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[Federal Register: May 17, 2010 (Volume 75, Number 94)]
[Proposed Rules]
[Page 27497-27504]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my10-31]

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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.

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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: http://[[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
http://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 http://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 http://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, http://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,
http://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;
http://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:
http://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
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