42502 Federal Register / Vol. 76, No. 138 / Tuesday, July 19, 2011 / Rules and Regulations 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2011–17822 Filed 7–18–11; 8:45 am] 

BILLING CODE 6750–01–C 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Part 1120 

Substantial Product Hazard List: 

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 

AGENCY: U.S. Consumer Product Safety 

Commission. 

ACTION: Final rule. 

SUMMARY: The Consumer Product Safety 

Improvement Act of 2008 (‘‘CPSIA’’), 

authorizes the U.S. Consumer Product 

Safety Commission (‘‘Commission,’’ 

‘‘CPSC,’’ or ‘‘we’’) 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. We are 

issuing a final rule to determine that 

children’s upper outerwear garments in 

sizes 2T to 12 or the equivalent, which 

have neck or hood drawstrings, and in 

sizes 2T to 16 or the equivalent, which 

have waist or bottom drawstrings that 

do not meet specified criteria, present 

substantial product hazards. 

DATES: The rule takes effect August 18, 

2011. The incorporation by reference of 

the publication listed in this rule is 

approved by the Director of the Federal 

Register as of August 18, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Tanya Topka, Office of Compliance and 

Field Operations, U.S. Consumer 

Product Safety Commission, 4330 East 

West Highway, Bethesda, MD 20814; 

telephone (301) 504–7594, 

ttopka@cpsc.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background and Statutory Authority 

The Consumer Product Safety 

Improvement Act of 2008 (‘‘CPSIA’’) 

was enacted on August 14, 2008. Public 

Law 110–314, 122 Stat. 3016 (August 

14, 2008). The CPSIA amends statutes 

that the Commission administers and 

adds certain new requirements. 

Section 223 of the CPSIA expands 

section 15 of the Consumer Product 

Safety Act (‘‘CPSA’’) to add a new 

subsection (j). That subsection delegates 

authority to the Commission to specify 

by rule, for a consumer product or class 

of consumer products, characteristics 

whose presence or absence the 

Commission considers a substantial 

product hazard. To issue such a rule, 

the Commission must determine that 

those characteristics are readily 

observable and have been addressed by 

an applicable voluntary standard. The 

Commission also must find that the 

standard has been effective in reducing 

the risk of injury and that there has been 

substantial compliance with it. 15 

U.S.C. 2064(j). 

Drawstrings in children’s upper 

outerwear can present a hazard if they 

become entangled with other objects. 

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 operator of the vehicle 

drives off without realizing that 

someone is attached to the vehicle by 

the drawstring. The injury data 

associated with drawstrings is discussed 

below in section C of this preamble. 

In 1994, at the urging of the CPSC, a 

number of manufacturers and retailers 

agreed to modify or eliminate 

drawstrings from hoods and necks of 

children’s clothing. 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 of children’s upper 

outerwear 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 upper outerwear sizes 2T 

to 16, the Standard prohibited toggles, 

knots, and other attachments at the free 

ends of drawstrings. The Standard 

further required that waist and bottom 

drawstrings in upper outerwear sizes 2T 

to 16 that are one continuous string be 

bartacked (i.e., stitched through to 

prevent the drawstring from being 

pulled through its channel). 

We have estimated that the age range 

of children likely to wear garments in 

sizes 2T to 12 is 18 months to 10 years. 

The age range of children likely to wear 

garments in sizes 2T to 16 is 18 months 

to 14 years. 

On July 12, 1994, we announced a 

cooperative effort with a number of 

manufacturers and retailers who agreed 

to eliminate or modify drawstrings on 

the hoods and necks of children’s 

clothing. 

In February 1996, we issued 

guidelines 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 on CPSC’s 

website to the manufacturers, importers, 

and retailers of children’s upper 

outerwear, citing the fatalities that had 

occurred and urging compliance with 

the industry standard, ASTM F 1816– 

97. The letter explained that we 

consider 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). 

The 2006 letter also indicated that we 

would seek civil penalties if a 

manufacturer, importer, distributor, or 

retailer distributed noncomplying 

children’s upper outerwear in 

commerce and/or failed to report that 

fact to the Commission as required by 

section 15(b) of the CPSA, 15 U.S.C. 

2064(b). From 2006 through 2010, we 

participated in 115 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. 

On May 17, 2010, we published a 

proposed rule (75 FR 27497) that would 

deem 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, substantial product hazards. We 

received seven comments in response to 

the proposed rule. We describe and 

respond to the comments in section E of 

this preamble. 

