[Federal Register Volume 67, Number 32 (Friday, February 15, 2002)]
[Proposed Rules]
[Pages 7104-7110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3195]


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FEDERAL TRADE COMMISSION

16 CFR Part 303


Rules and Regulations Under the Textile Fiber Products 
Identification Act

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Trade Commission (``Commission'') solicits 
comments on whether to amend Rule 7(c) of the Rules and Regulations 
Under the Textile Fiber Products Identification Act (``Textile 
Rules''), to establish a new generic fiber subclass name and definition 
as an alternative to the generic name ``polyester'' for a specifically 
proposed subclass of polyester fibers manufactured by E. I. du Pont de 
Nemours and Company (``DuPont''), of Wilmington, Delaware. DuPont 
suggested the name ``elasterell-p'' for the fiber, which it described 
as an inherently elastic, bicomponent textile fiber consisting of two 
substantially different forms of polyester fibers, and referred to as 
``T400.''

DATES: Comments will be accepted through April 19, 2002.

ADDRESSES: Comments should be submitted to: Office of the Secretary, 
Federal Trade Commission, Room 159, 600 Pennsylvania Ave., NW, 
Washington DC 20580. Comments should be identified as ``16 CFR part 
303--Textile Rule 8 DuPont Comment--P948404.''

FOR FURTHER INFORMATION CONTACT: Neil Blickman, Attorney, Division of 
Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 
Washington, DC 20580; (202) 326-3038.

SUPPLEMENTARY INFORMATION:

I. Background

    Rule 6 of the Textile Rules (16 CFR 303.6) requires manufacturers 
to use the generic names of the fibers contained in their textile 
products in making fiber content disclosures on labels, as required by 
the Textile Fiber Products Identification Act (``Textile Act''), 15 
U.S.C. 70b(b)(1). Rule 7 of the Textile Rules (16 CFR 303.7) sets forth 
the generic names and definitions that the Commission has established 
for synthetic fibers. Rule 8 (16 CFR 303.8) describes the procedures 
for establishing new generic names.
    DuPont applied to the Commission on February 5, 2001, for a new 
polyester fiber subclass name and definition, and supplemented its 
application with additional information and test data on March 18, 
2001, and August 23, 2001.\1\ DuPont stated that the T400 fiber is an 
inherently elastic, bicomponent, manufactured textile fiber consisting 
of two substantially different forms of polyester fibers. According to 
DuPont, T400 is distinguished from commercially available fibers by a 
significant and long-lived stretch and recovery characteristic fitting 
between conventional textured polyesters and spandex.
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    \1\ DuPont's petition and supplements thereto are on the 
rulemaking record of this proceeding. This material, as well as any 
comments filed in this proceeding, will be available for public 
inspection in accordance with the Freedom of Information Act, 5 
U.S.C. 552, and the Commission's Rules of Practice, 16 CFR 4.11, at 
the Consumer Response Center, Public Reference Section, Room 130, 
Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, 
DC. Any comments that are filed will be found under the Rules and 
Regulations Under the Textile Fiber Products Identification Act, 16 
CFR part 303, Matter No. P948404, ``DuPont Generic Fiber Petition 
Rulemaking.'' The comments also may be viewed on the Commission's 
website at www.ftc.gov.
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    As a result of T400's fiber structure, DuPont maintained that T400 
has the following distinctive properties: (1) Stretch and recovery 
power that is far superior to that of any textured fiber, including 
textured polyesters; (2) the superior stretch and recovery property 
does not degrade or ``sag'' over time with normal use and washings, 
compared to textured fibers, including polyesters; and (3) a softer 
``silkier'' feel or ``hand'' than textured polyester fibers. DuPont 
asserted that T400 will fill a growing and unmet consumer demand for 
stretch garments with fibers that can yield quality stretch and 
recovery without degrading over time like textured polyester fibers. 
DuPont contends that it would be confusing to consumers if T400 is 
called simply ``polyester.''
    DuPont, therefore, petitioned the Commission to establish the 
generic name ``elasterell-p'' as an alternative to, and a subclass of, 
``polyester.'' In addition, DuPont proposed that the Commission add the 
following sentence to the current definition of polyester in

[[Page 7105]]

Rule 7(c) to define T400 and similar fibers as a subclass of polyester:

    Where the fiber is a multicomponent and exhibits inherent (not 
mechanically induced) recoverable stretch of at least 35% upon 
loading with 185 mg/dtex and unloading to 5.4 mg/dtex when tested in 
accordance with ASTM test D6720, the term ``elasterell-p'' may be 
used as a generic description of the fiber.

