[Federal Register Volume 76, Number 138 (Tuesday, July 19, 2011)]
[Rules and Regulations]
[Pages 42502-42508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17961]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1120


Substantial Product Hazard List: Children's Upper Outerwear in 
Sizes 2T to 12 With Neck or Hood Drawstrings and Children's Upper 
Outerwear in Sizes 2T to 16 With Certain Waist or Bottom Drawstrings

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Improvement Act of 2008 
(``CPSIA''), authorizes the U.S. Consumer Product Safety Commission 
(``Commission,'' ``CPSC,'' or ``we'') to specify, by rule, for any 
consumer product or class of consumer products, characteristics whose 
existence or absence shall be deemed a substantial product hazard under 
certain circumstances. We are issuing a final rule to determine that 
children's upper outerwear garments in sizes 2T to 12 or the 
equivalent, which have neck or hood drawstrings, and in sizes 2T to 16 
or the equivalent, which have waist or bottom drawstrings that do not 
meet specified criteria, present substantial product hazards.

DATES: The rule takes effect August 18, 2011. The incorporation by 
reference of the publication listed in this rule is approved by the 
Director of the Federal Register as of August 18, 2011.

FOR FURTHER INFORMATION CONTACT: Tanya Topka, Office of Compliance and 
Field Operations, U.S. Consumer Product Safety Commission, 4330 East 
West Highway, Bethesda, MD 20814; telephone (301) 504-7594, 
[email protected].

SUPPLEMENTARY INFORMATION:

A. Background and Statutory Authority

    The Consumer Product Safety Improvement Act of 2008 (``CPSIA'') was 
enacted on August 14, 2008. Public Law 110-314, 122 Stat. 3016 (August 
14, 2008). The CPSIA amends statutes that the Commission administers 
and adds certain new requirements.
    Section 223 of the CPSIA expands section 15 of the Consumer Product 
Safety Act (``CPSA'') to add a new subsection (j). That subsection 
delegates authority to the Commission to specify by rule, for a 
consumer product or class of consumer products, characteristics whose 
presence or absence the Commission considers a substantial product 
hazard. To issue such a rule, the Commission must determine that those 
characteristics are readily observable and have been addressed by an 
applicable voluntary standard. The Commission also must find that the 
standard has been effective in reducing the risk of injury and that 
there has been substantial compliance with it. 15 U.S.C. 2064(j).
    Drawstrings in children's upper outerwear can present a hazard if 
they become entangled with other objects. Drawstrings in the neck and 
hood areas of children's upper outerwear present a strangulation hazard 
when the drawstring becomes caught in objects, such as playground 
slides. Drawstrings in the waist or bottom areas of children's upper 
outerwear can catch in the doors or other parts of a motor vehicle, 
thereby presenting a ``dragging'' hazard when the operator of the 
vehicle drives off without realizing that someone is attached to the 
vehicle by the drawstring. The injury data associated with drawstrings 
is discussed below in section C of this preamble.
    In 1994, at the urging of the CPSC, a number of manufacturers and 
retailers agreed to modify or eliminate drawstrings from hoods and 
necks of children's clothing. In 1997, the American Society for Testing 
and Materials (now ASTM International) addressed the hazards presented 
by drawstrings on upper outerwear by creating a voluntary consensus 
standard, ASTM F 1816-97, Standard Safety Specification for Drawstrings 
on Children's Upper Outerwear, to prohibit drawstrings around the hood 
and neck area of children's upper outerwear in sizes 2T to 12, and also 
to limit the length of drawstrings around the waist and bottom of 
children's upper outerwear in sizes 2T to 16 to 3 inches outside the 
drawstring channel when the garment is expanded to its fullest width. 
For waist and bottom drawstrings in upper outerwear sizes 2T to 16, the 
Standard prohibited toggles, knots, and other attachments at the free 
ends of drawstrings. The Standard further required that waist and 
bottom drawstrings in upper outerwear sizes 2T to 16 that are one 
continuous string be bartacked (i.e., stitched through to prevent the 
drawstring from being pulled through its channel).
    We have estimated that the age range of children likely to wear 
garments in sizes 2T to 12 is 18 months to 10 years. The age range of 
children likely to wear garments in sizes 2T to 16 is 18 months to 14 
years.
    On July 12, 1994, we announced a cooperative effort with a number 
of manufacturers and retailers who agreed to eliminate or modify 
drawstrings on the hoods and necks of children's clothing.
    In February 1996, we issued guidelines for consumers, 
manufacturers, and retailers that incorporated the requirements that 
became ASTM F 1816-97.
    On May 12, 2006, the CPSC's Office of Compliance posted a letter on 
CPSC's website to the manufacturers, importers, and retailers of 
children's upper outerwear, citing the fatalities that had occurred and 
urging compliance with the industry standard, ASTM F 1816-97. The 
letter explained that we consider children's upper outerwear with 
drawstrings at the hood or neck area to be defective and to present a 
substantial risk of injury under section 15(c) of the Federal Hazardous 
Substances Act (FHSA), 15 U.S.C. 1274(c).
    The 2006 letter also indicated that we would seek civil penalties 
if a manufacturer, importer, distributor, or retailer distributed 
noncomplying children's upper outerwear in commerce and/or failed to 
report that fact to the Commission as required by section 15(b) of the 
CPSA, 15 U.S.C. 2064(b). From 2006 through 2010, we participated in 115 
recalls of noncomplying products with drawstrings and obtained a number 
of civil penalties based on the failure of firms to report the 
defective products to CPSC, as required by section 15(b) of the CPSA.
    On May 17, 2010, we published a proposed rule (75 FR 27497) that 
would deem children's upper outerwear garments in sizes 2T to 12, or 
the equivalent that have neck or hood drawstrings, and in sizes 2T to 
16 or the equivalent that have waist or bottom drawstrings that do not 
meet specified criteria, substantial product hazards. We received seven 
comments in response to the proposed rule. We describe and respond to 
the comments in section E of this preamble.

