Commission Meeting - Wednesday, March 10, 2010

Matters to be discussed:

1. Civil Penalty Factors - Decisional Matter: Final Interpretive Rule



2. Pending Decisional Matter: Toddler Beds - Notice of Proposed Rulemaking (NPR)

Chairman Tenenbaum: Good morning, everyone.

We'll now call the meeting of the U.S. Consumer Product Safety Commission to order. Today, we have on decisional matter to take up before our public hearing on the notice of proposed rule making on toddler beds.

We will first consider the final interpretive rule on civil penalties factors which will provide guidance on the civil penalties factors found in the consumer product safety act.

I want to commend the work that has gone into this interpretive rule by the attorneys and OGC, particularly Melissa Hampshire this morning, and the special assistance in all the commissioners' office as well as the commissioners.

Several part were not initially in agreement on different elements of interpretive rule, however, I'm happy to say in the spirit of cooperation, consensus has been reached several offices on a number of issues and I believe that's what we will achieve today is a very good results.

I would like to recognize Commissioner Nord for a motion.

Commissioner Nord: Thank you, Madame Chairman.

I have an amendment that I'd like to move. And basically it is a series of changes to the proposed rule in front of us. Let me just walk very briefly through what I'm proposing for the benefit of those in the audience.

• First of all, on page 16 of the document in front of us, in the preamble discussion of the size of penalties, there's been a lot of talk of whether we need to have some statement that the higher penalties will be reserved for the most serious or extensive violations and this amendment makes the very general statement that the commission may do so. It does not require us to do, but it makes that, gives that policy direction.
• Secondly, in the discussion of other factors, specifically the discussion of safety compliance programs, in the preamble, it makes clear that just because there is a violation of the law, that doesn't mean in and of itself render the compliance program to be ineffective. I thought that that would be a useful clarification.
• The third change, again, is in the preamble. And this is a idea that has been put forth by Commissioner Adler to clarify that in those cases where the commission is mitigating a penalty exclusively because of the size of the small business, that in appropriate cases, we may publicize the fact that we are doing so what the size of the penalty would have been, but for this mitigation activity.
• Again, under other factors, there is the factor of failure to respond in a timely manner to requests for information. The amendment clarifies that we are looking, those requests need to be formal written requests for information.
• Again, with respect to this predictor, there is a amendment to conform the preamble to the rule to make sure that the language is consistent between the two. Under the duration of violation, which was called out in the proposal as a separate factor to be considered, this factor has been deleted because we felt that it was already subsumed in an analysis of the extent and gravity of the violation.
• Again, under a discussion of the factors, there's a discussion of the number of defective products distributed in commerce. The amendment would conform the rule to a more expanding discussion of this concept that is included in the preamble.
• Under history of violation, non-compliance, we have deleted essentially the last sentence from both the preamble and the rule, which contained examples of non-compliance, because we could not reach agreement on those examples.
• And then finally, in the discussion of compliance and safety programs, in the rule, we are clarifying that if this, if a safety and compliance program is offered as a mitigating factor by the violator that part of the analysis may be inappropriate cases, relevant of mandatory standards were followed and that could be a factor if it is appropriate.

So, that is the essence of the series of amendments I'm putting forward. I move for their adoption.

Commissioner Adler: I second that motion.

Chairman Tenenbaum: Are there any commissioners who would like to discuss this? It has been moved in such. Any discussion?

Okay. Hearing no discussion, the commissioner's prepared to vote of the inclusion of the staff recommendations and the final interpretive rule by civil penalty factors, changes proposes by Commissioner Nord. We are. Commissioner Nord, how do you vote?

Commissioner Nord: Aye.

Chairman Tenenbaum: >> Chairman Tenenbaum: Commissioner Northup, how do you vote?

Commissioner Northup: Aye.

Chairman Tenenbaum: >> Chairman Tenenbaum: Commissioner Adler, how do you vote?

Commissioner Adler: Aye.

Chairman Tenenbaum: I vote aye and Commissioner Moore has already voted aye with the, on the amendment as well.

So, the motion to approve publication of the final interpretive rule on civil penalty factors with the changes substituted by Commissioner Nord is passed.

Are there any other matters the commission would like to have considered this morning? If not, we will move into,

Commissioner Adler: I did just want to join the Chairman and Commissioner Nord in expressing appreciation for all the parties who've joined together in what is really a very, very time consuming, challenging, but ultimately worthwhile task. I absolutely enjoyed the many, many hours of deliberation I had with Commissioner Nord and others and I just want to express my appreciation for her spirit of compromise and thoughtfulness and I hope we can use this as an example for additional methods of cooperation in the future.