B. Readily Observable Characteristics 

That Have Been Addressed by a 

Voluntary Standard 

As mentioned in section A of this 

preamble, ASTM F 1816–97 addresses 

upper outerwear garments in sizes 2T to 

12 that have neck or hood drawstrings, 

and in sizes 2T to 16 that have waist or 

bottom drawstrings that do not meet 

specified criteria. All of the 

requirements of the ASTM voluntary 

standard can be evaluated with simple 

physical manipulations of the garment, 


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simple measurements of portions of the 

garments, and unimpeded visual 

observation. Thus, the product 

characteristics defined by the voluntary 

standard are readily observable. 

C. The Voluntary Standard Has Been 

Successful in Reducing the Risk of 

Injury 

a. Hood and Neck Drawstring Incidents 

We examined reports of fatalities and 

injuries for the age groups whose upper 

outerwear is subject to the voluntary 

standard. We are aware of 56 reports of 

neck/hood drawstring entanglements 

occurring between January 1985 and 

April 2011. Eighteen (32%) of these 

entanglements were fatal. The majority 

of the entanglements involved the neck/ 

hood drawstrings snagging on slides. 

Neck/hood drawstrings also became 

entangled on parts of cribs in several 

incidents. Of the 38 nonfatal incidents 

involving children between the ages of 

18 months and 10 years, 30 incidents 

resulted in injuries. In the remaining 

eight incidents, the neck/hood 

drawstring snagged or entangled the 

child, but no injury was reported. The 

year with the highest number of 

reported fatalities—three—is 1994. The 

three years with the highest number of 

reported incidents (including 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 noninjury 

incidents (the jackets or sweatshirts 

snagged by the hood or neck drawstring 

on playground slides prior to escape or 

rescue). 

The Standard for drawstrings on 

children’s upper outerwear, ASTM F 

1816–97, was approved in June 1997, 

and published in August 1998. We are 

aware of 12 fatalities and 33 nonfatal 

incidents involving children ages 18 

months to 10 years of age, who were 

entangled by a neck/hood drawstring of 

upper outerwear during the 12 years 

(1985–1996) prior to the Standard. On 

average, this results in one reported 

fatality and about three nonfatal 

incidents a year. In the eight years 

(1999–2006) for which reporting is 

complete after ASTM F 1816–97 was 

published, we received reports of two 

fatal and two nonfatal neck/hood 

drawstring incidents. On average, this is 

approximately one fatality every four 

years and about one nonfatal 

entanglement every four 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 

approximately 75 percent. The 

corresponding reduction in the annual 

average number of reported nonfatal 

entrapments is 91 percent. It should be 

noted that we are continuing to receive 

incident reports for the years 2007– 

2010. We are aware of three fatalities 

between 2007–2010. No fatalities have 

been reported to date for 2011. When 

reporting 2010 is considered complete, 

the percent reduction in the annual 

average number of reported fatalities 

associated with neck/hood drawstrings, 

at most, will be 58 percent, if no 

additional fatal incidents are reported. 

b. Reported Incidents Associated With 

Waist/Bottom Drawstring 

Entanglements 

Between January 1985 and April 

2011, we received 28 reports of 

entanglement incidents associated with 

a waist/bottom drawstring on children’s 

upper outerwear. Of these 28 incidents, 

8 (29%) were fatal; 11 (39%) resulted in 

injuries; and 9 (32%) constituted snags 

or entanglements that did not result in 

injuries. No waist/bottom drawstring 

incidents were reported to us before 

1991. All eight fatalities (7 involving a 

bus, 1 involving a slide) associated with 

waist/bottom drawstrings occurred 

between 1991 and 1996. During 1991 to 

1996, there were a total of 19 waist/ 

bottom drawstring incidents, of which 

13 involved buses (7 bus fatalities and 

6 nonfatal bus incidents). We are not 

aware of any bus-related drawstring 

incidents after the year 1996. There 

were nine waist/bottom drawstring 

incidents from 1997 to the present (all 

nonfatal), of which three involved 

children whose waist/bottom drawstring 

caught on car doors. 

All of the reported fatalities 

associated with waist/bottom 

drawstrings on children’s upper 

outerwear occurred prior to the 

approval and publication of ASTM F 

1816–97. 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 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 2007–2011. CPSC staff is not aware 

of any reported fatalities for this time. 

Staff has two reports of non-fatal 

incidents occurring between 2007–2011. 

These numbers may change in the 

future. 

D. Substantial Compliance 

There is no statutory definition of 

‘‘substantial compliance’’ in either the 

CPSIA or the CPSA. Legislative history 

of the CPSA provision that is related to 

issuance of consumer product safety 

standards indicates that substantial 

compliance should be measured by 

reference to the number of complying 

products, rather than the number of 

manufacturers of products complying 

with the standard. H.R. Rep. No. 208, 

97th Cong., 1st Sess. 871 (1981). 