B. Readily Observable Characteristics That Have Been Addressed by a 
Voluntary Standard

    As mentioned in section A of this preamble, ASTM F 1816-97 
addresses upper outerwear garments in sizes 2T to 12 that have neck or 
hood drawstrings, and in sizes 2T to 16 that have waist or bottom 
drawstrings that do not meet specified criteria. All of the 
requirements of the ASTM voluntary standard can be evaluated with 
simple physical manipulations of the garment,

[[Page 42503]]

simple measurements of portions of the garments, and unimpeded visual 
observation. Thus, the product characteristics defined by the voluntary 
standard are readily observable.

C. The Voluntary Standard Has Been Successful in Reducing the Risk of 
Injury

a. Hood and Neck Drawstring Incidents

    We examined reports of fatalities and injuries for the age groups 
whose upper outerwear is subject to the voluntary standard. We are 
aware of 56 reports of neck/hood drawstring entanglements occurring 
between January 1985 and April 2011. Eighteen (32%) of these 
entanglements were fatal. The majority of the entanglements involved 
the neck/hood drawstrings snagging on slides. Neck/hood drawstrings 
also became entangled on parts of cribs in several incidents. Of the 38 
nonfatal incidents involving children between the ages of 18 months and 
10 years, 30 incidents resulted in injuries. In the remaining eight 
incidents, the neck/hood drawstring snagged or entangled the child, but 
no injury was reported. The year with the highest number of reported 
fatalities--three--is 1994. The three years with the highest number of 
reported incidents (including fatal and nonfatal incidents) were 1992 
(11), 1993 (9), and 1994 (9). Slides were associated with 10 of the 
fatalities, 26 of the injury incidents, and all 8 of the noninjury 
incidents (the jackets or sweatshirts snagged by the hood or neck 
drawstring on playground slides prior to escape or rescue).
    The Standard for drawstrings on children's upper outerwear, ASTM F 
1816-97, was approved in June 1997, and published in August 1998. We 
are aware of 12 fatalities and 33 nonfatal incidents involving children 
ages 18 months to 10 years of age, who were entangled by a neck/hood 
drawstring of upper outerwear during the 12 years (1985-1996) prior to 
the Standard. On average, this results in one reported fatality and 
about three nonfatal incidents a year. In the eight years (1999-2006) 
for which reporting is complete after ASTM F 1816-97 was published, we 
received reports of two fatal and two nonfatal neck/hood drawstring 
incidents. On average, this is approximately one fatality every four 
years and about one nonfatal entanglement every four years. For the 
years for which reporting is complete, the data show a reduction in the 
annual average number of reported fatalities after the ASTM standard of 
approximately 75 percent. The corresponding reduction in the annual 
average number of reported nonfatal entrapments is 91 percent. It 
should be noted that we are continuing to receive incident reports for 
the years 2007-2010. We are aware of three fatalities between 2007-
2010. No fatalities have been reported to date for 2011. When reporting 
2010 is considered complete, the percent reduction in the annual 
average number of reported fatalities associated with neck/hood 
drawstrings, at most, will be 58 percent, if no additional fatal 
incidents are reported.

