Final Technical Changes; Standard for the Flammability of Children's Sleepwear: Sizes 0 Through 6X; Standard for the Flammability of Children's Sleepwear: Sizes 7 Through 14

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Parts 1615 and 1616

Final Technical Changes; Standard for the Flammability of

Children's Sleepwear: Sizes 0 Through 6X; Standard for the Flammability

of Children's Sleepwear: Sizes 7 Through 14

AGENCY: Consumer Product Safety Commission.

ACTION: Final technical changes.

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SUMMARY: The Commission is amending the flammability standards for

children's sleepwear in sizes 0 through 6X and 7 through 14 to make

several technical changes that would correct the definition of ``tight-

fitting garment.'' The changes will clarify the points where garment

measurements should be made.

DATES: The amendments will become effective on February 18, 1999].

FOR FURTHER INFORMATION CONTACT: Marilyn Borsari, Office of Compliance,

Consumer Product Safety Commission, Washington, D.C. 20207; telephone

(301) 504-0400, extension 1370.

SUPPLEMENTARY INFORMATION:

A. Background

The Commission administers two rules issued under section 4 of the

Flammable Fabrics Act (``FFA''), 15 U.S.C. 1193, that prescribe

flammability tests for children's sleepwear garments and fabrics

intended for use in children's sleepwear. The first, issued in 1971 by

the Secretary of Commerce, covers children's sleepwear in sizes 0

through 6X. 16 CFR Part 1615. After responsibility for administration

and enforcement of the FFA was transferred to the Consumer Product

Safety Commission by provisions of section 30(b) of the Consumer

Product Safety Act, 15 U.S.C. 2079(b), the Commission issued a

flammability standard for children's sleepwear in sizes 7 through 14.

The tests in that standard are substantially the same as those in the

standard for children's sleepwear in sizes 0 through 6X. The

flammability standard for children's sleepwear in sizes 7 through 14 is

codified at 16 CFR Part 1616.

Both standards require that test specimens must self-extinguish

when exposed to a small open-flame ignition source. Self-extinguishing

fabrics and garments are those that stop burning when removed from an

ignition source. Both standards require manufacturers of sleepwear

garments to perform prototype tests on specimens of fabric, seams, and

trim with acceptable results before beginning production of sleepwear

garments. Both standards also require manufacturers of sleepwear

fabrics and garments to group fabrics and garments into production

units and to randomly sample and test products from each production

unit. Neither standard requires that specific fabrics or flame-

retardant treatments be used in the manufacture of children's

sleepwear.

On September 9, 1996, the Commission issued a final rule amending

the flammability standards for children's sleepwear to exclude from the

definition of ``children's sleepwear'' (1) garments sized for infants

nine months of age or younger and (2) tight-fitting sleepwear garments

for children older than nine months. 61 FR 47634.

The Commission found that such tight-fitting sleepwear did not

present an unreasonable risk of injury. Rather, the Commission's

information showed that sleepwear incidents occurred with loose-fitting

garments such as T-shirts. A review of literature for that amendment

showed that fit can influence garment flammability. Garments that fit

close to the body are less likely to catch fire in the first place and

less likely to allow heat to develop between the fabric and the body,

thus decreasing the likelihood of thermal injury. Id. The Commission

concluded that garments fitting closely and that touch the body at key

points should be exempt from the sleepwear standards as they do not

present the same risk as loose-fitting garments. These amendments

became effective on January 1, 1997. However, the Commission also

issued a stay of enforcement for close-fitting garments which are

labeled and promoted as underwear. That stay expired on June 1, 1998.

62 FR 60163.

The Commission defined tight-fitting garments as those that did not

exceed certain measurements in the chest, waist, seat, upper arm,

thigh, wrist, and ankle for each size ranging from over 9 months

through children's size 14. In the amendments, the Commission specified

maximum allowable measurements for each of these locations for each

size garment. 61 FR 47644-47.

B. Statutory Provisions and the Proposed Rule

The FFA provides that the Commission can issue or amend a

flammability standard when the standard may be needed to protect the

public from an unreasonable risk of the occurrence of fire leading to

death, injury or significant property damage. 15 U.S.C. 1193(a).

Section 4(g) of the FFA states that a proceeding ``for the

promulgation of a regulation under this section'' shall be initiated by

publication of an advance notice of proposed rulemaking (``ANPR''). 15

U.S.C. 1193(g). Due to the technical nature and narrow scope of this

proceeding, the Commission concluded that an ANPR would be of no value

to the public or the Commission.

Thus, the Commission began this proceeding on May 21, 1998, with a

notice of proposed rulemaking (``NPR''). 63 FR 27877 (corrected on June

11, 1998, 63 FR 31950). That notice explained that once manufacturers

began to design tight-fitting sleepwear that would meet the amendments,

they

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identified some problems with design and construction of these

garments. After meeting with industry members and considering various

suggestions, the staff concluded that some adjustments needed to be

made to the locations for measurements specified in the amendments for

some points on the garments. The staff believed that these adjustments

would be needed for the point of measurement of the upper arm, the

seat, and the thigh. The staff also examined possible changes to the

sweep (bottom of the top of a two-piece garment).

In order to better assess this need and to determine if the

possible changes would result in practical, wearable garments, the

staff conducted structured observations of some garments. As explained

in the NPR, these observations demonstrated that garments made

according to measurement locations contemplated by the staff were

wearable, comfortable and suitable for sleeping and play. They also

demonstrated that making changes to the sweep of the top of a two-piece

garment by allowing an hourglass silhouette would allow the sweep to

flare away from the body, exposing the bottom edge when a child raised

her arms. Thus, the Commission did not propose making any changes to

the sweep of the garments.

C. Comments on the NPR

In response to the proposal of May 21, 1998, six written comments

were received. In addition, nine related comments and several oral

inquiries were received. The significant issues addressed by these

comments are discussed below.

1. Issuance of the Amendments

American Marketing Enterprises, Inc., an importer of childrenswear,

commented that it agrees to a certain extent with the proposed

amendments. Similarly, the National Cotton Council, representing cotton

producers, believes that the proposed technical changes are an

improvement.

The Safe Children's Sleepwear Coalition (SCSC), a group formed in

response to the Commission's decision in 1996 to exempt certain tight-

fitting garments and garments intended for infants from the sleepwear

flammability standards, commented that it opposes the 1996 amendments.

