07-779. Standard for the Flammability of Clothing Textiles; Notice of Proposed Rulemaking

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Commission is proposing to amend its flammability standard of general wearing apparel, the Standard for the Flammability of Clothing Textiles, 16 CFR part 1610. The Standard, originally issued in 1953, has become outdated in several respects. The Commission is proposing changes to better reflect current consumer practices and technologies and to clarify several aspects of the Standard.

DATES:

Written comments must be received by May 14, 2007. Requests to make an oral presentation must be received by April 13, 2007.

ADDRESSES:

Written comments should be filed by e-mail to [e-mail]. Comments also may be filed by telefacsimile to [phone], or they may be mailed or delivered, preferably in five copies, to the Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone [phone]. Comments should be captioned “Clothing NPR.”

The public may also request an opportunity to present comments orally. Such requests should be submitted to the Office of the Secretary by e-mail, mail, fax or in person at the addresses or phone numbers listed above.

FOR FURTHER INFORMATION CONTACT:

Patricia K. Adair, Directorate for Engineering Sciences, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone [phone].

SUPPLEMENTARY INFORMATION:

A. Background

1. History of the Standard

It excludes footwear, interlining fabrics, and some hats and gloves. The standard provides a test to determine whether such clothing and fabrics exhibit “rapid and intense burning,” and are therefore highly flammable.

In 1953, Congress enacted the Flammable Fabrics Act of 1953 (“FFA”), (Pub. L. 83-88, 67 Stat. 111). As enacted in 1953 and amended in 1954, the FFA prohibited the importation, manufacture for sale, or the sale in commerce of any article of wearing apparel, which is “so highly flammable as to be dangerous when worn by individuals.” The FFA of 1953 specified that a test, first published by the Department of Commerce as a voluntary commercial standard, then called “Flammability of Clothing Textiles, Commercial Standard (“CS”) 191-53,” shall be used to determine if fabric or clothing is “so highly flammable as to be dangerous when worn by individuals.”

In 1967, Congress amended the FFA, expanding its coverage and authorizing the Secretary of Commerce to issue flammability standards through rulemaking. A savings clause kept the flammability standard for clothing textiles that the 1953 Act had mandated in effect until superseded or modified by the Secretary of Commerce through the procedures specified in the 1967 amendment. See section 11 of Pub. L. 90-189, 81 Stat. 568, December 14, 1967.

In 1972, Congress established the Consumer Product Safety Commission when it enacted the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051 et seq. The CPSA transferred to the Commission the authority the Secretary of Commerce had to issue and amend flammability standards under the FFA. 15 U.S.C. 2079(b). In 1975, the Commission published the FFA of 1953 at 16 CFR 1609 and codified the Standard for the Flammability of Clothing Textiles at 16 CFR part 1610.

2. The Current Standard

Most fabrics are combustible. Some combustible fabrics, when used for clothing are potentially dangerous to the wearer because of the speed and intensity of flame with which those fabrics burn and their ease of ignition and because of the design of the garment. The Standard sets out a method for measuring burn time, which is a function of ease of ignition and flame spread rate.

The Commission is not proposing to change the essential aspects of the Standard, but rather to update and clarify it. The Standard describes a test apparatus and the procedures for testing clothing and textiles intended to be used for clothing. It establishes three classes of flammability. The classes are based on measurement of burn time, along with visual observations of flame intensity. The classes are: Class 1 or normal flammability; Class 2 or intermediate flammability; and Class 3 or rapid and intense burning. Clothing and textiles that are categorized as Class 3 under the prescribed test method are considered dangerously flammable. 16 CFR 1610.3.

To determine the appropriate classification, the Standard prescribes the method of testing. Five specimens are subjected to a flammability tester. This is a draft-proof ventilated chamber containing an ignition medium, a sample rack and an automatic timing device. Id. 1610.4(b). The ignition medium is a motor driven gas jet around a 26-gage hypodermic needle. Id. 1610.4(b)(6). A swatch of each sample must be subjected to the dry cleaning and hand washing procedure prescribed by the Standard. Id. 1610.4(d)&(e). To determine results, the average time of flame spread is taken for five specimens. However, if the time of flame spread is less than 4 seconds (31/2 seconds for plain-surfaced fabrics), five additional specimens must be tested and the average time of flame spread for these ten specimens, or for as many of them as burn, must be taken. Id. 1610.4(g)(7). Classification is based on the reported results before and after drycleaning and washing, whichever is lower. Id. 1610.4(g)(8).

3. The Products

The products regulated under the Standard are clothing and fabrics intended to be used for clothing. The Standard applies to all items of clothing, and fabrics used for such clothing, whether for adults or children, for daywear or nightwear. The Commission has other regulations governing the flammability of children's sleepwear, 16 CFR parts 1615 and 1616, that are more stringent than the general wearing apparel flammability standard. The proposed changes discussed in this notice would not affect the children's sleepwear standards.

4. The Risk of Injury

Fatalities where clothing was the first item ignited have declined from 311 fatalities in 1980 to 110 fatalities in 2003, the most recent year of available data. An average of 122 clothing fire-related fatalities occurred annually during 1999-2003. Population fatality rates increased with age. In addition, an estimated 3,822 non-fatal injuries were treated in hospital emergency departments annually (2000-2004). Among these non-fatal injuries, 25 percent were serious enough to require admission to a hospital (compared to 5% for all consumer products). The changes the Commission is proposing will better reflect current practices and technologies and clarify some aspects of the Standard. These changes should improve the Standard's ability to address the risk of injury.

B. Statutory Provisions

The FFA sets forth the process by which the Commission can issue or amend a flammability standard. The Commission first must issue an advance notice of proposed rulemaking (“ANPR”) which it did on September 12, 2002, 67 FR 57770.

The Commission is now issuing a notice of proposed rulemaking (“NPR”). As required, this notice contains the text of the proposed rule along with alternatives the Commission has considered and a preliminary regulatory analysis. 15 U.S.C. 1193(i). Before issuing a final rule, the Commission must prepare a final regulatory analysis, and it must make certain findings concerning any relevant voluntary standard, the relationship of costs and benefits of the rule, and the burden imposed by the regulation. Id. 1193(j). In addition, the Commission must find that the standard (1) is needed to adequately protect the public against the risk of the occurrence of fire leading to death, injury or significant property damage, (2) is reasonable, technologically practicable, and appropriate, (3) is limited to fabrics, related materials or products which present unreasonable risks, and (4) is stated in objective terms. 15 U.S.C. 1193(b).

The Commission also must provide an opportunity for interested persons to make an oral presentation before the Commission may issue a final rule. Id. 1193(d). The Commission requests that anyone who would like to make an oral presentation concerning this rulemaking please contact the Commission's Office of the Secretary (address is provided in the ADDRESSES section of this notice) within 45 days of publication of this notice. If the Commission receives requests to make oral comments, a date will be set for a public meeting for that purpose and notice of the meeting will be provided in the Federal Register.

C. Proposed Revision

To reflect changes in consumer garment care practices and to make the standard easier to understand, the Commission is proposing certain changes to the clothing flammability standard. These are discussed below.

Definitions. Over the years people have expressed confusion over the meaning of certain terms and a lack of defined terminology in the Standard. In particular, the meaning of the terms “base burn” and “surface flash” have caused confusion in interpreting and reporting test results for raised surface textile fabrics. These terms are now defined in the proposal. In addition, several other relevant terms and definitions have been added. These terms include burn time, dry cleaning, flammability, flame, ignition, interlining, laundering, long dimension, plain surface textile fabric, raised surface textile fabric, refurbishing, sample, specimen, and stop thread supply.

Changes to the flammability tester. The test chamber prescribed in the current Standard uses a mechanical timing mechanism and is no longer available for purchase. Apparel manufacturers and testing laboratories currently use more modern flammability test chambers that incorporate electro-mechanical components to apply the ignition flame and measure burn time. (The Standard allows alternate procedures if they are as stringent as the specified procedure.) A variety of such testers are available from a number of manufacturers. The proposed revision describes the critical parameters of a modern flammability test apparatus and provides diagrams. In 1982, CPSC staff conducted some work comparing the flame impingement time of the electrical test chamber to that of a chamber with the mechanical timing device and found that the electrical test chamber readings were comparable to and more consistent than the manual test chamber readings. The proposed revisions expressly permit the use of electro-mechanical devices to control and apply the flame impingement.

Refurbishing methods. The Standard requires fabrics to be refurbished, that is, dry cleaned and laundered, one time before testing. The purpose of this requirement is to remove any non-durable solvent or water soluble treatment present on the fabric. It is not intended to replicate how the garment would be used or cared for by a consumer. Both the dry cleaning and laundering procedures prescribed by the current Standard are outdated. The proposal revises these procedures to better reflect modern techniques for laundering and dry cleaning.

The method of dry cleaning that the current Standard prescribes requires perchloroethylene in an open vessel. However, perchloroethylene has been shown to cause cancer in animal tests, and use in this manner violates regulations issued by the Environmental Protection Agency. The Commission staff has not used this procedure since 1986. (The Standard allows alternate procedures if they are as stringent as the specified procedure.) Industry and independent laboratories have been using an alternative dry cleaning procedure provided in ASTM D 1230, Standard Test Method for Apparel Flammability. This procedure uses perchlorethylene in a closed environment commercial dry cleaning machine for one cycle. Analysis of test data from an ASTM interlaboratory round robin indicates that this procedure is as stringent as the procedure currently specified in 16 CFR part 1610. However, the ASTM standard lacks specifications for solvent type, detergent class, cleaning and extraction time, drying time and temperature, and cool down/deoderization time. If specific and uniform conditions are not followed, test results could vary. Therefore, the proposed revision includes specific parameters for these conditions. These parameters were suggested by the International Fabricare Institute, a trade association for the professional garment care industry.

The current Standard requires that after fabric samples are dry cleaned they must be hand washed with neutral chip soap and line dried before testing them for flammability. 16 CFR 1610.4(e). However, neutral chip soap is no longer available. Most detergents are now non-phosphate based due to environmental concerns. The proposed revision sets forth laundering requirements based on those prescribed in American Association of Textile Chemists and Colorists (“AATCC”) 124-2001, Appearance of Fabrics After Repeated Home Laundering. An earlier version of this test method was incorporated into other FFA standards in 2000. 65 FR 12924, 12929, and 12935 (March 10, 2000).

Test procedures. Over the years, manufacturers and testing laboratories have expressed confusion regarding the test procedures and materials or equipment required by the Standard. Inaccurate sample preparation and conditioning undermine the efficacy of the Standard. In the ANPR, the Commission identified confusing sections of the test procedure, including the instructions for selecting the surface or direction of the fabric to be tested, and the directions for determining when to test five additional specimens. The proposed revision reorganizes and rewrites the test procedure in a more logical step-by-step fashion to clarify the directions for selecting the surface or direction of the fabric to be tested, how to determine when testing five additional specimens is necessary, as well as how to conduct the flammability test.

Test result interpretation and reporting. The current Standard provides no codes to report complex test results consistently. Although this is not an issue for plain surface textile fabrics, it is for raised surface textile fabrics, the classification of which is more complex. The proposed revision clarifies the instructions for calculating burn times and establishing the occurrence of a base burn (§ 1610.8). By defining the terms “base burn” and “surface flash” in § 1610.2, the proposed revision provides further clarification for the reporting of test results for raised surface textile fabrics. The proposed revision also specifies test result codes. These codes come from CPSC's laboratory test manual and are based on codes developed by the Federal Trade Commission many years ago. Uniform result codes will facilitate reporting accuracy and consistency, understanding of flammability performance, and resolution of test result differences among laboratories.