b. Reported Incidents Associated With Waist/Bottom Drawstring 
Entanglements

    Between January 1985 and April 2011, we received 28 reports of 
entanglement incidents associated with a waist/bottom drawstring on 
children's upper outerwear. Of these 28 incidents, 8 (29%) were fatal; 
11 (39%) resulted in injuries; and 9 (32%) constituted snags or 
entanglements that did not result in injuries. No waist/bottom 
drawstring incidents were reported to us before 1991. All eight 
fatalities (7 involving a bus, 1 involving a slide) associated with 
waist/bottom drawstrings occurred between 1991 and 1996. During 1991 to 
1996, there were a total of 19 waist/bottom drawstring incidents, of 
which 13 involved buses (7 bus fatalities and 6 nonfatal bus 
incidents). We are not aware of any bus-related drawstring incidents 
after the year 1996. There were nine waist/bottom drawstring incidents 
from 1997 to the present (all nonfatal), of which three involved 
children whose waist/bottom drawstring caught on car doors.
    All of the reported fatalities associated with waist/bottom 
drawstrings on children's upper outerwear occurred prior to the 
approval and publication of ASTM F 1816-97. For years in which 
reporting is considered complete, the number of reported fatalities 
associated with waist and bottom drawstrings have fallen from the eight 
reported fatalities between 1985 and 1996 to zero since adoption of the 
ASTM voluntary standard in 1997. For corresponding periods for which 
reporting is complete (1985 through 1996 and 1999 through 2006), 
reported nonfatal injuries fell from 11 in 12 years to 6 in 8 years. 
These data suggest that after the ASTM standard was adopted, for waist 
and bottom drawstrings the annual average of reported fatalities fell 
by 100 percent and the annual average of reported nonfatal incidents 
fell by about 18 percent. Reporting is ongoing for 2007-2011. CPSC 
staff is not aware of any reported fatalities for this time. Staff has 
two reports of non-fatal incidents occurring between 2007-2011. These 
numbers may change in the future.

D. Substantial Compliance

    There is no statutory definition of ``substantial compliance'' in 
either the CPSIA or the CPSA. Legislative history of the CPSA provision 
that is related to issuance of consumer product safety standards 
indicates that substantial compliance should be measured by reference 
to the number of complying products, rather than the number of 
manufacturers of products complying with the standard. H.R. Rep. No. 
208, 97th Cong., 1st Sess. 871 (1981). Legislative history of this CPSA 
rulemaking provision also indicates that there is substantial 
compliance when the unreasonable risk of injury associated with a 
product will be eliminated or adequately reduced ``in a timely 
fashion.'' Id. The Random House Dictionary of the English Language 
defines ``substantial'' as ``of ample or considerable amount, quantity, 
size, etc.'' Thus ``substantial'' refers to an amount less than ``all'' 
or ``total.'' The Commission has not taken the position that there is 
any particular percentage that constitutes substantial compliance. 
Rather than any bright line, the Commission has indicated in the 
rulemaking context that the determination needs to be made on a case-
by-case basis.
    Table 1 shows information about the CPSC recalls involving 
drawstrings on children's upper outerwear for the years 2006-2010. The 
number of compliance cases related to recalls of children's upper 
outerwear garments with drawstrings numbered 115 for that period, 
involving about 2.5 million units.
    The number of recalls in 2008, 2009, and 2010 was more than the 
number of recalls in 2006 and 2007, with the number of recalls in 2010 
representing the largest of those five years; however, fewer units of 
children's outerwear garments were recalled in 2010, than in 2006, 
2007, and 2009.

[[Page 42504]]



  Table 1--CPSC Office of Compliance Recalls Drawstrings on Children's
                             Upper Outerwear
                               [2006-2010]
------------------------------------------------------------------------
                                                             Number of
                                             Number of    units of upper
                  Year                     recall cases      outerwear
                                                             recalled
------------------------------------------------------------------------
2006....................................              17         676,597
2007....................................              14         626,172
2008....................................              24         227,868
2009....................................              23         526,193
2010....................................              37         431,145
                                         -------------------------------
    Total...............................             115       2,487,975
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Source: Communication from CPSC Office of Compliance, March 18, 2010,
  and May 2, 2011.