SCSC stated that its members ``do not believe any technical changes to

the amendments can make the new requirements for children's sleepwear

effective'' and thus ``it would be counter-productive and misleading''

to comment on specific measurement protocols. Rather, SCSC would like

the Commission to rescind the 1996 amendments. The Commission also

received nine other letters from hospitals, public interest groups, and

fire or emergency groups asking that the Commission reconsider the 1996

exemption for tight-fitting and infant garments.

Garments on children observed by the staff while it was developing

the proposed technical amendments demonstrated that comfortable,

practical, snug-fitting sleepwear could be produced with these slight

changes in the standards. The purpose of the May 21, 1998 proposed rule

was to propose necessary technical changes that would clarify the

points where garment measurements should be made.

The proposed rule has a very narrow scope. The comments of the SCSC

and the others mentioned above are responding to the broader 1996

rulemaking and are beyond the scope of the May 21, 1998 notice.

However, as required by the recent appropriations bill enacted by

Congress, Pub. L. 105-276, the Commission intends to propose for

comment a revocation of the September 9, 1996 amendments to the

standards for the flammability of children's sleepwear and any

subsequent amendments.

2. Consumer Education Campaign

Letters received from hospitals, public interest and fire and

emergency groups were critical of the consumer education campaign

promised by the American Apparel Manufacturers Association at the time

the exemption for tight-fitting sleepwear was published. These letters

said that the ``apparel industry has failed to agree on labeling or

tight-fitting requirements or design and implement the promised

educational campaign . . . [and that] it is virtually impossible for

consumers to judge the relative safety of such sleepwear garments in

the marketplace.''

These comments are beyond the scope of the proposed technical

amendments, but the issue is an important one. AAMA has declined to

initiate a comprehensive consumer information campaign as originally

planned with a press conference. AAMA indicated that it is prepared to

do so when the sleepwear amendments are final and it is satisfied that

saleable, wearable, and comfortable snug-fitting garments can be

produced.

Nevertheless, AAMA is actively distributing the art work for the

hang tags and reproducing copies of the brochure developed to inform

consumers about safety and the new snug-fitting sleepwear at the point

of sale. Early in 1997, AAMA distributed the art work and brochure

information to 40 organizations (AAMA members, non-members, and other

interested parties.) Since March 1998, 13 companies have requested the

art work for the hang tags. Approximately 3,500 brochures have been

distributed by a major retailer and two major AAMA member companies. On

December 14, 1998 AAMA issued a holiday press release giving children's

sleepwear safety tips about snug-fitting and FR sleepwear.

There is still no formal industry coordination of consumer

information efforts at this time. However, at trade shows, meetings,

and in other communications with industry members, the CPSC staff has

encouraged the use of a consistent message on hang tags to facilitate

consumer understanding. All known manufacturers of snug-fitting

sleepwear are marketing their garments with the basic information from

the AAMA hang tag. Some flame-resistant garments also carry a version

of this information. The label states ``Fabric and fit are important

safety considerations for children's sleepwear. Sleepwear should be

flame resistant or snug-fitting to meet U.S. Consumer Product Safety

Commission sleepwear requirements.'' Labels further state that the

garment attached is either flame-resistant or should be worn snug-

fitting. Some retailers have expanded their use of this labeling to

store displays and have informed their salespeople and customers

through training courses and in-house publications.

Also, in November 1998 the Commission issued a video news release

(VNR) warning about the use of loose-fitting garments, especially T-

shirts, for sleepwear. The VNR also described the safer alternatives

available under the existing sleepwear regulations--flame-resistant and

snug-fitting sleepwear--and the hang tags that commonly identify them

in retail stores.

3. Measurement Standard

A major retailer commented that ``the measurements proposed by the

CPSC for sizes 7-14 are based on one university study, rather than

generally accepted industry standards. Standards CS 53-48 (Girls) and

CS 51-50 (Boys) should be the applicable measurement standards for

children's sizes 7-14.''

The standards recommended in the comment were incorrectly titled.

The correct titles are CS 153-48 (Girls) and CS 155-50 (Boys). However,

these are not the latest versions of the former National Bureau of

Standards (NBS) sizing standards (last updated in 1970 and 1972 before

the NBS was renamed

[[Page 2835]]

the National Institute of Standards and Technology (NIST)). The most

recent versions are NBS Voluntary Product Standards PS 54-72 (Girls)

and PS 36-70 (Boys).

The snug-fitting dimensions for sizes 7-14 in the children's

sleepwear standards are based on the latest NBS standards and data from

the University of Michigan's study ``Anthropometry of Infants,

Children, and Youths to Age 18 for Product Safety Design.'' The

majority of the CPSC snug-fitting dimensions match those of the NBS

standards.

During an April 25, 1995 meeting with CPSC staff, sleepwear

industry representatives indicated that they do not adhere to any

consistent sizing standards. Therefore, CPSC staff developed the snug-

fitting dimensions from the most current and reliable data available

that pertain to typical body dimensions of children.

4. Upper Arm Dimensions

Two commenters requested an increase in the upper arm dimensions of

the snug-fitting requirements. Gap, Inc., a garment producer,

recommends an increase of \1/4\ inch in the upper arm dimensions of

baby garments from size 9 months to 36 months (or size 3T) to improve

comfort and fit. AAMA recommends all upper arm measurements be

increased 2 inches. AAMA disagrees with Commission staff conclusions

that saleable, wearable, and comfortable garments can be produced with

current upper arm dimensions.

The Commission is not persuaded that an increase in upper arm

dimensions is needed to produce comfortable, functional garments.

Previous presentations from AAMA in 1997, requesting an additional 2

inches in the upper arm dimension, were based on garments made with

popular interlock fabrics that only had 55% stretch. No further

technical support was provided with this most recent recommendation,

and no substantiation was provided for the claim that such an addition

to the upper arm dimension would not affect safety.

Fabrics with inadequate stretch are not appropriate for use in this

style of garment where the fabric must be worn in the stretched

condition. The best fabrics available for the 1997 staff observations

worked well in this snug-fitting style with 65%-85% stretch. Some of

the newer fabrics being introduced to the snug-fitting sleepwear market

since July 1998 stretch over 100% of their original dimension. This is

more than enough to ensure comfort and accommodate a child's arm

motion. Even the additional \1/4\ inch increase in the upper arm

dimension proposed by Gap appears unnecessary under these

circumstances.

