Determination That Children's Upper Outerwear in Sizes 2T to 12 With Neck or Hood Drawstrings and Children's Upper Outerwear in Sizes 2T to 16 With Certain Waist or Bottom Drawstrings Are a Substantial Product Hazard, 27497-27504 [2010-11622]
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Federal Register / Vol. 75, No. 94 / Monday, May 17, 2010 / Proposed Rules
regulatory, aeronautical, economic,
environmental, and energy-related
aspects of the proposal.
Communications should identify both
docket numbers and be submitted in
triplicate to the address listed above.
Commenters wishing the FAA to
acknowledge receipt of their comments
on this notice must submit with those
comments a self-addressed, stamped
postcard on which the following
statement is made: ‘‘Comments to
Docket No. FAA–2010–0402/Airspace
Docket No. 10–AGL–6.’’ The postcard
will be date/time stamped and returned
to the commenter.
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Availability of NPRMs
An electronic copy of this document
may be downloaded through the
Internet at https://www.regulations.gov.
Recently published rulemaking
documents can also be accessed through
the FAA’s web page at https://
www.faa.gov/airports_airtraffic/
air_traffic/publications/
airspace_amendments/.
You may review the public docket
containing the proposal, any comments
received and any final disposition in
person in the Dockets Office (see
ADDRESSES section for address and
phone number) between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays. An informal docket
may also be examined during normal
business hours at the office of the
Central Service Center, 2601 Meacham
Blvd, Fort Worth, TX 76137.
Persons interested in being placed on
a mailing list for future NPRMs should
contact the FAA’s Office of Rulemaking
202–267–9677, to request a copy of
Advisory Circular No. 11–2A, Notice of
Proposed Rulemaking Distribution
System, which describes the application
procedure.
The Proposal
This action proposes to amend Title
14 Code of Federal Regulations (14 CFR)
part 71 by adding additional Class E
airspace extending upward from 700
feet above the surface for SIAPs at
Perham Municipal Airport, Perham,
MN. Controlled airspace is needed for
the safety and management of IFR
operations at the airport.
Class E airspace areas are published
in Paragraph 6005 of FAA Order
7400.9T, dated August 27, 2009, and
effective September 15, 2009, which is
incorporated by reference in 14 CFR
71.1. The Class E airspace designation
listed in this document would be
published subsequently in the Order.
The FAA has determined that this
proposed regulation only involves an
established body of technical
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regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore, (1) Is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this rule,
when promulgated, will not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle 1,
section 106 describes the authority of
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in subtitle VII, part A, subpart
I, section 40103. Under that section, the
FAA is charged with prescribing
regulations to assign the use of airspace
necessary to ensure the safety of aircraft
and the efficient use of airspace. This
regulation is within the scope of that
authority as it would add additional
controlled airspace at Perham
Municipal Airport, Perham, MN.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order 7400.9T,
Airspace Designations and Reporting
Points, signed August 27, 2009, and
effective September 15, 2009, is
amended as follows:
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Paragraph 6005 Class E Airspace areas
extending upward from 700 feet or more
above the surface of the earth.
*
*
*
*
*
AGL MN E5 Perham, MN [Amended]
Perham Municipal Airport, MN
(Lat. 46°36′15″ N., long. 95°36′16″ W.)
That airspace extending upward from 700
feet above the surface within a 6.8-mile
radius of Perham Municipal Airport.
Issued in Fort Worth, TX, on May 4, 2010.
Roger M. Trevino,
Acting Manager, Operations Support Group,
ATO Central Service Center.
[FR Doc. 2010–11742 Filed 5–14–10; 8:45 am]
BILLING CODE 4901–13–P
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Part 1120
[Docket No. CPSC–2010–0043]
RIN 3041–AC79
Determination That Children’s Upper
Outerwear in Sizes 2T to 12 With Neck
or Hood Drawstrings and Children’s
Upper Outerwear in Sizes 2T to 16 With
Certain Waist or Bottom Drawstrings
Are a Substantial Product Hazard
AGENCY: Consumer Product Safety
Commission.
ACTION: Proposed rule.
SUMMARY: The Consumer Product Safety
Commission (‘‘CPSC’’ or ‘‘Commission’’)
is proposing a rule to specify that
children’s upper outerwear garments in
sizes 2T to 12 or the equivalent that
have neck or hood drawstrings, and in
sizes 2T to 16 or the equivalent that
have waist or bottom drawstrings that
do not meet specified criteria, have
characteristics that constitute
substantial product hazards. Items of
children’s upper outerwear with these
features have been involved in a number
of deaths and serious injuries from
entanglement of the drawstrings with
items such as playground slides, cribs,
and school buses. The proposed rule
would enhance understanding in the
industry about how the Commission
views such garments and would
facilitate the process of obtaining the
appropriate corrective action when such
garments are found in commerce.
DATES: Submit comments by August 2,
2010.
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2010–
0043, by any of the following methods:
• Electronic Submissions. Submit
electronic comments to the Federal
eRulemaking Portal: https://
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www.regulations.gov. Follow the
instructions for submitting comments.
(To ensure timely processing of
comments, the Commission is no longer
directly accepting comments submitted
by electronic mail (e-mail). The
Commission encourages you to submit
electronic comments by using the
Federal eRulemaking Portal, as
described above.)
• Written Submissions. Submit
written submissions in the following
ways:
a. FAX: 301–504–0127.
b. Mail/Hand delivery/Courier (for
paper, disk, or CD–ROM submissions):
Office of the Secretary, Consumer
Product Safety Commission, Room 820,
4330 East West Highway, Bethesda, MD
20814.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received, including any
personal information provided, may be
posted without change to https://
www.regulations.gov. Accordingly, we
recommend that you not submit
confidential business information, trade
secret information, or other sensitive
information that you do not want to be
available to the public.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and insert the
docket number, CPSC 2010–0043, into
the ‘‘Search’’ box and follow the
prompts.
FOR FURTHER INFORMATION CONTACT:
Technical information: Jonathan
Midgett, Division of Human Factors,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814; telephone (301) 504–7692, e-mail
jmidgett@cpsc.gov. Legal information:
Harleigh Ewell, Office of the General
Counsel, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone (301)
504–7683; e-mail hewell@cpsc.gov.
SUPPLEMENTARY INFORMATION:
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A. Background
1. The hazard. Drawstrings in
children’s upper outerwear can present
a hazard if they become entangled with
other objects [Ref. 6]. (Documents
supporting statements in this notice are
identified by [Ref. #], where # is the
number of the reference document as
listed below in section O of this notice.)
Drawstrings in the neck and hood areas
of children’s upper outerwear present a
strangulation hazard when the
drawstring becomes caught in objects
such as playground slides. Drawstrings
in the waist or bottom areas of
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children’s upper outerwear can catch in
the doors or other parts of a motor
vehicle, thereby presenting a ‘‘dragging’’
hazard when the driver of the vehicle
drives off without realizing that
someone is attached to the vehicle. The
injury data associated with drawstrings
is discussed below in section D of this
preamble.
2. Previous industry actions to
address the hazard. In 1994, at the
urging of CPSC, a number of
manufacturers and retailers agreed to
modify or eliminate drawstrings from
hoods and necks of children’s clothing
[Ref. 1]. In 1997, the American Society
for Testing and Materials (now ASTM
International) addressed the hazards
presented by drawstrings on upper
outerwear by creating a voluntary
consensus standard, ASTM F 1816–97,
Standard Safety Specification for
Drawstrings on Children’s Upper
Outerwear, to prohibit drawstrings
around the hood and neck area of
children’s upper outerwear in sizes 2T
to 12, and also to limit the length of
drawstrings around the waist and
bottom in sizes 2T to 16 to 3 inches
outside the drawstring channel when
the garment is expanded to its fullest
width. For waist and bottom
drawstrings in sizes 2T to 16, toggles,
knots, and other attachments at the free
ends of drawstrings were prohibited.
Further, waist and bottom drawstrings
in sizes 2T to 16 that are one continuous
string were required to be bartacked,
i.e., stitched through to prevent the
drawstring from being pulled through
its channel. The ASTM standard is
copyrighted, but can be viewed as a
read-only document, only during the
comment period on this proposal, at
https://www.astm.org/cpsc.htm, by
permission of ASTM.
The Commission’s staff has estimated
that the age range of children who
would be likely to wear garments in
sizes 2T to 12 is from 18 months to 10
years [Ref. 4]. The age range of children
who would be likely to wear garments
in sizes 2T to 16 is 18 months to 14
years.
3. Previous actions by the Commission
to address the hazard. On July 12, 1994,
the Commission announced a
cooperative effort with a number of
manufacturers and retailers that agreed
to eliminate or modify drawstrings on
the hoods and necks of children’s
clothing [Ref. 1].
In February 1996, the Commission
issued guidelines [Ref. 8] for consumers,
manufacturers, and retailers that
incorporated the requirements that
became ASTM F 1816–97.
On May 12, 2006, the CPSC’s Office
of Compliance posted a letter [Ref. 2],
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on CPSC’s website, to the
manufacturers, importers, and retailers
of children’s upper outerwear, citing the
fatalities and urging them to comply
with the industry standard, ASTM F
1816–97. The letter explained that the
CPSC staff considers children’s upper
outerwear with drawstrings at the hood
or neck area to be defective and to
present a substantial risk of injury under
section 15(c) of the Federal Hazardous
Substances Act (FHSA), 15 U.S.C.
1274(c). Recalls of noncomplying
products that were toys or other articles
intended for use by children could be
sought under that section. (At that time,
section 30(d) of the Consumer Product
Safety Act (CPSA), 15 U.S.C. 2079(d)
(2007) provided that a risk that could be
regulated under the FHSA could not be
regulated under the CPSA unless the
Commission, by rule, found that it was
in the public interest to regulate the risk
under the CPSA. Thus, at that time, a
recall would be sought under the
authority of section 15 of the FHSA,
rather than the similar recall authority
under section 15 of the CPSA, discussed
below in section A.4 of this preamble.
Section 30(d) of the CPSA was repealed
by the CPSIA, so that now a recall of a
consumer product that is a toy or other
article intended for use by children can
be sought either under the CPSA,
without a finding by rule that it is in the
public interest to do so, or under the
FHSA.)
The 2006 letter also indicated that the
Commission would seek civil penalties
if a manufacturer, importer, distributor,
or retailer distributed noncomplying
children’s upper outerwear in
commerce and failed to report that fact
to the Commission as required by
section 15(b) of the CPSA, 15 U.S.C.
2064(b) (discussed below in section A.4
of this preamble). From 2006 through
2009, the Commission’s staff
participated in 78 recalls of
noncomplying products with
drawstrings and obtained a number of
civil penalties based on the failure of
firms to report the defective products to
CPSC as required by section 15(b) of the
CPSA [Ref. 4].
4. Section 15 of the CPSA. Section 15
of the CPSA authorizes the CPSC to
order corrective actions regarding
substantial product hazards. Section
15(a)(2) of the CPSA defines ‘‘substantial
product hazard’’ as a product defect
which (because of the pattern of defect,
the number of defective products
distributed in commerce, the severity of
the risk, or otherwise) creates a
substantial risk of injury to the public.