    In response to a comment to the proposed rule regarding whether 
ties are included in the definition of drawstring (discussed in more 
detail in section E of this preamble), staff reviewed the recall data 
to determine how many recall cases involved ties. For the 2006-2010 
time period, there were six recalls (occurring in 2009 and 2010) of 
children's upper outerwear that involved ties, accounting for 135,406 
units.
    Using population data, garment sizing information, and assumptions 
about purchase and use, one can calculate the number of units recalled 
as a proportion of sales. This calculation provides a rough estimate of 
the extent of compliance with the voluntary standard.
    As explained in the preamble to the proposed rule (75 FR at 27498) 
and in section A of this preamble, the voluntary standard applies to 
sizes 2T to 12 for neck and hood drawstrings and sizes 2T to 16 for 
drawstrings at the waist and bottom of upper outerwear. Information 
available to us indicates that a child's age generally matches the 
child's clothing size or is a year or two below the clothing size. For 
example, a child 12 years old might wear a size 12 or a size 14 
garment. Similarly, for smaller sizes, children who are as young as 18 
months might wear size 2T clothing. Thus, the ages of children wearing 
size 2T to 12 (the sizes covered by the voluntary standard for upper 
outerwear with hood or neck drawstrings) would be 18 months to 10 
years. The age range of children who typically wear sizes 2T to 16 (the 
sizes covered by the voluntary standard for upper outerwear with waist 
or bottom drawstrings) would be 18 months to 14 years.
    For each of the years 2006 through 2010, the population of children 
ages 18 months to 10 years old (those wearing sizes 2T to 12, as noted 
above) was about 39 million. The population of children ages 18 months 
to 14 years old (those wearing sizes 2T to 16, as noted above) was 
about 55 million.\1\
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    \1\ For the years 2006 through 2009, this number is based on 
Bureau of the Census, U.S. Department of Commerce data, which can be 
found in ``Table 1. Annual Estimates of the Resident Population by 
Sex and Five-Year Age Groups for the United States: April 1, 2000 to 
July 1, 2009'' at http://www.census.gov/popest/national/asrh/NC-EST2009/NC-EST2009-01.xls. For 2010, the number is based on Bureau 
of the Census, U.S. Department of Commerce data found in ``Table 1. 
Population by Age and Sex: 2010'' at http://www.census.gov/population/www/socdemo/age/age_sex_2010.html.
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    No numerical data about recent annual sales of children's upper 
outerwear is available. However, given children's growth patterns, it 
may be that, on average, at least one new piece of upper outerwear is 
purchased each year for each child. If so, then sales of upper 
outerwear with neck and hood drawstrings or with waist and bottom 
drawstrings could total the population of children who wear children's 
sizes 2T to 16, or approximately 55 million units.
    Assuming that: (1) All garments violating the drawstring voluntary 
standard were recalled in the years 2006 through 2010; (2) at least one 
new piece of upper outerwear, on average, is purchased for each child 
each year; and (3) annual unit sales of upper outerwear with neck or 
hood drawstrings totaled 55 million, then it would appear that the 
number of children's upper outerwear garments that complied with the 
drawstring requirements of ASTM F 1816-97 was in the very high 90 
percent range. While the number of recalled units in the years 2006 
through 2010 totaled about 2.5 million, the number of units sold during 
those five years, under the assumptions above, totaled 275 million. 
Thus, for the period 2006 through 2010, the units recalled by the CPSC 
(with ties included or excluded) would account for about 1 percent of 
all units sold; in other words, given the assumptions above, there was 
about 99 percent compliance with the voluntary standard. Even if these 
assumptions are not entirely accurate, the Commission concludes that 
compliance with ASTM F 1816-97 is very high and constitutes substantial 
compliance, as that term is used in section 15(j) of the CPSA. This 
determination extends to ties.

E. Comments on the Proposed Rule and CPSC's Responses

    In the Federal Register of May 17, 2010 (75 FR 27497), we published 
a proposed rule that would specify that children's upper outerwear 
garments in sizes 2T to 12 or the equivalent that have neck or hood 
drawstrings, and in sizes 2T to 16 or the equivalent that have waist or 
bottom drawstrings that do not meet specified criteria, have 
characteristics that constitute substantial product hazards. We 
received seven comments on the proposed rule. We summarize and respond 
to the issues raised by those comments here. To make it easier to 
identify the comments and our responses, the word ``Comment,'' in 
parentheses, will appear before the comment's description, and the word 
``Response,'' in parentheses, will appear before our response. We also 
numbered each comment to help distinguish between different comments. 
The number assigned to each comment is purely for organizational 
purposes and does not signify the comment's value, or importance, or 
the order in which it was received.

1. Request for a Mandatory Ban

    (Comment 1)--One commenter characterized the proposed rule as an 
``effort to urge voluntary compliance with the garment industry'' and 
asked that we ``institute an outright mandatory ban on the types of 
drawstring garments [the Commission] describe[s] in [the] proposed 
rule'' instead.
    (Response 1)--The commenter's characterization of the rule as an 
effort to urge ``voluntary compliance'' from the garment industry is 
misplaced. Section 15(j) of the CPSA, 15 U.S.C.

[[Page 42505]]

2064(j), authorizes the Commission to deem characteristics of any 
consumer product or class of consumer products to be a substantial 
product hazard under section 15(a)(2) of the CPSA, if we determine 
that: (A) Such characteristics are readily observable and have been 
addressed by voluntary standards; and (B) such voluntary standards have 
been effective in reducing the risk of injury from the consumer 
product(s) and that there is substantial compliance with such 
standards. A product that is or has a substantial product hazard is 
subject to the reporting requirements of section 15(b) of the CPSA. 15 
U.S.C. 2064(b). A manufacturer who fails to report a substantial 
product hazard to the Commission is subject to civil penalties under 
section 20 of the CPSA and possibly to criminal penalties under section 
21 of the CPSA. Id. Sec. Sec.  2069 and 2070.
    A product that is or contains a substantial product hazard is also 
subject to corrective action under section 15(c) and (d) of the CPSA. 
Id. Sec.  2064(c) and (d). Thus, we can order the manufacturer, 
distributor, or retailer of the product to offer to repair or replace 
the product, or refund the purchase price to the consumer. Finally, a 
product that is offered for import into the United States and is or 
contains a substantial product hazard shall be refused admission into 
the United States under section 17(a) of the CPSA. Id. Sec.  2066(a).