Subpart B and Subpart C. The Commission is also proposing changes to subparts B and C of the Standard. To reduce confusion, the proposal moves some provisions concerning procedures for conducting the tests that are currently in subpart B and C into subpart A. This should provide a more cohesive and clearer standard. Subpart C is substantially the same, but some language has been clarified to make it more consistent with subparts A and B, and the section describing the history of the FFA and the Standard has been removed.

D. Response to Comments on the ANPR

On September 12, 2002, the Commission published an ANPR initiating this rulemaking. 67 FR 57770. The Commission received 18 written comments from businesses, trade associations, and interested parties representing various segments of the fiber, textile and apparel industries, as well as academic institutions and fire service organizations. Commenters generally agreed that the Standard needs to be updated and reorganized. Specific issues raised by the comments are discussed below.

1. Laundering and Dry Cleaning

a. Comment. One commenter suggested considering new dry cleaning methods/solvents as an alternative to perchloroethylene.

Response. The Commission recognizes that new dry cleaning technologies have emerged in recent years as alternatives to perchloroethylene and that at least one region of the country is moving to phase-out the use of perchloroethylene by 2020. At this time, however, approximately 70% of U.S. dry cleaners still use perchloroethylene. Perchloroethylene is known to be slightly more severe in solvent action than other solvents and more likely to remove any flame retardant treatments on textiles. The proposal specifies a “normal” commercial dry cleaning method which includes specifications for cleaning, extraction, drying temperature, drying time and cool down/deodorization. Samples are to be cleaned in a commercial dry cleaning machine, using perchloroethylene as the solvent in a closed environment.

b. Comment. One commenter expressed concern over the role of fabric softeners in fabric flammability.

Response. According to the Procter and Gamble Company, about 71% of U.S. households have some form of fabric softener. The most common forms of fabric softeners for home laundering are liquid softeners (purchased by 42% of U.S. households) and dryer-added sheet softeners (purchased by about 49% of U.S. households). Dryer sheet softeners have anti-static properties. Some households use both forms; some consumers use both a rinse cycle softener and a dryer sheet softener for the same load of laundry. At the present time there is no “standard reference” fabric softener. The AATCC technical committee RA88 on Home Laundering Technology is working on the development of a standard reference fabric softener; the technical committee estimates that this work may be completed in approximately three years. The Commission is not including a requirement for fabric softener at this time since there is no standard fabric softener to reference.

c. Comment. For changes to the dry cleaning and laundering procedures, two commenters suggested CPSC consider current AATCC and ASTM standards.

Response. The proposal incorporates certain sections of AATCC Test Method 124-2001 “Appearance of Fabrics After Repeated Home Laundering,” consistent with other FFA regulations (16 CFR Parts 1615, 1616, 1630, 1631 and 1632). The dry cleaning procedure in the proposal is similar but not identical to ASTM D1230 Standard Test Method for Flammability of Apparel Textiles section 9.2.1.6 Option B. The proposal has specifications for dry cleaning in a commercial dry-cleaning machine using perchloroethylene in a “normal” cycle.

d. Comment. One commenter provided suggestions for updating the laundering method which included increasing the number of cycles.

Response. The intent of the laundering and dry cleaning requirements of the Standard is to remove any non-durable flame retardant treatments that may be on the clothing textile; its intent is not to replicate the consumer's refurbishing practices. No change has been made; one cycle of each refurbishing method is required.

e. Comment. One commenter suggested requiring only the refurbishing method on the garment care label.

Response. The Standard applies to fabrics and fabrics used in garments. While the test method can be used to test fabric in the garment stage it also applies to fabric before it is sewn into a garment, so a fabric care label may not be present. The refurbishing requirement (laundering/dry cleaning) is to remove any solvent or water soluble treatment that might be on the garment. It is not meant to test the durability of fabric treatments over the lifetime of a garment.

2. Clarifications in the Standard

a. Comment. Several comments suggested areas of the Standard in need of clarification. These included clarifying the brushing of the specimens, fabrics considered to be raised fiber textiles, determination of the nap direction of raised surface textiles, exemptions allowed and interpretation of test results for classification.

Response. The Commission agrees that sections of the current Standard are difficult to interpret and need clarification, including clearer instructions on brushing of raised fiber surface textiles and determination of which fabrics are considered to have raised fiber surfaces. The proposal includes examples of raised fiber surface textiles and provides guidance on testing these fabrics. The proposal moves language from footnotes into the body of the Standard to clarify the exemptions allowed and brings forward clarifying language from 16 CFR subparts B and C. In addition, the proposed revision includes new text and graphics on the test procedure, interpretation of test results for classification, and engineering diagrams of the flammability test apparatus.

b. Comment. Commenters suggested adding portions of the CPSC laboratory test manual to clarify the test procedures in the Standard.

Response. The staff used the 1981 CPSC laboratory manual as a resource in developing recommendations to amend the Standard. The proposal has added language from the lab manual in many sections.

c. Comment. One commenter suggested that the terms “surface flash” and “base burn” be defined in the Standard; another suggested definitions for these terms.

Response. The proposal adds many new definitions to the Standard, including definitions for “surface flash” and “base burn” to facilitate clearer understanding of the flammability test, classification criteria and reporting results.

d. Comment. Two commenters suggested reorganizing the Standard to eliminate duplication.

Response. The Commission agrees and proposes to reorganize large portions of the Standard to eliminate duplication and make it easier to follow and understand.

3. Enforcement and Procedural Issues

a. Comment. Two commenters urged CPSC to continue with enforcement of 16 CFR part 1610.

Response. The CPSC Office of Compliance actively enforces 16 CFR part 1610 and continues to see violations of the Standard. From 1995 through June 2006, the Commission announced the recall of 28 apparel products for violations of 16 CFR part 1610.

b. Comment. One commenter suggested CPSC should consider promulgating a procedure or mechanism that allows the agency to make technical changes to this and other standards on a routine basis when referenced voluntary standards are upgraded by AATCC and ASTM (e.g., laundering and dry cleaning) without having to go through full notice and comment rulemaking.

Response. For any change by a voluntary standards organization to have the force and effect of a Commission rule, the Commission must formally adopt it through notice and comment rulemaking.

c. Comment. Some commenters suggested that the requirements of the Standard should be made more stringent to improve the level of safety provided by the Standard; comments included reviewing the appropriateness of the ignition source and ignition time, increasing the ignition time from 1 to 5 seconds, revising the acceptable burn times; considering forced ignition, ignition of the lower cut edge of the specimen and horizontal and vertical test configurations. One comment was concerned with the need for new flammability requirements for certain types of clothing (adult sleepwear and bathrobes). One commenter suggested adding a list of “suspect fabrics” and requiring more frequent testing for these fabrics. Additional comments included clarifying or amending the exemptions from the requirements for testing to support guaranties and warning labels for “high-risk” garments.

Response. The scope of the ANPR issued on September 12, 2002 was limited to considering changes to the Standard to better reflect current consumer practices, modernized testing equipment and clarifying several aspects of the Standard. If, in the future, the Commission should determine that substantive changes to the Standard are needed to adequately protect the public, it would begin a separate proceeding for issuing a new standard or amending the current one in accordance with provisions of section 4 of the FFA (15 U.S.C. 1193).

4. The Desiccant Specified in the Standard

Comment. One commenter recommended specifying silica gel as the desiccant instead of anhydrous calcium chloride. Another commenter was concerned about the potency of the anhydrous calcium chloride desiccant and consequently the efficacy of testing. That commenter noted that the only way to ensure the potency of anhydrous calcium chloride desiccant is to require maintaining daily logs detailing the initial temperature and humidity readings inside the desiccator at the start of each day, as well as after each test is completed.

Response. The Commission agrees with the commenters, and the proposal specifies silica gel as the preferred desiccant. Silica gel is recognized as an effective, reliable desiccant; and it can be reactivated by heating, thus making it economical. Other FFA standards (16 CFR parts 1615, 1616, 1630 and 1631) specify silica gel as the preferred desiccant, and for the purpose of uniformity the CPSC laboratory has been using silica gel as the desiccant for all FFA testing since 1973. Regarding the potency of the desiccant, unlike anhydrous calcium chloride desiccant, the color-changing silica gel indicator provides a visual indication that the desiccant has become saturated with moisture. When the indicating silica gel crystals change color, the desiccant is reactivated by heating it in a laboratory oven.

5. Preliminary Tests

a. Comment. One commenter recommended eliminating the preliminary tests requirement because the majority of apparel garments are cut in the lengthwise direction, therefore only the lengthwise direction of a garment or fabric needs to be tested.

Response. When a garment is worn on a body, the orientation of the fabric varies. The standard specifies that the long dimension of a plain surface textile fabric specimen is that direction in which the fabric burns most rapidly. To determine which fabric direction burns the most rapidly, the Standard requires preliminary tests of specimens cut in different directions. Because there can be differences in the burning characteristics with respect to fabric direction, the staff believes that the requirement for preliminary tests should not be eliminated.

b. Comment. One commenter suggested increasing the number of preliminary tests, especially for raised fiber surface textile fabrics to include both lengthwise and crosswise directions. The commenter is concerned about low-pile fabrics where it may be difficult to determine the correct direction of the raised surface fibers.

Response. For raised fiber surface textile fabrics the Standard requires the direction of the lay of the surface fibers be parallel with the long dimension of the specimen. Selecting specimens in this manner allows for the brushing procedure to raise the surface fibers, since the specimen is brushed against the direction of the lay of the surface fibers. The Standard requires tests of the most flammable surface of the fabric. With many raised fiber surface textile fabrics it is easy to determine the direction of the lay of the surface fibers by touch and visual observation, and preliminary tests are not needed. Regarding those fabrics where it may be difficult to visually determine the correct direction of the lay of the raised surface fibers, preliminary tests should be done to determine the direction with the fastest burning time. Since the Standard already requires preliminary tests to determine the most flammable fabric direction, there is no need to prescribe preliminary tests of both the lengthwise and crosswise direction of raised fiber surface textile fabrics.

6. Reporting Test Results

Comment. One commenter recommended using simplified abbreviations (or codes) for reporting burn test results.

Response. The existing Standard does not provide codes to report test results. However, the FTC developed test result codes many years ago for both plain surface and raised fiber surface textile fabrics. These codes are found in the CPSC's laboratory test manual, and the CPSC laboratory staff has used them to record test results for a number of years. Uniform result codes will facilitate reporting accuracy, understanding of flammability performance and resolution of test result differences among laboratories. For these reasons the proposal provides test result codes.

E. Preliminary Regulatory Analysis

Introduction

The Commission has preliminarily determined to issue a rule revising and reorganizing the Standard for the Flammability of Clothing Textiles. Section 4(i) of the FFA requires that the Commission prepare a preliminary regulatory analysis for a proposed regulation under the FFA and that it be published with the proposed rule. 15 U.S.C. 1193(i). The following discussion, extracted from the staff's memorandum titled “Preliminary Regulatory Analysis: Amendment to Clothing Textile Standard,” addresses this requirement.

Potential Benefits and Costs

Any benefits of the proposed revision would accrue through a reduction in injury and death associated with clothing ignition. However, the proposed amendment simply codifies existing industry practices, and is not intended to change the types and classes of textiles (or garments) available for consumer use. Consequently, we do not anticipate any change in injuries or deaths due to this revision. Therefore, this amendment would not result in any additional expected benefits associated with the Standard.

Similarly, the proposal is not expected to increase costs to manufacturers. Any increased costs that would have been incurred were already borne by manufacturers when they voluntarily initiated the test modifications which would be called for under the revision. No additional testing or recordkeeping requirements are contemplated as a result of the proposed amendment. Again, this amendment simply codifies current industry practices. If anything, this proposed revision may reduce the industry burden since it modifies requirements that are outdated and/or impossible to comply with.

