Policy StatementReasonable and Representative Testing To Assure Compliance With The Standard for the Flammability of Clothing Textiles

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

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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.

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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