[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42697-42699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21387]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1610


Policy Statement--Reasonable and Representative Testing To Assure 
Compliance With The Standard for the Flammability of Clothing Textiles

AGENCY: Consumer Product Safety Commission.

ACTION: Interpretation and policy statement; final rule.

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SUMMARY: The U.S. Consumer Product Safety Commission (CPSC) issues this 
guidance to notify manufacturers, importers, distributors, and 
retailers of fabric and garments of factors that the Commission 
considers in deciding whether to seek civil penalties for violations of 
the Standard for the Flammability of Clothing Textiles (General Wearing 
Apparel), 16 CFR part 1610.

DATES: Effective August 11, 1998.

FOR FURTHER INFORMATION CONTACT: Marilyn Borsari, Compliance Officer, 
Office of Compliance, Consumer Product Safety Commission, Washington, 
DC 20207; telephone (301) 504-0608, extension, 1370 or e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Introduction

    The U.S. Consumer Product Safety Commission (CPSC) issues the 
following policy statement to provide guidance to manufacturers, 
importers, distributors, and retailers of factors the Commission 
considers in deciding whether to seek civil penalties for violations of 
the Standard for the Flammability of Clothing Textiles (General Wearing 
Apparel). CPSC adds this policy statement as Section 1610.62 of Subpart 
C of Part 1610, Chapter II, Title 16, Code of Federal Regulations. 
Since this document is interpretative and a general statement of 
policy, it is exempt from the requirement of 5 U.S.C. 553(b) for a 
general notice of proposed rulemaking and from the requirement of 5 
U.S.C. 553(c) for an opportunity for public comments. It is also exempt 
from the requirement of 5 U.S.C. 553(d) for a 30-day delay in the 
effective date of the policy. Accordingly, the policy will become 
effective August 11, 1998.

Applicable Executive Orders and Statutes

    This policy has been evaluated for federalism implications in 
accordance with Executive Order No. 12,612, and the policy raises no 
substantial federalism concerns.
    The policy has also been evaluated under Executive Order No. 
12,898, and it does not have any of the exclusionary effects specified 
in that order.
    The policy also has been evaluated under Executive Order No. 
12,988. The policy is not a ``flammability standard or other regulation 
for a fabric, related material, or product'' that would have a 
preemptive effect under 15 U.S.C. 1203.
    The policy is not expected to have any environmental effects. 
Therefore, an environmental assessment is not required.
    The policy is not a ``covered regulatory action'' as that term is 
defined in Executive Order No. 13,045.
    This policy is not a ``rule'' as defined in 5 U.S.C. 804(3). 
Accordingly, 5 U.S.C. 801-808 does not require a report to Congress.

List of Subjects in 16 CFR Part 1610

    Clothing, Consumer protection, Flammable materials, Reporting and 
recordkeeping requirements, Textiles, Warranties.

    For the reasons set forth in the preamble, the CPSC amends 16 CFR 
part 1610 as follows:

PART 1610--STANDARD FOR THE FLAMMABILITY OF CLOTHING TEXTILES

    1. The authority citation for part 1610 is amended to read as 
follows:

    Authority: 16 U.S.C. 1191-1204.

    2. Add Sec. 1610.62 to read as follows:


Sec. 1610.62  Reasonable and representative testing to assure 
compliance with the standard for the clothing textiles.

    (a) Background. (1) The CPSC administers the Flammable Fabrics Act 
(FFA), 15 U.S.C. 1191-1204. Under the FFA, among other things, the 
Commission enforces the Flammability Standard for Clothing Textiles 
(the ``general wearing apparel standard''), 16 CFR Part 1610. That 
standard establishes requirements for the flammability of clothing and 
textiles

[[Page 42698]]

