Prohibit horseplay on or under beds. (4) Prohibit more than one person on upper bunk. (5) Use ladder for entering or leaving upper bunk. (6) If the bunk bed will be placed next to a wall, the guardrail that runs the full length of the bed should be placed against the wall to prevent entrapment between the bed and the wall. (This applies only to bunk beds without two full-length guardrails.) § 1213.7 Findings. The Consumer Product Safety Act requires that the Commission, in order to issue a standard, make the following findings and include them in the rule. 15 U.S.C. 2058(f)(3). These findings are contained in the appendix to this part 1213. (a) The rule in this part (including its effective date of June 19, 2000 is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product. [These findings are contained in the appendix to this part 1213.] (b) Promulgation of the rule is in the public interest. (c) Where a voluntary standard has been adopted and implemented by the affected industry, that compliance with such voluntary standard is not likely to result in the elimination or adequate reduction of the risk of injury; or it is unlikely that there will be substantial compliance with such voluntary standard. (d) The benefits expected from the rule bear a reasonable relationship to its costs. (e) The rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury for which the rule is being promulgated. Figure 1 to Part 1213—Wedge Block for Tests in § 1213.4( a b c Figure 2 to Part 1213—Test Template for Neck Entrapment Figure 3 to Part 1213—Motion of Test Template Arrested by Simultaneous Contact With Both Sides of “A” Section and Boundaries of Opening Figure 4 to Part 1213—Neck Portion of “B” Section of Template Enters Completely Into Opening Appendix to Part 1213—Findings Under the Consumer Product Safety Act The Consumer Product Safety Act requires that the Commission, in order to issue a standard, make the following findings and include them in the rule. 15 U.S.C. 2058(f)(3). Because of this, the facts and determinations in these findings apply as of the date the rule was issued, December 22, 1999. A. The rule in this part is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product. 1. For a recent 9.6-year period, the CPSC received reports of 57 deaths of children under age 15 who died when they were trapped between the upper bunk of a bunk bed and the wall or when they were trapped in openings in the bed's structure. Over 96% of those who died in entrapment incidents were age 3 or younger. On average, averting these deaths is expected to produce a benefit to society with a present value of about $175 to $350 for each bed that otherwise would not have complied with one or more of the rule's requirements. 2. This increased safety will be achieved in two ways. First, all bunk beds will be required to have a guardrail on both sides of the bed. If the bed is placed against a wall, the guardrail on that side is expected to prevent a child from being entrapped between the bed and the wall. The guardrail on the wall side of the bed must extend continuously from one end to the other. Second, the end structures of the bed must be constructed so that, if an opening in the end structure is large enough so a child can slip his or her body through it, it must be large enough that the child's head also can pass through. 3. For the reasons discussed in paragraph D. of this appendix, the benefits of the changes to bunk beds caused by this rule will have a reasonable relationship to the changes' costs. The rule addresses a risk of death, and applies primarily to a vulnerable population, children under age 3. The life-saving features required by the rule are cost-effective and can be implemented without adversely affecting the performance and availability of the product. The effective date provides enough time so that production of bunk beds that do not already comply with the standard can easily be changed so that the beds comply. Accordingly, the Commission finds that the rule (including its effective date) is reasonably necessary to eliminate or reduce an unreasonable risk of injury associated with the product. B. Promulgation of the rule is in the public interest. C. Where a voluntary standard has been adopted and implemented by the affected industry, that compliance with such voluntary standard is not likely to result in the elimination or adequate reduction of the risk of injury; or it is unlikely that there will be substantial compliance with such voluntary standard. 1. Adequacy of the voluntary standard. ii. Therefore, the Commission finds that compliance with the voluntary standard is not likely to result in the elimination or adequate reduction of the risk of entrapment injury or death. 2. Substantial compliance. Id. ii. Having now considered all the evidence that the staff has presented, the comments from the public, and the legal advice from the Office of General Counsel, the Commission concludes that there is not “substantial compliance” with the ASTM voluntary standard for bunk beds within the meaning of the Consumer Product Safety Act and the Federal Hazardous Substances Act. See, e.g., iii. The legislative history regarding the meaning of “substantial compliance” indicates that the Commission should consider whether compliance is sufficient to eliminate or adequately reduce the risk of injury in a timely fashion and that, generally, compliance should be measured in terms of the number of complying products, rather than the number of manufacturers who are in compliance. E.g., iv. Given this Congressional guidance, the Commission believes it appropriate to examine the number of conforming products as the starting point for analysis. However, the Commission does not believe that there is any single percentage of conforming products that can be used in all cases to define “substantial compliance.” Instead, the percentage must be viewed in the context of the hazard the product presents. Thus, the Commission must examine what constitutes substantial compliance with a voluntary standard in light of its obligation to safeguard the American consumer. v. There are certain factors the agency considers before it