2. Range of Sizes Covered by the Standard

    (Comment 2)--One commenter recommended that the rule should cover 
sizes smaller than 2T and should prohibit drawstrings in pants as well 
as upper outerwear.
    (Response 2)--Both recommendations are outside the scope of this 
rulemaking. The voluntary standard applicable to drawstrings does not 
cover sizes smaller than 2T and does not apply to drawstrings in pants. 
Section 15(j) of the CPSA only allows a determination of a substantial 
product hazard for product characteristics that have been addressed by 
voluntary standards with which there is substantial compliance. 
Therefore, we cannot adopt the commenter's recommendations. If 
information becomes available showing that such action is needed, then 
we could consider whether we could make the findings to issue a 
standard or ban drawstrings in sizes smaller than 2T or in pants, or to 
support industry in the implementation of a voluntary standard 
addressing these issues.

3. Age of Children at Risk

    (Comment 3)--Two commenters stated that product safety standards 
should refer to the ages of the children at risk and not to the sizes 
of the garments.
    (Response 3)--This suggestion is outside the scope of this 
rulemaking. Only those characteristics of a product that have been 
addressed by a voluntary standard may be deemed to be a substantial 
product hazard in a rule made under section 15(j) of the CPSA. The 
applicable voluntary standard for drawstrings in children's upper 
outerwear, ASTM F 1816-97, addresses garment sizes but not children's 
ages. Therefore, the Commission cannot take the action requested in 
this rulemaking.
    However, the preamble to the proposed rule (75 FR at 27501 through 
27502) discussed what the corresponding ages are--namely, that size 2T 
would be worn by children about 18 months of age; size 12 would be worn 
by children about 10 years of age; and size 16 would be worn by 
children about 14 years of age. Furthermore, although the voluntary 
standard on which the proposed rule is based (ASTM F 1816-97) refers to 
children's clothing sizes only, it also references age in the Rationale 
(Appendix, section X1). That section reports the ages of the victims in 
incidents involving hood and neck drawstrings (14 months to 8 years) 
and incidents involving waist and bottom drawstrings (7 years to 14 
years). The CPSC Directorate for Epidemiology staff's review of the 
data on related incidents shows that little has changed with regard to 
age since the Standard was developed. Those incidents associated with 
neck drawstrings involved children 10 years old and younger. Incidents 
associated with waist or bottom drawstrings involved children 14 years 
old and younger. The ages reported in the incident data correlate well 
with information from retailer size charts, anthropometric body 
measurement data, and standard tables of body measurements developed by 
ASTM. These sources show that the age range of children likely to wear 
garments in sizes 2T to 12 is 18 months to 10 years, and the age range 
of children likely to wear garments sizes 2T to 16 is 18 months to 14 
years. These are the ages the Standard is intended to cover because 
children of those ages are most at risk.

4. Adult Apparel and Marketing Concerns

    (Comment 4)--Two commenters also requested ``that CPSC clearly 
state that adult apparel, marketed to adults, or merchandised in adult 
departments will not be subject to this rule.'' These commenters stated 
that ``adult apparel sized small or extra small could easily pass for a 
larger sized child's garment. * * * [a] generic adult's sized extra 
small hooded sweatshirt could easily be mistaken as a children's 
garment.''
    (Response 4)--We agree that garments intended for adults and 
marketed to adults only would not be subject to the rule because they 
are not children's garments. We do not believe, however, that 
consideration of the manufacturer's intended wearer should supersede 
consideration of the actual or reasonably foreseeable wearers. While a 
manufacturer, retailer, or distributor may intend that only adults 
should wear the garment, we will consider the reasonably foreseeable 
uses and misuses of garments that are labeled ambiguously, including 
uses by those whom it is reasonably foreseeable will wear it. Many 
factors could confound a manufacturer's, retailer's, or distributor's 
intent that only adults would wear a garment.
    We believe that consumers make their buying and wearing decisions 
based primarily on a garment's size and characteristics, including 
fabric, color, print, texture, and other features, independent of label 
information related to the intended wearer. We agree that smaller adult 
apparel could easily pass for an older child's garment. This is 
evidenced in the overlap of body dimensions used in industry sizing 
charts to define smaller adult sizes and larger children's sizes. 
Further, children at the pre-teen and teen stages often want to dress 
like adults, and adults sometimes wear clothing that appeals to 
children and is available in sizes for both children and adults (e.g., 
clothing with designs relating to cartoon characters and theme-related 
characters). Because of the overlap in sizes and appeal, it is 
foreseeable that ambiguously labeled apparel could pass for a child's 
garment and may be purchased for use by children. Therefore, we believe 
that such clothing should meet the Standard's drawstring requirements 
and should be subject to the 15(j) rule for drawstrings and that it 
would be inappropriate to exclude all ``adult apparel'' from the rule.
    In addition, relying on where or how a given retailer may display a 
garment would present practical problems. One retailer may offer the 
garment in the women's section; another retailer may offer the same 
garment in the children's section; and yet another retailer may offer 
the garment in a grouping by garment type, without reference to age

[[Page 42506]]

or gender (e.g., all sweatshirts). Some retailers may not differentiate 
at all between departments within their store based on age or gender. 
It would be impractical and unwise to rely on presumptions about the 
retail treatment.
    For these reasons, if upper outerwear is labeled ambiguously or not 
marketed clearly for adults only and is equivalent to a size within the 
range of 2T to 16, then that upper outerwear should meet the Standard's 
drawstring requirements and should be subject to the 15(j) rule for 
drawstrings. If a manufacturer, retailer, or distributor has any doubt, 
it should report the garment to the Commission in accordance with 
section 15 of the CPSA.

