§ 1631.31 - Reasonable and representative tests and recordkeeping requirements.

§ 1631.31 Reasonable and representative tests and recordkeeping requirements.

Explanation: Section 8 of the act, among other things, provides that no person shall be subject to criminal prosecution under section 7 of the act for a violation of section 3 of the act if such person establishes a guaranty received in good faith signed by and containing the name and address of the person by whom the product, fabric, or related material guaranteed was manufactured, or from whom it was received, to the effect that reasonable and representative tests made in accordance with applicable flammability standards show that the product, fabric, or related material covered by the guaranty conforms with such standards.

While a person establishing a guaranty received in good faith would not be subject to criminal prosecution under section 7 of the act, he, and/or the merchandise involved, would nevertheless remain subject to the administrative processes of the Consumer Product Safety Commission under section 5 of the act as well as injunction and condemnation procedures under section 6 thereof. A guarantor derives no immunity of any kind, civil or criminal, from the issuance of his own guaranty or performance of the reasonable and representative tests prescribed by this section.

The furnishing of guaranties is not mandatory under the act. The purpose of this section is to establish minimum requirements for reasonable and representative tests upon which guaranties may be based. The section does not have any legal effect beyond that specified in section 8 of the act.

(a) For the purposes of this section the following definitions apply:

(1) Standard means the Standard in subpart A of this part.

(2) Test means a test as prescribed by the Standard.

(3) Acceptance criterion means “acceptance criterion” as defined in the Standard.

(4) Test criterion means “test criterion” as defined in the Standard.

(5) Carpet and rug mean “carpet” and “rug” as defined in the Standard.

(6) Quality of machine-made carpets or rugs means any line of carpets or rugs, essentially machine-made, which are substantially alike in all respects, including, as applicable, constructional units (needles, pitch, rows, shot, stitches, and weight), dye class, dyestuff, dyeing application method, gage, pile levels, pile height, average pile thickness, pile weight, pile yarn, total thickness, total weight, tufts, tuft length, tuft bind, warp yarn, filler yarn, yarn ends per needle, loop length, backing, back coating, primary backing, secondary backing, backing thickness, backing fabric count, backing warp and filler yarns, including stuffer and dead frame yarns, backing weight, fiber and/or other materials content, and fire retardant treatment received including the specifications and quantity of chemicals used.

(7) Quality of handmade or hide carpets or rugs means any line of carpets or rugs which are essentially handmade and/or are essentially hides and which are alike in all respects, including those specified in paragraph (a)(6) of this section, where applicable, except that such carpets or rugs may vary where unavoidable and/or may vary because of natural variations in hides of the same type, so long as such variations do not affect flammability.

(b) The tests set forth in paragraphs (c), (d), (e), and (f) of this section are reasonable and representative tests with regard to any carpets or rugs or qualities thereof to which they apply, except, however, that any test of any quality, whenever performed, which does not show a meeting of the acceptance criterion of the Standard shall be considered the reasonable and representative test for that quality and no guaranty with respect thereto shall be issued after the performance of such test. Immediately before conditioning and testing, each carpet or rug specimen tested pursuant to this section shall be in the form in which the carpet or rug or quality thereof which it represents is sold or offered for sale to the ultimate consumer.

(c) Reasonable and representative tests with respect to any quality of machine-made carpets or rugs are

(1) at least one test performed upon commencement of production, importation, or other receipt thereof,

(2) at least one test performed after production, importation, or other receipt of the first 25,000 linear yards of the quality, and

(3) at least one test after production, importation, or other receipt of every 50,000 linear yards of the quality thereafter. Except, however, that tests need be performed only after production, importation, or receipt of each additional 100,000 linear yards of the quality, so long as all 24 specimens required to be tested in a complete series of three required tests immediately preceding any given test (eight out of eight specimens in each of the three preceding tests) meet the test criterion, rather than seven out of eight specimens, as permitted under the acceptance criterion of the Standard.

(d) Reasonable and representative tests with respect to any quality of handmade or hide carpets or rugs are at least one test performed upon the commencement of production, importation, or other receipt thereof and at least one test after production, importation, or other receipt of every 10,000 square yards of the quality thereafter.

(e) Reasonable and representative tests of a one-of-a-kind carpet or rug, machine made, handmade, or hide, is one test thereof or one test of an identical representative sample.

(f) Guaranties for carpets or rugs in inventory upon the effective date of the Standard may be issued in the same manner as other guaranties are issued. Reasonable and representative tests with respect to qualities or such carpets or rugs are at least one test performed upon approximately the first linear yard and one test thereafter for each 25,000 linear yards of a quality of machine-made carpets or rugs and at least one test performed upon approximately the first square yard and thereafter for each 10,000 square yards of a category of hand-made or hide carpets or rugs, in the order of the production, importation, or receipt by the guarantor of that quality.

(g) Any person issuing a guaranty for one or more carpets or rugs or qualities thereof based on reasonable and representative tests, shall maintain the following records for a period of 3 years from the date the tests were performed, or in the case of paragraph (h) of this section, the date the guaranties were furnished. These records must be maintained in the United States by a person subject to section 3 of the act:

(1) All identifying numbers, symbols, etc., manufacturing specifications including all other information described in paragraph (a)(6) of this section, as applicable, and source of products or raw materials used therein.

(2) A physical sample of each carpet or rug or quality thereof covered by the guaranty at least 6 inches by 6 inches in size (36 square inches).

(3) The original or a copy of the report of each test performed for purposes of the guaranty (whether or not such report shows a meeting of the acceptance criterion) which shall disclose the date of the test, the results, and sufficient information to clearly identify the carpet or rug tested.

(4) A record applicable to each test in paragraph (g)(3) of this section showing the approximate yardage at which it was performed. Records otherwise required to be maintained in linear yards may be maintained in square yards on the basis of 4 square yards equals 1 linear yard.

(h) Persons furnishing guaranties based on guaranties received by them shall maintain records showing the guaranty received and identification of the carpet or rug or quality thereof guaranteed in turn by them.

(i) Any person furnishing a carpet or rug guaranty under section 8(a) of the act who neglects or refuses to maintain and preserve the records prescribed in this section shall be deemed to have furnished a false guaranty under the provisions of section 8(b) of the act.

(Sec. 5 of the Act, 67 Stat. 112, as amended by 81 Stat. 570, 15 U.S.C. 1194; sec. 8 of the Act, 67 Stat. 114, as amended by 81 Stat. 572, 15 U.S.C. 1197)