intended to be used for clothing (hereinafter ``textiles'').
    (2) The general wearing apparel standard applies both to fabrics 
and finished garments. The standard provides methods of testing the 
flammability of textiles, and sets forth the requirements that textiles 
must meet to be classified into one of three classes of flammability 
(classes 1, 2 and 3). 16 CFR 1610.2. Class 1 textiles, those that 
exhibit normal flammability, are acceptable for use in clothing. 16 CFR 
1610.3(a)(1). Class 2 textiles, applicable only to raised fiber 
surfaces, are considered to be of intermediate flammability, but may be 
used in clothing. 16 CFR 1610.3(a)(2). Finally, class 3 textiles, those 
that exhibit rapid and intense burning, are dangerously flammable and 
may not be used in clothing. 16 CFR 1610.3(a)(3). The manufacture for 
sale, offering for sale, importation into the U.S., and introduction or 
delivery for introduction of Class 3 articles of wearing apparel are 
among the acts prohibited by section 3(a) of the FFA, 15 U.S.C. 
1192(a).
    (3) CPSC currently uses retail surveillance, attends appropriate 
trade shows, follows up on reports of noncompliance and previous 
violations, and works with U.S. Customs in an effort to find textiles 
that violate CPSC's standards. The Commission has a number of 
enforcement options to address prohibited acts. These include bringing 
seizure actions in federal district court against violative textiles, 
seeking an order through an administrative proceeding that a firm cease 
and desist from selling violative garments, pursuing criminal 
penalties, or seeking the imposition of civil penalties for ``knowing'' 
violations of the FFA. Of particular relevance to the latter two 
remedies are whether reasonable and representative tests were performed 
demonstrating that a textile or garment meets the flammability 
standards for general wearing apparel. Persons who willfully violate 
flammability standards are subject to criminal penalties.
    (4) Section 8(a) of the FFA, 15 U.S.C. 1197(a), exempts a firm from 
the imposition of criminal penalties if the firm establishes that a 
guaranty was received in good faith signed by and containing the name 
and address of the person who manufactured the guarantied wearing 
apparel or textiles or from whom the apparel or textiles were received. 
A guaranty issued by a person who is not a resident of the United 
States may not be relied upon as a bar to prosecution. 16 CFR 1608.4. 
The guaranty must be based on the exempted types of fabrics or on 
reasonable and representative tests showing that the fabric covered by 
the guaranty or used in the wearing apparel covered by the guaranty is 
not so highly flammable as to be dangerous when worn by individuals, 
i.e., is not a class 3 material.\1\ Under 16 CFR 1610.37, a person, to 
issue a guaranty, should first evaluate the type of fabric to determine 
if it meets testing exemptions (16 CFR 1610.37(d)); \2\ if not, the 
person issuing the guaranty must devise and implement a program of 
reasonable and representative tests to support the guaranty. The number 
of tests and frequency of testing is left to the discretion of that 
person, but at least one test is required.
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    \1\ The person proffering a guaranty to the Commission must also 
not, by further processing, have affected the flammability of the 
fabric, related material or product covered by the guaranty that was 
received.
    \2\ Some textiles never exhibit unusual burning characteristics 
and need not be tested. 16 CFR 1610.37(d). Such textiles include 
plain surface fabrics, regardless of fiber content, weighing 2.6 oz. 
or more per sq. yd., and plain and raised surface fabrics made of 
acrylic, modacrylic, nylon, olefin, polyester, wool, or any 
combination of these fibers, regardless of weight.
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    (5) In determining whether a firm has committed a ``knowing'' 
violation of a flammability standard that warrants imposition of a 
civil penalty, the CPSC considers whether the firm had actual knowledge 
that its products violated the flammability requirements. The CPSC also 
considers whether the firm should be presumed to have the knowledge 
that would be possessed by a reasonable person acting in the 
circumstances, including knowledge that would have been obtainable upon 
the exercise of due care to ascertain the truth of representations. 15 
U.S.C. 1194(e). The existence of results of flammability testing based 
on a reasonable and representative program and, in the case of tests 
performed by another entity (such as a guarantor), the steps, if any, 
that the firm took to verify the existence and reliability of such 
tests, bear directly on whether the firm acted reasonably in the 
circumstances.
    (b) Applicability. (1) When tested for flammability, a small number 
of textile products exhibit variability in the test results; that is, 
even though they may exhibit class 1 or class 2 burning characteristics 
in one test, a third test may result in a class 3 failure. Violative 
products that the Commission has discovered since 1994 include sheer 
100% rayon skirts and scarves; sheer 100% silk scarves; 100% rayon 
chenille sweaters; rayon/nylon chenille and long hair sweaters; 
polyester/cotton and 100% cotton fleece/sherpa garments, and 100% 
cotton terry cloth robes. Since August 1994, there have been 21 recalls 
of such dangerously flammable clothing, and six retailers have paid 
civil penalties to settle Commission staff allegations that they 
knowingly sold garments that violated the general wearing apparel 
standard.
    (2) The violations and resulting recalls and civil penalties 
demonstrate the critical necessity for manufacturers, distributors, 
importers, and retailers to evaluate, prior to sale, the flammability 
of garments made from the materials described above, or to seek 
appropriate guaranties that assure that the garments comply. Because of 
the likelihood of variable flammability in the small group of textiles 
identified above, one test is insufficient to assure reasonably that 
these products comply with the flammability standards. Rather, a person 
seeking to evaluate garments made of such materials should assure that 
the program tests a sufficient number of samples to provide adequate 
assurance that such textile products comply with the general wearing 
apparel standard. The number of samples to be tested, and the 
corresponding degree of confidence that products tested will comply, 
are to be specified by the individual designing the test program. 
However, in assessing the reasonableness of a test program, the 
Commission staff will specifically consider the degree of confidence 
that the program provides.
    (c) Suggestions. The following are some suggestions to assist in 
complying with the general wearing apparel standard:
    (1) Purchase fabrics or garments that meet testing exemptions 
listed in 16 CFR 1610.37(d). (If buyers or other personnel do not have 
skills to determine if the fabric is exempted, hire a textile 
consultant or a test lab for an evaluation.)
    (2) For fabrics that are not exempt, conduct reasonable and 
representative testing before cutting and sewing, using standard 
operating characteristic curves for acceptance sampling to determine a 
sufficient number of tests.
    (3) Purchase fabrics or garments that have been guarantied and/or 
tested by the supplier using a reasonable and representative test 
program that uses standard operating characteristic curves for 
acceptance sampling to determine a sufficient number of tests. Firms 
should also receive and maintain a copy of the guaranty.
    (4) Periodically verify that your suppliers are actually conducting 
appropriate testing.


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    Dated: August 5, 1998.
Sadye Dunn,
Secretary to the Commission.
[FR Doc. 98-21387 Filed 8-10-98; 8:45 am]
BILLING CODE 6355-01-P