5. Definition of Drawstring

    (Comment 5)--Two commenters jointly requested clarification 
regarding the definition of a ``drawstring'' as stated in the Standard. 
Specifically, these commenters stated that the common industry 
understanding of a drawstring is a cord that passes through a channel, 
and the commenters raised concerns about the 2009 recall of children's 
hooded sweatshirts with ties sewn in at the base of the hood. The 
commenters stated that these ties do not pass through a channel or 
necessarily provide for closure. They expressed concern about the 
potential for confusion in the marketplace regarding which closures 
meet the ``drawstring'' definition in the Standard.
    (Response 5)--The Commission has long understood that 
nonretractable cords, ribbons, or tapes of any material that pull 
together parts of upper outerwear to provide for closure constitute 
drawstrings, regardless of whether they pass through a channel. 
Drawstrings that fail to comply with or that result in an article of 
children's upper outerwear failing to comply with the Standard's 
performance requirements constitute defects that create a substantial 
risk of injury to children, regardless of whether they pass through a 
channel. Both where the drawstring is through a channel and where the 
drawstring is in the form of a tie, if the drawstring becomes caught, 
the garment's neck, collar, or other such part becomes taut around the 
neck, leading to possible strangulation. In the Commission's recall and 
other enforcement efforts, CPSC has interpreted and applied the 
Standard in a manner consistent with these beliefs.
    The Standard defines a ``drawstring'' as ``a non-retractable cord, 
ribbon, or tape of any material to pull together parts of upper 
outerwear to provide for closure.'' The Standard's ``drawstring'' 
definition is not limited to cords, ribbons, or tapes that pass through 
a channel. Further, the definition does not exclude ties. The 
Commission believes the definition in the Standard is without 
ambiguity, and there is sufficient information to determine that there 
has been substantial compliance with the Standard with respect to ties. 
Thus, ties continue to be included within the definition of 
``drawstrings'' in this final rule.
    We believe that, under section 15 of the CPSA, manufacturers, 
retailers, and distributors have had a continuing duty to report to the 
Commission regarding drawstrings, which include ties, and that firms 
will continue to have such a duty. Reporting will increase the safety 
of children, a vulnerable population, and, as warranted, we will 
continue to seek recalls of children's upper outerwear with drawstrings 
given the substantial risk of injury these garments present to 
children.

6. Manufacturers' Sizing Systems

    (Comment 6)--A commenter expressed concern about how the Commission 
would evaluate whether a children's garment falls within the size range 
stated in the Standard. Noting that apparel sizing varies among 
companies, the commenter questioned the Commission's position in 
proposed Sec.  1120.3(b)(2)(v) that a firm's statement of what sizes 
are equivalent to sizes 2T to 16 may not be used to show that the size 
of a garment is not equivalent to a size in the range of 2T to 16. The 
commenter stated that the Commission's position is inconsistent with 
the CPSIA's definition of the term ``children's product,'' which lists 
a statement of the manufacturer's intended use as a factor to be 
considered. The commenter stated that a manufacturer's statement, if 
reasonable, should be the primary consideration of whether a garment is 
covered by the Standard.
    (Response 6)--After further evaluation, we are removing Sec.  
1120.3(b)(2)(v) in its entirety. We will consider a manufacturer's 
statement about the intended use of a children's garment, if such 
statement is reasonable. We do not believe, however, that a 
manufacturer's statement, even if reasonable, should be the primary 
consideration in determining whether a garment is covered by the 
Standard. Rather, in any given matter, we will consider all of the 
relevant factors and will weigh them appropriately.

7. Definition of ``Upper Outerwear''

    (Comment 7)--A commenter recommended that ``Lightweight garments 
worn on the upper body, but intended as an inner layer, or intended for 
warmer weather climates that do not use outerwear should be excluded.''
    (Response 7)--The Standard defines ``upper outerwear'' as 
``clothing, such as jackets and sweatshirts, generally intended to be 
worn on the exterior of other garments.'' This definition excludes 
underwear and inner layers, but includes lightweight outerwear that is 
appropriate for use in warmer climates. The hazards presented by 
drawstrings on children's upper outerwear are not limited to 
heavyweight outerwear. Any drawstring that can dangle from the neck or 
waist area of outerwear during play activities presents the hazard, 
even if the garment's fabric is lightweight. Pants, shorts, and skirts 
are not intended for the upper portion of the body and are excluded 
from the scope of the Standard.