Alternatives

One alternative would be for the Commission to choose to use the ASTM standard as a template for the proposed amendment. The ASTM standard is a recent update (2001) of the FFA regulations promulgated in 1953. This option would harmonize the voluntary standard with the mandatory FFA standard. However, the more extensive definitional language of the proposed revised standard is more complete and more easily understood than that of the ASTM standard, which follows a different organizational format.

Another option may be to use the test procedures outlined in the ASTM standard, combined with the definitional content of the proposal. While each of the options is likely to result in equivalence with the current Standard, the Commission believes that the detail of its proposed language could better address the potential for confusion and mis-classification of clothing textiles by the industry.

F. Regulatory Flexibility Certification

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses. Section 603 of the RFA calls for agencies to prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of the proposed rule on small entities and identifying impact-reducing alternatives. 5 U.S.C. 603. However, section 605 states that this requirement does not apply if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and the agency provides an explanation for that conclusion.

This rulemaking will have little or no effect on small businesses in the textile and apparel industries because, as discussed above, the proposal is largely a technical one that updates the FFA Standard to current industry practices. Therefore, the Commission concludes that the proposed amendment will not have a significant economic impact on a substantial number of small entities.

G. Environmental Considerations

Generally, CPSC rules are considered to “have little or no potential for affecting the human environment,” and environmental assessments are not usually prepared for these rules (see 16 CFR 1021.5 (c)(1)). Because the proposal continues current industry practices, it is not expected to alter production processes or affect the amounts of materials used in manufacturing, packaging or labeling. Therefore, the Commission does not expect the proposal to have any negative environmental impact.

H. Executive Orders

Executive Order 12988 (February 5, 1996), requires agencies to state in clear language the preemptive effect, if any, to be given to a new regulation. The clothing standard amendment, if issued on a final basis, would modify a flammability standard issued under the FFA. With certain exceptions which are not applicable in this instance, no state or political subdivision of a state may enact or continue in effect “a flammability standard or other regulation” applicable to the same fabric or product covered by an FFA standard if the state or local flammability standard or other regulations is “designed to protect against the same risk of the occurrence fire” unless the state or local flammability standard or regulation “is identical” to the FFA standard. See section 16 of the FFA (15 U.S.C. 1203).

I. Effective Date

Section 4(b) of the FFA (15 U.S.C. 1193(b)) 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 than an earlier or later effective date is in the public interest, and publishes that finding. Section 4(b) also requires that an amendment of a flammability standard shall exempt products “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.

The Commission believes that a shorter effective date is in the public interest. As discussed above, the proposed revisions reflect practices that industry and laboratories are currently following. Thus, the impact of the proposed changes should be minimal. Moreover, it should be helpful to the public if the clarifications provided in the proposed revision are effective sooner than one year. Therefore, the Commission proposes that the revisions to the Standard would become effective 180 days after publication of a final amendment and that products “in inventory or with the trade” would be exempt from the revised standard.

J. Proposed Findings

Section 1193(a) and (j)(2) of the FFA require the Commission to make certain findings when it issues or amends a flammability standard. The Commission must find that the standard or amendment: (1) Is needed to adequately protect the public against the risk of the occurrence of fire leading to death, injury or significant property damage; (2) is reasonable, technologically practicable, and appropriate; (3) is limited to fabrics, related materials or products which present unreasonable risks; and (4) is stated in objective terms. 15 U.S.C. 1193(b). In addition, the Commission must find that: (1) If an applicable voluntary standard has been adopted and implemented, that compliance with the voluntary standard is not likely to adequately reduce the risk of injury, or compliance with the voluntary standard is not likely to be substantial; (2) that benefits expected from the regulation bear a reasonable relationship to its costs; and (3) that the regulation imposes the least burdensome alternative that would adequately reduce the risk of injury. These findings are discussed below.

The amendment to the Standard is needed to adequately protect the public against unreasonable risk of the occurrence of fire. The Standard dates from 1953. In the past fifty years changes in technology and consumer practices have made some parts of the Standard obsolete. Through the years, some have found the Standard's terminology and organization confusing and difficult to follow. The proposed amendment will better reflect the modern practices followed by industry and consumers, and modifications in the language and organization of the standard will enhance its clarity.

The amendment to the Standard is reasonable, technologically practicable, and appropriate. The proposed amendment essentially establishes in the Standard the practices currently followed by industry and testing laboratories. These changes should enhance the Standard's reasonableness, practicability, and appropriateness.

The amendment to the Standard is limited to fabrics, related materials, and products that present an unreasonable risk. The proposed amendment continues to apply to the same textiles as the existing Standard.

Voluntary standards. The proposed Standard is similar to ASTM D1230 Standard Test Method for Flammability of Apparel Textiles in methods of testing but significantly different in refurbishing procedures, terminology and criteria. The Commission believes that the proposed amendment will provide better clarity to industry and testing laboratories and therefore is likely to better address the risk of injury.

Relationship of benefits to costs. Because the proposed amendment reflects current practices, both anticipated costs and benefits are likely to be small.

Least burdensome requirement. The proposed amendment makes no substantive changes to the Standard, but only provides modifications that are necessary to update and clarify the Standard.

K. Conclusion

For the reasons discussed above, the Commission preliminarily finds that amending the clothing textile flammability standard is needed to adequately protect the public against the unreasonable risk of the occurrence of fire leading to death, injury, and significant property damage. The Commission also preliminarily finds that the amendment to the Standard is reasonable, technologically practicable, and appropriate. The Commission further finds that the amendment is limited to the fabrics, related materials and products which present such unreasonable risks.

List of Subjects in 16 CFR Part 1610

• Clothing
• Consumer protection
• Flammable materials
• Reporting and recordkeeping requirements
• Textiles
• Warranties

Therefore, the Commission proposes to amend Title 16 of the Code of Federal Regulations by revising part 1610 to read as follows:

PART 1610—STANDARD FOR THE FLAMMABILITY OF CLOTHING TEXTILES

Subpart A—The Standard

1610.1

Purpose, scope and applicability.

1610.2

Definitions.

1610.3

Summary of test method.

1610.4

Requirements for classifying textiles.

1610.5

Test apparatus and materials.

1610.6

Test procedure.

1610.7

Test sequence and classification criteria.

1610.8

Reporting results.

Subpart B—Rules and Regulations

1610.31

Definitions.

1610.32

General requirements.

1610.33

Test procedures for textile fabrics and film.

1610.34

Only uncovered or exposed parts of wearing apparel to be tested.

1610.35

Procedures for testing special types of textile fabrics under the standard.

1610.36

Application of Act to particular types of products.

1610.37

Reasonable and representative tests to support guaranties.

1610.38

Maintenance of records by those furnishing guaranties.

1610.39

Shipments under section 11(c) of the Act.

1610.40

Use of alternative apparatus, procedures, or criteria for tests for guaranty purposes.

Subpart C—Interpretations and Policies

1610.61

Reasonable and representative testing to assure compliance with the standard for the clothing textiles.

Figure 1 to Part 1610—Sketch of Flammability Apparatus

Figure 2 to Part 1610—Flammability Apparatus Views

Figure 3 to Part 1610—Specimen Holder Supported in Specimen Rack

Figure 4 to Part 1610—Igniter

Figure 5 to Part 1610—Brushing Device

Figure 6 to Part 1610—Brush

Figure 7 to Part 1610—Template

Authority: 15 U.S.C. 1191-1204.

Subpart A—The Standard

§ 1610.1

Purpose, scope and applicability.

(a) Purpose. The purpose of this standard is to reduce danger of injury and loss of life by providing, on a national basis, standard methods of testing and rating the flammability of textiles and textile products for clothing use, thereby prohibiting the use of any dangerously flammable clothing textiles.

(b) Scope. The Standard provides methods of testing the flammability of clothing and textiles intended to be used for clothing, establishes three classes of flammability, sets forth the requirements which textiles shall meet to be classified, and warns against the use of those textiles which have burning characteristics unsuitable for clothing. Hereafter, “clothing and textiles intended to be used for clothing” shall be referred to as “textiles.”

(c) Specific exceptions. This standard shall not apply to: (1) Hats, provided they do not constitute or form part of a covering for the neck, face, or shoulders when worn by individuals;

(2) Gloves, provided they are not more than 14 inches in length and are not affixed to or do not form an integral part of another garment;

(3) Footwear, provided it does not consist of hosiery in whole or part and is not affixed to or does not form an integral part of another garment;

(4) Interlining fabrics, when intended or sold for use as a layer between an outer shell and an inner lining in wearing apparel.

(d) Specific exemptions. Experience gained from years of testing in accordance with the Standard demonstrates that certain fabrics consistently yield acceptable results when tested in accordance with the Standard. Therefore, persons and firms issuing an initial guaranty of any of the following types of fabrics, or of products made entirely from one or more of these fabrics, are exempt from any requirement for testing to support guaranties of those fabrics:

(1) Plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per square yard or more; and

(2) All fabrics, both plain surface and raised-fiber surface textiles, regardless of weight, made entirely from any of the following fibers or entirely from combination of the following fibers: acrylic, modacrylic, nylon, olefin, polyester, wool.

(e) Applicability. The requirements of this part 1610 shall apply to textile fabric or related material in a form or state ready for use in an article of wearing apparel, including garments and costumes finished for consumer use.

§ 1610.2

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 this part 1610.

(a) Base burn (also known as base fabric ignition or fusing) means the point at which the flame burns the ground (base) fabric of a raised surface textile fabric and provides a self-sustaining flame. Base burns, used to establish a Class 3 fabric, are those burns resulting from surface flash that occur on specimens in places other than the point of impingement when the warp and fill yarns of a raised surface textile fabric undergo combustion. Base burns can be identified by an opacity change, scorching on the reverse side of the fabric, or when a physical hole is evident.

(b) Burn time means the time elapsed from ignition until the stop thread is severed as measured by the timing mechanism of the test apparatus.

(c) Dry cleaning means the cleaning of samples in a commercial dry cleaning machine under the conditions described in § 1610.6.

(d) Film means any non-rigid, unsupported plastic, rubber or other synthetic or natural film or sheeting, subject to the Act, or any combination thereof, including transparent, and opaque material, whether plain, embossed, molded, or otherwise surface treated, which is in a form or state ready for use in wearing apparel, and shall include film or sheeting of any thickness.

(e) Flammability means those characteristics of a material that pertain to its relative ease of ignition and relative ability to sustain combustion.

(f) Flame application time means the 1 second during which the ignition flame is applied to the test specimen.

(g) Ignition means that there is a self-sustaining flame on the specimen after the test flame is removed.

(h) Interlining means any textile which is intended for incorporation into an article of wearing apparel as a layer between an outer shell and an inner lining.

(i) Laundering means washing with an aqueous detergent solution and includes rinsing, extraction and tumble drying as described in § 1610.6.

(j) Long dimension means the 150 mm (6 in) length of test specimen.

(k) Plain surface textile fabric means any textile fabric which does not have an intentionally raised fiber or yarn surface such as a pile, nap, or tuft, but shall include those fabrics that have fancy woven, knitted or flock-printed surfaces.

(l) Raised surface textile fabric means any textile fabric with an intentionally raised fiber or yarn surface, such as a pile, including flocked pile, nap, or tufting.

(m) Refurbishing means dry cleaning and laundering in accordance with § 1610.6.

(n) Sample means a portion of a lot of material which is taken for testing or for record keeping purposes.

(o) Specimen means a 50 mm by 150 mm (2 in by 6 in) section of sample.

(p) Stop thread supply means No. 50, white, mercerized, 100% cotton sewing thread.

(q) Surface flash means a rapid burning of the pile fibers and yarns on a raised fiber surface textile that may or may not result in base burning.