Commissioner Northup: Madame Chair?

Chairman Tenenbaum: Yes.

Commissioner Northup: I'm sorry. I was under the impression that were voting on the amendment.

Chairman Tenenbaum: We did we had voted within the rule as amended. Do you want to just vote on the amendment? Okay. Are there any other amendments?

Commissioner Northup: No. I'm sorry.

Chairman Tenenbaum: Then we will vote on the rule as amended.

Commissioner Northup: Okay.

Chairman Tenenbaum: Commissioner Nord, how do you vote?

Commissioner Nord: Aye.

Chairman Tenenbaum: Commissioner Northup?

Commissioner Northup: No.

Chairman Tenenbaum: Commissioner Adler?

Commissioner Adler: Aye.

Chairman Tenenbaum: Commissioner Tenebaum, aye, and Commissioner Moore has already voted on the rule as amended. Thank you.

Alright, now we'll go into toddler beds and have our public hearing on toddler beds. Section 104 of the Consumer Product Safety Improvement Act directs the commission

to issue safety standards for durable infant and toddler products. And what we're going to have this morning is a public hearing and briefing on the proposed rule for toddler beds.

We have Celestine Kiss and Harleigh Ewell from the commission, so if both of you want to start, we're ready.

Celestine Kiss: Thank you.

Good morning, Chairman Tenebaum and commissioners. We are here to present the staff's draft proposed rule for toddler beds. This draft proposed rule is a result of section 104 of the Consumer Product Safety Improvement Act standard and consumer registration of durable nursery products. That requires the CPSC to study and develop safety standards in toddler products. Toddler beds are one of product's specifically identified in section 104 F2 of the CPSIA as a durable infant or toddler product.

The commission is charged with promulgating consumer product safety standards that are substantially the same as the standard for toddler beds are more stringent then the voluntary standard if the commission determines that more stringent standards would further reduce the risk of energy associated with toddler beds.

The current version of ASTMF 1821, Standard Consumer Safety Specification for toddler beds was approved on April 1st, 2009, and was published in May of 2009. In this standard, a toddler bed is defined as any bed sized to accommodate a full-sized crib mattress having minimum dimensions of 51 5/8 inches in length and 27 1/4 in width and is intended to provide free access and egress to a child not less than 15 months of age who weighs no more than 50 pounds. Here are some examples of toddler beds and convertible cribs that are covered by this standard.

The standard was developed in response to incident data supplied by the CPSC in an attempt to address the following hazards: entrapment in bed end structures, entrapment between the guard rail and side rail, and entrapment in the mattress support system. It addresses corner post extensions, which may catch cords, ribbons, necklaces or clothing. CPSC staff, from the Director for Epidemiology, Division of Hazard Analysis, analyzed instant and death data related to toddler beds from 2005 through 2008.

Staff is aware of three fatalities and 81 non-fatal incidents related to toddler beds. Of the three fatalities, two resulted from entrapment.

• The first death was the result of a six month old infant getting entrapped in the footboard while sleeping on a toddler bed.
• The second death involved a 13 month old getting entrapped in the side rail of a flipped over toddler bed while playing with an older sibling.
• The last fatality was not related to the toddler bed structure. It was a strangulation death of a three year old on the cord of a mini blind located over his toddler bed.

The toddler bed standard does have a warning related to blind cords, but it is unknown if the bed in this case had that warning.

It is notable here that two of the three reported fatalities in victims under the current ASTM recommended age of 15 months. Of the 81 non-fatal incidents, 32% involved an injury to a child on a toddler bed. Three of the injuries were fractures of limbs. The vast majority of injuries were bumps and bruises. Sprains, scrapes and lacerations were some of the other reported injuries associates with toddler beds.

The hazard patterns identified among the non-fatal incident reports can be broken into five categories.

• Entrapment was the most commonly reported hazard. Approximately 31% of the incidents involved entrapment of a limb. The associated injuries, if any, ranged from fractures to sprains to bruises. More serious, potentially fatal entrapment of head or body in the side rails, in the mesh covering of the side rails or between the mattress support rails were reported in 14% of the incidents. Broken, loose or detached components of the bed, such as the guard rail, hardware or other accessories were the next most commonly reported problems. However, only two injuries, one laceration and one ingestion, resulted from these problems.
• Product integrity issues, mostly the integrity of the mattress support, were the next most commonly encountered hazard. These often resulted in the collapse of the bed, causing the child to fall through. Inadequate mattress fit issues were the next most common hazard.
• A few children suffered sprains and broken limbs from getting caught in the gap between the mattress and the bed frame.
• Finally, there were some miscellaneous complaints about paint and coating issues, the bed height and clearance issues, inadequacy of guard rails and assembly.