F. Description of the Final Rule

    The final rule for drawstrings creates a new Sec.  1120.3(b)(1) to 
specify that items of children's upper outerwear that are subject to 
ASTM F 1816-97, but that do not comply with it, are substantial product 
hazards under section 15(a)(2) of the CPSA. The rule also creates a new 
Sec.  1120.2(c) to define a ``drawstring'' as ``a non-retractable cord, 
ribbon, or tape of any material to pull together parts of outerwear to 
provide for closure.''
    To facilitate determining which garments that are sized under a 
sizing system other than the numerical system (2T to 16) are equivalent 
to sizes 2T to 16, Sec.  1120.3(b)(2)(i) provides that garments in 
girls' size Large (L) and boys' size Large (L) are equivalent to size 
12. Section 1120.3(b)(2)(ii) specifies that garments in girls' size 
Extra-Large (XL) and boys' size Extra-Large (XL) are equivalent to size 
16.
    Section 1120.3(b)(2)(iii) provides that if a garment is labeled for 
a range of sizes, the garment will be considered subject to ASTM F 
1816-97, if any size within the range is subject to ASTM F 1816-97. 
Section 1120.3(b)(2)(iv) provides that, in order to fall within the 
scope of Sec.  1120.3(b)(2)(i) through (iii), a garment need not state 
anywhere on it, or on its tags, labels, package, or any other materials 
accompanying it, the term ``girls'' or the term ``boys'' or whether the 
garment is intended for girls or boys. Last, Sec.  1120.3(b)(v) states 
that the Commission may use any other evidence that would tend to show 
that an item of children's upper outerwear is a size that is equivalent 
to sizes 2T to 16.

[[Page 42507]]

G. Effect of Section 15(j) Rule

    Section 15(j) of the CPSA authorizes us to issue a rule specifying 
that a consumer product (or class of consumer products) has 
characteristics whose presence or absence creates a substantial product 
hazard. This rule, which falls under section 15 of the CPSA, is not a 
consumer product safety rule and does not create a consumer product 
safety standard. Thus, the rule does not trigger any testing or 
certification requirements under section 14(a) of the CPSA.
    Although the final rule does not establish a consumer product 
safety standard, placing a consumer product on this substantial product 
hazard list has certain consequences. A product that is or has a 
substantial product hazard is subject to the reporting requirements of 
section 15(b) of the CPSA. 15 U.S.C. 2064(b). A manufacturer who fails 
to report a substantial product hazard to the Commission is subject to 
civil penalties under section 20 of the CPSA and possibly is subject to 
criminal penalties under section 21 of the CPSA. 15 U.S.C. 2069, 2070.
    A product that is or contains a substantial product hazard is 
subject to corrective action under section 15(c) and (d) of the CPSA. 
15 U.S.C. 2064(c), (d). Thus, the Commission can order the 
manufacturer, distributor, or retailer of the product to offer to 
repair or replace the product, or to refund the purchase price to the 
consumer.
    Finally, a product that is offered for import into the United 
States, and is or contains a substantial product hazard, must be 
refused admission into the United States under section 17(a) of the 
CPSA. 15 U.S.C. 2066(a).

H. Regulatory Flexibility Certification

    The Regulatory Flexibility Act (``RFA'') generally requires that 
agencies review proposed and final rules for their potential economic 
impact on small entities, including small businesses. 5 U.S.C. 601-612. 
In the preamble to the proposed rule (75 FR at 27503), we noted that 
Commission staff estimates that a very high percentage of small 
businesses that manufacture or sell children's upper outerwear already 
sell only garments that comply with, ASTM F 1816-97. Also, the 
Commission's Office of Compliance and Field Operations already 
considers children's upper outerwear with hood or neck area drawstrings 
that are subject to, but do not comply with, ASTM F 1816-97 to be a 
substantial product hazard and would seek recalls of such products, 
regardless of whether they are added, by rule, to the list of 
substantial product hazards under Section 15(j) of the CPSA. Finally, 
conformance to ASTM F 1816-97 is achieved for many garments distributed 
in commerce simply by eliminating drawstrings from the manufacturing 
process with minimal or no increase in resulting production costs. 
Therefore, we certified that, in accordance with section 605 of the 
RFA, the rule, if promulgated, would not have a significant economic 
impact on a substantial number of small entities.
    We received no comments concerning the rule's impact on small 
businesses, and we are not aware of any information that would change 
our certification.

I. Environmental Considerations

    The Commission's environmental review regulation at 16 CFR part 
1021 has established categories of actions that normally have little or 
no potential for affecting the human environment and therefore do not 
require either an environmental assessment or an environmental impact 
statement. This rule is within the scope of the Commission's 
regulation, at 16 CFR 1021.5(c)(1) that provides a categorical 
exclusion for rules to provide design or performance requirements for 
products. Thus, no environmental assessment or environmental impact 
statement for this rule is required.

J. Paperwork Reduction Act

    The final rule does not impose any information collection 
requirements. Accordingly, the final rule is not subject to the 
Paperwork Reduction Act, 44 U.S.C. 3501-3520.