Legislative history of this CPSA 

rulemaking provision also indicates that 

there is substantial compliance when 

the unreasonable risk of injury 

associated with a product will be 

eliminated or adequately reduced ‘‘in a 

timely fashion.’’ Id. The Random House 

Dictionary of the English Language 

defines ‘‘substantial’’ as ‘‘of ample or 

considerable amount, quantity, size, 

etc.’’ Thus ‘‘substantial’’ refers to an 

amount less than ‘‘all’’ or ‘‘total.’’ The 

Commission has not taken the position 

that there is any particular percentage 

that constitutes substantial compliance. 

Rather than any bright line, the 

Commission has indicated in the 

rulemaking context that the 

determination needs to be made on a 

case-by-case basis. 

Table 1 shows information about the 

CPSC recalls involving drawstrings on 

children’s upper outerwear for the years 

2006–2010. The number of compliance 

cases related to recalls of children’s 

upper outerwear garments with 

drawstrings numbered 115 for that 

period, involving about 2.5 million 

units. 

The number of recalls in 2008, 2009, 

and 2010 was more than the number of 

recalls in 2006 and 2007, with the 

number of recalls in 2010 representing 

the largest of those five years; however, 

fewer units of children’s outerwear 

garments were recalled in 2010, than in 

2006, 2007, and 2009. 


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1For the years 2006 through 2009, this number 

is based on Bureau of the Census, U.S. Department 

of Commerce data, which can be found in ‘‘Table 

1. Annual Estimates of the Resident Population by 

Sex and Five-Year Age Groups for the United 

States: April 1, 2000 to July 1, 2009’’ at http:// 

www.census.gov/popest/national/asrh/NCEST2009/NC-EST2009-01.xls. For 2010, the number 

is based on Bureau of the Census, U.S. Department 

of Commerce data found in ‘‘Table 1. Population by 

Age and Sex: 2010’’ at http://www.census.gov/ 

population/www/socdemo/age/age_sex_2010.html. 

TABLE 1—CPSC OFFICE OF COMPLIANCE RECALLS DRAWSTRINGS ON CHILDREN’S UPPER OUTERWEAR

[2006–2010] 

Year Number of 

recall cases 

Number of 

units of upper 

outerwear 

recalled 

2006 ......................................................................................................................................................................... 17 676,597 

2007 ......................................................................................................................................................................... 14 626,172 

2008 ......................................................................................................................................................................... 24 227,868 

2009 ......................................................................................................................................................................... 23 526,193 

2010 ......................................................................................................................................................................... 37 431,145 

Total .................................................................................................................................................................. 115 2,487,975 

Source: Communication from CPSC Office of Compliance, March 18, 2010, and May 2, 2011. 

In response to a comment to the 

proposed rule regarding whether ties are 

included in the definition of drawstring 

(discussed in more detail in section E of 

this preamble), staff reviewed the recall 

data to determine how many recall cases 

involved ties. For the 2006–2010 time 

period, there were six recalls (occurring 

in 2009 and 2010) of children’s upper 

outerwear that involved ties, accounting 

for 135,406 units. 

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 in the preamble to the 

proposed rule (75 FR at 27498) and in 

section A 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 us indicates 

that a child’s age generally matches the 

child’s clothing size or is a year or two 

below the clothing size. For example, a 

child 12 years old might wear a size 12 

or a size 14 garment. Similarly, for 

smaller sizes, children who are as young 

as 18 months might wear 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 age range of children who 

typically wear sizes 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 

2010, the population of children ages 18 

months to 10 years old (those wearing 

sizes 2T to 12, as noted above) was 

about 39 million. The population of 

children ages 18 months to 14 years old 

(those wearing sizes 2T to 16, as noted 

above) was about 55 million.1

No numerical data about recent 

annual sales of children’s upper 

outerwear is available. However, 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 

upper outerwear with neck and hood 

drawstrings or with waist and bottom 

drawstrings could total the population 

of children who wear children’s sizes 

2T to 16, or approximately 55 million 

units. 

Assuming that: (1) All garments 

violating the drawstring voluntary 

standard were recalled in the years 2006 

through 2010; (2) at least one new piece 

of upper outerwear, on average, is 

purchased for each child each year; and 

(3) annual unit sales of upper outerwear 

with neck or hood drawstrings totaled 

55 million, then it would appear that 

the number of children’s upper 

outerwear garments that complied with 

the drawstring requirements of ASTM F 

1816–97 was in the very high 90 percent 

range. While the number of recalled 

units in the years 2006 through 2010 

totaled about 2.5 million, the number of 

units sold during those five years, under 

the assumptions above, totaled 275 

million. Thus, for the period 2006 

through 2010, the units recalled by the 

CPSC (with ties included or excluded) 

would account for about 1 percent of all 

units sold; in other words, given the 

assumptions above, there was about 99 

percent compliance with the voluntary 

standard. Even if these assumptions are 

not entirely accurate, the Commission 

concludes that 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. This 

determination extends to ties. 

