[Federal Register Volume 81, Number 47 (Thursday, March 10, 2016)]
[Rules and Regulations]
[Pages 12587-12588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04533]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1610


Statement of Policy on Enforcement Discretion Regarding General 
Conformity Certificates for Adult Wearing Apparel Exempt From Testing

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Statement of enforcement policy.

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SUMMARY: The Consumer Product Safety Commission (``CPSC'') has approved 
a Statement of Policy regarding the CPSC's enforcement of the 
requirement for a general conformity assessment certificate (``GCC'') 
with respect to adult wearing apparel that is exempt from testing under 
the CPSC's clothing flammability standard.

DATES: Effective March 25, 2016.

FOR FURTHER INFORMATION CONTACT: Mary Toro, Director, Division of 
Regulatory Enforcement, Office of Compliance, U.S. Consumer Product 
Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; 
telephone: (301)-504-7586 email: mtoro@cpsc.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    The Consumer Product Safety Improvement Act (``CPSIA'') was enacted 
on August 14, 2008 (Pub. L. 110-314). Section 102(A) of the CPSIA 
requires that all manufacturers of consumer products subject to a rule, 
standard, or ban enforced by the CPSC issue a general conformity 
certificate (``GCC'') certifying that ``based on a test of each product 
or upon a reasonable testing program, that such product complies with 
all rules, bans, standards, or regulations applicable to the product.'' 
\1\
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    \1\ 122 Stat. at 3022, 102(a).
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B. Flammable Fabrics Act and Related Regulations

    In 1953, Congress enacted the Flammable Fabrics Act (``FFA'') in 
response to a number of serious injuries and deaths resulting from 
burns associated with garments made from high-pile rayon.\2\ The 
clothing flammability standard at 16 CFR part 1610 (``1610'' or ``the 
Standard'') provides for classification of various types of fabrics and 
describes in detail the test method to determine flammability.
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    \2\ Floyd B. Oglesbay, The Flammable Fabrics Problem, 44 
Pediatrics 827 (1969), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1730418/pdf/v004p00317.pdf.
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    Section 1610.1(c) excepts from the flammability standard certain 
hats, gloves, footwear, and interlining fabrics. Because this section 
specifically says that the ``standard shall not apply to'' these 
articles, they are not ``subject to'' a rule, standard, or ban under 
section 102(a) of the CPSIA, and therefore manufacturers and importers 
are neither subject to the regulation nor required to produce a GCC for 
these products.
    Section 1610.1(d), conversely, exempts from testing, but not from 
the standard as a whole, garments made entirely from certain fabrics 
that the Commission has consistently found not to be flammable. These 
include:

    (1) Plain surface fabrics, regardless of fiber content, weighing 
2.6 ounces per square yard or more; and
    (2) All fabrics, both plain surface and raised-fiber surface 
textiles, regardless of weight, made entirely from any of the 
following fibers or entirely from combination of the following 
fibers: Acrylic, modacrylic, nylon, olefin, polyester, wool.

    Because products made from these fabrics are exempt from testing 
but not excepted from the standard as a whole, they are still ``subject 
to'' a rule, standard, or ban and manufacturers and importers of these 
exempted products have been required to issue a GCC.

C. Rationale for Enforcement Discretion

    Experience gained from years of testing in accordance with 16 CFR 
part 1610 demonstrates that the exempted fabrics referenced above 
consistently yield acceptable results when tested in accordance with 
the Standard. This experience allowed an exemption from testing in the 
Standard, for the purpose of issuing guaranties.\3\ The Standard allows 
persons or firms issuing an initial guaranty of any of the referenced 
fabrics, or of products made entirely from one or more of these 
fabrics, an exemption from any requirement for testing to support 
guaranties of those fabrics.
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    \3\ 16 CFR 1610.1(d).
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    Certificates of compliance for children's products and other 
consumer products regulated by the Commission serve many vital 
purposes, not least of which is to assure our compliance staff that 
these goods have met the testing requirements set forth in our rules. 
Adult apparel is rarely, if ever, subject to more than one CPSC 
regulation. Many retailers are issuing GCCs simply noting an exemption 
from testing to the Standard. The Commission believes the issuance of 
GCCs for these products is not necessary for CPSC staff to enforce the 
Standard because the Commission has granted a testing exemption to 
these fabrics and adult apparel made from these fabrics is unlikely to 
be subject to other consumer product safety rules, standards, or bans. 
This proposal provides an opportunity to reduce costs to manufacturers 
and importers without affecting consumer safety.

D. Statement of Policy

    The Commission votes to exercise the following enforcement 
discretion: Effective March 25, 2016, the Commission will not pursue 
compliance or enforcement actions against manufacturers, importers or 
private labelers for failure to certify or to issue, provide or make 
available to the Commission a general conformity certificate as 
required by 15 U.S.C. 2063(a)(1) with respect to adult wearing apparel 
that is exempt from testing pursuant to 16 CFR 1610.1(d).

E. Limitations of Enforcement Discretion

    The intent of this enforcement discretion should be read narrowly 
within its precise terms. The Commission will use enforcement 
discretion only for certificate violations related to the indicated 
product category. These products must still comply with all 
flammability requirements under the FFA; failure to comply with 
flammability standards will still subject the products to enforcement 
action.
    Further, this enforcement discretion does not apply to any adult 
wearing apparel that does not fit the specific testing exemptions 
provided for in 16 CFR 1610.1(d). For example, if a manufacturer 
produced a garment made from a plain surface silk fabric that weighs 
less than 2.6 ounces per square yard, that garment would not fall 
within the exemption, and the manufacturer would still be expected to 
produce a GCC. Should the Commission become aware of unsafe products 
entering the market as a result of this statement of policy, it 
reserves the right to withdraw the policy prospectively with no less 
than 90 days' notice.
    This statement of policy, and the enforcement discretion described 
herein, is limited to certificates required for adult wearing apparel 
that is exempt from testing pursuant to 16 CFR

[[Page 12588]]

1610.1(d). If the adult wearing apparel is not exempt from testing 
under 16 CFR 1610.1(d), none of this policy, the enforcement discretion 
described in this policy nor the implications of such enforcement 
discretion shall apply. In addition, any misrepresentation or omission 
regarding the applicable facts or application of 16 CFR 1610.1(d) under 
the circumstances could subject the applicable firm to applicable 
compliance or enforcement action and potential civil and/or criminal 
penalties.
    The Commission's exercise of the enforcement discretion described 
in this policy is not intended to, does not and may not be relied upon 
to create any right or benefit, substantive or procedural, enforceable 
at law by any party against the CPSC or otherwise against the United 
States government.

    Dated: February 26, 2016.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2016-04533 Filed 3-9-16; 8:45 am]
BILLING CODE 6355-01-P