Among the non-fatal instance that reported ages, 67 out of the 81 cases, the victims ranged in age from 11 months to six years. Nearly 66% of these instants reported the age to be between 15 and 24 months. And about 16% of the instants involved children less than 15 months of age.

However, it's not always clear that the reported age pertained to the child who's the regular user of the toddler bed. There were an estimated total of 1380 injuries related to toddler beds that were treated in U.S. hospital emergency departments over the four years period of 2005 to 2008.

Of the emergency department treated injuries related to toddler beds, the following characteristics occurred most frequently.

• The hazard was falling out of the toddler bed to a lower level.
• The injury to the body was usually the head or face.
• The injury type was usually lacerations or contusions and abrasions.
• Nearly all of other victims were treated and released.

Based on our review of the current voluntary standard and the instance involving toddler beds, CPSC staff believes that the requirements and the voluntary standard are not adequate to address some of the known hazards and that more stringent requirements would further reduce the risk of injury associated with toddler beds.

Therefore, staff is recommending four changes to ASTMF 1821-09 in it's draft proposed rule.

• The first area is the guard rail height. To reduce the number of falls from toddler beds, staff proposed a new guard rail height requirement that the guard rail extend at least five inches the top of the bed's mattress. ASTM standard for bunk beds and portable bed rails include this requirement as well.
• Next is the structural integrity of guardrails. CPSC staff recommends a new performance requirement and associated test method to address incidents related to guard rails structural issues. The performance requirement and test method recommended were adapted from the ASTM voluntary standard for portable bed rails. The portable bed rail requirement was developed to address instance similar to those seen on toddler bed guard rails. For toddler beds, staff has increased the force applied in the test from 40 to 50 pounds to represent the maximum recommended user's weight for a toddler bed. The test requires gradually applying a 50 pound force at the upper most horizontal part of the guardrail in a direction perpendicular to the plane of the rail. The force should be applied in the center along the length of the rail and then repeated with the force applied directly over each of the outer most legs of the guardrail. The force should be applied in the direction away from the mattress.
• Next is spindles and slat strength. Staff recommends a new performance requirement and associated test method for slat spindle strength of guardrails, side rails and end structures when permanently attached to the bed. This will test both the integrity of the slat joint and the slat material. This performance requirement is based on recent CPSC staffed test of cribs and toddler beds involved in slat breakage incidents. The reason cribs were tested is because some cribs are designed to be converted into toddler beds and have the same slat spindle breakage problems. CPSC's division of mechanical engineering's staff conducted in-house testing of cribs and toddler beds' slats and spindles to identify the best force required to test the slat's spindles without compromising the crib/toddler bed integrity. A total of six slats were tested to failure. Eighteen different incident crib/toddler beds from four different manufacturers and 12 different models. There's very little data available depicting the forces children can apply on a bed slat. Therefore, the goal of staff's testing was to discern what forces different slats from the same incident crib/toddler bed could withstand. It's feasible to infer the maximum force a bed occupant could apply to a bed slat by reviewing the minimum failure forces for each of the 18 incident crib/toddler beds. The minimum values range from 29 to 79 pounds. They were assuming the minimum strength value for each bed is represented by failure force exerted by the bed occupant than setting slat strength requirement at 80 pounds would capture failures of known incident beds. Mechanical engineering staff conducted additional slat strength testing of a non-instant market entry crib. Staff testing resulted in failure forces ranging from 85 to 124 pounds. A minimum slat failure of 85 pounds force indicates that the minimum force required to break a slat may be greater than the force a bed occupant is able to apply. Since there have not been any incidents reported involving cribs in which the slats broke at this higher value. This data set supports setting the target slat strength requirement at 80 pounds. The staff's testing showed that when adjacent slats were tested, some of the damage to the bed rail was a result of the testing itself. Therefore, only 25% of the slats should be tested with the 80 pound force. Slat spindles that are most likely to fail based on their geometry shall be selected to be tested within this grouping of 25%. And those slat spindles should not be adjacent slat spindles. All remaining slats shall be tested with a 60 pound force. It's important to emphasize that all slats must be tested because of variability in both wood strength and slat joint integrity. The 60 pound requirement allows for 100% testing of all slats while limiting any damage to the bedrail caused by testing adjacent slats at the 80 pounds. If a slat spindle fails the 80 pound force, the product fails the test and no further testing is required. If the slat spindles pass the 80 pound force, the remaining slat spindles are tested at the 60 pounds. If a slat spindle fails the 60 pounds, the product fails the test. Therefore, for a toddler bed to pass the test, there shall be no slat spindle breakage or separation of spindle from the guardrail, side rail or end structure after testing with the 80 and 60 pound force.
• The final area of change deals with the warning statements. The warning section of the ASTM standard is confusing as it's currently organized. Therefore, staff has designed one addressing the entrapment hazard and the other addressing the strangulation hazard. First, the entrapment warning. The first line in the warning label is intended to place greater emphasis on the consequences of the hazard. That is death. And the subpopulation most at risk of dying from exposure to the hazard are infants. Explicit hazard information in a warning has been found to lead to higher levels of perceived hazardousness and greater intent to comply with the warning. The original warning message did not specify the source of entrapment or how entrapment might lead to death. And it is unclear whether many consumers could readily and correctly infer this information. Therefore, the second line opening in and between bed parts can entrap head and neck of a small child is intended to remedy this situation by providing the more explicit description of the mechanism that creates the hazard. The third line states who should not be using toddler beds, children under 15 months. The fourth line pertains to a requirement in the current standard that specifies different warning requirements for toddler beds depending on whether the beds employ a guardrail as the mattress containment needs. Unless the guardrail cannot be removed by the consumer, a warning statement telling consumers that the guardrail must be used to avoid the formation of a gap between the mattress and the bed that could cause entrapment is required. CPSC staff believes, however, that such a warning statement would not be needed for toddler beds that do not present an entrapment hazard with the guardrail removed. Therefore, if a toddler bed meets all the performance requirements without the guardrail, the entrapment warning label on that bed would not include this fourth line.