(r) Textile fabric means any coated or uncoated material subject to the Act, except film and fabrics having a nitro-cellulose fiber, finish, or coating, which is woven, knitted, felted or otherwise produced from any natural or manmade fiber, or substitute therefore, or combination thereof, of 50 mm (2 in) or more in width, and which is in a form or state ready for use in wearing apparel, including fabrics which have undergone further processing, such as dyeing and finishing, in garment form, for consumer use.

§ 1610.3

Summary of test method.

The Standard provides methods of testing the flammability of textiles from or intended to be used for apparel; establishes three classes of flammability; sets forth the requirements for classifying textiles; and prohibits the use of single or multi-layer textile fabrics that have burning characteristics that make them unsuitable for apparel. All textiles shall be tested before and after refurbishing according to § 1610.6. Each specimen cut from the textile shall be inserted in a frame, brushed if it has a raised fiber surface, and held in a special apparatus at an angle of 45°. A standardized flame shall be applied to the surface near the lower end of the specimen for 1 second, and the time required for the flame to proceed up the fabric a distance of 127 mm (5 in) shall be recorded. A notation shall be made as to whether the base of a raised-surface textile fabric ignites or fuses.

§ 1610.4

Requirements for classifying textiles.

(a) Class 1, Normal Flammability. Class 1 textiles exhibit normal flammability and are acceptable for use in clothing. This class shall include textiles which meet the minimum requirements set forth in paragraph (a)(1) or paragraph (a)(2) of this section.

(1) Plain surface textile fabric. Such textiles in their original state and/or after being refurbished as described in § 1610.6(a) and § 1610.6(b), when tested as described in § 1610.6, shall be classified as Class 1, Normal Flammability, when the burn time is 3.5 seconds or more.

(2) Raised surface textile fabric. Such textiles in their original state and/or after being refurbished as described in § 1610.6(a) and § 1610.6(b), when tested as described in § 1610.6, shall be classified as Class 1, Normal Flammability, when the burn time is more than 7 seconds, or when they burn with a rapid surface flash (0 to 7 seconds), provided the intensity of the flame is so low as not to ignite or fuse the base fabric.

(b) Class 2, Intermediate Flammability. Class 2 fabrics, applicable only to raised fiber surface textiles, are considered to be of intermediate flammability, but may be used for clothing. This class shall include textiles which meet the minimum requirements set forth in paragraph (b)(2) of this section.

(1) Plain surface textile fabric. Class 2 is not applicable to plain surface textile fabrics.

(2) Raised surface textile fabric. Such textiles in their original state and/or after being refurbished as described in § 1610.6(a) and § 1610.6(b), when tested as described in § 1610.6, shall be classified as Class 2, Intermediate Flammability, when the burn time is from 4 through 7 seconds, both inclusive, and the base fabric ignites or fuses.

(c) Class 3, Rapid and Intense Burning. Class 3 textiles exhibit rapid and intense burning, are dangerously flammable and shall not be used for clothing. This class shall include textiles which have burning characteristics as described in paragraphs (c)(1) and (c)(2) of this section. Such textiles are considered dangerously flammable because of their rapid and intense burning.

(1) Plain surface textile fabric. Such textiles in their original state and/or after refurbishing as described in § 1610.6(a) and § 1610.6(b), when tested as described in § 1610.6, shall be classified as Class 3 Rapid and Intense Burning when the time of flame spread is less than 3.5 seconds.

(2) Raised surface textile fabric. Such textiles in their original state and/or after refurbishing as described in § 1610.6(a) and § 1610.6(b), when tested as described in § 1610.6, shall be classified as Class 3 Rapid and Intense Burning when the time of flame spread is less than 4 seconds and the intensity of flame is such as to ignite or fuse the base fabric.

Table 1 to § 1610.4.—Summary of Test Criteria for Specimen Classification

[See also § 1610.7]

Class	Plain surface textile fabric	Raised surface textile fabric
1	Burn time is 3.5 seconds or more. ACCEPTABLE (3.5 sec is a pass)	(1) Burn time is greater than 7.0 seconds or
		(2) Burn time is 0-7 seconds with no base burns. Exhibits rapid surface flash only. ACCEPTABLE
2	Class 2 is not applicable to plain surface textile fabrics	Burn time is 4-7 seconds (inclusive) with base burn. ACCEPTABLE
3	Burn time is less than 3.5 seconds. NOT ACCEPTABLE	Burn time is less than 4.0 seconds with base burn. NOT ACCEPTABLE.

§ 1610.5

Test apparatus and materials.

(a) Flammability apparatus. The flammability test apparatus consists of a draft-proof ventilated chamber enclosing a standardized ignition mechanism, sample rack, and automatic timing mechanism. The flammability apparatus shall meet the minimum requirements for testing as follows.

(1) Test chamber.—(i) Test chamber structure. The test chamber shall be a metal, draft-proof ventilated chamber. The test chamber shall have inside dimensions of 35.3 cm high by 36.8 cm wide by 21.6 cm deep (14 in by 14.5 in by 8.5 in). There shall be eleven 12.7 mm diameter (0.5 in) holes equidistant along the rear of the top closure. The front of the chamber shall be a close fitting door with an insert made of clear material (i.e., glass, plexiglass) to permit observation of the entire test. A ventilating strip is provided at the base of the door in the front of the apparatus. The test chamber to be used in this test method is illustrated in Figures 1 through 3 of this part.

(ii) Specimen rack. The specimen rack provides support for the specimen holder (described in paragraph (a)(1)(iii) of this section) in which the specimen is mounted for testing. The angle of inclination shall be 45°. Two guide pins projecting downward from the center of the base of the rack travel in slots provided in the floor of the chamber so that adjustment can be made for the thickness of the specimen in relation to the test flame. A stop shall be provided in the base of the chamber to assist in adjusting the position of the rack. The specimen rack shall be constructed so that: it supports the specimen holder in a way that does not obstruct air flow around the bottom edge of the fabric specimen; and the fabric specimen is properly aligned with the igniter tip during flame impingement. The specimen rack to be used in this test method is illustrated in Figures 1 and 2 of this part. Movable rack: Refer to the manufacturers’ instruction in relation to the adjustment procedure to move the rack into the appropriate position for the indicator finger alignment.

(iii) Specimen holder. The specimen holder supports and holds the fabric specimen. The specimen holder shall consist of two 2 mm (0.06 in) thick U-shaped matched metal plates. The plates are slotted and loosely pinned for alignment. The specimen shall be firmly sandwiched in between the metal plates with clamps mounted along the sides. The two plates of the holder shall cover all but 3.8 cm (1.5 in) of the width of the specimen for its full length. See Figure 3 of this part. The specimen holder shall be supported in the draft-proof chamber on the rack at an angle of 45°.

(iv) Indicator finger. The position of the specimen rack (described in paragraph (a)(1)(ii) of this section) shall be adjusted, so the tip of the indicator finger just touches the surface of the specimen. The indicator finger is necessary to ensure that the tip of the test flame will impinge on the specimen during testing. The indicator finger to be used in this test method is illustrated in Figures 1 and 2 of this part.

(v) Ignition mechanism. The ignition mechanism shall consist of a motor driven butane gas jet formed around a 26-gauge hypodermic needle and creates the test flame. The test flame shall be protected by a shield. The test flame is adjusted to 16 mm (0.625 in) and applied to the specimen for 1 second. A trigger device is located in the front of the apparatus, the pulling or pushing of which activates the test flame impingement and timing device. Electro-mechanical devices (i.e., servo-motors, solenoids, micro-switches, and electronic circuits, in addition to miscellaneous custom made cams and rods, shock absorbing linkages, and various other mechanical components) can be used to control and apply the flame impingement. See Figure 7 of this part.

(vi) Draft ventilator strip. A draft ventilator strip shall be placed across the front opening, sealing the space between the sliding door when in lowered position and the base on which the grid rack is attached. (See Figure 1 of this part.)

(vii) Stop weight. The weight, attached by means of a clip to the stop thread, in dropping actuates the stop motion for the timing mechanism. The weight shall be at least 30g (1.16 oz).

(viii) Door. The door shall be a clear (i.e., glass or plexiglass) door, close fitting and allows for viewing of the entire test.

(ix) Hood. The hood or other suitable enclosure shall provide a draft-free environment surrounding the test chamber. The hood or other suitable enclosure shall have a fan or other means for exhausting smoke and/or fumes produced by testing.

(2) Stop thread and thread guides.—(i) Stop thread. The stop thread shall be stretched from the spool through suitable thread guides provided on the specimen holder and chamber walls.

(ii) Stop thread supply. This supply, consisting of a spool of No. 50, white, mercerized, 100% cotton sewing thread, shall be fastened to the side of the chamber and can be withdrawn by releasing the thumbscrew holding it in position.

(iii) Thread guides. The thread guides permit the lacing of the stop thread in the proper position exactly 127 mm (5 in) from the point where the center of the ignition flame impinges on the test specimen. The stop thread shall be 9.5 mm (0.37 in) above and parallel to the lower surface of the top plate of the specimen holder. This condition can be achieved easily and reproducibly with the use of a thread guide popularly referred to as a “sky hook” suspended down from the top panel along with two L-shaped thread guides attached to the upper end of the top plate of the specimen holder. Two other thread guides can be installed on the rear panel to draw the thread away from directly over the test flame. The essential condition, however, is the uniform height of 9.5 mm (0.37 in) for the stop thread and not the number, placement or design of the thread guides.

(iv) Stop weight thread guide. This thread guide shall be used to guide the stop thread when attaching the stop weight.

(3) Supply for test flame. (i) The fuel supply shall be a cylinder of chemically pure (c. p.) butane.

(ii) The fuel-tank control valve shall consist of a sensitive control device for regulating the fuel supply at the tank.

(iii) The flow control device, such as a manometer or flow meter, shall be sufficient to maintain a consistent flame length of 5/8 in.

(4) Timing device. The timing device consists of a timer, driving mechanism and weight. The timer, by means of special attachments, is actuated to start by connection with the gas jet. A trigger device (described in paragraph (a)(1)(v) of this section) activates the flame impingement, causing the driving mechanism to move the gas jet to its most forward position and automatically starts the timer at the moment of flame impact with the specimen. The falling weight, when caused to move by severance of the stop thread, stops the timer. Time shall be read directly and recorded as a burn time. Read burn time to 0.1 second. An electronic or mechanical timer can be used to record the burn time, and electro-mechanical devices (i.e., servo-motors, solenoids, micro-switches, and electronic circuits, in addition to miscellaneous custom made cams and rods, shock absorbing linkages, and various other mechanical components) can be used to control and apply the flame impingement.

(b) Specimen preparation equipment and materials—(1) Laboratory drying oven. This shall be a forced circulation drying oven capable of maintaining 105° ± 3° C (221° ± 5° F) for 30 ± 2 minutes to dry the specimens while mounted in the specimen holders.

(2) Desiccator. This shall be an airtight and moisture tight chamber capable of holding the specimens horizontally without contacting each other during the cooling period following drying, and shall contain silica gel desiccant.

(3) Desiccant. Anhydrous silica gel shall be used as the desiccant.

(4) Automatic washing machine. The automatic washing machine shall be as described in § 1610.6(b)(1)(ii).

(5) Automatic tumble dryer. The automatic tumble dryer shall be as described in § 1610.6(b)(1)(ii).

(6) Commercial dry cleaning machine. The commercial dry cleaning machine shall be capable of providing a complete automatic dry-to-dry cycle using perchloroethylene solvent and a cationic drycleaning detergent as specified in § 1610.6(b)(1)(i).

(7) Dry cleaning solvent. The solvent shall be perchloroethylene, commercial grade.

(8) Dry cleaning detergent. The dry cleaning detergent shall be cationic class.