While AAMA believes that saleable garments cannot be produced with

current upper arm dimensions, manufacturers estimate that snug-fitting

cotton sleepwear accounts for 20-25% of total children's sleepwear

sales. By these figures, there is a significant market for these

garments. Manufacturers contacted by the staff were optimistic about

this market as well.

5. Measurement Method for Upper Arm

Several commenters suggested that the current method for measuring

the upper arm (three steps) is complicated and should be reduced to

two. J.C. Penney commented that the ``upper arm measurement is too

complicated for factory inspection and will lead to controversy between

manufacturers, retailers and CPSC enforcement staff.'' J.C. Penney,

along with AAMA, suggests measuring down the under arm seam 2 inches

for infants and toddler sizes (12 mos. to 4T) and 3 inches down for

sizes 4 to 14 before measuring the upper arm. Gap also suggests a

measurement along the underarm seam as easier to follow and less prone

to error.

The Commission recognizes that the measurement method for the upper

arm is more complicated than for other typical garment dimensions

measured by the industry. This is because the upper arm of the body is

defined as a point between the shoulder and the elbow. Sleeves do not

have elbows; and since some sleeve designs do not have a defined

shoulder, the shoulder was defined by a logical extension of the side

seam. The location of the upper arm can then be measured down the

sleeve according to average body dimensions for each size. The CPSC

staff observations described in the April 1998 briefing package showed

this method to produce a fairly accurate match with the upper arm of

the children wearing the garments.

AAMA and Gap suggested an easier way to measure the upper arm--a

specified distance along the underarm sleeve seam. CPSC staff evaluated

a large sample of snug-fitting garment styles to determine the impact

of the simplified measurement method. Because the style of the sleeves

varied, so did the location for the upper arm to be measured by the

suggested method. In some cases, the upper arm would be measured

further down the sleeve than where the child's upper arm is, allowing

the sleeve to be larger or fuller for more of the sleeve than currently

specified. In other cases, the measurement would be closer to the

armhole than measurement by the current proposed amendment. This would

create even more restrictions in the upper sleeve design, already the

area offering the greatest design challenge to manufacturers.

Even with the dimensional restrictions of the snug-fitting

requirements, garment styles vary considerably. Manufacturers could,

for various sizes of a particular style, determine the distance(s) down

the underarm seam(s) that coincides with the point(s) where the

measurement should be made by the standard method. This could provide

the simplicity of the industry measurement proposals and the accuracy

and maximum allowance for the upper arm dimension provided by the

standard method. Because of style variations among garments and

manufacturers, CPSC would continue to use the standard method for

measuring the upper arm.

6. Need for Diaper/Training Pant Ease

J.C. Penney notes that the standard garment dimensions do not allow

for diaper or training pant ease (an increase in the width of the

garment in the seat area). An allowable increase in the rise (the

length of the garment in the seat area) produces ill-fitting garments.

For garments made of woven fabrics or knits with little or no

stretch, extra fabric or ease in the seat is necessary for a practical,

wearable garment. However, with the use of fabrics that stretch

adequately for this style of garment (85 to 100% stretch), diaper ease

is unnecessary.

7. Thigh Measurement

AAMA recommended that the thigh measurement be taken 1 1/2 inches

below the crotch seam for all sizes instead of 1 inch. Although no

specific justification was given for the recommendation in this

comment, AAMA designers provided rationale in an August 14, 1997, phone

conference. They indicated that because of the changing dimension of

the pant in this area, the lower measuring point would help with

getting the correct stride in the pant.

The Commission is not persuaded to change this measurement point

further. In developing the proposed technical amendments, the staff

received input from a wide variety of industry contacts, including

childrenswear and actionwear design instructors. They indicated that it

is typical industry practice to measure the thigh 1 inch down on the

inseam. In August 1997, when AAMA members originally made this

recommendation, they were still trying to design snug-fitting garments

with interlock knits

[[Page 2836]]

with inadequate stretch for this garment design. CPSC staff

observations in 1998 showed that snug-fitting sleepwear on children

could be made well following the industry practice of measuring 1 inch

down the inseam. Again, the fabrics used in these successful

observation garments had considerable stretch (65-85%).

8. Hourglass Silhouette

Two commenters requested that the bottom sweep (hem of the top) of

a two piece garment be increased to the standard seat dimension rather

than the waist dimension. Examples given by the J.C. Penney Company

showed that the sweep of various sizes of boys and girls garments would

have to stretch 14 to 28% of their original dimension to fit the hip.

They noted other problems from their perspective: (1) a questionable

pajama silhouette, (2) difficulty pulling the top over the head and

shoulders, (3) the sweep would ride up to the waist with body movement,

and (4) the fabric would be stretched loose (wrinkled) around the chest

and waist.

Gap expressed similar concerns about the exaggerated undersizing of

the sweep to the waist dimension, especially when factories are already

manufacturing garments toward a negative ``tolerance''. They observed

bunching as the garment rides up toward the waist and are concerned

that this is a safety hazard. They propose that the sweep be less than

or equal to the standard seat dimension for girls sizes 7 to 14 and

toddler sizes 2XL and 3XL (similar to 2T and 3T in the standards) for

reasons of comfort and fit.

The snug-fitting garment silhouette is very different than the

silhouette consumers have come to expect for pajamas. One reason the

Commission wanted the industry to move forward with the consumer

education campaign was to help consumers make the necessary adjustment

in their expectations. These snug-fitting garments should be viewed

realistically and appreciated for the safety of their design.

CPSC staff observed a variety of snug-fitting garments made of

different fabrics and by different manufacturers during the development

of the proposed technical amendments. None of the child models or

parents, in the case of the infant, had difficulty putting on or

removing the garments made to the proposed technical amendments.

The sweep is one of several dimensions for which commenters

requested increased dimensions to improve fit and comfort. The sweep

sized to the standard waist dimension has no problem stretching to fit

the larger hip, if made of fabrics that stretch adequately. Even if the

sweep is undersized one inch in production (Gap's concern), the J.C.

Penney examples discussed above must still only stretch approximately

14-28% of their original dimension. This is a small portion of the

available stretch of the fabric.