K. Effective Date

    The preamble to the proposed rule indicated that a final rule would 
take effect 30 days from its date of publication in the Federal 
Register, such that, after that date, all items of children's upper 
outerwear that are subject to, but do not comply with, ASTM F 1816-97, 
would constitute a substantial product hazard.
    We received no comments regarding the effective date. Accordingly, 
the effective date for this rule is August 18, 2011.

L. Preemption

    Under section 26(a) of the CPSA, 15 U.S.C. 2075(a), if a ``consumer 
product safety standard under [the CPSA]'' is in effect and applies to 
a product, no state or political subdivision of a state may either 
establish or continue in effect a requirement dealing with the same 
risk of injury, unless the state requirement is identical to the 
federal standard. A rule under section 15(j) of the CPSA is not a 
``consumer product safety standard.'' Accordingly, the preemptive 
effect of section 26(a) of the CPSA does not apply to a rule under 
section 15(j) of the CPSA.

List of Subjects in 16 CFR Part 1120

    Administrative practice and procedure, Consumer protection, 
Household appliances, Imports, Incorporation by reference.

Conclusion

    For the reasons stated above, and under the authority of 15 U.S.C. 
2064(j), 5 U.S.C. 553, and section 3 of Public Law 110-314, 122 Stat. 
3016 (August 14, 2008), the U.S. Consumer Product Safety Commission 
amends title 16 of the Code of Federal Regulations as follows:

PART 1120--SUBSTANTIAL PRODUCT HAZARD LIST

0
1. The authority citation for part 1120 continues to read as follows:

    Authority:  15 U.S.C. 2064(j); Sec. 3, Pub. L. 110-314, 122 
Stat. 3016.


0
2. Amend Sec.  1120.2 by adding a new paragraph (c) to read as follows:


Sec.  1120.2  Definitions.

* * * * *
    (c) Drawstring means a non-retractable cord, ribbon, or tape of any 
material to pull together parts of upper outerwear to provide for 
closure.

0
3. In Sec.  1120.3, add paragraph (b) to read as follows:


Sec.  1120.3  Substantial product hazard list.

* * * * *
    (b) (1) Children's upper outerwear in sizes 2T to 16 or the 
equivalent, and having one or more drawstrings, that is subject to, but 
not in conformance with, the requirements of ASTM F 1816-97, Standard 
Safety Specification for Drawstrings on Children's Upper Outerwear, 
approved June 10, 1997, published August 1998. The Director of the 
Federal Register approves this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from ASTM 
International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, 
PA 19428-2959 USA, telephone: 610-832-9585; http://www2.astm.org/. You 
may inspect a copy at the Office of the Secretary, U.S. Consumer 
Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, 
MD 20814, telephone 301-504-7923, or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://
www.archives.gov/

[[Page 42508]]

federal--register/code--of--federal--regulations/ibr--locations.html.
    (2) At its option, the Commission may use one or more of the 
following methods to determine what sizes of children's upper outerwear 
are equivalent to sizes 2T to 16:
    (i) Garments in girls' size Large (L) and boys' size Large (L) are 
equivalent to girls' or boys' size 12, respectively. Garments in girls' 
and boys' sizes smaller than Large (L), including Extra-Small (XS), 
Small (S), and Medium (M), are equivalent to sizes smaller than size 
12. The fact that an item of children's upper outerwear with a hood and 
neck drawstring is labeled as being larger than a size Large (L) does 
not necessarily mean that the item is not equivalent to a size in the 
range of 2T to 12.
    (ii) Garments in girls' size Extra-Large (XL) and boys' size Extra-
Large (XL) are equivalent to size 16. The fact that an item of 
children's upper outerwear with a waist or bottom drawstring is labeled 
as being larger than size Extra-Large (XL) does not necessarily mean 
that the item is not equivalent to a size in the range of 2T to 16.
    (iii) In cases where garment labels give a range of sizes, if the 
range includes any size that is subject to a requirement in ASTM F 
1816-97, the garment will be considered subject, even if other sizes in 
the stated range, taken alone, would not be subject to the requirement. 
For example, a coat sized 12 through 14 remains subject to the 
prohibition of hood and neck area drawstrings, even though this 
requirement of ASTM F 1816-97 only applies to garments up to size 12. A 
coat size 13 through 15 would not be considered within the scope of 
ASTM F 1816-97's prohibition of neck and hood drawstrings, but would be 
subject to the requirements for waist or bottom drawstrings.
    (iv) To fall within the scope of paragraphs (b)(2)(i) through 
(2)(iii) of this section, a garment need not state anywhere on it, or 
on its tags, labels, package, or any other materials accompanying it, 
the term ``girls,'' the term ``boys,'' or whether the garment is 
designed or intended for girls or boys.
    (v) The Commission may use any other evidence that would tend to 
show that an item of children's upper outerwear is a size that is 
equivalent to sizes 2T to 16.

    Dated: July 12, 2011.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2011-17961 Filed 7-18-11; 8:45 am]
BILLING CODE 6355-01-P