(9) Laundering detergent. The laundering detergent shall be as specified in § 1610.6(b)(1)(ii).

(10) Brushing device. The brushing device shall consist of a base board over which a small carriage is drawn. See Figure 4 of this part. This carriage runs on parallel tracks attached to the edges of the upper surface of the base board. The brush is hinged with pin hinges at the rear edge of the base board and rests on the carriage vertically with a pressure of 150 gf (0.33 lbf). The brush shall consist of two rows of stiff nylon bristles mounted with the tufts in a staggered position. The bristles are 0.41 mm (0.016 in) in diameter and 19 mm (0.75 in) in length. There are 20 bristles per tuft and 4 tufts per inch. See Figure 6 of this part. A clamp is attached to the forward edge of the movable carriage to permit holding the specimen on the carriage during the brushing operation. The purpose of the metal plate or “template” on the carriage of the brushing device is to support the specimen during the brushing operation. The template shall be 3.2 mm (0.13 in) thick. See Figure 5 of this part.

§ 1610.6

Test procedure.

The test procedure is divided into two steps. Step 1 is testing in the “as received” or original state; Step 2 is testing after the fabric has been refurbished according to paragraph (b)(1) of this section.

(a) Step 1—Testing in the “as received” or original state. (1) Tests shall be conducted on the fabric in a form or state ready for use in wearing apparel. Determine whether the fabric to be tested is a plain surface textile fabric or a raised surface textile fabric as defined in § 1610.2 (k) and (l). There are some fabrics that require extra attention when preparing test specimens because of their particular construction characteristics. Examples of these fabrics are provided in paragraphs (a)(1)(i) through (vi) of this section along with guidelines for preparing specimens from these fabrics. This information is not intended to be all-inclusive.

(i) Flocked fabrics. Fabrics that are flocked overall are treated as raised surface textile fabrics as defined in § 1610.2(l). Flock printed fabrics (usually in a pattern and not covering the entire surface) shall be treated as plain surface textile fabrics as defined in § 1610.2(k).

(ii) Cut velvet fabrics. Cut velvet fabrics with a patterned construction shall be considered a raised surface textile fabric as defined in § 1610.2(l).

(iii) Metallic thread fabrics. Metallic thread fabrics shall be considered plain surface textile fabrics provided the base fabric is smooth. The specimens shall be cut so that the metallic thread is parallel to the long dimension of the specimen and arranged so the test flame impinges on a metallic thread.

(iv) Embroidery. Embroidery on netting material shall be tested with two sets of preliminary specimens to determine the most flammable area (which offers the greatest amount of netting or embroidery in the 150 mm (6 in.) direction). One set of netting only shall be tested and the other set shall consist mainly of embroidery with the specimens cut so that the test flame impinges on the embroidered area. Test the most flammable area according to the plain surface textile fabric requirements. The full test shall be completed on a sample cut from the area that has the fastest burn rate.

(v) Burn-out patterns. Flat woven constructions with burn-out patterns shall be considered plain surface textile fabrics as defined in § 1610.2(k).

(vi) Narrow fabrics and loose fibrous materials. Narrow fabrics and loose fibrous materials manufactured less than 50 mm (2 in) in width in either direction shall not be tested. If a 50 mm by 150 mm (2 in by 6 in) specimen cannot be cut due to the nature of the item, i.e. hula skirts, leis, fringe, loose feathers, wigs, hairpieces, etc., do not conduct a test.

(2) Plain surface textile fabrics—(i) Preliminary trials. Conduct preliminary trials to determine the quickest burning direction. The specimen size shall be 50 mm by 150 mm (2 in by 6 in). Cut one specimen from each direction of the fabric. Identify the fabric direction being careful not to make any identifying marks in the exposed area to be tested. Preliminary specimens shall be mounted and conditioned as described in paragraphs (a)(2)(ii) through (iv) of this section and then tested following the procedure in paragraph (c) of this section to determine if there is a difference in the burning characteristics with respect to the direction of the fabric.

(ii) Identify and cut test specimens. Cut the required number of test specimens to be tested (refer to § 1610.7(b)(1)). Each specimen shall be 50 mm by 150 mm (2 in by 6 in), with the long dimension in the direction in which burning is most rapid as established in the preliminary trials. Be careful not to make any identifying marks in the exposed area to be tested.

(iii) Mount specimens. Specimens shall be placed in the holders, with the side to be burned face up. Even though plain surface textile fabrics are not brushed, all specimens shall be mounted in a specimen holder placed on the carriage that rides on the brushing device to ensure proper position in the holder. A specimen shall be placed between the two metal plates of a specimen holder and clamped. Each specimen shall be mounted and clamped prior to conditioning and testing.

(iv) Condition specimens. All specimens mounted in the holders shall then be placed in a horizontal position on an open metal shelf in the oven to permit free circulation of air around them. The specimens shall be dried in the oven for 30 ± 2 minutes at 105° ± 3 °C (221° ± 5 °F), removed from the oven and placed over a bed of anhydrous silica gel desiccant in a desiccator until cool, but not less than 15 minutes.

(v) Flammability test. Follow the test procedure in paragraph (c) of this section and also follow the test sequence in § 1610.7(b)(1).

(3) Raised surface textile fabrics.—(i) Preliminary trials. The most flammable surface of the fabric shall be tested. Conduct preliminary trials and/or visual examination to determine the quickest burning area. The specimen size shall be 50 mm by 150 mm (2 in by 6 in). For raised surface textile fabrics, the direction of the lay of the surface fibers shall be parallel with the long dimension of the specimen. Specimens shall be taken from that part of the raised fiber surface that appears to have the fastest burn time. For those fabrics where it may be difficult to visually determine the correct direction of the lay of the raised surface fibers, preliminary tests can be done to determine the direction of the fastest burn time. For textiles with varying depths of pile, tufting, etc., the preliminary test specimens are taken from each depth of pile area to determine which exhibits the quickest rate of burning. A sufficient number of preliminary specimens shall be tested to provide adequate assurance that the raised surface textile fabric will be tested in the quickest burning area. Preliminary specimens shall be mounted and conditioned as described below and tested following the procedure in paragraph (c) of this section.

(ii) Identify and cut test specimens. Cut the required number of specimens (refer to § 1610.7(b)(3)) to be tested. Each specimen shall be 50 mm by 150 mm (2 in by 6 in), with the specimen taken from the direction in which burning is most rapid as established in the preliminary trials and/or visual examination. Be careful not to make any identifying marks in the exposed area to be tested.

(iii) Mount specimens. Prior to mounting the specimen, run a fingernail along the 150 mm (6 in) edge of the fabric not more than 6.4 mm (0.25 in) in from the side to determine the lay of the surface fibers. All specimens shall be mounted in a specimen holder placed on the carriage that rides on the brushing device. The specimens shall be mounted with the side to be burned face up and positioned so the lay of the surface fibers is going away from the closed end of the specimen holder. The specimen must be positioned in this manner so that the brushing procedure described in paragraph (a)(3)(iv) of this section will raise the surface fibers, i.e., the specimen is brushed against the direction of the lay of the surface fibers. The specimen shall be placed between the two metal plates of the specimen holder and clamped.

(iv) Brush specimens. After mounting in the specimen holder (and with the holder still on the carriage that rides on the brushing device) each specimen shall be brushed one time. The carriage is pushed to the rear of the brushing device, and the brush lowered to the face of the specimen. The carriage shall be drawn forward by hand once against the lay of the surface fibers at a uniform rate. Brushing of a specimen shall be performed with the specimen mounted in a specimen holder. The purpose of the metal plate or “template” on the carriage of the brushing device is to support the specimen during the brushing operation.

(v) Condition specimens. All specimens (mounted and brushed) in the holders shall be then placed in a horizontal position on an open metal shelf in the oven to permit free circulation of air around them. The specimens shall be dried in the oven for 30 ± 2 minutes at 105° ± 3 °C (221° ± 5 °F) removed from the oven and placed over a bed of anhydrous silica gel dessicant in a desiccator until cool, but not less than 15 minutes.

(vi) Conduct flammability test. Follow the procedure in paragraph (c) of this section and follow the test sequence in § 1610.7(b)(3).

(b) Step 2—Refurbishing and testing after refurbishing. (1) The refurbishing procedures are the same for both plain surface textile fabrics and raised fiber surface textile fabrics. Those samples that result in a Class 3, Rapid and Intense Burning after Step 1 testing in the “as received” or original state shall not be refurbished and do not undergo Step 2.

(i) Dry cleaning procedure. (A) All samples shall be dry cleaned before they undergo the laundering procedure. Samples shall be dry cleaned in a commercial dry cleaning machine, using the following prescribed conditions:

Solvent: Perchloroethylene, commercial grade

Detergent class: Cationic

Cleaning time: 10-15 minutes

Extraction time: 3 minutes

Drying Temperature: 60 − 66 °C (140 − 150 °F)

Drying Time: 18-20 minutes

Cool Down/Deodorization time: 5 minutes

(B) Samples shall be dry cleaned in a load that is 80% of the machine's capacity. If necessary, ballast consisting of clean textile pieces or garments, white or light in color and consisting of approximately 80% wool and 20% polyester, shall be used.

(ii) Laundering procedure. The sample, after being subjected to the dry cleaning procedure, shall be washed and dried one time in accordance with sections 8.2.2, 8.2.3 and 8.3.1(A) of AATCC Test Method 124-2001 “Appearance of Fabrics after Repeated Home Laundering.” Washing shall be performed in accordance with sections 8.2.2 and 8.2.3 of AATCC Test Method 124-2001 using wash water temperature (V) (149° ± 5 °F; 60° ± 3 °C) specified in Table II of that method, and the water level, agitator speed, washing time, spin speed and final spin cycle specified for “Normal/Cotton Sturdy” in Table III. A maximum wash load shall be 8 pounds (3.63 kg) and may consist of any combination of test samples and dummy pieces. Drying shall be performed in accordance with section 8.3.1(A) of that test method, Tumble Dry, using the exhaust temperature (150° ± 10 °F; 66° ± 5 °C) and cool down time of 10 minutes specified in the “Durable Press” conditions of Table IV.

(2) Testing plain surface textile fabrics after refurbishing. The test procedure is the same as for Step 1—Testing in the “as received” or original state described in paragraph (a)(1) of this section; also follow the test sequence § 1610.7(b)(2).

(3) Testing raised fiber surface textile fabrics after refurbishing. The test procedure is the same as for Step 1—Testing in the “as received” or original state as described in paragraph (a)(3) of this section; also follow the test sequence in § 1610.7(b)(4).

(c) Procedure for testing flammability. (1) The test chamber shall be located under the hood (or other suitable enclosure) with the fan turned off. Open the control valve in the fuel supply. Allow approximately 5 minutes for the air to be drawn from the fuel line, ignite the gas and adjust the test flame to a length of 16 mm (5/8 in), measured from its tip to the opening in the gas nozzle.

(2) Remove one mounted specimen from the desiccator at a time and place it in a position on the rack in the chamber of the apparatus. Thick fabrics may require adjustment of the specimen rack so that the tip of the indicator finger just touches the surface of the specimen.

(3) Adjust the position of the specimen rack of the flammability test chamber so that the tip of the indicator finger just touches the face of the mounted specimen.

(4) String the stop thread through the guides in the upper plate of the specimen holder across the top of the specimen, and through any other thread guide(s) of the chamber. Hook the stop weight in place close to and just below the stop weight thread guide. Set the timing mechanism to zero. Close the door of the flammability test chamber.

(5) Begin the test within 45 seconds of the time the specimen was removed from the desiccator. Activate the trigger device to impinge the test flame. The trigger device controls the impingement of the test flame onto the specimen and starts the timing device. The timing is automatic and stops when the weight is released by the severing of the stop thread.