initiates regulatory action, such as the severity of the potential injury, whether there is a vulnerable population at risk, and the risk of injury. See 16 CFR 1009.8. These and other factors also appropriately inform the Commission's decision regarding whether a certain level of conformance with a voluntary standard is substantial. In the light of these factors, industry's compliance rate with the voluntary standard for bunk beds is not substantial. vi. In this case, the Commission deals with the most severe risk—death—to one of the most vulnerable segments of our population—infants and young children. While the risk of death is not high, it exists whenever a young child is in a residence with a nonconforming bunk bed. vii. Additionally, some products, such as hairdryers without shock protection devices, require some intervening action (dropping the hair dryer into water) to create the hazard. By contrast, deaths in bunk beds occur during the intended use of the product—a child rolling over in bed or climbing in or out of it—without any intervening action. viii. The Commission must also consider that bunk beds have a very long product life, frequently being passed on to several families before being discarded. Thus, a number of children may be exposed to a bed during its useful life. Every noncomplying bed that poses an entrapment hazard presents the potential risk of death to any young child in the house. It is a risk that is hard for a parent to protect against, as children find their way onto these beds even if they are not put to sleep in them. ix. Bunk beds are products that can be made relatively easily by very small companies, or even by a single individual. The Office of Compliance believes smaller entities will always present a compliance problem, because new manufacturers can enter the marketplace relatively easily and need little expertise to make a wooden bunk bed. The evidence seems to support the view that there will always be an irreducible number of new, smaller bunk bed manufacturers who will not follow the voluntary standard. x. What constitutes substantial compliance is also a function of what point in time the issue is examined. In 1989, the Commission denied a petition for a mandatory bunk bed rule. At that time, industry was predicting that by April of 1989, 90% of all beds being manufactured would comply with the voluntary guidelines. But that was in the context of years of steadily increasing conformance and the hope that conformance would continue to grow and that deaths and near-misses would begin to decline. But the conformance level never grew beyond the projection for 1989 and deaths and near-misses have not dropped. xi. Even with the existing compliance rate, the Commission is contemplating the prospect of perhaps 50,000 nonconforming beds a year (or more) entering the marketplace, with many beds remaining in use for perhaps 20 years or longer. Under these circumstances, a 10% rate of noncompliance is too high. xii. It is now clear that the bunk bed voluntary standard has not achieved an adequate reduction of the unreasonable risk of death to infants and children in a timely fashion, and it is unlikely to do so. Accordingly, the Commission finds that substantial compliance with the voluntary standard for bunk beds is unlikely. xiii. Products that present some or all of the following factors might not be held to as strict a substantial compliance analysis. Those which: —Rarely or never cause death; —Cause only less severe injuries; —Do not cause deaths or injuries principally to a vulnerable segment of the population; —Are not intended for children and which have no special attraction for children; —Have a relatively short life span; —Are made by a few stable manufacturers or which can only be made by specialized manufacturers needing a significant manufacturing investment to produce the product; —Are covered by a voluntary standard which continues to capture an increasing amount of noncomplying products; or —Require some additional intervening action to be hazardous. xiv. And, in analyzing some other product, there could be other factors that would have to be taken into consideration in determining what level of compliance is adequate to protect the public. The tolerance for nonconformance levels has to bear some relationship to the magnitude and manageability of the hazard addressed. xv. The Commission emphasizes that its decision is not based on the argument that a mandatory rule provides more powerful enforcement tools. If this were sufficient rationale, mandatory rules could always displace voluntary standards, and this clearly was not Congress's intent. But, with a mandatory standard, the necessity of complying with a mandatory federal regulation will be understandable to small manufacturers. State and local governments will have no doubt about their ability to help us in our efforts to locate these manufacturers. D. The benefits expected from the rule bear a reasonable relationship to its costs. 1. Bunk beds that do not comply with ASTM's requirements for guardrails. 2. Bunk beds that comply with ASTM's requirements for guardrails. 3. Lower bunk end structures. 4. Effect on market. 5. Conclusion. E. The rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury for which the rule is being promulgated. 2. The Commission also considered a suggestion that bunk beds that conformed to the voluntary standard be so labeled. Consumers could then compare conforming and nonconforming beds at the point of purchase and make their purchase decisions with this safety information in mind. This, however, would not necessarily reduce injuries, because consumers likely would not know there is a voluntary standard and thus would not see any risk in purchasing a bed that was not labeled as conforming to the standard. 3. For the reasons stated in this appendix, no alternatives to a mandatory rule have been suggested that would adequately reduce the deaths caused by entrapment of children in bunk beds. Accordingly, the Commission finds that this rule imposes the least burdensome requirement that prevents or adequately reduces the risk of injury for which the rule is being promulgated.