During the proposal's development, several manufacturers thought

the hourglass silhouette option might be helpful for larger girls'

sizes where the seat is considerably larger than the waist, but not

helpful for other sizes. The staff included the hourglass option in the

observations because it had the potential to reduce fabric bunching at

the waist and/or produce a more functional garment.

For the CPSC staff observations, a girls' size 12 garment was

constructed with a conservative hourglass silhouette; the sweep was

equal to the smaller chest dimension required by the standard rather

than the larger seat dimension. The top of the garment fit nicely while

the model stood still; however, when she raised her arms or moved

during the observation, the sweep flared away from the body

significantly, exposing the bottom edge of the garment.

All of the garments observed on children by the staff showed some

wrinkling or bunching of fabric at various points, most commonly around

the waist, knees and elbows. None of the pajama tops pulled up to the

waist as anticipated. The concept of snug-fitting was readily defeated

with the flaring of the sweep of the hourglass silhouette in the 2-

piece garment. For this reason, the Commission declines to increase the

size of the bottom sweep.

9. Sewing Tolerances

Three commenters supported the addition of sewing tolerances to the

standards. American Marketing Enterprises, Inc., commented that

tolerances are currently used during sewing and manufacturing of knit

garments. ``It is impossible to not have `plus or minus' tolerances in

a size specification. . . . [In] CPSC's policy . . . only minus

tolerances are allowed.'' Manufacturers are forced to undercut these

already snug fitting garments which results ``in substandard

garments.'' Not allowing for both a positive and negative tolerance is

``asking the trade to operate outside of the normal manufacturing

procedures.''

AAMA commented that its manufacturers have to undercut garments to

comply with the published measurements. ``This yields a garment that is

too tight and will force the consumer to buy a larger size creating new

safety hazards from garments that are too long.'' Also, the National

Cotton Council ``strongly believes that there is a need for a sewing

tolerance.''

Plus or minus tolerances are normally used in the production of all

garments and allow for permissible variations to the pattern

specifications that can occur during cutting or sewing of the garment.

However, a production tolerance that increases the garment dimensions

specified in the sleepwear standards would result in a less than snug-

fitting sleepwear garment. The snug fit is important because the ease

of ignition increases when the wearer's clothing stands away from the

body. Without a snug fit, if ignition occurs, the oxygen under the

garment and the absence of a heat sink increase the opportunity for

sustained burning.

The garment dimensions specified in the standard are maximum

dimensions for the seven body locations indicated. Manufacturers are

allowed to sell snug-fitting sleepwear garments so long as the garment

dimensions for a specific size are not exceeded. Knit fabrics are

available with a sufficient degree of stretch that even if the

manufacturer undercuts the fabric somewhat, the garment will still fit

the intended size child.

Snug-fitting sleepwear garments acceptable to consumers have been

available for purchase since the fall of 1997. Manufacturers are able

to produce acceptable sleepwear garments through the selective use of

specific knit fabrics that allow for necessary stretch and recovery.

These garments hug the body. Through careful planning before and during

the manufacturing process, manufacturers can build in acceptable

tolerances to the pattern so that the finished garments will meet the

required specification after assembly.

10. Shrinkage Tolerances

The National Cotton Council ``strongly believes that there is a

need for a * * * 5% shrinkage tolerance.''

The amount of shrinkage that occurs in a garment varies and is

dependent on the fiber type (or types in the case of blends), quality

of fiber, fabric construction and weight, method of manufacture, type

of finishing process, and subsequent laundering conditions. The

amendments to the children's sleepwear standards do not specify a

particular fiber or fabric; therefore, manufacturers may choose among a

variety of fiber contents, fabric constructions, etc., for snug-fitting

garments. A 5% tolerance for shrinkage may not be needed for all

fabrics. Those

[[Page 2837]]

garments with less than 5% shrinkage would be less than snug-fitting

because they would exceed the maximum dimensions after laundering. In

addition, with laundering required before measurements could be taken,

it would be burdensome and impractical for the Commission's staff and

others to determine compliance at the retail or manufacturing levels.

Difficulties in controlling shrinkage were previously cited by

industry members as reasons for allowing positive manufacturing

tolerances. Manufacturers of successful products this fall are using

several methods to control the shrinkage of their snug-fitting

garments: fabric compacting, garment washing, and fabrics made of more

stable cotton/polyester blends. For these reasons, the Commission

declines to add tolerances for shrinkage.

11. Fit and Consumer Preference

The National Cotton Council commented that the proposed amendments

``do not go far enough in correcting the garment fit problems and could

be further improved without affecting the safety provided by the

standard.'' SCSC is concerned that any changes may not help the

situation because it believes parents will purchase larger sizes and

defeat the tight fit intended by the rule.

Neither commenter provided data or other evidence to support its

position. CPSC staff observations from fittings with real garments and

children were reported in April 1998. These showed that comfortable,

functional garments that fit the size child intended can and are being

produced with the measurement clarifications proposed, and that are

being made final in this document.

12. Chest Measurement

Gap proposes that the chest measurement be taken 1 inch below the

armpit to armpit line. ``Because the armpit is a sewing point, the

garment is prone to stretching in this area, compromising the accuracy

of the measurement. The one inch modification will eliminate this

inaccuracy.''

Although other industry members have previously mentioned that this

measurement could be shifted to 1 inch below the armpit, none indicated

that it was troublesome to have the chest measured at the armpit. For

that reason, it was not included in the staff observations of snug-

fitting garments for developing the proposed technical amendments.

During the CPSC fittings reported in April 1998, the staff observed no

fit or function problems with garments made with chest measurements

determined at the armpit.

13. Enforcement Sample Size and Tolerances

Gap commented that clarification of CPSC's enforcement policy is

necessary to further set quality assurance guidelines. This is

important, Gap believes, because of the high variability inherent in

manufacturing knitted products. Specifically, Gap requests the sample

size and tolerance to be used by the Commission in enforcement testing.

Measurements defined in the tight-fitting amendments to the

sleepwear standards refer to maximum dimensions at specified locations

on garments. There are no positive tolerances specified in the proposed

amendments. The staff will consider enforcement of these measurements

on a case-by-case basis, and the staff will exercise enforcement

discretion where appropriate. The staff will consider the overall

compliance of the garments and may base enforcement actions on more

than one garment and/or dimension exceeding the maximum measurement,

including the frequency and size of the dimensional difference(s).