E. Comments on the Proposed Rule and 

CPSC’s Responses 

In the Federal Register of May 17, 

2010 (75 FR 27497), we published a 

proposed rule that would 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. We 

received seven comments on the 

proposed rule. We summarize and 

respond to the issues raised by those 

comments here. To make it easier to 

identify the comments and our 

responses, the word ‘‘Comment,’’ in 

parentheses, will appear before the 

comment’s description, and the word 

‘‘Response,’’ in parentheses, will appear 

before our response. We also numbered 

each comment to help distinguish 

between different comments. The 

number assigned to each comment is 

purely for organizational purposes and 

does not signify the comment’s value, or 

importance, or the order in which it was 

received. 

1. Request for a Mandatory Ban 

(Comment 1)—One commenter 

characterized the proposed rule as an 

‘‘effort to urge voluntary compliance 

with the garment industry’’ and asked 

that we ‘‘institute an outright mandatory 

ban on the types of drawstring garments 

[the Commission] describe[s] in [the] 

proposed rule’’ instead. 

(Response 1)—The commenter’s 

characterization of the rule as an effort 

to urge ‘‘voluntary compliance’’ from 

the garment industry is misplaced. 

Section 15(j) of the CPSA, 15 U.S.C. 


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2064(j), authorizes the Commission to 

deem characteristics of any consumer 

product or class of consumer products 

to be a substantial product hazard under 

section 15(a)(2) of the CPSA, if we 

determine that: (A) Such characteristics 

are readily observable and have been 

addressed by voluntary standards; and 

(B) such voluntary standards have been 

effective in reducing the risk of injury 

from the consumer product(s) and that 

there is substantial compliance with 

such standards. A product that is or has 

a substantial product hazard is subject 

to the reporting requirements of section 

15(b) of the CPSA. 15 U.S.C. 2064(b). A 

manufacturer who fails to report a 

substantial product hazard to the 

Commission is subject to civil penalties 

under section 20 of the CPSA and 

possibly to criminal penalties under 

section 21 of the CPSA. Id. §§ 2069 and 

2070. 

A product that is or contains a 

substantial product hazard is also 

subject to corrective action under 

section 15(c) and (d) of the CPSA. Id. 

§ 2064(c) and (d). Thus, we can order 

the manufacturer, distributor, or retailer 

of the product to offer to repair or 

replace the product, or refund the 

purchase price to the consumer. Finally, 

a product that is offered for import into 

the United States and is or contains a 

substantial product hazard shall be 

refused admission into the United States 

under section 17(a) of the CPSA. Id. 

§ 2066(a). 

2. Range of Sizes Covered by the 

Standard 

(Comment 2)—One commenter 

recommended that the rule should cover 

sizes smaller than 2T and should 

prohibit drawstrings in pants as well as 

upper outerwear. 

(Response 2)—Both recommendations 

are outside the scope of this rulemaking. 

The voluntary standard applicable to 

drawstrings does not cover sizes smaller 

than 2T and does not apply to 

drawstrings in pants. Section 15(j) of the 

CPSA only allows a determination of a 

substantial product hazard for product 

characteristics that have been addressed 

by voluntary standards with which 

there is substantial compliance. 

Therefore, we cannot adopt the 

commenter’s recommendations. If 

information becomes available showing 

that such action is needed, then we 

could consider whether we could make 

the findings to issue a standard or ban 

drawstrings in sizes smaller than 2T or 

in pants, or to support industry in the 

implementation of a voluntary standard 

addressing these issues. 

3. Age of Children at Risk 

(Comment 3)—Two commenters 

stated that product safety standards 

should refer to the ages of the children 

at risk and not to the sizes of the 

garments. 

(Response 3)—This suggestion is 

outside the scope of this rulemaking. 

Only those characteristics of a product 

that have been addressed by a voluntary 

standard may be deemed to be a 

substantial product hazard in a rule 

made under section 15(j) of the CPSA. 

The applicable voluntary standard for 

drawstrings in children’s upper 

outerwear, ASTM F 1816–97, addresses 

garment sizes but not children’s ages. 

Therefore, the Commission cannot take 

the action requested in this rulemaking. 

However, the preamble to the 

proposed rule (75 FR at 27501 through 

27502) discussed what the 

corresponding ages are—namely, that 

size 2T would be worn by children 

about 18 months of age; size 12 would 

be worn by children about 10 years of 

age; and size 16 would be worn by 

children about 14 years of age. 