The last two statements are intended to reinforce that only using the proper sized mattress and following the instructions may reduce the changes of an incident.

Now, the strangulation label. To address the strangulation hazard, the CPSC staff proposes the following warning. This warning largely reflects all of the hazard relevant information required in the original warnings.

The statement these items may catch on bed parts was added because staff believes without this sentence, consumers may find it difficult to infer how the presence of a cord around a child's neck is relevant to the toddler bed or how the cord and bed interact to create the potential for strangulation.

Next is the potential small business impact. Toddler beds and convertible cribs are typically produced and/or marketed by juvenile product manufacturers and distributors or by furniture manufacturers and distributors, some of which have separate divisions for juvenile products. There are currently at least 73 known manufacturers or importers supplying toddler beds and/or convertible cribs to the U.S. market.

Approximately 48 suppliers are domestic manufacturers, 13 are domestic importers, 11 are foreign manufacturers and the remaining firm is a foreign supplier that imports from other countries and exports to the United States. Based on small business administration definitions, there are 52 small firms, 41 small domestic manufacturers and 11 small domestic importers that are likely to be effected by the proposed standard.

Firms supplying products already compliant with the voluntary standard may not need to make any product modifications to meet the proposed standard except for the warning labels. However, some of these firms and all firms supplying products that do not comply with the voluntary standard will need to make at least some modifications to their toddler beds and convertible cribs to comply the recommended standard.

The extent of these costs is unknown, but since product redevelopment would likely be necessary in many cases, it's possible that the cost could be large and have the potential to reduce firms' ability to compete with substitute products. In addition, firms who rely entirely or primarily on toddler beds or convertible cribs and related products may be disproportionately affected by the standard.

The requirements outlined in the staff's draft proposed rule are substantially the same as those of ASTMF 1821-09 standard consumer safety specification for toddler beds with the modifications of a new height requirement for guardrails, new performance requirement and associated tested method to address incidents related to guardrails' structural issues, new performance requirement and associated test method for slats, spindle strength of guardrails, side rails and end structures, and new separate warning labels to address entrapment and strangulation hazards.

Staff recommends that the commission proceed with the rulemaking process for toddler beds by publishing a notice of proposed rule making as drafted by the office of General Counsel. Staff also recommends an effective date of six months after publication of the final rule.

We are now available to answer any questions. Thank you.

Chairman Tenenbaum: Thank you, Celestine. Harleigh, would you like to add anything to that?

