[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42697-42699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21387]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1610
Policy Statement--Reasonable and Representative Testing To Assure
Compliance With The Standard for the Flammability of Clothing Textiles
AGENCY: Consumer Product Safety Commission.
ACTION: Interpretation and policy statement; final rule.
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SUMMARY: The U.S. Consumer Product Safety Commission (CPSC) issues this
guidance to notify manufacturers, importers, distributors, and
retailers of fabric and garments of factors that the Commission
considers in deciding whether to seek civil penalties for violations of
the Standard for the Flammability of Clothing Textiles (General Wearing
Apparel), 16 CFR part 1610.
DATES: Effective August 11, 1998.
FOR FURTHER INFORMATION CONTACT: Marilyn Borsari, Compliance Officer,
Office of Compliance, Consumer Product Safety Commission, Washington,
DC 20207; telephone (301) 504-0608, extension, 1370 or e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
Introduction
The U.S. Consumer Product Safety Commission (CPSC) issues the
following policy statement to provide guidance to manufacturers,
importers, distributors, and retailers of factors the Commission
considers in deciding whether to seek civil penalties for violations of
the Standard for the Flammability of Clothing Textiles (General Wearing
Apparel). CPSC adds this policy statement as Section 1610.62 of Subpart
C of Part 1610, Chapter II, Title 16, Code of Federal Regulations.
Since this document is interpretative and a general statement of
policy, it is exempt from the requirement of 5 U.S.C. 553(b) for a
general notice of proposed rulemaking and from the requirement of 5
U.S.C. 553(c) for an opportunity for public comments. It is also exempt
from the requirement of 5 U.S.C. 553(d) for a 30-day delay in the
effective date of the policy. Accordingly, the policy will become
effective August 11, 1998.
Applicable Executive Orders and Statutes
This policy has been evaluated for federalism implications in
accordance with Executive Order No. 12,612, and the policy raises no
substantial federalism concerns.
The policy has also been evaluated under Executive Order No.
12,898, and it does not have any of the exclusionary effects specified
in that order.
The policy also has been evaluated under Executive Order No.
12,988. The policy is not a ``flammability standard or other regulation
for a fabric, related material, or product'' that would have a
preemptive effect under 15 U.S.C. 1203.
The policy is not expected to have any environmental effects.
Therefore, an environmental assessment is not required.
The policy is not a ``covered regulatory action'' as that term is
defined in Executive Order No. 13,045.
This policy is not a ``rule'' as defined in 5 U.S.C. 804(3).
Accordingly, 5 U.S.C. 801-808 does not require a report to Congress.
List of Subjects in 16 CFR Part 1610
Clothing, Consumer protection, Flammable materials, Reporting and
recordkeeping requirements, Textiles, Warranties.
For the reasons set forth in the preamble, the CPSC amends 16 CFR
part 1610 as follows:
PART 1610--STANDARD FOR THE FLAMMABILITY OF CLOTHING TEXTILES
1. The authority citation for part 1610 is amended to read as
follows:
Authority: 16 U.S.C. 1191-1204.
2. Add Sec. 1610.62 to read as follows:
Sec. 1610.62 Reasonable and representative testing to assure
compliance with the standard for the clothing textiles.
(a) Background. (1) The CPSC administers the Flammable Fabrics Act
(FFA), 15 U.S.C. 1191-1204. Under the FFA, among other things, the
Commission enforces the Flammability Standard for Clothing Textiles
(the ``general wearing apparel standard''), 16 CFR Part 1610. That
standard establishes requirements for the flammability of clothing and
textiles
[[Page 42698]]
intended to be used for clothing (hereinafter ``textiles'').
(2) The general wearing apparel standard applies both to fabrics
and finished garments. The standard provides methods of testing the
flammability of textiles, and sets forth the requirements that textiles
must meet to be classified into one of three classes of flammability
(classes 1, 2 and 3). 16 CFR 1610.2. Class 1 textiles, those that
exhibit normal flammability, are acceptable for use in clothing. 16 CFR
1610.3(a)(1). Class 2 textiles, applicable only to raised fiber
surfaces, are considered to be of intermediate flammability, but may be
used in clothing. 16 CFR 1610.3(a)(2). Finally, class 3 textiles, those
that exhibit rapid and intense burning, are dangerously flammable and
may not be used in clothing. 16 CFR 1610.3(a)(3). The manufacture for
sale, offering for sale, importation into the U.S., and introduction or
delivery for introduction of Class 3 articles of wearing apparel are
among the acts prohibited by section 3(a) of the FFA, 15 U.S.C.
1192(a).
(3) CPSC currently uses retail surveillance, attends appropriate
trade shows, follows up on reports of noncompliance and previous
violations, and works with U.S. Customs in an effort to find textiles
that violate CPSC's standards. The Commission has a number of
enforcement options to address prohibited acts. These include bringing
seizure actions in federal district court against violative textiles,
seeking an order through an administrative proceeding that a firm cease
and desist from selling violative garments, pursuing criminal
penalties, or seeking the imposition of civil penalties for ``knowing''
violations of the FFA. Of particular relevance to the latter two
remedies are whether reasonable and representative tests were performed
demonstrating that a textile or garment meets the flammability
standards for general wearing apparel. Persons who willfully violate
flammability standards are subject to criminal penalties.