The effect of DuPont's proposed amendment would be to allow use of the 
name ``elasterell-p'' as an alternative to the generic name 
``polyester'' for the subcategory of polyester fibers meeting the 
further criteria contained in the sentence added by the proposed 
amendment.
    After an initial analysis with the assistance of a textile expert, 
the Commission determined that DuPont's proposed new fiber technically 
falls within Rule 7(c)'s definition of ``polyester.''\2\ The Commission 
further determined that DuPont's application for a new subclass name 
and definition merits further consideration. Accordingly, on May 21, 
2001, the Commission announced that it had issued DuPont the 
designation ``DP 0002'' for temporary use in identifying T400 fiber 
pending a final determination on the merits of the application for a 
new generic fiber subclass name and definition. A final determination 
will be based on whether the record in this proceeding indicates that 
DuPont meets the Commission's criteria for issuing new fiber subclass 
names and definitions, as described in Part II, below.
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    \2\ Rule 7(c) defines ``polyester'' as ``[a] manufactured fiber 
in which the fiber-forming substance is any long chain synthetic 
polymer composed of at least 85% by weight of an ester of a 
substituted aromatic carboxylic acid, including but not restricted 
to substituted terephthalate units, [formula omitted] and para 
substituted hydroxy-benzoate units, [formula omitted].'' 16 CFR 
303.7(c).
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II. Invitation To Comment

    The Commission is soliciting comment on DuPont's application 
generally, and on whether the application meets the Commission's 
criteria for granting applications for new generic fiber subclass 
names.
    The Commission articulated standards for establishing a new generic 
fiber ``subclass'' in the proceeding to allow use of the name 
``lyocell'' as an alternative generic description for a specifically 
defined subcategory of ``rayon'' fiber, pursuant to 16 CFR 303.7(d). 
There, the Commission noted that:

    Where appropriate, in considering applications for new generic 
names for fibers that are of the same general chemical composition 
as those for which a generic name already has been established, 
rather than of a chemical composition that is radically different, 
but that have distinctive properties of importance to the general 
public as a result of a new method of manufacture or their 
substantially differentiated physical characteristics, such as their 
fiber structure, the Commission may allow such fiber to be 
designated in required information disclosures by either its generic 
name or, alternatively, by its ``subclass'' name. The Commission 
will consider this disposition when the distinctive feature or 
features of the subclass fiber make it suitable for uses for which 
other fibers under the established generic name would not be suited, 
or would be significantly less well suited.\3\