The term ‘‘defect’’ is discussed in 16 CFR
1115.4.
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Section 15(b)(3) of the CPSA (15
U.S.C. 2064(b)(3)) requires
manufacturers, distributors, and
retailers of a consumer product or other
product over which the Commission has
jurisdiction under any act enforced by
the Commission (other than motor
vehicle equipment as defined in 49
U.S.C. 30102(a)(7)), and which is
distributed in commerce, to
immediately inform the Commission if
they obtain information that reasonably
supports the conclusion that the
product contains a defect which could
create a substantial product hazard
under section 15(a)(2) of the CPSA.
After giving interested persons an
opportunity for a hearing, the
Commission may require manufacturers,
distributors, and retailers, if in the
public interest, to: (1) give notice of the
defect to various persons; (2) repair the
product; or (3) refund the purchase
price. 15 U.S.C. 2064(c) and (d).
Section 15(j) of the CPSA authorizes
the Commission to issue rules
establishing that defined characteristics
of a consumer product that present a
risk of injury shall be deemed to be a
substantial product hazard if: (1) The
characteristics are readily observable;
(2) the characteristics have been
addressed by voluntary standards; (3)
such standards have been effective in
reducing the risk of injury; and (4) there
is substantial compliance with such
standards. These requirements are
discussed separately in sections B
through E of this preamble below.
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B. The Defined Characteristics
As explained above in section A.4 of
this preamble, the requirements of the
ASTM F 1816–97 voluntary standard to
reduce the risk of strangulation or being
dragged by a vehicle due to neck, hood,
waist, or bottom drawstrings define the
characteristics that present the
substantial product hazard associated
with garments subject to that standard.
C. The Characteristics Are Readily
Observable
In the case of drawstrings, all of the
requirements of the ASTM voluntary
standard can be evaluated with simple
physical manipulations of the garment,
simple measurements of portions of the
garments, and unimpeded visual
observation. The Commission concludes
that the product characteristics defined
by the voluntary standard are readily
observable. (The preceding is not
intended to be a definition of ‘‘readily
observable,’’ and more complicated or
difficult actions to determine the
presence or absence of defined product
characteristics also may be consistent
with ‘‘readily observable.’’ The
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Commission intends to evaluate this
issue on a case-by-case basis.)
D. The Voluntary Standard Has Been
Successful in Reducing the Risk of
Injury
1. Hood and neck drawstring
incidents. The CPSC staff examined
reports of fatalities and injuries for the
age groups whose upper outerwear is
subject to the voluntary standard [Ref.
6]. CPSC staff is aware of 56 reports of
neck and hood drawstring
entanglements between January 1985
and September 2009. Eighteen (32
percent) of these entanglements were
fatal. The majority of the entanglements
involved a neck or hood drawstring
becoming snagged on a slide. Also, in
several incidents, a neck or hood
drawstring became entangled on parts of
a crib. Of the 38 nonfatal neck or hood
drawstring incidents involving children
in the age range of 18 months to 10
years (the ages estimated to be
associated with sizes 2T to 12), 30
incidents resulted in an injury. In the
remaining eight incidents, the neck or
hood drawstring became snagged or
entangled but no injury was reported.
The year with the highest number of
reported fatalities (three) was 1994. The
3 years with the highest number of
reported incidents (including both fatal
and nonfatal incidents) were 1992 (11),
1993 (9), and 1994 (9). Slides were
associated with 10 of the fatalities, 26 of
the injury incidents, and all 8 of the noinjury incidents (jackets or sweatshirts
snagged by a hood or neck drawstring
on playground slides prior to the child’s
subsequent escape or rescue).
The specification for drawstrings on
children’s upper outerwear, ASTM F
1816–97, was approved in June 1997
and published in August 1998. CPSC
staff is aware of 12 fatalities and 33
nonfatal incidents during the 12 years
(1985–1996) prior to the ASTM standard
that involved children aged 18 months
to 10 years of age where the neck or
hood string of upper outerwear became
entangled. On average, this resulted in
one reported fatality and about three
reported nonfatal incidents a year. In
the 8 years for which reporting is
complete(1999 through 2006) after
ASTM F 1816–97 was published, CPSC
staff received reports of two fatal and
two nonfatal neck or hood drawstring
incidents. (The years 1997 and 1998 are
omitted from this comparison because
that was the transition period during
which the ASTM standard was
developed and published.) On average,
this is approximately one fatality every
4 years and about one nonfatal
entanglement every 4 years. For the
years for which reporting is complete,
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the data show a reduction in the annual
average number of reported fatalities
after the ASTM standard of 75 percent.
The corresponding reduction in the
annual average number of reported nonfatal entrapments is 91 percent. It
should be noted that CPSC staff
continues to receive incident reports for
the years 2007 through 2009. CPSC staff
is aware of three fatalities and no nonfatal incidents since January 2007.
When reporting for 2007–2009 is
complete, the percent reduction in the
annual average number of reported
fatalities associated with neck/hood
drawstrings will be at most 55 percent
if no additional fatal incidents are
reported.
2. Waist and bottom drawstring
incidents. Between January 1985 and
September 2009, CPSC staff is aware of
27 entanglement incidents associated
with a waist or bottom drawstring on
children’s upper outerwear [Ref. 6]. Of
these 27 incidents, 8 (30 percent) were
fatal, 11 (41 percent) resulted in
injuries, and 8 (30 percent) involved
snags or entanglements that did not
result in an injury. All eight fatalities
identified with waist and bottom
drawstrings (seven involving a bus and
one involving a slide) occurred in the
years 1991 through 1996. From 1991 to
1996, there were 19 waist and bottom
drawstring incidents, of which 13
involved buses (7 fatalities and 6
nonfatal incidents). CPSC staff is not
aware of any bus-related drawstring
incidents after 1996. There were seven
waist and bottom drawstring incidents
from 1999 to the present (all nonfatal),
two of which involved children caught
on car doors. For years in which
reporting is considered complete, the
number of reported fatalities associated
with waist and bottom drawstrings have
fallen from the eight reported fatalities
between 1985 and 1996 to zero since
adoption of the ASTM voluntary
standard in 1997. For the corresponding
periods for which reporting is complete
(1985 through 1996 and 1999 through
2006), reported nonfatal injuries fell
from 11 in 12 years to 6 in 8 years.
These data suggest that after the ASTM
standard was adopted, for waist and
bottom drawstrings the annual average
of reported fatalities fell by 100 percent
and the annual average of reported
nonfatal incidents fell by about 18
percent. Reporting is ongoing for 2007–
2009. CPCS staff is not aware of any
reported fatalities for this time. Staff has
one report of a non-fatal incident
occurring between 2007–2009. These
numbers may change in the future.
3. Effectiveness of the voluntary
standard. To the extent that reductions
in deaths and injuries are due to
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compliance with the voluntary
standard, either by eliminating
drawstrings altogether or by making
them meet the requirements of the
standard, the effectiveness of the
voluntary standard is likely to be higher
than the reductions in reported deaths
and injuries indicate. This is because
many items of upper outerwear
manufactured before the industry
widely adopted the ASTM standard,
and that had drawstrings that did not
comply with that standard, probably
remained in use long after the standard
was adopted. Based on the injury data,
the Commission concludes that the
ASTM voluntary standard has been
effective in reducing the risk of injury
from children’s upper outerwear with
drawstrings.
E. There Is Substantial Compliance
With the Voluntary Standard
In the context of the findings needed
for a rule under section 15(j) of the
CPSA to deem product characteristics
regulated by a voluntary standard to be
a substantial product hazard,
‘‘substantial compliance’’ refers to the
extent the industry manufacturing and
distributing the product complies with
the voluntary standard. The issue is
what degree of compliance will be
deemed ‘‘substantial’’ in a particular
situation. Neither section 15(j) of the
CPSA nor the legislative history of the
CPSIA (which amended the CPSA to
add paragraph (j) to section 15 of the
CPSA) defines or explains what
constitutes substantial compliance.
The Commission notes, however, that
the term ‘‘substantial compliance,’’
which is used in section 15(j) of the
CPSA, also appears elsewhere in the
CPSA, as well as in the Federal
Hazardous Substances Act (‘‘FHSA’’)
and the Flammable Fabrics Act (‘‘FFA’’),
in the context of whether the
Commission can issue a mandatory rule
addressing a risk that also is addressed
by a voluntary standard. Because the
provisions in the FHSA and FFA
relating to substantial compliance are
basically identical to those in the CPSA,
only the CPSA is referenced in the
following discussion.
Sections 7 and 9 of the CPSA prohibit
the Commission from issuing a
consumer product safety rule if there is
a voluntary standard that passes a twopronged test: (1) If the voluntary
standard were universally complied
with, it would adequately reduce, or
eliminate, the unreasonable risk of
injury that would be addressed by the
rule; and (2) there will be substantial
compliance with the voluntary
standard. Failure of a voluntary
standard to meet either prong of this test
allows the Commission to issue a
mandatory standard. The use of the
concept of ‘‘substantial compliance’’ as a
finding that can determine whether a
mandatory consumer product safety rule
can be issued will be referred to in this
preamble as the ‘‘rulemaking context.’’
The most comprehensive explanation
of the Commission’s views on
substantial compliance in the
rulemaking context is in the findings the
Commission made in issuing the Safety
Standard for Bunk Beds, 16 CFR parts
1213, 1500, and 1513. Those findings
are codified in appendices to 16 CFR
parts 1213 and 1513 and state, in
relevant part, that the Commission does
not believe that there is any single
percentage of conforming products that
can be used in all cases to define
‘‘substantial compliance.’’ Instead, the
percentage must be viewed in the
context of the hazard the product
presents, and the Commission must
examine what constitutes substantial
compliance with a voluntary standard
in light of its obligation to safeguard the
American consumer.
The findings in the rulemaking for
bunk beds discuss a number of factors
that the Commission should consider in
the rulemaking context in determining
whether there is substantial compliance.
Factors that may influence the
Commission to conclude that a
mandatory standard is needed and that
there is not substantial compliance
include that:
• The risk is severe;
• No intervening action is required to
create the risk;
• The risk targets a vulnerable
population, such as children;
• The product has a long life and thus
might be passed on to other children;
and
• The product can be made relatively
easily by very small companies.
See, e.g., Appendix to 16 CFR part 1213.
In the context of a rule under section
15(j) of the CPSA, the same factors
would argue that the Commission
should find substantial compliance, in
order that the public be protected by the
issuance of the rule.
Table 1 (below) shows information
about the CPSC recalls for the years
2006 through 2009. The number of cases
related to recalls of children’s upper
outerwear garments with drawstrings
numbered 78 for that period, involving
about 2 million units.
The number of recalls in 2008 and
2009 was more than the number of
recalls in 2006 and 2007; however, the
annual average number of outerwear
garments recalled in 2006 and 2007
(about 650,000) was about 75 percent
greater than the annual average number
recalled in 2008 and 2009 (about
377,000).
TABLE 1—CPSC OFFICE OF COMPLIANCE RECALLS DRAWSTRINGS ON CHILDREN’S UPPER OUTERWEAR 2006–2009
Number of recall
cases
Year
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
.................................................................................................................................................................