Furthermore, although the voluntary 

standard on which the proposed rule is 

based (ASTM F 1816–97) refers to 

children’s clothing sizes only, it also 

references age in the Rationale 

(Appendix, section X1). That section 

reports the ages of the victims in 

incidents involving hood and neck 

drawstrings (14 months to 8 years) and 

incidents involving waist and bottom 

drawstrings (7 years to 14 years). The 

CPSC Directorate for Epidemiology 

staff’s review of the data on related 

incidents shows that little has changed 

with regard to age since the Standard 

was developed. Those incidents 

associated with neck drawstrings 

involved children 10 years old and 

younger. Incidents associated with waist 

or bottom drawstrings involved children 

14 years old and younger. The ages 

reported in the incident data correlate 

well with information from retailer size 

charts, anthropometric body 

measurement data, and standard tables 

of body measurements developed by 

ASTM. These sources show that the age 

range of children likely to wear 

garments in sizes 2T to 12 is 18 months 

to 10 years, and the age range of 

children likely to wear garments sizes 

2T to 16 is 18 months to 14 years. These 

are the ages the Standard is intended to 

cover because children of those ages are 

most at risk. 

4. Adult Apparel and Marketing 

Concerns 

(Comment 4)—Two commenters also 

requested ‘‘that CPSC clearly state that 

adult apparel, marketed to adults, or 

merchandised in adult departments will 

not be subject to this rule.’’ These 

commenters stated that ‘‘adult apparel 

sized small or extra small could easily 

pass for a larger sized child’s garment. 

* * * [a] generic adult’s sized extra 

small hooded sweatshirt could easily be 

mistaken as a children’s garment.’’ 

(Response 4)—We agree that garments 

intended for adults and marketed to 

adults only would not be subject to the 

rule because they are not children’s 

garments. We do not believe, however, 

that consideration of the manufacturer’s 

intended wearer should supersede 

consideration of the actual or reasonably 

foreseeable wearers. While a 

manufacturer, retailer, or distributor 

may intend that only adults should wear 

the garment, we will consider the 

reasonably foreseeable uses and misuses 

of garments that are labeled 

ambiguously, including uses by those 

whom it is reasonably foreseeable will 

wear it. Many factors could confound a 

manufacturer’s, retailer’s, or 

distributor’s intent that only adults 

would wear a garment. 

We believe that consumers make their 

buying and wearing decisions based 

primarily on a garment’s size and 

characteristics, including fabric, color, 

print, texture, and other features, 

independent of label information related 

to the intended wearer. We agree that 

smaller adult apparel could easily pass 

for an older child’s garment. This is 

evidenced in the overlap of body 

dimensions used in industry sizing 

charts to define smaller adult sizes and 

larger children’s sizes. Further, children 

at the pre-teen and teen stages often 

want to dress like adults, and adults 

sometimes wear clothing that appeals to 

children and is available in sizes for 

both children and adults (e.g., clothing 

with designs relating to cartoon 

characters and theme-related 

characters). Because of the overlap in 

sizes and appeal, it is foreseeable that 

ambiguously labeled apparel could pass 

for a child’s garment and may be 

purchased for use by children. 

Therefore, we believe that such clothing 

should meet the Standard’s drawstring 

requirements and should be subject to 

the 15(j) rule for drawstrings and that it 

would be inappropriate to exclude all 

‘‘adult apparel’’ from the rule. 

In addition, relying on where or how 

a given retailer may display a garment 

would present practical problems. One 

retailer may offer the garment in the 

women’s section; another retailer may 

offer the same garment in the children’s 

section; and yet another retailer may 

offer the garment in a grouping by 

garment type, without reference to age 


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or gender (e.g., all sweatshirts). Some 

retailers may not differentiate at all 

between departments within their store 

based on age or gender. It would be 

impractical and unwise to rely on 

presumptions about the retail treatment. 

For these reasons, if upper outerwear 

is labeled ambiguously or not marketed 

clearly for adults only and is equivalent 

to a size within the range of 2T to 16, 

then that upper outerwear should meet 

the Standard’s drawstring requirements 

and should be subject to the 15(j) rule 

for drawstrings. If a manufacturer, 

retailer, or distributor has any doubt, it 

should report the garment to the 

Commission in accordance with section 

15 of the CPSA. 

5. Definition of Drawstring 

(Comment 5)—Two commenters 

jointly requested clarification regarding 

the definition of a ‘‘drawstring’’ as 

stated in the Standard. Specifically, 

these commenters stated that the 

common industry understanding of a 

drawstring is a cord that passes through 

a channel, and the commenters raised 

concerns about the 2009 recall of 

children’s hooded sweatshirts with ties 

sewn in at the base of the hood. The 

commenters stated that these ties do not 

pass through a channel or necessarily 

provide for closure. They expressed 

concern about the potential for 

confusion in the marketplace regarding 

which closures meet the ‘‘drawstring’’ 

definition in the Standard. 