(6) At the end of each test, turn on the hood fan to exhaust any fumes or smoke produced during the test.

(7) Record the burn time (reading of the timer) for each specimen, along with visual observation using the test result codes given in § 1610.8. If there is no burn time, record the visual observation using the test result codes. Please note for raised fiber surface textile fabrics, specimens should be allowed to continue burning, even though a burn rate is measured, to determine if the base fabric will fuse.

(8) After exhausting all fumes and smoke produced during the test, turn off the fan before testing the next specimen.

§ 1610.7

Test sequence and classification criteria.

(a) Preliminary and final classifications. Preliminary classifications are assigned based on the test results both before and after refurbishing. The final classification shall be the preliminary classification before or after refurbishing, whichever is the more severe flammability classification.

(b) Test sequence and classification criteria. (1) Step 1, Plain Surface Textile Fabrics in the “as received” or original state.

(i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric.

(ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to assign the preliminary classification and proceed to § 1610.6(b) or to test five additional specimens.

(iii) Assign the preliminary classification of Class 1, Normal Flammability and proceed to § 1610.6(b) when:

(A) There are no burn times; or

(B) There is only one burn time and it is equal to or greater than 3.5 seconds; or

(C) The average burn time of two or more specimens is equal to or greater than 3.5 seconds.

(iv) Test five additional specimens when there is either only one burn time, and it is less than 3.5 seconds; or there is an average burn time of less than 3.5 seconds. Test these five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine whether to:

(A) Stop testing and assign the final classification as Class 3, Rapid and Intense Burning only when there are two or more burn times with an average burn time of less than 3.5 seconds; or

(B) Assign the preliminary classification of Class 1, Normal Flammability and proceed to § 1610.6(b) when there are two or more burn times with an average burn time of 3.5 seconds or greater.

(v) If there is only one burn time out of the 10 test specimens, the test is inconclusive. The fabric cannot be classified.

(2) Step 2, Plain Surface Textile Fabrics after refurbishing in accordance with § 1610.6(b)(1).

(i) Conduct preliminary tests in accordance with § 1610.6(a)(2)(i) to determine the fastest burning direction of the fabric.

(ii) Prepare and test five specimens from the fastest burning direction. The burn times determine whether to stop testing and assign the preliminary classification or to test five additional specimens.

(iii) Stop testing and assign the preliminary classification of Class 1, Normal Flammability, when:

(A) There are no burn times; or

(B) There is only one burn time, and it is equal to or greater than 3.5 seconds; or

(C) There is an average burn time 3.5 seconds or greater.

(iv) Test five additional specimens when there is only one burn time, and it is less than 3.5 seconds; or there is an average burn time less than 3.5 seconds. Test five additional specimens from the fastest burning direction as previously determined by the preliminary specimens. The burn times for the 10 specimens determine the preliminary classification when:

(A) There are two or more burn times with an average burn time of 3.5 seconds or greater. The preliminary classification is Class 1, Normal Flammability; or

(B) There are two or more burn times with an average burn time of less than 3.5 seconds. The preliminary and final classification is Class 3, Rapid and Intense Burning; or

(v) If there is only one burn time out of the 10 specimens, the test results are inconclusive. The fabric cannot be classified.

(3) Step 1, Raised Surface Textile Fabric in the “as received” or original state.

(i) Determine the area to be most flammable per § 1610.6(a)(3)(i).

(ii) Prepare and test five specimens from the most flammable area. The burn times and visual observations determine whether to assign a preliminary classification and proceed to § 1610.6(b) or to test five additional specimens.

(iii) Assign the preliminary classification and proceed to § 1610.6(b) when:

(A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or

(B) There is only one burn time and it is less than 4 seconds without a base burn, or it is 4 seconds or greater with or without a base burn. The preliminary classification is Class 1, Normal Flammability; or

(C) There are no base burns regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or

(D) There are two or more burn times with an average burn time of 0-7 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or

(E) There are two or more burn times with an average burn time greater than 7 seconds with any number of base burns. The preliminary classification is Class 1, Normal Flammability; or

(F) There are two or more burn times with an average burn time of 4 through 7 seconds (both inclusive) with no more than one base burn. The preliminary classification is Class 1, Normal Flammability; or

(G) There are two or more burn times with an average burn time less than 4 seconds with no more than one base burn. The preliminary classification is Class 1, Normal Flammability; or

(H) There are two or more burn times with an average burn time of 4 through 7 seconds (both inclusive) with two or more base burns. The preliminary classification is Class 2, Intermediate Flammability.

(iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time and it is less than 4 seconds with a base burn; or the average of two or more burn times is less than 4 seconds with two or more base burns. Test these five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens will determine whether to:

(A) Stop testing and assign the final classification only if the average burn time for the 10 specimens is less than 4 seconds with three or more base burns. The final classification is Class 3, Rapid and Intense Burning; or

(B) Assign the preliminary classification and continue on to § 1610.6(b) when:

(1) The average burn time is less than 4 seconds with no more than two base burns. The preliminary classification is Class 1, Normal Flammability; or

(2) The average burn time is 4-7 seconds (both inclusive) with no more than 2 base burns. The preliminary classification is Class 1, Normal Flammability, or

(3) The average burn time is greater than 7 seconds. The preliminary classification is Class 1, Normal Flammability; or

(4) The average burn time is 4 through 7 seconds (both inclusive) with three or more base burns. The preliminary classification is Class 2, Intermediate Flammability, or

(v) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified.

(4) Step 2, Raised Surface Textile Fabric After Refurbishing in accordance with § 1610.6(b).

(i) Determine the area to be most flammable in accordance with § 1610.6(a)(3)(i).

(ii) Prepare and test five specimens from the most flammable area. Burn times and visual observations determine whether to stop testing and determine the preliminary classification or to test five additional specimens.

(iii) Stop testing and assign the preliminary classification when:

(A) There are no burn times. The preliminary classification is Class 1, Normal Flammability; or

(B) There is only one burn time, and it is less than 4 seconds without a base burn; or it is 4 seconds or greater with or without a base burn. The preliminary classification is Class 1, Normal Flammability; or

(C) There are no base burns regardless of the burn time(s). The preliminary classification is Class 1, Normal Flammability; or

(D) There are two or more burn times with an average burn time of 0 to 7 seconds with a surface flash only. The preliminary classification is Class 1, Normal Flammability; or

(E) There are two or more burn times with an average burn time greater than 7 seconds with any number of base burns. The preliminary classification is Class 1, Normal Flammability; or

(F) There are two or more burn times with an average burn time of 4 through 7 seconds (both inclusive) with no more than one base burn. The preliminary classification is Class 1, Normal Flammability; or

(G) There are two or more burn times with an average burn time less than 4 seconds with no more than one base burn. The preliminary classification is Class 1, Normal Flammability; or

(H) There are two or more burn times with an average burn time of 4 through 7 seconds (both inclusive) with two or more base burns. The preliminary classification is Class 2, Intermediate Flammability.

(iv) Test five additional specimens when the tests of the initial five specimens result in either of the following: There is only one burn time, and it is less than 4 seconds with a base burn; or the average of two or more burn times is less than 4 seconds with two or more base burns.

(v) If required, test five additional specimens from the most flammable area. The burn times and visual observations for the 10 specimens determine the preliminary classification when:

(A) The average burn time is less than 4 seconds with no more than two base burns. The preliminary classification is Class 1, Normal Flammability; or

(B) The average burn time is less than 4 seconds with three or more base burns. The preliminary and final classification is Class 3, Rapid and Intense Burning; or

(C) The average burn time is greater than 7 seconds. The preliminary classification is Class 1, Normal flammability; or

(D) The average burn time is 4-7 seconds (both inclusive), with no more than two base burns. The preliminary classification is Class 1, Normal Flammability; or

(E) The average burn time is 4-7 seconds (both inclusive), with three or more base burns. The preliminary classification is Class 2, Intermediate Flammability; or

(vi) If there is only one burn time out of the 10 specimens, the test is inconclusive. The fabric cannot be classified.

§ 1610.8

Reporting results.

(a) The reported result shall be the classification before or after refurbishing, whichever is the more severe; and based on this result, the textile shall be placed in the proper final classification as described in § 1610.4.

(b) Test result codes. The following are the definitions for the test result codes, which shall be used for recording flammability results for each specimen that is burned.

(1) For Plain Surface Textile Fabrics:

DNI Did not ignite

IBE Ignited, but extinguished

*IBE Ignited, but extinguished, the asterisk (*) denotes a burn that goes under the stop thread without breaking the stop thread.

_._ sec. Actual burn time measured and recorded by the timing device in 0.0 seconds.

(2) For Raised Surface Textile Fabrics:

SF uc Surface flash, under the stop thread, but does not break the stop thread.

SF pw Surface flash, part way. No time shown because the surface flash did not reach the stop thread.

SF poi Surface flash, at the point of impingement only (equivalent to “did not ignite” for plain surfaces).

_._ sec. Actual burn time measured by the timing device in 0.0 seconds.

_._ SF only Time in seconds, surface flash only. No damage to the base fabric.

_._ SFBB Time in seconds, surface flash base burn. Base starts burning at points other than the point of impingement.

_._ SFBB poi Time in seconds, surface flash base burn starting at the point of impingement.

_._ SFBB poi* Time in seconds, surface flash base burn possibly starting at the point of impingement. The asterisk is accompanied by the following statement: “Unable to make absolute determination as to source of base burns.” This statement is added to the result of any specimen if there is a question as to origin of the base burn.

Subpart B—Rules and Regulations

§ 1610.31

Definitions.

In addition to the definitions provided in section 2 of the Flammable Fabrics Act as amended (15 U.S.C. 1191), and in § 1610.2 of the Standard, the following definitions apply for this subpart.

(a) Act means the “Flammable Fabrics Act” (approved June 30, 1953, Pub. Law 88, 83d Congress, 1st sess., 15 U.S.C. 1191; 67 Stat. 111) as amended, 68 Stat. 770, August 23, 1954.

(b) Rule, rules, regulations, and rules and regulations, mean the rules and regulations prescribed by the Commission pursuant to section 5(c) of the act.

(c) United States means, the several States, the District of Columbia, the Commonwealth of Puerto Rico and the Territories, and Possessions of the United States.

(d) Marketing or handling means the transactions referred to in section 3 of the Flammable Fabrics Act, as amended in 1967.

(e) Test means the application of the relevant test method prescribed in the procedures provided under section 4(a) of the Act (16 CFR part 1609).

(f) Finish type means a particular finish, but does not include such variables as changes in color, pattern, print, or design, or minor variations in the amount or type of ingredients in the finish formulation. Examples of finish types would be starch finishes, resin finishes or parchmentized finishes.

(g) Uncovered or exposed part means that part of an article of wearing apparel that might during normal wear be open to flame or other means of ignition. The outer surface of an undergarment is considered to be an uncovered or exposed part of an article of wearing apparel, and thus subject to the Act. Other examples of exposed parts of an article of wearing apparel subject to the Act include, but are not limited to:

(1) Linings, with exposed areas, such as full front zippered jackets;

(2) Sweatshirts with exposed raised fiber surface inside and capable of being worn napped side out;

(3) Unlined hoods;

(4) Rolled cuffs.

§ 1610.32

General requirements.

No article of wearing apparel or fabric subject to the Act and regulations shall be marketed or handled if such article or fabric, when tested according to the procedures prescribed in section 4(a) of the Act (16 CFR part 1609), is so highly flammable as to be dangerous when worn by individuals.

§ 1610.33

Test procedures for textile fabrics and film.