17
14
24
23
676,597
626,172
227,868
526,193
Total ..........................................................................................................................................................
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2006
2007
2008
2009
Number of
units of upper
outerwear
recalled
78
2,056,830
Source: Communication from CPSC
Office of Compliance, March 18, 2010.
Using population data, garment sizing
information, and assumptions about
purchase and use, one can calculate the
number of units recalled as a proportion
of sales. This calculation provides a
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rough estimate of the extent of
compliance with the voluntary
standard.
As explained earlier in section A.2 of
this preamble, the voluntary standard
applies to sizes 2T to 12 for neck and
hood drawstrings and sizes 2T to 16 for
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drawstrings at the waist and bottom of
upper outerwear. Information available
to CPSC’s staff indicates that a child’s
age generally matches the child’s
clothing size or is a year or two below
the clothing size [Ref. 4]. For example,
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a child 12 years old might wear a size
12 garment or a size 14. Similarly, for
smaller sizes, children who are as young
as 18 months can be wearing size 2T
clothing. Thus, the ages of children
wearing size 2T to 12 (the sizes covered
by the voluntary standard for upper
outerwear with hood or neck
drawstrings) would be 18 months to 10
years. The ages of children typically
wearing size 2T to 16 (the sizes covered
by the voluntary standard for upper
outerwear with waist or bottom
drawstrings) would be 18 months to 14
years.
For each of the years 2006 through
2009, the population of children ages 18
months to 10 years was about 38 million
and the population of children ages 18
months to 14 years was approximately
55 million [Refs. 3, 4].
No numerical data about recent
annual sales of children’s upper
outerwear is available. A press release
concerning a 1994 cooperative
agreement between CPSC and
manufacturers and retailers of children’s
clothing suggests that annual sales of
garments with hood and neck
drawstrings was 20 million, although no
source for that information is provided
[Ref. 1]. However, because one way to
comply with the voluntary standard is
to eliminate drawstrings entirely, the
garments to which the voluntary
standard applies include all children’s
upper outerwear in the specified sizes,
not just those with drawstrings.
Given children’s growth patterns, it
may be that, on average, at least one
new piece of upper outerwear is
purchased each year for each child. If
so, then sales of children’s upper
outerwear could total the population of
children who wear children’s sizes 2T
to 16, or at least 55 million.
Given these assumptions, and
assuming that all violative items of
children’s upper outerwear were
recalled in the years 2006 through 2009,
it would appear that the percentage of
children’s upper outerwear garments
sold in those years that complied with
the drawstring requirements of ASTM F
1816–97 was in the high-90-percent
range. While the number of recalled
units in the years 2006 through 2009
totaled about 2 million units, the
number of units sold during those 4
years, under the assumptions above,
totaled 220 million. Thus, for the period
2006 through 2009, the units recalled by
CPSC would account for about 1 percent
of all units sold. In other words, given
the assumptions noted, there was about
99 percent compliance with the
voluntary standard. Even if these
assumptions are not entirely accurate,
the Commission concludes that the
compliance with ASTM F 1816–97 is
very high and constitutes substantial
compliance as that term is used in
section 15(j) of the CPSA.
F. Size and Age Determination Issues
Children’s upper outerwear that is
labeled with a size in the 2T to 16
numerical size range clearly would be a
garment subject to the ASTM F 1816–97
standard. In many cases, however, the
garment’s label may lack a numerical
size, instead using a ‘‘small (S), medium
(M), or large (L)’’ sizing system. It is
fairly obvious when clothing is small
enough for younger children and
therefore would be included in the sizes
specified in the ASTM standard. In
contrast, it is not always apparent which
non-numerical sizes correspond to the
sizes at the upper end of the ranges in
the standard, that is, size 12 and size 16,
because styles and sizing systems vary.
To determine which of these
designations would be equivalent to
sizes 2T to 16, the Commission’s staff
searched internet sites to locate clothing
size charts in which firms link
children’s non-numerical sizes with
numerical sizes [Ref. 7]. All of the charts
that were located, 31 of which were for
girls’ apparel and 29 for boys’ apparel,
were included in the review. For each
firm, letter sizes were recorded for boys’
and girls’ sizes 10 through 18 to explore
the overlap in letter sizes one size below
and one above the 12 and 16 endpoints
in the standard. The number of firms
adopting each size equivalence is
presented below.
TABLE 2—NUMBER OF FIRMS BY NUMBER AND LETTER SIZE EQUIVALENCY
Girls
Boys
S
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10
12
14
16
18
.........................................................................................
.........................................................................................
.........................................................................................
.........................................................................................
.........................................................................................
As can be seen in the table, firms vary
in how they define those sizes. For
example, although most firms equate
children’s size 10 with Medium, some
equate size 10 with Small (S) and some
with Large (L).
To increase the likelihood that as
many products as possible that are
subject to the ASTM standard will be
included in the applicable size
definition while minimizing the
overlapping inclusion of products that
are not subject to the ASTM standard,
the Commission proposes that nonnumerical equivalencies for sizes 12 and
16 be based on the size equivalency that
is (1) used by a substantial percent of
children’s apparel firms and (2) does not
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M
L
XL
XXL
S
M
1
..........
..........
..........
..........
23
17
..........
..........
..........
7
14
21
9
..........
..........
..........
10
17
9
..........
..........
..........
1
1
1
..........
..........
..........
..........
21
17
1
..........
..........
exclude a substantial percent of firms at
a higher size equivalency.
For example, for girls’ size 12 apparel,
55 percent of the size equivalencies
shown in the chart above equate size 12
to size Medium. However, if Medium
and smaller is selected as equivalent to
size 12 and smaller, then another 45
percent of size equivalencies (in the
Large category) are excluded. Therefore,
to ensure that products covered by the
standard are included, it appears to be
more appropriate to select Large as the
upper limit size equivalency for size 12
girls’ upper outerwear. For boys size 12,
59 percent of the size equivalencies
equate size 12 to Medium, but if that
size equivalency is selected, then
another 38 percent of size equivalencies
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L
XL
7
11
19
15
1
XXL
..........
1
8
9
16
..........
..........
1
..........
2
(in the Large category) are excluded.
Thus, it appears more appropriate to
select Large as the upper limit size
equivalency for size 12 boys’ upper
outerwear. While there is another data
point showing size 12 equivalent to XL,
it would constitute only 3 percent of
equivalencies, and therefore it would be
possible that products not covered by
the standard would be included. Thus,
it does not appear reasonable to include
that size. Using this approach and based
on the table above, the Commission
proposes that boys’ and girls’ size Large
(L) should be defined as size 12 and that
boys’ and girls’ sizes Extra-Large (XL) be
defined as equivalent to size 16.
The proposed rule also would declare
that the number and letter size-
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equivalency system used by a particular
firm can, at the Commission’s option, be
used to determine the equivalency of
that firm’s sizes to the numerical
system.
In cases where garment labels give a
range of sizes, if the range includes any
size that is subject to ASTM F 1816–97,
the garment will be considered subject,
even if other sizes in the stated range,
taken alone, would not be subject. For
example, a coat sized 12–14 remains
subject to the prohibition of hood and
neck area drawstrings, even though the
ASTM standard prohibits head and neck
drawstrings only in garments up to size
12. On the other hand, a size 13–15 coat
would not be considered to be within
the scope of the ASTM standard’s
prohibition of neck and hood
drawstrings, but it would be subject to
the ASTM standard’s requirements for
waist or bottom strings.
To address garments for which the
lettered sizing system sizes given above
are insufficient to determine whether an
item of upper outerwear is equivalent to
sizes 2T to 16, the Commission’s staff
considered the possibility of
determining garment equivalency on the
basis of anthropometric data or a market
survey of the actual size of garments
marked 2T to 16. It was determined that
such efforts were not feasible due to the
vagaries of fashion and the varied
purposes served by outerwear (e.g., how
many layers of clothing will be worn
under the garment). The Commission
invites comments on how to determine
the equivalency of unlabeled or
ambiguously labeled garments to sizes
2T to 16.
In cases where the equivalency of a
garment’s size to the relevant size in the
2T to 16 system is not readily apparent,
the Commission’s staff will assemble
evidence on that issue. The Commission
concludes that, once equivalency has
been established, the existence of any
final rule under section 15(j) of the
CPSA applicable to the product will
obviate any need for the staff to present
additional evidence to establish that the
product contains a defect that presents
a substantial risk of injury to the public.
G. Description of the Proposed Rule
Elsewhere in this issue of the Federal
Register, the Commission is publishing
a proposed rule to establish a new part
1120, titled, ‘‘Substantial Product
Hazard List’’ which would codify the
Commission’s determinations that
certain consumer products or classes of
consumer products have characteristics
whose existence or absence presents a
substantial product hazard. Products
that are determined in rules issued
under section 15(j) of the CPSA to
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present a substantial product hazard,
such as the rule proposed in this notice
for drawstrings, would be listed in a
new § 1120.3.
This proposed rule for drawstrings
would create a new § 1120.3(b)(1) to
specify that items of children’s upper
outerwear that are subject to ASTM F
1816–97, but that do not comply with it,
are substantial product hazards under
section 15(a)(2) of the CPSA. The
proposal also would create a new
§ 1120.2(c) to define a ‘‘drawstring’’ as ‘‘a
non-retractable cord, ribbon, or tape of
any material to pull together parts of
outerwear to provide for closure.’’
To facilitate determining which
garments that are sized under a sizing
system other than the numerical system
(2T to 16) would be equivalent to sizes
2T to 16, proposed § 1120.3(b)(2)(i)
would provide that garments in girls’
size Large (L) and boys’ size Large (L)
are equivalent to size 12 and proposed
§ 1120.3(b)(2)(ii) specifies that garments
in girls’ size Extra-Large (XL) and boys’
size Extra-Large (XL) are equivalent to
size 16.
Proposed § 1120.3(b)(2)(iii) would
provide that if a garment is labeled for
a range of sizes, the garment would be
considered subject to ASTM F 1816–97
if any size within the range is subject to
ASTM F 1816–97. Proposed
§ 1120.3(b)(2)(iv) would provide that, in
order to fall within the scope of
§ 1120.3(b)(2)(i) through (iii), a garment
need not state anywhere on it, or on its
tags, labels, package, or any other
materials accompanying it, the term
‘‘girls’’ or the term ‘‘boys’’ or whether the
garment is intended for girls or boys. In
addition, proposed § 1120.3(b)(2)(v)
would provide that a size may be
considered equivalent to the 2T to 16
range if a manufacturer, importer,
distributor, or retailer has stated that it
is equivalent. Last, proposed
§ 1120.3(b)(vi) would state that the
Commission may use any other
evidence that would tend to show that
an item of children’s upper outerwear is
a size that is equivalent to sizes 2T to
16.
H. Certification
The Commission has received
inquiries about whether a product that
is subject to a rule under section 15(j)
of the CPSA will have to be tested and
certified as required by section 14(a) of
the CPSA. The answer to that question
is ‘‘no.’’ Section 14(a) of the CPSA
requires that products subject to a
consumer product safety rule under the
CPSA or a similar rule, ban, standard, or
regulation under any other act enforced
by the Commission must be certified as
complying with all applicable CPSC-
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enforced requirements. 15 U.S.C.