    \3\ 60 FR 62352, 62353 (Dec. 6, 1995).
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    Thus, a new generic fiber subclass may be appropriate in cases 
where the proposed subclass fiber: (1) Has the same general chemical 
composition as an established generic fiber category; (2) has 
distinctive properties of importance to the general public as a result 
of a new method of manufacture or substantially differentiated physical 
characteristics, such as fiber structure; and (3) the distinctive 
feature(s) make the fiber suitable for uses for which other fibers 
under the established generic name would not be suited, or would be 
significantly less well suited.\4\
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    \4\ The criteria for establishing a new generic subcategory are 
different from the criteria to establish a new generic category. The 
Commission's criteria for granting applications for new generic 
names are as follows: (1) The fiber for which a generic name is 
requested must have a chemical composition radically different from 
other fibers, and that distinctive chemical composition must result 
in distinctive physical properties of significance to the general 
public; (2) the fiber must be in active commercial use or such use 
must be immediately foreseen; and (3) the granting of the generic 
name must be of importance to the consuming public at large, rather 
than to a small group of knowledgeable professionals such as 
purchasing officers for large Government agencies. The Commission 
believes it is in the public interest to prevent the proliferation 
of generic names, and will adhere to a stringent application of 
these criteria in consideration of any future applications for 
generic names, and in a systematic review of any generic names 
previously granted that no longer meet these criteria. The 
Commission announced these criteria on Dec. 11, 1973, at 38 FR 
34112, and later clarified and reaffirmed them on Dec. 6, 1995, 60 
FR 62353, on may 23, 1997, 62 FR 28343, on Jan. 6, 1998, 63 FR 447 
and 63 FR 449, and on Nov. 17, 2000, 65 FR 69486.
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    Within the established 24 generic names for manufactured fibers, 
there are three cases where such generic name alternatives may be used: 
(1) Pursuant to Rule 7(d), 16 CFR 303.7(d), within the generic category 
``rayon,'' the term ``lyocell'' may be used as an alternative generic 
description for a specifically defined subcategory of rayon fiber; (2) 
pursuant to Rule 7(e), 16 CFR 303.7(e), within the generic category 
``acetate,'' the term ``triacetate'' may be used as an alternative 
generic description for a specifically defined subcategory of acetate 
fiber; and (3) pursuant to Rule 7(j), 16 CFR 303.7(j), within the 
generic category ``rubber,'' the term ``lastrile'' may be used as an 
alternative generic description for a specifically defined subcategory 
of rubber fiber.
    DuPont's application may describe a subclass of generic polyester 
fibers with distinctive features resulting from physical 
characteristics of the fiber and its method of manufacture, which meets 
the above standard for allowing designation by the subclass name 
``elasterell-p.'' Alternatively, T400 may fit within the current 
definition of polyester in Rule 7(c), with or without need for 
clarification. This notice, therefore, suggests three approaches to 
resolve the situation, and requests comment from the public on the 
relative merits of each:
    1. Amend Rule 7(c) to broaden its definition for polyester to 
better describe the allegedly unique molecular structure and physical 
characteristics of T400 and any similar fibers (without creating a new 
subclass for T400);
    2. Amend Rule 7(c)'s definition for polyester by creating a 
separate subclass name and definition for T400 and other similar 
qualifying fibers within the polyester category; or
    3. Deny DuPont's application because T400 fiber fits within Rule 
7(c)'s definition of polyester without need for any change.
    In today's notice, the Commission is soliciting comments on all 
aspects of the appropriateness of DuPont's proposed amendment to Rule 
7(c)'s definition of polyester. Although the Commission initially has 
determined that DuPont's new fiber technically falls within the 
existing Rule 7(c), 16 CFR 303.7(c), definition of ``polyester,'' the 
Commission believes it is in the public interest to solicit comments on 
whether it should amend Rule 7(c) by creating a subclass to recognize 
T400's characteristics or otherwise. Before deciding whether to amend 
Rule 7, the Commission will consider any comments submitted to the 
Secretary of the Commission within the above-mentioned comment period.

III. DuPont's Petition

A. T400 Fiber's Chemical Composition

    DuPont's petition and supplemental filings described in detail the 
T400 fiber. The following description is substantially verbatim:
    Although each of the two components of T400 has the same chemical 
composition as polyester, new technology has made it possible for

[[Page 7106]]

DuPont to combine in a bicomponent fiber structure, previously 
commercialized polyester with another new form of polyester that has 
not yet been commercialized in the United States. One of these 
individual components of the new fiber is different from current 
commercial forms of polyester by one methylene group. T400 also has a 
molecular structure that is radically different from other polyesters 
in that it has a substantially different degree of polymerization and 
associated properties. In addition, T400's fiber structure is different 
from other polyesters. This differentiated physical characteristic is a 
helical crimp resulting from the differential shrinkage of two 
different fibers spun as a bicomponent, and results in a level of 
inherent stretch and recovery uncharacteristic of any other polyester. 
The stretch and recovery is not physically induced and temporary like 
texturizing, but is inherent in the helical fiber structure, and the 
stretch recovery power is sustained over time.

