[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]
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Number of
Number of units of upper
Year recall cases outerwear
recalled
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2006.................................... 17 676,597
2007.................................... 14 626,172
2008.................................... 24 227,868
2009.................................... 23 526,193
2010.................................... 37 431,145
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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