(Response 5)—The Commission has 

long understood that nonretractable 

cords, ribbons, or tapes of any material 

that pull together parts of upper 

outerwear to provide for closure 

constitute drawstrings, regardless of 

whether they pass through a channel. 

Drawstrings that fail to comply with or 

that result in an article of children’s 

upper outerwear failing to comply with 

the Standard’s performance 

requirements constitute defects that 

create a substantial risk of injury to 

children, regardless of whether they 

pass through a channel. Both where the 

drawstring is through a channel and 

where the drawstring is in the form of 

a tie, if the drawstring becomes caught, 

the garment’s neck, collar, or other such 

part becomes taut around the neck, 

leading to possible strangulation. In the 

Commission’s recall and other 

enforcement efforts, CPSC has 

interpreted and applied the Standard in 

a manner consistent with these beliefs. 

The Standard defines a ‘‘drawstring’’ 

as ‘‘a non-retractable cord, ribbon, or 

tape of any material to pull together 

parts of upper outerwear to provide for 

closure.’’ The Standard’s ‘‘drawstring’’ 

definition is not limited to cords, 

ribbons, or tapes that pass through a 

channel. Further, the definition does not 

exclude ties. The Commission believes 

the definition in the Standard is without 

ambiguity, and there is sufficient 

information to determine that there has 

been substantial compliance with the 

Standard with respect to ties. Thus, ties 

continue to be included within the 

definition of ‘‘drawstrings’’ in this final 

rule. 

We believe that, under section 15 of 

the CPSA, manufacturers, retailers, and 

distributors have had a continuing duty 

to report to the Commission regarding 

drawstrings, which include ties, and 

that firms will continue to have such a 

duty. Reporting will increase the safety 

of children, a vulnerable population, 

and, as warranted, we will continue to 

seek recalls of children’s upper 

outerwear with drawstrings given the 

substantial risk of injury these garments 

present to children. 

6. Manufacturers’ Sizing Systems 

(Comment 6)—A commenter 

expressed concern about how the 

Commission would evaluate whether a 

children’s garment falls within the size 

range stated in the Standard. Noting that 

apparel sizing varies among companies, 

the commenter questioned the 

Commission’s position in proposed 

§ 1120.3(b)(2)(v) that 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. The 

commenter stated that the Commission’s 

position is inconsistent with the 

CPSIA’s definition of the term 

‘‘children’s product,’’ which lists a 

statement of the manufacturer’s 

intended use as a factor to be 

considered. The commenter stated that 

a manufacturer’s statement, if 

reasonable, should be the primary 

consideration of whether a garment is 

covered by the Standard. 

(Response 6)—After further 

evaluation, we are removing 

§ 1120.3(b)(2)(v) in its entirety. We will 

consider a manufacturer’s statement 

about the intended use of a children’s 

garment, if such statement is reasonable. 

We do not believe, however, that a 

manufacturer’s statement, even if 

reasonable, should be the primary 

consideration in determining whether a 

garment is covered by the Standard. 

Rather, in any given matter, we will 

consider all of the relevant factors and 

will weigh them appropriately. 

7. Definition of ‘‘Upper Outerwear’’ 

(Comment 7)—A commenter 

recommended that ‘‘Lightweight 

garments worn on the upper body, but 

intended as an inner layer, or intended 

for warmer weather climates that do not 

use outerwear should be excluded.’’ 

(Response 7)—The Standard defines 

‘‘upper outerwear’’ as ‘‘clothing, such as 

jackets and sweatshirts, generally 

intended to be worn on the exterior of 

other garments.’’ This definition 

excludes underwear and inner layers, 

but includes lightweight outerwear that 

is appropriate for use in warmer 

climates. The hazards presented by 

drawstrings on children’s upper 

outerwear are not limited to 

heavyweight outerwear. Any drawstring 

that can dangle from the neck or waist 

area of outerwear during play activities 

presents the hazard, even if the 

garment’s fabric is lightweight. Pants, 

shorts, and skirts are not intended for 

the upper portion of the body and are 

excluded from the scope of the 

Standard. 

F. Description of the Final Rule 

The final rule for drawstrings creates 

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 rule also creates 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) are equivalent to sizes 2T to 

16, § 1120.3(b)(2)(i) provides that 

garments in girls’ size Large (L) and 

boys’ size Large (L) are equivalent to 

size 12. Section 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. 