Harleigh Ewell: No, she covered it well. Thank you.

Chairman Tenenbaum: Thank you. That was very well done. So, the, we are adopting the ASTM F97707 standard with certain modifications, which are those four items that you have listed, the minimum height for upper edge guardrails, more stringent slat or spindle strength tests, tests method for guardrail structural integrity and improved warning labels.

Celestine Kiss: I just want to clarify it is F1821. Is that what you said?

Chairman Tenenbaum: Well, this is in the staff memo, proposing the ASTM F97707 standard with certain modifications.

Celestine Kiss: It's, we'll have to make it correct. It's F1821-09.

Chairman Tenenbaum: Okay. Okay. Well, that was in the legal memo, but anyway, that's the, those four are our additions to make this a strong standard.

Celestine Kiss: That's great.

Chairman Tenenbaum: Okay. Now. Could you discuss with me, Harleigh, how we would make these standard available to the public in that the ASTM standards are copyrighted?

Harleigh Ewell: Well, that is an issue and because the government it not exempt from the restrictions imposed by the copyright system. What we've been able to work out is as far as how it goes, we would incorporate the ASTM standard by reference and describe the particular implications to that standard that would be in the rule.

As far as having people able to see the ASTM standard, they have agreed to put a link on our website, so that at least during the comment period on the proposed rule, people could go to the link and look at the ASTM standard. Although, they would not be able to print it out or anything like that. In the long term, people who are interested in getting into the toddler bed business will want to purchase the ASTM standard.

Chairman Tenenbaum: There was one other question that I know other commissioners have too. It's the issue of preemption. And how this standard then would preempt state standards on toddler beds that were lower than our standard. That's your interpretation.

Harleigh Ewell: Yes, I think that commission would be justified in coming to that conclusion.

Chairman Tenenbaum: Okay. Any other questions? Mr. Adler?

Commissioner Adler: This is an excellent job and I appreciate it, and now I'm going to display my profound ignorance because I'm not a physicist, but could you explain why we have the 50 pound force for the guardrail, but then we have the 85 pound force for the, what do you call those things?

Chairman Tenenbaum: Spindles?

Commissioner Adler: Spindles. Yeah. In other words, my impression of a kid who weights 50 pounds is a kid can easily exert more than 50 pounds of force against a guardrail, so is there not a safety buffer there or do I just not understand what, I think it's that I don't understand what's going on.

Celestine Kiss: And I'm not the engineer, so I'm going to ask Jake Miller from mechanical engineering to come up and explain that.

Commissioner Adler: If we could have simultaneous translation while he's explaining it.

Jake Miller: Morning, Commissioner Adler.

To answer your question, yes, the 50 pound guardrail requirement was driven from the incidents we saw. We saw failures in the field due to the hinge location on the guardrails, not related to the slats or spindles, for example.

And what we're seeing and what we're testing for is, as you may recall from the presentation, is we're testing the 50 pound force in a direction away from the mattress that would simulate either a child climbing up the guardrail, which is what we've seen, and the guardrails failing at the hinge point.

And also we've seen failures where the child leans against the guardrail from inside the bed. So, both the force is simulated away from the centerline of the mattress. In relation to the 80 pound requirement for the slat strength, we've seen failures are different and related to we've seen children fall.

We have a good incident, eye witness actually, incident where a eight month old child fell and bruise his or her head very drastically and fractured a slat on a convertible crib or toddler bed. So, what I'm trying to explain is there's more of the acceleration component with the force and it's very localized to the slat.

You need a higher force, I believe, and needs to protect against a higher force of slats, related to all the incidents we've seen versus the force requirement for the hinges of the guardrail for example.

Commissioner Adler: That's so basic. That sounds perfectly reasonable. That's based on the data that we had.

Jake Miller: Based on data that we've seen, right.

Commissioner Adler: Because you could theorize kids horsing around and jumping against a guardrail and exerting more than 50 pounds, or a 50 pound kid. We just haven't seen it.

Jake Miller: We haven't seen it.

Commissioner Adler: Okay. That makes perfect sense. I appreciate that.

Jake Miller: Sure.