2063(a). Such certification must be
based on a test of each product or on a
reasonable testing program or, for
children’s products (those designed or
intended primarily for children 12 years
of age or younger), on tests by a thirdparty conformity assessment body (also
known as a ‘‘third-party laboratory’’)
recognized by the Commission. Under
section 14(a) of the CPSA, the only type
of rule under the CPSA that can trigger
the requirement for testing and
certification is a ‘‘consumer product
safety rule.’’ Section 3(a)(6) of the CPSA
defines a ‘‘consumer product safety rule’’
as ‘‘a consumer products safety standard
described in section 7(a) [of the CPSA]
or a rule under [section 8 of the CPSA]
declaring a consumer product a banned
hazardous product.’’ A rule under
section 15(j) of the CPSA does not fit
into either category, so products subject
to a rule under section 15(j) of the CPSA
are not, for that reason, subject to the
testing and certification requirements of
section 14(a) of the CPSA. The
Commission is aware that section
11(g)(1)(A) of the CPSA, 15 U.S.C.
2060(g)(1)(A), relating to judicial
review, refers to a rule issued under
section 15(j) of the CPSA as a ‘‘consumer
product safety rule.’’ However, this
provision is limited to judicial review
situations and, therefore, does not
equate rules under section 15(j) of the
CPSA with consumer product safety
rules. (Although a rule under section
15(j) of the CPSA does not trigger the
requirement for testing and certification,
products subject to a rule under section
15(j) of the CPSA may need to be tested
and certified if they are subject to other
CPSC requirements, such as
flammability requirements, the lead
content requirements in section 101 of
the CPSIA, or the phthalate content
requirements of section 108 of the
CPSIA.)
The Commission understands that
retailers may be demanding certification
tests to all CPSC requirements
applicable to children’s products. The
discussion above makes it clear that
certification to the proposed rule is not
required by federal law or this
regulation. While certification is not
required by law, retailers still have a
responsibility to report to the CPSC
under section 15(b) with regard to this
rule. The Commission believes that
because the retailer has an independent
reporting obligation to the Commission,
it should not be permitted to seek
indemnity for a penalty assessed
because of its own failure to report. The
Commission would consider an
agreement to indemnify a retailer for
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any civil penalties assessed for a failure
to report to be void as against public
policy. The Commission seeks comment
on this position.
I. Preemption
The Commission has received
inquiries about whether a rule under
section 15(j) of the CPSA would have
the effect of preempting State laws or
regulations that are not identical to the
requirements of the voluntary standard.
Under section 26(a) of the CPSA, 15
U.S.C. 2075(a), if a ‘‘consumer product
safety standard under [the CPSA]’’ is in
effect and applies to a product, no State
or political subdivision of a State may
either establish or continue in effect a
requirement dealing with the same risk
of injury unless the State requirement is
identical to the Federal standard.
(Section 26(c) of the CPSA provides that
States or political subdivisions of States
may apply to the Commission for an
exemption from this preemption under
certain circumstances.) As discussed in
the preceding section H of this
preamble, a rule under section 15(j) of
the CPSA is not a ‘‘consumer product
safety standard.’’ Accordingly, the
preemptive effect of section 26(a) of the
CPSA does not apply to a rule under
section 15(j) of the CPSA.
J. Paperwork Reduction Act
This proposed rule would not impose
any information collection
requirements. Accordingly, this rule is
not subject to the Paperwork Reduction
Act, 44 U.S.C. 3501–3520.
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K. Environmental Considerations
The Commission’s environmental
review regulation at 16 CFR part 1021
has established categories of actions that
normally have little or no potential for
affecting the human environment and
therefore do not require either an
environmental assessment or an
environmental impact statement. The
proposed rule is within the scope of the
Commission’s regulation, at 16 CFR
1021.5(c)(1), that provides a categorical
exclusion for rules to provide design or
performance requirements for products.
Thus, no environmental assessment or
environmental impact statement for this
rule is required.
L. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601–612, requires agencies to
consider the impact of proposed rules
on small entities, including small
businesses. For the reasons given
immediately below, the Commission
concludes that the proposed rule will
not have a significant impact on a
substantial number of small entities.
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Aggregate information about the
market for children’s outerwear is not
readily available; these types of
garments are not reported separately by
the U.S. Department of Commerce.
Nearly all manufacturers of these
garments would be considered small
businesses under the Small Business
Administration (SBA) guidelines
applicable to such enterprises (fewer
than 500 employees). According to SBA
data for 2006, of 9,343 U.S. firms that
manufactured ‘‘cut and sew’’ apparel,
9,286, or 99.4 percent, had fewer than
500 employees, and more than 80
percent had fewer than 20 employees.
Firms that manufacture children’s
outerwear would be a subset of the cut
and sew manufacturing category, but
these statistics would support the
assumption that nearly all are small
businesses. SBA firm-size data for
clothing retailers also show that nearly
all of these firms would be considered
to be small businesses.
The Commission’s staff estimates that
a very high percentage of small
businesses that manufacture or sell
children’s upper outerwear already sell
only garments that comply with ASTM
F 1816–97. Therefore, these firms would
not be adversely affected if children’s
upper outerwear garments with
drawstrings are added to the list of
products that present a substantial
product hazard. Also, the Commission’s
Office of Compliance and Field
Operations already considers children’s
upper outerwear with hood or neck area
drawstrings that are subject to, but do
not comply with, ASTM F 1816–97 to
be a substantial product hazard and
would seek recalls of such products
regardless of whether they were added,
by rule, to the list of substantial product
hazards under Section 15(j) of the
CPSA. Finally, conformance to ASTM F
1816–97 is achieved for many garments
distributed in commerce by simply
eliminating drawstrings from the
manufacturing process with minimal or
no increase in resulting production
costs.
M. Effective Date
The Commission proposes that any
final rule based on this proposal become
effective 30 days after its date of
publication in the Federal Register.
After that date, all items of children’s
upper outerwear that are subject to, but
do not comply with, the ASTM F 1816–
97 will be deemed to be substantial
product hazards regardless of the date
they were manufactured or imported.
N. Request for Comments
The Commission invites interested
persons to submit their comments to the
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27503
Commission on any aspect of the
proposed rule. Comments should be
submitted as provided in the
instructions in the ADDRESSES section at
the beginning of this notice.
O. References
1. Press Release: ‘‘CPSC Works With
Industry To Remove Drawstring
Hazard,’’ News from CPSC, July 12,
1994.
2. Letter from John Gibson Mullan,
Director, CPSC’s Office of Compliance,
to Manufacturers, Importers and
Retailers of Children’s Upper
Outerwear, May 19, 1996.
3. Population estimates based on data
from the Bureau of the Census, U.S.
Department of Commerce, https://
www.census.gov/popest/national/asrh/
NC-EST2008/NC-EST2008-01.xls and
from the National Center for Health
Statistics, Centers for Disease Control
and Prevention, https://www.cdc.gov/
nchs/data/nvsr/nvsr58/nvsr58_09.pdf.
4. CPSC staff memorandum, ‘‘Extent of
Compliance with ASTM F 1816–97:
Standard Safety Specification for
Drawstrings on Children’s Upper
Outerwear,’’ from Elizabeth W. Leland,
Economist, Directorate for Economic
Analysis, to Jonathan D. Midgett, Ph.D.,
Engineering Psychologist, Division of
Human Factors, April 14, 2010.
5. CPSC staff memorandum,
‘‘Inclusion of Drawstrings on Children’s
Outerwear on the List of Substantial
Product Hazards: Small Business
Considerations,’’ from Charles L. Smith,
Economist, Directorate for Economic
Analysis, to Jonathan D. Midgett, Ph.D.,
Engineering Psychologist, Division of
Human Factors, Leader, Children’s
Program Area Team, January 26, 2010.
6. CPSC staff memorandum,
‘‘Reported Frequencies of Fatal and
Nonfatal Incidents Related to
Drawstrings on Children’s Upper
Outerwear Between 1985 and 2009,’’
from John Topping, Mathematical
Statistician, Division of Hazard
Analysis, to Jonathan Midgett,
Children’s Hazard Team Coordinator,
January 25, 2010.
7. CPSC staff memorandum,
‘‘Recommendation to Deem Children’s
Upper Outerwear with Drawstrings a
Substantial Product Hazard,’’ from
Jonathan D. Midgett, Ph.D., Children’s
Hazards Team Coordinator and Robert J.
Howell, Assistant Executive Director,
Office of Hazard Identification and
Reduction, to the Commission, April 20,
2010.
8. CPSC Guidelines for Drawstrings on
Children’s Upper Outerwear, September
1999.
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List of Subjects in 16 CFR Part 1120
Administrative practice and
procedure, Clothing, Consumer
protection, Infants and children,
Imports, Incorporation by reference.
For the reasons stated above, and
under the authority of 15 U.S.C. 2064(j),
5 U.S.C. 553, and section 3 of Public
Law 110–314, 122 Stat. 3016 (August
14, 2008), the Consumer Product Safety
Commission proposes to amend 16 CFR
part 1120, as proposed to be added
elsewhere in this issue of the Federal
Register, as follows:
PART 1120—SUBSTANTIAL PRODUCT
HAZARD LIST
1. The authority citation for part 1120
is revised to read as follows:
Authority: 15 U.S.C. 2064(j); Sec. 3, Pub.
L. 110–314, 122 Stat. 3016.
2. In § 1120.2, add paragraph (c) to
read as follows:
§ 1120.2
Definitions.
*
*
*
*
*
(c) Drawstring means a non-retractable
cord, ribbon, or tape of any material to
pull together parts of outerwear to
provide for closure.
3. In § 1120.3, add paragraph (b) to
read as follows:
§ 1120.3
Substantial product hazard list.
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*
*
*
*
*
(b) (1) Children’s upper outerwear in
sizes 2T to 16 or the equivalent, and
having one or more drawstrings, that is
subject to, but not in conformance with,
the requirements of ASTM F 1816–97,
Standard Safety Specification for
Drawstrings on Children’s Upper
Outerwear. The Director of the Federal
Register approves this incorporation by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. You may
obtain a copy from ASTM International,
100 Barr Harbor Drive, PO Box C700,
West Conshohocken, PA 19428–2959
USA, telephone: 610–832–9585; https://
www2.astm.org/. You may inspect a
copy at the Office of the Secretary, U.S.
Consumer Product Safety Commission,
Room 502, 4330 East West Highway,
Bethesda, MD 20814, telephone 301–
504–7923, or at the National Archives
and Records Administration (NARA).
For information on the availability of
this material at NARA, call 202–741–
6030, or go to: https://www.archives.gov/
federal_register/code_of_federal_
regulations/ibr_locations.html.
(2) At its option, the Commission may
use one or more of the following
methods to determine what sizes of
children’s upper outerwear are
equivalent to sizes 2T to 16:
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(i) Garments in girls’ size Large (L)
and boys’ size Large (L) are equivalent
to girls’ or boys’ size 12, respectively.