B. T400's Distinctive Properties as a Result of a New Method of 
Manufacture or Substantially Differentiated Physical Characteristics, 
Such as Fiber Structure

    DuPont's petition detailed T400's distinctive physical properties. 
The following items are excerpted nearly verbatim from DuPont's 
petition and supplements.
    1. According to DuPont, the most notable characteristic (and of 
greatest importance to consumers) of T400 is its stretch and recovery 
power which is far superior to that of any textured fiber, including 
textured polyesters. This property is a direct result of the fiber 
structure of T400. DuPont has compared the stretch and recovery of 
several false twist textured fibers to T400. The range of recoverable 
stretch values for T400, which is well above 35%, reflects the fact 
that DuPont can vary the stretch and recovery of the fiber by adjusting 
the spinner conditions. The recoverable stretch values for the 
polyester fibers described as 2GT, 3GT, and 4GT are below 35%.

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[[Page 7107]]

[GRAPHIC] [TIFF OMITTED] TP15FE02.004

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[[Page 7108]]

    DuPont maintains that the ability of a yarn to recover effectively 
after being stretched is the key to producing quality stretch fabric. 
Air jet covered (AJC) spandex yarn (40d spandex with 150d polyester) 
having 9% by weight spandex was used as a yarn to benchmark recoverable 
stretch performance to provide quality stretch and recovery. 
Recoverable stretch measurements on a variety of yarns, including the 
AJC benchmark yarn, indicated 35% recoverable stretch as a minimum 
value for producing quality stretch fabrics. AJC spandex is accepted in 
the trade as the minimum recovery force product for creating quality 
stretch fabrics. DuPont compared the recoverable stretch of textured 
2GT, textured 4GT, T400 and AJC spandex (9% by weight spandex) fibers 
using ASTM D6720 and the stretch of fabrics woven from those yarns. 
Results are summarized in the table below.

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                                                                                                    AJC spandex
                      Yarn                              2GT             4GT            T400            (9%)
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Recoverable Stretch (%).........................              21              28              37              38
Woven Fabric Stretch (%)........................              10               9              23              21
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    According to DuPont, the data support the conclusions that a yarn 
having 35% recoverable stretch produces a high quality stretch fabric, 
while a yarn having a recoverable stretch of 28% does not produce a 
high quality stretch fabric. DuPont further opined, based on the 
research it has conducted, that 20% minimum fabric elongation (stretch) 
is required to insure garment comfort.
    2. DuPont further stated that an additional distinctive property of 
T400 is that its superior stretch and recovery does not degrade over 
time as compared to textured fibers, including polyesters. DuPont has 
conducted testing to demonstrate the degradation of stretch and 
recovery over time due to home laundering. In this test, fabric samples 
were washed in an automatic washer with 105 degree F (+/-5 degrees) 
water, detergent, and one cup of chlorine bleach, and dried at 155 to 
160 degrees F for the number of repetitions indicated.
    Similar knit samples of a Lycra spandex and nylon blend (identified 
as 2/70/34 AJC Nylon/20d 162B), a 15% T400 and combed cotton blend 
(identified as 1/150/34 T400) and a 15% textured 2GT polyester and 
combed cotton blend (identified as 1/150/68 FTT PET) were washed 
repeatedly and tested for stretch and recovery. A chart illustrating 
the data follows.
[GRAPHIC] [TIFF OMITTED] TP15FE02.005

    According to DuPont, the data show that the stretch and recovery 
resulting from the inherent stretch from fiber structure, as 
represented by the spandex and T400 samples, degrade substantially less 
than does mechanically induced texturizing in rigid fibers after 
repeated laundering. When the effect of the lower initial power of the 
textured fabric is considered, the fabric with T400, after 12 washings, 
still has approximately 100% of the power of the textured fabric when 
new. With the same number of washes, the textured fabric has less than 
45% of the power of the T400 fabric.
    The chart above displays the residual recovery force of three types 
of knitted fabrics after a series of washings. The initial power, or 
recovery force, of the three knits measured before they were washed was 
used as the reference for the data in the chart. This zero wash cycle 
value was measured as the unload force at 140% elongation on the third 
cycle. The zero wash cycle values are as follows:

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                                                                0 wash
                           Sample                              recovery
                                                              force (gm)
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1/150/34 T400..............................................           73
1/150/68 FTT PET...........................................           46
2/70/34 AJC Nylon/20d 162B.................................           96
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    3. The physical properties of T400, 4GT, 3GT, and 2GT polyester 
fibers are

[[Page 7109]]

summarized in the table below. DuPont explained that the uniqueness of 
T400 is derived from the natural helical coil imparted by the 
differential shrinkage of the two polymer components. This polymer 
choice, combined with spinning technology, offers the differential 
shrinkage of the two components.