Commissioner Adler: The, I guess the other question is just to, and this is more cosmic in nature, but the, Thanks God the number of fatalities is actually fairly small for this product and I'm delighted about that, but the warning is extremely strong and so, I guess my question is, in terms of overkill of labels, if we put this on the label on these based on that small number of fatalities, have we set ourselves a precedent for requiring equally strong labels in other settings. For example, cribs and all the other durable products that are coming up. I'm assuming for a lot of these, we do have infant fatalities. And I don't have an answer. I'm just thinking out loud. Is it your impression that the kinds of warning labels that we're going to be calling for with respect to other durable infant products will have equally strong language if not stronger? And does that then lead to some disregard because I've seen it too many times before? It's what I think we saw with ladders, where you get 25 warning labels that say in this instance, you can fall off the ladder.

Celestine Kiss: I really can't speak to the other products. I'm not familiar with them. But these warnings are what the voluntary standard has right now. We just,

Commissioner Adler: I did notice that. They did it. We didn't.

Celestine Kiss: Right. We just try and make more sense of it by separating it out between entrapment and strangulation and being able to really identify which one of these statements goes with entrapment and which one goes with strangulation. So, we already have. I think we're just trying to be clear.

Commissioner Adler: Yeah, I think your proposal is separate and it was just a general query. And that wasn't necessarily totally precise answer, but I do appreciate it. And just one last thing. Again, I don't have an answer about the whole copyright issue, but it is troubling when you think about it that we're saying to, not to the people who make them. I'm sure they can afford to by an ASTM standard, but for a consumer group or for somebody in the media or some casual observer who would like to see what the standard is that they actually have to purchase it. I think the proposal, the approach you've taken, Harleigh, makes a lot of sense given what we have, but in the long run, I hope we can figure out some better way of doing that, because we have a whole bunch of ASTM standards and other standards marching down the pipe that are proprietary. That was a lament. That wasn't a question.

Chairman Tenenbaum: Alright. Do you have any questions, Commissioner Northup?

Commissioner Northup: Yes. A couple. First of all, I wondered of the falling out of bed injuries was the guardrail in place. Was there any evidence or any tracking of that?

Celestine Kiss: I am not sure if we know that information, but let me just check. Good morning, Commissioner.

Commissioner Northup: Good morning.

Celestine Kiss: The data that we have, it's pretty much based on incident reports that we get.

Commissioner Northup: Right.

Celestine Kiss: And not too many go into that kind of detail. Occasionally, we do go, especially for the more serious cases, we do have investigations done and in those cases, we are able to get that kind of information from the consumer, but for the vast majority, it's not available.

Commissioner Northup: Just to provide some context considering we had bunk beds in our houses for years. You know, keeping the guardrail in place is a very difficult thing with children and, in fact, I just shared with the commission, I can remember kissing the kids good night and saying, Where is the other guardrail? and, you know, the guardrail. It may be that they're better attached today, but sometimes they're actually dragged into another room or something and, you know, put the guardrail on, we'd say.

But, you know, in basically toddler beds are meant to help a child convert from a crib where they can't fall out. They wind up against the edge of the crib. To a bad to learn to sleep in the middle of the bed and not fall out.

And it occurred to me as I listened to this that the height of the bed would be very important. And I wasn't sure that I read that the height of the bed is a consideration here. And that, I remember actually looking for a very low down bed for a child's bed, because that was the most critical thing about a child not insuring themselves when they fell out of the bed.

Because of an abuse of a product, if my house, and my experience is any sort of bell weather, it's harder to keep the guardrail in place especially as days go on, as you have babysitters, and so forth, than it is to keep the bed closer to the floor. And so I just wondered if there was any discussion about that.

Celestine Kiss: If I can get my slide up that I have with the pictures of the toddler beds.

Commissioner Northup: I noticed the pictures, the ones in the pictures, that they're.

Celestine Kiss: They all appear very low to the ground, but the height of the bed is not part of the standard.

Commissioner Northup: It just strikes me as odd. Like I said, considering that the majority of the accidents happen when a child falls out of the bed, and, you know, that we're going to such an effort to make sure that they're protected in the bed that maybe being lower to the ground would be a help. Anyway, I just, and it occurred to me that that may not be all of them. Those did look like they were fairly low. It's been a long time since I've had a toddler, but they were not all that low.

And there are some of the conversion cribs that are on the market today that convert and I'm not sure how low they all are, and it just seemed to me like that would be a serious consideration. I wondered also if on the eco-analysis, if there was, if now that there's a mandatory standard, if that doesn't mean that now there will have to be third party testing and the certification and if that was taken. It seemed to me like the whole analysis was based on reengineering and the cost.