(a)(1) All textile fabrics (except those with a nitro-cellulose fiber, finish or coating) intended or sold for use in wearing apparel, and all such fabrics contained in articles of wearing apparel, shall be subject to the requirements of the Act, and shall be deemed to be so highly flammable as to be dangerous when worn by individuals if such fabrics or any uncovered or exposed part of such articles of wearing apparel exhibits rapid and intense burning when tested under the conditions and in the manner prescribed in subpart A of this part 1610.

(2) Notwithstanding the provisions of paragraph (a)(1) of this section, coated fabrics, except those with a nitro-cellulose coating, may be tested under the procedures outlined in part 1611, Standard for the Flammability of Vinyl Plastic Film, and if such coated fabrics do not exhibit a rate of burning in excess of that specified in § 1611.3 they shall not be deemed to be so highly flammable as to be dangerous when worn by individuals.

(b) All film, and textile fabrics with a nitro-cellulose fiber, finish or coating intended or sold for use in wearing apparel, and all film and such textile fabrics referred to in this rule which are contained in articles of wearing apparel, shall be subject to the requirements of the Act, and shall be deemed to be so highly flammable as to be dangerous when worn by individuals if such film or such textile fabrics or any uncovered or exposed part of such articles of wearing apparel exhibit a rate of burning in excess of that specified in part 1611, Standard for the Flammability of Vinyl Plastic Film.

§ 1610.34

Only uncovered or exposed parts of wearing apparel to be tested.

(a) In determining whether an article of wearing apparel is so highly flammable as to be dangerous when worn by individuals, only the uncovered or exposed part of such article of wearing apparel shall be tested according to the applicable procedures set forth in § 1610.6.

(b) If the outer layer of plastic film or plastic-coated fabric of a multilayer fabric separates readily from the other layers, the outer layer shall be tested under part 1611—Standard for the Flammability of Vinyl Plastic Film. If the outer layer adheres to all or a portion of one or more layers of the underlaying fabric, the multi-layered fabric may be tested under either part 1610—Standard for the Flammability of Clothing Textiles or part 1611. However, if the conditioning procedures required by § 1610.6(a)(2)(iv) and § 1610.6(a)(3)(v) would damage or alter the physical characteristics of the film or coating, the uncovered or exposed layer shall be tested in accordance with part 1611.

(c) Plastic film or plastic-coated fabric used, or intended for use as the outer layer of disposable diapers is exempt from the requirements of the Standard, provided that a sample taken from a full thickness of the assembled article passes the test in the Standard (part 1610 or part 1611) otherwise applicable to the outer fabric or film when the flame is applied to the exposed or uncovered surface. See § 1610.36(f) and § 1611.36(f).

§ 1610.35

Procedures for testing special types of textile fabrics under the standard.

(a) Fabric not customarily washed or dry cleaned. (1) Except as provided in paragraph (a)(2) of this section, any textile fabric or article of wearing apparel which, in its normal and customary use as wearing apparel would not be dry cleaned or washed, need not be dry cleaned or washed as prescribed in § 1610.6(b) when tested under the Standard if such fabric or article of wearing apparel, when marketed or handled, is marked in a clear and legible manner with the statement: “Fabric may be dangerously flammable if dry cleaned or washed.” An example of the type of fabric referred to in this paragraph is bridal illusion.

(2) Section 1610.3, which requires that all textiles shall be refurbished before testing, shall not apply to disposable fabrics and garments. Additionally, such disposable fabrics and garments shall not be subject to the labeling requirements set forth in paragraph (a)(1) of this section.

(b) A coated fabric need not, upon test under the procedures outlined in subpart A of part 1610, be dry cleaned as set forth in § 1610.6(b)(1)(i).

(c) In determining whether a textile fabric having a raised-fiber surface, which surface is to be used in the covered or unexposed parts of articles of wearing apparel, is so highly flammable as to be dangerous when worn by individuals, only the opposite surface or surface intended to be exposed need be tested under the applicable procedures set forth in § 1610.6, providing an invoice or other paper covering the marketing or handling of such fabric is given which clearly designates that the raised-fiber surface is to be used only in the covered or unexposed parts of articles of wearing apparel.

§ 1610.36

Application of Act to particular types of products.

(a) Interlinings. Fabrics intended or sold for processing into interlinings or other covered or unexposed parts of articles of wearing apparel shall not be subject to the provisions of section 3 of the Act: Provided, that an invoice or other paper covering the marketing or handling of such fabrics is given which specifically designates their intended end use: And provided further, that with respect to fabrics which under the provisions of section 4 of the Act, as amended, are so highly flammable as to be dangerous when worn by individuals, any person marketing or handling such fabrics maintains records which show the acquisition, disposition and intended end use of such fabrics, and any person manufacturing articles of wearing apparel containing such fabrics maintains records which show the acquisition, and use and disposition of such fabrics. Any person who fails to maintain such records or to furnish such invoice or other paper shall be deemed to have engaged in the marketing or handling of such products for purposes subject to the requirements of the Act and such person and the products shall be subject to the provisions of sections 3, 6, 7, and 9 of the Act.

(b) Hats, gloves, and footwear. Fabrics intended or sold for use in those hats, gloves, and footwear which are excluded under the definition of articles of wearing apparel in section 2(d) of the Act shall not be subject to the provisions of section 3 of the Act: Provided, that an invoice or other paper covering the marketing or handling of such fabrics is given which specifically designates their intended use in such products: And provided further, that with respect to fabrics which under the provisions of section 4 of the Act, as amended, are so highly flammable as to be dangerous when worn by individuals, any person marketing or handling such fabrics maintains records which show the acquisition, disposition, and intended end use of such fabrics, and any person manufacturing hats, gloves, or footwear containing such fabrics maintains records which show the acquisition, end use and disposition of such fabrics. Any person who fails to maintain such records or to furnish such invoice or other paper shall be deemed to have engaged in the marketing or handling of such products for purposes subject to the requirements of the Act and such person and the products shall be subject to the provisions of sections 3, 6, 7, and 9 of the Act.

(c) Veils and hats. (1) Ornamental millinery veils or veilings when used as a part of, in conjunction with, or as a hat, are not to be considered such a “covering for the neck, face, or shoulders” as would, under the first proviso of section 2(d) of the Act, cause the hat to be included within the definition of the term “article of wearing apparel” where such ornamental millinery veils or veilings do not extend more than nine (9) inches from the tip of the crown of the hat to which they are attached and do not extend more than two (2) inches beyond the edge of the brim of the hat.

(2) Where hats are composed entirely of ornamental millinery veils or veilings such hats will not be considered as subject to the Act if the veils or veilings from which they are manufactured were not more than nine (9) inches in width and do not extend more than nine (9) inches from the tip of the crown of the completed hat.

(d) Handkerchiefs. (1) Except as provided in paragraph (d)(2) of this section, handkerchiefs not exceeding a finished size of twenty-four (24) inches on any side or not exceeding five hundred seventy-six (576) square inches in area are not deemed “articles of wearing apparel” as that term is used in the Act.

(2) Handkerchiefs or other articles affixed to, incorporated in, or sold as a part of articles of wearing apparel as decoration, trimming, or for any other purpose, are considered an integral part of such articles of wearing apparel, and the articles of wearing apparel and all parts thereof are subject to the provisions of the Act. Handkerchiefs or other articles intended or sold to be affixed to, incorporated in or sold as a part of articles of wearing apparel as aforesaid constitute “fabric” as that term is defined in section 2(e) of the Act and are subject to the provisions of the Act, such handkerchiefs or other articles constitute textile fabrics as the term “textile fabric” is defined in § 1610.2(r).

(3) If, because of construction, design, color, type of fabric, or any other factor, a piece of cloth of a finished type or any other product of a finished type appears to be likely to be used as a covering for the head, neck, face, shoulders, or any part thereof, or otherwise appears likely to be used as an article of clothing, garment, such product is not a handkerchief and constitutes an article of wearing apparel as defined in and subject to the provisions of the Act, irrespective of its size, or its description or designation as a handkerchief or any other term.

(e) Raised-fiber surface wearing apparel. Where an article of wearing apparel has a raised-fiber surface which is intended for use as a covered or unexposed part of the article of wearing apparel but the article of wearing apparel is, because of its design and construction, capable of being worn with the raised-fiber surface exposed, such raised-fiber surface shall be considered to be an uncovered or exposed part of the article of wearing apparel. Examples of the type of products referred to in this paragraph are athletic shirts or so-called “sweat shirts” with a raised-fiber inner side.

(f) Multilayer fabric and wearing apparel with a film or coating on the uncovered or exposed surface. Plastic film or plastic-coated fabric used, or intended for use, as the outer layer of disposable diapers is exempt from the requirements of the standard, provided that a full thickness of the assembled article passes the test in the standard otherwise applicable to the outer fabric or film when the flame is applied to the exposed or uncovered surface.

§ 1610.37

Reasonable and representative tests to support guaranties.

(a) Purpose. The purpose of this § 1610.37 is to establish requirements for reasonable and representative tests to support initial guaranties of products, fabrics, and related materials which are subject to the Standard for the Flammability of Clothing Textiles (the Standard, 16 CFR part 1610).

(b) Statutory provisions. (1) Section 8(a) of the Act (15 U.S.C. 1197(a)) provides that no person shall be subject to criminal prosecution under section 7 of the Act (15 U.S.C. 1196) for a violation of section 3 of the Act (15 U.S.C. 1192) if such person establishes a guaranty received in good faith to the effect that the product, fabric, or related material complies with the applicable flammability standard. A guaranty does not provide the holder any defense to an administrative action for an order to cease and desist from violation of the applicable standard, the Act, and the Federal Trade Commission Act (15 U.S.C. 45), nor to any civil action for injunction or seizure brought under section 6 of the Act (15 U.S.C. 1195).

(2) Section 8 of the Act provides for two types of guaranties:

(i) An initial guaranty based on “reasonable and representative tests” made in accordance with the applicable standard issued under the Act; and

(ii) A guaranty based on a previous guaranty, received in good faith, to the effect that reasonable and representative tests show conformance with the applicable standard.

(c) Requirements. (1) Each person or firm issuing an initial guaranty of a product, fabric, or related material subject to the Standard shall devise and implement a program of reasonable and representative tests to support such a guaranty.

(2) The term program of reasonable and representative tests as used in this § 1610.37 means at least one test with results demonstrating conformance with the Standard for the product, fabric or related material which is the subject of an initial guaranty. The program of reasonable and representative tests required by this § 1610.37 may include tests performed before the effective date of this section, and may include tests performed by persons or firms outside of the territories of the United States or other than the one issuing the initial guaranty. The number of tests and the frequency of testing shall be left to the discretion of the person or firm issuing the initial guaranty.

(3) In the case of an initial guaranty of a fabric or related material, a program of reasonable and representative tests may consist of one or more tests of the particular fabric or related material which is the subject of the guaranty, or of a fabric or related material of the same “class” of fabrics or related materials as the one which is the subject of the guaranty. For purposes of this § 1610.37, the term class means a category of fabrics or related materials having general constructional or finished characteristics, sometimes in association with a particular fiber, and covered by a class or type description generally recognized in the trade.

§ 1610.38

Maintenance of records by those furnishing guaranties.

(a) Any person or firm issuing an initial guaranty of a product, fabric, or related material which is subject to the Standard for the Flammability of Clothing Textiles (the Standard, 16 CFR part 1610) shall keep and maintain a record of the test or tests relied upon to support that guaranty. The records to be maintained shall show:

(1) The style or range number, fiber composition, construction and finish type of each textile fabric or related material covered by an initial guaranty; or the identification, fiber composition, construction and finish type of each textile fabric (including those with a nitrocellulose fiber, finish or coating), and of each related material, used or contained in a product of wearing apparel covered by an initial guaranty.