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        Fiber properties                 T400                 4GT                 3GT                 2GT
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Recoverable Stretch.............  37%-68%...........  28%...............  27%...............  21%.
Stress/Strain...................  High Power,
                                   stretch.
Cross-Section...................  Bicomponent non-    Irregular,          Irregular,          Irregular,
                                   homogeneous mix     homogeneous         homogeneous         homogeneous
                                   of two different    polymer.            polymer.            polymer.
                                   polymers.
Crimp...........................  Consistent,         Irregular.........  Irregular.........  Irregular.
                                   regular, helical.
Torque..........................  Torque-free.......  Twist-lively......  Twist-lively......  Twist-lively.
Heat Set Temperature (F)........  320-350...........  360-370...........  320...............  350-370.
Dye Temperature (F).............  212-265...........  212...............  212...............  255-265.
Melting Point (F) measured by     444 and 484.......  439...............  446...............  487.
 DSC.
Glass Transition Temperature (F)  149...............  ..................  122...............  165.
 measured by DSC.
Tenacity (g/d)..................  3.8...............  2.7...............  2.6...............  4.3.
Initial Modulus (g/d)...........  40................  18.6..............  15................  48.
Extension @ Break (%)\5\........  27................  37................  41................  16.5.
Specific Gravity................  1.36..............  1.32..............  1.35..............  1.39.
Yarn Crimp Extension (%)\6\.....  275...............  233...............  246...............  213.
Yarn Set (%)\7\.................
2% Elongation...................  1.3...............  1.8...............  1.5...............  1.5.
5% Elongation...................  3.0...............  4.1...............  3.7...............  3.6.
10% Elongation..................  6.2...............  6.3...............  6.3...............  7.1.
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    4. Dupont maintains that T400's distinctive stretch and recovery 
properties are of importance to the general public. DuPont stated that 
it has conducted extensive consumer research to identify the 
characteristics that consumers want for their clothes and on the appeal 
of stretch fabrics.\8\ According to DuPont, globally, 74% of the 
population believe that stretch is not a fad, but is here to stay. 
DuPont contended that the appeal of stretch in garments is very high 
across age, sex and geographical boundaries. When men and women are 
asked to identify the value of the functional benefits of Lycra spandex 
in clothing, approximately 80% of men and women list the following: 
Comfort, freedom of movement, wrinkle/crease resistance, shape 
retention, fit, easy care. DuPont contends that consumers equate 
stretch with comfort, and that this is a distinctive property of 
importance to consumers.
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    \5\ Extension @ Break expresses extension after the 
``uncrimping'' or ``yarn crimp extension'' section of the force 
extension curves, as on page 4 of DuPont's first supplemental 
petition, has been removed.
    \6\ Yarn crimp extension is a measure of the ``uncrimping'' 
section of the force extension curve and was measured as follows: a 
5,000 denier skein was boiled off to fully develop yarn crimp. The 
yarn length with 2.5 gr force was recorded (L 2.5). The skein was 
cycled three times to 1030 gr (L 1030) approximating a load that 
fully extends the yarn to uncrimp it. The extension is measured as 
100% x (L 1030-L 2.5)/(L 2.5).
    \7\ Measured in accordance with ASTM D1774.
    \8\ Some of this research is documented in the brochure ``Lycra 
Brand Consumer Insights,'' attached as Exhibit 1 to DuPont's 
February 5, 2001 Petition.
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C. T400's Distinctive Feature(s) Allegedly Make the Fiber Suitable for 
Uses for Which Other Polyester Fibers Would Not Be Suited, or Would Be 
Significantly Less Well Suited