14. Sleeve Taper Clarification

During the comment period for the NPR, the Compliance staff

received several inquiries and comments from the industry regarding the

design and style of short sleeves and their acceptability under the

definition of tight-fitting garments. Several industry representatives

requested clarification about the required tapering of a sleeve that is

shorter than where the upper arm is to be measured.

With the proposed technical changes (May 21, 1998), the upper arm

measurement point is moved from the armpit to a location that more

closely approximates the true upper arm of a child wearing the garment.

The proposed location (approximately one quarter length down the

sleeve) is the midpoint between the shoulder and the elbow. The maximum

upper arm dimensions remain unchanged.

The original amendments of September 1996 (Sec. 1615.1(o)(3) and

Sec. 1616.2(m)(3)) define sleeves of a tight-fitting garment ``which

diminish in width gradually from the upper arm to the wrist''. The

upper arm of the garment was measured from the armpit. However, in the

proposed technical amendments, the upper arm measurement is made

further down the sleeve. The change, if interpreted literally, allows

for short or cap sleeves on garments that could realistically end at a

point above where the upper arm measurement is to be made.

In order to avoid flaring sleeves and maintain the desired safety

of the tapering sleeve silhouette, the language describing the sleeve

is changed to ``which diminish in width gradually from the top of the

shoulder (point G in diagram 1) [of sections 1615.1(o) and 1616.2(m)]

to the wrist.'' If a short sleeve ends before the location of the upper

arm measurement, the sleeve should still taper (rather than flare)

toward the wrist along the same lines as a long sleeve. This

clarification reflects the original intent of the amendment.

D. The Technical Changes

This final rule makes the technical changes that were proposed in

the NPR. These changes alter some of the locations where measurements

should be taken to determine if a sleepwear garment is tight-fitting.

Measurement of Upper Arm. As explained in the NPR, this change will

allow manufacturers to measure sleepwear garments at a location that

better approximates the true upper arm of the garment. In an effort to

simplify the definition of ``tight-fitting garment'' the 1996 sleepwear

amendments called for measuring from the arm pit; however, this does

not allow sufficient room at the upper opening of the sleeve. Under

this correction, the upper arm will be measured from the shoulder to

approximately one quarter the length of the arm.

The maximum upper arm dimensions for each size specified in the

1996 sleepwear amendments remain unchanged. The amendment only changes

the location where the upper arm is measured.

Measurement of Seat. The 1996 sleepwear amendments stated that the

seat should be measured ``at widest location between waist and

crotch.'' 16 CFR 1615.1(o) and 1616.2(m) (see footnotes to chart). If

read literally, this describes a location immediately above the bottom

of the crotch and is essentially the same location as specified for the

thigh measurement. This is not where the seat/hip measurement is

normally made under general industry practices. A literal reading of

this direction results in a more constricted pant in the seat and thigh

area.

During the staff observations of children wearing snug-fitting

garments, the staff found that specifying the point of measurement as 4

inches above the crotch consistently matched the seat/hip location on

the wearer. Specifying a uniform measurement for all sizes also has the

advantage of being easier to

[[Page 2838]]

apply both for manufacturers and for Commission enforcement. Thus, the

Commission is specifying that the seat should be measured 4 inches

above the crotch for all sizes.

Measurement of Thigh. The 1996 amendments stated that the thigh

measurement should be taken ``at a line perpendicular to the leg

extending from the outer edge of the leg to the crotch.'' 16 CFR

1615.1(o) and 1616.2(m) (see footnotes to chart). This calls for

measuring the thigh right at the bottom of the crotch. This is not

really the location of the thigh and means measuring at a point where

bulky seams join. Typical practice in the garment design and

manufacturing industry is to measure the thigh at a point one inch down

the inseam from its intersection with the crotch seam. This provides a

more accurate measurement of the thigh without interference from the

bulky intersection of the seams. Thus, the Commission is now specifying

that the thigh be measured at this point.

Sleeve Taper. As discussed with the comments above, changing the

point where the upper arm should be measured may cause confusion in

interpreting the requirement that sleeves taper from the upper arm. 16

CFR 1615.1(o)(3); 16 CFR 1616.2(m)(3). Because these technical changes

will revise the definition of ``upper arm,'' the tapering requirement

needs to be clarified. Thus, the Commission is revising the tapering

requirement so that it states that the sleeves must ``diminish in width

gradually from the top of the shoulder (Point G in Diagram 1) to the

wrist.''

E. Effective Date

Section 4(b) of the FFA provides that an amendment of a

flammability standard shall become effective one year from the date it

is promulgated, unless the Commission finds for good cause that an

earlier or later effective date is in the public interest and publishes

that finding. 15 U.S.C. 1193(b). Section 4(b) also requires that an

amendment of a flammability standard shall exempt product ``in

inventory or with the trade'' on the date the amendment becomes

effective, unless the Commission limits or withdraws that exemption

because those products are so highly flammable that they are dangerous

for use by consumers.

As explained in the NPR, the Commission believes that an effective

date 30 days after publication of final amendments will be in the

public interest. This provides adequate notice to the public and allows

for the prompt initiation of these minor adjustments.

The Commission is not withdrawing or limiting the exemption for

products in inventory or with the trade as provided by section 4(b) of

the FFA. The Commission stated in the NPR that manufacturers could use

the proposed points of measurement in making garments, and the staff

would not take any enforcement action.

F. Impact on Small Businesses

As noted in the NPR, when an agency undertakes a rulemaking

proceeding, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,

generally requires the agency to prepare proposed and final regulatory

flexibility analyses describing the impact of the rule on small

businesses and other small entities. Section 605 of the Act provides

that an agency is not required to prepare a regulatory flexibility

analysis if the head of an agency certifies that the rule will not have

a significant economic impact on a substantial number of small

entities.

In the NPR, the Commission certified that the proposed amendments

to the flammability standards for children's sleepwear would not have a

significant impact on a substantial number of small businesses or other

small entities. The Commission is not aware of any basis for changing

this conclusion.