Celestine Kiss: In doing an economic analysis, you have to look at what's going to be in effect when the rule goes into effect and the third party testing, we don't exactly know what it's going to be yet, so you really can't analyze it. And it probably won't go into effect for at least six months after this one does, it seems like with the timing. So, I can't presume what exactly that's going to look like and I have to presume I know what it's going to look like for this going, you know, six months after it goes final. And I just didn't know about third party testing. It won't be in effect.

Commissioner Northup: So, you know, just, this may be basic to you, but it's, when we go to a mandatory standard, that does not mean that a general conformity certificate has to then be part of every product and?

Celestine Kiss: It wouldn't be until third party testing is passed. Once that goes final, that would be the case and the analysis for third party testing will take these kind of rules into account.

Commissioner Northup: Okay. Alright. I think that's all.

Chairman Tenenbaum: Alright, Commissioner Nord?

Commissioner Nord: Yes. In the briefing package, you indicate that some firms, the majority of firms, will have to make modifications to their toddler beds, that product redevelopment would be necessary in many cases, the potential to reduce firms' ability to compete with substitute products will be impacted. Footnote two goes on to talk about the possibility that 30 out of 52 firms would need to undergo product redevelopment to comply. If the commission wanted to better understand the economic impact of this proposed standard, how would the staff go about obtaining that information?

Celestine Kiss: I think first we could request in the NPR to get additional information from firms. Unfortunately, the Paperwork Reduction Act prevents us from requesting directly information from too many firms, so we're somewhat limited in the data we can get, so I would like to certainly see the final of getting some information from the firms who will be directly impacted.

Commissioner Nord: But we could ask OMB for a waiver of the Paperwork Reduction Act.

Celestine Kiss: That usually takes quite some time. I think this would go final before we would likely get that approved.

Commissioner Nord: Would Harleigh or Phil, would OMB ever entertain a more blanket request understanding that we are going to be two or three rules like this every six months?

Harleigh Ewell: We could probably put together a description that would cover that, but again, unless an emergency consideration was granted, it would take some time to process.

Commissioner Nord: Perhaps if we were to go ahead with a request, we could style it with some sense of urgency given the apparent economic impact that you all are at least eluding to.

Commissioner Adler: Nancy, may I just ask for elaboration? It's been a while since I've actually read the Paperwork Reduction Act. If we merely request information as opposed to require it, is that nonetheless still going to invoke paperwork reduction concerns?

Harleigh Ewell: Yes, we could request it in the proposal.

Commissioner Adler: Yeah. Even that triggers the paperwork reduction?

Harleigh Ewell: No, that would not if we were just asking for comments on the proposal.

Commissioner Adler: That's, I think, the thrust of what Commissioner Nord was hinting at. Let me not read your mind, but.

Commissioner Nord: I would like to see a request for comment in the proposed role. I'd like to highlight that and specifically ask for comments there, but again, I guess my question was, to the staff, how would we go about getting good information here? Certainly we can ask for comments. That's clear. But beyond that, what else could we be doing to expand our understanding of the economic impact of this role?

Harleigh Ewell: Deferred to the economics, where most of the answer to that question, but if we're going to firms and ask them questions, even though their response is voluntary, that would require processing under the Paperwork Reduction Act.

Celestine Kiss: In general, it really does take speaking with firms who have either done this kind of change before. It doesn't have to be the exact same change, but something similar to determine what kind of costs were involved. In some cases, with other products, we've had information from firms about how they developed a product to deal with a new CPSC rule, for example, bath seats. In which case, you can take a look at what kinds of costs are involved and use that to kind of extrapolate what might be under the new rule, but they're just isn't that available for this product.

Commissioner Nord: Thank you. I am, I guess, troubled by the wording of the strangulation hazard warning. The last whatever, phrase or clause or sentence. Obviously we don't want parents to be putting things on cords around their childrens' necks, just as a general practice. We are fining people right and left for hood strings. As I read this, my takeaway that is if I put a string around a child's neck and put the child into the toddler bed, it could catch on a bed part and that's the hazard. Obviously that's the hazard associated with that, but the hazard is bigger. I guess this seems to, to my reading, send a bit of a mixed message that troubles me and I'd like to call that out in the proposed rule just to make sure we're stating this as clearly as we possibly can.

Chairman Tenenbaum: Did you not say that was already in the voluntary standard? This is what the industry came out with?

Celestine Kiss: Yes. That's the wording that they already had. And then we proposed adding the last statement of these items may catch on bed parts, because it wasn't clear from just that first part of the statement why the strings are a hazard.