Garments in girls’ and boys’ sizes
smaller than Large (L), including ExtraSmall (XS), Small (S), and Medium (M),
are equivalent to sizes smaller than size
12. The fact that an item of children’s
upper outerwear with a hood and neck
drawstring is labeled as being larger
than Large (L) does not necessarily
mean that the item is not equivalent to
a size in the range of 2T to 12.
(ii) Garments in girls’ size Extra-Large
(XL) and boys’ size Extra-Large (XL) are
equivalent to size 16. The fact that an
item of children’s upper outerwear with
a waist or bottom drawstring is labeled
as being larger than Extra-Large (XL)
does not necessarily mean that the item
is not equivalent to a size in the range
of 2T to 16.
(iii) In cases where garment labels
give a range of sizes, if the range
includes any size that is subject to a
requirement in ASTM F 1816–97, the
garment will be considered subject,
even if other sizes in the stated range,
taken alone, would not be subject to the
requirement. For example, a coat sized
12 through 14 remains subject to the
prohibition of hood and neck area
drawstrings, even though this
requirement of the ASTM standard only
applies to garments up to size 12. A size
13 through 15 coat would not be
considered within the scope of the
ASTM standard’s prohibition of neck
and hood drawstrings, but would be
subject to the requirements for waist or
bottom drawstrings.
(iv) To fall within the scope of
paragraphs (b)(2)(i) through (2)(iii) of
this section, a garment need not state
anywhere on it, or on its tags, labels,
package, or any other materials
accompanying it, the term ‘‘girls,’’ the
term ‘‘boys,’’ or whether the garment is
designed or intended for girls or boys.
(v) The Commission may determine
equivalency to be as stated in a
manufacturer’s (including importer’s),
distributor’s, or retailer’s statements of
what sizes are equivalent to sizes 2T to
16. A firm’s statement of what sizes are
equivalent to sizes 2T to 16 may not be
used to show that the size of a garment
is not equivalent to a size in the range
of 2T to 16.
(vi) The Commission may use any
other evidence that would tend to show
that an item of children’s upper
outerwear is a size that is equivalent to
sizes 2T to 16.
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Dated: May 11, 2010.
Todd Stevenson,
Secretary, U.S. Consumer Product Safety
Commission.
[FR Doc. 2010–11622 Filed 5–14–10; 8:45 am]
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
16 CFR Part 1120
[CPSC Docket No. CPSC–2010–0042]
Substantial Product Hazard List: HandHeld Hair Dryers
AGENCY: Consumer Product Safety
Commission.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Consumer Product Safety
Improvement Act of 2008 (‘‘CPSIA’’),
authorizes the United States Consumer
Product Safety Commission
(‘‘Commission’’) to specify, by rule, for
any consumer product or class of
consumer products, characteristics
whose existence or absence shall be
deemed a substantial product hazard
under certain circumstances. In this
document, the Commission is proposing
a rule to determine that any hand-held
hair dryer without integral immersion
protection presents a substantial
product hazard.
DATE: Written comments in response to
this notice must be received by August
2, 2010.
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2010–
0042, by any of the following methods:
Electronic Submissions
Submit electronic comments in the
following way:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
To ensure timely processing of
comments, the Commission is no longer
accepting comments submitted by
electronic mail (e-mail) except through
https://www.regulations.gov.
Written Submissions
Submit written submissions in the
following way:
Mail/Hand delivery/Courier (for
paper, disk, or CD–ROM submissions),
preferably in five copies, to: Office of the
Secretary, Consumer Product Safety
Commission, Room 820, 4330 East West
Highway, Bethesda, MD 20814;
telephone (301) 504–7923.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received may be posted
E:\FR\FM\17MYP1.SGM
17MYP1
Agencies
[Federal Register Volume 75, Number 94 (Monday, May 17, 2010)]
[Proposed Rules]
[Pages 27497-27504]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11622]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1120
[Docket No. CPSC-2010-0043]
RIN 3041-AC79
Determination That Children's Upper Outerwear in Sizes 2T to 12
With Neck or Hood Drawstrings and Children's Upper Outerwear in Sizes
2T to 16 With Certain Waist or Bottom Drawstrings Are a Substantial
Product Hazard
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Consumer Product Safety Commission (``CPSC'' or
``Commission'') is proposing a rule to specify that children's upper
outerwear garments in sizes 2T to 12 or the equivalent that have neck
or hood drawstrings, and in sizes 2T to 16 or the equivalent that have
waist or bottom drawstrings that do not meet specified criteria, have
characteristics that constitute substantial product hazards. Items of
children's upper outerwear with these features have been involved in a
number of deaths and serious injuries from entanglement of the
drawstrings with items such as playground slides, cribs, and school
buses. The proposed rule would enhance understanding in the industry
about how the Commission views such garments and would facilitate the
process of obtaining the appropriate corrective action when such
garments are found in commerce.
DATES: Submit comments by August 2, 2010.
ADDRESSES: You may submit comments, identified by Docket No. CPSC-2010-
0043, by any of the following methods:
Electronic Submissions. Submit electronic comments to the
Federal eRulemaking Portal: https://
[[Page 27498]]
www.regulations.gov. Follow the instructions for submitting comments.
(To ensure timely processing of comments, the Commission is no longer
directly accepting comments submitted by electronic mail (e-mail). The
Commission encourages you to submit electronic comments by using the
Federal eRulemaking Portal, as described above.)
Written Submissions. Submit written submissions in the
following ways:
a. FAX: 301-504-0127.
b. Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions): Office of the Secretary, Consumer Product Safety
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received, including
any personal information provided, may be posted without change to
https://www.regulations.gov. Accordingly, we recommend that you not
submit confidential business information, trade secret information, or
other sensitive information that you do not want to be available to the
public.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov and insert the
docket number, CPSC 2010-0043, into the ``Search'' box and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Technical information: Jonathan
Midgett, Division of Human Factors, Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7692,
e-mail jmidgett@cpsc.gov. Legal information: Harleigh Ewell, Office of
the General Counsel, Consumer Product Safety Commission, 4330 East West
Highway, Bethesda, MD 20814; telephone (301) 504-7683; e-mail
hewell@cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
1. The hazard. Drawstrings in children's upper outerwear can
present a hazard if they become entangled with other objects [Ref. 6].
(Documents supporting statements in this notice are identified by [Ref.
], where is the number of the reference document as
listed below in section O of this notice.) Drawstrings in the neck and
hood areas of children's upper outerwear present a strangulation hazard
when the drawstring becomes caught in objects such as playground
slides. Drawstrings in the waist or bottom areas of children's upper
outerwear can catch in the doors or other parts of a motor vehicle,
thereby presenting a ``dragging'' hazard when the driver of the vehicle
drives off without realizing that someone is attached to the vehicle.
The injury data associated with drawstrings is discussed below in
section D of this preamble.
2. Previous industry actions to address the hazard. In 1994, at the
urging of CPSC, a number of manufacturers and retailers agreed to
modify or eliminate drawstrings from hoods and necks of children's
clothing [Ref. 1]. In 1997, the American Society for Testing and
Materials (now ASTM International) addressed the hazards presented by
drawstrings on upper outerwear by creating a voluntary consensus
standard, ASTM F 1816-97, Standard Safety Specification for Drawstrings
on Children's Upper Outerwear, to prohibit drawstrings around the hood
and neck area of children's upper outerwear in sizes 2T to 12, and also
to limit the length of drawstrings around the waist and bottom in sizes
2T to 16 to 3 inches outside the drawstring channel when the garment is
expanded to its fullest width. For waist and bottom drawstrings in
sizes 2T to 16, toggles, knots, and other attachments at the free ends
of drawstrings were prohibited. Further, waist and bottom drawstrings
in sizes 2T to 16 that are one continuous string were required to be
bartacked, i.e., stitched through to prevent the drawstring from being
pulled through its channel. The ASTM standard is copyrighted, but can
be viewed as a read-only document, only during the comment period on
this proposal, at https://www.astm.org/cpsc.htm, by permission of ASTM.
The Commission's staff has estimated that the age range of children
who would be likely to wear garments in sizes 2T to 12 is from 18
months to 10 years [Ref. 4]. The age range of children who would be
likely to wear garments in sizes 2T to 16 is 18 months to 14 years.
3. Previous actions by the Commission to address the hazard. On
July 12, 1994, the Commission announced a cooperative effort with a
number of manufacturers and retailers that agreed to eliminate or
modify drawstrings on the hoods and necks of children's clothing [Ref.
1].
In February 1996, the Commission issued guidelines [Ref. 8] for
consumers, manufacturers, and retailers that incorporated the
requirements that became ASTM F 1816-97.
On May 12, 2006, the CPSC's Office of Compliance posted a letter
[Ref. 2], on CPSC's website, to the manufacturers, importers, and
retailers of children's upper outerwear, citing the fatalities and
urging them to comply with the industry standard, ASTM F 1816-97. The
letter explained that the CPSC staff considers children's upper
outerwear with drawstrings at the hood or neck area to be defective and
to present a substantial risk of injury under section 15(c) of the
Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1274(c). Recalls of
noncomplying products that were toys or other articles intended for use
by children could be sought under that section. (At that time, section
30(d) of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2079(d)
(2007) provided that a risk that could be regulated under the FHSA
could not be regulated under the CPSA unless the Commission, by rule,
found that it was in the public interest to regulate the risk under the
CPSA. Thus, at that time, a recall would be sought under the authority
of section 15 of the FHSA, rather than the similar recall authority
under section 15 of the CPSA, discussed below in section A.4 of this
preamble. Section 30(d) of the CPSA was repealed by the CPSIA, so that
now a recall of a consumer product that is a toy or other article
intended for use by children can be sought either under the CPSA,
without a finding by rule that it is in the public interest to do so,
or under the FHSA.)
The 2006 letter also indicated that the Commission would seek civil
penalties if a manufacturer, importer, distributor, or retailer
distributed noncomplying children's upper outerwear in commerce and
failed to report that fact to the Commission as required by section
15(b) of the CPSA, 15 U.S.C. 2064(b) (discussed below in section A.4 of
this preamble). From 2006 through 2009, the Commission's staff
participated in 78 recalls of noncomplying products with drawstrings
and obtained a number of civil penalties based on the failure of firms
to report the defective products to CPSC as required by section 15(b)
of the CPSA [Ref. 4].
4. Section 15 of the CPSA. Section 15 of the CPSA authorizes the
CPSC to order corrective actions regarding substantial product hazards.
Section 15(a)(2) of the CPSA defines ``substantial product hazard'' as
a product defect which (because of the pattern of defect, the number of
defective products distributed in commerce, the severity of the risk,
or otherwise) creates a substantial risk of injury to the public. The
term ``defect'' is discussed in 16 CFR 1115.4.
[[Page 27499]]
Section 15(b)(3) of the CPSA (15 U.S.C. 2064(b)(3)) requires
manufacturers, distributors, and retailers of a consumer product or
other product over which the Commission has jurisdiction under any act
enforced by the Commission (other than motor vehicle equipment as
defined in 49 U.S.C. 30102(a)(7)), and which is distributed in
commerce, to immediately inform the Commission if they obtain
information that reasonably supports the conclusion that the product
contains a defect which could create a substantial product hazard under
section 15(a)(2) of the CPSA. After giving interested persons an
opportunity for a hearing, the Commission may require manufacturers,
distributors, and retailers, if in the public interest, to: (1) give
notice of the defect to various persons; (2) repair the product; or (3)
refund the purchase price. 15 U.S.C. 2064(c) and (d).