G. Environmental Considerations

Pursuant to the National Environmental Policy Act, and in

accordance with the Council on Environmental Quality regulations and

CPSC procedures for environmental review, when the Commission issued

the NPR, it assessed the possible environmental effects associated with

the proposed amendments to the children's sleepwear standards. The

Commission determined that neither an environmental assessment nor an

environmental impact statement was required. The Commission is not

aware of any information leading to a contrary conclusion.

H. Executive Orders

According to Executive Order 12988 (February 5, 1996), agencies

must state in clear language the preemptive effect, if any, of new

regulations. These amendments would slightly modify the flammability

standards for children's sleepwear under the FFA. The FFA provides

that, generally, when a flammability standard issued under the FFA is

in effect, ``no State or political subdivision of a State may establish

or continue in effect a flammability standard or other regulation for

such fabric, related material, or product if the standard or other

regulation is designed to protect against the same risk of occurrence

of fire'' as the FFA standard ``unless the State or political

subdivision standard or other regulation is identical'' to the FFA

standard. 15 U.S.C. 1203(a). Upon application to the Commission, a

State or local standard may be excepted from this preemptive effect if

the State or local standard (1) provides a higher degree of protection

from the risk of injury or illness than the PPPA standard and (2) does

not unduly burden interstate commerce.

Thus, the amendments modify the points specified for measuring

garments exempt from the sleepwear flammability standards that preempt

non-identical state or local flammability standards or regulations

which are designed to protect against the same risk of occurrence of

fire as the FFA flammability standards for children's sleepwear.

In accordance with Executive Order 12612 of October 26, 1987, the

Commission certifies that the amendments do not have sufficient

implications for federalism to warrant a Federalism Assessment.

List of Subjects in 16 CFR Parts 1615 and 1616

Clothing, Consumer protection, Flammable materials, Infants and

children, Labeling, Records, Sleepwear, Textiles, Warranties.

Conclusion

For the reasons stated above and pursuant to the authority of

section 4 of the Flammable Fabrics Act (15 U.S.C. 1193) the Commission

amends 16 CFR parts 1615 and 1616 as follows:

PART 1615--STANDARD FOR THE FLAMMABILITY OF CHILDREN'S SLEEPWEAR:

SIZES 0 THROUGH 6X

1. The authority citation for part 1615 continues to read as

follows:

Authority: Sec. 4, 67 Stat. 112, as amended, 81 Stat. 569-70; 15

U.S.C. 1193.

2. Section 1615.1 is amended by revising the introductory language

and paragraphs (o) introductory text, (o)(1) and (o)(3) to read as

follows:

Sec. 1615.1 Definitions.

In addition to the definitions given in section 2 of the Flammable

Fabrics Act, as amended (15 U.S.C. 1191), the following definitions

apply for purposes of this Standard:

* * * * *

(o) Tight-fitting garment means a garment which:

(1)(i) In each of the sizes listed below does not exceed the

maximum dimension specified below for the chest,

[[Page 2839]]

waist, seat, upper arm, thigh, wrist, or ankle:

----------------------------------------------------------------------------------------------------------------

Chest Waist Seat Upper arm Thigh Wrist Ankle

----------------------------------------------------------------------------------------------------------------

Size 9-12 mos

Maximum dimension:

Centimeters.................... 48.3 48.3 48.3 14.3 26.7 10.5 13

(inches)....................... (19) (19) (19) (5\5/8\) (10\1/2\) (4\1/8\) (5\1/8\)

Size 12-18 mos

Maximum dimension:

Centimeters.................... 49.5 49.5 50.8 14.9 28.3 10.5 13.1

(inches)....................... (19\1/2\) (19\1/2\) (20) (5\5/8\) (11\1/4\) (4\1/8\) (5\1/8\)

Size 18-24 mos

Maximum dimension:

Centimeters.................... 52.1 50.8 53.3 15.6 29.5 11 13.6

(inches)....................... (20\1/2\) (20) (21) (6\1/8\) (11\5/8\) (4\1/4\) (5\3/8\)

Size 2

Maximum dimension:

Centimeters.................... 52.1 50.8 53.3 15.6 29.8 11.4 14

(inches)....................... (20\1/2\) (20) (21) (6\1/8\) (11\3/4\) (4\1/2\) (5\1/2\)

Size 3

Maximum dimension:

Centimeters.................... 53.3 52.1 56 16.2 31.4 11.7 14.9

(inches)....................... (21) (20\1/2\) (22) (6\3/8\) (12\3/8\) (4\5/8\) (5\7/8\)

Size 4

Maximum dimension:

Centimeters.................... 56 53.3 58.4 16.8 33.0 12.1 15.9

(inches)....................... (22) (21) (23) (6\5/8\) (13) (4\3/4\) (6\1/4\)

Size 5

Maximum dimension:

Centimeters.................... 58.4 54.6 61.0 17.5 34.6 12.4 16.8

(inches)....................... (23) (21\1/2\) (24) (6\7/8\) (13\5/8\) (4\7/8\) (6\5/8\)

Size 6

Maximum dimension:

Centimeters.................... 61.0 55.9 63.5 18.1 36.2 12.7 17.8

(inches)....................... (24) (22) (25) (7\1/8\) (14\1/4\) (5) (7)

Size 6X

Maximum dimension:.............

Centimeters.................... 62.9 57.2 65.4 18.7 37.8 13.0 18.7

(inches)....................... (24\3/4\) (22\1/2\) (25\3/4\) (7\3/8\) (14\7/8\) (5\1/8\) (7\3/8\)

----------------------------------------------------------------------------------------------------------------

(ii) Note: Measure the dimensions on the front of the garment. Lay

garment, right side out, on a flat, horizontal surface. Smooth out

wrinkles. Measure distances as specified below and multiply them by

two. Measurements should be equal to or less than the maximum

dimensions given in the standards.

(A) Chest--measure distance from arm pit to arm pit (A to B) as in

Diagram 1.

(B) Waist--See Diagram 1. One-piece garment, measure at the

narrowest location between arm pits and crotch (C to D). Two-piece

garment, measure width at both the bottom/ sweep of the upper piece (C

to D) and, as in Diagram 3, the top of the lower piece (C to D).

(C) Wrist--measure the width of the end of the sleeve (E to F), if

intended to extend to the wrist, as in Diagram 1.