(2) The results of the actual test or tests made of the textile fabric or related material covered by an initial guaranty; or of any fabric or related material used in the product of wearing apparel covered by an initial guaranty.

(3) When the person or firm issuing an initial guaranty has conducted the test or tests relied upon to support that guaranty, that person or firm shall also include with the information required by paragraphs (a)(1) and (2) of this section, a sample of each fabric or related material which has been tested.

(b) Persons furnishing guaranties based upon class tests shall maintain records showing:

(1) Identification of the class test.

(2) Fiber composition, construction and finish type of the fabrics, or the fabrics used or contained in articles of wearing apparel so guaranteed.

(3) A swatch of each class of fabrics guaranteed.

(c) Persons furnishing guaranties based upon guaranties received by them shall maintain records showing the guaranty received and identification of the fabrics or fabrics contained in articles of wearing apparel guaranteed in turn by them.

(d) The records referred to in this section shall be preserved for a period of 3 years from the date the tests were performed, or in the case of paragraph (c) of this section from the date the guaranties were furnished.

(e) Any person furnishing a 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.

§ 1610.39

Shipments under section 11(c) of the Act.

(a) The invoice or other paper relating to the shipment or delivery for shipment in commerce of articles of wearing apparel or textile fabrics for the purpose of finishing or processing to render them not so highly flammable as to be dangerous when worn by individuals, shall contain a statement disclosing such purpose.

(b) An article of wearing apparel or textile fabric shall not be deemed to fall within the provisions of section 11(c) of the Act as being shipped or delivered for shipment in commerce for the purpose of finishing or processing to render such article of wearing apparel or textile fabric not so highly flammable under section 4 of the Act, as to be dangerous when worn by individuals, unless the shipment or delivery for shipment in commerce of such article of wearing apparel or textile fabric is made directly to the person engaged in the business of processing or finishing textile products for the prearranged purpose of having such article of apparel or textile fabric processed or finished to render it not so highly flammable under section 4 of the Act, as to be dangerous when worn by individuals, and any person shipping or delivering for shipment the article of wearing apparel or fabric in commerce for such purpose maintains records which establish that the textile fabric or article of wearing apparel has been shipped for appropriate flammability treatment, and that such treatment has been completed, as well as records to show the disposition of such textile fabric or article of wearing apparel subsequent to the completion of such treatment.

(c) The importation of textile fabrics or articles of wearing apparel may be considered as incidental to a transaction involving shipment or delivery for shipment for the purpose of rendering such textile fabrics or articles of wearing apparel not so highly flammable under the provisions of section 4 of the Act, as to be dangerous when worn by individuals, if:

(1) The importer maintains records which establish that: (i) the imported textile fabrics or articles of wearing apparel have been shipped for appropriate flammability treatment, and

(ii) Such treatment has been completed, as well as records to show the disposition of such textile fabrics or articles of wearing apparel subsequent to the completion of such treatment.

(2) The importer, at the time of importation, executes and furnishes to the U.S. Customs and Border Protection an affidavit stating: These fabrics (or articles of wearing apparel) are dangerously flammable under the provisions of section 4 of the Act, and will not be sold or used in their present condition but will be processed or finished by the undersigned or by a duly authorized agent so as to render them not so highly flammable under the provisions of section 4 of the Flammable Fabrics Act, as to be dangerously flammable when worn by individuals. The importer agrees to maintain the records required by 16 CFR 1610.39(c)(1).

(3) The importer, if requested to do so by the U.S. Customs and Border Protection, furnishes an adequate specific-performance bond conditioned upon the complete discharge of the obligations assumed in paragraphs (c) (1) and (2) of this section.

(d) The purpose of section 11(c) of the Act is only to permit articles of wearing apparel or textile fabrics which are dangerously flammable to be shipped or delivered for shipment in commerce for the purpose of treatment or processing to render them not dangerously flammable. Section 11(c) does not in any other respect limit the force and effect of sections 3, 6, 7, and 9 of the Act. In particular, section 11(c) does not authorize the sale or offering for sale of any article of wearing apparel or textile fabric which is in fact dangerously flammable at the time of sale or offering for sale, even though the seller intends to ship the article for treatment prior to delivery to the purchaser or has already done so. Moreover, under section 3 of the Act a person is liable for a subsequent sale or offering for sale if, despite the purported completion of treatment to render it not dangerously flammable, the article in fact remains dangerously flammable.

§ 1610.40

Use of alternate apparatus, procedures, or criteria for tests for guaranty purposes.

(a) Section 8(a) of the Act provides that no person shall be subject to criminal prosecution under section 7 of the Act (15 U.S.C. 1196) for a violation of section 3 of the Act (15 U.S.C. 1192) if that person establishes a guaranty received in good faith which meets all requirements set forth in section 8 of the Act. One of those requirements is that the guaranty must be based upon “reasonable and representative tests” in accordance with the applicable standard.

(b) Subpart A of this part 1610 prescribes apparatus and procedures for testing fabrics and garments subject to its provisions. See §§ 1610.5 & 1610.6. Subpart A prescribes criteria for classifying the flammability of fabrics and garments subject to its provisions as “Normal flammability, Class 1,” “Intermediate flammability, Class 2,” and “Rapid and Intense Burning, Class 3.” See § 1610.4. Sections 3 and 4 of the Act prohibit the manufacture for sale, importation into the United States, or introduction in commerce of any fabric or article of wearing apparel subject to the Standard which exhibits “rapid and intense burning” when tested in accordance with the Standard. See 16 CFR part 1609.

(c) The Commission recognizes that for purposes of supporting guaranties, “reasonable and representative tests” could be either the test in Subpart A of this part, or alternate tests which utilize apparatus or procedures other than those in Subpart A of this part. This § 1610.40 sets forth conditions under which the Commission will allow use of alternate tests with apparatus or procedures other than those in Subpart A of this part to serve as the basis for guaranties.

(d)(1) Persons and firms issuing guaranties that fabrics or garments subject to the Standard meet its requirements may base those guaranties on any alternate test utilizing apparatus or procedures other than those in Subpart A of this part, if such alternate test is as stringent as, or more stringent than, the test in Subpart A of this part. The Commission considers an alternate test to be “as stringent as, or more stringent than” the test in Subpart A of this part if, when testing identical specimens, the alternate test yields failing results as often as, or more often than, the test in Subpart A of this part. Any person using such an alternate test must have data or information to demonstrate that the alternate test is as stringent as, or more stringent than, the test in Subpart A of this part.

(2) The data or information required by this paragraph (d) of this section to demonstrate equivalent or greater stringency of any alternate test using apparatus or procedures other than those in Subpart A of this part must be in the possession of the person or firm desiring to use such alternate test before the alternate test may be used to support guaranties of items subject to the Standard.

(3) The data or information required by paragraph (d) of this section to demonstrate equivalent or greater stringency of any alternate test using apparatus or procedures other than those in Subpart A of this part must be retained for as long as that alternate test is used to support guaranties of items subject to the Standard, and for one year thereafter.

(e) Specific approval from the Commission in advance of the use of any alternate test using apparatus or procedures other than those in Subpart A is not required. The Commission will not approve or disapprove any specific alternate test utilizing apparatus or procedures other than those in Subpart A of this part.

(f) Use of any alternate test to support guaranties of items subject to the Standard without the information required by this section may result in violation of section 8(b)), of the Act (15 U.S.C. 1197(b)), which prohibits the furnishing of a false guaranty.

(g) The Commission will test fabrics and garments subject to the Standard for compliance with the Standard using the apparatus and procedures set forth in Subpart A of this part. The Commission will consider any failing results from compliance testing as evidence that:

(1) The manufacture for sale, importation into the United States, or introduction in commerce of the fabric or garment which yielded failing results was in violation of the Standard and of section 3 of the Act; and

(2) The person or firm using the alternate test as the basis for a guaranty has furnished a false guaranty, in violation of section 8(b) of the Act. (Reporting requirements contained in paragraph (d) were approved by Office of Management and Budget under control number 3041-0024.)

Subpart C—Interpretations and Policies

§ 1610.61

Reasonable and representative testing to assure compliance with the standard for the clothing textiles.

(a) Background. (1) The CPSC administers the Flammable Fabrics Act (“the Act”), 15 U.S.C. 1191-1204. Under the Act, among other things, the Commission enforces the Flammability Standard for Clothing Textiles (“the Standard”), 16 CFR part 1610. That Standard establishes requirements for the flammability of clothing and textiles intended to be used for clothing (hereinafter “textiles”).

(2) The 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). § 1610.4. Class 1 textiles, those that exhibit normal flammability, are acceptable for use in clothing. § 1610.4(a)(1) & (2). Class 2 textiles, applicable only to raised fiber surfaces, are considered to be of intermediate flammability, but may be used in clothing. § 1610.4(b)(1) & (2). Finally, Class 3 textiles, those that exhibit rapid and intense burning, are dangerously flammable and may not be used in clothing. § 1610.4(c)(1) & (2). 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 Act, 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 and Border Protection 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 Act. Of particular relevance to the latter two remedies is 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 Act, 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. (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.) Under § 1610.37, a person, to issue a guaranty, should first evaluate the type of fabric to determine if it meets testing exemptions in accordance with § 1610.1(d). (Some textiles never exhibit unusual burning characteristics and need not be tested.) § 1610.1(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.) If no exemptions apply, 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.

(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 between 1994 and 1998 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. Between August 1994 and August 1998, 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 Standard:

(1) Purchase fabrics or garments that meet testing exemptions listed in § 1610.1(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.

Figure 1 to Part 1610—Sketch of Flammability Apparatus

Figure 2 to Part 1610—Flammability Apparatus Views

Figure 3 to Part 1610—Specimen Holder Supported in Specimen Rack

Figure 4 to Part 1610—Igniter

Figure 5 to Part 1610—Brushing Device

Figure 6 to Part 1610—Brush

Figure 7 to Part 1610—Template

Dated: February 13, 2007.

Todd A. Stevenson,

Secretary, Consumer Product Safety Commission.

Note:

The following appendix will not appear in the Code of Federal Regulations.

Appendix—List of Relevant Documents

(The following documents are available from the Commission's Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone [phone] or from the Commission's Web site (http://www.cpsc.gov/​library/​foia/​foia.html)).

1. Briefing memorandum from Jacqueline Elder, Assistant Executive Director, EXHR and Patricia K. Adair, Project Manager, Directorate for Engineering Sciences, to the Commission, “Draft Notice of Proposed Rulemaking to Amend the Standard for the Flammability of Clothing Textiles, 16 CFR part 1610,” January 10, 2007.

2. Memorandum from David Miller, EPHA, Directorate for Epidemiology, to Patricia K. Adair, Project Manager, “General Wearing Apparel Fires,” November 7, 2006.

3. Memorandum from Terrance R. Karels, Directorate for Economic Analysis, to Patricia K. Adair, Project Manager, “Amendment to the Clothing Textiles Standard,” November 21, 2006.

4. Memorandum from Gail Stafford and Weiying Tao, Directorate for Laboratory Sciences, to Patricia K. Adair, Project Manager, “Response to Comments Received as a Result of the Advance Notice of Proposed Rulemaking (ANPR) for Updating the Standard for the Flammability of Clothing Textiles,” November 21, 2006.

5. Memorandum from Marilyn Borsari, Office of Compliance and Field Operations, to Patricia K. Adair, Project Manager, “ANPR to Amend the Standard for the Flammability of Clothing Textiles, 16 CFR part 1610, November 22, 2006.

6. Memorandum from Patricia K. Adair, ESFS to the File, July 28, 2006.

7. Memorandum from Cassandra Prioleau, Ph.D., Directorate for Health Sciences, to Patricia K. Adair, Project Manager, “Toxicity Review of Perchloroethylene,” July 6, 2006.