Section 15(j) of the CPSA authorizes the Commission to issue rules
establishing that defined characteristics of a consumer product that
present a risk of injury shall be deemed to be a substantial product
hazard if: (1) The characteristics are readily observable; (2) the
characteristics have been addressed by voluntary standards; (3) such
standards have been effective in reducing the risk of injury; and (4)
there is substantial compliance with such standards. These requirements
are discussed separately in sections B through E of this preamble
below.
B. The Defined Characteristics
As explained above in section A.4 of this preamble, the
requirements of the ASTM F 1816-97 voluntary standard to reduce the
risk of strangulation or being dragged by a vehicle due to neck, hood,
waist, or bottom drawstrings define the characteristics that present
the substantial product hazard associated with garments subject to that
standard.
C. The Characteristics Are Readily Observable
In the case of drawstrings, all of the requirements of the ASTM
voluntary standard can be evaluated with simple physical manipulations
of the garment, simple measurements of portions of the garments, and
unimpeded visual observation. The Commission concludes that the product
characteristics defined by the voluntary standard are readily
observable. (The preceding is not intended to be a definition of
``readily observable,'' and more complicated or difficult actions to
determine the presence or absence of defined product characteristics
also may be consistent with ``readily observable.'' The Commission
intends to evaluate this issue on a case-by-case basis.)
D. The Voluntary Standard Has Been Successful in Reducing the Risk of
Injury
1. Hood and neck drawstring incidents. The CPSC staff examined
reports of fatalities and injuries for the age groups whose upper
outerwear is subject to the voluntary standard [Ref. 6]. CPSC staff is
aware of 56 reports of neck and hood drawstring entanglements between
January 1985 and September 2009. Eighteen (32 percent) of these
entanglements were fatal. The majority of the entanglements involved a
neck or hood drawstring becoming snagged on a slide. Also, in several
incidents, a neck or hood drawstring became entangled on parts of a
crib. Of the 38 nonfatal neck or hood drawstring incidents involving
children in the age range of 18 months to 10 years (the ages estimated
to be associated with sizes 2T to 12), 30 incidents resulted in an
injury. In the remaining eight incidents, the neck or hood drawstring
became snagged or entangled but no injury was reported. The year with
the highest number of reported fatalities (three) was 1994. The 3 years
with the highest number of reported incidents (including both fatal and
nonfatal incidents) were 1992 (11), 1993 (9), and 1994 (9). Slides were
associated with 10 of the fatalities, 26 of the injury incidents, and
all 8 of the no-injury incidents (jackets or sweatshirts snagged by a
hood or neck drawstring on playground slides prior to the child's
subsequent escape or rescue).
The specification for drawstrings on children's upper outerwear,
ASTM F 1816-97, was approved in June 1997 and published in August 1998.
CPSC staff is aware of 12 fatalities and 33 nonfatal incidents during
the 12 years (1985-1996) prior to the ASTM standard that involved
children aged 18 months to 10 years of age where the neck or hood
string of upper outerwear became entangled. On average, this resulted
in one reported fatality and about three reported nonfatal incidents a
year. In the 8 years for which reporting is complete(1999 through 2006)
after ASTM F 1816-97 was published, CPSC staff received reports of two
fatal and two nonfatal neck or hood drawstring incidents. (The years
1997 and 1998 are omitted from this comparison because that was the
transition period during which the ASTM standard was developed and
published.) On average, this is approximately one fatality every 4
years and about one nonfatal entanglement every 4 years. For the years
for which reporting is complete, the data show a reduction in the
annual average number of reported fatalities after the ASTM standard of
75 percent. The corresponding reduction in the annual average number of
reported non-fatal entrapments is 91 percent. It should be noted that
CPSC staff continues to receive incident reports for the years 2007
through 2009. CPSC staff is aware of three fatalities and no non-fatal
incidents since January 2007. When reporting for 2007-2009 is complete,
the percent reduction in the annual average number of reported
fatalities associated with neck/hood drawstrings will be at most 55
percent if no additional fatal incidents are reported.
2. Waist and bottom drawstring incidents. Between January 1985 and
September 2009, CPSC staff is aware of 27 entanglement incidents
associated with a waist or bottom drawstring on children's upper
outerwear [Ref. 6]. Of these 27 incidents, 8 (30 percent) were fatal,
11 (41 percent) resulted in injuries, and 8 (30 percent) involved snags
or entanglements that did not result in an injury. All eight fatalities
identified with waist and bottom drawstrings (seven involving a bus and
one involving a slide) occurred in the years 1991 through 1996. From
1991 to 1996, there were 19 waist and bottom drawstring incidents, of
which 13 involved buses (7 fatalities and 6 nonfatal incidents). CPSC
staff is not aware of any bus-related drawstring incidents after 1996.
There were seven waist and bottom drawstring incidents from 1999 to the
present (all nonfatal), two of which involved children caught on car
doors. For years in which reporting is considered complete, the number
of reported fatalities associated with waist and bottom drawstrings
have fallen from the eight reported fatalities between 1985 and 1996 to
zero since adoption of the ASTM voluntary standard in 1997. For the
corresponding periods for which reporting is complete (1985 through
1996 and 1999 through 2006), reported nonfatal injuries fell from 11 in
12 years to 6 in 8 years. These data suggest that after the ASTM
standard was adopted, for waist and bottom drawstrings the annual
average of reported fatalities fell by 100 percent and the annual
average of reported nonfatal incidents fell by about 18 percent.
Reporting is ongoing for 2007-2009. CPCS staff is not aware of any
reported fatalities for this time. Staff has one report of a non-fatal
incident occurring between 2007-2009. These numbers may change in the
future.
3. Effectiveness of the voluntary standard. To the extent that
reductions in deaths and injuries are due to
[[Page 27500]]
compliance with the voluntary standard, either by eliminating
drawstrings altogether or by making them meet the requirements of the
standard, the effectiveness of the voluntary standard is likely to be
higher than the reductions in reported deaths and injuries indicate.
This is because many items of upper outerwear manufactured before the
industry widely adopted the ASTM standard, and that had drawstrings
that did not comply with that standard, probably remained in use long
after the standard was adopted. Based on the injury data, the
Commission concludes that the ASTM voluntary standard has been
effective in reducing the risk of injury from children's upper
outerwear with drawstrings.
E. There Is Substantial Compliance With the Voluntary Standard
In the context of the findings needed for a rule under section
15(j) of the CPSA to deem product characteristics regulated by a
voluntary standard to be a substantial product hazard, ``substantial
compliance'' refers to the extent the industry manufacturing and
distributing the product complies with the voluntary standard. The
issue is what degree of compliance will be deemed ``substantial'' in a
particular situation. Neither section 15(j) of the CPSA nor the
legislative history of the CPSIA (which amended the CPSA to add
paragraph (j) to section 15 of the CPSA) defines or explains what
constitutes substantial compliance.
The Commission notes, however, that the term ``substantial
compliance,'' which is used in section 15(j) of the CPSA, also appears
elsewhere in the CPSA, as well as in the Federal Hazardous Substances
Act (``FHSA'') and the Flammable Fabrics Act (``FFA''), in the context
of whether the Commission can issue a mandatory rule addressing a risk
that also is addressed by a voluntary standard. Because the provisions
in the FHSA and FFA relating to substantial compliance are basically
identical to those in the CPSA, only the CPSA is referenced in the
following discussion.
Sections 7 and 9 of the CPSA prohibit the Commission from issuing a
consumer product safety rule if there is a voluntary standard that
passes a two-pronged test: (1) If the voluntary standard were
universally complied with, it would adequately reduce, or eliminate,
the unreasonable risk of injury that would be addressed by the rule;
and (2) there will be substantial compliance with the voluntary
standard. Failure of a voluntary standard to meet either prong of this
test allows the Commission to issue a mandatory standard. The use of
the concept of ``substantial compliance'' as a finding that can
determine whether a mandatory consumer product safety rule can be
issued will be referred to in this preamble as the ``rulemaking
context.''
The most comprehensive explanation of the Commission's views on
substantial compliance in the rulemaking context is in the findings the
Commission made in issuing the Safety Standard for Bunk Beds, 16 CFR
parts 1213, 1500, and 1513. Those findings are codified in appendices
to 16 CFR parts 1213 and 1513 and state, in relevant part, that the
Commission does not believe that there is any single percentage of
conforming products that can be used in all cases to define
``substantial compliance.'' Instead, the percentage must be viewed in
the context of the hazard the product presents, and the Commission must
examine what constitutes substantial compliance with a voluntary
standard in light of its obligation to safeguard the American consumer.
The findings in the rulemaking for bunk beds discuss a number of
factors that the Commission should consider in the rulemaking context
in determining whether there is substantial compliance. Factors that
may influence the Commission to conclude that a mandatory standard is
needed and that there is not substantial compliance include that:
The risk is severe;
No intervening action is required to create the risk;
The risk targets a vulnerable population, such as
children;
The product has a long life and thus might be passed on to
other children; and
The product can be made relatively easily by very small
companies.
See, e.g., Appendix to 16 CFR part 1213.
In the context of a rule under section 15(j) of the CPSA, the same
factors would argue that the Commission should find substantial
compliance, in order that the public be protected by the issuance of
the rule.
Table 1 (below) shows information about the CPSC recalls for the
years 2006 through 2009. The number of cases related to recalls of
children's upper outerwear garments with drawstrings numbered 78 for
that period, involving about 2 million units.
The number of recalls in 2008 and 2009 was more than the number of
recalls in 2006 and 2007; however, the annual average number of
outerwear garments recalled in 2006 and 2007 (about 650,000) was about
75 percent greater than the annual average number recalled in 2008 and
2009 (about 377,000).
Table 1--CPSC Office of Compliance Recalls Drawstrings on Children's
Upper Outerwear 2006-2009
------------------------------------------------------------------------
Number of units
Number of recall of upper
Year cases outerwear
recalled
------------------------------------------------------------------------
2006................................ 17 676,597
2007................................ 14 626,172
2008................................ 24 227,868
2009................................ 23 526,193
-----------------------------------
Total........................... 78 2,056,830
------------------------------------------------------------------------
Source: Communication from CPSC Office of Compliance, March 18,
2010.
Using population data, garment sizing information, and assumptions
about purchase and use, one can calculate the number of units recalled
as a proportion of sales. This calculation provides a rough estimate of
the extent of compliance with the voluntary standard.
As explained earlier in section A.2 of this preamble, the voluntary
standard applies to sizes 2T to 12 for neck and hood drawstrings and
sizes 2T to 16 for drawstrings at the waist and bottom of upper
outerwear. Information available to CPSC's staff indicates that a
child's age generally matches the child's clothing size or is a year or
two below the clothing size [Ref. 4]. For example,
[[Page 27501]]
a child 12 years old might wear a size 12 garment or a size 14.