(D) Upper arm--draw a straight line from waist/sweep D through arm

pit B to G. Measure down the sleeve fold from G to H. Refer to table

below for G to H distances for each size. Measure the upper arm of the

garment (perpendicular to the fold) from H to I as shown in Diagram 1.

BILLING CODE 6355-01-P

[[Page 2840]]

[GRAPHIC] [TIFF OMITTED] TR19JA99.015

BILLING CODE 6355-01-C

Distance From Shoulder (G) to (H) for Upper Arm Measurement for Sizes 9 Months through 6x

--------------------------------------------------------------------------------------------------------------------------------------------------------

9-12 mo 12-18 mo 18-24 mo 2 3 4 5 6 6x

--------------------------------------------------------------------------------------------------------------------------------------------------------

5.8 cm 21/8''... 6.6 cm 25/8'' 7.4 cm 27/8'' 7.4 cm 27/8'' 8.1 cm 31/4'' 8.8 cm 31/2'' 9.5 cm 31/4'' 10.3cm 4'' 11 cm 43/8''

--------------------------------------------------------------------------------------------------------------------------------------------------------

(E) Seat--Fold the front of the pant in half to find the bottom of

the crotch at J as in Diagram 2. The crotch seam and inseam intersect

at J. Mark point K on the crotch seam at 4 inches above and

perpendicular to the bottom of the crotch. Unfold the garment as in

Diagram 3. Measure the seat from L to M through K as shown.

(F) Thigh--measure from the bottom of the crotch (J) 1 inch down

the inseam to N as in Diagram 2. Unfold the garment and measure the

thigh from the inseam at N to O as shown in Diagram 3.

(G) Ankle--measure the width of the end of the leg (P to Q), if

intended to extend to the ankle, as in Diagram 3.

BILLING CODE 6355-01-P

[GRAPHIC] [TIFF OMITTED] TR19JA99.016

[[Page 2841]]

BILLING CODE6355-01-C

* * * * *

(3) Has sleeves which do not exceed the maximum dimension for the

upper arm at any point between the upper arm and the wrist, and which

diminish in width gradually from the top of the shoulder (point G in

Diagram 1) to the wrist;

PART 1616--STANDARD FOR THE FLAMMABILITY OF CHILDREN'S SLEEPWEAR:

SIZES 7 THROUGH 14

1. The authority for part 1616 continues to read as follows:

Authority: Sec. 4, 67 Stat. 112, as amended, 81 Stat 569-570; 15

U.S.C. 1193.

2. Section 1616.2 is amended by revising the introductory language

and paragraphs (m) introductory text, (m)(1) and (m)(3) to read as

follows:

Sec. 1616.2 Definitions.

In addition to the definitions given in section 2 of the Flammable

Fabrics Act, as amended (15 U.S.C. 1191), the following definitions

apply for purposes of this Standard:

* * * * *

(m) Tight-fitting garment means a garment which:

(1)(i) In each of the sizes listed below does not exceed the

maximum dimension specified below for the chest, waist, seat, upper

arm, thigh, wrist, or ankle:

----------------------------------------------------------------------------------------------------------------

Chest Waist Seat Upper arm Thigh Wrist Ankle

----------------------------------------------------------------------------------------------------------------

Size 7 Boys \1\

Maximum dimension:

Centimeters.................... 63.5 58.4 66 18.7 37.2 13.0 18.7

(inches)....................... (25) (23) (26) (7\3/8\) (14\5/8\) (5\1/8\) (7\3/8\)

Size 7 Girls

Maximum dimension:

Centimeters.................... 63.5 58.4 67.3 18.7 38.7 13.0 18.7

(inches)....................... (25) (23) (26\1/2\) (7\3/8\) (15\1/4\) (5\1/8\) (7\3/8\)

Size 8 Boys \1\

Maximum dimension:

Centimeters.................... 66 59.7 67.3 19.4 38.4 13.3 19.1

(inches)....................... (26) (23\1/2\) (26\1/2\) (7\5/8\) (15\1/8\) (5\1/4\) (7\1/2\)

Size 8 Girls

Maximum dimension:

Centimeters.................... 66 59.7 71.1 19.4 41.3 13.3 19.1

(inches)....................... (26) (23\1/2\) (28) (7\5/8\) (16\1/4\) (5\1/4\) (7\1/2\)

Size 9 Boys \1\

Maximum dimension:

Centimeters.................... 68.6 61.0 69.2 20 39.7 13.7 19.4

(inches)....................... (27) (24) (27\1/4\) (7\7/8\) (15\5/8\) (5\3/8\) (7\5/8\)

Size 9 Girls

Maximum dimension:

Centimeters.................... 68.6 61.0 73.7 20 42.6 13.7 19.4

(inches)....................... (27) (24) (29) (7\7/8\) (16\3/4\) (5\3/8\) (7\5/8\)

Size 10 Boys \1\

Maximum dimension:

Centimeters.................... 71.1 62.2 71.1 20.6 41.0 14 19.7

(inches)....................... (28) (24\1/2\) (28) (8\1/8\) (16\1/8\) (5\1/2\) (7\3/4\)

Size 10 Girls

Maximum dimension:

Centimeters.................... 71.1 62.2 76.2 20.6 43.8 14 19.7

(inches)....................... (28) (24\1/2\) (30) (8\1/8\) (17\1/4\) (5\1/2\) (7\3/4\)

Size 11 Boys \1\

Maximum dimension:

Centimeters.................... 73.7 63.5 73.7 21 42.2 14.3 20

(inches)....................... (29) (25) (29) (8\1/4\) (16\5/8\) (5\5/8\) (7\7/8\)

Size 11 Girls

Maximum dimension:

Centimeters.................... 73.7 63.5 78.7 21 45.1 14.3 20

(inches)....................... (29) (25) (31) (8\1/4\) (17\3/4\) (5\5/8\) (7\7/8\)

Size 12 Boys \1\

Maximum dimension:

Centimeters.................... 76.2 64.8 76.2 21.6 43.5 14.6 20.3

(inches)....................... (30) (25\1/2\) (30) (8\1/2\) (17\1/8\) (5\3/4\) (8)

Size 12 Girls

Maximum dimension:

Centimeters.................... 76.2 64.8 81.3 21.6 46.7 14.6 20.3

(inches)....................... (30) (25\1/2\) (32) (8\1/2\) (18\1/2\) (5\3/4\) (8)