Commissioner Nord: I realize that. On one side's some clarity and the other, it also indicates that that's the hazard with putting something on a cord around a child's neck. And I'm just wondering if there's a mixed message here. At least I got that mixed message when I read it and it concerned me.

Commissioner Adler: Maybe I don't understand. That is the hazard, isn't it? In other words, this has two parts of warning about strings. The first sentence there says Don't place it near windows where cords from blinds or drapes my strangle the child. That's a separate hazard from this last one, so maybe I don't understand, but it seems to me that's precisely why you would put this warning in and add those words.

Celestine Kiss: I think maybe Commissioner Nord, for instance, the first statement of the window blinds. The window blinds cords really have nothing to do with the toddler bed. And this last statement, the string and cords have nothing to do with the toddler bed. They have to do with the fact that those strings and cords could get caught on part of the toddler bed.

Commissioner Nord: What I'm concerned about is what this seems to be saying is don't put the child down with the hoodie with a string around it, because the danger is that the string could get caught on the bed. What we have been warning people consistently about is that you shouldn't be using hood strings at all. You shouldn't put, it's not just dangerous in the bed. It's dangerous. And so by putting this qualifier here, you've highlighted what the danger is in the bed, but you indicate that is the danger and the danger is much broader. It just confused me a little bit as I read it.

Chairman Tenenbaum: But that is verbatim from the voluntary standard, except the last sentence. These items may catch on bed parts, and we added that.

Celestine Kiss: Right.

Chairman Tenenbaum: So, this is something that the industry came up with and they're two warnings.

Celestine Kiss: Right.

Chairman Tenenbaum: Entrapment and then strangulation.

Commissioner Adler: Now that I understand your point, maybe there ought to be some consideration of clarifying that.

Commissioner Northup: You could put something like it is in particular it's dangerous in a bed because it could catch on, or something that qualifies that it's always dangerous, but there is a special danger related to the bed.

Chairman Tenenbaum: I don't want to belabor the point here, but as I read it, my takeaway was perhaps not the one that you intend for consumers to have.

Celestine Kiss: We will try and finesse the words a little bit.

Chairman Tenenbaum: Okay. Are there any other questions, Commissioner Northup?

Commissioner Northup: I'd just like to ask about one of the other warnings on the previous, on 18. The first line, it seems to me like it implies that it's always dangerous when, in fact, I think that danger means that if it's not put together right, or openings between bed parts can entrap head and neck of small children. I don't know. It just sounds like that that risk always exists for a toddler, even if the instructions are followed, proper assembly and so forth. But it's really a warning that without proper assembly.

Celestine Kiss: Actually, the point is that the smaller sized child is at risk.

Commissioner Northup: Okay.

Celestine Kiss: The testing on the product is tested for the size of the recommended user, which is 15 months and older. So, the smaller ones, the 10 month old, has a better chance of getting entrapped because the measurements in the testing has done to a larger size.

Commissioner Northup: What would, well, it seems like it would make more sense to say never use the bed with children younger than 15 months, otherwise, openings in and between bed parts can entrap the child. I don't know. They don't seem to be related in the way they're written here. I realize that may be the industry standard, but when I read it, I don't think that the never use a bed with children younger than 15 months is associated as strongly with the first line of the warning.

Celestine Kiss: I think the first line is to get to that infants have died and they're not supposed to be on the bed. And when you just say infants, we may not know exactly what age we're talking about, so then the next line specifically relates to the standard is for 15 months and older. Tim Smith is here to answer.

Commissioner Northup: Well, personally, I mean, I think you could think of a two year old or a three year old as a small child. And that's why, I just, I think the danger for 15 months and under is clearly, from the statistics and from just reasonable thinking, is much stronger here and I would just want that associated with it.

Tim Smith: The primary intent of that was to address the cases in which an infant was being put in the bed, but also the, although the standard is designed based on a minimum age user of 15 months, you can still have children who are 15 months are maybe even a little bit older, who are very small, who still would be small enough that they could get entrapped. So, that's actually the reason why it specifically calls out small children as opposed to focusing on infants or on 15 months, because it was trying to encompass more than just the infants.

Chairman Tenenbaum: Are there any other questions? Alright. Thank you so much for that briefing and we will go forward with this in our next meeting and I'm sure there'll be some other questions in between time. But thank you so much. Alright, this concludes the meeting of the U.S. Consumer Product Safety Commission this morning. We thank you all for joining us and look forward to working with you.