(4) Section 8(a) of the FFA, 15 U.S.C. 1197(a), exempts a firm from
the imposition of criminal penalties if the firm establishes that a
guaranty was received in good faith signed by and containing the name
and address of the person who manufactured the guarantied wearing
apparel or textiles or from whom the apparel or textiles were received.
A guaranty issued by a person who is not a resident of the United
States may not be relied upon as a bar to prosecution. 16 CFR 1608.4.
The guaranty must be based on the exempted types of fabrics or on
reasonable and representative tests showing that the fabric covered by
the guaranty or used in the wearing apparel covered by the guaranty is
not so highly flammable as to be dangerous when worn by individuals,
i.e., is not a class 3 material.\1\ Under 16 CFR 1610.37, a person, to
issue a guaranty, should first evaluate the type of fabric to determine
if it meets testing exemptions (16 CFR 1610.37(d)); \2\ if not, the
person issuing the guaranty must devise and implement a program of
reasonable and representative tests to support the guaranty. The number
of tests and frequency of testing is left to the discretion of that
person, but at least one test is required.
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\1\ The person proffering a guaranty to the Commission must also
not, by further processing, have affected the flammability of the
fabric, related material or product covered by the guaranty that was
received.
\2\ Some textiles never exhibit unusual burning characteristics
and need not be tested. 16 CFR 1610.37(d). Such textiles include
plain surface fabrics, regardless of fiber content, weighing 2.6 oz.
or more per sq. yd., and plain and raised surface fabrics made of
acrylic, modacrylic, nylon, olefin, polyester, wool, or any
combination of these fibers, regardless of weight.
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(5) In determining whether a firm has committed a ``knowing''
violation of a flammability standard that warrants imposition of a
civil penalty, the CPSC considers whether the firm had actual knowledge
that its products violated the flammability requirements. The CPSC also
considers whether the firm should be presumed to have the knowledge
that would be possessed by a reasonable person acting in the
circumstances, including knowledge that would have been obtainable upon
the exercise of due care to ascertain the truth of representations. 15
U.S.C. 1194(e). The existence of results of flammability testing based
on a reasonable and representative program and, in the case of tests
performed by another entity (such as a guarantor), the steps, if any,
that the firm took to verify the existence and reliability of such
tests, bear directly on whether the firm acted reasonably in the
circumstances.
(b) Applicability. (1) When tested for flammability, a small number
of textile products exhibit variability in the test results; that is,
even though they may exhibit class 1 or class 2 burning characteristics
in one test, a third test may result in a class 3 failure. Violative
products that the Commission has discovered since 1994 include sheer
100% rayon skirts and scarves; sheer 100% silk scarves; 100% rayon
chenille sweaters; rayon/nylon chenille and long hair sweaters;
polyester/cotton and 100% cotton fleece/sherpa garments, and 100%
cotton terry cloth robes. Since August 1994, there have been 21 recalls
of such dangerously flammable clothing, and six retailers have paid
civil penalties to settle Commission staff allegations that they
knowingly sold garments that violated the general wearing apparel
standard.
(2) The violations and resulting recalls and civil penalties
demonstrate the critical necessity for manufacturers, distributors,
importers, and retailers to evaluate, prior to sale, the flammability
of garments made from the materials described above, or to seek
appropriate guaranties that assure that the garments comply. Because of
the likelihood of variable flammability in the small group of textiles
identified above, one test is insufficient to assure reasonably that
these products comply with the flammability standards. Rather, a person
seeking to evaluate garments made of such materials should assure that
the program tests a sufficient number of samples to provide adequate
assurance that such textile products comply with the general wearing
apparel standard. The number of samples to be tested, and the
corresponding degree of confidence that products tested will comply,
are to be specified by the individual designing the test program.
However, in assessing the reasonableness of a test program, the
Commission staff will specifically consider the degree of confidence
that the program provides.
(c) Suggestions. The following are some suggestions to assist in
complying with the general wearing apparel standard:
(1) Purchase fabrics or garments that meet testing exemptions
listed in 16 CFR 1610.37(d). (If buyers or other personnel do not have
skills to determine if the fabric is exempted, hire a textile
consultant or a test lab for an evaluation.)
(2) For fabrics that are not exempt, conduct reasonable and
representative testing before cutting and sewing, using standard
operating characteristic curves for acceptance sampling to determine a
sufficient number of tests.
(3) Purchase fabrics or garments that have been guarantied and/or
tested by the supplier using a reasonable and representative test
program that uses standard operating characteristic curves for
acceptance sampling to determine a sufficient number of tests. Firms
should also receive and maintain a copy of the guaranty.
(4) Periodically verify that your suppliers are actually conducting
appropriate testing.
[[Page 42699]]
Dated: August 5, 1998.
Sadye Dunn,
Secretary to the Commission.
[FR Doc. 98-21387 Filed 8-10-98; 8:45 am]
BILLING CODE 6355-01-P