[[Page 2842]]

Size 13 Boys \1\

Maximum dimension:

Centimeters.................... 78.7 66 78.7 22.2 44.8 14.9 20.6

(inches)....................... (31) (26) (31) (8\3/4\) (17\5/8\) (5\7/8\) (8\1/8\)

Size 13 Girls

Maximum dimension:

Centimeters.................... 78.7 66 83.8 22.2 47.6 14.9 20.6

(inches)....................... (31) (26) (33) (8\3/4\) (18\3/4\) (5\7/8\) (8\1/8\)

Size 14 Boys \1\

Maximum dimension:

Centimeters.................... 81.3 67.3 81.3 22.9 46 15.2 21

(inches)....................... (32) (26\1/2\) (32) (9) (18\1/8\) (6) (8\1/4\)

Size 14 Girls

Maximum dimension:

Centimeters.................... 81.3 67.3 86.4 22.9 49.5 15.2 21

(inches)....................... (32) (26\1/2\) (34) (9) (19\1/2\) (6) (8\1/4\)

----------------------------------------------------------------------------------------------------------------

\1\ Garments not explicitly labeled and promoted for wear by girls must not exceed these maximum dimensions.

(ii) Note: Measure the dimensions on the front of the garment. Lay

garment, right side out, on a flat, horizontal surface. Smooth out

wrinkles. Measure distances as specified below and multiply them by

two. Measurements should be equal to or less than the maximum

dimensions given in the standards.

(A) Chest--measure distance from arm pit to arm pit (A to B) as in

Diagram 1.

(B) Waist--See Diagram 1. One-piece garment, measure at the

narrowest location between arm pits and crotch (C to D). Two-piece

garment, measure width at both the bottom/sweep of the upper piece (C

to D) and, as in Diagram 3, the top of the lower piece (C to D).

(C) Wrist--measure the width of the end of the sleeve (E to F), if

intended to extend to the wrist, as in Diagram 1.

(D) Upper arm--draw a straight line from waist/sweep D through arm

pit B to G. Measure down the sleeve fold from G to H. Refer to table

below for G to H distances for each size. Measure the upper arm of the

garment (perpendicular to the fold) from H to I as shown in Diagram 1.

BILLING CODE 6355-01-P

[GRAPHIC] [TIFF OMITTED] TR19JA99.017

BILLING CODE 6355-01-C

Distance From Shoulder (G) to (H) for Upper Arm Measurement for Sizes 7 Through 14

----------------------------------------------------------------------------------------------------------------

7 8 9 10 11 12 13 14

----------------------------------------------------------------------------------------------------------------

11.4 cm...... 11.7 cm 11.9 cm 12.5 cm 12.8 cm 13.1 cm 13.7 cm 14.2 cm

4\1/2\ ''.... 4\5/8\'' 4\3/4\'' 4\7/8\'' 5'' 5\1/8\'' 5\3/8\'' 5\5/8\''

----------------------------------------------------------------------------------------------------------------

(E) Seat--Fold the front of the pant in half to find the bottom of

the crotch at J as in Diagram 2. The crotch seam and inseam intersect

at J. Mark point K on the crotch seam at 4 inches above and

perpendicular to the bottom of the

[[Page 2843]]

crotch. Unfold the garment as in Diagram 3. Measure the seat from L to

M through K as shown.

(F) Thigh--measure from the bottom of the crotch (J) 1 inch down

the inseam to N as in Diagram 2. Unfold the garment and measure the

thigh from the inseam at N to O as shown in Diagram 3.

(G) Ankle--measure the width of the end of the leg (P to Q), if

intended to extend to the ankle, as in Diagram 3.

BILLING CODE 6355-01-P

[GRAPHIC] [TIFF OMITTED] TR19JA99.018

BILLING CODE 6355-01-C

* * * * *

(3) Has sleeves which do not exceed the maximum dimension for the

upper arm at any point between the upper arm and the wrist, and which

diminish in width gradually from the top of the shoulder (point G in

Diagram 1) to the wrist;

Dated: January 13, 1999

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission

References

The following documents contain information relevant to this

rulemaking proceeding and are available for inspection at the Office

of the Secretary, Consumer Product Safety Commission, Room 502, 4330

East-West Highway, Bethesda, Maryland:

1. Memorandum from Margaret Neily, Project Manager, Directorate

for Engineering, to the Commission, ``Children's Sleepwear

Flammability Standards--Technical and Enforcement Policy

Amendments--Analysis of Public Comments and Proposed Final Rules,''

January 5, 1999.

2. Memorandum from Michael A. Greene, Ph.D., Directorate for

Epidemiology and Health Sciences, ``Update to the Proposed Technical

Changes To Sleepwear Standard Briefing Package,'' December 18, 1998.

3. Memorandum from Margaret Neily, Project Manager, Directorate

for Engineering, to File, ``Analysis of Public Comments on Proposed

Technical Amendments to the Children's Sleepwear Amendments,''

November 30, 1998.

4. Memorandum from Terrance R. Karels, Directorate for Economic

Analysis, to Margaret Neily, ES, ``Sleepwear Market,'' December 10,

1998.

5. Memorandum from Terrance R. Karels, Directorate for Economic

Analysis, to Margaret Neily, ES, ``Revisions to the Children's

Sleepwear Amendments,'' December 10, 1998.

6. Memorandum from Carolyn Meiers, ESHF, to Margaret Neily, ES,

``Response to Comments on Notice of Proposed Rulemaking Regarding

Changes to the Amendments for Children's Sleepwear,'' December 3,

1998.

7. Memorandum from Linda Fansler, Division of Engineering, to

Margaret L. Neily, ES, ``Response to Comments on Technical

Amendments to the Children's Sleepwear Standards,'' November 25,

1998.

8. Memorandum from Marilyn Borsari, Compliance Officer, to

Margaret L. Neily, ES, ``Clarification of sleeve taper/short sleeve

garments and enforcement policy regarding sample size and

tolerance,'' December 7, 1998.

9. Memorandum from Marilyn Borsari, Compliance Officer, to

Margaret LO. Neily, Project Manager, ``Clarification of Proposed

Clarification of Statement of Policy,'' December 7, 1998.

[FR Doc. 99-1138 Filed 1-15-99; 8:45 am]

BILLING CODE 6355-01-P