Similarly, for smaller sizes, children who are as young as 18 months
can be wearing size 2T clothing. Thus, the ages of children wearing
size 2T to 12 (the sizes covered by the voluntary standard for upper
outerwear with hood or neck drawstrings) would be 18 months to 10
years. The ages of children typically wearing size 2T to 16 (the sizes
covered by the voluntary standard for upper outerwear with waist or
bottom drawstrings) would be 18 months to 14 years.
For each of the years 2006 through 2009, the population of children
ages 18 months to 10 years was about 38 million and the population of
children ages 18 months to 14 years was approximately 55 million [Refs.
3, 4].
No numerical data about recent annual sales of children's upper
outerwear is available. A press release concerning a 1994 cooperative
agreement between CPSC and manufacturers and retailers of children's
clothing suggests that annual sales of garments with hood and neck
drawstrings was 20 million, although no source for that information is
provided [Ref. 1]. However, because one way to comply with the
voluntary standard is to eliminate drawstrings entirely, the garments
to which the voluntary standard applies include all children's upper
outerwear in the specified sizes, not just those with drawstrings.
Given children's growth patterns, it may be that, on average, at
least one new piece of upper outerwear is purchased each year for each
child. If so, then sales of children's upper outerwear could total the
population of children who wear children's sizes 2T to 16, or at least
55 million.
Given these assumptions, and assuming that all violative items of
children's upper outerwear were recalled in the years 2006 through
2009, it would appear that the percentage of children's upper outerwear
garments sold in those years that complied with the drawstring
requirements of ASTM F 1816-97 was in the high-90-percent range. While
the number of recalled units in the years 2006 through 2009 totaled
about 2 million units, the number of units sold during those 4 years,
under the assumptions above, totaled 220 million. Thus, for the period
2006 through 2009, the units recalled by CPSC would account for about 1
percent of all units sold. In other words, given the assumptions noted,
there was about 99 percent compliance with the voluntary standard. Even
if these assumptions are not entirely accurate, the Commission
concludes that the compliance with ASTM F 1816-97 is very high and
constitutes substantial compliance as that term is used in section
15(j) of the CPSA.
F. Size and Age Determination Issues
Children's upper outerwear that is labeled with a size in the 2T to
16 numerical size range clearly would be a garment subject to the ASTM
F 1816-97 standard. In many cases, however, the garment's label may
lack a numerical size, instead using a ``small (S), medium (M), or
large (L)'' sizing system. It is fairly obvious when clothing is small
enough for younger children and therefore would be included in the
sizes specified in the ASTM standard. In contrast, it is not always
apparent which non-numerical sizes correspond to the sizes at the upper
end of the ranges in the standard, that is, size 12 and size 16,
because styles and sizing systems vary. To determine which of these
designations would be equivalent to sizes 2T to 16, the Commission's
staff searched internet sites to locate clothing size charts in which
firms link children's non-numerical sizes with numerical sizes [Ref.
7]. All of the charts that were located, 31 of which were for girls'
apparel and 29 for boys' apparel, were included in the review. For each
firm, letter sizes were recorded for boys' and girls' sizes 10 through
18 to explore the overlap in letter sizes one size below and one above
the 12 and 16 endpoints in the standard. The number of firms adopting
each size equivalence is presented below.
Table 2--Number of Firms by Number and Letter Size Equivalency
----------------------------------------------------------------------------------------------------------------
Girls Boys
-------------------------------------------------------------------------------
S M L XL XXL S M L XL XXL
----------------------------------------------------------------------------------------------------------------
10.............................. 1 23 7 ...... ...... 1 21 7 ...... ......
12.............................. ...... 17 14 ...... ...... ...... 17 11 1 ......
14.............................. ...... ...... 21 10 ...... ...... 1 19 8 1
16.............................. ...... ...... 9 17 1 ...... ...... 15 9 ......
18.............................. ...... ...... ...... 9 1 ...... ...... 1 16 2
----------------------------------------------------------------------------------------------------------------
As can be seen in the table, firms vary in how they define those
sizes. For example, although most firms equate children's size 10 with
Medium, some equate size 10 with Small (S) and some with Large (L).
To increase the likelihood that as many products as possible that
are subject to the ASTM standard will be included in the applicable
size definition while minimizing the overlapping inclusion of products
that are not subject to the ASTM standard, the Commission proposes that
non-numerical equivalencies for sizes 12 and 16 be based on the size
equivalency that is (1) used by a substantial percent of children's
apparel firms and (2) does not exclude a substantial percent of firms
at a higher size equivalency.
For example, for girls' size 12 apparel, 55 percent of the size
equivalencies shown in the chart above equate size 12 to size Medium.
However, if Medium and smaller is selected as equivalent to size 12 and
smaller, then another 45 percent of size equivalencies (in the Large
category) are excluded. Therefore, to ensure that products covered by
the standard are included, it appears to be more appropriate to select
Large as the upper limit size equivalency for size 12 girls' upper
outerwear. For boys size 12, 59 percent of the size equivalencies
equate size 12 to Medium, but if that size equivalency is selected,
then another 38 percent of size equivalencies (in the Large category)
are excluded. Thus, it appears more appropriate to select Large as the
upper limit size equivalency for size 12 boys' upper outerwear. While
there is another data point showing size 12 equivalent to XL, it would
constitute only 3 percent of equivalencies, and therefore it would be
possible that products not covered by the standard would be included.
Thus, it does not appear reasonable to include that size. Using this
approach and based on the table above, the Commission proposes that
boys' and girls' size Large (L) should be defined as size 12 and that
boys' and girls' sizes Extra-Large (XL) be defined as equivalent to
size 16.
The proposed rule also would declare that the number and letter
size-
[[Page 27502]]
equivalency system used by a particular firm can, at the Commission's
option, be used to determine the equivalency of that firm's sizes to
the numerical system.
In cases where garment labels give a range of sizes, if the range
includes any size that is subject to ASTM F 1816-97, the garment will
be considered subject, even if other sizes in the stated range, taken
alone, would not be subject. For example, a coat sized 12-14 remains
subject to the prohibition of hood and neck area drawstrings, even
though the ASTM standard prohibits head and neck drawstrings only in
garments up to size 12. On the other hand, a size 13-15 coat would not
be considered to be within the scope of the ASTM standard's prohibition
of neck and hood drawstrings, but it would be subject to the ASTM
standard's requirements for waist or bottom strings.
To address garments for which the lettered sizing system sizes
given above are insufficient to determine whether an item of upper
outerwear is equivalent to sizes 2T to 16, the Commission's staff
considered the possibility of determining garment equivalency on the
basis of anthropometric data or a market survey of the actual size of
garments marked 2T to 16. It was determined that such efforts were not
feasible due to the vagaries of fashion and the varied purposes served
by outerwear (e.g., how many layers of clothing will be worn under the
garment). The Commission invites comments on how to determine the
equivalency of unlabeled or ambiguously labeled garments to sizes 2T to
16.
In cases where the equivalency of a garment's size to the relevant
size in the 2T to 16 system is not readily apparent, the Commission's
staff will assemble evidence on that issue. The Commission concludes
that, once equivalency has been established, the existence of any final
rule under section 15(j) of the CPSA applicable to the product will
obviate any need for the staff to present additional evidence to
establish that the product contains a defect that presents a
substantial risk of injury to the public.
G. Description of the Proposed Rule
Elsewhere in this issue of the Federal Register, the Commission is
publishing a proposed rule to establish a new part 1120, titled,
``Substantial Product Hazard List'' which would codify the Commission's
determinations that certain consumer products or classes of consumer
products have characteristics whose existence or absence presents a
substantial product hazard. Products that are determined in rules
issued under section 15(j) of the CPSA to present a substantial product
hazard, such as the rule proposed in this notice for drawstrings, would
be listed in a new Sec. 1120.3.
This proposed rule for drawstrings would create a new Sec.
1120.3(b)(1) to specify that items of children's upper outerwear that
are subject to ASTM F 1816-97, but that do not comply with it, are
substantial product hazards under section 15(a)(2) of the CPSA. The
proposal also would create a new Sec. 1120.2(c) to define a
``drawstring'' as ``a non-retractable cord, ribbon, or tape of any
material to pull together parts of outerwear to provide for closure.''
To facilitate determining which garments that are sized under a
sizing system other than the numerical system (2T to 16) would be
equivalent to sizes 2T to 16, proposed Sec. 1120.3(b)(2)(i) would
provide that garments in girls' size Large (L) and boys' size Large (L)
are equivalent to size 12 and proposed Sec. 1120.3(b)(2)(ii) specifies
that garments in girls' size Extra-Large (XL) and boys' size Extra-
Large (XL) are equivalent to size 16.
Proposed Sec. 1120.3(b)(2)(iii) would provide that if a garment is
labeled for a range of sizes, the garment would be considered subject
to ASTM F 1816-97 if any size within the range is subject to ASTM F
1816-97. Proposed Sec. 1120.3(b)(2)(iv) would provide that, in order
to fall within the scope of Sec. 1120.3(b)(2)(i) through (iii), a
garment need not state anywhere on it, or on its tags, labels, package,
or any other materials accompanying it, the term ``girls'' or the term
``boys'' or whether the garment is intended for girls or boys. In
addition, proposed Sec. 1120.3(b)(2)(v) would provide that a size may
be considered equivalent to the 2T to 16 range if a manufacturer,
importer, distributor, or retailer has stated that it is equivalent.
Last, proposed Sec. 1120.3(b)(vi) would state that the Commission may
use any other evidence that would tend to show that an item of
children's upper outerwear is a size that is equivalent to sizes 2T to
16.
H. Certification
The Commission has received inquiries about whether a product that
is subject to a rule under section 15(j) of the CPSA will have to be
tested and certified as required by section 14(a) of the CPSA. The
answer to that question is ``no.'' Section 14(a) of the CPSA requires
that products subject to a consumer product safety rule under the CPSA
or a similar rule, ban, standard, or regulation under any other act
enforced by the Commission must be certified as complying with all
applicable CPSC-enforced requirements. 15 U.S.C. 2063(a). Such
certification must be based on a test of each product or on a
reasonable testing program or, for children's products (those designed
or intended primarily for children 12 years of age or younger), on
tests by a third-party conformity assessment body (also known as a
``third-party laboratory'') recognized by the Commission. Under section
14(a) of the CPSA, the only type of rule under the CPSA that can
trigger the requirement for testing and certification is a ``consumer
product safety rule.'' Section 3(a)(6) of the CPSA defines a ``consumer
product safety rule'' as ``a consumer products safety standard
described in section 7(a) [of the CPSA] or a rule under [section 8 of
the CPSA] declaring a consumer product a banned hazardous product.'' A
rule under section 15(j) of the CPSA does not fit into either category,
so products subject to a rule under section 15(j) of the CPSA are not,
for that reason, subject to the testing and certification requirements
of section 14(a) of the CPSA. The Commission is aware that section
11(g)(1)(A) of the CPSA, 15 U.S.C. 2060(g)(1)(A), relating to judicial
review, refers to a rule issued under section 15(j) of the CPSA as a
``consumer product safety rule.'' However, this provision is limited to
judicial review situations and, therefore, does not equate rules under
section 15(j) of the CPSA with consumer product safety rules. (Although
a rule under section 15(j) of the CPSA does not trigger the requirement
for testing and certification, products subject to a rule under section
15(j) of the CPSA may need to be tested and certified if they are
subject to other CPSC requirements, such as flammability requirements,
the lead content requirements in section 101 of the CPSIA, or the
phthalate content requirements of section 108 of the CPSIA.)