Section 1120.3(b)(2)(iii) provides that 

if a garment is labeled for a range of 

sizes, the garment will be considered 

subject to ASTM F 1816–97, if any size 

within the range is subject to ASTM F 

1816–97. Section 1120.3(b)(2)(iv) 

provides 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. Last, § 1120.3(b)(v) states 

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. 


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Federal Register / Vol. 76, No. 138 / Tuesday, July 19, 2011 / Rules and Regulations 42507 

G. Effect of Section 15(j) Rule 

Section 15(j) of the CPSA authorizes 

us to issue a rule specifying that a 

consumer product (or class of consumer 

products) has characteristics whose 

presence or absence creates a substantial 

product hazard. This rule, which falls 

under section 15 of the CPSA, is not a 

consumer product safety rule and does 

not create a consumer product safety 

standard. Thus, the rule does not trigger 

any testing or certification requirements 

under section 14(a) of the CPSA. 

Although the final rule does not 

establish a consumer product safety 

standard, placing a consumer product 

on this substantial product hazard list 

has certain consequences. A product 

that is or has a substantial product 

hazard is subject to the reporting 

requirements of section 15(b) of the 

CPSA. 15 U.S.C. 2064(b). A 

manufacturer who fails to report a 

substantial product hazard to the 

Commission is subject to civil penalties 

under section 20 of the CPSA and 

possibly is subject to criminal penalties 

under section 21 of the CPSA. 15 U.S.C. 

2069, 2070. 

A product that is or contains a 

substantial product hazard is subject to 

corrective action under section 15(c) 

and (d) of the CPSA. 15 U.S.C. 2064(c), 

(d). Thus, the Commission can order the 

manufacturer, distributor, or retailer of 

the product to offer to repair or replace 

the product, or to refund the purchase 

price to the consumer. 

Finally, a product that is offered for 

import into the United States, and is or 

contains a substantial product hazard, 

must be refused admission into the 

United States under section 17(a) of the 

CPSA. 15 U.S.C. 2066(a). 

H. Regulatory Flexibility Certification 

The Regulatory Flexibility Act 

(‘‘RFA’’) generally requires that agencies 

review proposed and final rules for their 

potential economic impact on small 

entities, including small businesses. 5 

U.S.C. 601–612. In the preamble to the 

proposed rule (75 FR at 27503), we 

noted that Commission 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. 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 are 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 simply by 

eliminating drawstrings from the 

manufacturing process with minimal or 

no increase in resulting production 

costs. Therefore, we certified that, in 

accordance with section 605 of the RFA, 

the rule, if promulgated, would not have 

a significant economic impact on a 

substantial number of small entities. 

We received no comments concerning 

the rule’s impact on small businesses, 

and we are not aware of any information 

that would change our certification. 

I. 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. This 

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. 

J. Paperwork Reduction Act 

The final rule does not impose any 

information collection requirements. 

Accordingly, the final rule is not subject 

to the Paperwork Reduction Act, 44 

U.S.C. 3501–3520. 

K. Effective Date 

The preamble to the proposed rule 

indicated that a final rule would take 

effect 30 days from its date of 

publication in the Federal Register, 

such that, after that date, all items of 

children’s upper outerwear that are 

subject to, but do not comply with, 

ASTM F 1816–97, would constitute a 

substantial product hazard. 

We received no comments regarding 

the effective date. Accordingly, the 

effective date for this rule is August 18, 

2011. 

L. Preemption 

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. 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. 

List of Subjects in 16 CFR Part 1120 

Administrative practice and 

procedure, Consumer protection, 

Household appliances, Imports, 

Incorporation by reference. 

Conclusion 

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 U.S. Consumer Product 

Safety Commission amends title 16 of 

the Code of Federal Regulations as 

follows: 

PART 1120—SUBSTANTIAL PRODUCT 

HAZARD LIST 

■ 1. The authority citation for part 1120 

continues to read as follows: 

Authority: 15 U.S.C. 2064(j); Sec. 3, Pub. 

L. 110–314, 122 Stat. 3016. 

■ 2. Amend § 1120.2 by adding a new 

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 upper outerwear to 

provide for closure. 

■ 3. In § 1120.3, add paragraph (b) to 

read as follows: 

§ 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, approved June 10, 1997, 

published August 1998. 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/ 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
42508 Federal Register / Vol. 76, No. 138 / Tuesday, July 19, 2011 / Rules and Regulations 

1See Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law. 111–203, 124 

Stat. 1376 (2010). 

2 7 U.S.C. 1 et seq. 

3Subtitle A of Title VII contains two parts. Part 

I, entitled ‘‘Regulatory Authority,’’ consists of 

sections 711–720; part II, entitled ‘‘Regulation of 

Swap Markets,’’ consists of sections 721–754. 