    DuPont asserted that T400 is suitable for uses for which polyester 
fibers are not suited, or not as well suited. DuPont's petition stated:

    T400 with inherent stretch will satisfy consumer demands for 
comfort, freedom of movement, shape retention and fit where textured 
fibers can not or can not as well. The difference will be noticeable 
to consumers with fabric stretch values 35-50% above [fabrics] made 
with textured yarns. T400 exhibits a much higher level of stretch 
than is possible with texturizing and, more significantly, it has 
recovery power that lasts. Inherent stretch built into the fiber 
structure does not degrade over time like the mechanical crimping of 
rigid polyester fibers. As a result, sweaters and sweatpants made 
with T400 will not sag like textured polyesters after normal use and 
numerous washings.

    DuPont retained Arbor, Inc. of Media, Pennsylvania to conduct a 
qualitative, blind fabric focus group study with 18 consumers for the 
purpose of obtaining consumer reactions to fabrics constructed of 
textured 4GT, T400 and Lycra (spandex) blends with cotton. DuPont 
stated that, according to these consumers, the characteristics of the 
T400 blend fabrics seem to more closely resemble the characteristics of 
fabrics made with Lycra spandex fibers than fabrics made with a 
polyester or polyester/cotton blend. The fabrics made with T400 and 
Lycra spandex were viewed to have more stretch. There were varying 
views on whether the fabrics with T400 or the ones with Lycra spandex 
had the most stretch, but both were viewed as having stretch. The 
polyester fabrics were viewed to have little, if any, stretch. 
According to DuPont, this subjective evidence supports the conclusion 
that textured polyesters are not suitable or not as suitable for 
imparting the stretch to garments that consumers expect, and that T400 
is a suitable stretch component.\9\
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    \9\ The executive summary of this study is included in DuPont's 
first supplemental petition dated March 18, 2001.
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    Finally, DuPont argued that granting the petition would facilitate 
the use of this fiber in consumer applications.\10\ It also stated that 
a new generic term (like elasterell-p) would help consumers identify 
products made from T400. Thus, DuPont maintained that a new generic 
fiber subclass name would be important to the public at large, not just 
knowledgeable professionals.
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    \10\ Addressing the extent to which its fiber has been put into 
active commercial use, DuPont stated in its petition that it 
expected production capacity of T400 to expand to several thousand 
tons by the end of 2001. DuPont also expects that products 
manufactured from T400 will be consumed primarily in the United 
States and Europe.
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IV. Regulatory Flexibility Act

    The provisions of the Regulatory Flexibility Act relating to an 
initial

[[Page 7110]]

regulatory analysis (5 U.S.C. 603-604) are not applicable to this 
proposal because the Commission believes that the amendment, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities. The Commission has tentatively 
reached this conclusion with respect to the proposed amendment because 
the amendment would impose no additional obligations, penalties or 
costs. The amendment simply would allow covered companies to use a new 
generic name for a new fiber that may not appropriately fit within 
current generic names and definitions. The amendment would impose no 
additional labeling requirements.
    To ensure that no substantial economic impact is being overlooked, 
however, the Commission requests public comment on the effect of the 
proposed amendment on costs, profits, and competitiveness of, and 
employment in, small entities. After receiving public comment, the 
Commission will decide whether preparation of a final regulatory 
flexibility analysis is warranted. Accordingly, based on available 
information, the Commission certifies, pursuant to the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), that the proposed amendment, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities.

V. Paperwork Reduction Act

    This proposed amendment does not constitute a ``collection of 
information'' under the Paperwork Reduction Act of 1995 (Pub. L. 104-
13, 109 Stat. 163) and its implementing regulations. (5 CFR 1320 et 
seq.) The collection of information imposed by the procedures for 
establishing generic names (16 CFR 303.8) has been submitted to OMB and 
has been assigned control number 3084-0101.

List of Subjects in 16 CFR Part 303

    Labeling, Textile, Trade practices.

    Authority: Sec. 7(c) of the Textile Fiber Products 
Identification Act (15 U.S.C. 70e(c)).

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 02-3195 Filed 2-14-02; 8:45 am]
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