The Commission understands that retailers may be demanding
certification tests to all CPSC requirements applicable to children's
products. The discussion above makes it clear that certification to the
proposed rule is not required by federal law or this regulation. While
certification is not required by law, retailers still have a
responsibility to report to the CPSC under section 15(b) with regard to
this rule. The Commission believes that because the retailer has an
independent reporting obligation to the Commission, it should not be
permitted to seek indemnity for a penalty assessed because of its own
failure to report. The Commission would consider an agreement to
indemnify a retailer for
[[Page 27503]]
any civil penalties assessed for a failure to report to be void as
against public policy. The Commission seeks comment on this position.
I. Preemption
The Commission has received inquiries about whether a rule under
section 15(j) of the CPSA would have the effect of preempting State
laws or regulations that are not identical to the requirements of the
voluntary standard. Under section 26(a) of the CPSA, 15 U.S.C. 2075(a),
if a ``consumer product safety standard under [the CPSA]'' is in effect
and applies to a product, no State or political subdivision of a State
may either establish or continue in effect a requirement dealing with
the same risk of injury unless the State requirement is identical to
the Federal standard. (Section 26(c) of the CPSA provides that States
or political subdivisions of States may apply to the Commission for an
exemption from this preemption under certain circumstances.) As
discussed in the preceding section H of this preamble, a rule under
section 15(j) of the CPSA is not a ``consumer product safety
standard.'' Accordingly, the preemptive effect of section 26(a) of the
CPSA does not apply to a rule under section 15(j) of the CPSA.
J. Paperwork Reduction Act
This proposed rule would not impose any information collection
requirements. Accordingly, this rule is not subject to the Paperwork
Reduction Act, 44 U.S.C. 3501-3520.
K. Environmental Considerations
The Commission's environmental review regulation at 16 CFR part
1021 has established categories of actions that normally have little or
no potential for affecting the human environment and therefore do not
require either an environmental assessment or an environmental impact
statement. The proposed rule is within the scope of the Commission's
regulation, at 16 CFR 1021.5(c)(1), that provides a categorical
exclusion for rules to provide design or performance requirements for
products. Thus, no environmental assessment or environmental impact
statement for this rule is required.
L. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to consider the impact of proposed rules on small entities,
including small businesses. For the reasons given immediately below,
the Commission concludes that the proposed rule will not have a
significant impact on a substantial number of small entities.
Aggregate information about the market for children's outerwear is
not readily available; these types of garments are not reported
separately by the U.S. Department of Commerce. Nearly all manufacturers
of these garments would be considered small businesses under the Small
Business Administration (SBA) guidelines applicable to such enterprises
(fewer than 500 employees). According to SBA data for 2006, of 9,343
U.S. firms that manufactured ``cut and sew'' apparel, 9,286, or 99.4
percent, had fewer than 500 employees, and more than 80 percent had
fewer than 20 employees. Firms that manufacture children's outerwear
would be a subset of the cut and sew manufacturing category, but these
statistics would support the assumption that nearly all are small
businesses. SBA firm-size data for clothing retailers also show that
nearly all of these firms would be considered to be small businesses.
The Commission's staff estimates that a very high percentage of
small businesses that manufacture or sell children's upper outerwear
already sell only garments that comply with ASTM F 1816-97. Therefore,
these firms would not be adversely affected if children's upper
outerwear garments with drawstrings are added to the list of products
that present a substantial product hazard. Also, the Commission's
Office of Compliance and Field Operations already considers children's
upper outerwear with hood or neck area drawstrings that are subject to,
but do not comply with, ASTM F 1816-97 to be a substantial product
hazard and would seek recalls of such products regardless of whether
they were added, by rule, to the list of substantial product hazards
under Section 15(j) of the CPSA. Finally, conformance to ASTM F 1816-97
is achieved for many garments distributed in commerce by simply
eliminating drawstrings from the manufacturing process with minimal or
no increase in resulting production costs.
M. Effective Date
The Commission proposes that any final rule based on this proposal
become effective 30 days after its date of publication in the Federal
Register. After that date, all items of children's upper outerwear that
are subject to, but do not comply with, the ASTM F 1816-97 will be
deemed to be substantial product hazards regardless of the date they
were manufactured or imported.
N. Request for Comments
The Commission invites interested persons to submit their comments
to the Commission on any aspect of the proposed rule. Comments should
be submitted as provided in the instructions in the ADDRESSES section
at the beginning of this notice.
O. References
1. Press Release: ``CPSC Works With Industry To Remove Drawstring
Hazard,'' News from CPSC, July 12, 1994.
2. Letter from John Gibson Mullan, Director, CPSC's Office of
Compliance, to Manufacturers, Importers and Retailers of Children's
Upper Outerwear, May 19, 1996.
3. Population estimates based on data from the Bureau of the
Census, U.S. Department of Commerce, https://www.census.gov/popest/national/asrh/NC-EST2008/NC-EST2008-01.xls and from the National Center
for Health Statistics, Centers for Disease Control and Prevention,
https://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_09.pdf.
4. CPSC staff memorandum, ``Extent of Compliance with ASTM F 1816-
97: Standard Safety Specification for Drawstrings on Children's Upper
Outerwear,'' from Elizabeth W. Leland, Economist, Directorate for
Economic Analysis, to Jonathan D. Midgett, Ph.D., Engineering
Psychologist, Division of Human Factors, April 14, 2010.
5. CPSC staff memorandum, ``Inclusion of Drawstrings on Children's
Outerwear on the List of Substantial Product Hazards: Small Business
Considerations,'' from Charles L. Smith, Economist, Directorate for
Economic Analysis, to Jonathan D. Midgett, Ph.D., Engineering
Psychologist, Division of Human Factors, Leader, Children's Program
Area Team, January 26, 2010.
6. CPSC staff memorandum, ``Reported Frequencies of Fatal and
Nonfatal Incidents Related to Drawstrings on Children's Upper Outerwear
Between 1985 and 2009,'' from John Topping, Mathematical Statistician,
Division of Hazard Analysis, to Jonathan Midgett, Children's Hazard
Team Coordinator, January 25, 2010.
7. CPSC staff memorandum, ``Recommendation to Deem Children's Upper
Outerwear with Drawstrings a Substantial Product Hazard,'' from
Jonathan D. Midgett, Ph.D., Children's Hazards Team Coordinator and
Robert J. Howell, Assistant Executive Director, Office of Hazard
Identification and Reduction, to the Commission, April 20, 2010.
8. CPSC Guidelines for Drawstrings on Children's Upper Outerwear,
September 1999.
[[Page 27504]]
List of Subjects in 16 CFR Part 1120
Administrative practice and procedure, Clothing, Consumer
protection, Infants and children, Imports, Incorporation by reference.
For the reasons stated above, and under the authority of 15 U.S.C.
2064(j), 5 U.S.C. 553, and section 3 of Public Law 110-314, 122 Stat.
3016 (August 14, 2008), the Consumer Product Safety Commission proposes
to amend 16 CFR part 1120, as proposed to be added elsewhere in this
issue of the Federal Register, as follows:
PART 1120--SUBSTANTIAL PRODUCT HAZARD LIST
1. The authority citation for part 1120 is revised to read as
follows:
Authority: 15 U.S.C. 2064(j); Sec. 3, Pub. L. 110-314, 122
Stat. 3016.
2. In Sec. 1120.2, add paragraph (c) to read as follows:
Sec. 1120.2 Definitions.
* * * * *
(c) Drawstring means a non-retractable cord, ribbon, or tape of any
material to pull together parts of outerwear to provide for closure.
3. In Sec. 1120.3, add paragraph (b) to read as follows:
Sec. 1120.3 Substantial product hazard list.
* * * * *
(b) (1) Children's upper outerwear in sizes 2T to 16 or the
equivalent, and having one or more drawstrings, that is subject to, but
not in conformance with, the requirements of ASTM F 1816-97, Standard
Safety Specification for Drawstrings on Children's Upper Outerwear. The
Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may
obtain a copy from ASTM International, 100 Barr Harbor Drive, PO Box
C700, West Conshohocken, PA 19428-2959 USA, telephone: 610-832-9585;
https://www2.astm.org/. You may inspect a copy at the Office of the
Secretary, U.S. Consumer Product Safety Commission, Room 502, 4330 East
West Highway, Bethesda, MD 20814, telephone 301-504-7923, or at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call 202-741-6030, or go to:
https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(2) At its option, the Commission may use one or more of the
following methods to determine what sizes of children's upper outerwear
are equivalent to sizes 2T to 16:
(i) Garments in girls' size Large (L) and boys' size Large (L) are
equivalent to girls' or boys' size 12, respectively. Garments in girls'
and boys' sizes smaller than Large (L), including Extra-Small (XS),
Small (S), and Medium (M), are equivalent to sizes smaller than size
12. The fact that an item of children's upper outerwear with a hood and
neck drawstring is labeled as being larger than Large (L) does not
necessarily mean that the item is not equivalent to a size in the range
of 2T to 12.
(ii) Garments in girls' size Extra-Large (XL) and boys' size Extra-
Large (XL) are equivalent to size 16. The fact that an item of
children's upper outerwear with a waist or bottom drawstring is labeled
as being larger than Extra-Large (XL) does not necessarily mean that
the item is not equivalent to a size in the range of 2T to 16.
(iii) In cases where garment labels give a range of sizes, if the
range includes any size that is subject to a requirement in ASTM F
1816-97, the garment will be considered subject, even if other sizes in
the stated range, taken alone, would not be subject to the requirement.
For example, a coat sized 12 through 14 remains subject to the
prohibition of hood and neck area drawstrings, even though this
requirement of the ASTM standard only applies to garments up to size
12. A size 13 through 15 coat would not be considered within the scope
of the ASTM standard's prohibition of neck and hood drawstrings, but
would be subject to the requirements for waist or bottom drawstrings.
(iv) To fall within the scope of paragraphs (b)(2)(i) through
(2)(iii) of this section, a garment need not state anywhere on it, or
on its tags, labels, package, or any other materials accompanying it,
the term ``girls,'' the term ``boys,'' or whether the garment is
designed or intended for girls or boys.
(v) The Commission may determine equivalency to be as stated in a
manufacturer's (including importer's), distributor's, or retailer's
statements of what sizes are equivalent to sizes 2T to 16. A firm's
statement of what sizes are equivalent to sizes 2T to 16 may not be
used to show that the size of a garment is not equivalent to a size in
the range of 2T to 16.
(vi) The Commission may use any other evidence that would tend to
show that an item of children's upper outerwear is a size that is
equivalent to sizes 2T to 16.
Dated: May 11, 2010.
Todd Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2010-11622 Filed 5-14-10; 8:45 am]
BILLING CODE 6355-01-P