Subtitle B of Title VII is entitled ‘‘Regulation of 

Security-Based Swap Markets,’’ and consists of 

sections 761–774. References to ‘‘Title VII’’ in this 

Release shall include only subtitle A of Title VII. 

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 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 a size 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 size 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 ASTM F 1816–97 only 

applies to garments up to size 12. A coat 

size 13 through 15 would not be 

considered within the scope of ASTM F 

1816–97’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 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: July 12, 2011. 

Todd A. Stevenson, 

Secretary, U.S. Consumer Product Safety 

Commission. 

[FR Doc. 2011–17961 Filed 7–18–11; 8:45 am] 

BILLING CODE 6355–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Chapter 1 

Effective Date for Swap Regulation 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final Order. 

SUMMARY: On June 17, 2011, the 

Commodity Futures Trading 

Commission (‘‘CFTC’’ or the 

‘‘Commission’’) published for public 

comment in the Federal Register a 

proposed order that would grant, 

pursuant to the Commission’s 

exemptive authority pursuant to the 

Commodity Exchange Act (‘‘CEA’’), 

certain temporary relief from the 

provisions of the CEA added or 

amended by title VII of the Dodd-Frank 

Wall Street Reform and Consumer 

Protection Act (‘‘Dodd-Frank Act’’) that 

reference one or more terms regarding 

entities or instruments that title VII 

requires be ‘‘further defined,’’ such as 

the terms ‘‘swap,’’ ‘‘swap dealer,’’ 

‘‘major swap participant,’’ or ‘‘eligible 

contract participant,’’ to the extent that 

requirements or portions of such 

provisions specifically relate to such 

referenced terms and do not require a 

rulemaking. The CFTC also proposed to 

grant temporary relief from certain 

provisions of the CEA that will or may 

apply to certain agreements, contracts, 

and transactions in exempt or excluded 

commodities as a result of the repeal of 

various CEA exemptions and exclusions 

as of the general effective date set forth 

in section 754 of the Dodd-Frank Act, 

July 16, 2011. Upon consideration of the 

full record, the Commission has 

determined to issue this final exemptive 

order (‘‘Final Order’’) essentially as 

proposed, with appropriate or necessary 

modification or clarification. 

DATES: Effective July 14, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Terry Arbit, Deputy General Counsel, 

202–418–5120, tarbit@cftc.gov, or 

Harold Hardman, Deputy General 

Counsel, 202–418–5120, 

hhardman@cftc.gov, Office of the 

General Counsel, or Steven Kane, 

Consultant, 202–418–5911, 

skane@cftc.gov, Office of the Chief 

Economist, CFTC, Three Lafayette 

Centre, 1151 21st Street, NW., 

Washington, DC 20581. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On July 21, 2010, President Obama 

signed the Dodd-Frank Act.1 Title VII of 

the Dodd-Frank Act amends the CEA 2

to establish a comprehensive new 

regulatory framework for swaps. The 

legislation was enacted to reduce risk, 

increase transparency, and promote 

market integrity within the financial 

system by, among other things: (1) 

Providing for the registration and 

comprehensive regulation of swap 

dealers and major swap participants; (2) 

imposing clearing and trade execution 

requirements on standardized derivative 

products; (3) creating robust 

recordkeeping and real-time reporting 

regimes; and (4) enhancing the 

rulemaking and enforcement authorities 

of the Commission with respect to, 

among others, all registered entities and 

intermediaries subject to the 

Commission’s oversight. Title VII also 

includes amendments to the federal 

securities laws to establish a similar 

regulatory framework for security-based 

swaps under the authority of the 

Securities and Exchange Commission 

(‘‘SEC’’). 

Section 754 of the Dodd-Frank Act 

states that, unless otherwise provided, 

the provisions of subtitle A of title VII 

of the Dodd-Frank Act (‘‘Title VII’’) 3

‘‘shall take effect on the later of 360 

days after the date of the enactment of 

this subtitle or, to the extent a provision 

of this subtitle requires a rulemaking, 

not less than 60 days after publication 

of the final rule or regulation 

implementing such provision of this 

subtitle.’’ The date 360 days after the 

date of enactment is July 16, 2011. 

To implement the Dodd-Frank Act, as 

of July 8, 2011, the Commission has 

issued 52 advance notices of proposed 

rulemaking or notices of proposed 

rulemaking, two interim final rules, six 

final rules, and one proposed 

interpretive order. The regulatory 

requirements that have been proposed 

by the Commission present a 

substantially complete mosaic of the 

Commission’s proposed regulatory 

framework under Title VII. In light of 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1